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POLITICAL LAW (CONSTITUTIONAL LAW)
REVIEWER & MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2001
Louie, Carrie, Evelyn, Thel, Gem, Ronald
ARTICLE I – THE NATIONAL TERRITORY
The national territory of the Philippines comprises:
1. The Philippine archipelago
2. With all the islands and waters embraced therein
3. And all other territories over which the Philippines has
jurisdiction
4. Consisting of its
a. Terrestrial
b. Fluvial; and
c. Aerial domains
5. Including its
a. Territorial sea
b. The seabed
c. The subsoil
d. The insular shelves; and
e. The other submarine areas
6. The waters
a. Around
b. Between and
c. Connecting
d. The islands of the archipelago
Regardless of their breadth and dimensions
Form part of the INTERNAL WATERS of the Philippines
sovereignty or
CODE: TFA
CODE: TSSIO
CODE: ABCI
Definition of Archipelago
An archipelago is a body of water studded with islands. The Philippine archipelago
is 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 of Great Britain
(1930).
Definition of “all other territories over which the Philippines has sovereignty or
jurisdiction”
It includes any territory that presently belongs or might in the future belong to the
Philippines through any of the internationally accepted modes of acquiring territory.
Archipelagic principle
Two elements:
1. The definition of internal waters (as provided above);
2. The straight baseline method of delineating the territorial sea – consists of
drawing straight lines connecting appropriate points on the coast without
departing to any appreciable extent from the general direction of the coast.
Important distances with respect to the waters around the Philippines
1. Territorial sea
2. Contiguous zone
3. Exclusive economic zone -
12 nautical miles (n.m.)
12 n.m. from the edge of the territorial sea
200 n.m. from the baseline [includes (1) and (2)]
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.
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POLITICAL LAW (CONSTITUTIONAL LAW)
REVIEWER & MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2001
Louie, Carrie, Evelyn, Thel, Gem, Ronald
Elements of a State (for municipal law purposes)
1.
2.
3.
4.
A community of persons, more or less numerous (PEOPLE)
Permanently occupying a definite portion of territory (TERRITORY)
Independent of external control (SOVEREIGNTY)
Possessing an organized government to which the great body of inhabitants render
habitual obedience (GOVERNMENT)
Definition of “People”
1.
2.
3.
4.
CODE: PTSG
CODE: CNCH
A Community of persons;
Sufficient in Number;
Capable of maintaining the continued existence of the community; and
Held together by a common bond of law.
Definition of “Sovereignty”
1. LEGAL sovereignty
a. The supreme power to make law.
b. It is lodged in the people.
2. POLITICAL sovereignty
a. The sum total of all the influences in a state,
b. Legal and non-legal,
c. Which determine the course of law.
3. According to the Principle of AUTO-LIMITATION:
Sovereignty is the property of the state-force due to which it has the exclusive
capacity of legal self-determination and self-restriction.
Definition of “Government”
1.
2.
3.
4.
5.
That institution or aggregate of institutions
by which an independent society
makes and carries out those rules of action
which are necessary to enable men to live in a social state
or which are imposed upon the people forming that society by those who possess
the power or authority of prescribing them.
Classification of governments
1. De jure
2. De facto
- one established by the authority of the legitimate sovereign
- one established in defiance of the legitimate sovereign
Classification of de facto governments
1. De facto proper
a.
b.
c.
d.
That government that gets possession and control of
or usurps by force or by the voice of majority
the rightful legal government
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.
3. That established as an independent government by the inhabitants of a country who
rise in insurrection against the parent state.
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POLITICAL LAW (CONSTITUTIONAL LAW)
REVIEWER & MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2001
Louie, Carrie, Evelyn, Thel, Gem, Ronald
Definition of “Republican State”
It is one wherein all government authority emanates from the people and is exercised by
representatives chosen by the people.
Definition of 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.
Kind of war renounced by the Philippines
The Philippines only renounces AGGRESSIVE war as an instrument of national policy.
It does not renounce defensive war.
Some "generally accepted principles of international law" recognized by the
Court:
1. 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 to establish military commissions to try war criminals (Kuroda
v. Jalondoni, 83 Phil. 171)
3. The Vienna Convention on Road Signs and Signals (Agustin v. Edu, 88 SCRA 195)
Amity with all nations
This does not mean automatic diplomatic recognition of all nations.
recognition remains a matter of executive discretion.
Diplomatic
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.
Civilian authority/supremacy clause (1st sentence)
1. Civilian authority simply means the supremacy of the law because authority, under
our constitutional system, can only come from law.
2. Under this clause, the soldier renounces political ambition.
Mark of sovereignty (2nd and 3rd sentences)
1. Positively, this clause singles out the military as the guardian of the people and of the
integrity of the national territory and therefore ultimately of the majesty of the law.
2. Negatively, it is an expression of disapproval of 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.
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POLITICAL LAW (CONSTITUTIONAL LAW)
REVIEWER & MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2001
Louie, Carrie, Evelyn, Thel, Gem, Ronald
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.
