ATENEO CENTRAL BAR OPERATIONS 2007
Political Law
SUMMER REVIEWER
CONSTITUTIONAL LAW ............................................................................................................................. 2
ARTICLE I – THE NATIONAL TERRITORY ............................................................................................... 2
ARTICLE II – DECLARATION OF PRINCIPLES AND STATE POLICIES................................................... 2
ARTICLE III – BILL OF RIGHTS ................................................................................................................. 4
ARTICLE IV – CITIZENSHIP .................................................................................................................. 23
ARTICLE V – SUFFRAGE ......................................................................................................................24
ARTICLE VI – THE LEGISLATIVE DEPARTMENT............................................................................... 25
ARTICLE VII. THE EXECUTIVE DEPARTMENT .................................................................................. 35
ARTICLE VIII. THE JUDICIAL DEPARTMENT...................................................................................... 43
ARTICLE IX – THE CONSTITUTIONAL COMMISSIONS ..................................................................... 46
THE CIVIL SERVICE COMMISSION................................................................................................. 47
THE COMMISSION ON ELECTIONS................................................................................................ 50
THE COMMISSION ON AUDIT ......................................................................................................... 53
ARTICLE X: LOCAL GOVERNMENT.................................................................................................... 54
ARTICLE XI: ACCOUNTABILITY OF PUBLIC OFFICERS................................................................... 57
ARTICLE XII – NATIONAL ECONOMY AND PATRIMONY ................................................................... 61
ARTICLE XIII – SOCIAL JUSTICE AND HUMAN RIGHTS..................................................................... 65
ARTICLE XIV - EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS .... 67
ARTICLE XVI - GENERAL PROVISIONS.............................................................................................. 68
ARTICLE XVII- AMENDMENTS OR REVISIONS................................................................................... 69
ARTICLE XVIII - TRANSITORY PROVISIONS ...................................................................................... 71
PUBLIC INTERNATIONAL LAW ............................................................................................................... 72
THE NATURE OF INTERNATIONAL LAW............................................................................................ 72
SOURCES OF INTERNATIONAL LAW..................................................................................................72
TREATIES .............................................................................................................................................. 73
INTERNATIONAL LAW AND MUNICIPAL LAW..................................................................................... 74
SUBJECTS OF INTERNATIONAL LAW.................................................................................................74
STATE RESPONSIBILITY...................................................................................................................... 76
SETTLEMENT OF DISPUTES ............................................................................................................... 77
SPECIAL TOPICS .................................................................................................................................. 77
LAW ON HUMAN RIGHTS..................................................................................................................... 81
ADMINISTRATIVE LAW ............................................................................................................................ 84
LAW ON PUBLIC CORPORATION ........................................................................................................... 89
LAW ON PUBLIC OFFICERS .................................................................................................................... 98
ELECTION LAW....................................................................................................................................... 104
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—Advisers: Atty. Sedfrey Candelaria; Head: Patricia Libo-on; Understudy: Grip Bueta
Members: Felippe Closa, Juancho Hernandez, Immaculada Ylagan
Political Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007
CONSTITUTIONAL LAW
Article I – THE NATIONAL TERRITORY
The national territory of the Philippines comprises:
1) the Philippine archipelago;
2) all other territories over which the Philippines has
sovereignty or jurisdiction
PHILIPPINE ARCHIPELAGO – that body of water
studded with islands which is delineated in the Treaty
of Paris (1898), as amended by the Treaty of
Washington (1900) and the Treaty with Great Britain
(1930).
– consists of its
a)Terrestrial
b)Fluvial
c) Aerial domains
– including its
a)Territorial sea
b)The seabed
c) The subsoil
d)The insular shelves; and
e)The other submarine areas
INTERNAL WATERS – the waters Around, Between
and Connecting the islands of the archipelago,
regardless of their breadth and dimensions
ALL OTHER TERRITORIES OVER WHICH THE
PHILIPPINES
HAS
SOVEREIGNTY
OR
JURISDICTION –includes any territory that presently
belongs or might in the future belong to the
Philippines through any of the accepted international
modes of acquiring territory.
ARCHIPELAGIC PRINCIPLE
Two elements:
1. The definition of internal waters (supra);
2. The straight baseline method of delineating the
territorial sea – consists of drawing straight lines
connecting the outermost points on the coast
without departing to any appreciable extent from
the general direction of the coast.
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Important distancesare with
around the Philippines
Territorial Sea
12 nautical miles (n.m.)
Contiguous Zone
12 n.m. from the edge of the
territorial sea
Exclusive
200 n.m. from the baseline
Economic Zone
[includes T.S. and C.Z.]
NOTE: There can be a Continental Shelf without an
EEZ, but not an EEZ without a Continental Shelf.
TERRITORIAL SEA
The belt of the sea located between the coast and
internal waters of the coastal state on the one hand,
and the high seas on the other, extending up to 12
nautical miles from the low water mark.
CONTIGUOUS ZONE
Extends up to 12 nautical miles from the territorial
sea. Although not part of the territory, the coastal
State may exercise jurisdiction to prevent
infringement of customs, fiscal, immigration or
sanitary laws.
EXCLUSIVE ECONOMIC ZONE
Body of water extending up to 200 nautical miles,
within which the state may exercise sovereign rights
to explore, exploit, conserve and manage the natural
resources
The state in the EEZ exercises jurisdiction with
regard to:
1. the establishment and use of artificial islands,
installations, and structures;
2. marine scientific research;
3. the protection and preservation of marine
environment;
Article II – DECLARATION OF PRINCIPLES AND
STATE POLICIES
Selected principles
Sec. 1.
The Philippines is a democratic and
republican state. Sovereignty resides in the people
and all government authority emanates from them.
Elements of a State (for municipal law purposes)
1) People – A group of persons sufficiently
numerous held together by a common bond
2) Territory – A definite area over which the
State exercises sovereign jurisdiction
3) Sovereignty – Power of the State to regulate
matters within its own territory.
4) Government – Institution organized and run
in order to manage the affairs of the State.
Classification of governments
1) De jure – Government which is placed in
power following legal / constitutional
processes.
2) De facto – a government that actually
exercises power or control but without legal
title.
Classification of de facto governments
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1) De facto proper
a. That government that gets possession and
control of
b. or usurps by force or by the voice of majority
c. the rightful legal government
d. and maintains itself against the will of the
latter.
2) Government of paramount force
a. That which is established and maintained by
military forces
b. who invade and occupy a territory of the enemy
c. in the course of war.
d. That established as an independent government
by the inhabitants of a country who rise in
insurrection against the parent state.
“REPUBLICAN STATE”
It is one wherein all government authority emanates
from the people and is exercised by representatives
chosen by the people.
“DEMOCRATIC STATE”
This merely emphasizes that the Philippines has
some aspects of direct democracy such as initiative
and referendum.
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.
The Philippines renounces AGGRESSIVE
war as an instrument of national policy, but
allows for a defensive war.
Examples of Generally Accepted Principles of
International Law" cited in Philippine
Jurisprudence:
1) 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 (Mejoff v. Director of Prisons, 90 Phil.
70)
2) The right of a country
toandestablish
military
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commissions to aretry
war
(Kuroda v.
Jalondoni, 83 Phil. 171)
3) The Vienna Convention on Road Signs and
Signals and Pacta Sunt Servanda (Agustin v.
Edu, 88 SCRA 195)
4) Duty to protect the premises of embassies and
legations (Reyes v. Bagatsing, G.R. 65366)
Pimentel, Jr. v Office of the Executive Secretary
(462 SCRA 622) (July 6, 2005)
Ratio:
1) Signing of the Treaty shows the assent of the
State to the treaty which it seeks to enter and has
the corresponding duty on the State to refrain
from actions which may defeat the purpose of the
treaty.
2) A State party is not bound to ratify a treaty which
it signs, however it goes without saying that the
refusal must be based on substantial grounds
and not on superficial or whimsical reasons.
3) The President has the discretion even after the
signing of the treaty by the Philippine
representative whether or not to ratify the same.
4) It is within the authority of the President to refuse
to submit a treaty to the Senate or, having
secured its consent for its ratification, refuse to
ratify it.
Southern Cross Cement Corporation v. Cement
Manufacturers Association of the Philippines (465
SCRA 532) (August 3, 2005)
Ratio:
Our treaty obligations dissuade the State for now
from implementing default protectionist trade
measures such as tariffs, and allow the same only
under specified conditions. To insulate factual
determination from political pressure, and to assure
that it be conducted by an entity especially qualified
by reasons of its general functions to undertake such
investigation, Congress deemed it necessary to
delegate to the Tariff Commission the function of
ascertaining whether or not those factual conditions
exist to warrant the atypical imposition of safeguard
measures
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.
st
Civilian authority/Supremacy clause (1
sentence)
The Constitution provides that the head of the armed
forces is a civilian president and the primary purpose
of AFP is to serve and protect the people.
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Mark of sovereignty (2nd and 3rd sentences)
Positively, the military is the guardian of the people
and of the integrity of the national territory and
therefore ultimately of the majesty of the law.
Negatively, it is an expression against military
abuses.
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.
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.
Principle that the family is not a creature of the
state.
Protection for the unborn
It is not an assertion that the unborn is a legal
person.
It is not an assertion that the life of the unborn is
placed exactly on the level of the life of the mother.
Hence, when it is necessary to save the life of the
mother, the life of the unborn may be sacrificed.
Under this provision, the Roe v. Wade doctrine
allowing abortion up to the 6th month of pregnancy
cannot be adopted in the Philippines because the life
of the unborn is protected from the time of
conception.
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.
Selected state 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.
Paramount considerations in its relations with
other states:
1) National sovereignty
2) Territorial integrity
3) National interest
4) Right to self-determination
Sec. 8. The Philippines, consistent with the national
interest, adopts and pursues a policy of freedom from
nuclear weapons in its territory.
Policy of freedom from nuclear weapons
1. The policy PROHIBITS:
a) The possession, control and manufacture of
nuclear weapons
b) Nuclear arms tests.
2. The policy does NOT prohibit
thea peaceful use of
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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 x x x
Oposa v. Factoran, 224 SCRA 792
The right to a balanced and healthful ecology
is not less important than any of the civil and political
rights enumerated in the Bill of Rights. ()
The right to a balanced and healthful ecology carries
with it an intergenerational responsibility to care for
and protect the environment.
Sec. 26. The State shall guarantee equal access to
opportunities for public service, and prohibit political
dynasties as may be defined by law.
Sec. 27. The State shall maintain honesty and
integrity in the public service and take positive and
effective measures against graft and corruption.
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
Sec. 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.
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“POLICE POWER”
Power vested in the legislature by the Constitution to
make, ordain, and establish all manner of wholesome
and reasonable laws, statutes, and ordinances either
with penalties or without not repugnant to the
constitution as they shall judge to be for the good and
welfare of the commonwealth and of the subjects of
the same.
Aspects of “Due Process”:
Procedural due process
– refers to the mode of procedure, which government
agencies must follow in the enforcement, and
application of laws.
-A law which hears before it condemns, proceeds
upon inquiry and renders judgment only after trial.
- Due process of law contemplates notice and
opportunity to be heard before judgment is rendered
affecting one’s person or property (Lopez v. Dir. of
Lands)
- Due process depends on circumstances; it varies
with the subject matter and the necessities of the
situation.
Requisites of PROCEDURAL due process:
For JUDICIAL proceedings:
CODE: I J H J
a. An impartial court or tribunal clothed with
judicial power to hear and determine the
matter before it.
b. Jurisdiction must be lawfully acquired over
the person of the defendant or over the
property, which is the subject of the
proceedings.
c. The defendant must be given notice and an
opportunity to be heard. (notice and hearing)
d. Judgment must be rendered upon a lawful
hearing.
For ADMINISTRATIVE proceedings:
CODE: H E D S H I P
which
includes the
a. The right to a hearing,
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evidence in support thereof.
b. The tribunal must consider the evidence
presented.
c. The decision must have something to
support itself.
d. Evidence supporting the conclusion must be
substantial.
e. The decision must be based on the evidence
presented at the hearing or at least contained
in the record and disclosed to the parties
affected.
f. The tribunal or body or any of its judges must
act on its or his own independent
consideration of the law and facts of the
controversy, and not simply accept the views
of a subordinate in arriving at a decision.
g. The board or body should, in all controversial
questions, render its decision in such a
manner that the parties to the proceeding
can know the various issues involved and the
reasons for the decision rendered.
NOTE:
What is required is not actual hearing, but a real
opportunity to be heard.
The requirement of due process can be satisfied by
subsequent due hearing.
Violation of due process: when same person reviews
his own decision on appeal.
Notice and hearing are required in judicial and quasijudicial proceedings, but not in the promulgation of
general rule.
For SCHOOL DISCIPLINARY proceedings:
CODE: W A In A D P
a. The student must be informed in writing of
the nature and cause of any accusation
against them.
b. The student shall have the right to answer
the charges against him, with the assistance
of counsel if desired.
c. The student has the right to be informed of
the evidence against him.
d. The student has the right to adduce evidence
in his own behalf.
e. The evidence must be duly considered by the
investigating committee or official designated
by the school authorities to hear and decide
the case.
f. The penalty imposed must be proportionate
to the offense.
NOTE:
The school has a contractual obligation to afford its
students a fair opportunity to complete the course a
student has enrolled for.
Exceptions:
a. Serious breach of discipline; or
b. Failure to maintain the required academic
standard.
Proceedings in student disciplinary cases may be
summary; cross-examination is not essential
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f.
Instances when hearings are NOT necessary:
a. When administrative agencies are exercising
their quasi-legislative functions.
b. Abatement of nuisance per se.
c. Granting by courts of provisional remedies.
d. Cases of preventive suspension.
e. Removal of temporary employees in the
government service.
f. Issuance of warrants of distraint and/or levy
by the BIR Commissioner.
g. Cancellation of the passport of a person
charged with a crime.
h. Issuance of sequestration orders (considered
a provisional remedy).
i. Judicial order which prevents an accused
from traveling abroad in order to maintain the
effectivity of the court’s jurisdiction.
j. Suspension of a bank’s operations by the
Monetary Board upon a prima facie finding of
liquidity problems in such bank.
NOTE:
The right to counsel is a very basic requirement of
substantive due process and has to be observed
even in administrative and quasi-judicial bodies.
The right to appeal is a statutory privilege that may
be exercised only in the manner in accordance with
law, except for the minimum appellate jurisdiction of
the Supreme Court provided in Article VIII Section 5
of the Constitution, which may not be increased or
reduced by law.
Substantive due process – prohibition against
arbitrary laws.
Requisites of SUBSTANTIVE due process:
CODE: I M
a. The INTERESTS of the public generally, as
distinguished from those of a particular class,
requires the interference by the government
and
b. The MEANS employed are reasonably
necessary for the accomplishment of the
purpose and not unduly oppressive upon
individuals.
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Requisites of a valid ordinance:
CODE: Must NOT CUPPU, Must be GC
a. Must not contravene the Constitution or any
statute
b. Must not be unfair or oppressive
c. Must not be partial or discriminatory
d. Must not prohibit, but may regulate trade
e. Must not be unreasonable
Must be general and consistent with public
policy
VOID FOR VAGUENESS DOCTRINE
When is a law VAGUE?
When it lacks COMPREHENSIBLE STANDARDS
That men of common intelligence must necessarily
GUESS as to its meaning and differ as to its
application.
Why is a VAGUE law unconstitutional?
1) It VIOLATES DUE PROCESS for failure to accord
persons fair notice of the conduct to avoid; and
2) It leaves law enforcers UNBRIDLED DISCRETION
in carrying out its provisions.
OVERBREADTH
DOCTRINE:
A
government
purpose may not be achieved by means, which
sweep unnecessarily broadly and thereby invade the
area of protected freedoms.
NOTE:
1. Vagueness and overbreadth are distinct from each
other; a vague law must lack clarity and precision,
while an overbroad law need not.
2. Vagueness may be applied to cases involving
speech and also criminal cases (although see
contrary ruling that vagueness does not apply to
criminal cases, as held in Estrada v. Sandiganbayan,
G.R. No. 148560)
3. Overbreadth as an analytical tool is applicable only
to cases involving speech.
EQUAL PROTECTION OF THE LAW
The equality that it guarantees is legal equality or the
equality of all persons before the law. It does not
demand absolute equality. It merely requires that all
persons shall be treated alike, under like
circumstances and conditions both as to privileges
conferred and liabilities enforced.
Requisites for valid classification for purposes of the
equal protection clause
The classification must: CODE: SGEE
a. Rest on SUBSTANTIAL DISTINCTIONS
b. Be GERMANE to the purposes of the law
c. NOT LIMITED TO EXISTING CONDITIONS
only
d. APPLY EQUALLY to all members of the
SAME CLASS.
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Millares v. Philippine Long Distance Telephone
Co. Inc. (458 SCRA 102) (May 6, 2005)
Ratio:
Procedural due process requires the
employer to give the employee two notices –
first is the notice apprising him of the
particular acts or omissions for which his
dismissal is sought, and, second is the
subsequent notice informing him of the
employer’s decision to dismiss him.
Lavador v. “J” Marketing Corporation (461 SCRA
497) (June 28, 2005)
Ratio:
Procedural due process requires the
employer to give the employee two notices –
first is the notice apprising him of the
particular acts or omissions for which his
dismissal is sought, and, second is the
subsequent notice informing him of the
employer’s decision to dismiss him.
Actual adversarial proceeding becomes
necessary only for clarification or when there
is a need to propound searching questions to
unclear witnesses, a procedural right which
the employee must ask for.
Where the dismissal of the employee from
service is due to dishonesty or for a just
cause but due process was not observed as
no hearing was conducted despite her
request, the employer should be held liable
for indemnity in the form of nominal
damages.
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
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personally by the judge
afterto see
examination
under oath
or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place
to be searched and the person or things to be seized.
General
Rule:
Search
and
seizures
are
unreasonable UNLESS authorized by a validly issued
search warrant or warrant of arrest
Requisites for a valid warrant:
CODE: P J E D One
a. It must be issued upon PROBABLE CAUSE.
b. The existence of probable cause is
determined personally by the JUDGE.
c. The judge must EXAMINE UNDER OATH
the complainant and the witnesses he may
produce.
d. The
warrant
must
PARTICULARLY
DESCRIBE the place to be searched and
person or things to be seized.
e. It must be in connection with One specific
offense.
“PROBABLE CAUSE”
For the issuance of a warrant of arrest:
Probable cause refers to 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.
For the issuance of a search warrant:
Probable cause 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 in the place to be
searched.
NOTE: Probable cause for the issuance of a search
warrant does NOT require that the probable guilt of a
specific offender be established, unlike in the case of
a warrant of arrest.
Existence of probable cause “DETERMINED
PERSONALLY BY THE JUDGE”
Soliven v. Makasiar, 167 SCRA 394
The judge is NOT required to personally
examine the complainant and his witnesses. What
the Constitution underscores is the exclusive and
personal responsibility of the issuing judge to satisfy
himself of the existence of probable cause.
Lim v. Felix, 187 SCRA 292
To be sure, the Judge must go beyond the
prosecutor’s certification and investigation report
whenever necessary.
Procedure:
The judge personally evaluates the report and
supporting documents submitted by the prosecutor
regarding the existence of probable cause and, on
the basis thereof, issue a warrant of arrest or if on the
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basis thereof, the judge finds no probable cause, he
may disregard the prosecutor’s report and require the
submission of supporting affidavits of witnesses to
aid him in arriving at the conclusion as to the
existence of probable cause.
Examination “UNDER OATH OR AFFIRMATION OF
THE COMPLAINANT AND WITNESSES”
Alvarez v. CFI, 64 Phil. 33
The oath required must refer to the truth of
the facts within the personal knowledge of the
complainant or his witnesses because the purpose is
to convince the judge of the existence of probable
cause.
The true test of sufficiency of an affidavit to
warrant the issuance of a search warrant is whether it
has been drawn in such a manner that perjury could
be charged thereon and affiant could be held liable
for the damages caused.
PARTICULARITY OF DESCRIPTION (SEARCH
WARRANT)
Bache and Co. v. Ruiz, 37 SCRA 823
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 or
When the description expresses a conclusion
of fact – not of law – by which the warrant officer may
be guided in making the search and seizure or
When the things described are limited to
those which bear a direct relation to the offense for
which the warrant is being issued.
JOHN DOE WARRANT
A “John Doe” warrant can satisfy the requirement of
particularity of description if it contains a descriptio
personae such as will enable the officer to identify the
accused (People v. Veloso, 48 Phil. 159)
GENERAL WARRANT
A general warrant is one that does not allege any
specific acts or omissions
constituting
the offense
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warrant. It contravenes the explicit demand of the Bill
of Rights that the things to be seized be particularly
described.
VALID WARRANTLESS SEARCH
(IM CWAPO)
Search made as an Incident to lawful arrest
A. An officer making an arrest may take from the
person arrested:
i. Any money or property found upon his person
which was used in the commission of the
offense or
ii. Was the fruit thereof or
iii. Which might furnish the prisoner with the
means of committing violence or escaping or
iv. Which may be used in evidence in the trial of
the case
B. The search must be made simultaneously with the
arrest and it may only be made in the area within the
immediate control of the person arrested
Search of Moving vehicles
A. This exception is based on exigency. Thus, if there
is time to obtain a warrant in order to search the
vehicle, a warrant must first be obtained.
B. The search of a moving vehicle must be based on
probable cause.
Seizure of goods concealed to avoid Customs
duties/authorized under the Tariffs and Customs
Code
A. The Tariffs and Customs Code authorizes persons
having police authority under the Code to effect
search and seizures without a search warrant to
enforce customs laws.
B. Exception: A search warrant is required for the
search of a dwelling house.
C. Searches under this exception include searches at
borders and ports of entry. Searches in these
areas do not require the existence of probable
cause
Seizure of evidence in Plain view
A. There was a prior valid intrusion;
B. The evidence was inadvertently discovered;
C. The evidence is immediately apparent;
D. Plain view is justified seizure without further
search. (People v. Valdez, 341 SCRA 25)
Waiver of right
A. Requisites of a valid waiver:
i. The right exists.
ii. The person had actual or constructive
knowledge of the existence of such right.
iii. There is an actual intention to relinquish such
right
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B. The right against unreasonable searches and
seizures is a personal right. Thus, only the person
being searched can waive the same.
C. Waiver requires a positive act from the person.
Mere absence of opposition is not a waiver.
D. The search made pursuant to the waiver must be
made within the scope of the waiver.
Armed Conflict (wartime)
Others
A. Conduct of "Areal Target Zone" and "Saturation
Drives" in the exercise of military powers of the
President (Guazon vs. De Villa, 181 SCRA 623)
B. Checkpoints (Valmonte vs. De Villa, 178 SCRA
211)
REQUISITES:
CODE: P.A.L.V.
1. Abnormal times
2. Limited to visual search
3. Vehicle not searched
4. Passengers not subjected to body search
Valmonte V. De Villa
As long as the vehicle is neither searched
nor its occupants subjected to a body search and the
inspection of the vehicle is limited to a visual search
= valid search.
C. Stop and Frisk
Even before an arrest, when an officer is justified in
believing that the individual whose suspicious
behavior he is investigating at close range is
presently dangerous, he may conduct a limited
protective search.
The purpose of this limited search is not to discover
evidence of a crime but to allow the officer to pursue
his investigation without risk of violence.
D. Exigent and emergency circumstances best
illustrated in People v. De Gracia (233 SCRA 716),
where a warrantless search was allowed where there
was a prevailing general chaos and disorder because
of an ongoing coup.
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Carroll rule: warrantless search of a vehicle that can
be quickly moved out of the locality or jurisdiction is
valid
an alien in order to carry out a FINAL deportation
order.
INSTANCES WHEN WARRANTLESS ARRESTS
ARE VALID:
a. When the person to be arrested has
committed, is actually committing, or is about
to commit an offense in the presence of the
arresting officer.
b. When an offense has in fact just been
committed and the arresting officer has
probable cause to believe based on personal
knowledge of facts and circumstances
indicating that the person to be arrested has
committed it.
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.
Waiver of an invalid arrest: When a person who is
detained applies for bail, he is deemed to have
waived any irregularity which may have occurred in
relation to his arrest. However, when a person who
is detained applies for bail, before he enters a plea,
he is not barred from later questioning the legality of
his arrest.
Hot pursuit
A. The pursuit of the offender by the arresting officer
must be continuous from the time of the
commission of the offense to the time of the
arrest.
B. There must be no supervening event which
breaks the continuity of the chase.
Stop and frisk
When a policeman observes suspicious activity,
which leads him to believe that a crime is about to be
committed, he can investigate the suspicious looking
person and may frisk him for weapons as a measure
of self-protection. Should he find, however, a weapon
on the suspect, which is unlicensed, he can arrest
such person then and there for having committed an
offense in the officer’s presence.
NOTE: Probable cause is the minimal requirement for
the validity of either a warrantless arrest or a
warrantless search.
The 1987 Constitution has returned to the 1935 rule
that warrants may be issued only by judges, but the
Commissioner of Immigration may order the arrest of
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United Laboratories, Inc. v. Isip (461 SCRA 574)
(June 28, 2005)
Ratio:
On search warrant proceedings
A search warrant proceeding is, in no sense,
a criminal proceeding or the commencement
of a prosecution – it is a special and peculiar
remedy, drastic in nature, and made
necessary because of public necessity,
resembling in some respect with what is
commonly known as John Doe proceedings
A search warrant is a legal process which
has been likened to a writ of discovery
employed by the State to procure relevant
evidence of crime – it is in the nature of a
criminal process, restricted to cases of public
prosecutions and not a process for
adjudicating civil rights or maintaining mere
private rights. A private individual or a private
corporation complaining to the NBI or to a
government agency charged with the
enforcement of special penal laws, such as
the BFAD, may appear, participate and file
pleadings in the search warrant proceedings
to maintain, inter alia, to validity of the search
warrant issued by the court and the
admissibility of the properties seized.
While the general rule is that the proper party
to file a petition in the Court of Appeals or
Supreme Court to assail any adverse order
of the RTC in search warrant proceedings is
the People, a private corporation may file the
petition for certiorari which may be
considered as the petition filed by the OSG.
On the plain view doctrine
The plain view doctrine is not an exception to
the warrant – it merely serves to supplement
the prior justification, whether it be a warrant
for another subject, hot pursuit, search as an
incident to a lawful arrest or some other
legitimate reason for being present,
unconnected with a search directed against
the accused.
The immediate requirement means that the
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discovery of are
the
object or the facts therein
available to him, determine probable cause
of the object’s incriminating evidence – to be
immediate, probable cause must be the
direct result of the officer’s instantaneous
sensory perception of the object.
The immediately apparent test does not
require an unduly high degree of certainty as
to the incriminating character of the evidence
– incriminating means the furnishing of
evidence as proof of circumstance tending to
prove the guilt of a person.
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 proceedings.
R.A. 4200 (Anti-Wiretapping Act)
Ramirez v. Ca
The law does not distinguish between a party
to the private communication or a third person.
Hence, both a party and a third person could be held
liable under R.A. 4200 if they commit any of the
prohibited acts under R.A. 4200.
Gaanan v. IAC, 145 SCRA 112
The use of a telephone extension to overhear
a private conversation is not a violation of R.A. 4200
because it is not similar to any of the prohibited
devices under the law. Also, a telephone extension
is not purposely installed for the purpose of secretly
intercepting or recording private communication.
Types of communication protected:
Letters, messages, telephone calls, telegrams and
the like.
Exclusionary rule:
People v. Marti, 193 SCRA 57
Any evidence obtained shall be inadmissible
for any purpose in any proceeding. However, in the
absence of governmental interference, the protection
against unreasonable search and seizure cannot be
extended to acts committed by private individuals.
Constitutional Right to Privacy
The right to privacy, the right to be left alone, is
protected by the guarantee of due process over
liberty, the right against unreasonable searches and
seizures, the right to privacy of communications,
liberty of abode, the right to form associations, and
the right against self incrimination. (Ople v. Torres,
293 SCRA 141)
Sec. 4. No law shall be passed abridging the
freedom of speech, of expression, or of the press, or
of the right of the people peaceably to assemble and
petition the government for redress of grievances.
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What are considered protected speech:
Protected speech includes every form of expression,
whether oral, written, tape or disc recorded.
It includes motion pictures as well as what is known
as symbolic speech such as the wearing of an
armband as a symbol of protest. Peaceful picketing
has also been included within the meaning of speech.
Prohibitions under Section 4
Prohibition against PRIOR RESTRAINT
Prohibition against SUBSEQUENT PUNISHMENT
punishing unlawful acts rather than prohibiting
speech.
The COMELEC can confiscate false survey
results by virtue of its power under the Administrative
Code of 1987 to stop false election propaganda.
Standards for allowable subsequent punishment
TEST
CRITERION
1. Dangerous Tendency
Test
There should be a
RATIONAL
CONNECTION
between the speech
and the evil
apprehended. (Focus
on CONTENT)
There should be a clear
and present danger that
the words when used
under such
circumstances are of
such a nature as to
create a CLEAR AND
PRESENT DANGER
that they will bring
about the substantive
evils that the State has
a right to prevent.
(Focus on CONTENT &
CONTEXT)
The courts should
BALANCE the PUBLIC
INTEREST served by
legislation on one hand
and the FREEDOM OF
SPEECH (or any other
constitutional right) on
the other. The courts
will then decide where
the greater weight
should be placed.
(Focus on weighing
Government and
Private interest)
Prohibition against prior restraint
Prior restraint means official governmental
restrictions on the press or other forms of expression
in advance of actual publication or dissemination.
Examples/forms of prior restraint
a. movie censorship
b. judicial prior restraint = injunction against
publication
c. license taxes based on gross receipts for the
privilege of engaging in the business of
advertising in any newspaper
d. flat license fees for the privilege of selling
religious books
When prohibition does not apply (Near v.
Minnesota, 238 US 697)
a. When the nation is at war. Ex: government
can
prevent
publication
about
the
number/location of its troops
b. Obscene publications
c. Security of community life may be protected
against incitements to acts of violence or
overthrow by force of orderly government.
When is a Government control-based regulation
justified?
a. It is within the constitutional power of the
government;
b. It furthers an important or substantial
government interest;
c. The governmental interest is unrelated to the
suppression of free expression; and
d. The incidental restriction is no greater than is
essential to the furtherance
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Social Weather Station v. COMELEC
The prohibition of publication of election
surveys shortly before elections does not meet the
last two tests. The causal connection of expression to
the asserted government interest makes such
interest related to the suppression of free expression.
The regulation can be more narrowly pursued by
2. Clear and Present
Danger Test
3. Balancing of Interests
Test
Freedom of Speech
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
Communication which no more than proposes a
commercial transaction.
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To enjoy protection:
1. It must not be false or misleading; and
2. It should not propose an illegal transaction.
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 and
Electric Corp. v. Public Service Commission of NY,
447 US 557)
Unprotected Speech
1. LIBEL
FAIR COMMENT (U.S. Rule). These are statements
of OPINION, not of fact, and are not considered
actionable, even if the words used are neither mild
nor temperate. What is important is that the opinion
is the true and honest opinion of the person. The
statements are not used to attack personalities but to
give one’s opinion on decisions and actions.
Borjal v. CA, 301 SCRA 1
Fair commentaries on matters of public
interest are privileged and constitute a valid defense
in an action for libel or slander. The doctrine of fair
comment means that while in general, every
discreditable imputation publicly made is deemed
false, because every man is presumed innocent until
his guilt is judicially proved, and every false
imputation is deemed malicious, nevertheless, when
the discreditable imputation is directed against a
public person in his public capacity, it is not
necessarily actionable; unless it be a false allegation
of fact or a comment based on a false supposition. If
the comment is an expression of opinion, based on
facts, then it is immaterial that the opinion happens to
be mistaken as long as it might reasonably be
inferred from the facts.
OPINIONS. With respect to public personalities
(politicians, actors, anyone with a connection to a
newsworthy event), opinions can be aired regarding
their public actuations. QuickTime™
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and a on their private
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protected.
2. OBSCENITY
Whether the work depicts or describes, in a patently
offensive way, sexual conduct, specifically defined by
law.
Whether the work, taken as a whole, lacks serious
literary, artistic, political or scientific value.
B. Procedure for seizure of allegedly obscene
publications
a) Authorities must apply for issuance of search
warrant.
b) Court must be convinced that the materials
are obscene.
Apply clear and present
danger test.
c) Judge will determine whether they are in fact
“obscene.”
d) Judge will issue a search warrant.
e) Proper action should be filed under Art. 201
of the RPC.
f) Conviction is subject to appeal.
Right of Assembly and Petition
1. The standards for allowable impairment of speech
and press also apply to the right of assembly and
petition.
2. Rules on assembly in PUBLIC places (Reyes v.
Bagatsing, G.R. No. L-65366):
Applicant should inform the licensing authority of the
date, the public place where and the time when the
assembly will take place.
The application should be filed ahead of time to
enable the public official concerned to appraise
whether there are valid objections to the grant of the
permit or to its grant, but in another public place. The
grant or refusal should be based on the application of
the Clear and Present Danger Test.
If the public authority is of the view that there is an
imminent and grave danger of a substantive evil, the
applicants must be heard on the matter.
The decision of the public authority, whether
favorable or adverse, must be transmitted to the
applicants at the earliest opportunity so that they
may, if they so desire, have recourse to the proper
judicial authority.
3. Rules on assembly in PRIVATE properties: Only
the consent of the owner of the property or person
entitled to possession thereof is required.
A. Test for obscenity (Miller v. California)
Whether the average person, applying contemporary
community standards would find that the work, taken
as a whole, appeals to the prurient interest.
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Right of the people peaceably to assemble
BAYAN versus EDUARDO ERMITA (G.R. No.
169838)/ Jess del prado versus ERMITA (G.R. No.
169848)/ KILUSANG MAYO UNO versus THE
HONORABLE EXECUTIVE SECRETARY (G.R. No.
169881) (April 25, 2006)*
Facts:
Petitioners in this case contest the validity of BP 880
(The Public Assembly Act of 1985) and the policy of
“Calibrated Preemptive Response” (CPR), which was
issued in lieu of the “Maximum Tolerance” policy
through a statement by Executive Secretary Ermita.
Petitioners are protesters who claim that they were
conducting a peaceful mass action when they were
violently dispersed by virtue of the “no permit, no
rally” policy and the recently issued CPR policy.
Issues:
1. On the constitutionality of Batas Pambansa No. 880,
specifically Sections 4, 5, 6, 12 13(a) and 14(a)
thereof, and Republic Act No. 7160:
a. Are these content-neutral or content-based
regulations?
b. Are they void on grounds of overbreadth or
vagueness?
c. Do they constitute prior restraint?
d. Are they undue delegations of powers to
Mayors?
e. Do they violate international human rights treaties
and the Universal Declaration of Human Rights?
2.
On the constitutionality and legality of the policy
of Calibrated Preemptive Response (CPR):
a. Is the policy void on its face or due to
vagueness?
b. Is it void for lack of publication?
c. Is the policy of CPR void as applied to the rallies
of September 26 and October 4, 5 and 6, 2005?
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Ratio:
The Court held that although people have the right to
peaceably assemble and stage mass actions (1987
Constitution, Art.3, Sec.4), such right is not absolute
(Primicias v. Fugoso and Reyes v. Bagatsing). B.P.
880 is a codification of the ruling in Reyes v.
Bagatsing, setting forth the requirements and
procedure which are necessary to regulate the time,
place and manner of public assemblies.
B.P. 880 was also held to be a content-neutral
legislation. A fair and impartial reading of B.P. No.
880 thus readily shows that it refers to all kinds of
public assemblies that would use public places. The
reference to “lawful cause” does not make it contentbased because assemblies really have to be for
lawful causes; otherwise they would not be
“peaceable” and entitled to protection. Neither are the
words “opinion,” “protesting” and “influencing” in the
definition of public assembly content based, since
they can refer to any subject. The words “petitioning
the government for redress of grievances” come from
the wording of the Constitution, so its use cannot be
avoided. Finally, maximum tolerance is for the
protection and benefit of all rallyists and is
independent of the content of the expressions in the
rally.
Furthermore, the permit can only be denied on the
ground of clear and present danger to public order,
public safety, public convenience, public morals or
public health. This is a recognized exception to the
exercise of the right even under the Universal
Declaration of Human Rights and the International
Covenant on Civil and Political Rights.
Considering that the existence of such freedom parks
is an essential part of the law’s system of regulation
of the people’s exercise of their right to peacefully
assemble and petition, the Court is constrained to
rule that after thirty (30) days from the finality of this
Decision, no prior permit may be required for the
exercise of such right in any public park or plaza of a
city or municipality until that city or municipality shall
have complied with Section 15 of the law. For without
such alternative forum, to deny the permit would in
effect be to deny the right. Advance notices should,
however, be given to the authorities to ensure proper
coordination and orderly proceeding.
On the matter of the CPR, the Solicitor General has
conceded that the use of the term should now be
discontinued, since it does not mean anything other
than the maximum tolerance policy set forth in B.P.
No. 880.
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Furthermore, there is need to address the situation
adverted to by petitioners where mayors do not act
on applications for a permit and when the police
demand a permit and the rallyists could not produce
one, the rally is immediately dispersed. In such a
situation, as a necessary consequence and part of
maximum tolerance, rallyists who can show the
police an application duly filed on a given date can,
after two days from said date, rally in accordance
with their application without the need to show a
permit, the grant of the permit being then presumed
under the law, and it will be the burden of the
authorities to show that there has been a denial of
the application, in which case the rally may be
peacefully dispersed following the procedure of
maximum tolerance prescribed by the law.
In this Decision, the Court goes even one step further
in safeguarding liberty by giving local governments a
deadline of 30 days within which to designate specific
freedom parks as provided under B.P. No. 880. If,
after that period, no such parks are so identified in
accordance with Section 15 of the law, all public
parks and plazas of the municipality or city concerned
shall in effect be deemed freedom parks; no prior
permit of whatever kind shall be required to hold an
assembly therein. The only requirement will be
written notices to the police and the mayor’s office to
allow proper coordination and orderly activities.
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.
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1. Non-establishmentare
clause
2. Free exercise of Religion
School District v. Schempp, 374 US 203
Distinction between the clauses
1. The non-establishment clause does not
depend upon any showing of direct governmental
compulsion. It is violated by the enactment of laws
which establish an official religion whether those laws
operate directly to coerce non-observing individuals
or not.
The test of compliance with the nonestablishment clause can be stated as follows: What
are the purposes and primary effect of the
enactment? If either is the advancement or inhibition
of religion, the law violates the non-establishment
clause. Thus, in order for a law to comply with the
non-establishment clause, two requisites must be
met:
A. It has a secular legislative purpose.
B. Its primary effect neither advances nor
inhibits religion.
2. The free exercise of religion clause
withdraws from legislative power the exertion of any
restraint on the free exercise of religion. In order to
show a violation of this clause, the person affected
must show the coercive effect of the legislation as it
operates against him in the practice of his religion.
While the freedom to believe (non-establishment) is
absolute, the moment such belief flows over into
action, it becomes subject to government regulation.
Requisites for government aid to be allowable:
a. It must have a secular legislative purpose;
b. It must have a primary effect that neither
advances nor inhibits religion;
c. It must not require excessive entanglement
with recipient institutions.
Re: Request of Muslim Employees in Different
Courts in Iligan City (Re: Office Hours)* (477
SCRA 648) (December 14, 2005)
Ratio:
To allow the Muslim employees in the
Judiciary to be excused form work from
10:00 a.m. to 2:00 p.m. every Friday (Muslim
Prayer Day) during the entire calendar year
would mean a diminution of the prescribed
government
working
hours
–
the
performance of religious practices, whether
by Muslim employees or those belonging to
other denominations, should not prejudice
the court and the public.
The remedy of the Muslim employees, with
respect to their request to be excused from
work from 10:00 a.m. to 2:00 p.m. every
Friday during the entire calendar year, is
legislative.
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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.
Rights guaranteed under Section 6:
1. Freedom to choose and change one’s place of
abode.
2. Freedom to travel within the country and outside.
Curtailment of rights:
RIGHT
1. Liberty of abode
2. Right to travel
MANNER OF
CURTAILMENT
Lawful order of the court and
within the limits prescribed by
law.
May be curtailed even by
administrative officers (ex.
passport officers) in the
interest of national security,
public safety, or public health,
as may be provided by law.
NOTE: The right to travel and the liberty of abode
are distinct from the right to return to one’s country,
as shown by the fact that the Declaration of Human
Rights and the Covenant on Human Rights have
separate guarantees for these. Hence, the right to
return to one’s country is not covered by the specific
right to travel and liberty of abode. (Marcos v.
Manglapus, 177 SCRA 668)
Sec. 7. The right of the people to information on
matters of public concern shall be recognized.
Rights guaranteed under Section 7
1. Right to information on matters of public concern
2. Right of access to official records and documents
Persons entitled to the above rights:
citizens.
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Discretion of government
The government has discretion with respect to the
authority to determine what matters are of public
concern and the authority to determine the manner of
access to them.
Recognized restrictions on the right of the people
to information:
1. National security matters
2. Intelligence information
3. Trade secrets
4. Banking transactions
5. Diplomatic correspondence
6. Executive sessions
7. Closed door cabinet meetings
8. Supreme Court deliberations
9.
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.
- The right to form associations shall not be impaired
without due process of law and is thus an aspect of
the right of liberty. It is also an aspect of the freedom
of contract. In addition, insofar as the associations
may have for their object the advancement of beliefs
and ideas, the freedom of association is an aspect of
the freedom of speech and expression, subject to the
same limitation.
-The right also covers the right not to join an
association.
-Government employees have the right to form
unions. They also have the right to strike, unless
there is a statutory ban on them (i.e. ban on public
school teachers).
Sec. 9. Private property shall not be taken for public
use without just compensation.
Who can exercise the power of eminent domain:
a. The national government
b. Congress
c. Executive, pursuant to legislation enacted by
Congress
d. Local government units, pursuant to an
ordinance enacted by their respective
legislative bodies (under LGC)
e. Public utilities, as may be delegated by law.
When is the exercise of the power of eminent domain
necessary?
It is only necessary when the owner does not want or
opposes the sale of his property. Thus, if a valid
contract exists between the government and the
owner, the government cannot exercise the power of
eminent domain as a substitute to the enforcement of
the contract.
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Elements of the power of eminent domain
CODE: TPJ
1. There is a TAKING of private property
2. Taking is for PUBLIC USE
3. Payment of JUST COMPENSATION
"TAKING"
A. Elements: CODE: E P A P O
a. The expropriator enters the property
b. The entrance must not be for a momentary
period, i.e., it must be permanent
c. Entry is made under warrant or color of legal
authority
d. Property is devoted to Public use
e. Utilization of the property must be in such a
way as to oust the owner and deprive him of
the beneficial enjoyment of his property.
B. Compensable taking does not need to involve all
the property interests which form part of the right of
ownership. When one or more of the property rights
are appropriated and applied to a public purpose,
there is already a compensable taking, even if bare
title still remains with the owner.