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 the peaceful uses of nuclear energy.
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. etc.
Principle that the family is not a creature of the state.
Protection for the unborn
1. It is not an assertion that the unborn is a legal person.
2. 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.
3. 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.
1.
2.
While the right to a balanced and healthful ecology is found under the
declaration of Principle and State Policies and not under the Bill of Rights, it
does not follow that it is less important than any of the civil and political rights
enumerated in the latter. (Oposa v. Factoran)
The right to a balanced and healthful ecology carries with it the correlative
duty to refrain from impairing the environment. (Oposa v. Factoran)
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
Section 1. No person shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal protection of the laws.
BILL OF RIGHTS
 The Bill of rights is a guarantee that there are certain areas of a person’s
life, liberty and property which governmental power may not touch.
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POLITICAL LAW (CONSTITUTIONAL LAW)
REVIEWER & MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2001
Louie, Carrie, Evelyn, Thel, Gem, Ronald
 The Bill of rights is a declaratory of fundamental principles and of the
basic rights of citizenship.
 It enumerates some of the private and inalienable rights of the people,
and it has been said that the rights protected by the Bill of Rights are
those that inhere in the “great and essential principles of liberty and free
government.”
 The rights in the Bill of Rights are sometimes referred to as natural laws
and as being founded on natural right and justice.
 Any governmental action in violation of the rights declared in the Bill of
Rights is void, so that the provisions of a Bill of Rights are self – executing
to this extent; however, the legislature may enact laws to protect and
enforce the provisions of the Bill of Rights.
 To the law of force rather than the force of law, it is necessary to remind
ourselves that certain basic rights and liberties are immutable
(unchangeable) and cannot be sacrificed to the transient needs or
imperious demands of the ruling power. The rule of law must prevail or
else liberty will perish.
 The provisions of the bill of rights are primarily limitations on government,
declaring rights that exist without any governmental grant, that may not
be taken away by government and that government has duty to protect.
 The fundamental human rights conferred by the Constitution are not
absolute.
 The totality of governmental power is contained in the three (3) great
powers: police power, power of eminent domain, and power of taxation.
These are inherent powers of government. A constitution can only define
and delimit them and allocate their exercise among various government
agencies.
BALANCING THE RIGHTS OF PERSONS AND POLICE POWER
For the proper defense and protection of freedom, a political institution must
possess power. Hence, government becomes the delicate art of balancing the power of
government and the freedom of the governed.
Definition of “Police Power”:
1)
2)
3)
4)
5)
6)
7)
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.
POLICE POWER
 The power of promoting the public welfare by restraining and regulating
the use of liberty and property.
 The power vested in the legislature by the constitution to make, ordain,
and establish all manner of wholesome and reasonable laws, statutes,
and ordinance, either with penalties or without, not repugnant to the
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POLITICAL LAW (CONSTITUTIONAL LAW)
REVIEWER & MEMORY AID
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Louie, Carrie, Evelyn, Thel, Gem, Ronald
constitution, as they shall judge to be for the good and welfare of the
commonwealth, and of the subjects of the same.
 The power of the state to regulate liberty and property for the promotion
of the general welfare.
 The person’s acts and acquisitions are hemmed in the police power.
 It is the most essential, insistent and the least limitable of powers,
extending as it does to all the great public needs.
 Police power rests upon public necessity and upon the right of the state
and of the public to self – protection.
 Negatively, police power is defined as that inherent and plenary (full)
power in the State which enables it to prohibit all that is hurtful to the
comfort, safety, and welfare of society. (Ermita V Mayor of Manila)
-
public health
public safety
public morals
general welfare
SCOPE OF POLICE POWER
Police power rests upon public necessity and upon the right of the State and of
the public to self – protection. For this reason, its scope expands and contracts with
changing needs.
POWER OF EXPROPRIATION OR POWER OF EMINENT DOMAIN
 Enables the state to forcibly acquire private property, upon payment of
just compensation, for some intended public use.
 Power of expropriation is the highest and most exact idea of property
remaining in the government that may be acquired for some public
purpose through a method in the nature of compulsory sale to the state.
 The provision should be strictly interpreted against the expropriator and
liberally in favor of the property owner.
 The exercise of this power is necessarily in derogation of private rights,
and the rule in that case is that the authority must be strictly construed.
 Except for police power and power of taxation, only the power of
expropriation may be exercised by public and private corporations.
POWER OF TAXATION
 The state is able to demand from the members of society their
proportionate share or contribution in the maintenance of the government.
 Importance of taxation derives from the unavoidable obligation of the
government to protect the people and extend them benefits in the form of
public projects and services.
Right to life
The constitutional protection to life is not just a protection of the right to be alive
or to the security of one’s limb against physical harm. The right to life is the right to a
good life.