"PUBLIC USE"
Public use, for purposes of expropriation, is
synonymous with public welfare as the latter term is
used in the concept of police power.
Examples of public use include land reform and
socialized housing.
"JUST COMPENSATION"
Compensation is just if the owner receives a sum
equivalent to the market value of his property.
Market value is generally defined as the fair value of
the property as between one who desires to
purchase and one who desires to sell.
The point of reference used in determining fair value
is the value at the date of the taking of the property or
the filing of the complaint, whichever came first.
Thus, future potential use of the land is not
considered in computing just compensation.
Judicial review of the exercise of the power of
eminent domain
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compensation
b. To determine the necessity of the taking
c. To determine the "public use" character of
the taking. However, if the expropriation is
pursuant to a specific law passed by
Congress, the courts cannot question the
public use character of the taking.
When municipal property is taken by the State:
Compensation is required if the property is a
patrimonial property, that is, property acquired by the
municipality with its private funds in its corporate or
private capacity. However, if it is any other property
such as public buildings or legua comunal held by the
municipality for the State in trust for the inhabitants,
the State is free to dispose of it at will, without any
compensation.
Point of reference for valuating a piece of property:
General rule: The value must be that as of the time
of the filing of the complaint for expropriation.
Exception: When 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. BUT if the value
increased independently of what the expropriator did,
then the value is that of the latter filing of the case.
NOTE:
Even before compensation is given, entry may be
made upon the property condemned. The deposit of
money or an equivalent form of payment such as
government bonds is necessary and sufficient to
satisfy the requirement.
Any law fixing the amount of just compensation is not
binding on the courts because it is a question of fact
which is always subject to review by the courts.
REGULATION v. TAKING
REGULATION
Compensation is not
required
Title is not transferred
Property interest is
restricted or destroyed
An exercise of police
power, not for public use
TAKING
Just compensation
Title is transferred
Property taken for public
use
Commissioner of Internal Revenue v.
Central Luzon Drug Corporation
(456 SCRA 414) (April 15, 2005)
Ratio:
The tax benefit granted to the establishments
can be deemed as their just compensation
for private property taken by the State for
public use.
The taxation power can also be used as an
implement for the exercise of the power of
eminent domain.
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Jesus is Lord Christian School Foundation Inc. v.
Municipality (now City) of Pasig, Metro Manila*
(466 SCRA 235) (August 9, 2005)
Ratio:
The following requisites for the valid exercise
of the power of eminent domain by a local
government unit must be complied with: (1)
an ordinance is enacted by the local
legislative council authorizing the local chief
executive, in behalf of the local government
unit, to exercise the power of eminent
domain or pursue expropriation proceedings
over a particular private property; (2) the
power of eminent domain is exercised for
public use, purpose or welfare, or for the
benefit of the poor and the landless; (3) there
is payment of just compensation as required
under Section 9, Article 3 of the Constitution,
and other pertinent laws; (4) a valid and
definite offer has been previously made to
the owner of the property sought to be
expropriated, but said offer was not
accepted.
Sec. 10. No law impairing the obligation of contracts
shall be passed.
When does a law impair the obligation of
contracts:
1. If it changes the terms and conditions of a legal
contract either as to the time or mode of performance
2. If it imposes new conditions or dispenses with
those expressed
3 If it authorizes for its satisfaction something
different from that provided in its terms.
A mere change in PROCEDURAL REMEDIES which
does not change the substance of the contract, and
which still leaves an efficacious remedy for
enforcement does NOT impair the obligation of
contracts.
A valid exercise of police power
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obligation of contracts.
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.
Sec. 12. Rights of person under investigation for the
commission of an offense.
Rights of person under investigation for the
commission of an offense (Miranda Rights)
CODE: SCISI
1) Right to remain silent
2) Right to have competent and independent
counsel, preferably of his own choice
3) Right to be provided with the services of counsel
if he cannot afford the services of one.
4) Right to be informed of these rights.
When rights are available:
1) AFTER a person has been taken into custody or
2) When a person is otherwise deprived of his
freedom of action in any significant way
3) When a person is merely “invited” for questioning
(R.A. No. 7438)
4) When the investigation is being conducted by the
government (police, DOJ, NBI) with respect to a
criminal offense.
5) Signing of arrest reports and booking sheets.
When rights are not available:
1) During a police line-up.
Exception: Once there is a move among the
investigators to elicit admissions or
confessions from the suspect.
2) During administrative investigations.
3) Confessions made by an accused at the time he
voluntarily surrendered to the police or outside
the context of a formal investigation.
4) Statements made to a private person.
Exclusionary rule
Any confession or admission obtained in violation of
this section shall be inadmissible in evidence against
him (the accused).
Therefore, any evidence obtained by virtue of an
illegally obtained confession is also inadmissible,
being the fruit of a poisonous tree.
Requisites of valid waiver of these rights:
1) Made voluntarily, knowingly, and intelligently
2) Waiver should be made in WRITING
3) Waiver should be made in the PRESENCE OF
COUNSEL.
Requisites for a valid extra-judicial confession:
CODE: WAVES
1) voluntary
2) made with the assistance of competent and
independent counsel
3) must be express
4) made in writing
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5) signed, or if the confessant does not know how to
read and write, thumbmarked by him (P.v.
Olivares, G.R. No. 77865)
CUSTODIAL INVESTIGATION commences when a
person is taken into custody and singled out as a
suspect in the commission of a crime under
investigation.
Rights during custodial investigation apply only
against testimonial compulsion and not when the
body of the accused is proposed to be examined (i.e.
urine
sample;
photographs;
measurements;
garments; shoes).
Sec. 13. Right to bail
Who are entitled to bail:
All persons ACTUALLY DETAINED shall, BEFORE
CONVICTION be entitled to bail.
Who are not entitled to bail:
1) Persons charged with offenses PUNISHABLE by
RECLUSION PERPETUA or DEATH, when
evidence of guilt is strong
2) Persons CONVICTED by the trial court. Bail is
only discretionary pending appeal.
3) Persons who are members of the AFP facing a
court martial.
Other rights in relation to bail.
a. The right to bail shall NOT be impaired even
when the privilege of the writ of habeas
corpus is suspended.
b. Excessive bail shall not be required.
Waiver of the right to bail:
1) if appellant escapes from prison or confinement
2) if appellant jumps bail
3) if appellant flees to another country during the
pendency of the appeal
NOTE:
Persons charged with offenses punishable by LIFE
IMPRISONMENT, when evidence of guilt is strong,
are likewise not entitled to bail.
Right to bail is not available in the military.
Apart from bail, a person may attain provisional
liberty through recognizance, which is an obligation of
record entered into by a third person 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.
Sec. 14. Rights of an accused
1) Rights of a person charged with a criminal
offense
2) Right to due process of law
3) Right to be presumed innocent
4) Right to be heard by himself and counsel
5) Right to be informed of the nature and cause of
the accusation against him
6) Right to have a speedy, impartial and public trial
7) Right to meet the witnesses face to face
8) Right to have compulsory process to secure the
attendance of witnesses and the production of
evidence in his behalf
Factors considered in setting the amount of 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 at the trial
8) Forfeiture of previous bail bonds
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10) If accused is under bond in other cases
“DUE PROCESS”
This means that the accused can only be convicted
by a tribunal which is required to comply with the
stringent requirements of the rules of criminal
procedure.
Implicit limitations on the right to bail:
a. The person claiming the right must be in
actual detention or custody of the law.
b. The constitutional right is available only in
criminal cases, not, e.g. in deportation
proceedings.
Presumption of guilt should not be conclusive.
“PRESUMPTION OF INNOCENCE”
The Constitution does not prohibit the legislature from
providing that proof of certain facts leads to a prima
facie presumption of guilt, provided that the facts
proved have a reasonable connection to the ultimate
fact presumed.
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“RIGHT TO BE HEARD BY HIMSELF AND
COUNSEL”
6. Right to compulsory process to secure the
attendance of witnesses
The right to be heard includes the following rights:
“RIGHT TO BE INFORMED OF THE NATURE AND
CAUSE OF ACCUSATION AGAINST HIM”
Purposes of the right:
a. To furnish the accused with a description of
the charge against him as will enable him to
make his defenses
b. To avail himself of his conviction or acquittal
against a further prosecution for the same
cause
c. To inform the court of the facts alleged.
1) Right to be present at the trial
2) The right to be present covers the period from
ARRAIGNMENT to PROMULGATION of
sentence.
After arraignment, trial may proceed notwithstanding
absence of accused.
Note: Trial in absentia is allowed only if the accused
has been validly arraigned and the following 2
requisites are met:
i. Accused has been duly notified;
ii. His failure to appear is unjustifiable.
The accused may waive the right to be present at the
trial by not showing up. However, the court can still
compel the attendance of the accused if necessary
for identification purposes.
EXCEPTION: If the accused, after arraignment, has
stipulated that he is indeed the person charged with
the offense and named in the information, and that
any time a witness refers to a name by which he is
known, the witness is to be understood as referring to
him.
While the accused is entitled to be present during
promulgation of judgment, the absence of his counsel
during such promulgation does not affect its validity.
3. Right to counsel
Right to counsel means the right to EFFECTIVE
REPRESENTATION.
If the accused appears at arraignment without
counsel, the judge must:
a. Inform the accused that he has a right to a
counsel before arraignment
b. Ask the accused if he desires the aid of
counsel
c. If the accused desires counsel, but cannot
afford one, a counsel de oficio must be
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counsel, the court must give him reasonable
time to get one.
4. Right to an impartial judge
5. Right of confrontation and cross-examination
If the information fails to allege the material elements
of the offense, the accused cannot be convicted
thereof even if the prosecution is able to present
evidence during the trial with respect to such
elements.
The real nature of the crime charged is determined
from the recital of facts in the information. It is not
determined based on the caption or preamble thereof
nor from the specification of the provision of law
allegedly violated.
“RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC
TRIAL”
Factors used in determining whether the right to a
speedy trial has been violated:
a. Time expired from the filing of the information
b. Length of delay involved
c. Reasons for the delay
d. Assertion or non-assertion of the right by the
accused
e. Prejudice caused to the defendant.
Effect of dismissal based on the ground of violation of
the accused’s right to speedy trial
If the dismissal is valid, it amounts to an acquittal and
can be used as basis to claim double jeopardy. This
would be the effect even if the dismissal was made
with the consent of the accused.
Remedy of the accused if his right to speedy trial has
been violated
a. He can move for the dismissal of the case.
b. If he is detained, he can file a petition for the
issuance of writ of habeas corpus.
Definition of impartial trial
The accused is entitled to the “cold neutrality of an
impartial judge.”
It is an element of due process.
Definition of public trial
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The attendance at the trial is open to all irrespective
of their relationship to the accused. However, if the
evidence to be adduced is “offensive to decency or
public morals,” the public may be excluded.
The right of the accused to a public trial is not
violated if the hearings are conducted on Saturdays,
either with the consent of the accused or if failed to
object thereto.
Distinction between Section 14 and Section 16.
While the rights of an accused only apply to the trial
phase of criminal cases, the right to a speedy
disposition of cases covers ALL phases of JUDICIAL,
QUASI-JUDICIAL or ADMINISTRATIVE proceedings.
Sec. 17. No person shall be compelled to be a
witness against himself.
“RIGHT TO MEET WITNESS FACE TO FACE”
Purposes of the right:
a. To afford the accused an opportunity to
cross-examine the witness
b. To allow the judge the opportunity to observe
the deportment of the witness
When is a question incriminating:
A question tends to incriminate when the answer of
the accused or the witness would establish a fact
which would be a necessary link in a chain of
evidence to prove the commission of a crime by the
accused or the witness.
Failure of the accused to cross-examine a witness:
If the failure of the accused to cross-examine a
witness is due to his own fault or was not due to the
fault of the prosecution, the testimony of the witness
should be excluded.
Distinction between an accused and an ordinary
witness
An accused can refuse to take the witness stand
altogether by invoking the right against selfincrimination.
When the right to cross-examine is demandable?
An ordinary witness cannot refuse to take the stand.
He can only refuse to answer specific questions
which would incriminate him in the commission of an
offense.
It is demandable only during trials. Thus, it cannot be
availed of during preliminary investigations.
Principal EXCEPTIONS to the right of
confrontation
1. The admissibility of “dying declarations”
2. Trial in absentia under Section 14(2)
3. With respect to child testimony
Estrada v. People* (468 SCRA 233) (August 25,
2005)
Ratio:
Promulgation of judgment in absentia is valid
provided that the essential elements are
present: (a) that the judgment be recorded in
the criminal docket, and, (b) that a copy be
served upon the accused or counsel.
Recording the decision in the criminal docket
of the court satisfies the requirement of
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Sec. 16. All persons shall have the right to a speedy
disposition of their cases before all judicial, quasijudicial, or administrative bodies.
Scope of right
What is PROHIBITED is the use of physical or moral
compulsion to extort communication from the witness
or to otherwise elicit evidence which would not exist
were it not for the actions compelled from the
witness.
The right does NOT PROHIBIT the examination of
the body of the accused or the use of findings with
respect to his body as physical evidence. Hence, the
fingerprinting of an accused would not violate the
right against self-incrimination. However, obtaining a
sample of the handwriting of the accused would
violate this right if he is charged for falsification.
The accused cannot be compelled to produce a
private document in his possession which might tend
to incriminate him. However, a third person in
custody of the document may be compelled to
produce it.
When the right can be invoked:
1. In criminal cases
2. In all other government proceedings,
including civil actions and administrative or
legislative investigations.
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Who can invoke the right:
a. Only natural persons. Judicial persons are
subject to the visitorial powers of the state in
order to determine compliance with the
conditions of the charter granted to them.
Crisostomo v. Sandiganbayan (456 SCRA 45)
(April 14, 2005)
3. It must not be unacceptable to contemporary
society
4. It must not be excessive, i.e. it must serve a
penal purpose more effectively than a less
severe punishment would.
5. Excessive fine
6. A fine is excessive, when under any
circumstance, it is disproportionate to the
offense.
Ratio:
The deafening silence of all the accused
does not necessarily point to conspiracy. An
accused has the right to remain silent and to
be exempt from being compelled to be a
witness against himself.
Sec. 18. Right against involuntary servitude
“INVOLUNTARY SERVITUDE”
It is every condition of enforced or compulsory
service of one to another no matter under what form
such servitude may be disguised.
Exceptions:
1. Punishment for a crime for which the party
has been duly convicted
2. Personal military or civil service in the
interest of national defense
3. In naval enlistment: a person who enlists in a
merchant ship may be compelled to remain
in service until the end of the voyage
4. Posse comitatus for the apprehension of
criminals
5. Return to work order issued by the DOLE
Secretary or the President
6. Minors under patria potestas are obliged to
obey their parents.
Sec. 19. Prohibition against cruel, degrading and
inhuman punishment
When is a penalty “cruel, degrading and
inhuman”?
A penalty is cruel and inhuman
if itandinvolves
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Being
A penalty is degrading if it exposes a person to public
humiliation. (Ex. Being tarred and feathered, then
paraded throughout town.)
Standards used:
1. The punishment must not be so severe as to
be degrading to the dignity of human beings.
2. It must not be applied arbitrarily.
NOTE: Fr. Bernas says that the accused cannot be
convicted of the crime to which the punishment is
attached if the court finds that the punishment is
cruel, degrading or inhuman. The reason for this is
without a valid penalty, the law is not a penal law.
Sec. 20. No person shall be imprisoned for debt or
non-payment of a poll tax.
Definition of “DEBT” under Section 20.
Debt refers to a CONTRACTUAL obligation, whether
express or implied, resulting in any liability to pay
money. Thus, all other types of obligations are not
within the scope of this prohibition.
Thus, if an accused fails to pay the fine imposed
upon him, this may result in his subsidiary
imprisonment because his liability is ex delicto and
not ex contractu.
A FRAUDULENT debt may result in the
imprisonment of the debtor if:
1. The fraudulent debt constitutes a crime such
as estafa; and
2. The accused has been duly convicted.
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.
What are the TWO KINDS OF JEOPARDY?
a. First Sentence of Sec. 21: No person
shall be twice put in jeopardy of
punishment for the same offense.
b. Second Sentence: When 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.
Under the first kind of jeopardy, conviction, acquittal,
or dismissal of the case without the express consent
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of the accused will bar a subsequent prosecution.
Under the second kind of jeopardy, only conviction or
acquittal – not dismissal without the express consent
of the accused – will bar a subsequent prosecution.
Requisites for a valid defense of double jeopardy:
CODE: ATS
1. 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, one that includes or is necessarily
included in the first offense, or is an attempt
or frustration of the first, or is an element
thereof.
st
When can the PROSECUTION appeal from an
order of dismissal:
1. If dismissal is on motion of the accused.
Exception: If motion is based on
violation of the right to a speedy trial or
on a demurrer to evidence.
2. If dismissal does NOT amount to an acquittal
or dismissal on the merits.
3. If the question to be passed upon is purely
legal.
4. If the dismissal violates the right of due
process of the prosecution.
5. If the dismissal was made with grave abuse
of discretion.
When does jeopardy ATTACH: (1 requisite)
CODE: CICAV
1. A person is charged
2. Under a complaint or information sufficient in
form and substance to sustain a conviction
3. Before a court of competent jurisdiction
4. After the person is arraigned
5. Such person enters a valid plea.
What are considered to be the “SAME OFFENSE”:
st
(under the 1 sentence of Sec. 21)
1. Exact identity between the offenses charged
in the first and second cases.
2. One offense is an attempt to commit or a
frustration of the other offense.
3. One offense is necessarily included or
necessary includes the other.
When does jeopardy NOT attach:
1. If information does not charge any offense
2. If, upon pleading guilty, the accused presents
evidence of complete self-defense, and the
court thereafter acquits him without entering
a new plea of not guilty for accused. There is
no valid plea here.
3. If the information for an offense cognizable
by the RTC is filed with the MTC.
4. If a complaint filed for preliminary
investigation is dismissed.
NOTE: Where a single act results in the violation of
different laws or different provisions of the same law,
the prosecution for one will not bar the other so long
as none of the exceptions apply.
ND
When does first jeopardy TERMINATE: (2
REQUISITE)
1. Acquittal
2. Conviction
3. Dismissal W/O the EXPRESS consent of the
accused
4. Dismissal on the merits.
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speedy trial. This amounts to an acquittal.
2. Dismissal based on a demurrer to evidence.
This is a dismissal on the merits.
3. Dismissal on motion of the prosecution,
subsequent to a motion for reinvestigation
filed by the accused.
4. Discharge of an accused to be a state
witness. This amounts to an acquittal.
nd
Definition of double jeopardy (2 sentence of
Sec. 21)
Double jeopardy will result if the act punishable under
the law and the ordinance are the same. For there to
be double jeopardy, it is not necessary that the
offense be the same.
SUPERVENING FACTS
Under the Rules of Court, a conviction for an offense
will not bar a prosecution for an offense which
necessarily includes the offense charged in the
former information where:
a. The graver offense developed due to a
supervening fact arising from the same act or
omission constituting the former charge.
b. The facts constituting the graver offense became
known or were discovered only after the filing of
the former information.
c. The plea of guilty to the lesser offense was made
without the consent of the prosecutor and the
offended party.
d. Under (1)(b), if the facts could have been
discovered by the prosecution but were not
discovered because of the prosecution’s
incompetence, it would not be considered a
supervening event.
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Effect of appeal by the accused:
If the accused appeals his conviction, he WAIVES his
right to plead double jeopardy. The whole case will
be open to review by the appellate court. Such court
may even increase the penalties imposed on the
accused by the trial court.
Sec. 22. No ex post facto law or bill of attainder shall
be enacted.
“EX-POST FACTO LAW”
One which makes an action done before the
passing of the law, and which was innocent when
done, criminal, and punishes such action.
One which aggravates the crime or makes it
greater than when it was committed.
One which changes the punishment and inflicts a
greater punishment than that which the law
annexed to the crime when it was committed.
One which alters the legal rules of evidence and
receives less testimony than the law required at
the time of the commission of the offense in order
to convict the accused.
One which assumes to regulate civil rights and
remedies only BUT, in effect, imposes a penalty
or deprivation of a right, which, when done, was
lawful.
One which 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.
NOTE: The prohibition on ex post facto laws only
applies to retrospective PENAL laws.
Characteristics of an Ex Post Facto Law
1. Refers to criminal matters
2. Retrospective
3. Causes prejudice to the accused
“BILL OF ATTAINDER”
A bill of attainder is a LEGISLATIVE act which inflicts
punishment W/O JUDICIAL trial.
The bill of attainder does not
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ascertainable members of a group in such a way as
to inflict punishment on them without judicial trial.
Elements of the bill of attainder:
1. There must be a LAW.
2. The law imposes a PENAL burden, on;
3. a NAMED INDIVIDUAL or EASILY
ASCERTAINABLE MEMBERS of a GROUP.
4. The penal burden is imposed DIRECTLY by
the LAW W/O JUDICIAL trial.
ARTICLE IV – CITIZENSHIP
Who are citizens of the Philippines?
1. Those who are citizens of the Philippines at
the time of the adoption of the 1987
Constitution
2. Those whose fathers or mothers are citizens
of the Philippines.
3. Those born before January 17, 1973 of
Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority.
4. Those who are naturalized in accordance
with law.
Modes of acquiring citizenship:
1. Jus Soli – acquisition of citizenship on the
basis of place of birth
2. Jus Sanguinis – acquisition of citizenship on
the basis of blood relationship
3. Naturalization – the legal act of adopting an
alien and clothing him with the privilege of a
native-born citizen.
NOTE: The Philippines follows (2) and (3)
Election of citizenship under the 1987
Constitution:
Prior to the 1973 Constitution, if a Filipina married an
alien, she lost her Filipino citizenship. Hence, her
child would have to elect Filipino citizenship upon
reaching the age of majority.
Under the 1973 Constitution, however, children born
of Filipino mothers were already considered Filipinos.
Therefore, the provision on election of citizenship
under the 1987 Constitution only applies to those
persons who were born under the 1935 Constitution.
In order for the children to elect Filipino citizenship,
the mothers must have been Filipinos at the time of
their marriage. So, if your mother was a Filipina who
married an alien under the 1935 constitution and you
were born before January 17, 1973, you can elect
Filipino citizenship upon reaching the age of majority.
When must election be made:
The election must be made within a reasonable
period after reaching the age of majority.
Effects of naturalization:
1. The legitimate minor children of the
naturalized father become Filipinos as well.
2. The wife also becomes a Filipino citizen,
provided that she does not have any
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disqualification which would bar her from
being naturalized.
Natural-born citizens:
1. Citizens of the Philippines from birth who do
not need to perform any act to acquire or
perfect their Philippine citizenship.
2. Those who elect Philippine citizenship under
Art. IV, Sec. 1(3) of 1987 Constitution.
Marriage of Filipino with an alien:
General Rule: The Filipino RETAINS Philippine
citizenship
Exception: If, by their act or omission they are
deemed, under the law, to have renounced it.
How may one lose citizenship (C.A. No. 63):
1. By naturalization in a foreign country
2. By express renunciation of citizenship
3. By subscribing to an oath of allegiance to the
laws or constitution of a foreign country
4. By serving in the armed forces of an enemy
country
5. By cancellation of certificates of
naturalization
6. By being a deserter of the armed forces of
one’s country
How may one reacquire citizenship:
1. By direct act of Congress
2. By naturalization
3. By repatriation
Re-acquisition of citizenship
Natural-born Filipinos who are deemed to
have lost their citizenship may re-acquire the
same via repatriation proceedings. This
involves taking an oath of allegiance and
filing the same with the civil registry.
RA 9225- Citizen Retention and Reacquisition Act
Natural born citizens, who lost their
citizenship by reason of their naturalization
as citizens of a foreign country, are deemed
to have reacquired their Philippine citizenship
upon taking the oath of allegiance to the
Republic.
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below 18 yrs. Old of those who re-acquired
the citizenship shall likewise be deemed as
citizens of the Philippines.
Distinguish dual citizenship from dual allegiance
Mercado v. Manzano
Dual citizenship arises when, as a result of
the concurrent application of the laws of two or more
states, a person is simultaneously considered a
citizen of those states. Dual allegiance refers to the
situation in which a person simultaneously owes, by
some positive act, loyalty to two or more states. Dual
nationality is involuntary and legal, while dual
allegiance is voluntary and illegal.
ARTICLE V – SUFFRAGE
Qualifications:
CODE: CD18RR
1. Citizen of the Philippines
2. Not Disqualified by law
3. At least 18 years old
4. Resident of the Philippines for at least 1 year
5. Resident of the place wherein he/she
proposes to vote for at least 6 months
immediately preceding the election.
NOTE: NO literacy, property or other substantive
requirement can be imposed on the exercise of
suffrage.
Residency requirement
Residency, under Article V has 2 senses:
1. DOMICILE – This is in reference to the 1 year
residency requirement in the Philippines. The
principal elements of domicile – physical presence in
the country and intention to adopt it as one’s domicile
– must concur.
2. TEMPORARY RESIDENCE – This is in reference
to the 6 month residency requirement in the place
where one wants to vote. In this case, residence can
either mean domicile or temporary residence.
Disqualifications:
1. Any person sentenced by final judgment to
imprisonment of not less than 1 year, which
disability has not been removed by plenary
pardon, provided, however, That such a
person shall automatically reacquire the right
2. to vote upon expiration of 5 years after
service of sentence.
3. Any person adjudged by final judgment of
having violated his allegiance to the Republic
of the Philippines.
4. Insane or incompetent persons as declared
by competent authority.
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To whom does Absentee Voting apply:
1. Persons who have the qualifications of a
voter but who happen to be temporarily
abroad
2. Qualified voters who are in the Philippines
but are temporarily absent from their voting
places
ARTICLE VI – THE LEGISLATIVE DEPARTMENT
Sec. 1. The legislative power shall be vested in the
Congress of the Philippines, which shall consist of a
Senate and a House of Representatives, except to
the extent reserved to the people by the provision on
initiative and referendum.
Classification of legislative power: (O De CO)
1. Original – Possessed by the people in their
sovereign capacity which is exercised via
initiative and referendum.
2. Delegated – Possessed by Congress and other
legislative bodies by virtue of the Constitution
3. Constituent – The power to amend or revise
the Constitution
4. Ordinary – The power to pass ordinary laws
Limits on the legislative power of Congress:
1. Substantive – limitations on the content of
laws.
e.g. no law shall be passed establishing a
state religion.
2. Procedural – limitations on the manner of
passing laws.
e.g. generally a bill must go through three
readings on three separate days.
3. Congress cannot pass irrepealable laws.
4. Congress, as a general rule, cannot delegate
its legislative power, under the maxim delegata
potestas non potest delegari (delegated power
may not be delegated).
Exceptions to non-delegability of legislative
power: (PETAL)
1. Delegation to the people through initiative and
referendum
2. Emergency powers delegated by Congress to
the President
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President
4. Delegation to administrative bodies
5. Delegation to local governments
What may Congress delegate:
Congress can only delegate, usually to administrative
agencies, RULE-MAKING POWER or LAW
EXECUTION. This involves either of two tasks for
the administrative agencies:
1. “Filling up the details” on an otherwise
complete statute; or
2. Ascertaining the facts necessary to bring a
“contingent” law or provision into actual
operation.
Sections 2-4. SENATE
Sections 5-7. HOUSE OF REPRESENTATIVES
Senator
24 senators
Representative
Not more than 250
members
35 yrs. old
25 yrs. old
Natural- born citizen of the Philippines
Able to read and write
Registered voter
Registered voter in the
district in which he
shall be elected – n/a
to party-list
Resident of the
Resident of the said
Philippines for at least
district for at least 1
2 years immediately
year immediately
preceding the election
preceding election –
n/a to party-list
Term of 6 yrs.
Term of 3 yrs.
Unless otherwise provided by law, term of office
commence at noon of June 30 next following the
lection
Term limit of not more
Term limit of not more
than 2 consecutive
than 3 consecutive
years
years
NOTE: The qualifications of both Senators and
Members of the House are limited to those provided
by the Constitution. Congress cannot, by law, add or
subtract from these qualifications.
Voluntary renunciation
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.
District Representatives:
1. Elected from legislative districts which are
apportioned in accordance with the number of
inhabitants of each area and on the basis of a
uniform and progressive ratio.
2. Each district shall comprise, as far as
practicable, contiguous, compact and adjacent
territory;
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3. Each city with at least 250,000 inhabitants will
be entitled to at least one representative while
each province will have at least one
representative.
4. Legislative districts shall be re-apportioned by
Congress within 3 years after the return of
each census.
5. The standards used to determine the
apportionment of legislative districts is meant to
prevent ‘gerrymandering’, which is the
formation of a legislative district out of separate
territories so as to favor a particular candidate
or party.
Distinctions between Term and Tenure
Term
The period during
which
the
elected
officer
is
legally
authorized to assume
his office and exercise
the powers thereof
CANNOT be reduced
Tenure
The period during
which such officer
actually
holds
his
position
MAY, by
limited
law,
be
Party-List Representatives
Constitute 20% of the total number of representatives
or a maximum of 50 party-list members.
However, for 3 consecutive terms from February 2,
1987 (i.e., the 1987-92, 92-95 and 95-98 terms), 25
seats shall be allotted to sectoral representatives.
Under Art. XVIII, Sec. 7, the sectoral representatives
are to be appointed by the President until legislation
otherwise provides.
Mechanics of the party-list system
1. Registered organizations submit a list of
candidates in order of priority.
2. During the elections, these organizations are
voted for at large.
3. Those parties getting at least 2% of the total
votes cast for the party-list system shall be
entitled to one seat each. Those obtaining
more than 2% shall be given additional seats in
proportion to their total number of votes, but
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each.
Qualifications of Party-List Representative
1. Natural born citizen of the Philippines
2. At least 25 years of age on the day of the
election (Youth sector nominee must be at
least 25 years but not more than 30 years old
on day of election)
3. Able to read and write
4. Must be a bona fide member of the party he
seeks to represent at least ninety days before
election day.
Guidelines for the election of party-list
representatives:
The parties or organizations must represent the
marginalized and underrepresented in section 5 of
R.A. 7941 (Party-List Law);
Political parties who wish to participate must comply
with this requirement;
1. The religious sector may not be represented;
2. The party or organization must not be
disqualified under Section 6 of R.A. 7941 i.e.
religious sector/ organization, advocates of
violence or unlawful means to seek its goal,
foreign party or organization;
3. The party or organization must not be an
adjunct of or a project organized or a entity
funded or assisted by the government;
4. Its nominees must likewise comply with the
requirement of the law;
5. Its nominees must likewise be able to
contribute to the formation and enactment of
legislation that will benefit the nation. (Ang
Bagong
Bayani-OFW
Labor
Party
v.
COMELEC, GR No. 147589)
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.
Special Election (R.A. 6645)
1. No special election will be called if vacancy
occurs:
a. at least eighteen (18) months before
the next regular election
for
the
members of the Senate;
b. at least one (1) year before the next
regular election members
of
Congress
2. The particular House of Congress where
vacancy occurs must pass either a resolution if
Congress is in session or the Senate President
or the Speaker must sign a certification, if
Congress is not in session,
a. declaring the existence of vacancy;
b. calling for a special election to be held
within 45 to 90
days from the date
of the resolution or certification.
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3. The Senator or representative elected shall
serve only for the unexpired term.
Sec. 10. Salaries of Senators and Members of the
House
Determination of Salaries:
Their salaries shall be determined by law.
Rule on increase in salaries:
No increase in their salaries shall take effect until
AFTER the EXPIRATION OF THE FULL TERM
(NOT TENURE) of all the members of the Senate
and the House of Representatives approving such
increase.
NOTE: Since the Constitution ‘provides for rules on
“salaries” and not on ‘emoluments,’ they can
appropriate for themselves other sums of money
such as travel allowances, as well as other side
‘benefits.’
Sec. 11: CONGRESSIONAL IMMUNITIES
A. Immunity from arrest:
Legislators are privileged from arrest, and not to
prosecution for criminal offenses, while Congress is
“in session” only (whether regular or special) with
respect to offenses punishable by up to 6 years of
imprisonment.
B. Legislative privilege:
No member shall be questioned or held liable in any
forum other than his/her respective Congressional
body for any debate or speech in the Congress or in
any Committee thereof.
Limitation on the privilege:
1. Protection is only against prosecution in any
forum other than Congress itself. Hence, the
Senate or the House, as the case may be, may
discipline their members.
2. The ‘speech or debate’ must be made in
performance of their duties as members of
Congress.
3. Congress need NOT be in session when the
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see this picture.
and communicative process used to participate
in legislative proceedings in consideration of
proposed legislation or with respect to other
matters with Congress’ jurisdiction.
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.
Sections
13-14:
DISQUALIFICATIONS:
Disqualifications:
DISQUALIFICATION
1) Cannot hold any other
office or employment in
the Government or any
subdivision, agency or
instrumentality
thereof,
including GOCCS or their
subsidiaries.
2) Legislators cannot be
appointed to any office.
3) Legislators cannot
personally appear as
counsel before any court
of
justice,
electoral
tribunal, quasi-judicial and
administrative bodies.
4) Legislators cannot be
financially
interested
directly or indirectly in any
contract with or in any
franchise,
or
special
privilege granted by the
Government,
or
any
subdivision, agency or
instrumentality
thereof,
including any GOCC or its
subsidiary.
5) Legislators cannot
intervene in any matter
before any office of the
government.
CONGRESSIONAL
WHEN
APPLICABLE
During his term. If
he does so, he
forfeits his seat.
IF the office was
created
or
the
emoluments
thereof increased
during the term for
which
he
was
elected.
During his term of
office.
During his term of
office.
When it is for his
pecuniary benefit or
where he may be
called upon to act
on account of his
office.
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Sec. 15: REGULAR AND SPECIAL SESSIONS
Regular Sessions:
Congress convenes once every year on the 4th
Monday of July (unless otherwise provided for by
law).
Continues in session for as long as it sees fit, until 30
days before the opening of the next regular session,
excluding Saturdays, Sundays, and legal holidays.
Special Sessions:
Called by the President at any time when Congress is
not in session.
An enrolled bill is the official copy of approved
legislation and bears the certifications of the
presiding officers of each House. Thus where the
certifications are valid and are not withdrawn, the
contents of the enrolled bill are conclusive upon the
courts as regards the provision of that particular bill.
Adjournments:
1. Neither House can adjourn for more than 3
days during the time Congress is in session
without the consent of the other House.
2. Neither can they adjourn to any other place
than that where the two houses are sitting,
without the consent of the other.
Sec. 17: THE ELECTORAL TRIBUNAL
Sec. 16. Officers:
1) Senate President;
2) Speaker of the House; and
3) Such other officers as
necessary.
it
may
deem
Election of Officers
By a majority vote of all respective members.
Quorum to do business:
1. Majority of each House shall constitute a
quorum.
2. A smaller number may adjourn from day to
day and may compel the attendance of
absent members.
3. In computing a quorum, members who are
outside the country and thus outside of each
House’s coercive jurisdiction are not
included.
Internal Rules:
As part of their inherent power, they can determine
their own rules. Hence, the courts cannot intervene in
the implementation of these rules insofar as they
affect the members of Congress.
The Senate and the House shall each have an
Electoral Tribunal which shall be composed of:
1. 3 Supreme Court Justices to be designated
by the Chief Justice; &
2. 6 Members of the Senate or House, as the
case may be.
The senior Justice in the Electoral Tribunal shall be
its Chairman.
NOTE: The congressional members of the ET’s shall
be chosen on the basis of proportional representation
from the political parties and party-list organizations.
Jurisdiction:
Each Electoral tribunal shall be the sole judge of all
CONTESTS relating to the election, returns, and
qualifications of their respective members. This
includes determining the validity or invalidity of a
proclamation declaring a particular candidate as the
winner.
An ‘election contest’ is one where a defeated
candidate challenges the qualification and claims for
himself the seat of a proclaimed winner.
Discipline:
1. Suspension – needs concurrence of 2/3 of
ALL its members and shall not exceed 60
days. Or,
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members.
In the absence of an election contest, the Electoral
Tribunal is without jurisdiction. However, the power
of each House to expel its own members or even to
defer their oath-taking until their qualifications are
determined may still be exercised even without an
election contest.
Congressional Journals and Records:
General rule, the Journal is conclusive upon the
courts but an enrolled bill prevails over the contents
of the Journal.
Issues regarding the Electoral Tribunals:
Since the Electoral Tribunals are independent
constitutional bodies,
1. Neither Congress nor the Courts may
interfere with procedural matters relating to
the functions of the Electoral Tribunals.
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2. The Electoral Tribunals being independent
bodies, its members may not be arbitrarily
removed from their positions in the tribunal
by the parties which they represent. Neither
may they be removed for not voting
according to party lines, since they are acting
independently of Congress.
3. The mere fact that the members of either the
Senate or the House sitting on the Electoral
Tribunal are those which are sought to be
disqualified due to the filing of an election
contest against them does not warrant all of
them from being disqualified from sitting in
the Electoral Tribunal.
4. Judicial review of decisions of the Electoral
Tribunals may be had with the SC only
insofar as the decision or resolution was
rendered without or in excess of jurisdiction
or with grave abuse of discretion constituting
denial of due process.
Sec. 18: THE COMMISSION ON APPOINTMENTS
Composition:
1. Senate President as ex-officio chairman;
2. 12 Senators; and
3. 12 Members of the House.
Limitations
1. Congress CANNOT by law prescribe that the
appointment of a person to an office created
by such law shall be subject to confirmation
by the CA.
2. Appointments extended by the President to
the
above-mentioned
positions
while
Congress is not in session shall only be
effective until disapproval by the CA or until
the next adjournment of Congress.
Meetings of the CA
Commission on Appointments meets only
while Congress is in session.
Meetings are held either at the call of the
Chairman or a majority of all its members.
Since the Commission on Appointments is
also an independent constitutional body, its
rules of procedure are also outside the scope
of congressional powers as well as that of
the judiciary.
NOTE: The Electoral Tribunal and the Commission
on Appointments shall be constituted within 30 days
after the Senate and the House of Representative
shall have been organized with the election of the
President and the Speaker.
Sections 21-22: LEGISLATIVE INQUIRIES
NOTE: The 12 Senators and 12 Representatives are
elected on the basis of proportional representation
from the political parties and party-list organizations.
Voting/Action
1. The Commission shall rule by a majority vote
of all the Members.
2. The chairman shall only vote in case of a tie.
3. The Commission on Appointments shall act
on all appointments within 30 session days
from their submission to Congress.
Jurisdiction
Commission on Appointments shall confirm the
appointments by the President with respect to the
following positions: (CODE: HAPCOO)
1. Heads of the Executive Departments (except
if it is the Vice-President
who
is appointed to
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2. Ambassadors, other public ministers or
consuls.
3. Officers of the AFP from the rank of Colonel
or Naval Captain: and
4. Other officers whose appointments are
vested in him by the Constitution (e.g.
COMELEC members).
Scope of Legislative Inquiries:
Such must be conducted “in aid of legislation” which
does not mean that there is pending legislation
regarding the subject of the inquiry. Hence, the
materiality of a question is determined not by its
connection to any actually pending legislation, but by
its connection to the general scope of the inquiry.
But, if the investigation is no longer “in aid of
legislation” but “in aid of prosecution” which the
stated purpose of the investigation is to determine the
existence of violations of the law, then it is beyond
the scope of congressional powers.
Enforcement:
Congress or local government units if they are
expressly authorized to do so, has the inherent power
to punish recalcitrant witnesses for contempt, and
may have them incarcerated until such time that they
agree to testify. The continuance of such
incarceration only subsists for the lifetime, or term, of
such body. Thus, each ‘Congress’ of the House lasts
for only 3 years. But if one is incarcerated by the
Senate, it is indefinite because the Senate, with its
staggered terms, is a continuing body.
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Limitations:
1. The inquiry must in aid of legislation.
2. The inquiry must be conducted in
accordance with the ‘duly published rules of
procedure’ of the House conducting the
inquiry; and
3. The rights of persons appearing in or
affected by such inquiries shall be respected.
Ex. The right against self-incrimination.
Question Hour -- Appearance of department
heads before Congress:
Under the principle of separation of powers,
department heads cannot be compelled to appear
before Congress. Neither may the department heads
impose their appearance upon Congress.
Senate of the Philippines vs. Eduardo Ermita*
(G.R. No. 169777) (20 April 2006)
EO 464: ENSURING OBSERVANCE OF THE
PRINCIPLE OF SEPARATION OF POWERS,
ADHERENCE TO THE RULE ON EXECUTIVE
PRIVILEGE AND RESPECT FOR THE RIGHTS OF
PUBLIC OFFICIALS APPEARING IN LEGISLATIVE
INQUIRIES IN AID OF LEGISLATION UNDER THE
CONSTITUTION AND FOR OTHER PURPOSES.
Facts:
Department heads may appear before Congress in
the following instances:
1. Upon their own initiative, with the consent of
the President (and that of the House
concerned); or
2. Upon the request of either House (which
cannot compel them to attend)
Several invitations were issued by the Senate to
various officials of the Executive Department
including officials of the AFP for them to appear as
resource speakers in a public hearing on the alleged
overpricing and unlawful provisions of the contract
covering the North Rail Project.
And, their appearance will be conducted in
EXECUTIVE SESSION when:
1. Required by the security of state or required
by public interest; and
2. When the President so states in writing
However, they received a letter requesting a
postponement of the hearing in order to be given
opportunity to prepare for the various issues involved.
However, Senator Drilon said that the request was
belatedly sent and all preparation were already
made, thus, postponement is impossible. On that
same day, the President issued EO 464 which,
pursuant to Section 6 thereof, took effect
immediately.
As to persons
who may
appear
As to who
conducts the
investigation
As to the
subject matter
Question
Hour
(Sec. 22,
Article VI)
Only a
department
head
Entire body
Legislative
Investigation
(Sec. 21, Article
VI)
Any person
Matters related
to the
department
only
Any matter for
the purpose of
legislation
Committees
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Such law provides that “all heads of departments of
the Executive Branch of the government shall
secure the consent of the President prior to
appearing before either House of Congress”. And,
this does not only cover department heads but
several officials which, in the discretion of the
president, are covered by the executive privilege.
This need for prior consent is based on the executive
privilege, defined as the power of the Government to
withhold information from the public, the courts and
the Congress.
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Because of this law, the Senate was informed that no
officer of the Executive Branch can attend the
hearing without seeking approval from the President
while those military officials who testified without the
approval from the President were relieved. Thus,
several petitions were filed questioning the said EO.
Issue:
W/N the petitioners have standing to file the suit.
W/N EO 464 is unconstitutional for violating the
certain provisions of the constitutions
Held:
The petitions were partly granted. Section 2b and 3
of EO 464 are void while section 1 and 2A are valid.
Ratio:
A. Standing:
The Senate of the Philippines - EO 464 stifles its
fundamental right in making sound legislation.