Right to liberty
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POLITICAL LAW (CONSTITUTIONAL LAW)
REVIEWER & MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2001
Louie, Carrie, Evelyn, Thel, Gem, Ronald
 Includes that right to exist and the right to be free from arbitrary restraint
or servitude.
 The right to enjoy the faculties to which he has been endowed by his
Creator, subject only to such restraints as are necessary for the common
welfare.
 The chief elements to the guarantee are the right to contract, the right to
choose ones employment, the right to labor and the right to locomotion.
 Not only physical liberty but also intellectual liberty.
Right to property
 Protected property include all kinds of property found in the Civil Code. It
has been deemed to include vested rights.
Example:
1. The right to labor, such that an employee may not be removed without
giving due process; and
2. The right to public office.
HEIRARCHY OF RIGHTS: PRIMACY OF HUMAN RIGHTS OVER PROPERTY
RIGHTS
 The primacy of human rights over property rights are recognized.
Because these freedoms are “delicate and vulnerable, as well as
supremely precious in our society” and the “threat of sanctions may deter
their exercise almost as potently as the actual application of sanctions,”
they “need breathing space to survive,” permitting government regulation
only “with narrow specificity.”
 Property and property rights can be lost through prescription; but human
rights are imprescriptible. If human rights are extinguished by the
passage of time, then the Bill of Rights us a useless attempt to limit the
power of government and ceases to be an efficacious shield against
tyranny of officials, of majorities, of the influential and powerful, and of
oligarchs.
 Property is not a basic right. Property has an intimate relation with life and
liberty.
 Protection of property was a primary object of the social compact and that
the absence of such protection could well lead to anarchy and tyranny.
 Property is an important instrument
enhancement of personal dignity.
for
the
preservation
and
 Property is as important as life and liberty – and to protect their (poor)
property is really to protect their life and their liberty.
Aspects of “Due Process”:
1. Procedural due process – refers to the mode of procedure which government
agencies must follow in the enforcement and application of laws.
2. Substantive due process – prohibition against arbitrary laws.
Note: PROCEDURAL DUE PROCESS:
1. A law which hears before it condemns.
2. 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)
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POLITICAL LAW (CONSTITUTIONAL LAW)
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Louie, Carrie, Evelyn, Thel, Gem, Ronald
3. 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: C J N O H
1. A court or tribunal clothed with judicial power to hear and determine
the matter before it.
2. Jurisdiction must be lawfully acquired over the person of the
defendant or over the property which is the subject of the
proceedings.
3. The defendant must be given notice and an opportunity to be heard.
4. Judgment must be rendered upon a lawful hearing.
For ADMINISTRATIVE proceedings: CODE: H E D S H I P
1. The right to a hearing, which includes the right to present one’s case
and submit evidence in support thereof.
The tribunal must consider the evidence presented.
The decision must have something to support itself.
Evidence supporting the conclusion must be substantial.
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.
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 reasons for the decision rendered.
2.
3.
4.
5.
Note:
1. What is required is not actual hearing, but a real opportunity to be heard.
2. The requirement of due process can be satisfied by subsequent due
hearing.
3. Violation of due process: when same person reviews his own decision on
appeal.
4. Notice and hearing are required in judicial and quasi-judicial proceedings,
but not in the promulgation of general rule.
For SCHOOL DISCIPLINARY proceedings: CODE: W A In A D P
1. The student must be informed in writing of the nature and cause of
any accusation against them.
2. The student shall have the right to answer the charges against him,
with the assistance of counsel if desired.
3. The student has the right to be informed of the evidence against him.
4. The student has the right to adduce evidence in his own behalf.
5. The evidence must be duly considered by the investigating committee
or official designated by the school authorities to hear and decide the
case.
6. The penalty imposed must be proportionate to the offense.
Note:
1. The school has a contractual obligation to afford its students a fair
opportunity to complete the course a student has enrolled for.
2. Exceptions:
3. Serious breach of discipline; or
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POLITICAL LAW (CONSTITUTIONAL LAW)
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Louie, Carrie, Evelyn, Thel, Gem, Ronald
4. Failure to maintain the required academic standard.
5. Proceedings in student disciplinary cases may be summary; crossexamination is not essential
Instances when hearings are NOT necessary:
1. When administrative agencies are exercising their quasi-legislative
functions.
Abatement of nuisance per se.
Granting by courts of provisional remedies.
Cases of preventive suspension.
Removal of temporary employees in the government service.
Issuance of warrants of distraint and/or levy by the BIR
Commissioner.
7. Cancellation of the passport of a person charged with a crime.
8. Issuance of sequestration orders (considered a provisional remedy).
9. Judicial order which prevents an accused from travelling abroad in
order to maintain the effectivity of the court’s jurisdiction.
10. Suspension of a bank’s operations by the Monetary Board upon a
prima facie finding of liquidity problems in such bank.
2.
3.
4.
5.
6.
Note:
1. 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.
2. The right to appeal is a statutory privilege that may be exercised only in
the manner in accordance with law.