Party list representatives - allowed to sue absent
any claim that an investigation called by the House
of Representative was aborted due to the
implementation of EO 464.
Individuals (e.g. Francisco Chavez) - well settled
rule that when suing as a citizen the interest of the
petitioner assailing the constitutionality of the laws,
PD, EO orders and other regulations must be direct
and
personal. In
Francisco
v
House
of
Representatives, the court held when the
proceeding involves the assertion of a public right,
the mere fact that he is a citizen satisfies the
requirement of personal interest.
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group is bereft of standing to file the present
petition. For one to be accorded standing on the
ground of transcendental importance, it must be
established that (1) the character of the funds
(public) or other assets are involved in this case, (2)
the presence of clear case of disregards of a
constitutionality or statutory provision, (3) lack of any
party with a more direct and specific interest in
raising the questions being raised. The first and last
are lacking since no public funds or assets are
involve in the present petition.
Constitutionality of EO 464
The Congress has the power of inquiry as provided
in Section 21 of Article VI. Such power – with the
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 [Arnault vs. Nazareno, 87 Phil 29
(1950)]. This power is broad enough to cover
officials of the executive branch.
Therefore, when congress exercises its power of
inquiry, the only way for department heads to
exempt themselves therefrom is by a valid claim of
privilege. They are not exempt by the mere fact that
they are department heads. Only one executive
official may be exempted from this power – the
president. Section 1 therefore, in view of its specific
reference to Section 22 of Article VI of the
constitution and the absence of any reference to
inquiries in aid of legislation, must be construed to
be limited in its application to appearances of
department heads in the question hour. The
requirement then to secure presidential assent is
limited as it is only to appearances in the question
hour, is valid on its face.
However, the provision which requires all the public
officials, enumerated in the law, to secure the
consent of the President prior to appearing before
either house of Congress is too broad. Under the
rule of ejusdem generis, the determination by the
president under this provision is intended to be
based on a similar finding of coverage under
executive privilege. Executive privileges are properly
involved to specific categories of information and to
categories of persons. Assuming that the order
refers to “officials in possession of information”,
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whenever an official involves EO 464 to justify his
failure to be present, such invocation must be
construed as a declaration to Congress that the
President has determined that the requested
information is privileged. Such declaration however,
even without mentioning the term “executive
privilege” amounts to an implied claim that the
information is privileged. However, in the letter of
Sec. Ermita, there is no explicit invocation of
executive privilege.
exercise powers necessary and proper to carry out a
declared national policy.
Such powers expires
1. by resolution of Congress or
2. upon the next adjournment of Congress
Limitations:
1. Powers will be exercised for a limited period
only; and
2. Powers will be subject to restrictions
prescribed by Congress
Sections 24-27, 30-31 LEGISLATION
Section 3 cannot be dismissed outright as invalid by
the mere fact that it sanctions claims of executive
privilege. Claims of privilege must be assessed on a
case to case basis, examining the ground involved
and circumstances surrounding them. What is
important is that the President asserts such a
privilege.
However, in the case at bar, such a claim is not
asserted, Instead of providing precise and certain
reasons from the claim, the letter of Sec. Ermita
merely invokes 464 coupled with an announcement
that the President has not given her consent. This
frustrates
the
power
of
inquiry
of
the
Congress. Section 2b in relation to section 3
provides that once a head of office determines that
certain information is privileged, such a
determination is presumed to bear the President’s
authority. These provisions thus allow the President
to authorize claims of privilege by mere silence. In
fine, Section 3 and Section 2 of EO 464 must be
invalidated.
Sections
23-24.
DECLARATION
WAR/EMERGENCY POWERS
OF
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state of war)
1. 2/3 of both Houses,
2. in joint session
3. Voting separately
Emergency powers:
During times of war or other national emergency,
Congress may, BY LAW, authorize the President to
Bills that must originate from the House of
Representatives (Sec. 24)
(CODE: A R T Pu Lo P)
1. Appropriation bills
2. Revenue bills
3. Tariff bills
4. Bills authorizing the increase of public debt
5. Bills of local application
6. Private bills
NOTE: The Senate may, however, propose or
concur with amendments.
Appropriation bills
The primary and specific aim of an appropriation bill
is to appropriate a sum of money from the public
treasury. E.g. Budget
BUT: A bill creating a new office, and appropriating
funds therefor is NOT an appropriation bill.
Revenue Bill
A revenue bill is one specifically designed to raise
money or revenue through imposition or levy.
But a provision in, for instance, the Videogram
Regulatory Board law imposing a tax on video rentals
does not make the law a revenue bill.
Bills of local application
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 Senate approved
its own version.
Limitations:
A. For appropriation bills:
1. Cannot
increase
the
appropriations
recommended by the President for the
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operation of the Government as specified in
the budget.
2. Must relate specifically to some particular
appropriation therein and any such provision
or enactment must be limited in its operation
to the appropriation to which it relates.
3. The procedure in approving appropriations
for Congress shall strictly follow the
procedure for approving appropriations for
other departments and agencies.
4. A special appropriations bill must specify the
purpose for which it is intended and must be
supported by funds actually available as
certified by the National Treasurer or to be
raised by a corresponding revenue proposal
therein.
Transfer of appropriations:
Rule: No law shall be passed authorizing any
transfer of appropriations BUT the following 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
1. President
2. President of the Senate
3. Speaker of the House of Representatives
4. Chief Justice of the Supreme Court
5. Heads of the Constitutional Commissions
Discretionary funds appropriated for particular
officials shall be:
1. Disbursed only for public purposes;
2. Should be supported by appropriate
vouchers; and
3. Subject to guidelines as may be prescribed
by law.
NOTE: If Congress fails to pass General
Appropriations Bill (GAB) by the end of any fiscal
year:
The GAB for the previous year is deemed reenacted
It will remain in full force and effect until the GAB is
passed by Congress.
B. For law granting tax exemption:
Concurrence of a MAJORITY
of ALL
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Readings
Each bill must pass three (3) readings in both Houses
which shall be held on separate days & printed
copies thereof in its final form shall be distributed to
its Members three (3) days before its passage.
Exception: If a bill is certified as urgent by the
President as to the necessity of its immediate
enactment to meet a public calamity or emergency,
the 3 readings can be held on the same day.
First reading – only the title is read; the bill is passed
to the proper committee
Second reading – Entire text is read and debates are
held, and amendments introduced.
Third reading – only the title is read, no amendments
are allowed.
Vote shall be taken immediately
thereafter and the yeas and nays entered in the
journal.
Veto power of President:
1. Must be presented to and signed by the
President.
2. May veto the same and return it with his
objections to the House from which it
originated.
The House shall enter the
objections in the Journal and proceed to
reconsider it.
3. The President must communicate his
decision to veto within 30 days from the date
of receipt thereof. If he fails to do so, the bill
shall become a law as if he signed it.
4. This rule eliminates the ‘pocket veto’
whereby the President would simply refuse to
act on the bill.
5. To OVERRIDE the veto, at least 2/3 of ALL
the members of each House must agree to
pass the bill.
In such case, the veto is
overridden and becomes a law without need
of presidential approval.
General Rule: If the president disapproves a bill
enacted by Congress, he should veto the entire bill.
He is not allowed to veto separate items of a bill.
Exception: Item veto in the case of appropriation,
revenue, and tariff bills
C. For bills in general
Every bill shall embrace only one (1) subject, as
expressed in the title thereof, which does not have to
be a complete catalogue of everything stated in the
bill. A title expressing the general subject of the bill
and all the provisions of the statute are germane to
that general subject is sufficient
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Definition of item
TYPE OF BILL
1. Revenue/tax bill
2. Appropriations bill
Within the framework of the national development
program of the Government
ITEM
Subject of the tax
and the tax rate
imposed thereon
Indivisible
sum
dedicated to a stated
purpose
Exceptions to the Exception:
1. Doctrine of Inappropriate Provisions- a
provision that is constitutionally inappropriate for an
appropriation bill may be singled for veto even if it is
not an appropriation or revenue “item” (Gonzales vs.
Macaraig, 191 SCRA 452)
2. Executive Impoundment- refusal of the President
to spend funds already allocated by Congress for
specific purpose. It is the failure to spend or obligate
budget authority of any type (Philconsa vs. Enriquez,
G.R. No. 113105. August 19, 1994)
Veto of RIDER
A rider is a provision which does not relate to a
particular appropriation stated in the bill.
Since it is an invalid provision under Section 25(2),
the President may veto it as an item.
Specific limitations on legislation
No law shall be enacted increasing the Supreme
Court’s appellate jurisdiction without the SC’s advice
and concurrence.
No law shall be enacted granting titles of royalty or
nobility.
Sec. 28. POWER TO TAX
Limitations: (UP DEP)
1. The rule of taxation should be UNIFORM
2. It should be EQUITABLE
3. Congress should evolve a PROGRESSIVE
system of taxation.
4. The power to tax must be exercised for a
Public purpose because the power exists for
the general welfare
5. The Due process and equal protection
and a
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Delegation of power to fix rates
Congress may, BY LAW, authorize the President to
fix the following:
1. Tariff rates
2. Import and Export Quotas
3. Tonnage and wharfage dues
4. Other duties and imposts
Constitutional tax exemptions:
The following properties are exempt from REAL
PROPERTY taxes
(CODE: Cha Chu M- CA)
1. Charitable institutions
2. Churches, and parsonages or convents
appurtenant thereto
3. Mosques
4. Non-profit cemeteries; and
5. All lands, buildings and improvements
actually, directly and exclusively used for
religious, charitable, or educational purposes.
NOTE: All revenues and assets of NON-STOCK
NON-PROFIT EDUCATIONAL institutions are
exempt from taxes and duties PROVIDED that such
revenues and assets are actually, directly and
exclusively used for educational purposes. (Art. XIV
Sec. 4 (3))
Grants, endowments, donations or contributions used
actually, directly and exclusively for educational
purposes shall be exempt from tax. This is subject to
conditions prescribed by law. (Art. XIV. Sec. 4 (4))
Sec. 29. Power of the Purse
No money shall be paid out of the National Treasury
EXCEPT in pursuance of an appropriation made by
law.
BUT:
This rule does not prohibit continuing
appropriations. e.g. for debt servicing.
This is
because the rule does not require yearly, or annual
appropriation.
Limitations.
1. Appropriations must be for a PUBLIC
PURPOSE
2. Cannot appropriate public funds or property,
directly or indirectly, in favor of
a. any sect, church, denomination, or
sectarian institution or system of
religion or
b. Any priest, preacher, minister, or
other religious teacher or dignitary as
such. EXCEPT if the priest, etc is
assigned to:
i. the Armed Forces; or
ii. any penal institution; or
iii. government orphanage; or
iv. leprosarium
NOTE: BUT the government is not prohibited from
appropriating money for a valid secular purpose,
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even if it incidentally benefits a religion, e.g.
appropriations for a national police force is valid even
if the police also protects the safety of clergymen.
ALSO, the temporary use of public property for
religious purposes is valid, as long as the property is
available for all religions
Special Funds
Money collected on a tax levied for a special purpose
shall be treated as a special fund and paid out for
such purpose only.
Once the special purpose is fulfilled or abandoned,
any balance shall be transferred to the general funds
of the Government
Pimentel, Jr. v. Ermita* (472 SCRA 587) (October
13, 2005)
Ratio:
“The power to appoint is essentially executive in
nature, and the legislative may not interfere with the
exercise of this executive power except in those
instances when the Constitution expressly allows it to
interfere.”
Sec. 2 Qualifications
Sec. 32. INITIATIVE AND REFERENDUM
Initiative: The power of the people to propose
amendments to the Constitution or to propose and
enact legislation called for the purpose.
Referendum: Power of the electorate to approve or
reject legislation through an election called for the
purpose.
Required Petition
1. Should be signed by at least 10% of the total
number of registered voters
2. Every
legislative
district
should
be
represented by at least 3% of the registered
voters
3. Petition should be registered
ARTICLE VII. THE EXECUTIVE DEPARTMENT
Sec. 1. Executive Power
Scope:
1. Executive power is vested in the President of
the Philippines.
2. Such is not limited to those set forth in the
constitution. The SC, in Marcos v.
Manglapus, referred to the RESIDUAL
powers of the President as the Chief
Executive of the country, which powers
include others QuickTime™
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Constitution. areEXAMPLE:
The President is
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immune from suit and criminal prosecution
while he is in office.
3. Privilege of immunity from suit is personal to
the President and may be invoked by him
alone.
It may also be waived by the
President, as when he himself files suit.
4. BUT The President CANNOT dispose of
state property unless authorized by law.
President
Vice President
At least 40 years old on the day of election
Natural- born citizen of the Philippines
Able to read and write
Registered voter
Resident of the Philippines for at least 10 years
immediately preceding the election
Term of 6 yrs.
Unless otherwise provided by law, term of office
commence at noon of June 30 next following the
lection
Single term only; not
Term limitation: 2
eligible for any
successive terms.
reelection
Any person who has
succeeded as
President, and served
as such for more than
4 years shall NOT be
qualified for election to
the same office at any
time.
Sec. 4.
OFFICE
MANNER OF ELECTION/ TERM OF
Manner of Election
1. The President and Vice-President shall be
elected by direct vote of the people.
2. Election returns for President and VicePresident, as duly certified by the proper
Board of Canvassers shall be forwarded to
Congress, directed to the Senate President.
3. Not later than 30 days after the day of the
election, the certificates shall be opened in
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4.
5.
6.
7.
the presence of both houses of Congress,
assembled in joint public session.
The Congress, after determining the
authenticity and due execution of the
certificates, shall canvass the votes.
The person receiving the highest number of
votes shall be proclaimed elected.
In case of a tie between 2 or more
candidates, one shall be chosen by a
majority of ALL the members of both Houses,
voting separately. In case this results in a
deadlock, the Senate President shall be the
acting President until the deadlock is
broken.
The Supreme Court en banc shall act as the
sole judge over all contests relating to the
election, returns, and qualifications of the
President or Vice-President and may
promulgate its rules for the purpose
Sec. 6. SALARIES AND EMOLUMENTS
1. Official salaries are determined by law.
2. Salaries cannot be decreased during the
TENURE of the President and the VicePresident.
3. Increases take effect only after the expiration
of the TERM of the incumbent during which
the increase was approved.
4. Prohibited from receiving any other
emolument from the government or any other
source during their TENURE
Sections 7-12. PRESIDENTIAL SUCCESSION
1. Vacancies at the beginning of the term
VACANCY
SUCCESSOR
President-elect
VP-elect will be Acting
fails to qualify or to President until someone
be chosen
is qualified/chosen as
President.
President-elect
VP becomes President.
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permanently
disabled.
Both
President 1) Senate President or
and VP-elect are 2) In
case
of
his
not chosen or do
inability, the Speaker
not qualify or both
of the House shall act
die,
or
both
as President until a
become
President or a VP
permanently
shall
have
been
disabled.
chosen and qualified.
In case of death or
disability of (1) and (2),
Congress
shall
determine, by law, who
will
be
the
acting
President.
2. Vacancies after the office is initially filled:
VACANCY
SUCCESSOR
President dies, is Vice-President
permanently
becomes President for
disabled,
is the unexpired term.
impeached,
or
resigns.
Both President and 1. Senate President
Vice-President die,
or
become permanently 2. In case of his
disabled,
are
inability,
the
impeached,
or
Speaker of the
resign.
House shall act as
President until the
President or VP
shall have been
elected
and
qualified.
3. Vacancy in office of Vice-President during the term
for which he was elected:
a) President will nominate new VP from any
member of either House of Congress.
b) Nominee shall assume office upon
confirmation by majority vote of ALL
members of both Houses, voting separately.
(Nominee forfeits seat in Congress)
4. Election of President and Vice-President after
vacancy during term
a) Congress shall convene 3 days after the
vacancy in the office of both the President
and the VP, without need of a call. The
convening
of
Congress
cannot
be
suspended.
b) Within 7 days after convening, Congress
shall enact a law calling for a special election
to elect a President and a VP. The special
election cannot be postponed.
c) The special election shall be held not earlier
than 45 days not later than 60 days from the
time of the enactment of the law.
d) The 3 readings for the special law need not
be held on separate days.
e) The law shall be deemed enacted upon its
approval on third reading.
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BUT: No special election shall be called if the
vacancy occurs within 18 months before the date
of the next presidential election.
Constitution (e.g.
VP
can
be
appointed
a
Cabinet Member,
Sec. of Justice sits
on Judicial and
Bar Council); or
the positions are
ex-officio and they
do not receive any
salary or other
emoluments
therefor (e.g. Sec.
of Finance is head
of
Monetary
Board).
5. TEMPORARY DISABILITY of the President: The
temporary inability of the President to discharge his
duties may be raised in either of two ways:
a) By the President himself, when he sends a
written declaration to the Senate President
and the Speaker of the House. In this case,
the Vice-President will be Acting President
until the President transmits a written
declaration to the contrary.
b) When a majority of the Cabinet members
transmit to the Senate President and the
Speaker their written declaration.
i. The VP will immediately be Acting
President.
ii. BUT: If the President transmits a
written declaration that he is not
disabled, he reassumes his position
iii. If within 5 days after the President reassumes his position, the majority of
the Cabinet retransmits their written
declaration, Congress shall decide the
issue. In this event, Congress shall
reconvene within 48 hours if it is not in
session, without need of a call.
iv. Within 10 days after Congress is
required to assemble, or 12 days if
Congress is not in session, a 2/3
majority of both Houses, voting
separately, is needed to find the
President temporarily disabled, in
which case, the VP will be Acting
President.
6. Presidential Illness:
a) If the President is seriously ill, the public
must be informed thereof.
b) Even during such illness, the National
Security Adviser, the Secretary of Foreign
Affairs, and the Chief of Staff of the AFP are
entitled to access to the President
Sec. 13. DISQUALIFICATIONS
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SUBJECT
President,
VicePresident, Cabinet
Members,
Deputies
or
Assistants
of
Cabinet Members
SOURCE OF
DISQUALIFICATION
Prohibited from:
1) Holding any office or
employment
during
their tenure, UNLESS:
otherwise
provided in the
2) Practicing, directly or
indirectly, any other
profession during their
tenure;
3) Participating
business;
Spouses and 4th
degree relatives of
the
President
(consanguinity or
affinity)
in
any
4) Being
financially
interested
in
any
contract with, or in any
franchise, or special
privilege granted by
the government or any
subdivision, agency or
instrumentality thereof,
including GOCC's or
their subsidiaries.
N.B.
The rule on
disqualifications for the
President and his Cabinet
are stricter than the normal
rules
applicable
to
appointive and elective
officers under Art. IX-B,
Sec. 7.
Cannot
be
appointed
during President’s tenure
as:
1) Members
of
the
Constitutional
Commissions;
2) Office
of
the
Ombudsman;
3) Department
Secretaries;
4) Department
undersecretaries;
5) Chairman or heads of
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bureaus or offices
including GOCC’s and
their subsidiaries.
N.B.
1) If the spouse, etc.,
was already in any of
the above offices at
the time before his/her
spouse
became
President, he/she may
continue in office.
What is prohibited is
appointment
and
reappointment, NOT
continuation in office.
2) Spouses, etc., can be
appointed
to
the
judiciary
and
as
ambassadors
and
consuls.
Sections 14-16. POWER TO APPOINT
Principles:
Power to appoint is executive in nature. While
Congress (and the Constitution in certain cases) may
prescribe the qualifications for particular offices, the
determination of who among those who are qualified
will be appointed is the President’s prerogative.
Scope:
The President shall appoint the following:
1. Heads
of
executive
departments
(CA
confirmation needed):
2. Ambassadors, other public ministers, and
consuls (CA confirmation needed).
3. Officers of AFP from rank of colonel or naval
captain (CA confirmation needed).
4. Other officers whose appointment is vested in
him by the Constitution (CA confirmation
needed), such as:
a. Chairmen and members of the
COMELEC, COA and CSC.
b. Regular members of the Judicial and Bar
Council.
c. The Ombudsman and his deputies;
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d. Sectoral representatives
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N.B. President also appoints members of the
Supreme Court and judges of the lower courts,
but these appointments do not need CA
confirmation.
5. All other officers whose appointments are not
otherwise provided for by law; and those whom
he may be authorized by law to appoint.
a. This includes the Chairman and
members of the Commission on Human
Rights,
whose
appointments
are
provided for by law NOT by the
Constitution.
b. Congress may, by law, vest the
appointment of other officers lower in
rank in the President alone or in the
courts, or in the heads of departments,
agencies, boards or commissions.
c. BUT: Congress cannot, by law, require
CA confirmation of the appointment of
other officers for offices created
subsequent to the 1987 Constitution (e.g.
NLRC Commissioners, Bangko Sentral
Governor).
d. ALSO: Voluntary submission by the
President to the CA for confirmation of an
appointment which is not required to be
confirmed does not vest the CA with
jurisdiction. The President cannot extend
the scope of the CA’s power as provided
for in the Constitution.
Procedure:
1. CA confirmation needed:
a) Nomination by President
b) Confirmation by CA
c) Appointment by President; and
d) Acceptance by appointee.
NOTE: At any time before all four steps have
been complied with, the President can withdraw
the nomination/appointment.
2. No CA confirmation:
a) Appointment; and
b) Acceptance.
NOTE: Once appointee accepts, President can
no longer withdraw the appointment.
Ad-interim appointments:
1. When Congress is in recess, the President
may still appoint officers to positions subject
to CA confirmation.
2. These
appointments
are
effective
immediately, but are only effective until they
are disapproved by the CA or until the next
adjournment of Congress.
3. Appointments to fill an office in an ‘acting’
capacity are NOT ad-interim in nature and
need no CA approval.
Appointments by an Acting President:
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These shall remain effective UNLESS revoked by the
elected President within 90 days from his assumption
or re-assumption of office.
Limitation
1. 2 months immediately before the next
Presidential elections, and up to the end of
his term, the President or Acting President
SHALL NOT make appointments. This is to
prevent
the
practice
of
‘midnight
appointments.”
2. EXCEPTION:
a) Can
make
TEMPORARY
APPOINTMENTS
b) To fill EXECUTIVE POSITIONS;
c) If continued vacancies therein will
prejudice public service or endanger
public safety.
BUT While the President may remove from office
those who are not entitled to security of tenure, or
those officers with no set terms, such as Department
Heads, the officers, and employees entitled to
security of tenure cannot be summarily removed from
office.
Power of Supervision:
This is the power of a superior officer to ensure that
the laws are faithfully executed by subordinates.
The power of the president over local government
units is only of general supervision. Thus, he can
only interfere with the actions of their executive
heads if these are contrary to law.
The execution of laws is an OBLIGATION of the
President. He cannot suspend the operation of laws.
The power of supervision does not include the power
of control; but the power of control necessarily
includes the power of supervision.
Sec. 17. Power of Control and Supervision
Sec. 18. COMMANDER-IN-CHIEF POWERS
POWER OF CONTROL:
The power of an officer to alter, modify, or set aside
what a subordinate officer has done in the
performance of his duties, and to substitute the
judgment of the officer for that of his subordinate.
The President’s power over government-owned
corporations comes not from the Constitution but
from statute. Hence, it may be taken away by
statute.
Qualified Political Agency:
Generally the acts of these department heads, etc,
which are performed and promulgated in the regular
course of business, are presumptively the acts of the
President.
Exception:
a. If the acts are disapproved or reprobated by
the President.
b. If the President is required to act in person by
law or by the Constitution Example: The power
to grant pardons must be exercised personally
by the President
NOTE: Under Administrative
decisions of
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Department Secretaries
need
not
be appealed to the
are needed
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President in order to comply with the requirement of
exhaustion of administrative remedies.
Disciplinary Powers:
The power of the President to discipline officers flows
from the power to appoint the officer, and NOT from
the power to control.
Scope:
Being the Commander-in-Chief of the Armed Forces,
whenever necessary, the President may call out the
AFP
1. to PREVENT or SUPPRESS:
a. Lawless violence;
b. Invasion; or
c. Rebellion.
2. May also:
a. Suspend the privilege of the writ of
habeas corpus; and
b. Proclaim a state of martial law.
Suspension of the privilege of the writ of habeas
corpus and declaring martial law;
1. Grounds
a. Invasion or
b. Rebellion; and
c. Public safety requires it.
2. The invasion or rebellion must be ACTUAL
and not merely imminent.
3. Limitations:
a. Suspension or proclamation is effective
for only 60 days.
b. Within 48 hours from the declaration or
suspension, the President must submit a
report to Congress.
c. Congress, by majority vote and voting
jointly, may revoke the same, and the
President cannot set aside
the
revocation.
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d. In the same manner, at the President’s
initiative, Congress can extend the same
for a period determined by Congress if:
4. Invasion or rebellion persist and
5. Public safety requires it.
NOTE: Congress CANNOT extend the period motu
propio.
e. Supreme Court review:
i. The appropriate proceeding can
be filed by any citizen.
ii. The SC can review the
FACTUAL
BASIS
of
the
proclamation or suspension.
iii. Decision is promulgated within
30 days from filing.
f. Martial Law does NOT:
i. Suspend the operation of the
Constitution.
ii. Supplant the functioning of the
civil
courts
or
legislative
assemblies.
iii. Authorize
conferment
of
jurisdiction on military courts
over civilians where civil courts
are able to function and
iv. Automatically
suspend
the
privilege of the writ of habeas
corpus.
g. Suspension of privilege of the writ of
habeas corpus:
i. Applies ONLY to persons judicially
charged for rebellion or offenses
inherent in or directly connected
with invasion.
ii. Anyone arrested or detained
during
suspension
must
be
charged within 3 days. Otherwise
he should be released.
NOTE: While the suspension of the privilege of writ
and the proclamation of martial law is subject to
judicial review, the actual use by the President of the
armed forces is not. Thus, troop deployments in
times of war are subject to the President’s judgment
and discretion.
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Declaration of State are
ofneeded
Rebellion
to see this picture.
IBP v. Zamora, G.R. 141284
The factual necessity of calling out the armed
forces is something that is for the President to
decide, but the Court may look into the factual basis
of the declaration to determine if it was done with
grave abuse of discretion amounting to lack of
jurisdiction.
David v. Macapagal-Arroyo*
171396, May 3, 2006
G.R.
No.
Facts:
President
Arroyo
issued
Presidential
Proclamation No. 1017 declaring a state of national
emergency, stating that the proximate cause behind
the executive issuances was the conspiracy among
members of the political opposition in a plot to unseat
or assassinate President Arroyo.
By virtue of PP1017, political rallies were
cancelled, rallyists were violently dispersed, and
warrantless arrests and take-over of facilities,
including media, were implemented.
On March 3, 2006, PGMA issued PP1021
declaring that the state of national emergency has
ceased to exist.
Issues:
A. PROCEDURAL
1. W/N the issuance of PP 1021 renders the
petitions moot and academic
2. W/N the petitioners in 171485 (Escudero,
et.al), 171400 (Alternative Law Groups, Inc.),
171483 (Kilusang Mayo Uno, et al.), 171489
(Cadiz, et.al.), and 171424 (Legarda) have
legal standing.
B. SUBSTANTIVE
1. W/N the SC can review the factual bases of
PP 1017
2. W/N PP 1017 and G.O. 5 are
unconstitutional
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
Held:
A. Procedural
1. PGMA’s issuance of PP 1021 did not render
the present petitions moot and academic.
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
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.
2. All petitioners have locus standi. Even if the
plaintiff who asserts a “public right”, fails to
prove that he has a “personal and substantial
interest in the case such that he has
sustained, or will sustain direct injury as a
result”, the requirement of locus standi may
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be waived by the Court in the exercise of its
discretion,
under
the
principle
of
“transcendental importance”, provided the
following requirements are met:
a. the cases involve constitutional
issues
b. for taxpayers, there must be a claim
of illegal disbursement of public
funds or that the tax measure is
unconstitutional;
c. for voters, there must be a showing
of obvious interest in the validity of
the election law in question;
d. for concerned citizens, there must be
a showing that the issues raised are
of transcendental importance which
must be settled early;
e. for legislators, there must be a claim
that the official action complained of
infringes upon their prerogatives as
legislators
3. it is not proper to implead PGMA as a
respondent. Settled is the doctrine that the
President, during his tenure of office or actual
incumbency, may not be sued in any civil or
criminal cases, and there is no need to
provide for it in the Constitution or law.
A. SUBSTANTIVE
1. Review of Factual Bases
4. As to how the Court may inquire into the
President’s exercise of power, in Lansang v.
Garcia, it adopted the test that “judicial
inquiry can go no further than to satisfy the
Court not that the President’s decision is
correct but that the President did not act
arbitrarily. Thus, the standard laid down is
not correctness, but arbitrariness.
5. Hence, it is incumbent upon the petitioner to
show that the President’s decision is totally
bereft of factual basis of which they failed to
show that PGMA’s exercise of the calling-out
power, by issuing PP 1017, is totally bereft of
factual basis.
B. Substantive
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The Petitions are partly
granted.
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1.
The
Court
rules
that
PP
1017
is
CONSTITUTIONAL insofar as it constitutes a call by
President Gloria Macapagal-Arroyo on the AFP to
prevent or suppress lawless violence, which pertains
to a spectrum of conduct, and not free speech, which
is manifestly subject to state regulation.
2. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to
lawless violence, as well as decrees promulgated by
the President, are declared UNCONSTITUTIONAL.
The assailed PP 1017 is unconstitutional insofar as it
grants PGMA the authority to promulgate “decrees.”
Legislative power is peculiarly within the province of
the Legislature. She can only order the military, under
PP 1017, to enforce laws pertinent to its duty to
suppress lawless violence.
3. In addition, the provision in PP 1017 declaring
national emergency under Section 17, Article VII of
the Constitution is CONSTITUTIONAL, but such
declaration does not authorize the President to take
over privately-owned public utility or business
affected with public interest without prior legislation.
4. G.O. No. 5 is CONSTITUTIONAL since it provides
a standard by which the AFP and the PNP should
implement PP 1017, i.e. whatever is “necessary and
appropriate actions and measures to suppress and
prevent acts of lawless violence.” Considering that
“acts of terrorism” have not yet been defined and
made punishable by the Legislature, such portion of
G.O. No. 5 is declared UNCONSTITUTIONAL.
Hence, the various warrantless arrest; the imposition
of standards on media or any form of prior restraint
on the press, as well as the warrantless search of the
Tribune offices and whimsical seizure of its articles
for publication and other materials, are declared
UNCONSTITUTIONAL for PP 1017 is merely an
invocation of the President’s calling-out power; there
is nothing in it allowing the police, expressly or
impliedle, to conduct illegal arrest, search, or violate
the citizen’s constitutional rights.
Sec. 19: EXECUTIVE CLEMENCY
Scope:
After conviction by final judgment, the President may
grant the following: [ Pa R C Re]
1. Pardons (conditional or plenary)
2. Reprieves
3. Commutations
4. Remittance of fines and forfeitures
NOTE: The power to grant clemency includes cases
involving administrative penalties.
Where a conditional pardon is granted, the
determination of whether it has been violated rests
with the President.
Limitations:
A. Cannot be granted:
1. Before
conviction
In cases of impeachment
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2.
For violations of election laws, rules, and
regulations
without
the
favorable
recommendation of the COMELEC
3. In cases of civil or legislative contempt
B. As to effect:
1) Does not absolve civil liabilities for an
offense.
2) Does not restore public offices already
forfeited, although eligibility for the same may
be restored.
Amnesty:
An act of grace concurred in by Congress, usually
extended to groups of persons who commit political
offenses, which puts into oblivion the offense itself.
President alone CANNOT grant amnesty for it needs
the concurrence by a majority of all the members of
Congress.
When a person applies for amnesty, he must admit
his guilt of the offense which is subject to such
amnesty. If his application is denied, he can be
convicted based on this admission of guilt.
Amnesty V. Pardon
AMNESTY
Addressed to
POLITICAL offenses
Granted to a CLASS of
persons
Need not be accepted
Requires concurrence of
majority of all members
of Congress
A public act. Subject to
judicial notice
Extinguishes the offense
itself
PARDON
Addressed to
ORDINARY offenses
Granted to
INDIVIDUALS
Must be accepted
No need for
Congressional
concurrence
Private act of President.
It must be proved.
Only penalties are
extinguished.
May or may not restore
political rights. Absolute
pardon restores.
Conditional does not.
Civil indemnity is not
extinguished.
May be granted before
Only granted after
or after conviction
conviction by final
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2. Subject to such limitations as may be provided by
law.
a. Monetary Board shall submit to Congress
report on loans within 30 days from the end of
every quarter.
Section 21. Foreign Relations Powers
include:
1. Power to negotiate treaties and other international
agreements BUT: Such treaty or international
agreement needs to pass to the Senate which
has the following options:
a. Approve with 2/3 majority;
b. Disapprove outright; or
c. Approve conditionally, with suggested
amendments which if re-negotiated and the
Senate’s suggestions are incorporated, the
treaty will go into effect without need of
further Senate approval
However, if re-negotiated, there is no treaty. If there’s
conflict between treaty and municipal law, then
under;
a. Philippine Courts: The later enactment will
prevail, be it treaty or law, as it is the latest
expression of the State’s will.
b. International tribunal: Treaty will always
prevail. A State cannot plead its municipal
law to justify noncompliance with an
international obligation.
NOTE: While our municipal law makes a
distinction between international agreements
and executive agreements, with the former
requiring Senate approval and the latter not
needing the same, under international law,
there is no such distinction.
NOTE: The President cannot, by executive
agreement, undertake an obligation which
indirectly circumvents a legal prohibition.
2.
Power to appoint ambassadors, other public
ministers, and consuls.
3.
Power to receive ambassadors and other public
ministers accredited to the Philippines.
Sec. 20. Power to Contract or Guarantee Foreign
Loans
4.
Power to contract and guarantee foreign loans
on behalf of the Republic
Limitations:
1. 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
5.
Power to deport aliens
a. This power is vested in the President by
virtue of his office, subject only to
restrictions as may be provided by
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legislation as regards to the grounds for
deportation.
b. In the absence of any legislative restriction
to authority, the President may still exercise
this power.
c. The power to deport aliens is limited by the
requirements of due process, which entitles
the alien to a full and fair hearing.
d. BUT: The alien is not entitled to bail as a
matter of right.
Sec. 2. ROLES OF CONGRESS
1.
Defining 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.
BUT, Congress cannot deprive the Supreme Court of
its jurisdiction over cases provided for in the
Constitution.
ARTICLE VIII. THE JUDICIAL DEPARTMENT
Sec. 1. JUDICIAL POWER
Definition:
Judicial power is the authority to settle justiciable
controversies or disputes involving rights that are
enforceable and demandable before the courts of
justice or the redress of wrongs for violations of such
rights.
To whom vested:
Supreme Court and such lower courts as may be
established by law. Hence, they may neither attempt
to assume or be compelled to perform non-judicial
functions.
They may not be charged with
administrative functions except when reasonably
incidental to the fulfillment of their duties.
The duties of the courts are
1. to settle actual controversies involving rights
which
are
legally
demandable
and
enforceable; and
2. 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.
Note: The courts cannot be asked for advisory
opinions.
Political Questions:
A ‘POLITICAL QUESTION’ is one the resolution of
which has been vested by the Constitution
exclusively in either the people, in the exercise of
their sovereign capacity, or
in which
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authority has been delegated
tothisapicture.
co-equal branch of
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the Government.
Thus, while courts can determine questions of legality
with respect to governmental action, they cannot
review government policy and the wisdom thereof, for
these questions have been vested by the Constitution
in the Executive and Legislative Departments.
Creation and abolition of courts:
The power to create courts implies the power to
abolish and even re-organize courts.
BUT this power cannot be exercised in a manner
which would undermine the security of tenure of the
judiciary.
If the abolition/re-organization is done in good faith
and not for political or personal reasons, then it is
VALID.
Sec. 3. FISCAL AUTONOMY
The entire judiciary shall enjoy fiscal autonomy.
Annual appropriations for the judiciary cannot be
reduced below the amount appropriated for the
previous year.
Once approved, appropriations shall be automatically
and regularly released.
Sections 4-7; 12 JUDICIARY
Composition of the Supreme Court:
1) Chief Justice and
2) 14 Associate Justices
NOTE: 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.
Qualifications of members of the:
SC
lower collegiate
courts e.g. CA,
CTA,
Sandiganbayan
Natural born citizen of the
Philippines
At least 40
years old
judges of
lower noncollegiate
courts
Citizen
of
the
Philippines
(may be a
naturalized
citizen)
Possesses other qualifications
prescribed by Congress
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At least 15
years of
experience
as a judge
or in the
practice of
law in the
Philippines
Member of the Philippine Bar
Sec. 11. TENURE/DISCIPLINARY POWERS OF SC
1. Members of the SC and judges of the lower courts
hold office during good behavior until;
a) The age of 70 years old; or
b) They become incapacitated to discharge
their duties.
Person of proven competence, integrity, probity
and independence
Sec. 8. JUDICIAL AND BAR COUNCIL
Under the supervision of the SC.
A. Composition
1. Chief Justice, as ex-officio chairman
2. Secretary of Justice, as an ex-officio member
3. Representative of Congress, as an ex-officio
member
4. Representative of the Integrated Bar
5. A professor of law
6. A retired member of the SC; and
7. Private sector representative
NOTE: The last four are the regular members of the
JBC.
Regular members are appointed by the
President with CA approval. Regular members serve
for 4 years, with staggered terms.
B. Functions of JBC
Principal function: recommend appointees to the
Judiciary
Exercise such other functions as the SC may assign
to it.
C. Appointments to the Judiciary
President shall appoint from a list of at least 3
nominees for each vacancy, as prepared by the JBC.
No CA confirmation is needed for appointments to
the Judiciary.
Vacancies in SC should be filled within 90 days from
the occurrence of the vacancy.
Vacancies in lower courts should be filled within 90
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President
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Sec. 10. SALARIES
Salaries of SC Justices and judges of lower courts
shall be fixed by law.
Cannot be decreased during their continuance in
office, but can be increased.
Members of the Judiciary are NOT exempt from
payment of income tax.
2. Disciplinary action against judges of lower courts:
Only the SC en banc has jurisdiction to discipline or
dismiss judges of lower courts.
Disciplinary action/dismissal: Majority vote of SC
Justices who took part in the deliberations and voted
therein.
3. Only by IMPEACHMENT SC Justices can be
removed. They cannot be disbarred while they hold
office.
Sections. 4-6, 13. THE SUPREME COURT
Hearing of cases:
En banc; or
Divisions of 3, 5, or 7.
Cases required to be heard en banc:
1. All cases involving constitutionality of a/an:
(CODE: T I L)
a. Treaty
b. International or executive agreement or
c. Law.
2. All cases required to be heard en banc under
the Rules of Court:
3. Appeals from Sandiganbayan; and from the
Constitutional Commissions
4. All cases involving the constitutionality,
application or operation of: (CODE: PPOIRO)
a. Presidential decrees
b. Proclamations
c. Orders
d. Instructions
e. Ordinances; and
f.
Other regulations.
5. Cases heard by a division where required
majority of 3 was not obtained.
6. Cases where SC modifies or reverses a
doctrine or principle of law laid down by the
SC en banc or by a division.
7. Administrative cases to discipline or dismiss
judges of lower courts; and
8. Election contests for President and VicePresident.
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Cases heard by division
1. Must be decided with the concurrence of a
majority of the members who took part in the
deliberations and voted thereon.
2. Majority vote in a division should be at least 3
members.
Powers of the SC
ORIGINAL
jurisdiction
1)
Cases
affecting
ambassadors,
other
public
ministers
and
consuls.
NOTE:
This
refers to foreign
ambassadors,
etc., stationed in
the Philippines
2) Petitions for
certiorari,
prohibition,
mandamus, quo
warranto,
and
habeas corpus.
APPELLATE jurisdiction
over final judgments and
orders in the following:
1) All cases involving the
constitutionality or validity of
any: treaty, international or
executive agreement, law,
decree,
presidential
order,
proclamation,
instruction, ordinance, or,
regulation;
2) All cases involving the
legality of any: tax, impost,
toll, assessment or any
penalty imposed in relation
thereto;
3) All cases in which the
jurisdiction of any lower
court is in issue
4) Criminal cases where the
penalty
imposed
is
reclusion
perpetua
or
higher; and
5) All cases where ONLY
errors or questions of law
are involved.
3. Temporarily assign lower court judges to other
stations in the public interest.
Note: Temporary assignment shall not exceed 6
months without the consent of the judge concerned.
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4. Order a change of are
venue
orseeplace
of trial to avoid a
miscarriage of justice.
5. Promulgate rules concerning:
i. The protection and enforcement of
constitutional rights;
ii. Pleading, practice and procedure in all
courts;
iii. Admission to the practice of law;
iv. The Integrated Bar; and
v. Legal assistance to the underprivileged.
Limitations on Rule Making Power
1. It should provide a simplified and inexpensive
procedure for the speedy disposition of
cases.
2. It should be uniform for all courts of the same
grade
3. It should not diminish, increase, or modify
substantive rights.
6. Appoint ALL officials and employees of the
Judiciary, in accordance with Civil Service Law.
7. Exercise administrative supervision over ALL
courts and the personnel thereof.
Decisions of the Supreme Court:
1. Reached in consultation before being
assigned to a member for the writing of the
opinion.
2. A certification to this effect must be signed by
the Chief Justice and attached to the record
of the case and served upon the parties.
3. Members of the SC who took no part, or who
dissented or abstained must state the
reasons therefore.
NOTE: This procedure shall also be observed by all
lower collegiate courts (CA, CTA, and the
Sandiganbayan).
JUDICIAL REVIEW
Definition
Judicial Review is the power of the SC to declare a
law, treaty, ordinance etc. unconstitutional.
Lower courts may also exercise the power of judicial
review, subject to the appellate jurisdiction of the SC.
Only SC decisions are precedent, and thus, only SC
decisions are binding on all.
Requisites: Code: [A R S E L]
1. An ACTUAL CASE calling for the exercise of
judicial power
2. The question involved must be RIPE FOR
ADJUDICATION, i.e. the government act
must have had an adverse effect on the
person challenging it.
3. The person challenging the governmental act
must have ‘STANDING’, i.e. a personal and
substantial interest in the case such that he
has sustained, or will sustain, direct injury as
a result of its enforcement.
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4. The question of Constitutionality must be
raised in the first instance, or at the earliest
opportunity.
5. Resolution of the issue of constitutionality is
unavoidable or is the very lis mota
Effect of a declaration of unconstitutionality:
Prior to the declaration that a particular law is
unconstitutional, it is considered as an ‘operative fact’
which at that time had to be complied with.
Thus, these vested rights, acquired under such law
before it was declared unconstitutional, are not
prejudiced by the subsequent declaration that the law
is unconstitutional.
Sec. 14. DECISIONS
1. Decisions MUST state clearly and distinctly
the facts and the law on which they are
based.
2. Memorandum decisions, where the appellate
court adopts the findings of fact and law of
the lower court, are allowed as long as the
decision adopted by reference is attached to
the Memorandum for easy reference.
3. These rules only apply to courts. They do
not apply to quasi-judicial or administrative
bodies nor to military tribunals.
Safeguards that guarantee Independence of the
Judiciary:
1. Being a Constitutional body, it may not be
abolished by law;
2. Members
are
only
removable
by
impeachment;
3. SC may not be deprived of minimum and
appellate jurisdiction; appellate jurisdiction
may not be increased without its advice or
concurrence;
4. SC has administrative supervision over all
inferior courts and personnel;
5. SC had exclusive power to discipline judges/
justices of inferior courts;
6. Members of the judiciary enjoy security of
tenure;
7. Members of judiciary may not be designated
to any agency performing
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administrativearefunctions;
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8. Salaries of judges may not be reduced;
judiciary enjoys fiscal autonomy;
9. SC alone may initiate Rules of Court;
10. SC alone may order temporary detail of
judges; and
11. SC can appoint all officials and employees of
the Judiciary (Nachura, Reviewer in Political
Law, p. 199-200.)
ARTICLE IX – THE CONSTITUTIONAL
COMMISSIONS
Sec. 1. Constitutional Commissions
Independent Constitutional Commissions:
1. Civil Service Commission (CSC)
2. Commission on Elections (COMELEC)
3. Commission on Audit (COA)
Safeguards that guarantee Independence of
Commissions:
1. They are constitutionally created; may not be
abolished by statute;
2. Each
is
expressly
described
as
“independent”
3. Each is conferred certain powers and
functions which cannot be reduced by
statute;
4. The Chairmen and members cannot be
removed except by impeachment;
5. The chairmen and the members are given
fairly a long term of office of 7 years;
6. The Chairmen and members may not be reappointed or appointed in an acting capacity
(Brillantes v. Yorac, 192 SCRA 358);
7. The salaries of the Chairmen and members
are relatively high and may not be decreased
during continuance in office;
8. The Commissions enjoy fiscal autonomy;
9. Each Commission may promulgate its own
procedural rules, provided they do not
diminish, increase or modify substantive
rights (though subject to disapproval by the
SC.);
10. The Chairmen and members are subject to
certain
disqualifications
calculated
to
strengthen their integrity;
11. The Commissions may appoint their own
officials and employees in accordance with
Civil Service Law (Nachura, Reviewer in
Political Law, p. 209)
Sec. 2. DISQUALIFICATIONS
Disqualifications:
Members cannot, during their tenure:
1. Hold any other office or employment;
2. Engage in the practice of any profession;\
3. Engage in the active management or control
of any business, which, in any way, may be
affected by the functions of their office; and
4. Be financially interested, directly or indirectly,
in any contract, franchise, privilege granted
by the government, any of its subdivisions,
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agencies,
instrumentalities,
GOCC's and their subsidiaries.
including
NOTE: The Ombudsman and his deputies are
subject to the same qualifications.
Appeals:
1. Decisions,
orders
or
rulings
of
the
COMELEC/COA may be brought on certiorari to
the SC under Rule 65.
2. Decisions, orders or ruling of the CSC should be
appealed to the CA under Rule 43.
Sec. 3. SALARIES
1. Salaries are fixed by law and shall not be
decreased during their TENURE.
2. Decreases in salaries only affect those
members appointed AFTER increase.
3. Incumbent members do not lose any salary.
4. Increases take effect IMMEDIATELY.
Sec. 6. RULES OF PROCEDURE
Procedures:
1. Rules: The Commissions may promulgate
their own rules EN BANC.
2. Limitation: The rules shall not:
a. Diminish,
b. Increase, or
c. Modify substantive rights.
3. Power of SC
a. The SC may not, under Art. VIII Sec.
5(5), exercise the power to disapprove
rules of "special courts and quasi-judicial
bodies."
b. In proceedings before the Commissions,
the rules of the Commission prevail.
c. In proceedings before a court, the Rules
of Court prevail.
d. The SC may, however, in appropriate
cases, exercise JUDICIAL REVIEW
Sec. 7. DECISION MAKING/APPEAL
Decision-Making:
1. Each commission shall decide matter or cases by
a majority vote of all the members within 60 days
from submission.
a. COMELEC may sit en banc or in 2 divisions.
b. Election cases, including pre-proclamation
controversies are decided in division, with
motions for reconsideration filed to the
COMELEC en banc.
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c. The SC has areheld
that
majority decision
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decided by a division of the COMELEC is a
valid decision.
2. As COLLEGIAL BODIES, each commission must
act as one, and no one member can decide a
case for the entire commission.
(i.e.
The
Chairman cannot ratify a decision which would
otherwise have been void).
Enforcement:
It has been held that the CSC can issue a writ of
execution to enforce judgments, which are final.
THE CIVIL SERVICE COMMISSION
Sec.1. COMPOSITION/QUALIFICATIONS/TERM
Composition:
1. Chairman
2. Commissioners – 2 commissioners
Qualifications:
1. Natural-born citizens of the Philippines;
2. At least 35 years old at the time of their
appointments;
3. With
proven
capacity
for
public
administration; and
4. NOT candidates for any elective position in
the elections immediately preceding their
appointment.
5. Appointees by the President to the CSC
need Commission on Appointments (CA)
confirmation
Term:
st
1. 7 years (except for the 1 appointees where
the Chairman has 7 years, 1 Commissioner
has 5 years while another has 3 years)
2. Limitation:
single
term
only,
no
reappointment
3. Appointment to vacancy: only for unexpired
term of predecessor
4. No temporary appointments, or appointments
in acting capacity.
Sec. 2. Scope:
The Civil Service embraces all:
1. branches,
2. subdivisions,
3. instrumentalities,
4. agencies of the government,
5. including GOCCs with original charters.
a. "With Original Charter" means that the
GOCC was created by special law/by
Congress
b. If incorporated under the Corporation
Code, it does not fall within the Civil
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Service, and is not subject to the CSC
jurisdiction.
c. If previously government-controlled, but
is later privatized, it ceases to fall under
CSC.
d. Jurisdiction is determined as of the time
of filing the complaint.
Appointments to civil service shall be:
A. Competitive positions
According to merit and fitness to be determined by
competitive examinations, as far as practicable
except to positions which are policy-determining,
primarily confidential, or highly technical.
B. Non-competitive positions
1. No need for competitive examinations.
2. 3 kinds
a. Policy-determining - formulate a method
of action for the government
b. Primarily confidential - more than
ordinary confidence; close intimacy
insures freedom of intercourse without
betrayals of personal trust.
c. Highly technical - requires technical skill
to a superior degree.
C. The TEST to determine whether non-competitive
is the nature of the responsibilities, NOT the
administrative or legislative description given to it.
D. Both types of positions are entitled to security
of tenure. They only differ in the MANNER in
which they are filled.
E. Who may be appointed:
1. RULE: Whoever fulfills all the qualifications
prescribed by law for a particular position
may be appointed therein.
2. The CSC cannot disapprove an appointment
just because another person is better
qualified, as long as the appointee is himself
qualified.
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3. The CSC CANNOT
add
qualifications other
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than those provided by law.
F. Next-In-Rank Rule
While a person next in rank is entitled to preferential
consideration, it does not follow that only he, and no
one else, can be appointed. Such person has no
vested right to the position and the appointing
authority is not bound to appoint the person next in
rank.
Tenure (Classification of Positions)
Career Service
Non-Career Service
1. Entrance based 1. Entrance on bases
on merit and fitness OTHER than usual
to be determined as tests of merit and
far as practicable by fitness.
competitive
examinations
or
based on highly
technical
qualifications.
2. Entitled to security 2. Tenure limited to:
of tenure
a) Period specified by
law,
b) Coterminous with
the
appointing
authority or subject
to his pleasure, or
c) Limited
to
the
duration
of
a
particular
project
for which purpose
the
employment
was made.
3. With opportunity
for advancement to
higher
career
positions.
Security of Tenure:
1. Officers or employees of the Civil Service
cannot be removed or suspended EXCEPT
for cause provided by law. It guarantees both
procedural and substantive due process.
2. For "LEGAL CAUSE" - Cause is:
a. related to and affects the administration
of office, and
b. must be substantial (directly affects the
rights & interests of the public)
3. Security of tenure for Non-competitive
positions
a. Primarily
confidential officers
and
employees hold office only for so long as
confidence in them remains.
b. If there is GENUINE loss of confidence,
there is no removal, but merely the
expiration of the term of office
c. Non-career
service
officers
and
employees do not enjoy security of
tenure.
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d. Political appointees in the foreign service
possess tenure coterminous with that of
the appointing authority or subject to his
pleasure.
4. One must be VALIDLY APPOINTED to enjoy
security of tenure. Thus, one who is not
appointed by the proper appointing authority
does not acquire security of tenure.
Abolition of Office
To be valid, abolition must be made:
1. In good faith; (good faith is presumed)
2. Not for political or personal reasons; and
3. Not in violation of law.
Temporary employees are covered by the
following rules:
1. Not protected by security of tenure - can be
removed anytime even without cause
2. If they are separated, this is considered an
expiration of his term.
BUT: They can only be removed by
the one who appointed them
3. Entitled only to such protection as may be
provided by law.
No officer or employee in the Civil Service shall
engage in any electioneering or in partisan
political activity
1. Cannot solicit votes in favor of a particular
candidate.
2. Cannot give campaign contributions or
distribute campaign materials.
3. BUT: Allowed to express views on political
issues, and to mention the names of the
candidates whom he supports.
4. Prohibition does not apply to department
secretaries
Right to organize
The right to organize does NOT include the right to
strike
Sec. 6-7. DISQUALIFICATIONS
Disqualifications:
1. Losing candidatesQuickTime™
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a. Cannot beareappointed
any office in the
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government
or
GOCC's
or
their
subsidiaries
b. Period of disqualification: (1) year after
such election.
2. Elective officials
a. Not eligible for appointment or designation
in ANY CAPACITY to ANY PUBLIC
OFFICE or position during their tenure.
b. EXCEPTION:
May hold ex officio
positions.
c. Examples:
d. The Vice President may be appointed as
a Cabinet member
e. A Congressman may sit in the Judicial
and Bar Council
f. To be eligible to hold any other office, the
elected official must first resign from his
office
g. Even Congress cannot, by law, authorize
the appointment of an elective official.
3. Appointive officials
a. Cannot hold any other office or
employment in the government, any
subdivision, agency, instrumentality,
including GOCC's and their subsidiaries.
b. EXCEPTION: Unless otherwise allowed
by law, or by the primary functions of his
position.
This exception DOES NOT APPLY to
Cabinet members, and those officers
mentioned in Art. VII, Sec. 13. They are
governed by the stricter prohibitions
contained therein.
Sec. 8. COMPENSATION
1. Prohibitions: apply to elected or appointed
officers and employees cannot receive:
a. Additional compensation: an extra
reward given for the same office i.e.
bonus
b. Double compensation: when an officer is
given 2 sets of compensation for 2
different offices held concurrently by 1
officer
c. Indirect Compensation
2. EXCEPTION: Unless specifically authorized
by law
a. "SPECIFICALLY AUTHORIZED" means
a specific authority particularly directed to
the officer or employee concerned.
b. BUT: per diems and allowances given as
REIMBURSEMENT
for
expenses
actually incurred are not prohibited
3. Cannot accept any present, emolument,
office, title of any kind from foreign
governments UNLESS with the consent of
Congress.
4. Pensions and gratuities are NOT considered
as
additional,
double,
or
indirect
compensation.
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THE COMMISSION ON ELECTIONS
i.
ii.
iii.
Regional,
Provincial, and
City officials
Sec.1.COMPOSITION/QUALIFICATIONS/TERM
Composition: (7)
1. 1Chairman and
2. 6 Commissioners
Qualifications:
1. Natural-born citizens of the Philippines;
2. At least 35 years old at the time of
appointment
3. Holders of college degrees; and
4. Not candidates for any elective position in the
immediately preceding elections.
5. Majority of the Commission, including the
Chairman must be:
a. Members of the Philippines Bar
b. Engaged in the practice of law for at least
10 years: “any activity in or out of court,
which requires the application of law,
legal procedure, knowledge, training and
experience.”
6. Appointments subject to CA approval
Term:
st
1. 7 years (1 appointed: Chairman -7 yrs; 3
Members - 7 yrs; 2 Members - 5 yrs; 1
Member - 3 yrs)
2. LIMITATION:
Single term only: no
reappointment allowed
3. Appointment to a vacancy: only for unexpired
portion of predecessor’s term
4. No temporary appointments, or appointments
in acting capacity
a. Thus, the President cannot designate an
incumbent commissioner as acting
Chairman.
b. The choice of temporary chairman falls
under the COMELEC’s discretion.
Sec. 2. POWERS AND FUNCTIONS
Powers:
1. Enforce and administer all laws and
regulations relative
to the
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and recall.
Ex: COMELEC can enjoin construction of public
works within 45 days of an election.
2. Exercise:
a. Exclusive original jurisdiction over all
contests relating to the elections, returns,
and qualifications of all elective
b. Appellate jurisdiction over all contests
involving:
i. Elective municipal officials decided by
trial courts of general jurisdiction
ii. Elective barangay officials decided by
trial courts of limited jurisdiction.
c. Decisions, final orders, or rulings of the
Commission on election contests involving
elective municipal and barangay offices
shall be final, executory, and not
appealable. Exception: Appealable to the
SC on questions of law.
d. Contempt powers
i. COMELEC can exercise this power
only in relation to its adjudicatory or
quasi-judicial functions. It CANNOT
exercise this in connection with its
purely
executive
or
ministerial
functions.
ii. If it is a pre-proclamation controversy,
the COMELEC exercises quasijudicial/administrative powers.
iii. Its jurisdiction over ‘contests’ (after
proclamation), is in exercise of its
judicial functions.
e. The COMELEC may issue writs of
certiorari, prohibition and mandamus in
exercise of its appellate jurisdiction. This
is not an inherent power.
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.
NOTE: Questions involving the right to vote
fall within the jurisdiction of the ordinary
courts.
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.
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a. This power is NOT limited to the election
period.
b. Applies to both criminal and administrative
cases.
5. Registration
of
political
parties,
organizations, or coalitions/accreditation of
citizens’ arms of the Commission on
Elections.
a. The political parties etc. must present their
platform or program of government.
b. There should be sufficient publication
c. Groups which cannot be registered:
i. Religious denominations/sects But not
applicable to political parties with
religious affiliation or which derive their
principles from religious beliefs
ii. Groups which seek to achieve their
goals through violence or unlawful
means
iii. Groups which refuse to uphold and
adhere to the Constitution
iv. Groups which are supported by any
foreign government such as financial
contributions related to elections. If
accepted, it is 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 of
exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of
election laws, including acts or omissions
constituting elections frauds, offenses and
malpractices.
a. COMELEC has exclusive jurisdiction to
investigate and prosecute cases for
violations of election laws.
b. COMELEC can deputize prosecutors for
this purpose.
The actions of the
prosecutors are the actions of the
COMELEC
c. Preliminary investigation conducted by
COMELEC is QuickTime™
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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.
Sec. 3.
MAKING
RULES OF PROCEDURE/ DECISION-
Rules of Procedure
1. COMELEC can sit en banc or in two divisions
2. It has the power to promulgate its own rules
of procedure in order to expedite disposition
of election cases, including pre-election
controversies.
Decision-Making
1. Election cases should be heard and decided
in division.
2. However, motions for reconsideration of
decisions should be decided by COMELEC
en banc.
a. ”Decisions”
mean
resolutions
on
substantive issues.
b. If a division dismisses a case for failure
of counsel to appear, the Motion for
Reconsideration here may be heard by
the division.
c. EXCEPTION: COMELEC en banc may
directly assume jurisdiction over a
petition to correct manifest errors in the
tallying of results by Board of
Canvassers.
NOTE: In Balajonda v. COMELEC (GR No. 166032),
the
COMELEC
CAN
ORDER
IMMEDIATE
EXECUTION OF ITS OWN JUDGMENTS.
Sec. 4.
SUPERVISION/REGULATION OF
FRANCHISES / PERMITS / GRANTS / SPECIAL
PRIVILEGES / CONCESSIONS
Regulation of franchises
1. What can COMELEC supervise or regulate
a. The enjoyment or utilization of all
franchises or permits for the operation of
transportation and other public utilities,
media of communication or information.
b. Grants, special privileges or concessions
granted by the Government or any
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subdivision, agency or instrumentality
thereof, including any GOCC or its
subsidiary
2.
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.
When can COMELEC exercise this power
a. During the election period
i. Under Article XI, Section 9, the
election period commences 90 days
before the day of the election and
ends 30 days thereafter.
ii. In special cases, COMELEC can fix a
period.
Prohibition on block-voting
1. General rule: Block voting NOT allowed
2. EXCEPTION: those registered under the
party-list system
Sec. 8. PARTY LIST SYSTEM
b. Applies not just to elections but also to
plebiscites and referenda.
3. Plebiscite: Submission of constitutional
amendments or important legislative
measures to the people for ratification
4. Referendum: power of the electorate to
approve or reject legislation through an
election called for that purpose.
No Right to be represented in Various Boards
Political parties, organizations, or coalitions
registered under the party-list system shall NOT be
represented in the following:
1. Voters’ registrations boards,
2. Boards of election inspectors,
3. Boards of canvassers, or
4. Other similar bodies.
COMELEC and the MEDIA
1. COMELEC cannot compel print media to
donate free space to the COMELEC. It may,
however, compel it to provide space after
paying just compensation.
2. Power of COMELEC is over franchises and
permits, NOT individuals. For example,
COMELEC may not regulate media
practitioners, for this would violate the
freedom of expression.
Poll Watchers
Political parties, etc. are entitled to appoint poll
watchers in accordance with law.
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
Definition of “POLITICAL PARTY”
Organized group of persons pursuing the same
political ideals in a government and includes its
branches, and divisions.
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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.
Sec. 10. Bona fide candidates for any public office
shall be free from any form of harassment and
discrimination.
1. This section does not give candidates
immunity from suit.
2. Discrimination includes unequal treatment in
the availment of media facilities.
Sec. 11. FUNDING
How provided:
1. Funds certified by the COMELEC as
necessary to defray the expenses for holding
regular and special elections, plebiscites,
initiative, referenda and recalls, shall
provided in the regular or special
appropriations.
2. Funds should be certified by the COMELEC
as necessary.
Release of funds
Once approved, funds should be released
automatically upon certification by the Chairman of
COMELEC.
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THE COMMISSION ON AUDIT
Section1.COMPOSITION/QUALIFICATIONS
Composition:
1. Chairman, and
2. Commissioners (2).
Qualifications:
1. Natural-born citizens of the Philippines
2. At least 35 years old at the time of their
appointment;
3. Either:
a. CPA’s with at least 10 years auditing
experience; or
b. Members of Phil. Bar with 10 years of
practice.
4. Members cannot all belong to the same
profession.
5. Subject to confirmation of the CA.
6. Must not have been candidates for any
elective position in the elections immediately
preceding their appointment.
Term:
st
1. 7 years (1 appointees) Chairman-7yrs;
Commissioner1-5yrs; Commissioner2-3 yrs)
2. LIMITATION: Single terms only; no reappointment allowed
3. Appointments to any vacancy shall only be
for the unexpired portion of predecessor’s
term
Sec. 2. POWERS
1. Examine, audit, and settle accounts
pertaining to:
a. Revenue and receipts of funds or
property; or
b. Expenditures and uses of funds or
property
Owned or held in trust by, or pertain to:
1. The Government;
2. Any of its subdivisions, agencies or
instrumentalities;
3. Including GOCC’s
with
charters.
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2. Conduct post-audit with respect to the
following:
a. Constitutional bodies, commissions, and
offices granted fiscal autonomy;
b. Autonomous
state
colleges
and
universities;
c.
GOCC’s
and
their
subsidiaries
incorporated under the Corporation
Code.
d. Non-governmental entities receiving
subsidies or equity, directly or indirectly,
from or through the government, which
are required by law of the granting of
institution to submit to such audit.
3. If COA finds internal control system of
audited agencies as inadequate, COA may
adopt measures, including temporary or
special pre-audit, as may be necessary.
4. Keep the general accounts of the
government, preserving vouchers and other
supporting papers pertaining thereto.
5. Exclusive authority to define the scope of
COA’s audit and examination and to
establish the techniques and methods
required therefor.
6. Promulgate accounting and auditing rules
and regulations.
a. Including those for the prevention or
disallowance of irregular, unnecessary,
excessive,
extravagant,
or
unconscionable expenditures or uses of
government funds and properties.
b. Failure to comply with these rules can be
a ground for disapproving the payment of
a proposed expenditure.
NOTE:
1. The functions of COA can be classified as:
a. Examine and audit all forms of
government revenues;
b. Examine and audit all forms of gov’t
expenditures
c. Settle gov’t accounts
d. Promulgate accounting and auditing
rules (including those for the prevention
of irregular expenditures).
e. To decide administrative cases involving
expenditures of public funds.
2. COA
can
settle
only
LIQUIDATED
ACCOUNTS or those accounts, which may
be adjusted simply by arithmetic process.
3. COA 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.
4. COA does not have the power to fix the
amount of an unfixed or undetermined debt.
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5. Where the following requirements are
complied with, it becomes the ministerial duty
of the COA to approve and pass in audit
vouchers for payment:
a. There is a law appropriating funds for a
particular purpose;
b. There is a contract, made by the proper
officer, entered into in conformity with the
above-mentioned law;
c. The goods or services covered by such
contract have been delivered or rendered
in pursuance to such contract, as
attested by the proper officer; and
d. Payment has been authorized by officials
of the corresponding department or
bureau.
6. Prosecutors may still review accounts
already settled and approved by COA for the
purpose of determining possible criminal
liability. This is because COA’s interest in
such accounts is merely administrative.
7. COA has the power to determine the
meaning of ‘public bidding’ and what
constitutes failure when regulations require
public bidding for the sale of government
property.
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.
ARTICLE X: LOCAL GOVERNMENT
Sec.1.TERRITORIAL/POLITICAL
SUBDIVISIONS
OF THE REPUBLIC OF THE PHILIPPINES ARE
THE:
Composition:
1. Provinces
2. Cities;
3. Municipalities; and
4. Barangays
There shall be Autonomous regions in:
1. Muslim Mindanao, and
2. Cordilleras [At QuickTime™
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NOTE:
1. A third autonomous region would require a
constitutional amendment.
2. These political subdivisions, created by the
Constitution
can
be
replaced
by
AMENDMENT, and not by law.
3. While Congress can abolish or eradicate
individual units, it cannot abolish an entire
class of LGUs
Sec. 2. Local Autonomy
1. All political subdivisions shall enjoy local
autonomy
2. This does not mean that the LGUs are
completely free from the central government.
a. Judiciary may still pass on LGU actions
b. President may exercise disciplinary
power over LGU officials.
SEC. 3. 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
mechanisms 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.
Sec.4. PRESIDENTIAL SUPERVISION OF LGUS
Supervision of President
1. The
President
exercises
GENERAL
supervision over all LGUs
2. The President exercises DIRECT supervision
over
a. Provinces
b. Autonomous regions and
c. Independent cities.
3. This power is limited to ensuring that lower
officers
exercise
their
functions
in
accordance with law.
4. The President cannot substitute his judgment
for that of an LGU official unless the latter is
acting contrary to law.
5. The President may, however, impose
administrative sanctions against LGU
officials, such as suspension for 120 days,
and may even remove them from their posts,
in accordance with law.
6. Provinces exercise DIRECT supervision over
component cities and municipalities.
7. Cities and municipalities exercise DIRECT
supervision over component barangays.
Sec. 5. EACH LOCAL GOVERNMENT SHALL
HAVE THE POWER TO CREATE OWN SOURCES
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OF REVENUE/LEVY TAXES, FEES AND CHARGES
ETC.
Limitations on Power
1. It is subject to such guidelines and limitations
as Congress may provide.
See Local
Government Code for examples.
2. The guidelines set by Congress should be
consistent with the basic policy of local
autonomy.
Accrual of taxes, fees, charges
The taxes, fees and charges shall accrue exclusively
to the local governments.
Sec.6. LGUs SHALL HAVE A JUST SHARE IN
NATIONAL TAXES, AS DETERMINED BY LAW,
WHICH SHALL BE AUTOMATICALLY RELEASED
TO THEM.
Internal Revenue Allotment (IRA)
1. Share of LGUs in national taxes is limited to
the internal revenue taxes.
2. This is released, without need of any further
action, directly to the provincial, city,
municipal or barangay treasurer. Release is
made on a quarterly basis within 5 days after
the end of each quarter.
3. This should not be subject to any lien or
holdback that may be imposed by the
national government for whatever purpose.
4. Each LGU should appropriate in its annual
budget at least 20% of its annual IRA for
development or infrastructure projects in
accordance with local development plan
5. Adjustments in IRA
a. Ground: Unmanageable public section
deficit
b. President can make the necessary
adjustments in the IRA upon the
recommendation of the following:
i. Department of Finance Secretary
ii. DILG Secretary
iii. DBM Secretary
6. IRA is included as part of the income of an
LGU for purposes
of compliance
with the
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political subdivision to the next. (Alvarez v.
Guingona)
Sec. 7. SHARE OF LGUS IN NATIONAL WEALTH
Share of LGUs in national wealth
1. LGUs are 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.
2. This includes sharing the same with the
inhabitants by way of direct benefits.
Under the LGC: CODE: MR.-FOS
LGUs have a share of 40% of the gross collection
derived by the national government from the
preceding fiscal year from
1. Mining taxes
2. Royalties
3. Forestry and fishery charges
4. Other taxes, fees and charges
5. Share in any co-production, joint venture or
production sharing agreement in the
utilization and development of the national
wealth w/in their territorial jurisdiction
SEC. 8. TERM OF OFFICE
Term of Office
Elective local officials, now including barangay
officials, have a term of 3 years.
Limitations:
1. No elective official shall serve for more than
3 consecutive terms
2. Voluntary renunciation of 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.
SEC. 9. SECTORAL REPRESENTATION IN LGUS
Legislative bodies of the local governments shall
have Sectoral Representation (under the LGC) as
may be provided by law
There should be representatives from:
1. The women’s sector
2. The workers
3. Third sector (can choose from any of the
following)
a. Urban poor
b. Indigenous cultural communities
c. Disabled persons
d. Any other sector as may be determined
by the sanggunian
SEC. 10. Creation, abolition and division of LGU’s
1. Requisites
a. Compliance with the requirements of the
Local Government Code; and
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b. Approved by a majority of the votes cast
in a plebiscite held in the political units
DIRECTLY affected.
2. Thus, if a province is to be divided into 2
separate provinces, plebiscite will include
voters of the ENTIRE province, and not just
the area to comprise the new province.
3. LGC requirements relate to matters such as
POPULATION, REVENUE, and AREA
requirements.
Sec. 11. Special Metropolitan political subdivisions
Creation:
1. Congress may create special metropolitan
political subdivisions by law.
2. It is subject to a plebiscite
Jurisdiction of Metropolitan authority
It is limited to basic services requiring coordination.
Basic Autonomy of Component Cities and
Municipalities
The component cities and municipalities retain their
basic autonomy.
They shall be entitled to their own local executive and
legislative assemblies.
SEC. 12. CITIES
Classification of Cities:
1. Highly urbanized (as determined by law)
2. Component cities (cities still under provincial
control); and
3. Independent component cities (non-highly
urbanized cities whose voters are prohibited
by the city charter from voting in provincial
elections)
LGC, Section 33
Consolidation and coordination may be done through
appropriate ordinance wherein a PUBLIC HEARING
should be conducted and the approval of the
sanggunian obtained.
An LGU can:
1. Contribute funds, real estate, equipment and
other kinds of property
2. Appoint/assign personnel under such terms
and conditions as may be agreed upon by
the
participating
LGUs
through
MEMORANDA OF AGREEMENT.
Sec. 14. REGIONAL DEVELOPMENT COUNCILS
Who can provide for RDC
The President shall provide for RDC or other similar
bodies composed of:
Composition
1. Local government officials
2. Regional heads of departments and other
government offices
3. Representatives of NGOS within the regions
For Purpose of:
1. Administrative decentralization
2. To strengthen local autonomy
3. To accelerate the economic and social
growth and development of the units in the
region
Sec. 15. AUTONOMOUS REGIONS
Where:
Muslim Mindanao and the Cordillera region
Independence from the Province
1. Highly urbanized cities and independent
component cities are independent of the
province.
2. Component cities whose charter contains no
such prohibition are still under the control of
the province and its voters may still vote for
elective provincial QuickTime™
officials.and a
Factors:
1. Historical heritage
2. Cultural heritage
3. Economic and social structures,
4. Other relevant characteristics within:
5. The framework of the constitution
6. National sovereignty
7. Territorial integrity.
Sec. 13. Coordination among LGUS
Creation:
Provided BY LAW.
EFFECTIVITY of such creation occurs only when it is
approved by a majority of the votes cast in a
plebiscite held among the constituent units.
Only those Provinces, Cities, and Geographical
Areas voting favorably in such plebiscite shall form
part of the autonomous region.
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Consolidation and Coordination of Efforts,
Services and Resources
It is optional on the part of LGUs as shown by the use
of the word “may”.
It can be done for purposes commonly beneficial to
them in accordance with the law.
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If only 1 province approved the law, NO
AUTONOMOUS REGION is created, since the
constitution requires more than one province to
constitute one (like what happened in the Cordillera
plebiscite)
The question of which LGUs shall constitute an
autonomous region is one which is exclusively for
Congress to decide.
Defense and Security
It shall be the responsibility
government.
ARTICLE XI:
OFFICERS
of
the
national
ACCOUNTABILITY
OF
PUBLIC
Sec. 1: PUBLIC OFFICE AS A PUBLIC TRUST
Sec. 16.
GENERAL SUPERVISION
AUTONOMOUS REGIONS
By Whom:
Purpose:
executed.
OVER
The President
To ensure that the laws are faithfully
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.
Sec. 2: IMPEACHMENT/REMOVAL FROM OFFICE
SEC. 17. All powers, functions and responsibilities
not granted by this Constitution or by law to the
autonomous region shall be vested in the National
Government.
Examples:
1) Foreign relations,
2) National defense and Security
3) Monetary Affairs
Sec. 20. LEGISLATIVE POWERS
The Organic Act of Autonomous Region shall
provide for legislative powers over:
1. Administrative organization;
2. Creation of sources of revenues;
3. Ancestral domain and natural resources
4. Personal, family and property relations
5. Regional, urban, and rural planning
development;
6. Economic, social, and tourism development;
7. Educational policies;
8. 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.
Limitations:
1. Subject to the provisions of the Constitution
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2. To be exercised
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Sec. 21.
PRESERVATION OF PEACE AND
ORDER/DEFENSE AND SECURITY
Peace and Order
It shall be the responsibility of the local police
agencies.
Impeachment: (as means of removal from office)
1. Who may be impeached:
a. President
b. VP
c. SC Justices
d. Constitutional Commission members
e. Ombudsman
2. Grounds
(CODE: CT-GOBB)
a. Culpable violation of the Constitution
b. treason
c. graft and corruption
d. other high crimes or
e. betrayal of public trust
f. bribery
NOTE: It is an exclusive list. Congress cannot, by
law, add to the list of impeachable offenses.
These officers cannot be charged in court with
offenses that have removal from office as penalty.
BUT AFTER an official has been impeached, he can
be charged with the appropriate offense.
Resignation by an impeachable official does not
place him beyond the reach of impeachment
proceedings; he can still be impeached.
All Other Public Officers and Employees
They may be removed from office as provided by law
BUT: NOT by impeachment
Section 3: PROCEDURE FOR IMPEACHMENT
Exclusive Power of House of Representatives
The House of Representatives has exclusive power
to INITIATE all cases of impeachment.
Procedure:
1. Filling of verified complaint. Can be filed by:
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2.
3.
4.
5.
6.
7.
8.
a. Any member of the House of
Representatives or
b. Any citizen upon a resolution or
endorsement by any Member of the
House or
c. By at least 1/3 of all the Members of the
House of Representatives
Inclusion of complaint in the order of
business with 10 session days
Referral to proper Committee within 3
session days thereafter
Submission of Committee report to the
House together with corresponding resolution
The report should be submitted within 60
days from referral, after hearing, and by a
majority vote of ALL its members.
Calendaring of resolution for consideration by
the House
Should be done within 10 session days from
receipt thereof
Vote of at least 1/3 of all Members of the
House necessary to:
a. Affirm a favorable resolution with the
Articles of Impeachment of the
Committee or
b. To override its contrary resolution
NOTE: If the verified complaint or resolution of
impeachment was filed by at least 1/3 of all the
Members of the House, it shall constitute the Articles
of Impeachment. Trial in the Senate shall proceed.
Trial in the Senate
Senate has the sole power to try and decide all cases
of impeachment.
For this purpose, the Senators shall be under oath or
affirmation.
When the President of the Philippines is on trial, the
CJ of the Supreme Court presides. However, he/she
will not vote.
Judgment of Conviction
This requires the concurrence of 2/3 of all the
Members of the Senate
Effect of the Impeachment
1. Removal from office
of theandofficial
concerned
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2. Disqualification
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Republic of the Philippines
3. Officer still liable to prosecution, trial, and
punishment if the impeachable offense
committed also constitutes a felony or crime.
Sec. 4. SANDIGANBAYAN
Sandiganbayan = the anti-graft court
People v. Sandiganbayan,
February 16, 2005
451
SCRA
413,
Ratio:
The fact that legislature. in mandating the inclusion of
“ presidents, directors or trustees, or managers of
government-owned and controlled corporations”
within the jurisdiction of the Sandiganbayan, has
consistently refrained form making any distinction
with respect to the manner of their creation clearly
reveals its intention to include such officials of
GOCCs with original charters and those organized
and incorporated under the Corporation Code within
the jurisdiction of the Sandiganbayan whenever they
are involved in graft and corruption.
Sections 5-6,
OMBUDSMAN
8-14:
OFFICE
OF
THE
Composition:
1. Ombudsman/Tanodbayan
2. Overall deputy - at least one Deputy each for
Luzon, Visayas and Mindanao. Deputy for
military establishment may be appointed
Qualifications: (Ombudsman and his deputies)
1. Natural born citizen of the Philippines
2. At least 40 years old at time of appointment
3. Of recognized probity and independence
4. Member of the Philippine bar
5. Must not have been candidate for any
elective office in the immediately preceding
election
6. For Ombudsman: He must have been for ten
years or more
a. A judge or
b. Engaged in the practice of law in the
Philippines
Disqualifications/Prohibitions (under Article IX,
Section 2)
1. Cannot hold any other office or employment
during his tenure
2. Cannot engage in the practice of any
profession or in the active management or
control of any business which may be
affected by the functions of his office
3. Cannot be financially interested, directly or
indirectly, in any contract with or in any
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franchise or privilege granted by the
Government, any of its subdivisions,
agencies or instrumentalities, including
GOCCs or their subsidiaries
Appointment:
A. Of Ombudsman and deputies
1. By the president from a list of at least 6
nominees prepared by the Judicial and Bar
Council. Vacancies will be filled from a list of
3 nominees
2. Appointments do NOT require confirmation
3. All vacancies shall be filled within 3 months
after they occur.
B. Of other officials and employees of the Office
of the Ombudsman
1. By the Ombudsman
2. In accordance with Civil Service Law
Term: (Ombudsman and deputies)
1. 7 years with reappointment
2. They are NOT qualified to run for any office
in the election immediately succeeding their
cessation from office
Rank/Salaries:
1. The Ombudsman has the rank of Chairman
of a Constitutional Commission
2. The Members have the rank of members of a
Constitutional Commission
3. Their salaries cannot be decreased during
their term of office.
Powers, Functions and Duties of the Office of the
Ombudsman
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.
a. Such may be delegated.
b. The power to investigate includes the
power to impose preventive suspension.
But, this is not a penalty.
c. “INVESTIGATE”
does
not
mean
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d. The complaint need not be drawn up in
the usual form.
e. The “ILLEGAL” act or omission need not
be in connection with the duties of the
public officer or employee concerned.
f. ANY illegal act may be investigated by
the Ombudsman. In this regard, the
Ombudsman’s
jurisdiction
is
CONCURRENT with that of the regular
prosecutors.
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
government-owned or controlled corporation
with original charter, to perform and expedite
any act of duty required by law, or to stop,
prevent, and correct any abuse or
impropriety in the performance of duties.
a. The Ombudsman has PERSUASIVE
POWER, and may require that proper
legal steps are taken by the officers
concerned.
b. The public official or employee must be
employed in:
i. The Government
ii. Any
subdivision,
agency,
or
instrumentality thereof; or
iii. GOCC’s with original charters
c. The SC has held that the SP may
prosecute before the Sandiganbayan judges
accused of graft and corruption, even if they
are under the Supreme Court.
3. Direct the officer concerned to take the
appropriate action against a public official or
employee at fault, and recommend his
removal,
suspension,
demotion,
fine,
censure, or prosecution, and ensure
compliance therewith.
a. The Ombudsman does NOT himself
prosecute cases against public officers or
employees.
b. Final say to prosecute still rests in the
executive department.
c. The Ombudsman or Tanodbayan may
use mandamus to compel the fiscal to
prosecute.
3. 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 of properties, and report any
irregularity to COA for appropriate action.
4. Request any government agency for
assistance and information necessary in the
discharge of its responsibilities, and to
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examine, if necessary, pertinent records and
documents.
5. Public matters covered by its investigation
when circumstances so warrant and with due
process
6. Determine the cause 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
7. Promulgate its rules of procedure and
exercise such other powers or perform such
functions or duties as may be provided by
law
NOTE: The Office of the Ombudsman also has the
duty to act promptly on complaints filed in any form or
manner against public officials or employees of the
government, or any subdivision, agency or
instrumentality
including
GOCCs
and
their
subsidiaries. In appropriate cases, it should notify
the complainants of the action taken and the result
thereof.
Section 15: RECOVERY OF ILL-GOTTEN WEALTH
Prescription, Laches, Estoppel
The right of the State to recover properties unlawfully
acquired by public officials and employees from them
or from their nominees or transferees shall NOT be
barred by prescription, laches or estoppel.
Their right to prosecute criminally these officials and
employees may prescribe.
Section
16:
PROHIBITION
FINANCIAL TRANSACTIONS
ON
CERTAIN
Coverage:
This prohibition applies to:
1. President
2. Vice-President
3. Members of the Cabinet
4. Members of Congress
5. Members of Supreme Court
6. Members of Constitutional Commissions
Ombudsman
7. Any firm or entity in which they have
controlling interest
When prohibition applies: during their TENURE.
Fiscal Autonomy:
The Office of the Ombudsman enjoys fiscal
autonomy.
Its approved annual appropriations
should be automatically and regularly released.
Section 7:
PROCECUTOR
OFFICE
OF
THE
SPECIAL
Under the 1987 Constitution, the existing
Tanodbayan became the Office of the Special
Prosecutor
Powers
It will continue to function and exercise its powers as
now or hereafter may be provided by law
Exception: Powers conferred on the Office of the
Ombudsman
NOTE: The Office of the Special Prosecutor is
subordinate to and acts QuickTime™
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orders of the
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NOTE: According to Jack, the SC was wrong
because the ConCom intended that the SP was to
prosecute anti-graft cases.
Scope of prohibition:
1. The above mentioned officials cannot obtain,
directly or indirectly for BUSINESS
PURPOSES:
a. Loans
b. Guarantees
c. Other forms of financial accommodation
from:
i. Government owned or controlled
banks; or
ii. Government owned or controlled
financial institutions.
2. If the loan, etc, is NOT for business purpose,
e.g. a housing loan, the prohibition does not
apply.
Section 17: Statements of assets, liabilities and net
worth
When submitted:
Public officer and employee shall submit a
declaration under oath of his assets, liabilities and net
worth upon assumption of office and as often as
required under the law.
When declaration shall be disclosed to the
public:
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These declarations shall be disclosed to the public in
a manner provided by law in the case of:
1. President
2. Vice-President
3. Members of the Cabinet
4. Members of Congress
5. Justices of the Supreme Court
6. Members of Constitutional Commissions
7. Other constitutional offices
8. Officers of the armed forces with general or
flag rank
Section 18: Allegiance of public officers and
employees
Allegiance to the State and to the Constitution
Change in Citizenship/Immigrant Status
1. Incumbent public officers and employees
who seek either change in his citizenship; or
to acquire immigrant status in another
country shall be dealt with by law.
2. If Philippine citizenship is one of the
qualifications to the office, the loss of such
citizenship means the loss of the office by the
incumbent.
3. The Election Code provides the rules with
respect to non-incumbents, i.e. persons
running for elective offices.
4. The Code provides that permanent residents
of or immigrant to a foreign country cannot
file certificates of candidacy unless they
expressly waive their status as such
NOTE: This renunciation must be some other than,
and prior to, the filling of the certificate of candidacy.
Re: Report on the On-the-Spot Judicial Audit
Conducted in the RTC Branches 45 & 53, Bacolod
City*, 467 SCRA 20, August 16, 2005
Ratio:
A judge’s high case load, his being assigned in other
salas with also heavy case load, not to mention the
fact that he has to traverse long distance by public
utility buss and has to attend to some other additional
assignments could constitute sufficient justification for
his non-compliance with QuickTime™
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Constitution.
Chan v. Lantion*, 468 SCRA 37, August 25, 2005
Ratio:
The transfer of the branch clerk of court to the office
of the Provincial Prosecutor or the difficulty
encountered by the legal researcher in studying
some material points, heavy work load, and other
circumstances allegedly beyond her control does not
absolve a judge from liability for failure to decide a
case within the reglementary period.
ARTICLE XII
PATRIMONY
–
NATIONAL
ECONOMY
AND
SEC. 1. GOALS OF THE NATIONAL ECONOMY
Three-fold goal:
2. More equitable distribution of opportunities,
income and wealth;
3. Sustained increase in the amount of goods
and services produced by the nation for the
benefit of the people; and
4. Expanding productivity, as the key to raising
the quality of life for all.
The State shall promote industrialization and full
employment
1. It should be based on sound agricultural
development and agrarian reform
2. It should be through industries that make full
and efficient use of human and natural
resources.
Industries should also be
competitive in both domestic and foreign
markets.
Protection of Filipino enterprises
The State shall protect Filipino enterprises
against unfair foreign competition and trade
practices.
Role of Private Enterprises
Private
enterprises,
including
corporations,
cooperatives, and similar collective organizations,
shall be encouraged to broaden the base of their
ownership.
Section 2. REGALIAN DOCTRINE
Distinction between Imperium and Dominium
Imperium: Government authority possessed by the
State which is appropriately embraced in sovereignty.
Dominium:
a. The capacity of the State to own and acquire
property.
b. It refers to lands held by the government in a
proprietary character: can provide for the
exploitation and use of lands and other
natural resources.