Requisites of SUBSTANTIVE due process: CODE: I M
1. The INTERESTS of the public generally, as distinguished from those of a
particular class, requires the interference by the government and
2. The MEANS employed are necessary for the accomplishment of the purpose
and not unduly oppressive upon individuals.
Requirements of a valid ordinance:
1.
2.
3.
4.
5.
6.
Must not contravene the Constitution or any statute
Must not be unfair or oppressive
Must not be partial or discriminatory
Must not prohibit, but may regulate trade
Must be general and consistent with public policy
Must not be unreasonable
When is a law VAGUE?
1. When it lacks COMPREHENSIBLE STANDARDS
2. That men of ordinary intelligence must necessarily GUESS as to its meaning
3. And differ as to its application
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
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POLITICAL LAW (CONSTITUTIONAL LAW)
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Louie, Carrie, Evelyn, Thel, Gem, Ronald
1.
2.
3.
4.
Rest on SUBSTANTIAL DISTINCTIONS
Be GERMANE to the purposes of the law
NOT LIMITED TO EXISTING CONDITIONS only
APPLY EQUALLY to all members of the SAME CLASS.
Section 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched and the
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
1. It must be issued upon PROBABLE CAUSE.
2. The existence of probable cause is determined personally by the JUDGE.
3. The judge must EXAMINE UNDER OATH the complainant and the witnesses
he may produce.
4. The warrant must PARTICULARLY DESCRIBE the place to be searched and
person or things to be seized.
Definition of “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”
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 (Soliven v. Makasiar,
167 SCRA 394).
To be sure, the Judge must go beyond the prosecutor’s certification and investigation
report whenever necessary (Lim v. Felix).
Procedure:
1. The judge personally evaluates the report and supporting documents submitted by
the fiscal regarding the existence of probable cause and, on the basis thereof, issue
a warrant of arrest or
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2. If on the basis thereof, the judge finds no probable cause, he may disregard the
fiscal’s report and require the submission of supporting affidavits of witnesses to aid
him in arriving at the conclusion as to the existence of probable cause.
Examination “UNDER OATH OR AFFIRMATION OF THE COMPLAINANT AND
WITNESSES”
1. 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 (Alvarez v. CFI, 64 Phil. 33).
2. 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 be held liable for the damages caused (Alvarez v. CFI).
PARTICULARITY OF DESCRIPTION (SEARCH WARRANT)
1. 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
2. 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
3. When the things described are limited to those which bear a direct relation to
the offense for which the warrant is being issued (Bache and Co. v. Ruiz, 37 SCRA
823).
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 charged in the application for the issuance of the warrant. It contravenes the
explicit demand of the Bill of Rights that the things to be seized be particularly described.
VALID WARRANTLESS SEARCH
1. 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 reach of the person arrested
2. 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.
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3. 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
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4. Seizure of evidence in plain view
A. To be a valid warrantless search, the articles must be open to the eye and
hand.
B. The peace officer comes upon them inadvertently.
5. Waiver of right
A. Requisites of a valid waiver:
i.
ii.
iii.
The right exists.
The person had actual or constructive knowledge of the existence of
such right.
There is an actual intention to relinquish such right.
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.
Note:
1. Checkpoints: 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 (Valmonte V. De Villa)
2. Carroll rule: warrantless search of a vehicle that can be quickly moved out
of the locality or jurisdiction
3. 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 an alien in order to carry out a FINAL deportation order.
VALID WARRANTLESS ARRESTS
1. 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.
2. When an offense has in fact just been committed and the arresting officer has
personal knowledge of facts indicating that the person to be arrested has committed
it.
3. 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.
4. 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.
5. 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.
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6. 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.
Section 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)
1. 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 (Ramirez v. Ca)
2. 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. (Gaanan v. IAC, 145 SCRA 112)
Types of communication protected:
Letters, messages, telephone calls, telegrams and the like.
Exclusionary rule:
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. (People v. Martin)
Section 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.
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
1. Prohibition against PRIOR RESTRAINT
2. Prohibition against SUBSEQUENT PUNISHMENT
Prohibition against prior restraint
1. Prior restraint means official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination.
2. 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
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When prohibition does not apply
a. During a war. Ex. Government can prevent publication about the number/locations
of its troops (Near v. Minnesota, 238 US 697)
b. Obscene publications.
Standards for allowable subsequent punishment
TEST
1. Dangerous Tendency Test
CRITERION
There
should
be
a
RATIONAL
CONNECTION between the speech and the
evil apprehended.
2. Clear and Present Danger Test
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.
3. Balancing of Interests Test
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.
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
1. A communication which no more than proposes a commercial transaction.
2. To enjoy protection:
a. It must not be false or misleading; and
b. It should not propose an illegal transaction.
3. Even truthful and lawful commercial speech may be regulated if:
a. Government has a substantial interest to protect;
b. The regulation directly advances that interest; and
c. 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
A. 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.
B. OPINIONS. With respect to public personalities (politicians, actors, anyone with
a connection to a newsworthy event), opinions can be aired regarding their public
actuations. Comment on their private lives, if not germane to their public
personae, are not protected.