Scope:
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The following are owned by the State:
1. Lands of the public domain:
2. Waters
3. Minerals, coals, petroleum, and other mineral
oils;
4. All sources of potential energy;
5. Fisheries;
6. Forests or timber;
7. Wildlife;
8. Flora and fauna; and
9. Other natural resources.
Alienation of Natural Resources
1. General Rule:
All natural
CANNOT be alienated
2. Exception: Agricultural lands
resources
Exploration, Development and Utilization of
Natural Resources
1. Shall be under the full control and
supervision of the State
2. Means
a. The state may DIRECTLY UNDERTAKE
such activities
b. The state may enter into COPRODUCTION, JOINT VENTURE OR
PRODUCTION-SHARING arrangements
with Filipino citizen or Corporation or
association at least 60% of whose capital
is owned by such citizens
3. Limitations:
a. Period: It should not exceed 25 years,
renewable for not more than 25 years
b. Under terms and conditions as may be
provided by law.
5. In
case
of
water
rights/water
supply/fisheries/industrial uses other than the
development of water power
6. The beneficial use may be the measure and
limit of the grant.
Small-scale Utilization of Natural Resources
1. Congress may, by law, authorize small-scale
utilization of natural resources by Filipino
citizens
2. Congress may also authorize cooperative
fish farming with priority
to subsistence
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fishermen and
fishworkers
the rivers,
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lakes, bays and lagoons.
Large-Scale Exploration, Development and
Utilization of Minerals/Petroleum/Other Mineral
Oils
1. The President may enter into agreements
with foreign owned corporations involving
technical or financial assistance for large-
2.
3.
4.
5.
scale exploration etc. of minerals, petroleum,
and other mineral oils. These agreements
should be in accordance with the general
terms and conditions provided by law.
They should be based on the real
contributions to economic growth and
general welfare of the country.
In the agreements, the State should promote
the development and use of local scientific
and technical resources.
The President should notify Congress of
every contract under this provision within 30
days from its execution.
Management and service contracts are not
allowed under this rule.
Protection of Marine Wealth
1. The State shall protect its marine wealth in its
archipelagic waters, territorial sea & EEZ
2. The State shall reserve its use and
enjoyment exclusively to Filipino citizens.
Sec. 3. LANDS OF THE PUBLIC DOMAIN ARE
CLASSIFIED INTO:
1.
2.
3.
4.
Agricultural
Forest/timber
Mineral lands &
National Parks
NOTE:
1. Reclassification of PUBLIC (MINERAL AND
AGRICULTURAL)
lands
exclusive
prerogative of the Executive Department
through the Office of the President, upon
recommendation by the DENR.
But as to FOREST AND NATIONAL
PARKS, it is the Congress which has the
sole power to reclassify.
2. Classification is descriptive of the legal
nature of the land and NOT what it looks like.
Thus, the fact that forest land is denuded
does not mean it is no longer forest land.
Alienable lands of public domain
1. Only agricultural lands are alienable.
2. Agricultural lands may be further classified by
law according to the uses to which they may
be devoted.
Limitations regarding Alienable Lands of the
Public Domain
1. For private corporations or associations
a. They can only hold alienable lands of the
public domain BY LEASE
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b. Period:
Cannot exceed 25 years,
renewable for not more than 25 years
c. Area:
Lease cannot exceed 1,000
hectares
NOTE: A corporation sole is treated
like other private corporations for the purpose
of acquiring public lands.
2. For Filipino citizens
a. Can lease up to 500 hectares
b. Can ACQUIRE not more than 12 hectares
by purchase, homestead or grant
Means by Which Lands of the Public Domain
Become Private Land
1. Acquired from government by purchase or
grant;
2. Uninterrupted possession by the occupant
and his predecessors-in-interest since time
immemorial; and
3. Open, exclusive, and undisputed possession
of ALIENABLE (agricultural) public land for a
period of 30 years.
a. Upon completion of the requisite period,
the land becomes private property ipso jure
without need of any judicial or other
sanction.
b. Possession since time immemorial leads to
the presumption that the land was never
part of public domain.
c. In computing 30 years, start from when
land was converted to alienable land, not
when it was still forest land
d. Presumption is always that land belongs to
the State.
Sec. 4.
Congress shall, as soon as possible,
determine by law, the specific limits of forest lands
and national parks, marking clearly their boundaries
on the ground. Thereafter, such forest lands and
national parks shall be conserved and may not be
increased or diminished, except by law. Congress
shall provide measures to prohibit logging in
endangered forest and Watershed areas for such
period as it may determine.
Sec. 5. ANCESTRAL LANDS
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Protection of Indigenous Cultural Communities
1. The State protects the rights of indigenous
cultural communities to their ancestral lands
a. Subject to Constitutional provisions
b. Subject to national development policies
and programs
2. In determining ownership and extent of
ancestral domain, Congress may use
customary laws on property rights and
relations.
3. “ANCESTRAL DOMAIN”
a. It refers to lands which are considered as
pertaining to a cultural region
b. This includes lands not yet occupied,
such as deep forests.
Section 7. PRIVATE LANDS
General rule
1. Private lands CAN only be transferred or
conveyed to:
a. Filipino citizens
b. Corporations
or
associations
incorporated in the Philippines, at least
60% of whose capital is owned by
Filipino citizens
Exceptions
i. In intestate succession, where an alien
heir of a Filipino is the transferee of
private land.
ii. A natural born citizen of the Philippines
who has lost his Philippine citizenship
may be a transferee of PRIVATE
LAND, subject to limitation provided by
law. Hence, land can be used only for
residential purposes. In this case, he
only acquires derivative title.
iii. Foreign states may acquire land but
only for embassy and staff residence
purposes.
3. Filipino citizenship is only required at the time
the land is acquired. Thus, loss of citizenship
after acquiring the land does not deprive
ownership.
4. Restriction against aliens only applies to
acquisition of ownership. Therefore:
a. Aliens may be lessees or usufructuaries
of private lands
b. Aliens may be mortgagees of land, as
long as they do not obtain possession
thereof and do not bid in the foreclosure
sale.
5. Land tenure is not indispensable to the free
exercise of religious profession and worship.
A religious corporation controlled by nonFilipinos cannot acquire and own land, even
for religious purposes.
Remedies to recover private
disqualified aliens:
1. Escheat proceedings
lands
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2. Action for reversion under the Public Land
Act
3. An action by the former Filipino owner to
recover the land
a. The former in pari delicto principle has
been abandoned
b. Alien still has the title (didn’t pass it on to
one who is qualified)
J.G. Summit Holdings v. Court of Appeals, 450
SCRA 169, January 31, 2005
Ratio:
The prohibition under Section 7, Article XII of the
Constitution applies only to ownership of land – it
does not extend to immovable or real property as
defined in Article 415 of the Civil Code
The agreement of co-shareholders to mutually grant
the right of first refusal to each other, by itself, does
not constitute a violation of the provisions of the
Constitution limiting land ownership to Filipinos and
Filipino Corporations. If the foreign shareholdings of a
landholding corporation exceeds 40%, it is not the
foreign stockholders’ ownership of the shares which
is adversely affected but the capacity of the
corporation to own land – that is, the corporation
becomes disqualified to own land.
Section 10.
NATIONAL
PATRIMONY/INVESTMENTS
ECONOMY
AND
Power of Congress
1. Congress, upon the recommendation of
NEDA, can reserve to Filipino citizens or to
corporations or associations at least 60% of
whose capital is owned by such citizens, or
such higher percentage as Congress may
prescribe, certain areas of investment. This
may be done when the national interest
dictates.
2. Congress shall also enact measures to
encourage the formation and operation of
enterprises whose capital is wholly owned by
Filipinos.
National Economy and Patrimony
In the grant of rights, privileges
and concessions
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picture. patrimony, the
State shall give preference to QUALIFIED Filipinos.
Sec. 11. FRANCHISES FOR PUBLIC UTILITIES
Power to grant:
1. Congress may directly grant a legislative
franchise; or
2. Power to grant franchises may be delegated
to appropriate regulatory agencies and/or
LGU’s
Public utility
1. In order to be considered as a public utility,
and thus subject to this provision, the
undertaking must involve dealing directly with
the public.
2. Thus, a Build-Operate-Transfer grantee is
NOT a public utility. The BOT grantee
merely constructs the utility, and it leases the
same to the government.
It is the
government which operates the public utility
(operation separate from ownership).
To whom granted:
1. Filipino citizens or
2. Corporations or associations incorporated in
the Philippines and at least 60% of the
capital is owned by Filipino citizens.
Terms and conditions:
1. Duration: Not more than 50 years
2. Franchise is NOT exclusive in character
3. Franchise is granted under the condition that
it is subject to amendment, alteration, or
repeal by Congress when the common good
so requires.
Participation of Foreign Investors
1. The participation of foreign investors in the
governing body of any public utility enterprise
shall be limited to their proportionate share in
its capital.
2. Foreigners cannot be appointed as the
executive and managing officers because
these positions are reserved for Filipino
citizens.
Sec.16.FORMATION/ORGANIZATION/
REGULATION OF CORPORATIONS
1. Private corporations
Congress can only provide for the
formation, etc of private corporations through
a general law.
2. GOCC’s
They may be created by:
a. Special charters in the interest of the
common good and subject to the test of
economic viability.
b. By incorporation under the general
corporation law.
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Sections 18-19. SPECIAL ECONOMIC POWERS
OF THE GOVERNMENT
1. Temporary takeover or direction of
operations:
a. Conditions
i. National emergency and
ii. When the public interest requires
b. May be used against privately owned
public utilities or businesses affected with
public interest.
c. Duration of the takeover: period of
emergency
d. Takeover is subject to reasonable terms
and conditons
e. No need for just compensation because
it is only temporary.
2. Nationalization of vital industries:
a. Exercised in the interest of national
welfare or defense
b. Involves either:
i. Establishment and operation of vital
industries; or
ii. Transfer to public ownership, upon
payment of just compensation, public
utilities and other private enterprises
to be operated by the government.
Section 19. MONOPOLIES
1. The Constitution does NOT prohibit the
existence of monopolies.
2. The State may either regulate or prohibit
monopolies, when public interest so requires.
3. Combinations in restraint of trade or unfair
competition are prohibited.
Filipino citizenship or equity requirements:
ACTIVITY
CITIZENSHIP AND/OR
EQUITY REQUIREMENTS
Exploitation of natural
1. Filipino citizens; or
resources
2. Corporations
incorporated in RP, with
60% Filipino ownership
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Utilities
2.toCorporations
incorporated in RP, with
60% Filipino ownership
Acquisition of alienable 1. Filipino citizens; or
lands of the public
2. Corporations
domain
incorporated in RP, with
60% Filipino ownership
3. Former natural-born
citizens of RP, as
Practice of ALL
professions
Mass media
Advertising
Educational Institution
Other economic
activities
transferees, with certain
legal restrictions; and
4. Alien heirs as
transferees in case of
intestate succession.
Filipino citizens only
(natural persons)
*But Congress may, by
law, otherwise prescribe
1. Filipino citizens; or
2. Corporations
incorporated in RP, and
100% Filipino owned
1. Filipino citizens; or
2. Corporations
incorporated in RP, and
70% Filipino owned
1. Filipino citizens; or
2. Corporations
incorporated in RP, and
60% Filipino owned
EXCEPT: Schools
established by religious
groups and mission
boards.
Congress may, by law,
increase Filipino
requirements for ALL
educational institutions
Congress may, by law,
reserve to Filipino citizens
or to corporations 60%
Filipino owned (or even
higher) certain investment
areas.
ARTICLE XIII – SOCIAL JUSTICE AND HUMAN
RIGHTS
Social Justice
1. Social justice in the Constitution is
principally the embodiment of the
principle that those who have less in life
should have more in law.
2. The 1987 Constitution advances beyond
what was in previous Constitutions in that it
seeks not only economic social justice but
also political social justice.
Principal activities in order to achieve social justice
1. Creation of more economic opportunities and
more wealth; and
2. Closer regulation of the acquisition,
ownership, use and disposition of property in
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order to achieve a more equitable distribution
of wealth and political power.
Labor
Section 3 of Article XIII elaborates on the provision in
Article II by specifying who are protected by the
Constitution, what rights are guaranteed, and what
positive measures the state should take in order to
enhance the welfare of labor.
Right to organize and to hold peaceful concerted
activities
The right to organize is given to all kinds of workers
BOTH in the PRIVATE and PUBLIC sectors.
The workers have a right to hold peaceful concerted
activities except the right to strike, which is subject to
limitation by law.
Right to participate in the decision making
process of employers
The workers have the right to participate on matters
affecting their rights and benefits, “as may be
provided by law”. This participation can be through
1. collective bargaining agreements,
2. grievance machineries,
3. voluntary modes of settling disputes, and
4. conciliation
proceedings
mediated
by
government.
Agrarian Reform
Goals: Agrarian reform must aim at
1. efficient production,
2. a more equitable distribution of land which
recognizes the right of farmers and regular
farmworkers who are landless to own the
land they till, and
3. a just share of other or seasonal farmworkers
in the fruits of the land.
CARL as an exercise of police power and power of
eminent domain: To the extent that the law
prescribes retention limits for landowners, there is an
exercise of police power. But where it becomes
necessary to deprive owners of their land in excess
of the maximum allowed, there is compensable
taking and therefore the exercise of eminent domain.
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Reach of agrarian reform
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It extends not only to private agricultural lands, but
also to “other natural resources,” even including the
use and enjoyment of “communal marine and fishing
resources” and “offshore fishing grounds”.
The Commission on Human Rights
Composition:
1. Chairman; and
2. 4 members
Qualifications:
1. Natural-born citizens of the Philippines;
2. Majority of the Commission must be
members of the Philippine Bar;
3. Term of office, other qualifications and
disabilities shall be provided by law;
4. The appointment of the CHR members is
NOT subject to CA confirmation; and
5. The CHR is not of the same level as the
COMELEC, CSC, or COA.
Powers:
1. INVESTIGATE all forms of human rights
violations involving civil or political rights
a. Violations may be committed by public
officers or by civilians or rebels.
b. CHR cannot investigate violations of
social rights.
c. CHR has NO adjudicatory powers over
cases involving human rights violations.
d. They cannot investigate cases where no
rights are violated.
e. Example: There is no right to occupy
government land, i.e. squat thereon.
Therefore, eviction therefrom is NOT a
human rights violation.
2. ADOPT operational guidelines and rules of
procedure.
3. CITE FOR CONTEMPT for violations of its
rules, in accordance with the Rules of Court.
4. PROVIDE APPROPRIATE LEGAL
MEASURES for the protection of the human
rights of all persons, within the Philippines,
as well as Filipinos residing abroad, and
provide for preventive measures and legal
aid services to the underprivileged whose
human rights have been violated or need
protection.
a. CHR can INITIATE COURT
PROCEEDINGS on behalf of victims of
human rights violations.
b. They can RECOMMEND THE
PROSECUTION of human rights
violators, but it cannot itself prosecute
these cases.
c. BUT: The CHR CANNOT ISSUE
RESTRAINING ORDERS OR
INJUNCTIONS against alleged human
rights violators. These must be obtained
from the regular courts.
5. EXERCISE VISITORIAL POWERS over jails,
prisons and other detention facilities.
6. ESTABLISH CONTINUING PROGRAMS
FOR RESEARCH, education and information
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7.
8.
9.
10.
11.
12.
in order to enhance respect for the primacy
of human rights.
RECOMMEND TO CONGRESS EFFECTIVE
MEASURES to promote human rights and to
provide compensation to victims of human
rights violations or their families.
MONITOR COMPLIANCE BY THE
GOVERNMENT with international treaty
obligations on human rights.
GRANT IMMUNITY FROM PROSECUTION
to any person whose testimony or whose
possession of documents or other evidence
is necessary or convenient to determine the
truth in any CHR investigation.
REQUEST ASSISTANCE from any
department, bureau, office, or agency in the
performance of its functions.
APPOINT ITS OFFICERS and employers in
accordance with law.
Perform such OTHER FUNCTIONS AND
DUTIES as may be provided for by law.
ARTICLE XIV - EDUCATION, SCIENCE AND
TECHNOLOGY, ARTS, CULTURE, AND SPORTS
Education
Goals of the State:
The State shall promote and protect:
1. The right to quality education at all levels;
2. The right to affordable and accessible
education; and
3. Education that is relevant to the needs of
people and society.
Right to Education and Academic Freedom
The right to education must be read in conjunction
with the academic freedom of schools to require “fair,
reasonable, and equitable admission requirements.”
Power to Dismiss Students
1. Schools have the power to dismiss students,
after due process, for disciplinary reasons.
2. Acts committed outside the school may also
be a ground for disciplinary action if:
a. It involves violations of school policies
connected to school-sponsored activities;
or
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status, or the good name or reputation of
the school.
Regulation of Right to Education
The right to education in particular fields may be
regulated by the State in the exercise of its police
power, e.g. the State may limit the right to enter
medical school by requiring the applicants to take the
NMAT.
Free Education
1. The State shall maintain a system of free
education in:
a. Elementary level, and
b. High school level.
2. Elementary education is compulsory for all
children of school age. However, this is a
moral rather than a legal compulsion.
Educational Institutions:
I. Filipinization
1. Ownership:
a. Filipino citizens, or
b. Corporations incorporated in RP and
60% Filipino-owned.
EXCEPT: Schools established by
religious groups and mission boards.
c. Congress may increase Filipino equity
requirements in ALL educational
institutions.
2. Control and Administration:
a. Must be vested in Filipino citizens
b. Refers to line positions, such as
President, Dean, Principal, and Trustees
c. Faculty members may be foreigners.
3. Student Population:
GENERAL RULE: Cannot establish
school exclusively for aliens. Aliens can only
comprise up to 1/3 of total enrollment.
EXCEPTIONS: Schools established
for foreign diplomatic personnel and their
dependents, and unless otherwise provided
for by law for other foreign temporary
residents.
II. Tax Exemptions
1. Non-stock, non-profit educational institutions:
a. All revenues and assets actually, directly
and exclusively used for educational
purposes are exempt from taxes and
duties.
b. This is self-executory.
2. Proprietary educational institutions, including
cooperatives:
a. Entitled to exemptions as may be
provided by law, including restrictions on
dividends and re-investment
b. Requires an enabling statute
c. Grants, endowments, donations and
contributions actually, directly and
exclusively used for educational
purposes are exempt from taxes, subject
to conditions prescribed by law.
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III. Academic Freedom
1. Educational Institutions
Schools have the freedom to determine:
a. Who may teach,
b. What may be taught,
c. How it shall be taught, and
d. Who may be admitted to study
2. Faculty members
a. Full freedom in research and in the
publication of the results, subject to the
adequate performance of their other
academic duties.
b. Freedom in the classroom in discussing
their subjects, but they should be careful
not to introduce into their teaching
controversial matter which has no
relation to their subjects.
c. When faculty members speak or write in
their capacity as citizens, then they are
free from institutional censorship or
discipline.
3. Students
They have the right to enjoy in school the
guarantees of the Bill of Rights.
4. Limitations
a. Dominant police power of the State
b. Social interest of the community
5. Budgetary Priority:
Education must be assigned the highest
budgetary priority.
BUT: This command is not absolute.
Congress is free to determine what should be
given budgetary priority in order to enable it
to respond to the imperatives of national
interest and for the attainment of other state
policies or objectives.
Religious Education in Public Schools
Religion may be taught in public schools subject
to the following requisites:
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1. Express written
option
parents and
are needed
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guardians;
2. Taught within regular class hours;
3. Instructors are designated and approved by
the proper religious authorities; and
4. WITHOUT ADDITIONAL COST TO THE
GOVERNMENT.
Section 6. Language
National language: Filipino
Official Languages: Filipino, and unless
otherwise provided by law, English.
Regional languages are auxiliary to the
official languages.
Spanish and Arabic are promoted only on an
optional and voluntary basis.
ARTICLE XVI - GENERAL PROVISIONS
Sections 1-2. Symbols of Nationality
1. FLAG
a. Red, white, and blue.
b. With a sun and 3 stars
c. The design may be changed
constitutional amendment.
2. Congress may, by law, adopt a new:
A. NAME FOR THE COUNTRY,
b. NATIONAL ANTHEM, or
C. NATIONAL SEAL.
by
NOTE: Law will take effect upon ratification
by
the
people
in
a
NATIONAL
REFERENDUM.
Section 3. State Immunity
Suability of State
1. The State cannot be sued without its
consent.
2. When considered a suit against the State
a. The Republic is sued by name;
b. Suits
against
an
un-incorporated
government agency;
c. Suit is against a government official, but
is such that ultimate liability shall devolve
on the government
i. When a public officer acts in bad faith,
or beyond the scope of his authority,
he can be held personally liable for
damages.
ii. BUT: If he acted pursuant to his
official
duties,
without
malice,
negligence, or bad faith, he is not
personally liable, and the suit is really
one against the State.
3. This rule applies not only in favor of the
Philippines but also in favor of foreign states.
4. The rule likewise prohibits a person from
filing for interpleader, with the State as one of
the defendants being compelled to
interplead.
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Consent to be sued
I. Express consent:
1. The law expressly grants the authority to sue
the State or any of its agencies.
2. Examples:
a. A law creating a government body
expressly providing that such body “may
sue or be sued.”
b. Art. 2180 of the Civil Code, which creates
liability against the State when it acts
through a special agent.
II. Implied consent:
1. The State enters into a private contract.
The contract must be entered into by
the proper officer and within the scope of his
authority.
UNLESS: The contract is merely
incidental to the performance of a
governmental function.
2. The State enters into an operation that is
essentially a business operation.
a. UNLESS: The operation is incidental to
the performance of a governmental
function (e.g. arrastre services)
b. Thus, when the State conducts business
operations through a GOCC, the latter
can generally be sued, even if its charter
contains no express “sue or be sued”
clause.
NOTE: difference between:
i. Jure Gestionis - by right of
economic or business relation =may
be sued
ii. Jure Imperii - by right of sovereign
power, in the exercise of sovereign
functions.= no implied consent;
cannot be sued.
3. Suit against an incorporated government
agency.
4. This is becauseQuickTime™
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charters, which grant them a separate
juridical personality.
5. The State files suit against a private party.
6. UNLESS: The suit is entered into only to
resist a claim.
Garnishment of government funds:
GENERAL RULE: Not allowed. Whether the money
is deposited by way of general or special deposit,
they remain government funds and are not subject
to garnishment.
EXCEPTION: Where a law or ordinance has been
enacted appropriating a specific amount to pay a
valid government obligation, then the money can
be garnished.
Consent to be sued is not equivalent to consent
to liability:
1. The Fact that the State consented to being
sued does not mean that the State will
ultimately be held liable.
2. Even if the case is decided against the State,
an award cannot be satisfied by writs of
execution or garnishment against public
funds. Reason: No money shall be paid out
of the public treasury unless pursuant to an
appropriation made by law.
Rules regarding payment of Interests
Government in Money Judgments against it:
by
GENERAL RULE: Government cannot be made to
pay interests;
EXCEPTIONS:
1. Eminent domain;
2. Erroneous collection of taxes; or
3. Where government agrees to pay interest
pursuant to law.
Section 4.
THE ARMED FORCES OF THE
PHILIPPINES
Composition: A citizen armed force
Prohibitions and disqualifications:
1. Military men cannot engage, directly or
indirectly, in any partisan political activity,
except to vote.
2. Members of the AFP in active service cannot
be appointed to a civilian position in the
government, including GOCCs or their
subsidiaries.
The Chief of Staff:
GENERAL RULE: Tour of duty: Not to exceed three
years
EXCEPTION: In times of war or other national
emergency as declared by Congress, the
President may extend such tour of duty.
ARTICLE XVII- AMENDMENTS OR REVISIONS
DEFINITIONS:
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AMENDMENT: an alteration of one or a few specific
provisions of the Constitution. Its main purpose is
to improve specific provisions of the Constitution.
The changes brought about by amendments will
not affect the other provisions of the Constitution.
REVISION: An examination of the entire Constitution
to determine how and to what extent it should be
altered. A revision implies substantive change,
affecting the Constitution as a whole.
Constituent power
1. The power to formulate
a Constitution or to
propose amendments to
or revisions of the
Constitution and to ratify
such proposal
2. It is exercised by
Congress (by special
constitutional
conferment), by a
Constitutional Convention
or Commission, by the
people through initiative
and referendum, and
ultimately, by the
sovereign electorate
3. The exercise of
constituent power does
not need the approval of
the Chief Executive
Legislative power
1. The power to pass,
repeal or amend
ordinary laws or statutes
(as opposed to organic
law)
2. It is an ordinary power
of Congress and of the
people, also through
initiative and
referendum.
the exercise of
legislative power
ordinarily needs the
approval of the Chief
Executive, except when
done by people through
initiative and
referendum.
Three (3) steps necessary to give effect to
amendments and revisions:
1. Proposal of amendments or revisions by the
proper constituent assembly;
2. Submission of the proposed amendments or
revisions; and
3. Ratification.
Proposal of amendments:
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1. Congress, acting
asto see
a constituent
assembly,
by a 3/4 vote of all its members.
a. The power of Congress to propose
amendments is NOT part of its ordinary
legislative power.
b. The only reason Congress can exercise
such power is that the Constitution has
granted it such power.
2. Constitutional Convention:
a. How a Constitutional Convention may be
called
i. Congress may call a ConCon by a 2/3
vote of all its members; or
ii. By a majority vote of all its members,
Congress may submit to the
electorate the question of whether to
call a ConCon or not.
b. Choice of which constituent assembly
(either Congress or ConCon) should
initiate amendments and revisions is left
to the discretion of Congress. In other
words, it is a political question.
c. BUT: The manner of calling a ConCon is
subject to judicial review, because the
Constitution has provided for voting
requirements.
d. If Congress, acting as a constituent
assembly, calls for a ConCon but does
not provide the details for the calling of
such ConCon, Congress - exercising its
ordinary legislative power - may supply
such details. But in so doing, Congress
(as legislature) should not transgress the
resolution of Congress acting as a
constituent assembly.
e. Congress, as a constituent assembly and
the ConCon have no power to
appropriate money for their expenses.
Money may be spent from the treasury
only pursuant to an appropriation made
by law.
3. People’s Initiative
a. Petition to propose such amendments
must be signed be at least 12% of ALL
registered voters.
b. Every legislative district represented by
at least 3% of the registered voters
therein.
c. Limitation: It cannot be exercised more
often than once every 5 years
Defensor-Santiago v. COMELEC, G.R. 127325
Requires implementing legislation: The
Supreme Court held that RA 6735, the Initiative and
Referendum law is insufficient.
Therefore,
amendment by initiative and referendum must still
await a valid law.
NOTE:
1. While the substance of the proposals made
by each type of constituent assembly is not
subject to judicial review, the manner the
proposals are made is subject to judicial
review.
2. Since these constituent assemblies owe their
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existence to the Constitution, the courts may
determine whether the assembly has acted in
accordance with the Constitution.
3. Examples of justiciable issues:
a. Whether a proposal was approved by the
required number of votes in Congress
(acting as a constituent assembly).
b. Whether the approved proposals were
properly submitted to the people for
ratification.
Proposal of Revisions
By Congress, upon a vote of 3/4 of its members
By a constitutional convention
Presidential proclamation is NOT required for
effectivity of amendments/revisions, UNLESS the
proposed amendments/revisions so provide.
ARTICLE XVIII - TRANSITORY PROVISIONS
Effectivity of the 1987 Constitution
The 1987 Constitution took effect immediately upon
its ratification.
According to the SC, this took place on February 2,
1987, which was the day the
Ratification
Amendments and revisions proposed by
Congress and/or by a ConCon:
Valid when ratified by a MAJORITY of votes
cast in a plebiscite.
Plebiscite is held not earlier than 60 days nor
later than 90 days from the approval of such
amendments or revisions.
Amendments proposed by the people via
initiative:
Valid when ratified by a MAJORITY of votes
cast in a plebiscite.
Plebiscite is held not earlier than 60 days nor later
than 90 days after the certification by COMELEC of
the petition's sufficiency.
Requisites of a valid ratification:
1. Held in a plebiscite conducted under the
election law;
2. Supervised by the COMELEC; and
3. Where only franchised voters (registered)
voters take part.
Issues regarding ratification:
The Constitution does not require that amendments
and revisions be submitted to the people in a special
election. Thus, they may be submitted for ratification
simultaneously with a general election.
The determination of the conditions under which
proposed amendments/revisions
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people falls within thearelegislative
sphere.
That
needed to see this
picture.
Congress could have done better does not make the
steps taken unconstitutional.
All the proposed amendments/revisions made by the
constituent assemblies must be submitted for
ratification in one single plebiscite. There cannot be a
piece-meal ratification of amendments/revisions.
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PUBLIC INTERNATIONAL LAW
THE NATURE OF INTERNATIONAL LAW
b. Custom – General and consistent
practice of states followed by them from
a sense of legal obligation. 2 Elements:
International Law – Set of rules and principles that
governs the relationships between States and other
international actors which under Modern International
Law
includes
International
Organizations,
Transnational Corporations and Individuals.
i.
ii.
Distinction between a subject and object of
international law
1. Subject - An entity that has rights and
responsibilities under international law; it can
be a proper party in transactions involving
the application of international law among
members of the international community.
2. Object - A person or thing in respect of
which rights are held and obligations
assumed by the subject; it is not directly
governed by the rules of international law; its
rights are received, and its responsibilities
imposed,
indirectly
through
the
instrumentality of an international agency.
NOTE: Given the trend in International Law today,
with the birth of the ICC and Arbitration Courts, the
line between a Subject and Object of International is
increasingly being blurred.
Divisions of International Law
1. Laws Of Peace- governs the normal
relations of States
2. Laws Of War - rules during periods of
hostility
3. Laws Of Neutrality- rules governing States
not involved in the hostilities
SOURCES OF INTERNATIONAL LAW
Article 38 of the Statute of the International Court
of Justice (ICJ).
1. Primary
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Generally, a treaty only binds the parties.
However, treaties may be considered a
direct source of Int'l law when concluded
by a sizable no. of States, and is
reflective of the will of the family of
nations (in which case, a treaty is
evidence of custom).
c.
State Practice – a consistent and
uniform external conduct of States.
Generally, both what states say and
what they do are considered state
practice.
Opinio Juris - State practice must
be accompanied with the conviction
that the State is legally obligated to
do so by int'l law, and not through
mere courtesy or comity, or
because
of
humanitarian
considerations.
General Principles Of Law - Principles
common to most national systems of law;
rules based on natural justice. Ex. good
faith, estoppel, exhaustion of local
remedies
2. Secondary
a. Judicial Decisions - a subsidiary means
for the determination of rules of law (e.g.,
determining what rules of customary IL
exist) that is acceptable so long as they
correctly interpret and apply int'l law.
NOTE: Even decisions of national courts, when
applying int'l law, are acceptable. Ex. Principles
on diplomatic immunity have been developed by
judgments of national courts.
b. Teachings Of The Most Highly
Qualified Publicists -- The word
'Publicist' means 'learned writer.' Learned
writings, like judicial decisions, can be
evidence of customary law, and can also
play a subsidiary role in developing new
rules of law.
Requisites for Highly Qualified Publicist
1. Fair and impartial representation of law.
2. By an acknowledged authority in the field.
Q: What is 'INSTANT' CUSTOM?
A: Customary law may emerge even within a
relatively short period of time, if within that period,
State Practice has been uniform and extensive. It
comes about as a spontaneous activity of a great
number of states supporting a specific line of action.
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TREATIES
A treaty is an International Agreement in written form
concluded between States that may be embodied in
one or more instrument, and is governed by
International Law. (Art. 2, Vienna Convention on the
Law of Treaties).
Q: If not in writing, is it still considered a treaty?
A: Yes. Oral agreements between States are
recognized as treaties under customary international
law (but are extremely rare nowadays).
1. Difference between Treaty and Executive
Agreement
TREATY
EXECUTIVE
AGREEMENT
S [CODE: PCI]
[CODE: TAAI]
U 1. Political Issues 1. Have Transitory
B 2. Changes in
effectivityAdjustment
National Policy
J
of details carrying
E 3. Involve
out well-established
international
C
national policies and
arrangements
T
traditions
of a permanent 3. Arrangements of
character
M
temporary nature
A
4. Implementation of
T
treaties, statutes,
T
well-established
E
policies
R
R
a
t
i
f
i
c
a
t
i
o
n
While the
Constitution vests
the power to
NEGOTIATE
treaties with the
President, such
must be RATIFIED
by the 2/3 of the
Senate to become
valid and effective
(Art.7, Sec 21)
Do not need to be
ratified by the Senate
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2. Principal Rulesare needed
of toInternational
Connection to Treaties
Law
in
a. Pacta Sunt Servanda – All parties to a
Treaty must comply with their Treaty
Obligation in Good Faith.
NOTE: A state can avoid PERFORMANCE if the
treaty obligation collides with its Constitution, but it
CANNOT escape LIABILITY it may incur as a result
of such non-performance.
b. Rebus Sic Stantibus - A party is not bound
to perform a treaty if there has been a
fundamental change of circumstances since
the treaty was concluded.
i. Described as the exception to the rule of
pacta sunt servanda.
ii. justifies the non-performance of a treaty
obligation if the subsequent condition in
relation to which the parties contracted
has changed so materially and
unexpectedly as to create a situation in
which the exaction of performance would
be unreasonable.
iii. Rebus sic stantibus may not be invoked
as a ground for terminating or
withdrawing from a treaty:
a. if the treaty establishes a boundary
b. if the 'fundamental change' is the
result of a breach by the party
invoking it of an obligation under the
treaty or of any other obligation owed
to any other party to the treaty.
c. Jus Cogens - a rule which has the status of
a
preemptory
(i.e.,
absolute,
uncompromising) norm of international law
where no derogation may be permitted.
Elements:
i. a norm accepted and recognized
ii. by the int'l community of States as a
whole
iii. as a norm from which no derogation is
permitted.
iv. It can only be modified by a subsequent
norm having the same character.
If a treaty, at the time of its
conclusion, conflicts with jus cogens, it is
void.
Examples:
1. prohibition against the unlawful use of force;
2. prohibition against piracy, genocide, and
slavery
Steps in treaty-making process:
1. Negotiation;
2. Signature;
3. Ratification;
4. Exchange of Instruments of Ratification;
5. Registration with UN.
Reservation
A unilateral statement made by a State when signing,
ratifying, accepting, approving or acceding to a treaty,
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whereby it purports to exclude or to modify the legal
effects of certain provisions of the treaty in their
application to that State.
Invalidity of treaties: Grounds
1. Error of fact
2. Fraud
3. Corruption
4. Duress
5. Jus cogens
Termination Of Treaty
1. Expiration of term;
2. Accomplishment of purpose;
3. Impossibility of performance;
4. Loss of subject matter;
5. Novation;
6. Desistance of parties;
7. Extinction of one of parties, if treaty is
bipartite;
8. Occurrence
of
vital
change
of
circumstances;
9. Outbreak of war; and
10. Voidance of treaty.
Succession to treaties: the “Clean Slate” rule
When one state ceases to exist and is succeeded by
another on the same territory, the newly independent
state is not bound to maintain in force, or become a
party to, any treaty although it may agree to be bound
by treaties made by its predecessor.
INTERNATIONAL LAW AND MUNICIPAL LAW
Effect of Municipal Law in International Law
2 Theories:
1. Dualism – domestic and international law
are independent of each other, as they
regulate different subject matters.
IL
regulates the relations of sovereign states,
while municipal law regulates the internal
affairs of a state. Thus, no conflict can ever
arise between international and municipal
law, because the two systems are mutually
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only because it has been expressly
incorporated by municipal law.
The
Philippines is a dualist state.
2. Monism – Monists have a unitary concept
of law and see all law – including both
international and municipal law – as an
integral part of the same system. If conflict
exists between international law and
municipal law, international law must
prevail. Germany is a monist state.
2 Views:
1. Doctine Of Incorporation - rules of
international law form part of the law of the
land and no further legislative action is
needed to make such rules applicable in the
domestic sphere.
a. Such is recognized in art. 2, sec. 2, as
the Philippines "adopts the generally
accepted principles of international law
as part of the law of the land."
b. Rules of international law are given
equal standing with, but are not superior
to, national legislative enactments.
Thus, the Constitution, as the highest
law of the land, may invalidate a treaty
in conflict with it. (Secretary of Justice v.
Hon. Lantion and Mark Jimenez, Jan.
18, 2000)
2. Doctrine Of Transformation - the generally
accepted rules of int'l law are not per se
binding upon the State but must first be
embodied in legislation enacted by the
lawmaking body and so transformed into
municipal law. Only when so transformed
will they become binding upon the State as
part of its municipal law.
In case of conflict between international law and
domestic law:
1. International rule: Before an international
tribunal, a state may not plead its own law
as an excuse for failure to comply with
international law. The state must modify its
laws to ensure fulfillment of its obligations
under the treaty, unless the constitutional
violation is manifest and concerns a rule of
internal law of fundamental importance.
2. Municipal rule: When the conflict comes
before a domestic court, domestic courts
are bound to apply the local law. Should a
conflict arise between an international
agreement and the Constitution, the treaty
would not be valid and operative as
domestic law. It does not, however, lose its
character as international law.
SUBJECTS OF INTERNATIONAL LAW
State
Elements of a state:
Art. 1, Montevideo Convention:
1. a permanent population;
2. a defined territory;
3. government;
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4. capacity to enter into relations with other
States
Distinctions
Between
Sovereignty
And
Independence
1. SOVEREIGNTY is the broader term. It
refers to the supreme and uncontrollable
power inherent in the State by which such
State is governed. It has 2 aspects:
a. INTERNAL- freedom of the State to
manage its own affairs.
b. EXTERNAL- freedom of the State to
direct its foreign affairs.
2. INDEPENDENCE is synonymous with
external sovereignty. It is defined as the
power of a State to manage its external
affairs without direction or interference from
another State.
Principles Of State Succession
1. State Succession is the substitution of one
State by another, the latter taking over the
rights and some of the obligations of the
former.
2. 2 types of State Succession:
a. Universal- takes place when a State is
completely annexed by another, or is
dismembered or dissolved, or is created
as a result of merger of 2 or more
States.
b. Partial - takes place when a portion of
the territory of a State loses part of its
sovereignty by joining a confederation
or becoming a protectorate or
suzerainty.
3. Effects of State Succession
a. The allegiance of the inhabitants of the
predecessor State is transferred to the
successor State.
b. The political laws of the predecessor
State are automatically abrogated but
the non-political laws are deemed
continued unless expressly repealed or
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sovereign.
c. The public property of the predecessor
State is acquired by the successor State
but not the tort liability of the former.
d. Treaties
entered
into
by
the
predecessor State are not considered
binding on the successor State except
those dealing with local rights and
duties such as servitudes and
boundaries.
Succession Of Government
1. In succession of government, the integrity of
the original State is not affected as what
takes place is only a change in one of its
elements, the government.
2. Effects of a change in government:
a. If effected by peaceful means, the new
government inherits all rights and
obligations of the old government.
b. If effected by violence, the new
government inherits all the rights of the
old government. However, the new
government may reject the obligations
of the old government if they are of a
political complexion. If the obligations
are the consequence of the routinary act
of administration of the old government,
they should be respected.
Territory
1. Methods used in defining the territorial sea
2. Normal baseline method
Under this method, the territorial sea is
drawn from the low-water mark of the coast
to the breadth claimed, following its
sinuosities and curvatures but excluding the
internal waters in bays and gulfs.
3. Straight baseline method
Straight lines are made to connect
appropriate points on the coast without
departing radically from its general direction.
The waters inside the lines are considered
internal.
4. Some modes of acquisition:
a. Cession
It is a derivative mode of acquisition
by which territory belonging to one state
is transferred to the sovereignty of
another state in accordance with an
agreement between them.
b. Subjugation
It is a derivative mode of acquisition
by which the territory of one state is
conquered in the course of war and
thereafter annexed and placed under
sovereignty of the conquering state.
c. Prescription
It is a derivative mode of acquisition
by which territory belonging to one state
is transferred to the sovereignty of
another state by reason of the adverse
and uninterrupted possession thereof by
the latter for a sufficiently long period of
time.
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RIGHT OF LEGATION
1. It is the right of a state to maintain diplomatic
relations with other states.
2. Types:
a. Active- right to send diplomatic
representatives
b. Passive- right to receive diplomatic
representatives
Functions of Diplomatic Missions:
representing sending state in receiving state;
protecting in receiving state interests of
sending state and its nationals;
negotiating with government of receiving
state;
promoting friendly relations between sending
and receiving states and developing their
economic, cultural, and scientific relations;
ascertaining by all lawful means conditions
and developments in receiving state and
reporting thereon to government of sending
state; and
in some cases, representing friendly
governments at their request.
Diplomatic and Consular immunity
1. personal inviolability
2. immunity of embassy and legation buildings
3. right of protection
4. extraterritoriality- exemption from local
jurisdiction on the basis of international
custom
5. exemption from taxes and personal services
6. inviolability of means of communication
7. Diplomatic bag- immune from search
PRINCIPLES OF JURISDICTION OF STATES
1. Territoriality principle: The fundamental
source of jurisdiction is sovereignty over
territory. A state has absolute, though not
necessarily exclusive, power to prescribe,
adjudicate, and enforce rules for conduct
within its territory.
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jurisdiction over its nationals even when
those nationals are outside the state.
3. Protective principle: A state may exercise
jurisdiction over conduct outside its territory
that threatens its security, as long as that
conduct is generally recognized as criminal
by the states in the international community.
4. Universality principle: Recognizes that
certain offenses are so heinous and so
widely condemned that any state, if it
captures the offender, may prosecute and
punish that person on behalf of the world
community regardless of the nationality of the
offender or victim or where the crime was
committed.
5. Passive personality principle: A state may
apply law – particularly criminal law – to an
act committed outside its territory by a
person not its national where the victim of the
act was its national.
This principle has not been ordinarily
accepted for ordinary torts or crimes, but is
increasingly accepted as applied to terrorist
and other organized attacks on a state’s
nationals by reason of their nationality, or to
assassination of a state’s diplomatic
representatives of other officials.
Some Incomplete Subjects Of International Law
1. PROTECTORATES – dependent states
which have control over their internal affairs
but whose external affairs are controlled by
another state.
2. FEDERAL STATE – union of previously
autonomous entities. The central organ will
have personality in international law, but the
extent of the international personality of the
component entities can be a problem.
3. MANDATED AND TRUST TERRITORIES –
territories placed by the League of Nations
under one or other of the victorious allies of
WWI.
STATE RESPONSIBILITY
1. It is the doctrine which holds a state
responsible for any injury sustained by an
alien within its jurisdiction. Because of an
international wrong imputable to it, the state
will be responsible if it is shown that it
participated in the act or omission
complained of or was remiss in redressing
the resultant wrong.