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2. OBSCENITY
A. Test for obscenity (Miller v. California)
i.
ii.
iii.
Whether the average person, applying contemporary community
standards would find that the work, taken as a whole, appeals to
the prurient interest.
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
i.
Authorities must apply for issuance of search warrant.
ii.
Court must be convinced that the materials are obscene. Apply
clear and present danger test.
iii.
Judge will determine whether they are in fact “obscene”.
iv.
Judge will issue a search warrant.
v.
Proper action should be filed under Art. 201 of the RPC.
vi.
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:
i.
Applicant should inform the licensing authority of the date, the public
place where and the time when the assembly will take place.
ii.
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.
iii.
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.
iv.
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.
Section 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.
Clauses under Section 5
1. Non-establishment clause
2. Free exercise of Religion
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Distinction between the clauses (School District v. Schempp, 374 US 203)
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 non-establishment 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 nonestablishment clause. Thus, in order for a law to comply with the non-establishment
clause, two requisites must be met. First, it has a secular legislative purpose.
Second, 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:
1. It must have a secular legislative purpose;
2. It must have a primary effect that neither advances nor inhibits religion;
3. It must not require excessive entanglement with recipient institutions.
Section 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
MANNER OF CURTAILMENT
Lawful order of the court and within the limits
prescribed by law.
2. Right to travel
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)
Section 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
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Persons entitled to the above rights
Only Filipino citizens.
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.
2.
3.
4.
5.
6.
7.
8.
National security matters
Intelligence information
Trade secrets
Banking transactions
Diplomatic correspondence
Executive sessions
Closed door cabinet meetings
Supreme Court deliberations
Section 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.
Section 9. Private property shall not be taken for public use without just
compensation.
Who can exercise the power of eminent domain:
1) The national government
a. Congress
b. Executive, pursuant to legislation enacted by Congress
2) Local government units, pursuant to an ordinance enacted by their respective
legislative bodies (under LGC)
3) 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.
Elements of the power of eminent domain
1) There is a TAKING of private property
2) Taking is for PUBLIC USE
3) Payment of JUST COMPENSATION
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"TAKING"
A. Elements: CODE: E P A P O
1.
2.
3.
4.
5.
The expropriator enters the property
The entrance must not be for a momentary period, i.e., it must be permanent
Entry is made under warrant or color of legal authority
Property is devoted to public use
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"
1. Public use, for purposes of expropriation, is synonymous with public welfare
as the latter term is used in the concept of police power.
2. Examples of public use include land reform and socialized housing.
"JUST COMPENSATION"
1. 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.
2. The point of reference use in determining fair value is the value at the time
the property was taken. 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
1. To determine the adequacy of the compensation
2. To determine the necessity of the taking
3. 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 a 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.
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.
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Section 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 is superior to obligation of contracts.
Section 12.
offense.
Rights of person under investigation for the commission of an
Rights of person under investigation for the Commission of an offense CODE:
SCISI
1)
2)
3)
4)
Right to remain silent
Right to have competent and independent counsel, preferably of his own choice
Right to provided with the services of counsel if he cannot afford the services of one.
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 the investigation is being conducted by the government (police, DOJ, NBI)
with respect to a criminal offense.
4) 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
1) Any confession or admission obtained in violation of this section shall be
inadmissible in evidence against him (the accused).
2) Therefore, any evidence obtained by virtue of an illegally obtained confession is also
inadmissible, being the fruit of a poisoned tree.
Requisites of valid waiver:
1) Waiver should be made in WRITING
2) Waiver should be made in the PRESENCE OF COUNSEL.
Section 13. Right to bail
Who are entitled to bail:
1) All persons ACTUALLY DETAINED
2) shall, BEFORE CONVICTION
3) Be entitled to bail.
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Who are not entitled to bail:
1)
2)
3)
Persons charged with offenses PUNISHABLE by RECLUSION PERPETUA or
DEATH, when evidence of guilt is strong
Persons CONVICTED by the trial court. Bail is only discretionary pending appeal.
Persons who are members of the AFP facing a court martial.
Other rights in relation to bail.
1) The right to bail shall NOT be impaired even when the privilege of the writ of habeas
corpus is suspended.
2) Excessive bail shall not be required.
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
9) Whether accused was a fugitive from justice when arrested
10) If accused is under bond in other cases
Implicit limitations on the right to bail:
1. The person claiming the right must be in actual detention or custody of the law.
2. The constitutional right is available only in criminal cases, not, e.g. in deportation
proceedings.
Note:
1. Right to bail is not available in the military.
2. Apart from bail, a person may attain provisional liberty through recognizance.
Section 14. Rights of an accused
Rights of a person charged with a criminal offense
1.
2.
3.
4.
5.
6.
7.