2. Elements of State Responsibility
a, breach of an international obligation
b, attributability
3. Types of State responsibility
a, Direct responsibility-attaches to the
state if the wrongful act/omission was
effected through any of its superior
organs acting on its behalf
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b, Indirect responsibility- Acts of the
following are attributable to the state:
i, state organs
ii, other persons exercising elements of
governmental authority in the absence
or default of the official authorities and
in circumstances calling for the
exercise of those elements of
authority
iii, insurrectional or other movement
which becomes the new government
4. Conditions for the enforcement of the
doctrine of state responsibility
a, The injured alien must first exhaust all
local remedies
b, He must be represented in the int'l Claim
for damages by his own state (ordinarily,
individuals have no standing to bring a
claim before international law).
SETTLEMENT OF DISPUTES
AMICABLE METHODS
1. NEGOTIATION- discussion by the parties of
their respective claims and counterclaims
with a view to the just and orderly
adjustment.
2. INQUIRY - an investigation of the points in
question with the view that this will contribute
to the solution of the problem
3. GOOD OFFICES - method by which a 3rd
party attempts to bring the disputing states
together in order that they may be able to
discuss the issues in contention.
4. MEDIATION- 3rd party actively participates
in the discussion in order to reconcile the
conflicting claims. Suggestions of mediator
are merely persuasive
5. CONCILIATION- 3rd party also actively
participates in order to settle the conflict.
Suggestions of conciliator are also not
binding. As distinguished from mediation,
the services of the conciliator were solicited
by the parties in dispute.
6. ARBITRATION- process by which the
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impartial tribunal usually created by the
parties themselves under a charter known as
the compromis.
The proceedings are
essentially judicial and the award is, by
previous agreement, binding on the parties
Ex.: cutting off economic aid (this is lawful
because there is no legal obligation to
provide economic aid).
2. REPRISAL - an act which would normally be
illegal but which is rendered legal by a prior
illegal act committed by the State against
which the reprisal is directed; it is a form of
retaliation against the prior illegal act.
3. Reprisals may be used only when other
means of redress (e.g. protests and
warnings) have failed.
4. SEVERANCE
(OF
DIPLOMATIC
RELATIONS)- One country cuts of
all
diplomatic ties with another, as a sign of
protest/hostility.
5. NAVAL BLOCKADE- Blocking the ports of a
country with naval forces.
6. EMBARGO- Preventing the ingress to and
egress from a country of commercial and
other goods; refusal by a state to undertake
commercial transactions with another state.
SPECIAL TOPICS
Extradition
1. EXTRADITION is the surrender of a person
by one state to another state where he is
wanted for prosecution or, if already
convicted, for punishment.
2. Basis of Extradition: a treaty. Outside of
treaty, there is no rule in international law
compelling a State to extradite anyone. Such
may be done, however, as a gesture of
comity.
3. Principles:
a. Principle of Specialty - a fugitive who is
extradited may be tried only for the crime
specified in the request for extradition
and such crime is included in the list of
extraditable offenses in the treaty.
b. Under the Political offense exception,
most extradition treaties provide that
political and religious offenders are not
subject to extradition.
Attentant Clause- assassination
of head of state or any member of his
family is not regarded as political offense
for purposes of extradition. Also for the
crime of genocide.
c. There can only be extradition if there is a
treaty between the states.
HOSTILE/NON-AMICABLE METHODS
1. RETORSION - is a lawful act which is
designed to injure the wrongdoing State.
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4. PROCEDURE FOR EXTRADITION: (Judicial
and diplomatic process of request and
surrender) PD 1069
a. Request
through
diplomatic
representative with:
b. DFA forwards request to DOJ
c. DOJ files petition for extradition with
RTC,
d. RTC issues summons or warrant of
arrest to compel the appearance of the
individual;
e. hearing (provide counsel de officio if
necessary)
f. appeal to CA within 10 days whose
decision shall be final and executory;
g. decision forwarded to DFA through the
DOJ;
h. Individual placed at the disposal of the
authorities of requesting state-costs and
expenses t be shouldered by requesting
state.
by the Bill of Rights. The process of extradition does
not involve the determination of the guilt or innocence
of an accused. His guilt or innocence will be
adjudged in the court of the state where he will be
extradited. There is NO deprivation of the right to due
process.
Dissent (original decision): Under the extradition
treaty, the prospective extraditee may be
provisionally arrested pending the submission of the
request. Because of this possible consequence, the
evaluation process is akin to an administrative
agency conducting an investigative proceeding, and
partakes of the nature of a criminal investigation.
Thus, the basic due process rights of notice and
hearing are indispensable.
Assuming that the extradition treaty does not
allow for such rights, the Constitutional right to
procedural due process must override treaty
obligations.
When there is a conflict between
international law obligations and the Constitution, the
Constitution must prevail.
Q: The Philippines entered into an extradition
treaty with another country which provided that it
would apply crimes committed before its
effectivity. The country asked the Philippines to
extradite X for a crime committed before the
effectivity of the treaty. X argued the extradition
would violate the prohibition against ex post
facto laws. Is he right?
United Nations Organs
1. GENERAL ASSEMBLY
Composition: All members of the UN (as of
1996: 185 member States)
Function: The GA may discuss any question
or matter within the scope of the Charter or relating to
the powers and functions of any other organ. It is
also vested with jurisdiction over matters concerning
internal machinery and operations of the UN.
2. SECURITY COUNCIL
Composition: 15 members:
a. 5 Permanent Members (China, France,
UK, US, Russia)
b. 10 non-permanent: elected for 2 year
terms by the General Assembly.
Function: the maintenance of international
peace and security.
A: No. The constitutional prohibition applies to penal
laws only. The extradition treaty is not a penal law.
(Wright v. CA, 235 SCRA 341)
SECRETARY OF JUSTICE V. HON. LANTION AND MARK
JIMENEZ (G.R. # 139465, Oct. 17, 2000, overturning
the Court’s previous decision in 322 SCRA 160 dated
Jan. 18, 2000)
By virtue of an extradition treaty between the
US and the Philippines, the US requested for the
extradition of Mark Jimenez for violations of US tax
and election laws.
Pending evaluation of the
extradition documents by the Philippine government,
Jimenez requested for copies of the US' extradition
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ISSUE: During the evaluation stage of the extradition
proceedings, is private respondent entitled to the two
basic due process rights of notice and hearing?
Q: What is the "double veto"?
A:
In all non-procedural matters, each permanent
member is given a 'veto' - a Security Council decision
is ineffective if even one permanent member votes
against it. The veto does not ordinarily apply to
Procedural matters. However, a permanent member
may exercise a 'double veto' when it vetoes any
attempt to treat a question as procedural, and then
proceed to veto any draft resolution dealing with that
question.
HELD: Private respondent is bereft of the right to
notice and hearing during the evaluation stage of the
extradition process. Extradition is a proceeding sui
generis. It is not a criminal proceeding which will call
into operation all the rights of an accused guaranteed
1. SECRETARIAT - CHIEF ADMINISTRATIVE ORGAN
OF THE UN
2. ECONOMIC AND SOCIAL COUNCIL - organ
charged with promoting social progress and
better standards of life in larger freedom
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3. TRUSTEESHIP COUNCIL - organ charged with
administration of Int'l Trusteeship System.
4. INTERNATIONAL COURT OF JUSTICE - judicial
organ of the UN.
functions. In the Philippines, immunity is claimed by
request of the foreign state for endorsement by the
Department of Foreign Affairs. The determination by
the executive department is considered a political
question that is conclusive upon Philippine Courts.
Use Of Force
1. Under Article 2(4) of the UN Charter, all
member States are bound to refrain from the
threat or use of force against the territorial
integrity or political independence of a State.
Recognized exceptions:
a) self-defense
b) military action taken or authorized by the
UN or competent Regional organizations
(such as NATO).- collective self- defense
International Contracts
Usually, agreements between States and foreign
corporations contain stipulations as to which national
legal system governs the contract. Occasionally,
however, in case of powerful multinational
companies, such contracts are placed not under any
single system of municipal law, but under
international law, general principles of law, or the
provisions of the contract itself.
2. Requirement of proportionality in the use of
force
3. Aggression- as used in international law
means the use of armed force by a state
against the sovereignty, territorial integrity or
political independence of another state, or in
army other manner inconsistent with the
charter of the UN.
Types:
direct
indirect- ideological agression
Calvo Clause
It is a provision inserted in contracts, in which the
foreigner agrees in advance not to seek the
diplomatic protection of his national State.
In general, International Courts have disregarded
such clauses, as the right to diplomatic protection is a
right which belongs to a State, and waiver from an
individual does not bind his State.
State Immunity (Jure Imperii And Jure Gestionis)
Originally, under customary international law the
doctrine of absolute state immunity applied, covering
all areas of State activity and recognizing only very
narrow exceptions.
Nowadays, the rule is to adopt
a doctrine of
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foreign States only in respect of their governmental
acts (acts jure imperii), not in respect of their
commercial acts (acts jure gestionis).
Diplomatic Immunity
Diplomatic Immunity is a principle of customary
international law that grants immunity to diplomatic
representatives, in order to uphold their dignity as
representatives of their respective states and to allow
them free and unhampered exercise of their
The reason for concluding these so-called
internationalized contracts is to establish a balance
between the parties and prevent the State party from
evading its obligations under the contract by
changing its own internal law. This is mostly secured
by an arbitration clause referring disputes under the
agreement to an international body.
The international court of justice
1. "Optional Clause" of the ICJ:
As a rule, the ICJ can operate only on
the basis of the consent of States to its
jurisdiction. Such may take the form of a
special agreement between States to
submit an existing dispute before the Court
(i.e. compromis).
However, under the 'optional clause'
(art. 36(2), ICJ Statute), a State may declare
in advance that they recognize the
jurisdiction of the Court as compulsory ipso
facto and without need of special agreement,
in relation to any other State accepting the
same obligation, in all legal disputes
concerning:
a. the interpretation of a treaty;
b. any question of international law
c. existence of any fact which, if
established, would constitute breach of
international obligation; and
d. nature or extent of reparation to be made
for breach of international obligation.
2. STARE DECISIS does not apply to the ICJ.
Under the statute of the Court, previous
decisions have no binding force; in practice,
however, the Court always takes past
decisions into account.
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Q: What does it mean to decide a case EX
AEQUO ET BONO?
A: It is to rule in justice and fairness -- equity
overrides all other rules of law. The ICJ has no power
to decide a case ex aequo et bono, unless all parties
agree thereto [art. 38(2), ICJ Statute].
Q: Who has standing before the ICJ?
A: Only States may be parties in contentious
proceedings before the ICJ (art 34, ICJ Statute).
Outer Space
1. The exploration and use of outer space,
including the moon and other celestial
bodies, shall be carried out for the benefit
and in the interests of all countries,
irrespective of their degree of economic or
scientific development, and shall be the
province of all mankind.
2. Outer space, including the moon and other
celestial bodies, shall be free from
exploration and use by all States without
discrimination of any kind, on a basis of
equality and in accordance with international
law, and there shall be free access to all
areas of celestial bodies.
3. Outer space, including the moon and other
celestial bodies, is not subject to national
appropriation by claim of sovereignty, by
means of use or occupation, or by any other
means.
4. Astronauts are envoys of mankind in outer
space, and states party to the Treaty on the
Exploration and Use of Outer Space shall
render to them all possible assistance in the
event of accident, distress, or emergency
landing on the territory of another State party
or on the high seas. When astronauts make
such a landing, they shall be safely and
promptly returned to the State of registry on
their space vehicle.
2. Principle of Humanity- prohibits use of any
measure that is not absolutely necessary for
purposes of war; and
3. principle of Chivalry- basis of such rules as
those that require belligerents to give proper
warning before launching a bombardment or
prohibit use of perfidy (treachery) in conduct
of hostilities.
RIGHTS OF PRISONERS OF WAR
1. to be treated humanely;
2. not subject to torture;
3. allowed to communicate with their families
4. receive food, clothing religious articles,
medicine;
5. bare minimum of information;
6. keep personal belongings
7. proper burial;
8. group according to nationality;
9. establishment of an informed bureau;
10. repatriation for sick and wounded (1949
Geneva Convention)
WAR
Armed contention between public forces of states or
other belligerent communities implying employment o
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purpose of imposing their respective demands upon
each other.
BASIC PRINCIPLES OF WAR:
1. Principle of Military Necessity- belligerents
may employ any amount and kind of force to
compel complete submission of enemy with
least possible loss of lives, time, and money.
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11. LAW ON HUMAN RIGHTS
UNIVERSAL DECLARATION OF HUMAN RIGHTS
What is the Universal Declaration of Human
Rights (UDHR)?
The UDHR is the basic international statement of the
inalienable and inviolable rights of human beings. It is
the first comprehensive international human rights
instrument.
What are the rights covered by the UDHR?
The UDHR proclaims two broad category of rights:
(a) civil and political rights; and (b) economic, social,
and cultural rights.
Are these rights subject to limitations?
Yes, the exercise of these rights and freedoms may
be subject to certain limitations, which must be
determined by law, only for the purpose of securing
due recognition and respect for the rights of others
and of the meeting the just requirements of morality,
public order and the general welfare in a democratic
society. Rights may not be exercised contrary to the
purposes and principles of the UN. (Article 29 of the
UDHR)
International Covenant on Economic, Social, and
Cultural Rights ( ICESCR)
What are the rights guaranteed by the Covenant?
1. Right of self-determination (Art. 1)
2. Right to work and accompanying rights
thereto (Arts. 6, 7, 8)
3. Right to Social Security and other social
rights (Arts. 9& 10)
4. Adequate standard of living (Art. 11 (1))
including: (a) right to adequate housing (Art.
11 (1)); (b) right to adequate food (Art. 11 (1).
11 (2)); (c) Right to adequate clothing (Art. 11
(1)
5. Right to health (Art. 12)
6. Right to education (Arts. 13 &14)
7. Cultural rights (Art. 15)
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Covenant?
1. Specific Obligations under Article 2
To take steps ti the maximum
available resources, towards the progressive
realization of the rights in the covenant;
Non-discrimination- states guarantee
the exercise of the rights without
discrimination (Art. 2 [2]).
2. Three General duties/ obligations of states:
Just like the ICCPR and other human rights
conventions, ESCR imposes three different
types of obligations:
a. To respect- requires to refrain from
interfering with enjoyment of rights. Thus,
there is violation if it engages in forced
eviction;
b. To protect- requires states to prevent
violations by third parties. Thus, failure to
ensure compliance by private employers
with basic labor standards violates the
right to work;
c. To fulfill- requires states to take
appropriate measures (legislative, judicial
etc.) towards the full realization of the
rights. Thus, the states’ failure to provide
essential primary health care to the
needy amounts to a violation.
International Covenant on Civil and Political
Rights (ICCPR)
What are some of the civil and political rights
recognized under the ICCPR?
1. Right of the peoples to self-determination
(art. 1)
2. Right to an effective remedy (art. 2)
3. Equal rights of men and women in the
enjoyment of civil and political rights/ nopndiscrimination on the basis of sex (Art. 3)
4. Right to life (art. 6)
5. Freedom from torture or cruel, inhuman or
degrading punishment (art. 7)
6. Freedom from slavery (art. 8)
7. Right to liberty and security of person (art. 9)
8. Right to be treated with humanity in cases of
deprivation of liberty (art. 10)
9. Freedom from imprisonment for failure to
fulfill a contractual obligation (art. 11)
10. Freedom of movement and the right to travel
(art. 12)
11. Right to a fair, impartial and public trial (art.
14)
12. Freedom from ex post fact laws (art. 15)
13. Right of recognition everywhere as a person
before the law (art. 16)
14. Right to privacy (art. 17)
15. Freedom of thought, conscience, and religion
(art. 18)
16. Freedom of expression (art. 19)
17. Freedom of peaceful assembly (art. 21)
18. Freedom of association (art. 22)
19. Right to marry and found a family (art. 23)
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20. Right of a child to protection, a name and
nationality (art. 24)
21. Right to participation, suffrage, and access to
public service (art. 25)
22. Right to equal protection before the law (art.
26)
23. Right of minorities to enjoy their own culture,
to profess and prtactice their religion and to
use their own language.
When can a State Party derogate from the
ICCPR?
A state party to the ICCPR may derogate from the
treaty “in time of oublic emergency which threatens
the life of the nation and the existence of which is
officially proclaimed, the States Parties to the present
Covenant to the extent strictly required by the
exigencies of the situation, provided that such
measures are not inconsistent with their obligations
under international law and do not involve
discrimination solely on the ground of race, colour,
sex, language, religion or social origin.” (Art. 4 (1),
ICCPR)
What are the Non-derogable rights under the
ICCPR?
Even in times of national emergency, no
derogation can be made from the following:
1. Right to life (art. 6)
2. Freedom from torture or cruel, inhuman or
degrading punishment (art. 7)
3. Freedom from slavery (art. 8)
4. Freedom from imprisonment for failure to
fulfill a contractual obligation (art. 11)
5. Freedom from ex post fact laws (art. 15)
6. Right of recognition everywhere as a person
before the law (art. 16)
7. Freedom of thought, conscience, and religion
(art. 18)
(Art. 4 (2), ICCPR)
Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW)
What does discrimination against women cover?
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distinction, exclusion, or restriction made of the basis
of sex which has the effect or purpose or impairing or
nullifying the recognition, enjoyment or exercise by
women, irrespective or their marital status, on a basis
of equality of men and women, of human rights and
fundamental freedoms in the political, economic,
social cultural, civil, or any other field.
What are the State Obligations of State-Parties
under CEDAW?
Arts. 2- 16 enumerate the Obligations of StateParties
I. Legal Measures (de jure)
1. embody principle of equality of men and
women in the national constitution and other
apprpriate laws (art. 2[a])
2. adopt apprpriate legislative and other
measures prohibiting all discrimination
against women, which includes legislation to
modify, abolish, or repeal discriminatory
laws, regulations, customs, and practices
(art. 2 [b]. [f] and [g])
3. adopt appropriate legislation to ensure full
development and advancement of women,
for the purpose of guaranteeing exercise and
enjoyment of Human Rights on the basis of
equality with men (art. 3)
4. adopt appropriate legislation to suppress all
forms of traffic in women and exploitation and
prostitution of women. (Art. 6)
II. Administrative Measures (de facto)
1. refrain from any act or practice which is
discriminatory against women (includes
public authorities and institutions) (art. 2 [d])
2. adopt temporary special measures to
address de fact inequality of men and women
(art. 4 [1])
3. modify the social and cultural patterns of
conduct of men and women to eliminate
practices based on the idea of inferiority.
Superiority of either men or women (art. 5
[a])
4. educate family as to proper social function of
maternity and common responsibility in
rearing children (art. 5 [b])
What are some Civil and Political Rights under
CEDAW, which are unique to women?
1. Guarantee of civil and political rights
2. right to acquire, change, and retain
nationality- not prejudiced by marriage to a
foreigner (art. 9 [1])
3. equal rights with men as regards nationality
of children (art. 9 [2])
4. equal rights with men as regards freedom of
movement and choice of domicile/ residence
(art. 15 [4])
What are some Economic, Social and Cultural
Rights under CEDAW which are unique to
women?
1. Guarantee of Economic, Social and Cultural
rights
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2. equal rights with men as regards education
(Art. 10)
elimination of stereotyped concept of
roles of man and women through coeducation, revision of textbooks,
programmes and teaching methods;
reduction of female student dropouts; and access to information on
health and well-being of families,
including advice of family planning.
3. equal rights with men as regards
employment (art. 11)
4. prohibition against dismissals due to
marriage, pregnancy or maternity leave;
5. promotion of child-care facilities; special
protection to pregnant women as regards
type of work.
6. equal access with men as regards health
services, right to services in connection with
pregnancy,
adequate
nutrition
during
pregnancy and lactation and confinement
and the post natal period (art. 12)
7. right to enter into marriage, to freely choose
a spouse and to enter into marriage only with
free and full consent;
8. equal rights and responsibilities as parents,
to freely decide number of children and
access to information and education to be
able to exercise these rights.
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ADMINISTRATIVE LAW
Sources of power of administrative agencies:
charter or statute
constitution
Powers of Administrative Agencies
As to their nature:
1. Quasi-legislative power / Power of
subordinate legislation
2. Quasi-judicial
power/Power
of
adjudication
3. Determinative powers (Note: Senator
Neptali Gonzales calls them incidental
powers)
4. Investigatory power (although some
authors include this as part of quasijudicial power, De Leon is of the opinion
that it is separate and distinct, not
merely incidental)
Note: the failure to exercise such powers
granted to them does not forfeit or extinguish
them
As to the degree of subjective choice:
1. Discretionary- the power or right
conferred upon them by law to act
officially under the circumstances,
according to the dictates of their own
judgment/conscience
2. Ministerial- nothing is left to discretion; a
duty performed in response to what has
been imposed by law
Definition of "QUASI-LEGISLATIVE POWER"
It is the authority delegated by the law-making
body to the administrative body to adopt rules
and regulations intended to carry out the
provisions of a law and implement legislative
policy.
Distinctions between Quasi-legislative power
and legislative power
1. LEGISLATIVE power involves the
discretion to determine what the law
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involves the discretion to determine how
the law shall be enforced.
2. LEGISLATIVE power CANNOT be
delegated. QUASI-legislative power
CAN be delegated.
Tests of Delegation (applies to the power to
promulgate administrative regulations)
1. COMPLETENESS test. This means
that the law must be complete in all its
terms and conditions when it leaves the
legislature so that when it reaches the
delegate, it will have nothing to do but to
enforce it.
2. SUFFICIENT STANDARD test. The law
must offer a sufficient standard to
specify the limits of the delegate’s
authority, announce the legislative policy
and specify the conditions under which it
is to be implemented.
NOTE: These two must CONCUR. If one or
both are absent, any delegation that occurs is
UNDUE DELEGATION of legislative powers.
Exceptions to the rule requiring standards or
guides
handling of state property or funds
when the law does not involve personal
or property rights
matters of internal administration
power of the board to make
recommendation
matters involving privileges (like use of
property, engaging in profession)
regulation or exercise of police power to
protect general welfare, morals and
public policy
Limitations on the exercise of quasilegislative power
1. it must be within the limits of the powers
granted to Administrative agencies
2. cannot make rules or regulations which
are inconsistent with the provisions of
the Constitution or statute
3. cannot defeat/ derogate the purpose of
the statute
4. may not amend, alter, modify, supplant,
enlarge, or limit the terms of the statute
5. a rule or regulation must be uniform in
operation, reasonable and not unfair or
discriminatory
Definition of “QUASI-JUDICIAL POWER”
It is the power of administrative authorities to
make determinations of facts in the performance
of their official duties and to apply the law as
they construe it to the facts so found. .It
partakes of the judicial, but is exercised by a
person other than a judge.
Determinative Powers [DEEDS]
1. ENABLING powers
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Those that PERMIT the doing of an act which
the law undertakes to regulate and would be
unlawful without government approval.
Ex. Issuance of licenses to engage in a
particular business
2. DIRECTING powers
Those that involve the corrective powers of
public
utility
commissions,
powers
of
assessment under the revenue laws, reparations
under public utility laws, and awards under
workmen’s compensation laws, and powers of
abstract determination such as definitionvaluation, classification and fact finding
3. DISPENSING powers
Exemplified by the authority to exempt from or
relax a general prohibition, or authority to relieve
from an affirmative duty. Its difference from
licensing power is that dispensing power
sanctions a deviation from a standard.
4. SUMMARY powers
Those that apply compulsion or force against
person or property to effectuate a legal purpose
without a judicial warrant authorizing such
action; usually without notice and hearing.
Ex. Abatement of nuisance, summary
restraint, levy of property of delinquent
taxpayers
5. EQUITABLE powers
Those that pertain to the power to determine the
law upon a particular state of facts. It refers to
the right to, and must, consider and make proper
application of the rules of equity.
Ex. Power to appoint a receiver, power to
issue injunctions
Definition of “INVESTIGATORY POWER”
The power to inspect, secure, or require
the disclosure of information by means of
accounts, records, reports, statements and
testimony of witnesses.
Administrative agencies do not have the
inherent power to require the attendance of
witnesses but has the power to require the
production of books, etc. The exertion if not
expressly provided for by law must be done
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Neither do they have the inherent power
to punish a person who fails to appear before
them for contempt in the absence of any
statutory provision granting the same.
Kinds of Administrative Regulations
DISTINC
TIONS
1. Capacity
that
administrati
ve agency
is acting in
2. What
administrati
ve agency
is doing
3. Force
and effect
LEGISLATIVE
Legislative
It supplements
the statute by
filling
in
the
details
Legislative
regulations have
the force and
effect of law
immediately
upon going into
effect. Such is
accorded by the
courts or by
express
provision of
statute.
INTERPRE
TATIVE
Judicial
It
says
what
the
statute
means
Merely
persuasive/
Received
by the
courts with
much
respect but
not
accorded
with finality
Requisites of a Valid Administrative
Regulation
1. Its promulgation must be authorized by
the legislature.
2. It must be within the scope of the
authority given by the legislature.
3. It must be promulgated in accordance
with the prescribed procedure.
4. It must be reasonable.
Need for Previous Notice and Hearing
1. General Rule: Administrative rules of
GENERAL application do NOT require
previous notice and hearing.
2. Exceptions:
a. When the legislature itself requires it
and mandates that the regulation
shall be based on certain facts as
determined at an appropriate
investigation.
b. And, if the regulation is in effect a
settlement of a controversy between
specific parties, it is considered an
administrative
adjudication,
requiring notice and hearing.
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Prescribing of Rates
It can be either:
1. LEGISLATIVE
If the rules/rates are meant to
apply to all enterprises of a given kind
throughout the country, prior notice and
hearing is NOT required.
2. QUASI-JUDICIAL
If the rules and rates imposed
apply exclusively to a particular party,
based upon a finding of fact, prior notice
and hearing is REQUIRED.
Requirement of Publication
Administrative Regulations that MUST be
published:
1. Administrative regulations of GENERAL
application.
2. Administrative regulations which are
PENAL in nature.
3. When the law specifically requires
notice and hearing
Administrative regulations that DO NOT NEED
to be published:
1. INTERPRETATIVE regulations
2. INTERNAL
RULES
AND
REGULATIONS
governing
the
personnel of the administrative agency.
3. Letters of instruction issued by
administrative superiors concerning
guidelines to be followed by their
subordinates. (Tanada v. Tuvera)
Special Requisites of a Valid Administrative
Regulation with a PENAL sanction
1. The law itself must make violation of the
administrative regulation punishable.
2. The law itself must impose and specify
the penalty for the violation of the
regulation.
3. The regulation must be published.
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1. Jurisdiction
2. Due process
Requirements of Procedural Due Process in
Administrative Proceedings
1. The right to a hearing, which includes
the right to present one’s case and
submit evidence in support thereof.
2. The tribunal must consider the evidence
presented.
3. The decision must be based on facts
and law.
4. The evidence must be substantial.
5. The decision must be rendered on the
evidence presented at the hearing, or at
least contained in the record and
disclosed to the parties affected.
6. The tribunal or body or any of its judges
must act on its or his own independent
consideration of the law and facts of the
controversy and not simply accept the
views of a subordinate in arriving at a
decision.
7. The board or body should, in all
controversial questions, render its
decision in such a manner that the
parties to the proceeding can know the
various issues involved, and the reason
for the decision rendered.
NOTE: The rule requiring an admin officer to
exercise his own judgment and discretion DOES
NOT preclude him from utilizing the aid of his
subordinates in the hearing and reception of
evidence.
When an admin agency acts as a collegiate
body, its power and duties CANNOT be
exercised by the members individually.
Exceptions to the Notice and Hearing
Requirement:
1. Urgency of immediate action
2. Tentativeness of the administrative
action
3. Right was previously offered but not
claimed
4. Summary abatement of a nuisance per
se
5. Preventive suspension of a public
servant facing administrative charges
6. Padlocking of filthy restaurants/theaters
showing obscene movies
7. Cancellation of a passport of a person
sought for criminal prosecution
8. Summary proceedings of levy upon
properties of a delinquent taxpayer
9. Replacement of a temporary or acting
appointee
Doctrine
REVIEW
of
RIPENESS
FOR
JUDICIAL
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1. This determines the point at which
courts may review admin action.
2. Application:
a. when the interest of the plaintiff is
subjected
to
or
imminently
threatened with substantial injury
b. if the statute is self-executory
c. when a party is immediately
confronted with the problem of
complying or violating a statute and
there is a risk of criminal penalties
d. when plaintiff is harmed by the
vagueness of the statute
Questions Reviewable on Judicial Review:
1. Questions of FACT
General Rule: Courts will not disturb
the findings of administrative agencies
acting within the parameters of their own
competence.
Exception: If such findings are NOT
supported by substantial evidence.
By reason of their special knowledge,
expertise, and experience, the courts
ordinarily accord respect if not finality to
factual findings of administrative tribunals.
2. Questions of LAW
Administrative
decision
may
be
appealed to the courts independently of
legislative permission.
It may be appealed even against
legislative prohibition because the judiciary
cannot be deprived of its inherent power to
review all decisions on questions of law.
Enforcement of admin determinations/
decisions
Must be in accordance with the manner
prescribed by the statute. Or, if there is no
provision, resort to the courts is necessary for
enforcement.
Doctrine of FINALITY
General Rule: Courts are reluctant to interfere
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its completion or finality. Absent a final order or
decision, power has not been fully and finally
exercised, and there can usually be no
irreparable harm.
Exceptions:
1. Interlocutory order affecting the merits of
a controversy;
2. Preserve status quo pending further
action by the administrative agency;
3. Essential to the protection of the rights
asserted from the injury threatened;
4. Officer assumes to act in violation of the
Constitution and other laws;
5. Order not reviewable in any other way;
6. Order made in excess of power
Doctrine of PRIMARY JURISDICTION
1. Courts cannot or will not determine a
controversy,
which
requires
the
expertise,
specialized
skills
and
knowledge of the proper administrative
bodies because technical matters of
intricate questions of fact are involved.
2. Relief must first be obtained in an
administrative proceeding before a
remedy will be supplied by the court,
despite the matter is within the proper
jurisdiction of a court.
Doctrine of PRIOR RESORT
When a claim originally cognizable in the courts
involves issues, which under a regulatory
scheme are within the special competence of an
administrative agency, judicial proceedings will
be suspended pending the referral of these
issues to the administrative body for its view.
NOTE: The doctrines of primary jurisdiction and
prior resort have been considered to be
interchangeable.
Doctrine
of
EXHAUSTION
OF
ADMINISTRATIVE REMEDIES
General Rule: An administrative decision must
first be appealed to the administrative superiors
up to the highest level before it may be elevated
to a court of justice for review.
NOTE: The premature invocation of a court’s
intervention is fatal to one’s cause of action
Reasons:
1. to enable the administrative superiors to
correct the errors committed by their
subordinates.
2. courts should refrain from disturbing the
findings of administrative bodies in
deference to the doctrine of separation of
powers.
3. courts should not be saddled with the
review of administrative cases.
4. judicial review of administrative cases is
usually effected through special civil
actions which are available only if there is
no other plain, speedy and adequate
remedy.
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Exceptions:
1. when the question raised is purely
legal, involves constitutional questions
2. when the administrative body is in
estoppel
3. when act complained of is patently
illegal
4. when there is urgent need for judicial
intervention
5. when claim/ amount involved is small
6. when irreparable damage is involved
7. when there is no other plain, speedy ,
adequate remedy
8. when strong public interest is involved
9. when the subject of controversy is
private land
10. in quo warranto proceedings
11. when the administrative remedy is
permissive, concurrent
12. utter disregard of due process
13. long-continued and unreasonable delay
14. when no administrative review is
provided
15. respondent is a department secretary
(DOCTRINE
OF
QUALIFIED
POLITICAL AGENCY – ALTER EGO
DOCTRINE)
Substantial evidence – defined to mean not
necessarily preponderant proof as required in
ordinary civil cases but such kind of relevant
evidence which a reasonable mind might accept
as adequate to support a conclusion.
Tudtud v. Caayon ,454 SCRA 10 (March 28,
2005)
Ratio:
Civil Service Commission Resolution
No. 99-1936 classifies simple neglect of
duty as a less grave offense and
imposes the penalty of suspension of 1
month and 1 day to 6 months for the
first offense.
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196 (March
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2005)
Ratio:
Unjustified failure to comment on an
administrative complaint constitutes
gross misconduct and insubordination.
MMDA v. Garin, 456 SCRA 176 (April 15, 2005)
Ratio:
Only where there is a traffic law or
regulation validly enacted by legislature
or those agencies to whom legislative
powers have been delegated that the
MMDA may confiscate and suspend or
revoke driver’s licenses in the exercise
of its mandate of transport and traffic
management, as well as the
administration and implementation of all
traffic enforcement operations, traffic
engineering services and traffic
education programs.
Republic Act No. 7924 does not grant
the MMDA with the police power, let
alone the legislative power, and that all
its functions are legislative in nature.
The laudable intentions regarding the
creation of the MMDA are limited by its
enabling law which the Court can but
interpret – MMDA’s efforts must be
authorized by a valid law, or ordinance,
or regulation arising from a legitimate
source.
Bagano v. Hontanosas, 458 SCRA 59 (May 6,
2005)
Ratio:
When the law or rule is so elementary,
as that which written motions to be
heard, not knowing about it constitutes
gross ignorance of the law even in the
absence of malicious intent.
Mendoza v National Police Commission ,460
SCRA 399 (June 21, 2005)
Ratio: In cases where the decision rendered by
a bureau or office is appealable to the Civil
Service Commission, the same may initially be
appealed to the Department and finally to the
Commission.
Concerned Taxpayer v Doblada*, 470 SCRA
218 (September 20, 2005)
Ratio:
The prescription provided for in RA 3019
does not apply in administrative cases –
administrative offenses do not prescribe.
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LAW ON PUBLIC CORPORATION
Definition of public corporation
It is formed or organized for the government of a
portion of the State. (Corporation Code)
Elements of a municipal corporation
1. A legal creation or incorporation
2. A corporate
name by which
the
artificial personality or legal entity is
known and in which all corporate acts
are done
3. Inhabitants constituting the population
who are invested with the political and
corporate powers which are executed
through duly constituted officers and
agents
4. A place or territory within which the local
civil government and corporate functions
are exercised.
Dual nature of municipal corporations
1. Governmental
a. The municipal corporation acts as
an agent of the State for the
government of the territory and the
inhabitants within the municipal
limits
b. It exercises by delegation a part of
the sovereignty of the State
2. Private/proprietary
a. It acts in a similar category as a
business corporation, performing
functions not strictly governmental
or political
b. Those exercised for the special
benefit and advantage of the
community.
Note: Local Government Code §15. Every LGU
created or recognized under this Code is a body
politic and corporate endowed with powers to be
exercised by it in conformity with law. As such, it
shall exercise powers as a POLITICAL
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as a CORPORATE ENTITY representing the
inhabitants of its territory.
Requisites for the Incorporation
Municipal Corporation
CODE: Te Po C
1. Territory
2. Population
3. Charter
of
a
Requisites of a De Facto Municipal
Corporation
1. A valid law authorizing incorporation
2. An attempt in good faith to organize
under it
3. A colorable compliance with the law
4. An assumption of corporate powers
An attack on Legal Existence
A quo warranto proceeding brought by the State
is the proper remedy. It should be commenced
within 5 years from the time the act complained
of was committed.
Creation of Local Government Units (LGUs)
Authority to Create LGUs (§ 6, LGC)
1. By law enacted by Congress
a. Province
b. City
c. Municipality
b. Any other political subdivision (A
barangay may also be created by
law. See §386)
2. By ordinance passed by Sangguniang
Panlalawigan /Panlungsod
For barangay located within its
territorial jurisdiction
Indicators for creation/conversion
a. Income
b. Population
c. Land Area
Plebiscite Requirement
It applies to the creation, division,
merger, abolition or substantial alteration of
boundaries of LGU.
Creation etc. should be approved by a
majority of the votes cast in a plebiscite called
for the purpose in the political unit or units
directly affected.
Beginning of Corporate Existence ( §14,
LGC)
Corporate existence commences upon the
election and qualification of its chief executive
and a majority of members of the Sanggunian
unless some other time is fixed by the law or
ordinance creating it.
Local Autonomy
Local autonomy can be considered a measure
of decentralization of the functions of
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government.
Under the principle of local
autonomy and decentralization, LGUs have
more powers, authority, responsibilities and
resources.
Decentralization
It is the devolution of national administration, not
power, to the local levels, in which local officials
remain accountable to the central government in
the manner the law may provide.
Levels of Decentralization
Administrative Autonomy
1. The central government delegates
administrative powers to the political
subdivisions.
2. Purposes
a. To broaden the local power base
b. To make the units more responsive
and accountable
c. To ensure the full development of
LGUs into self-reliant communities
d. To break the monopoly of the
national government over managing
local affairs
e. To relieve the national government
from the burden of managing local
affairs
Political Autonomy
1. Involves the abdication of political power
in favor of LGUs declared to be
autonomous
2. It would amount to self-immolation
because the autonomous government
would become accountable to its
constituency, not to the central
government.
Devolution
It refers to the act by which the national
government confers power and authority upon
the various LGUs to perform specific functions
and responsibilities. (§ 17, LGC).
It is
considered mandatory under the LGC.
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Distinction between Supervision and Control
Supervision
It means the overseeing or the power or
authority of an officer to see that the subordinate
officers perform their duties.
In relation to LGUS, the President only
has the power of supervision over LGUS. Thus,
he cannot interfere with the local governments
as long as they act within the scope of their
authority.
Under the LGC (§25), the President
exercises direct supervision over provinces,
highly urbanized cities and independent
component cities. He exercises indirect
supervision over component cities and
municipalities through the provinces. He also
exercises indirect supervision over barangays
through the city or municipality concerned.
Control
It means the power of an officer to alter or
modify or nullify or set aside what a subordinate
officer has done in the performance of his/her
duties and to substitute the judgment of the
former for that of the latter.
In relation to LGUs, it is Congress which
exercises control over them.
Police Power
Police power is not inherent in municipal
corporations. Under the LGC, LGUs exercise
police power under the general welfare clause
(See § 16)
Branches of the general welfare clause
One branch relates to such ordinances
and regulations as may be necessary to carry
into effect and discharge the powers and duties
conferred upon the municipal council by law.
The second branch is more independent
of the specific functions of the council. It
authorizes ordinances as are necessary and
proper to provide for the health and safety,
promote prosperity, improve morals, peace,
good order etc.
Eminent Domain and Reclassification of
Land
Requisites for Valid Exercise [CODE: OPJO]
1. ORDINANCE authorizing the local chief
executive to subject a certain property to
expropriation
2. Expropriation should be for a PUBLIC
USE/PURPOSE or for the WELFARE of
the POOR/LANDLESS.
3. Payment of JUST COMPENSATION
4. Valid and definite OFFER TO PAY
which was NOT accepted.
Role of Supervising Local Government Unit
It can only declare the ordinance invalid on the
sole ground that it is beyond the power of the
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lower LGU to issue. Hence, it cannot declare
the ordinance invalid on the ground that it is
unnecessary. (Moday v. CA, Feb. 20, 1997)
Role of National Government
The approval of the national government is not
required of local governments to exercise the
power of eminent domain.
Role of Judiciary
1. Can inquire into the legality of the
exercise of the right.
2. Can determine whether there was a
genuine necessity
NOTE: Only cities and municipalities can
reclassify agricultural lands through the proper
ordinance after conducting public hearings for
the purpose.
Grounds for Reclassification
1. When the land ceases to be
economically feasible and sound for
agricultural purposes as determined by
the Department of Agriculture.
2. When the land shall have substantially
greater economic value for residential,
commercial or industrial purposes as
determined
by
the
Sanggunian
concerned.
Taxation
Power to tax of LGUs is now pursuant to direct
authority conferred by the 1987 Constitution.
Since LGUs have no inherent power to tax, their
power must yield to a legislative act.
Legislative Power
1. Local chief executive (except for punong
barangay because he is already a
member of the Sangguniang barangay)
has to approve the ordinance enacted
by the council.
2. Veto power of local chief executive. (§
55)
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i. Ultra vires
ii. Prejudicial to public welfare
b. Item veto
i. Appropriations ordinance
ii. Ordinance/resolution adopting local
development plan and public
investment program
iii. Ordinance directing the payment of
money or creating liability.
Veto communicated to sanggunian
within 15 days for province and 10 days
for city or municipality.
Review by Higher/Supervising Council
1. The higher council can declare the
ordinance/resolution invalid if it is
beyond the scope of the power
conferred upon the lower Sanggunian.
2. For barangay ordinances, the higher
council can also rule that it is
inconsistent with law or city/municipal
ordinances.
Corporate Powers (§ 22) CODE: S C Re C O
1. To have continuous succession in its
corporate name
2. To sue and be sued
3. To have and use a corporate seal
4. To acquire and convey real or personal
property
5. To enter into contracts
6. To exercise such other powers as are
granted to corporations, subject to
limitations in LGC/other laws.
Requisites of valid municipal contracts:
1. LGU has express, implied or inherent
power to enter into a particular contract;
2. Entered into by proper department,
board, committee, or agent;
3. must
comply
with
substantive
requirements;
4. must comply with formal requirements;
5. in case entered into by local chief
executive on behalf of LGU, prior
authorization by Sanggunian concerned
is needed
Municipal Liability
Rule: Local Government units and their officials
are not exempt from liability for death or injury to
persons or damage to property (Sec 24 R.A.
7160)
Doctrine of Implied Municipal Liability
A municipality may become obligated upon an
implied contract to pay the reasonable value of
the benefits accepted or appropriated by it as to
which it has the general power to contract; the
doctrine applies to all cases where money or
other property of a party is received under such
circumstances that the general law, independent
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of an express contract, implies an obligation to
do justice with respect to the same (Nachura,
Reviewer in Political Law, p. 499)
Qualifications of Elective Local Officials (§
39)
1. Filipino citizen
2. Registered voter in:
a. the barangay, municipality, city or
province where he intends to be
elected
b. the district where he intends to be
elected in case of a member of the
Sangguniang
panlalawigan,
Sangguniang
panlungsod
or
Sangguniang bayan.
3. Resident therein for at least 1 year
immediately preceding the day of the
election.
4. Able to read and write Filipino/ any other
local language or dialect
Age requirement
POSITION
Governor, Vice
Governor, Mayor, Vice
Mayor, member of
Sangguniang
Panlungsod in highly
urbanized cities
Mayor, Vice Mayor of
independent component
cities or municipalities
Member of Sangguniang
Panglungsod, Member of
Sangguniang Bayan,
Punong Barangay,
Member of Sangguniang
Barangay
AGE
REQUIREMENT
At least 23 years old
on election day
At least 21 years old
5. Fugitives from justice in criminal or nonpolitical cases here or abroad
6. Permanent residents in a foreign
country or those who have acquired the
right to reside abroad and continue to
avail of the same right after the
effectivity of this Code
7. The insane or feeble minded
Term of Office
Term of office: 3 years
No local elective official shall serve for more
than 3 consecutive terms in the same position.
Voluntary renunciation of the office for any
length of time shall be considered an interruption
in the continuity of service for the full term for
which the elective official concerned was
elected.
Vacancies
Permanent vacancy
1. Grounds
a. Elective local official fills a higher
vacant
office
b. Refuses to assume office
c. Fails to qualify
d. Dies
e. Removed from office
f. Voluntarily resigns
g. Permanently
incapacitated
to
discharge the
functions of his
office
At least 18 years old
Disqualifications for Local Elective Officials (§
40)
1. Those sentenced by final judgment for
an offense involving
moral turpitude, or
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more of imprisonment within 2 years
after serving sentence
2. Those removed from office as a result of
an administrative case.
3. Those convicted by final judgment for
violating the oath of allegiance to the
Republic
4. Those with dual citizenship
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2. Filling of vacancy
a. Automatic succession
VACANCY
1. In the office of
the governor,
mayor
2. In the office of
the governor,
vice-governor,
mayor or vicemayor
3. In the office of
the highest
ranking
Sanggunian
member (who
was supposed to
fill the vacant
position of
governor etc.
4. In the office of
the punong
barangay
b. by appointment
VACANCY
1. Sanggunian
Panlalawigan or
Panlungsod of
highly urbanized
cities and
independent
component cities
2. Sangguniang
Panlungsod of
Component Cities,
Sangguniang
Bayan
3. Sangguniang
Barangay
SUCCESSOR
Vice-Governor, ViceMayor
Highest ranking
Sanggunian member
Second highest
ranking Sanggunian
member
Highest ranking
sangguniang barangay
member/2nd highest
ranking sanggunian
member
APPOINTMENT BY
WHOM
President, through
Executive Secretary
Governor
City/Municipal
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Recommendation of
the Sanggunian
barangay concerned
3. Ranking- It is determined on the basis of
proportion of votes obtained by each
winning candidate to the total number of
registered voters in each district in the
immediately preceding local election
4. The general rule is that the successor
(by appointment) should come from the
same political party as the Sanggunian
member whose position has become
vacant. The exception would be in the
case of vacancy in the Sangguniang
barangay.
Temporary Vacancy
Grounds (not exclusive list)
1. Leave of absence
2. Travel abroad
3. Suspension from office
If the positions of governor, mayor or
punong barangay become temporarily vacant,
the vice-governor, vice-mayor or highest ranking
Sanggunian member will automatically exercise
the powers and perform the duties and functions
of the local chief executive concerned.
Exception:
He/she cannot exercise the
power to appoint, suspend or dismiss
employees. Exception to exception: If the period
of temporary incapacity exceeds 30 working
days.
Termination of temporary incapacity
Upon submission to the appropriate
Sanggunian of a written declaration by the local
chief that he has reported back to office
If the temporary incapacity was due to
legal reasons, the local chief executive should
also submit necessary documents showing that
the legal causes no longer exist.
Appointment of OIC:
The local chief executive can designate
in writing an OIC if he is traveling within the
country but outside his territorial jurisdiction for a
period not exceeding 3 consecutive days.
The OIC cannot exercise the power to
appoint, suspend or dismiss employees.
Omnibus Election Code (§ 67)
Any elective official, whether national or
local, running for any office other than the one
which he is holding in a permanent capacity,
except for President and Vice-President, shall
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be considered ipso facto resigned from his office
upon filing of his certificate of candidacy.
Grounds for Disciplinary Actions (§ 60)
CODE: DCDCAUAS
An elective local official may be disciplined,
suspended or removed from office on any of the
following grounds:
1. Disloyalty to the Republic of the
Philippines
2. Culpable violation of the Constitution
3. Dishonesty, oppression, misconduct in
office, gross negligence, dereliction of
duty
4. Commission of any offense involving
moral turpitude or an offense punishable
by at least prison mayor
5. Abuse of authority
6. Unauthorized
absence
for
15
consecutive working days, except in the
case of members of the Sanggunian
panlalawigan,
Sangguniang
panlungsod,
Sangguniang
bayan,
Sangguniang barangay.
7. Application for or acquisition of foreign
citizenship or residence or the status of
an immigrant of another country.
8. Such other grounds as may be provided
by the Code/other laws.
Preventive Suspension (§ 63)
1. When can it be imposed
a. After the issues are joined
b. When the evidence of guilt is strong
c. Given the gravity of the offense,
there is great probability that the
continuance in office of the
respondent could influence the
witnesses or pose a threat to the
safety and integrity of the records
and other evidence
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2. Who can impose preventive suspension
IMPOSED BY:
1. President
2. Governor
3. Mayor
RESPONDENT
LOCAL OFFICIAL
Elective official of a
province, highly
urbanized
or Independent
component city
Elective official of a
component city or
municipality
Elective official of a
barangay
3. Duration of preventive suspension
Single
preventive
suspension
should not exceed 60 days.
If several administrative cases are
filed against an elective official, he
cannot be preventively suspended
for more than 90 days within a
single year on the same ground/s
existing and known at the time of
the first suspension.
Suspension
It should not exceed the unexpired
term of the respondent or a period of 6
months for every administrative offense.
Penalty is NOT a bar to the candidacy of
the respondent suspended as long as he meets
the qualifications for the office.
Removal as result of Administrative
Investigation
It serves as a BAR to the candidacy of the
respondent for any elective position.
Recall (§§ 69-75)
Recall is the power of the electorate (registered
voters) to remove a local elected official for loss
of confidence through the holding of a
special/recall election.
Two modes of initiating a recall:
1. adoption of a resolution by the
Preparatory
Recall
Assembly
(composed of local officials of the
lower/supervised local government unit)
2. petition by at least 25% of the registered
voters.
GROUND = Loss of confidence
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Process of Initiating Recall
I. By Preparatory Recall Assembly (PRA)
1. Composition of PRA
IMPOSED BY:
1. President
2. Governor
3. Mayor
LEVEL
1. Provincial
2. City
3. Legislative
district
4. Municipal
RESPONDENT LOCAL
OFFICIAL
Elective official of a
province, highly
urbanized
or Independent
component city
Elective official of a
component city or
municipality
Elective official of a
barangay
COMPOSITION
Mayors, vice-mayors,
Sanggunian members of
the municipalities and
component cities
Punong barangay and
Sangguniang barangay
members in the city
Elective
municipal/barangay
officials
Punong barangay and
sangguniang barangay
members in the
municipality
2. Procedure
Session in a public place to initiate recall
proceeding
Resolution adopted by a majority of all
the members of the PRA during the
session called for the purpose of
initiating recall proceedings
II. By Petition of Registered Voters
Petition of at QuickTime™
least 25%
of the total
and a
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LGU concerned during the election
in which the local official sought to
be recalled was elected.
The written petition for recall should
be duly signed before the election
registrar or his representative and in
the presence of the representative
of the petitioner and the official
sought to be recalled.
It should be signed in a public place.
Petition should be filed with
COMELEC through its office in the
LGU concerned
Publication of petition for 10-20 days
in order to verify the authenticity and
genuineness of the petition and the
required % of voters.
Conduct of Recall Election
The official/s sought to be recalled are
automatically considered as duly
registered candidates.
The date set for the recall election
should not be less than 30 days after
filing of resolution/petition in the case of
barangay, city or municipal officials and
45 days in the case of provincial officials
Effectivity of Recall
Recall will only be effective upon the
election and proclamation of a
successor.
If the official sought to be recalled
receives the highest number of votes,
confidence in him is affirmed and he
shall continue in office.
Limitations on Recall
Elective local official can be the subject
of a recall election only once during his
term of office.
No recall shall take place within 1 year
from the date of the official’s assumption
to office or 1 year immediately
preceding a regular local election.
LOCAL Initiative (§§ 120-125)
It is the legal process whereby the registered
voters of a LGU may directly propose, enact or
amend any ordinance
NOTE: In Garcia v. Comelec, the SC ruled that
a resolution can also be the proper subject of an
initiative
Who May Exercise Power
It may be exercised by all registered voters of
the provinces, cities, municipalities, barangays.
Procedure
1. Number of voters who should file
petition with Sanggunian concerned
a. Provinces and cities - at least 1000
registered voters
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b. Municipality - at least 100
c. Barangay - at least 50
2. Sanggunian concerned has 30 days to
act on the petition. If the Sanggunian
does not take any favorable action, the
proponents may invoke the power of
initiative, giving notice to Sanggunian.
3. Proponents will have the following
number of days to collect required
number of signatures
a. Provinces and cities - 90 days
b. Municipalities - 60 days
c. Barangays - 30 days
4. Signing of petition
5. Date for initiative set by Comelec if
required number of signatures has been
obtained.
Effectivity of Proposition
If proposition is approved by a majority
of the votes cast, it will take effect 15
days after certification by the Comelec
as if the Sanggunian and the local chief
executive had taken affirmative action.
If it fails to obtain required number of
votes, it is considered defeated
Limitations
It should not be exercised more than
once a year.
It can only extend to subjects or matters
which are within the legal powers of the
Sanggunians to enact.
If the Sanggunian adopts in toto the
proposition presented and the local chief
executive approves the same, the
initiative shall be cancelled.
Limitations upon Sanggunians
The Sanggunian cannot repeal, modify
or amend any proposition or ordinance
approved
through
system
of
initiative/referendum within 6 months
from the date of approval thereof.
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repeal the proposition/ordinance w/in 3
years thereafter by a vote of ¾ of all its
members.
For barangays, the applicable period is
18 months.
approve, amend or reject any ordinance enacted
by the Sanggunian.
Authority of Courts
The proper courts can still declare void any
proposition
adopted
pursuant
to
an
initiative/referendum on the following grounds:
1. Violation of the Constitution
2. Want of capacity of the Sanggunian
concerned to enact the measure.
Camid v. Office of the President, 448 SCRA
711 (January 17, 2005)
Ratio:
Pelaez (122 Phil 965) and its offspring
cases ruled that the President has no
power to create municipalities, yet
limited its nullificatory effects to the
particular municipalities challenged in
actual cases before this Court. With the
promulgation of the Local Government
Code, the legal cloud was lifted over the
municipalities similarly created by
Executive Order but not judicially
annulled – Section 442B of the Local
Government Code deemed curative
whatever legal effects to title those
municipalities had labored under.
Municipal corporations may exist by
prescription where it is shown that the
community has claimed and exercised
corporate functions, with the knowledge
and acquiescence of the legislature, and
without interruption or objection for
period long enough to afford title by
prescription.
The legal effect of the nullification of a
municipality in Pelaez case was to
revert the constituent barrios of the
voided town back into their original
municipalities.
Referendum (§§ 126-127)
It is the legal process whereby the registered
voters of the local government units may
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Atienza v Villarosa , 458 SCRA 385 (May 10,
2005)
Laxina, Sr. v Office of the Ombudsman*, 471
SCRA 542 (September 30, 2005)
Ratio:
Ratio:
The provisions of Republic Act 7160 are
anchored on principles that give effect to
decentralization.
The Vice-Governor, as the presiding
officer
of
the
Sangguniang
Panlalawigan, has administrative control
of the funds of the said body and it is he
who has the authority to approve
disbursement vouchers for expenditures
appropriated for the operation of the
Sangguniang Panlalawigan.
While Republic Act 7160 is silent as to
the matter, the authority granted to the
Vice-Governor to sign all warrants
drawn on the provincial treasury for all
expenditures appropriated for the
operation
of
the
Sangguniang
Panlalawigan as well as to approve
disbursement vouchers relating thereto
necessarily includes the authority to
approve purchase orders covering the
same applying the doctrine of necessary
implication.
While the Governor has authority to
appoint officials and employees whose
salaries are paid out of the provincial
funds, this does not extend to the
officials and employees of the
Sangguniang Panlalawigan because
such authority is lodged with the ViceGovernor. The appointing power of the
Vice-Governor is limited to the
employees
of
the
Sangguniang
Panlalawigan as well as those of the
Office of the Vice-Governor, whose
salaries are paid out of the funds
appropriated for the Sangguniang
Panlalawigan – if the salary of an
employee or official is charged aagainst
the provincial funds,
even if this
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or is assigned to his office, the Governor
retains the authority to appoint the said
employee
The Office of the Ombudsman has
concurrent jurisdiction with the local
government units over administrative
cases against elective officials such as
barangay chairmen.
Republic v Gingoyon*,
(December 19, 2005)
478
SCRA
474
Ratio:
The
Court
cannot
accept
the
Government’s proposition that the only
properties that may be expropriated
under Republic Act No. 8974 are
parcels of land – RA No. 8974
contemplates within its coverage such
real property constituting land, buildings,
roads, and constructions of all kinds
adhered to the soil.
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LAW ON PUBLIC OFFICERS
PUBLIC OFFICE is the right, authority, and duty
created and conferred by law, by which for a given
period, either fixed by law or enduring at the pleasure
of the appointing power, an individual is invested with
some portion of the sovereign functions of the
government, to be exercised by him for the benefit of
the public.
Essential elements
1. Created by Constitution or by law or by some
body or agency to which the power to create
the office has been delegated (enabling law)
2. Invested with authority to exercise some
portion of the sovereign power of the State
3. Powers/Functions
defined
by
the
Constitution, law, or through legislative
authority
4. Duties are performed independently without
control unless those of a subordinate
5. Continuing / permanent in nature
Distinctions
Public Official is an officer of the Government itself,
as distinguished from the officers and employees of
instrumentalities of government.
Officer is distinguished from an employee in the
greater importance, dignity and independence of his
position, being required to take an official oath, and
perhaps give an official bond and in the liability to be
called to account as a public offender for
misfeasance or nonfeasance in office.
REQUIREMENTS FOR PUBLIC OFFICE
I. Eligibility and Qualification
Eligibility is the state or quality of being legally fit or
qualified to be chosen. Qualification refers to the act
which a person, before entering upon the
performance of his duties, is by law required to do
such as the taking, and often, subscribing and filing
of an official oath, and, in some cases, the giving of
an official bond.
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Who are required to give an official bond?
Accountable public officers or those to whom are
entrusted the collection and custody of public money,
and public ministerial officers whose actions may
affect the rights and interests of individuals.
II. Formal qualifications:
1. citizenship,
2. age,
3. suffrage,
4. residence,
5.
6.
7.
8.
education,
ability to read and write,
political affiliation,
civil service examination
III. Disqualifications
The following are grounds for disqualification to hold
public office:
1. mental or physical incapacity,
2. misconduct or crime,
3. impeachment,
4. removal or suspension from office,
5. previous tenure of office,
6. consecutive terms,
7. holding more than one office,
8. relationship with the appointing power,
9. office newly created or the emoluments of
which have been increased,
10. being an elective official,
11. having been a candidate for any elective
position, and
12. grounds under the local government code.
In the absence of constitutional inhibition,
Congress has the same right to provide
disqualifications that it has to provide
qualifications for office.
When the constitution has attached a
disqualification to the holding of any office,
Congress cannot remove it under the power
to prescribe qualifications as to such offices
as it may create.
Presumption is in favor of eligibility.
The
qualifications
are
continuing
requirements and must be possessed not
only at the time of appointment or election or
assumption of office but during the officer’s
entire tenure.
Limitations on the power of the legislature to
prescribe qualifications:
1. The legislature may not reduce or increase
the qualifications prescribed in an exclusive
manner by the Constitution.
2. The legislature may prescribe only general
qualifications.
3. The qualifications must be relevant to the
office for which they are prescribed.
IV. Selection for Public Office
A public officer is chosen either by appointment or
election.
1. Appointment
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Appointment is the act of designation by the
executive officer, board, or body to whom
that power has been delegated, of the
individual who is to exercise the powers and
functions of a given office. It is to be
distinguished
from
the
selection
or
designation by a popular vote.
Power to appoint is generally regarded as an
executive function. But it is not limited to the
executive department.
Power of appointment is absolute when the
choice of the appointing authority is
conclusive. It is conditional where assent or
approval by some other officer or body is
necessary to complete the appointment.
Acceptance of appointment is not necessary
for the completion or validity of appointment.
However, acceptance is necessary to
possession of office, and to enable appointee
to the enjoyment and responsibility of an
office. Acceptance may be express when it
is done verbally or in writing. Acceptance is
implied when without formal acceptance, the
appointee enters upon the exercise of the
duties and functions of an office.
The general rule is that an appointment to an
office, once made and complete, is not
subject to reconsideration or revocation. The
exception is where an officer is removable at
will of the appointing power.
Steps in the Appointing Process:
1. Nomination – exclusive prerogative of the
President
2. Confirmation – belongs to Congress i.e.
Commission on Appointments
3. Issuance of commission – a commission is a
written authority from a competent source
given to the officer as his warrant for the
exercise of the powers and duties of the
office to which he is commissioned.
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Commission is called “Attestation”.
2. Designation
Designation is simply the mere
imposition of new or additional duties upon an
officer to be performed by him in a special
manner. It presupposes that the officer is already
in the service by virtue of an earlier appointment,
performing other functions.
V. Vacancy
There is a vacancy when an office is empty and
without a legally qualified incumbent appointed or
elected to it with a lawful right to exercise its powers
and perform its duties. There can be no appointment
to a non-vacant position.
Causes of vacancy are death, permanent disability,
removal from office or resignation of the incumbent.
Other causes of vacancy are abandonment,
expiration of term, conviction of a crime,
impeachment conviction, acceptance of incompatible
office, creation of a new office, reaching the age limit,
and recall.
DE FACTO AND DE JURE OFFICERS
I. De Facto Officers
A de facto officer is one who actually possesses an
office although he has an imperfect or colorable title
thereto. His acts, though not those of a lawful officer,
the law, upon principles of policy and justice, will hold
valid so far as they involve the interests of the public
and third persons.
The requisites of de facto officer:
1. There must be a de jure office;
2. There must be color of right or general
acquiescence by the public; and
3. There must be actual physical possession of
the office in good faith.
II. De Jure Officers
A de jure officer is one who has the lawful right to the
office in all respects, but who has either been ousted
from it, or who has never actually taken possession
of it. When the officer de jure is also the officer de
facto, the lawful title and possession are united.
Usurper is one who takes possession of the office
and undertakes to act officially without any color of
right or authority, either actual or apparent.
III. Effects of Acts of De Facto Officers
The lawful acts of an officer de facto, so far
as the rights of third persons are concerned
are, if done within the scope and by the
apparent authority of the office, considered
valid and binding as if he were the officer
legally elected and qualified for the office and
in full possession thereof.
The de facto officer cannot benefit from his
own status because public policy demands
that unlawful assumption of public office be
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discouraged. Thus, as a general rule, the de
facto officer cannot claim a salary and other
compensations for services rendered by him
as such. However, there is authority to the
effect that the de facto officer may retain
salaries collected by him for services
rendered in good faith where there is no de
jure officer claiming the office.
The de facto officer is subject to the same
liabilities imposed on the de jure officer in the
discharge of official duties, in addition to
whatever special damages may be due from
him because of his unlawful assumption of
office.
IV. How to challenge a de facto officer:
The incumbency of a de facto officer may not
be challenged collaterally or in an action to
which he is not a party.
The challenge must be made in a direct
proceeding where title to the office will be the
principal issue.
The authorized proceeding is quo warranto
either by the Solicitor General in the name of
the Republic or by any person claiming title
to the office.
THE CIVIL SERVICE
I. Scope of the Civil Service
The civil service embraces all branches,
subdivisions, instrumentalities, and agencies
of the Government, including governmentowned or controlled corporations with original
charters.
The civil service does not include
government-owned or controlled corporations
which are organized as subsidiaries of
government-owned or controlled corporations
under the general corporation law.
3. security of tenure
The Career Service includes:
1. Open career positions for which prior
qualification in an appropriate examination is
required;
2. Closed career positions which are scientific
or highly technical in nature;
3. Career
Executive
Service
–
Undersecretary, Asst. Secretary, Bureau
Director, Asst. Bureau Director, Regional
Director, Asst. Regional Director, Chief of
Dept. Service, and other officers of
equivalent rank as may be identified by the
Career Executive Service Board, all of whom
are appointed by the President;
4. Career officers, other than those in the
Career Executive Service, who are
appointed by the President, such as the
Foreign Service Officers in the DFA;
5. Commissioned officers and enlisted men
in the Armed Forces, which shall maintain a
separate merit system;
6. Personnel of GOCCs, whether performing
governmental or proprietary functions, who
do not fall under the non-career service; and
7. Permanent laborers, whether skilled, semiskilled, or unskilled.
Non-Career Service
The Non-Career Service is characterized by:
1. Entrance on bases other than those of usual
tests of merit and fitness utilized for the
career service; and
2. Tenure which is limited to a period specified
by law, or which is co-terminous 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.
The Non-Career Service includes:
II. Positions in the Civil Service
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2. non-career service
Career Service
The Career Service is characterized 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. opportunity for advancement to higher career
positions; and
1. Elective officials and their personal or
confidential staff;
2. Department Heads and other officials of
Cabinet rank who hold positions at the
pleasure of the President and their personal
or confidential staff;
3. Chairman and members of commissions
and boards with fixed terms of office and
their personal or confidential staff;
4. Contractual personnel or those whose
employment in the government is in
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accordance with a special contract to
undertake a specific work or job, requiring
special or technical skills not available in the
employing agency, to be accomplished within
a specific period, which in no case shall
exceed one year, and performs or
accomplishes the specific work or job, under
his own responsibility with minimum of
direction and supervision from the hiring
agency; and
5. Emergency and seasonal personnel.
III. Appointments
Appointments in the Civil Service may either be:
1. Permanent – issued to a person who meets
all the requirements for the position to which
he is being appointed, including the
appropriate
eligibility
prescribed,
in
accordance with the provisions of the laws,
rules, and standards promulgated in
pursuance thereof.
2. Temporary – issued in the absence of
appropriate eligibles when necessary in the
public interest to fill a vacancy to a person
who meets all the requirements for the
position to which he is being appointed,
except the appropriate civil service eligibility.
Temporary appointments shall not exceed 12
months, but the appointee may be replaced
sooner if a qualified civil service eligible
becomes available.
NOTE: Where a temporary appointee acquires civil
service eligibility during his tenure as such, his
temporary
appointment
does
not
thereby
automatically become permanent. What is required
is a new appointment. (Maturan v. Magalona)
Provisional Appointment – one which may be
issued, upon the prior authorization of the
Commissioner of the Civil Service Commission in
accordance with the provisions of the Civil Service
Law and the rules and standards promulgated
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appropriate examination but who otherwise meets the
requirements for appointment to a regular position in
the competitive service, whenever a vacancy occurs
and the filling thereof is necessary in the interest of
the service and there is no appropriate register of
eligibles at the time of appointment.
Distinguished from a Temporary appointment –
temporary appointment given to a non-civil service
eligible is without a definite tenure and is dependent
upon the pleasure of the appointing power.
IV. Exceptions from Requirement of Competitive
Examinations
1. policy-determining – charged with laying
down of principal and fundamental guidelines
or rules, such as that of a head of a
department.
2. primarily confidential – denotes close
intimacy which ensures freedom of
intercourse without embarrassment or
freedom from misgivings or betrayals of
personal trust or confidential matters of state;
or one declared to be so by the President
upon recommendation of the Civil Service
Commission. Their tenure ends upon loss of
confidence.
3. highly technical – requires the appointee to
possess technical skill or training in the
supreme or superior degree.
V. Promotion
The movement from one position to another with
increase in duties and responsibilities as authorized
by law and usually accompanied by an increase in
pay
Next-in-Rank Rule – The person next in rank shall be
given preference in promotion when the position
immediately above his is vacated. However, the
concept of next-in-rank does not import any
mandatory or peremptory requirement that the
person next in rank must be appointed to the
vacancy. The appointing authority has the discretion
to fill the vacancy under the next-in-rank rule or by
any other method authorized by law, e.g., by transfer.
VI. Discipline
Grounds for the discipline of members of the
Civil Service:
1. dishonesty
2. oppression
3. neglect of duty
4. misconduct
5. disgraceful and immoral conduct
6. being notoriously undesirable
7. discourtesy in the course of official duties
8. inefficiency and incompetence in the
performance of official duties
9. conviction of a crime involving moral
turpitude
10. falsification of official documents
11. habitual drunkenness
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12. gambling
13. refusal to perform official duty or render
overtime service
14. physical or mental incapacity due to immoral
or vicious habits
15. willful refusal to pay just debts or willful
failure to pay taxes due to the government
Preventive Suspension
Two Kinds:
1. Preventive Suspension Pending Investigation
2. Preventive Suspension Pending Appeal
The duration of preventive suspension is coextensive
with the period prescribed for deciding administrative
disciplinary cases. If the case is decided before
ninety (90) days then the suspension will last less
than ninety (90) days, but if the case is not decided
within ninety (90) days, then the suspension may not
exceed the maximum period of ninety (90) days.
SCOPE OF POWER OF A PUBLIC OFFICER
1. expressly conferred upon him by the law
under which he has been appointed or
elected;
2. expressly annexed to the office by the law
which created it or some other law referring
to it; or
3. attached to the office as incidents to it.
determining how or whether the act shall be
done or the course pursued. The officer is
expected to discharge the duty directly and
not through the intervening mind of another.
It cannot be delegated to another,
subject to some exceptions (power of the
President to conclude treaties may be
assigned to a treaty panel, which can
negotiate the treaty on his behalf, under
his instructions and subject to his
approval).
Modes of Termination of Official Relations
1. Natural Causes
a. Expiration of the term or tenure of office
b. Reaching the age limit ( retirement)
c. Death or permanent disability
2. Acts / Neglect of Officer
a. Resignation
b. Acceptance of an incompatible office
c. Abandonment of Office
d. Prescription of Right to Office
3. Acts of the Government or People
a. Removal
b. Impeachment
c. Abolition of Office
d. Conviction of a crime
e. Recall
OTHER IMPORTANT CONCEPTS
Doctrine of Necessary Implication:
The fact that a particular power has not been
expressly conferred does not necessarily mean that it
is not possessed by the officer claiming it. Such a
power may still be sustained under the doctrine of
necessary implication pursuant to which all powers
necessary to the exercise of the power expressly
granted are deemed impliedly granted.
Kinds of Duties/Powers:
1. Ministerial – when it is absolute, certain, and
imperative involving merely execution of a
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designated facts. A duty is ministerial when
the law exacting its discharge prescribes and
defines the time, mode, and occasion of its
performance with such certainty that nothing
is left for judgment or discretion.
It is
susceptible of delegation and can be
compelled by judicial action.
2. Discretionary – when it requires the
exercise of reason and discretion in
1. HOLD-OVER – a public officer’s term has expired
or his services terminated but he should continue
holding his office until his successor is appointed or
chosen and had qualified.
2. NEPOTISM – all appointments in the national and
local governments or any branch or instrumentality
thereof, including government-owned or controlled
corporations, made in favor of a relative of the
appointing authority; recommending authority; chief
of the bureau or office; or person exercising
immediate supervision over the appointee are
PROHIBITED.
Exceptions to the nepotism rule:
1. persons employed in a confidential capacity
2. teachers
3. physicians
4. members of the AFP
3. COMPENSATION IS NOT INDISPENSABLE TO
A PUBLIC OFFICE.
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4. DIVESTMENT is when a public official is in a
conflict-of-interest situation. Such official must resign
from his position in any private business enterprise
within 30 days from his assumption of office and/or
divest himself of his shareholdings or interest within
60 days from such assumption.
5.OFFICIAL IMMUNITY only protects public officials
from tort liability for damages arising from
discretionary acts or functions in the performance of
their official duties.
Velasco v. Sandiganbayan,
(February 28, 2005)
452
SCRA
Even if a public officer had indeed signed his
PDS without bothering to review the same,
he cannot escape administrative liability
therefore – such an omission is considered
as gross negligence on his part.
Garcia v Sandiganbayan, 460 SCRA 60 (June 22,
2005)
Ratio:
While at present, it is the Ombudsman who
should file the petition for forfeiture under RA
1379, the Ombudsman’s exercise of the
correlative powers, to investigate and initiate
the proper action for recovery of ill-gotten
and/or unexplained wealth is restricted only
to cases for the recovery of ill-gotten and/or
unexplained wealth amassed after February
25, 1986 – as regards such wealth
accumulated on or before said date, the
authority to file forfeiture proceedings belong
to the Solicitor General. The Ombudsman
has the authority to investigate cases even
before February 25, 1986, pursuant to the
Ombudsman’s general investigatory power
under Section 15(1) of RA 6770.
593
Ratio:
It is not necessary that the officer or
employee who willfully refuses or fails to
implement such final resolution be a party to
the case.
Barriga v. Sandiganbayan, 457 SCRA 301 (April
26, 2005)
Ratio:
Where the public office of an accused is by
statute a constituent element of the crime
charged, there is no need for the Prosecutor
to state in the Information specific factual
allegations of the intimacy between the office
and the crime charged, or that the accused
committed the crime in performance of his
duties.
Advincula v. Dicen , 458 SCRA 696 (May 16, 2005)
Ratio:
Peralta v Desierto*, 473 SCRA 322 (October 19,
2005)
Ratio:
Every public official who signs or initials
documents in the course of standard
operating procedures does not automatically
become a conspirator in a crime that
transpired at some stage in which the official
had no participation.
The Personal Data Sheet (“PDS”) is an
official document required of a government
employee or official by the Civil Service
Commission – concealment of any
information in the PDS warrants a penalty
from the erring official.
Misconduct, by uniform
legal definition, is a
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definite rule of action, more particularly,
unlawful behavior as well as gross
negligence by the public officer.
It is incumbent on a public official to
scrutinize each and every document he
signs, it is hard to believe that he would affix
his signature on his PDS without bothering to
scrutinize, and correct if erroneous.
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ELECTION LAW
ELECTION
Embodiment of the popular will, the expression of the
sovereign power of the people.
Components:
1. Choice or selection of candidates to public
office by popular vote
2. Conduct of the polls
3. Listing of votes
4. Holding of Electoral campaign
5. Act of casting and receiving the ballots from
the voters
6. Counting the ballots
7. Making the election returns
8. Proclaiming the winning candidates
REGULAR ELECTION is an election participated in
by those who possess the right of suffrage and not
disqualified by law and who are registered voters
SPECIAL ELECTION is one which is held when
there is failure of election on the scheduled date of
regular election in a particular place or which is
conducted to fill up certain vacancies, as provided by
law (ex. To fill in vacancy in office before the
expiration of the term for which incumbent was
elected)
ELECTION PERIOD shall commence 90 days before
the day of the election and shall end 30 days
thereafter.
Postponement
Election Code)
of
Election
(Sec.
5
Omnibus
Causes: Any serious cause, such as:
CODE: (VOLT-F)
1. Violence
2. Terrorism
or
destruction
of
election
3. Loss
paraphernalia/records
4. Force majeure
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impossible to hold a free, orderly and honest
election in any political subdivision
COMELEC can postpone the election (when decided
by a majority vote of the COMELEC sitting en banc,
RA 7166):
1. Motu proprio, or
2. Upon a verified petition by any interested
party, after due notice and hearing.
Date of new election
The date of the postponed election should be
reasonably close to the date of the election not held,
suspended, or which resulted in a failure to elect. It
should not be later than 30 days after the cessation
of the cause for such postponement or suspension of
the election or failure to elect.
Failure of Election (Sec. 6 Omnibus Election Code)
Pre-Conditions for declaring a failure of election:
That no voting has been held in any precinct
or precincts because of the following
grounds:
CODE: OFF-TV
a. Force majeure
b. Violence
c. Terrorism
d. Fraud
e. Other analogous causes
Under RA 7166, the causes for the
declaration of the failure of election may
occur before or after the casting of votes or
on the day of the election.
And, that the votes not cast therein are
sufficient to affect the results of the elections.
Effects of the above grounds:
1. Election in any polling place was not held on
the date fixed;
2. Election was suspended before the hour
fixed by law for the closing of the voting
3. Elections results in a failure to elect (after the
voting and during the preparation and
transmission of the election returns or in the
custody or canvass thereof)
Remedy:
COMELEC can, on the basis of a verified petition by
any interested party, and after due notice and
hearing, call for the holding or continuation of the
election not held, suspended, or which resulted in a
failure to elect. This is decided by the COMELEC, by
a majority vote of its members, sitting en banc.
Holding of the Special Election:
Requisites:
1. There must be failure of election,
2. Such failure would affect the results of the
election.
NOTE: In fixing the date of the special election, the
Comelec should see to it that:
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It should not be later than 30 days after the
cessation of the cause of the postponement
or suspension of the election or failure to
elect, and
It should be reasonably close to the date of
the election not held, suspended, or which
resulted in failure to elect.
POLITICAL PARTIES is an organized group of
persons pursuing the same ideology, political ideas
or platforms of government including its branches
and divisions.
Types of Political Parties
1. Registered Parties:
a. Dominant Majority Party – usually the
administration party; entitled to a copy of
election return
b. Dominant Minority Party – entitled to a
copy of election return
c. Majority Political Party
d. Top 3 Political Parties – entitled to
appoint principal watcher and a copy of
the certificate of canvass
e. Bottom 3 political parties – entitled to
appoint principal watcher
2. Non-registered parties
Criteria to Determine the Type of Political Party
Established Record of the said parties,
showing in past elections
Number of Incumbent Elective Officials
Identifiable political organizations and
strengths
Ability to fill a complete slate of candidates
Other analogous circumstances
Acquisition of Juridical Personality
It is acquired upon registration with the COMELEC.
NOTE: No religious sect shall be registered as a
political party. No political party, which seeks to
achieve its goal through violence, shall be entitled to
accreditation.
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Forfeiture of Status as a Registered Political Party
The status shall be deemed forfeited if the political
party, singly or in coalition with others, fails to obtain
at least 10% of the votes cast in the constituency in
which it nominated and supported a candidate/s in
the election next following its registration. There shall
be notice and hearing.
RA 7941 – Party-List System Act
I. Seeks to promote proportional representation
II. Any party already registered need not register
anew. File manifestation not later than 90 days
before election.
Grounds for refusing or canceling registration of
Party-Lists groups
1.
2.
3.
4.
5.
6.
7.
8.
Religious sect or denomination, organization
Advocates violence
Foreign party or organization
Receives foreign support
Violates election law
Untruthful statements in its petition
Ceased to exist for at least one year
Failed to participate in the last two preceding
elections or fails to obtain at least 2% of the
votes cast under the party-list system in the 2
preceding elections for the constituency in
which it has registered
Nomination of party-list reps should not
include any candidate for any elective office
or a person who has lost his bid for an
elective office in the immediately preceding
election
Incumbent sectoral representatives in the
House of Representatives who are
nominated in the party-list system shall not
be considered resigned
Party List Reps constitute 20% of the total
number of the members of the House of
Reps including those under the party-list
Q: How do we determine the number of party list
seats in the House of Reps?
A: (# of District Reps / 0.80) x 0.20 = # of party list
reps
There are presently 208 legislative districts,
according to the Veterans Federation Case
The 5 major political parties are now entitled
to participate in the party list system
Parties receiving at least 2% of the total
votes cast for the party-list system shall be
entitled to one seat each
No party shall be entitled to more than 3
seats
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Currently, there are 260 (208/0.80) seats.
So 20 % of 260 is 52 seats. But this is only
a ceiling.
A list with 5 names should be submitted to
COMELEC as to who will represent the
party in the Congress. Ranking in the list
submitted determines who shall represent
party or organization.
Ang Bagong Bayani-OFW Labor Party v.
COMELEC, G. R. No. 147589 26 June 2001
May political parties participate in the partylist elections?
Yes, provided that the political parties
themselves represent the marginalized and under
represented sectors, parties and organizations.
Aggabao v. COMELEC, 449 SCRA 400 (January 26,
2005)
Ratio:
Mere allegation that a candidate’s
proclamation is null and void ab initio does
not divest the House of Representatives
Electoral Tribunal of its jurisdiction.
Poe v Macapagal Arroyo, 454 SCRA 142 (March
30, 2005)
Ratio:
In the application of Rule 3, Section 16 to an
election contest, the Court has ruled that a
public office is personal to the public officer
and not a property transmissible to the heirs
upon death; Even in analogous cases before
other electoral tribunals, involving
substitution by the widow of a deceased
protestant, in cases where the widow is not
the real party in interest, we denied
substitution by the wife or heirs.
While the right to a public office is personal
and exclusive to the
publicandofficer,
an election
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protest is not are
purely
to the protestant or protestee such that the
death of either would oust the court of all
authority to continue the protest proceedings;
Court have allowed substitution and
intervention but only by a real party in
interest; Protestant’s widow is not a real party
in interest to this election protest.
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Eligibility of Candidates and Certificates of Candidacy
Elective officials
President/VP
Senator
District Reps
Party-List Reps*
Citizenship
Natural-born
Natural-born
Natural-born
Natural-born
Local Officials
Citizen
ARMM Governor
ARMM Legislator
Natural-born
Natural-born
QUALIFICATIONS
Age
Literacy
40
Read and Write
35
Read and Write
25
Read and Write
25
Read and Write
(if youth sector: 25-30)
*Gov, Vice-Gov,
Read
and
Write
member of
Filipino or local dialect
sangguniang
panlalawigan, mayor,
vice mayor,
sangguniang
panlungsod in highly
urbanized cities: 23
*In component
cities/municipalities: 21
*Sangguniang
panlungsod,
sangguniang bayan,
barangay: 18
*Sangguniang
kabataan: 15-21
35
Read and Write
21
Read and Write
Voter
Registered
Registered
Registered in District
Registered
Presidency
10 in the Philippines
2 in the Philippines
1 in District
1 in Philippines
Registered in locality
1 in locality
Registered in ARMM
Registered in District
5 in ARMM
5 in Districts
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Certificates of Candidacy
Rules on filing of certificates of candidacy:
1. No person shall be elected into public office
unless he files his certificate of candidacy
within the prescribed period
2. No person shall be eligible for more than one
office. If he/she files for more than one
position, he shall not be eligible for any of
them unless he cancels all and retains one
before the expiration of the period for the
filing of certificates of candidacy.
3. The certificate of candidacy shall be filed by
the candidate personally or by his duly
authorized representative.
4. Upon filing, an individual becomes a
candidate. Thus, he is already covered by
rules, restrictions and processes involving
candidates.
Effect of Filing of Certificate of Candidacy on
Tenure of Incumbent Government Officials.
On appointive officials: They are considered ipso
facto resigned from office upon filing.
On elective officials: No effect. The candidate shall
continue to hold office, whether he is running for the
same or a different position. (Fair Election Act)
Rules on
Candidacy
Substitution
and
Withdrawal
of
Any candidate may withdraw his/her candidacy
anytime before election day.
Substitution is only allowed in the following instances:
1. death
2. withdrawal
3. disqualification
No substitution is allowed for an independent
candidate. Only candidates who are members of
and are nominated by a party can be substituted.
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candidacy not later than mid-day of election day.
No person who has withdrawn his/her candidacy
for a position shall be eligible as a substituted
candidate for any other position.
The filing of the withdrawal shall not affect the
civil, criminal, or administrative liabilities the
substituted candidate may have already incurred.
In case of valid substitutions, votes cast for
substituted candidates are considered stray,
except if the substitute candidate has the same
surname. Official ballots shall provide spaces
where voters may write the names of the
substitute candidates. (Fair Election Act)
Grounds for disqualification under Sec. 12 of the
Omnibus Election Code:
1. declared by competent authority as insane or
incompetent
2. sentenced by final judgment for subversion,
insurrection, rebellion, or any offense for
which he has been sentenced to a penalty of
more than 18 months or for a crime involving
moral turpitude, unless given plenary pardon
or amnesty.
*disqualification is lifted after the
expiration of 5 years for service of
sentence
3. Election offenses under Sec 68 of the
Omnibus Election Code (OEC)
4. giving money or other material consideration
to influence, induce, or corrupt the voters of
public officials performing electoral functions;
5. committing acts of terrorism to enhance his
candidacy;
6. spending in his election campaign an amount
in excess of that allowed
7. soliciting, receiving, making prohibited
contributions; or
8. committing prohibited acts under Sections
80, 83, 85, 86, and 261 pars. d, e, k, v, and
cc, sub-par. 6
9. Not possessing qualifications and possessing
disqualifications under the Local Government
Code
10. Sentenced by final judgment for an offense
involving moral turpitude or for an offense
punishable by one year or more of
imprisonment within two years after serving
sentence
11. Removed from office as a result of an
administrative case
12. Convicted by final judgment for violating the
oath of allegiance to the Republic
13. Dual citizenship ( more specifically, dual
allegiance)
14. Fugitives from justice in criminal or nonpolitical cases here or abroad
15. Permanent residents in a foreign country or
those who have acquired the right to reside
abroad and continue to avail of the same
right
16. Insane or feeble-minded
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17. Nuisance candidate
18. Violation of sec 73 of OEC with regard to
certificate of candidacy (filing a certificate of
candidacy for more than one office)
19. Violation
of
sec
78:
material
misrepresentation in the certificate of
candidacy
Effect of a Disqualification case (under RA 6646)
1. Any candidate who has been declared by
final judgment to be disqualified shall NOT be
voted for. The votes cast in his favor shall not
be counted.
2. If the candidate is not disqualified by final
judgment before the election and receives
the highest number of votes in the election,
the court or COMELEC will continue with the
trial and hearing of the action, inquiry or
protest. Upon motion of the complainant or
intervenor, the court or COMELEC may order
the suspension of the proclamation of the
candidate whenever the evidence of his guilt
is strong.
NUISANCE CANDIDATES refers to candidates who
have no bona fide intention to run for the office for
which the certificate of candidacy has been filed and
would thus prevent a faithful determination of the true
will of the people.
Power of COMELEC
1. May refuse to give due course to or cancel a
certificate of candidacy of a nuisance
candidate. This can be done motu proprio or
upon verified petition of an interested party.
2. There should be a showing that:
Certificate of candidacy has been filed to
put
the
election
process
in
mockery/disrepute or
To cause confusion among the voters by
the similarity of the names of the
registered candidates
Other circumstances which clearly
demonstrate that the candidate has no
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Petition to deny due course to or to cancel a
certificate of candidacy
1. Exclusive ground: A material representation
in the certificate of candidacy is false.
2. The petition should be filed not later than 25
days from the filing of the certificate of
candidacy.
3. It should be decided not later than 15 days
before the election, after due notice and
hearing.
Election Campaign/Partisan Political Activity
It refers to an act designed to promote the election or
defeat of a particular candidate/s to a public office. It
includes:
1. Forming organizations, associations, clubs,
committees or other groups of persons for
the purpose of soliciting votes and/or
undertaking any campaign for or against a
candidate.
2. Holding political caucuses, conferences,
meetings, rallies, parades or other similar
assemblies for the purpose of soliciting
votes and/or undertaking any campaign or
propaganda for or against a candidate.
3. Making speeches, announcements or
commentaries or holding interviews for or
against the election of any candidate for
public office.
4. Publishing or distributing campaign literature
or materials designed to support or oppose
the election of any candidate.
5. Directly or indirectly soliciting votes pledges
or support for or against a candidate.
6. Advertisements
When the acts enumerated above are NOT
considered
an
election
campaign/partisan
political activity - If the acts are performed for the
purpose of enhancing the chances of aspirants for
nomination for candidacy to a public office by a
political party, agroupment, or coalition of parties.