Right to due process of law
Right to be presumed innocent
Right to be heard by himself and counsel
Right to be informed of the nature and cause of the accusation against him
Right to have a speedy, impartial and public trial
Right to meet the witnesses face to face
Right to have compulsory process to secure the attendance of witnesses and the
production of evidence in his behalf
“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.
“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.
Presumption of guilt should not be conclusive.
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“RIGHT TO BE HEAR BY HIMSELF AND COUNSEL”
The right to be heard includes the following rights:
1. Right to be present at the trial
A. The right to be present covers the period from ARRAIGNMENT to
PROMULGATION of sentence.
B. After arraignment, trial may proceed notwithstanding absence of accused,
provided 2 requisites are met. Note, that trial in absentia is allowed only if the
accused has been validly arraigned.
(i)
(ii)
Accused has been duly notified; and
His failure to appear is unjustifiable.
C. 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.
D. While the accused is entitled to be present during promulgation of
judgement, the absence of his counsel during such promulgation does not
affect its validity.
2. Right to counsel
(a) Right to counsel means the right to EFFECTIVE REPRESENTATION.
(b) If the accused appears at arraignment without counsel, the judge must:
(i) Inform the accused that he has a right to a counsel before
arraignment
(ii) Ask the accused if he desires the aid of counsel
(iii) If the accused desires counsel, but cannot afford one, a counsel
de oficio must be appointed
(iv) If the accused desires to obtain his own counsel, the court must
give him a reasonable time to get one.
3. Right to an impartial judge
4. Right of confrontation and cross-examination
5. Right to compulsory process to secure the attendance of witnesses
“RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION
AGAINST HIM”
Purposes of the right:
1) To furnish the accused with a description of the charge against him as will enable
him to make his defenses
2) To avail himself of his conviction or acquittal against a further prosecution for the
same cause
3) To inform the court of the facts alleged.
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.
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“RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL”
Factors used in determining whether the right to a speedy trial has been violated
1)
2)
3)
4)
5)
Time expired from the filing of the information
Length of delay involved
Reasons for the delay
Assertion or non-assertion of the right by the accused
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
He can move for the dismissal of the case.
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
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.
“RIGHT TO MEET WITNESS FACE TO FACE”
Purposes of the right:
1. To afford the accused an opportunity to cross-examine the witness
2. To allow the judge the opportunity to observe the deportment of 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.
When the right to cross-examine is demandable
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
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Section 16. All persons shall have the right to a speedy disposition of their cases
before all judicial, quasi-judicial, or administrative bodies.
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.
Section 17. No person shall be compelled to be a witness against himself.
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.
Distinction between an accused and an ordinary witness
1. An accused can refuse to take the witness stand by invoking the right against selfincrimination.
2. 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.
Scope of right
1.
2.
3.
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 administrative proceedings if the accused is liable to a penalty (Ex. Forfeiture of
property)
Who can invoke the right:
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.
Section 18. Right against involuntary servitude
Definition of 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. Return to work order issued by the DOLE Secretary or the President
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Section 19. Prohibition against cruel, degrading and inhuman punishment
When is a penalty “cruel, degrading and inhuman”?
1. A penalty is cruel and inhuman if it involves torture or lingering suffering. Ex. Being
drawn and quartered.
2. 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.
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.
Excessive fine
A fine is excessive, when under any circumstance, it is disproportionate to the offense.
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.
Reason: Without a valid penalty, the law is not a penal law.
Section 20. No person shall be imprisoned for debt or non-payment of a poll tax.
Definition of debt under Section 20
1) 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.
2) 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.
3) A FRAUDULENT debt may result in the imprisonment of the debtor if:
A. The fraudulent debt constitutes a crime such as estafa and
B. The accused has been duly convicted.
Section 21. No person shall be twice put in jeopardy of punishment for the same
offense. If an act punished by a law and an ordinance, conviction or acquittal
under either shall constitute a bar to another prosecution for the same act.
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 as that in the first.
When does jeopardy ATTACH: (1st 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.
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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.
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.
When does first jeopardy TERMINATE: (2ND REQUISITE)
1)
2)
3)
4)
Acquittal
Conviction
Dismissal W/O the EXPRESS consent of the accused
Dismissal on the merits.
Examples of termination of jeopardy:
1) Dismissal based on violation of the right to a 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.
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.
What are considered to be the “SAME OFFENSE”:
Section 21)
(under the 1st sentence of
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.
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.
Definition of double jeopardy (2nd 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
1) 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
fiscal and the offended party.
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2) 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.
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.
Section 22. No ex post facto law or bill of attainder shall be enacted.
Definition of ex-post facto law.
1) One which makes an action done before the passing of the law, and which was
innocent when done, criminal, and punishes such action.
2) One which aggravates the crime or makes it greater than when it was committed.
3) One which changes the punishment and inflicts a greater punishment than that
which the law annexed to the crime when it was committed.
4) 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.
5) 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.
6) 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.
Definition of BILL OF ATTAINDER
1) A bill of attainder is a LEGISLATIVE act which inflicts punishment W/O JUDICIAL
trial.