RA 9006 – FAIR ELECTION ACT
Important Features:
1. Repeal of Sec. 67 of the OEC – Now, any
ELECTIVE official, whether national or local,
running for any office other than the one
which he is holding in a permanent capacity
shall not be considered ipso facto resigned
from his office upon the filing of his certificate
of candidacy.
2. Lifting of the Political Ad Ban – The following
are now considered lawful election
propaganda:
a. Written and Printed Materials (8.5” W x
14L”)
b. Letter
c. Posters (2’ x 3’) in common-private
poster areas (not more than 10 public
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d.
e.
f.
g.
h.
i.
places per political party or independent
candidate, 12’ 16’), private places and
public places (allocated equitably and
impartially)
Rally streamers (3’ x 8’)
Paid advertisements at discounted rates:
Print: 1/4th page in broadsheet and ½
page in tabloid 3x a week
TV: 120 mins. for candidate for national
office and 60 minutes for local office
Radio: 180 mins. for candidate for
national office and 90 minutes for local
office
Comelec free space (3 national
newspapers for national offices and 1
national newspaper for local offices) and
airtime (3 national television networks for
national offices and 1 station for local
offices):
equal
allocation
for
all
candidates for 3 calendar days.
3. Authorized Expenses (multiplied with the
total number of registered voters)
a. P 10 for president / vice president
b. P 3 for other candidates for every voter
currently registered in the constituency
c. P 5 for independent candidates and
political parties
Electoral Contributions and Expenditures
CONTRIBUTION (under Sec 94, Omnibus Election
Code) – includes:
1. a gift,
2. donation,
3. subscription,
4. loan,
5. advance or deposit of money or anything of
value,
6. a contract, promise or agreement of
contribution,
whether
or
not
legally
enforceable
7. use of facilities voluntarily donated by other
persons, the money value of which can be
assessed based on the rates prevailing in the
area.
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results of the elections.
DOES NOT INCLUDE services
rendered without compensation by
individuals volunteering a portion or
all of their time in behalf of a
candidate or political party.
EXPENDITURE includes the payment or delivery of
money or anything of value, or a contract, promise or
agreement to make an expenditure, for the purpose
of influencing the results of the election. It shall also
include the use of facilities personally owned by the
candidate, the money value of the use of which can
be assessed on the rates prevailing in the area.
Prohibited Contributions:
Those made directly or indirectly by any of the
following:
1. public or private financial institutions (except
loans to a candidate or political party)
2. public utilities or those exploiting natural
resources of the nation
3. persons with contracts to supply the
government with goods or services or to
perform construction or other works
4. grantees
of
franchises,
incentives,
exemptions, allocations or similar privileges
or concessions by the government
5. persons who, within one year prior to the
date of the election, have been granted loans
or other accommodations in excess of
P100,000 by the government
6. educational institutions which have received
grants of public funds not less than P100,000
7. officials or employees in the Civil Service or
members of the Armed Forces of the
Philippines; and
8. foreigners and foreign corporations.
Prohibited means of raising of funds (Sec. 97
Omnibus Election Code):
1. Holding any of the following activities:
a. dances
b. lotteries
c. cockfights
d. games
e. boxing bouts
f. bingo
g. beauty contests
h. entertainments
i. cinematographic, theatrical, or
performances
other
for the purpose of raising funds for an
election campaign or for the support of any
candidate from the commencement of the
election period up to an including election
day.
2. It shall also be unlawful for any person or
organization to solicit and/or accept from any
candidate for public office any gift, food,
transportation, contribution or donation in
cash or in kind from the commencement of
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the election period up to and including
election day, EXCEPT normal and customary
religious stipends, tithes or collections
Lawful Expenditures:
1. For traveling expenses
2. Compensation of campaigners, clerks,
stenographers, messengers, and other
persons actually employed in the campaign
3. Telegraph and telephone tolls, postage,
freight and express delivery charges
4. Stationery, printing and distribution of printed
matters relative to candidacy
5. Employment of watchers at the polls
6. Rent, maintenance and furnishing of
campaign headquarters, office, or place of
meetings
7. Political meetings and rallies
8. Advertisements
9. Employment of counsel, the cost of which
shall not be taken into account in determining
the amount of expenses which a candidate or
political party may have incurred
10. Copying and classifying list of voters,
investigating and challenging the right to vote
of persons registered in the lists, the cost of
which shall not be taken into account in
determining the amount of expenses which a
candidate or political party may have incurred
11. Printing sample ballots, the cost of which
shall not be taken into account in determining
the amount of expenses which a candidate or
political party may have incurred
Voters Qualifications
1. Age:
18 years old and over.
2. Residence:
He /she should have resided in the
Philippines for one year and resided in the
city/municipality wherein he proposes to vote
for at least 6 months immediately preceding
the election.
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If the transfer of residence is due to any of the
following reasons, the person concerned will be
deemed NOT to have lost his original residence:
a. Transfer solely because of occupation,
profession, employment in private or
public service
b. Educational activities
c. Work in military or naval reservations
d. Service in the army, navy or air force,
national police force
e. Confinement/detention in government
institutions in accordance with law
NOTE: Residence is equal to domicile. Hence, a
person may be physically absent from his residence
for a short, or even long period of time, due to work,
studies, etc., but as long as he has the INTENT TO
RETURN to his place of residence, and corollary to
this, NO INTENT TO SETTLE in the place where he
is physically present, he/she is still a resident in his
original domicile (see Imelda Marcos case).
REPUBLIC ACT NO. 9189 – THE OVERSEAS
ABSENTEE VOTING ACT OF 2003
The Overseas Absentee Voting Act of 2003, also
known as ‘Absentee Voting Law’, is the law that
‘ensures equal opportunity to all qualified citizens of
the Philippines abroad’ to exercise their right to vote
(suffrage) in the election of President, Vice President,
Senators and Party-List Representatives.
Who are qualified to vote under the Absentee
Voting Law?
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 vote for
president, vice-president, senators and party-list
representatives. (Sec. 4 R.A. 9189)
Who are disqualified from voting under the
Absentee Voting Law?
1. Those who have lost their Filipino citizenship
in accordance with Philippine laws;
2. Those who have expressly renounced their
Philippine citizenship and who have pledged
allegiance to a foreign country;
3. Those who have committed and are
convicted in a final judgment by a court or
tribunal of an offense punishable by
imprisonment of not less than one (1) year,
including those who have committed and
been found guilty of Disloyalty as defined
under Article 137 of the Revised Penal Code,
such disability not having been removed by
plenary pardon or amnesty; Provided,
however, That any person disqualified to vote
under this subsection shall automatically
acquire the right to vote upon expiration of
five (5) years after service of sentence;
Provided, further, That the Commission may
take cognizance of final judgments issued by
foreign courts or tribunals only on the basis
of reciprocity and subject to the formalities
and processes prescribed by the Rules of
Court on execution of judgments;
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4. An 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.
5. Any citizen of the Philippines abroad
previously declared insane or incompetent by
competent authority in the Philippines or
abroad, as verified by the Philippine
embassies, consulates or foreign service
establishments concerned, unless such
competent authority subsequently certifies
that such person is no longer insane or
incompetent. (Section 5. R.A. 9189)
How shall registration be done?
Registration as an overseas absentee voter shall be
done in person. (Section 6,RA 9189)
What is the procedure for registration?
A. For Qualified citizens of the Philippines abroad
who failed to register under Republic Act No. 8189,
otherwise known as the “The Voters Registration Act
of 1996”.
They may personally apply for registration
with the Election Registration Board of the
city or municipality where they were
domiciled immediately prior to their departure
from
the
Philippines,
or
with
the
representative of the Commission at the
Philippine embassies, consulates and other
foreign service establishments that have
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temporarily reside.
The embassies, consulates and other foreign
service establishments shall transmit within
(5) days from receipt the accomplished
registration forms to the Commission, after
which the Commission shall coordinate with
the Election Officer of the city or municipality
of the applicant’s stated residence for
verification, hearing and annotation in the
permanent list of voters.
Upon receipt of the application for
registration, the Election Officer shall
immediately set the application for hearing,
the notice of which shall be posted in a
conspicuous place in the premises of the city
or municipal building of the applicant’s stated
residence for at least one (1) week before the
date of the hearing. The Election Officer shall
immediately furnish a copy of the application
to the designated representatives of political
parties and other accredited groups.
If no verified objection to the application is
filed, the Election Officer shall immediately
forward the application to the Election
Registration Board, which shall decide on the
application within one (1) week from the date
of hearing without waiting for the quarterly
meeting of the Board. The applicant shall be
notified of the approval or disapproval of
his/her application by registered mail.
In the event that an objection to the
application is filed prior to or on the date of
hearing, the Election Officer shall notify the
applicant of said objection by registered mail,
enclosing therein copies of affidavits or
documents submitted in support of the
objection filed with the said Election Officer, if
any. The applicant shall have the right to file
his counter-affidavit by registered mail,
clearly stating therein facts and defenses
sworn before any officer in the host country
authorized to administer oaths
The application shall be approved or
disapproved based on the merits of the
objection, counter-affidavit and documents
submitted by the party objecting and those of
the applicant.
A Certificate of Registration as an overseas
absentee voter shall be issued by the
Commission to all applicants whose
applications have been approved, including
those certified as registered voters. The
Commission shall include the approved
applications in the National Registry of
Absentee Voters.
If the application has been approved, any
interested party may file a petition for
exclusion not later than two hundred ten
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(210) days before the day of elections with
the proper municipal or metropolitan trial
court. The petition shall be decided within
fifteen (15) days after its filing on the basis of
the documents submitted in connection
therewith. Should the court fail to render a
decision within the prescribed period, the
ruling of the Election Registration Board shall
be considered affirmed.
If the application has been disapproved, the
applicant or his authorized representative
shall, within a period of five (5) days from
receipt of the notice of disapproval, have the
right to file a petition for inclusion with the
proper municipal or metropolitan trial court.
The petition shall be decided within five (5)
days after its filing on the basis of documents
submitted in connection therewith.
B. For Qualified citizens of the Philippines abroad,
who have previously registered as voters pursuant to
Republic Act No. 8189
They shall apply for certification as absentee voters
and for inclusion in the National Registry of Overseas
Absentee Voters, with a corresponding annotation in
the Certified Voters’ List. (Section 6 of RA 9189)
How shall voting be done?
1. The overseas absentee voter shall personally
accomplish his/her ballot at the embassy,
consulate
or
other
foreign
service
establishment that has jurisdiction over the
country where he/she temporarily resides or
at any polling place designated and
accredited by the Commission. (section 16,
RA 9189)
2. The overseas absentee voter may also vote
by mail. (Section 17, RA 9189)
When may voting by mail be allowed?
For the May, 2004 elections, the Commission
shall authorize voting by mail in not more
than three (3) countries, subject to the
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Committee. Voting by mail may be allowed in
countries that satisfy the following conditions:
Where the mailing system is fairly welldeveloped and secure to prevent the
occasion of fraud;
Where there exists a technically established
identification system that would preclude
multiple or proxy voting; and,
Where the system of reception and custody
of mailed ballots in the embassies,
consulates and other foreign service
establishments concerned are adequate and
well-secured.
Thereafter, voting by mail in any country shall
be allowed only upon review and approval of
the
Joint
Congressional
Oversight
Committee. (Section 17.1, RA 9189)
How will the counting and canvassing of the
votes be done?
The counting and canvassing of votes shall
be conducted on site in the country where
the votes were actually cast. The opening of
the specially-marked envelopes containing
the ballots and the counting and canvassing
of votes shall be conducted within the
premises of the embassies, consulates and
other foreign service establishments or in
such other places as may be designated by
the
Commission
pursuant
to
the
Implementing Rules and Regulations. The
Commission shall ensure that the start of
counting in all polling places abroad shall be
synchronized with the start of counting in the
Philippines.
The Commission shall constitute as many
Special Boards of Election Inspectors as may
be necessary to conduct and supervise the
counting of votes.
Immediately upon the completion of the
counting, the Special Boards of Election
Inspectors shall transmit via facsimile and/or
electronic mail the results to the Commission
in Manila and the accredited major political
parties. (Section 18, RA 9189)
Can the canvass of the overseas absentee votes
delay the proclamation of winners?
No. The canvass of votes shall not cause
the delay of the proclamation of a winning candidate
if the outcome of the election will not be affected by
the results thereof. Notwithstanding the foregoing, the
Commission is empowered to order the proclamation
of winning candidates despite the fact that the
scheduled election has not taken place in a particular
country or countries, if the holding of elections therein
has been rendered impossible by events, factors and
circumstances peculiar to such country or countries,
and which events, factors and circumstances are
beyond the control or influence of the Commission.
(Section 18, RA 9189)
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RA 8189 – VOTER”S REGISTRATION ACT OF
1996
What kind of registration system do we have?
1. Continuing,
2. Computerized and
3.
Permanent
Disqualifications
1. If sentenced by final judgment to suffer
imprisonment for not less than 1 year and
such disability was not removed by plenary
pardon or has not been granted amnesty.
However, any person disqualified to vote
shall automatically reacquire the right to vote
upon expiration of 5 years after service of
sentence.
2. Any person who has been adjudged by final
judgment by competent court or tribunal of
having committed any crime involving
disloyalty to the duly constituted government
such as rebellion or any crime against
national security:
a. UNLESS restored to his full civil and
political rights in accordance with law.
b. However, he shall regain his right to vote
automaticallyupon expiration of 5 years
after service of sentence.
3. Insane or incompetent persons as declared
by competent authority.
Jurisdiction in Inclusion/Exclusion cases
1. The municipal and metropolitan trial courts
shall have original and exclusive jurisdiction
over all matters of inclusion and exclusion of
voters from the list in their respective
municipalities or cities. Petition filed at any
time except 105 days before regular election
or 75 days before special election
2. Decisions may be appealed to the RTC
within 5 days from receipt of notice of
decision.
3. RTC will decide the appeal within 10 days.
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NOTE: Relate this to Article IX of the
Constitution, which provides that the
COMELEC has no jurisdiction over questions
involving the right to vote.
4. Exclusion is through sworn petition and not
later than 100 days before regular election;
65 days before special election
Grounds when the List of Voters will be altered:
1. Deactivation/ Reactivation
2. Exclusion/ Inclusion
3. Cancellation of Registration in case of
Death
4. New voters
5. Annulment of Book of Voters
6. Transfer of Residence
How is challenge to right to register effected?
Who - any voter, candidate, political party
representative
How - in writing, stating grounds, under oath,
proof of notice of hearing
DEACTIVATION is the removal from the registration
records of persons from the precinct book of voters
and place the same, properly marked and dated in
indelible ink, in the inactive file after entering the
cause of deactivation.
How is reactivation of registration effected?
1. Sworn application for reactivation
2. Affidavit
3. Not later than 120 days before regular
election and 90 days before special election
Annulment of Book of Voters is through verified
petition; notice and hearing; not prepared in
accordance with law or prepared through fraud,
bribery, forgery, impersonation, intimidation, force,
any similar irregularity or which contains data that are
statistically improbable; Cannot be done within 90
days before election
Pre-Proclamation Controversies
refers to any question pertaining to or affecting the
proceedings of the board of canvassers which may
be raised by any candidate or by any registered
political party or coalition of political parties before the
board or directly with the COMELEC.
It would also refer to any matter raised under
Sections 233, 234, 235, and 236 of the
Omnibus Election Code in relation to the
preparation, transmission, receipt, custody,
and appreciation of the election returns.
(Board of canvassers has original jurisdiction
while COMELEC has appellate jurisdiction)
When election returns are delayed, lost or
destroyed (Sec.233)
Material defects in the election returns (Sec.
234)
When election returns appear to be tampered
with or falsified. (Sec. 235)
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Discrepancies in election returns (Sec. 236)
Those that can be filed with COMELEC directly are
the ff:
1. Issue involves the illegal composition or
proceedings of the board of canvassers, as
when a majority or all of the members do
not hold legal appointments or are in fact
usurpers
2. Issue involves the correction of manifest
errors in the tabulation or tallying of the
results during the canvassing
Recount
There can be a recount under the grounds of 234236. The returns involved will affect the results and
the integrity of the ballot box has been preserved
Issues that may be raised in a pre-proclamation
controversy
1. Illegal composition or proceedings of the
board of canvassers
2. The canvassed election returns are
incomplete, contain material defects,
appear to be tampered with or falsified, or
contain discrepancies in the same returns
or in authentic copies thereof.
3. The election returns were prepared under
duress, threats, coercion, or intimidation, or
they are obviously manufactured, or not
authentic.
4. When substitute or fraudulent returns in
controverted
polling
places
were
canvassed, the results of which materially
affected the standing of the aggrieved
candidate/s.
Procedure
1. Contested composition or proceedings of the
board (under RA 7166)
It may be initiated in the board or directly
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2. Contested election returns (under RA 7166)
Matters relating to the preparation,
transmission,
receipt,
custody
and
appreciation of the election returns, and
certificate of canvass, should be brought in
the first instance before the board of
canvassers only.
Summary nature of pre-proclamation controversy
Pre-proclamation controversies shall be
heard summarily by the COMELEC.
Its decision shall be executory after the lapse
of 5 days from receipt by the losing party of
the decision, unless restrained by the SC.
Effect of filing petition to annul or suspend
proclamation
It suspends the running of the period within which to
file an election protest or quo warranto proceeding.
When not allowed
Pre-proclamation cases on matters relating to the
preparation, transmission, receipt, custody and
appreciation of the election returns or the certificates
of canvass NOT allowed in elections for: (under RA
7166)
1. President
2. Vice-President
3. Senator
4. Member of the House of Representatives
BUT:
The appropriate canvassing body motu
propio or upon written complaint of an
interested person can correct manifest errors
in the certificate of canvass or election
returns before it.
Questions affecting the composition or
proceedings of the board of canvassers may
be initiated in the board or directly with
COMELEC.
When pre-proclamation cases are deemed
TERMINATED (RA 7166)
All pre-proclamation cases pending before
the COMELEC shall be deemed terminated
at the beginning of the term of the office
involved and the rulings of the boards of
canvassers concerned deemed affirmed.
This is without prejudice to the filing of a
regular election protest by the aggrieved
party.
HOWEVER: Proceedings MAY CONTINUE if:
1. The COMELEC determines that the petition
is meritorious and issues an order for the
proceedings to continue or
2. The Supreme Court issues an order for the
proceedings to continue in a petition for
certiorari.
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Election Contest
I. Original Jurisdiction
COMELEC has ORIGINAL jurisdiction over contests
relating to the elections, returns, and qualifications of
all elective:
1. Regional
2. Provincial
3. City officials
II. Appellate Jurisdiction
COMELEC has APPELLATE jurisdiction over all
contests involving:
1. Elective MUNICIPAL officials decided by trial
courts of GENERAL jurisdiction
2. Elective BARANGAY officials decided by trial
courts of LIMITED jurisdiction
Who can file a petition contesting the election?
Any candidate who has duly filed a certificate of
candidacy and has been voted for the same office
Purpose of an election contest
The defeated candidate seeks to oust the proclaimed
winner and claims the seat.
Final COMELEC Decisions
Provision that decisions, final orders, rulings of the
Commission on Election contests involving municipal
and barangay offices are final, executory and not
appealable:
1. This only applies to questions of FACT.
(Flores v. COMELEC, 184 SCRA 484)
2. It does NOT preclude a special civil action of
certiorari.
(Galido v. COMELEC, Jan.
18,1991)
Distinctions
between
Pre-Proclamation
Controversy and Election Contest
1. Dividing line: Proclamation of a candidate
2. Jurisdiction
3. In some cases, even if the case (involving
municipal
officials)
began
with
the
COMELEC before proclamation but a
proclamation is made before the controversy
is resolved, it ceases to be a preproclamation controversy and becomes an
election contest cognizable by the RTC.
However, in some cases, the SC has
recognized the jurisdiction of COMELEC over
municipal cases even after proclamation.
Relate to the provision in RA 7166 allowing
pre-proclamation controversy proceedings to
continue even after a proclamation has been
made.
Distinctions
between
Pre-Proclamation
Controversy and Quo Warranto
Quo warranto is not, strictly speaking, a
contest. It is a proceeding to unseat an
ineligible person from office. An election
protest more than seeks to oust the winner.
It is strictly a contest between the winning
candidate and the defeated candidate.
Quo warranto may be filed by an voter. An
election protest may be filed only by a
candidate who has duly filed a certificate of
candidacy to the same office and has been
voted for.
Grounds for quo warranto are disloyalty or
ineligibility of the winning candidate.
Grounds for election contest are election
fraud and irregularities in the counting and
casting of votes or in the preparation of the
returns.
In quo warranto, the respondent may be
unseated, but the petitioner may not be
installed into the office vacated. In election
contest, the protestee may be unseated and
the protestant may be installed into the office
vacated.
Election Offenses (Selected Offenses)
Vote buying and vote-selling
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1. The
jurisdiction
of
COMELEC
is
administrative /quasi-judicial
2. It is governed by the requirements of
administrative due process
II. Election contest
1. The jurisdiction of COMELEC is judicial
2. It is governed by the requirements of judicial
process
I. Covered acts
1. Give, offer or promise money or anything of
value
2. Making or offer to make any expenditure,
directly or indirectly, or cause expenditure to
be made to any person, association,
corporation, entity or community
3. Soliciting or receiving, directly or indirectly,
any expenditure or promise of any office or
employment, public or private
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II. Purpose of acts
1. To induce anyone or the public in general to
vote for or against any candidate or withhold
his vote in the election; or
2. To vote for or against any aspirant for the
nomination or choice of a candidate in a
convention or similar selection
III.
Under RA 6646
buying/selling)
(Prosecution of vote-
1. Presentation of a complaint supported by
affidavits of complaining witnesses attesting
to the offer or promise by or the voters
acceptance of money or other consideration
from the relatives, leaders or sympathizers of
a candidate is sufficient basis for an
investigation by the COMELEC, directly or
through its duly authorized legal officers.
2. Disputable presumption of conspiracy:
Proof that at least one voter in different
precincts representing at least 20% of the
total precincts in any municipality, city or
province has been offered, promised or given
money, valuable consideration or other
expenditure by a candidate relatives, leaders
and/or sympathizers for the purpose of
promoting the election of such candidate.
3. Disputable presumption of involvement
Proof affects at least 20% of the
precincts of the municipality, city or province
to which the public office aspired for by the
favored candidate relate. This will constitute
a disputable presumption of the involvement
of such candidate and of his principal
campaign managers in each of the
municipalities concerned in the conspiracy
Coercion of a subordinate
I. Who can be held liable
1. public officer
2. officer
of
a
public/private
corporation/association
3. heads/superior/administrator of any religious
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4. employer/landowner
II. Prohibited acts
1. Coercing, intimidating or compelling or
influencing, in any manner, any subordinates,
members, parishioners or employees or
house helpers, tenants, overseers, farm
helpers, tillers or lease holders to aid,
campaign or vote for or against a candidate
or aspirant for the nomination or selection of
candidates.
2. Dismissing or threatening to dismiss,
punishing or threatening to punish by
reducing salary, wage or compensation or by
demotion, transfer, suspension etc.
Appointment of new employees, creation of new
position, promotion or giving salary increases
1. Who can be held liable:
Any head/official/appointing officer of
a
government
office,
agency
or
instrumentality, whether national or local,
including GOCCs.
2. Prohibited acts
a. Appointing or hiring a new employee
(provisional, temporary or casual)
b. Creating or filling any new position
c. Promoting/giving an increase in salary,
remuneration or privilege to any
government official or employee.
3. Period when acts are prohibited
a. 45 days before a regular election
b. 30 days before a special election
4. Exceptions
Upon prior authority of COMELEC if it is
satisfied that the position to be filled is essential
to the proper functioning of the office/agency
concerned AND that the position is not filled in a
manner that may influence the election
In case of urgent need, a new employee may
be appointed. Notice of appointment should be
given to COMELEC within 3 days from
appointment.
Prohibition against release, disbursement or
expenditure of public funds
1. Who can be held liable:
Any public official or employee including
barangay
officials
and
those
of
GOCCs/subsidiaries
2. Prohibited acts:
The
release,
disbursement
or
expenditure of public funds for any and other
kinds of public works.
3. Period when acts are prohibited:
a. 45 days before a regular election
b. 30 days before a special election
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4. Exception
a. Maintenance of existing/completed public
works project.
b. Work undertaken by contract through
public bidding, or by negotiated contract
awarded before the 45 day period before
election
c. Payment for the usual cooperation for
working drawings, specifications and
other procedures preparatory to actual
construction including the purchase of
material and equipment and incidental
expenses for wages.
d. Emergency work necessitated by the
occurrence of a public calamity but such
work shall be limited to the restoration of
the damaged facility.
e. Ongoing
public
work
projects
commenced before the campaign period
or similar projects under foreign
agreements.
Suspension of elective, provincial, city, municipal
or barangay officer
General rule: public official CANNOT suspend any of
the officers enumerated above during the election
period.
Exceptions:
1. With prior approval of COMELEC
2. Suspension is for the purpose of applying the
Anti-Graft and Corrupt Practices Act
In relation to registration of voters/voting
1. Unjustifiable refusal to register and voteNOTE THAT FAILURE TO REGISTER
AND/OR VOTE IS NO LONGER A CRIME.
2. Voting more than once in the same
election/voting when not a registered voter
3. Voting in substitution for another with or
without the latter’s knowledge and/or consent
etc.
3. Refusing to issue the certificate of voters to
the duly accredited watchers (committed by a
member of the BEI)
4. Person who violated provisions against
prohibited forms of election propaganda
5. Failure to give notice of meetings to other
members of the board, candidate or political
party (committed by the Chairman of the
board of canvassers)
6. A person who has been declared a nuisance
candidate or is otherwise disqualified who
continues to misrepresent himself as a
candidate (Ex. by continuing to campaign)
and any public officer or private individual
who knowingly induces or abets such
misrepresentation
by
commission
or
omission.
7. If the chairman of the BEI fails to affix his
signature at the back of the official ballot, in
the presence of the voter, before delivering
the ballot to the voter. (under RA 7166)
Prescription of Election Offenses
Election offenses shall prescribe after 5
years from the date of their commission
If the discovery of the offense is made in an
election contest proceeding, the period of
prescription shall commence on the date on
which the judgment in such proceedings
becomes final and executory
Jurisdiction of courts
1. RTC has exclusive original jurisdiction to try
and decide any criminal action or
proceedings for violation of the Code.
2. MTC/MCTC have jurisdiction over offenses
relating to failure to register or vote.
Other election offenses under RA 6646
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1. Causing the
official ballots and
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election returns by printing establishments
not on contract with COMELEC and printing
establishments
which
undertakes
unauthorized printing
2. Tampering, increasing or decreasing the
votes received by a candidate or refusing
after proper verification and hearing to credit
the correct votes or deduct the tampered
votes (committed by a member of the board
of election inspectors)
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GROUNDS
VENUE
ELECTION PROTEST
QUO WARRANTO
Fraud and irregularities
in casting, counting of
votes,
and
election
incidents
1. Disloyalty to the Republic
2. Ineligibility
President
and
VP:
Presidential
Electoral
Tribunal
Senators:
Senate
Electoral Tribunal
Representatives: House
of
Rep.
Electoral
Tribunal
PREPROCLAMATION
CONTROVERSY
Illegal composition and
proceedings of the
Board of Canvassers
President and VP: Presidential
Electoral Tribunal
Senators:
Tribunal
Senate
Irregularities
in
preparation,
transmission, receipt,
custody,
and
appreciation of election
returns and certificates
of canvass
Re:
Board
of
Canvassers:
with
Board or with Comelec
ANNULMENT
OF
PROCLAMATION
ELECTION
OFFENSE
Proclamation based
on
irregular
and
illegal
canvass
whether
in
the
election
returns,
certificate of canvass,
proceedings
and
composition of board
of canvassers
Violation
Election Code
of
Commission
prohibited acts
of
Comelec
Comelec
Law
Dept.
for
preliminary
investigation, then
Courts
for
prosecution
Proclamation
annulled
Respondent
penalized with fine,
imprisonment,
disqualification to
hold public office or
deprivation of right
to vote
Electoral
Representatives: House
Rep. Electoral Tribunal
of
Re: Election Returns:
with
Board
of
Canvassers
Regional/Provincial/City:
Comelec
Regional/Provincial/City:
Comelec QuickTime™ and a
Municipal: RTC
Municipal: RTC
Incumbent-protestee
removed from office
Incumbent-respondent
dislodged
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EFFECT IF
CASE
PROSPERS
If
protestant
gains
highest number, he/she
is proclaimed
Petitioner does not assume the
petition.
Follow the rules on succession
Election return
aside
Recount
Suspension
Proclamation
set
of
Filing suspends the
running of the period
within which to file
election protest or
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PETITIONER
PERIOD
Any candidate for the
position
Within 10 days from
proclamation
of officers or conduct special
elections
Any voter
Within
10
proclamation
days
from
quo warranto
Any
candidate
or
political party
Upon convening of
Board
When election return
presented
Any candidate or
political party
Within 10 days from
proclamation
Any voter
Within 5 years from
commission
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ELECTION PROTEST
QUO WARRANTO
Filed by candidate
Within period
Protestee proclaimed
Payment of filing fee
Allegations of fraud
Certification
against
forum shopping
PROCEDURE Revision
Trial
Ballots
EVIDENCE
Election returns
Minutes
Documentary
and
Testimonial Evidence
courtesy of Atty. Agra
Filed by voter
Within period
Grounds
Position Contested
REQts
Trial
Documentary and Testimonial
Evidence
PREPROCLAMATION
CONTROVERSY
Filed by candidate or
political party
Two objection rule
(oral and written)
Documentary
and
testimonial evidence
Election returns
ANNULMENT
OF
PROCLAMATION
ELECTION
OFFENSE
Filed by candidate
or political party
within period
Complaint-affidavit
Trial
Summary
proceedings
Affidavits
Documentary
and
testimonial evidence
Documentary
and
testimonial evidence
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OTHER LAWS in ELECTION LAW
REPUBLIC ACT No. 7941 AN ACT PROVIDING
FOR
THE
ELECTION
OF
PARTY-LIST
REPRESENTATIVES THROUGH THE PARTY-LIST
SYSTEM
AND
APPROPRIATING
FUNDS
THEREFOR
What is the party-list system of election?
It is a mechanism of proportional representation in
the election of representatives to the House of
Representatives
from
marginalized
or
underrepresented national, regional and sectoral
parties, or organizations or coalitions thereof
registered with the Commission on Elections
(Comelec). It is part of the electoral process that
enables small political parties and marginalized and
underrepresented sectors to obtain possible
representation in the House of Representatives,
which traditionally is dominated by parties with big
political machinery.
Who may participate?
Instead of individual candidates, only registered
organized groups may participate and these are:
Sectoral Party – an organized group of citizens
whose principal advocacy pertains to the special
interests and concerns of the following sectors: labor,
fisherfolk, peasant, women, urban poor, youth,
indigenous, overseas workers, veterans, cultural
communities, professionals, handicapped, elderly
Sectoral Organization – a group of qualified voters
bound together by similar physical attributes or
characteristics, or by employment, interests or
concerns.
Political Party – an organized group of qualified
voters pursuing the same ideology, political ideas and
principles for the general conduct of the government;
it may be:
A national party when its constituency is
spread over the geographical territory of at
least a majority of the regions; and
A regional party
whenand aits constituency is
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least a majority of the cities and provinces
comprising
a
region.
COALITION – an aggrupation of duly-registered
national, regional, sectoral parties or organizations
for political and/or election purposes.
May the Comelec remove and/or cancel
registration of any entity?
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:
1. It is a religious sect or denomination,
organization or association organized for
religious purposes;
2. It advocates violence or unlawful means to
achieve its goal;
3. It is a foreign party or organization;
4. It is receiving support from any foreign
government,
foreign
political
party,
foundation, organization, whether directly or
indirectly or through its officers or members
or indirectly through third parties for
partisan election purposes;
5. It violates or fails to comply with laws, rules
or regulations relating to elections;
6. It has made untruthful statements in its
petition; and
7. It has ceased to exist for at least one (1)
year from the time the petition is filed.
8.
What are the qualifications of a party-list
nominee?
1. A natural-born citizen of the Philippines;
2. A registered voter;
3. A resident of the Philippines for a period
of not less than one (1) year
immediately preceding the election day;
4. Able to read and write;
5. A bona fide member of the party he
seeks to represent for at least ninety
(90) days preceding election day;
6. and At least twenty-five (25) years of
age on election day.
NOTE: In case of the youth sector, he must be at
least twenty-five (25) but not more than thirty (30)
years of age on the day of the election. Any youth
sectoral representative who reaches the age of thirty
(30) during his term shall be allowed to continue in
office until the expiration of his term.
How many seats are available under the party-list
system?
Twenty percent (20%) of the total membership in the
House of Representatives is reserved for party-list
representatives, or a ratio of one (1) party list
representative for every four (4) legislative district
representatives. (20% ALLOCATION)
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How does the party-list system enhance the
chances or marginalized or underrepresented
parties of winning seats in the House of
Representatives?
In the party-list system, no single party may hold
more than three (3) party-list seats. Bigger parties
which traditionally will dominate elections cannot
corner all the seats and crowd out the smaller parties
because of this maximum ceiling. This system shall
pave the way for smaller parties to also win seats in
the House of Representatives. (3-SEAT LIMIT)
How shall party-list seats be allocated? [See
Veterans Federation Party, et al. vs. Commission
on Elections, et al. (G. R. No. 136781, 06 October
2000)].
Party-list seats shall be allocated as follows:
1. The parties shall be ranked from highest
to lowest based on the number and
percentage of votes garnered during the
elections;
2. Only a maximum of three seats may be
allowed per party. Seats are allocated at
the rate of one seat per 2% of votes
obtained;
and
3. Unallocated seats shall be distributed
among the parties, which have not yet
obtained the maximum 3 seats, provided
they have mustered at least 2% of votes.
NOTE: The variance of percentage in excess of 2%
or 4% (equivalent to 1 or 2 seats that have already
been obtained, respectively) shall be ranked and be
the basis for allocating the remaining seats.
What is the status of the party-list representatives
vis-à-vis representatives of legislative districts in
the House of Representatives?
Party-list representatives are considered elected
Members of the House and as such, entitled to the
same deliberative rights, salaries, and emoluments
as the regular Members of the House of
representatives. They shall serve for a term of three
(3) years with a maximum
of and
three
(3) consecutive
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REPUBLIC ACT NO. 6646 AN ACT INTRODUCING
ADDITIONAL REFORMS IN THE ELECTORAL
SYSTEM AND FOR OTHER PURPOSES.
How should City Voters vote?
The registered voters of a highly urbanized city shall
not vote in the election for provincial officials of the
province in which it is located. No component city
shall be declared or classified as a highly urbanized
city within sixty (60) days prior to a local election. The
registered voters of a component city shall be entitled
to vote in the election for provincial officials of the
province of which it is a part, unless its charter
provides otherwise. (Sec. 3)
What is the effect of a disqualification case?
Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted
for and receives the winning number of votes in such
election, the Court or Commission shall continue with
the trial and hearing of the action, inquiry, or protest
and, upon motion of the complainant or any
intervenor, may during the pendency thereof order
the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong. (Sec. 6)
Aside from the prohibited acts and election
offenses enumerated in Sections 261 and 262 of
the Omnibus Election Code (B. P. Blg. 881, as
amended), what are the other ELECTION
OFFENSES?
1. Any person who causes the printing of official
ballots and election returns by any printing
establishment, which is not under contract
with the Commission on Elections and any
printing establishment, which undertakes
such unauthorized, printing.
2. Any member of the board of election
inspectors or board of canvassers who
tampers, increases, or decreases the votes
received by a candidate in any election or
any member of the board who refuses, after
proper verification and hearing, to credit the
correct votes or deduct such tampered votes.
3. Any member of the board of election
inspectors who refuses to issue to duly
accredited watchers the certificate of votes
provided in Section 16 hereof.
4. Any person who violates Section 11 hereof
regarding prohibited forms of election
propaganda.
5. Any chairman of the board of canvassers
who fails to give notice of meetings to other
members of the board, candidate or political
party as required under Section 23 hereof.
6. Any person declared a nuisance candidate
as defined under Section 69 of Batas
Pambansa Blg. 881, or is otherwise
disqualified, by final and executory judgment,
who continues to misrepresent himself, or
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holds himself out, as a candidate, such as by
continuing to campaign thereafter, and/or
other public officer or private individual, who
knowingly
induces
or
abets
such
misrepresentation,
by
commission
or
omission, shall be guilty of an election
offense and subject to the penalty provided in
Section 264 of the same Code. (Sec. 27)
REPUBLIC ACT NO. 7166 AN ACT PROVIDING
FOR SYNCHRONIZED NATIONAL AND LOCAL
ELECTIONS AND FOR ELECTORAL REFORMS,
AUTHORIZING APPROPRIATIONS THEREFOR,
AND FOR OTHER PURPOSES
When may special elections be had?
In case a permanent vacancy shall occur in the
Senate or House of Representatives at least one (1)
year before the expiration of the term, the
Commission shall call and hold a special election to
fill the vacancy not earlier than sixty (60) days nor
longer than ninety (90) days after the occurrence of
the vacancy. However, in case of such vacancy in the
Senate, the special election shall be held
simultaneously with the succeeding regular election.(
Sec. 4)
How long is the election and campaign period?
Regular elections shall commence ninety (90) days
before the day of the election and shall end thirty (30)
days thereafter. The campaign period for President,
Vice-President and Senators shall be ninety (90)
days before the day of the election and for Members
of the House of Representatives and elective
provincial, city and municipal officials, forty-five (45)
days before the day of the election.
Any election campaign or partisan political activity for
or against any candidate outside of the campaign
period herein provided is prohibited and shall be
considered as an election offense punishable under
Section 263 and 264 of the Omnibus Election Code.
How much may a candidate or registered political
party spend for election campaign?
1. FOR CANDIDATES. - Ten pesos (P10.00)
for President and Vice-President; and for
other candidates
Three
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currently
registered in the
are needed
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constituency where he filed his certificate of
candidacy: Provided, That a candidate
without any political party and without
support from any political party may be
allowed to spend Five Pesos (P5.00) for
every such voter; and
2. FOR POLITICAL PARTIES. - Five pesos
(P5.00) for every voter currently registered in
the constituency or constituencies where it
has official candidates. (Sec. 13)
Is the Statement of Contributions and
Expenditures required what is the Effect of
Failure to File Statement? –
Yes. Every candidate and treasurer of the political
party shall, within thirty (30) days after the day of the
election, file in duplicate with the offices of the
Commission the full, true and itemized statement of
all contributions and expenditures in connection with
the election.
No person elected to any public offices shall
enter upon the duties of his office until he has
filed the statement of contributions and
expenditures herein required.
The same prohibition shall apply if the
political party which nominated the winning
candidate fails to file the statement required
herein within the period prescribed by this
Act.
Except candidates for elective barangay
office, failure to file the statements or reports
in connection with electoral contributions and
expenditures are required herein shall
constitute an administrative offense for which
the offenders shall be liable to pay an
administrative fine ranging from One
thousand pesos (P1,000.00) to Thirty
thousand pesos (P30,000.00), in the
discretion of the Commission.
The fine shall be paid within thirty (30) days
from receipt of notice of such failure;
otherwise, it shall be enforceable by a writ of
execution issued by the Commission against
the properties of the offender. (Sec. 14)
Are Pre-proclamation Cases Allowed in Elections
for President Vice-President, Senator, and
Member of the House of Representatives?
As a General Rule, no pre-proclamation cases shall
be allowed on matters relating to the preparation,
transmission, receipt, custody and appreciation of the
election returns or the certificates of canvass, as the
case may be.
However, this does not preclude the authority of the
appropriate canvassing body motu propio or upon
written complaint of an interested person to correct
manifest errors in the certificate of canvass or
election returns before it.
Are Pre-proclamation Cases Involving Provincial,
City and Municipal Offices allowed? When are
they terminated?
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Pre-proclamation cases involving provincial,
city and municipal offices shall be allowed.
All pre-proclamation cases pending before
the Commission shall be deemed terminated
at the beginning of the term of the office
involved and the rulings of the boards of
canvassers concerned shall be deemed
affirmed, without prejudice
to the filing of a regular election protest by
the aggrieved party. However, proceedings
may continue when on the basis of the
evidence thus far presented, the Commission
determined that the petition appears
meritorious and accordingly issues an order
for the proceeding to continue or when an
appropriate order has been issued by the
Supreme Court in a petition for certiorari.
How
are
pre-proclamation
controversies
commenced?
Questions affecting the composition or proceedings
of the board of canvassers may be initiated in the
board or directly with the Commission. However,
matters raised in relation to the preparation,
transmission, receipt, custody and appreciation of the
election returns, and the certificates of canvass shall
be brought in the first instance before the board of
canvassers only.
Are Partial Proclamations allowed?
Yes. Notwithstanding the pendency of any preproclamation controversy, the Commission may
summarily order the proclamation of other winning
candidates whose election will not be affected by the
outcome of the controversy.
How are Election Contests for Municipal Offices
resolved?
All election contests involving municipal
offices filed with the Regional Trial Court
shall be decided expeditiously.
The decision may be appealed to the
Commission within five (5) days from
promulgation or receipt of a copy thereof by
the aggrieved party. The Commission shall
decide the appeal
within
(60) days after
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six (6) months after the filing of the appeal,
which decision shall be final, unappealable
and executory.
particularly the Determination of Authenticity and
Due Execution of Certificates of Canvass?
Congress shall determine the authenticity and due
execution of the certificate of canvass for President
and Vice-President as accomplished and transmitted
to it by the local boards of canvassers, on a showing
that:
1. each certificate of canvass was executed,
signed and thumbmarked by the chairman
and members of the board of canvassers and
transmitted or caused to be transmitted to
Congress by them;
2. each certificate of canvass contains the
names of all of the candidates for President
and Vice-President and their corresponding
votes in words and in figures; and
3. there exists no discrepancy in other authentic
copies of the certificate of canvass or
discrepancy in the votes of any candidate in
words and figures in the certificate.
When the certificate of canvass, duly certified by the
board of canvassers of each province, city or district,
appears to be incomplete, the Senate President shall
require the board of canvassers concerned to
transmit by personal delivery, the election returns
from polling places that were not included in the
certificate of canvass and supporting statements.
Said election returns shall be submitted by personal
delivery within two (2) days from receipt of notice.
When it appears that any certificate of canvass or
supporting statement of votes by precinct bears
erasures or alterations which may cast doubt as to
the veracity of the number of votes stated therein and
may affect the result of the election, upon request of
the Presidential or Vice-Presidential candidate
concerned or his party, Congress shall, for the sole
purpose of verifying the actual number of votes cast
for President and Vice-President, count the votes as
they appear in the copies of the election returns
submitted to it.
How should the Congress as the National Board
of Canvassers for the Election of President and
Vice-President
perform
such
function,
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