2) The bill of attainder does not need to be directed at a specifically named person. It
may also refer to easily ascertainable members of a group in such a way as to inflict
punishment on them without judicial trial.
3) Elements of the bill of attainder
A. There must be a LAW.
B. The law imposes a PENAL burden on a NAMED INVIDIDUAL/EASILY
ASCERTAINABLE MEMBERS of a GROUP.
C. 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.
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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 the 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
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:
1) General Rule: The Filipino RETAINS Philippine citizenship
2) Exception: If, by their act or omission they are deemed, under the law, to have
renounced it.
Examples of renunciation of Philippine citizenship:
1) Voluntarily obtaining foreign passport
2) Pledging allegiance to another country (ex. by becoming a naturalized citizen of
another country)
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.
How may one lose citizenship:
1.
2.
3.
4.
5.
By naturalization in a foreign country
By express renunciation of citizenship
By subscribing oath or allegiance to a foreign Constitution
By serving in the armed forces of an enemy country
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
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ARTICLE V – SUFFRAGE
Qualifications:
1)
2)
3)
4)
5)
CODE: CD18RR
Citizen of the Philippines
Not Disqualified by law
At least 18 years old
Resident of the Philippines for at least 1 year
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.
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.
2) Any person adjudged by final judgment of having violated his allegiance to the
Republic of the Philippines.
3) Insane or feeble-minded persons.
Note Under the 2nd disqualification, the right to vote is automatically re-acquired upon
the expiration of 5 years after the service of sentence.
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.
Definition of Legislative Power:
The authority to make laws and to alter or repeal them.
Classification of legislative power: (O De CO)
1. Original – Possessed by the people in their sovereign capacity
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
Note:
The original legislative power of the people is exercised via initiative and referendum. In
this manner, people can directly propose and enact laws, or approve or reject any act or
law passed by Congress or a local government unit.
Limits on the legislative power of Congress:
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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.
Note:
Provided that these two limitations are not exceeded, Congress’ legislative power
is plenary.
Corollaries of legislative power:
1. Congress cannot pass irrepealable laws. Since Congress’ powers are plenary, and
limited only by the Constitution, any attempt to limit the powers of future Congresses
via an irrepealable law is not allowed.
2. Congress, as a general rule, cannot delegate its legislative power. Since the people
have already delegated legislative power to Congress, the latter cannot delegate it
any further.
EXCEPTIONS:
1. Delegation of legislative power to local government units;
2. Instances when the Constitution itself allows for such delegation [see Art. VI Sec.
23(2)]
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
Composition
24 senators who shall be elected at large by the qualified voters of the Philippines, as
may be provided by law.
Qualifications
1.
2.
3.
4.
5.
Natural-born citizen;
At least 35 years old on the day of election;
Able to read and write;
A registered voter; and
Philippine resident for at least 2 years immediately preceding the day of the election.
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.
Term of Office:
6 years, commencing (unless otherwise provided by law) at noon, 30 June next following
their election.
Term Limitations:
1. No Senator shall serve for more than 2 consecutive terms.
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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.
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Sections 5-7. HOUSE OF REPRESENTATIVES
Composition:
1. Not more than 25 members, unless otherwise fixed by law; and
2. Party-list Representatives
Election of 250 members
1. They shall be elected from legislative districts apportioned among the provinces,
cities and the Metropolitan Manila area.
2. Legislative districts are apportioned in accordance with the number of inhabitants of
each area and on the basis of a uniform and progressive ratio.
a. Each district shall comprise, as far as practicable, contiguous, compact and
adjacent territory;
b. Each city with at least 250,000 inhabitants will be entitled to at least one
representative.
c. Each province will have at least one representative.
d. Legislative districts shall be re-apportioned by Congress within 3 years after
the return of each census.
According to Jack, however, while the
apportionment of districts is NOT a political question, the judiciary CANNOT
compel Congress to do this.
e. 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.
Qualifications
1.
2.
3.
4.
5.
Natural born citizen of the Philippines;
At least 25 years old on the day of the election;
Able to read and write;
Registered voter in the district he seeks to represent; and
A resident of such district for at least one year immediately preceding the day of the
election.
Term of Office
1. Each member of the House shall be elected for a term of three (3) years which shall
commence (unless otherwise provided for by law) at noon on 30 June next following
their election.
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.
Term Limitations
No member of the House of Representatives shall serve for more than three (3)
consecutive terms.
Distinctions between Term and Tenure
1. Definition
a. Terms means the period during which the elected officer is legally authorized
to assume his office and exercise the powers thereof.
b. Tenure is the actual period during which such officer actually holds his
position.
2. Limitation/Possible Reduction
a. Term CANNOT be reduced.
b. Tenure MAY, by law, be limited. Thus, a provision which considers an
elective office automatically vacated when the holder thereof files a certificate
of candidacy for another elective office (except President and Vice-President)
is valid, as it only affects the officers tenure and NOT his constitutional term.
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Party-List Representatives
1. Constitute 20% of the total number of representatives, including those under the
party-list system (thus a maximum of 50 party-list members of the House)
2. However, for 3 consecutive terms from 2 February 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.
3. Mechanics of the party-list system:
a. Registered organizations submit a list of candidates in order of priority.
b. During the elections, these organizations are voted for at large.
c. The number of seats that each organization gets out of the 20% allotted to
the system depends on the number of votes they get.
4. Qualifications
a. Natural born citizen of the Philippines
b. At least 25 years of age on the day of the election
c. Able to read and write
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.
SEC. 10. Salaries of Senators and Members of the House
Determination of Salaries:
Salaries of Senators and Members of the House of Representatives 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,’
our distinguished legislators can appropriate for themselves other sums of money such
as travel allowances, as well as other side ‘benefits.’
SEC. 11: CONGRESSIONAL IMMUNITIES
1.) Immunity from arrest:
a.
Legislators are privileged from arrest while Congress is “in session” with
respect to offenses punishable by up to 6 years of imprisonment. Thus, whether
Congress is in regular or special session, the immunity from arrest applies.
b.
If Congress is in recess, members thereof may be arrested.
c.
The immunity is only with respect to arrests and NOT to prosecution for
criminal offenses.
2.) Legislative privilege:
a. 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.
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b. Limitation on the privilege:
(i)
(ii)
(iii)
Protection is only against forum other than Congress itself. Thus for
inflammatory remarks which are otherwise privileged, a member may be
sanctioned by either the Senate or the House as the case may be.
The ‘speech or debate’ must be made in performance of their duties as
members of Congress. This includes speeches delivered, statements
made, votes cast, as well as bills introduced, and other activities done in
performance of their official duties.
Congress need NOT be in session when the utterance is made, as long
as it forms part of ‘legislative action,’ i.e. part of the deliberative 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.
SEC. 13-14: CONGRESSIONAL DISQUALIFICATIONS:
Disqualifications:
DISQUALIFICATION
WHEN APPLICABLE
1. Senator/Member of the House cannot During his term. If he does so, he forfeits
hold any other office or employment in the his seat.
Government or any subdivision, agency or
Instrumentality thereof, including GOCCS
or their subsidiaries.
2. Legislators cannot be appointed to any IF the office was created or the
office.
emoluments thereof increased during the
term for which he was elected.
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.
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.
SEC. 15: REGULAR AND SPECIAL SESSIONS
Regular Sessions:
1.) Congress convenes once every year on the 4th Monday of July (unless otherwise
provided for by law)
2.) 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.
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Special Sessions:
Called by the President at any time when Congress is not in session.
SEC. 16. Officers:
1.) Senate President;
2.) Speaker of the House; and
3.) Each House may choose such other officers as it may deem necessary.
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:
1. Each House shall determine its own procedural rules.
2. Since this is a power vested in Congress as part of its inherent powers, under the
principle of separation of powers, the courts cannot intervene in the implementation
of these rules insofar as they affect the members of Congress.
3. Also, since Congress has the power to make these rules, it also has the power to
ignore them when circumstances so require.
Discipline:
1.) Suspension
a.
Concurrence of 2/3 of ALL its members and
b.
Shall not exceed 60 days.
2.) Expulsion
a. Concurrence of 2/3 of ALL its members.
Congressional Journals and Records:
1.) The Journal is conclusive upon the courts.
2.) BUT an enrolled bill prevails over the contents of the Journal.
3.) 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.
Section 17: THE ELECTORAL TRIBUNAL
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.
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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:
1.) Each ET 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.
2.) An ‘election contest’ is one where a defeated candidate challenges the qualification
and claims for himself the seat of a proclaimed winner.
3.) In the absence of an election contest, the ET 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.
Issues regarding the Electoral Tribunals:
1.) Since the ET’s are independent constitutional bodies, independent even of the
House from which the members are respectively taken, neither Congress nor the
Courts may interfere with procedural matters relating to the functions of the ET’s,
such as the setting of deadlines or filing their election contests with the respective
ETs.
2.) The ETs 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 ET
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
ET. The Constitution is quite clear that the ET must act with both members from the
SC and from the Senate or the House. If all the legislator-members of the ET were
to be disqualified, the ET would not be able to fulfill its constitutional functions.
4.) Judicial review of decisions of the ETs 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.
Section 18: THE COMMISSION ON APPOINTMENTS
Composition:
1.) Senate President as ex-officio chairman;
2.) 12 Senators; and
3.) 12 Members of the House.
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 chairman shall only vote in case of a tie.
2.) The CA shall act on all appointments within 30 session days from their submission to
Congress.
3.) The Commission shall rule by a majority vote of all the Members.
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Jurisdiction
1.) CA shall confirm the appointments by the President with respect to the following
positions:
a. Heads of the Executive Departments (except if it is the Vice-President who is
appointed to the post).
b. Ambassadors, other public ministers or consuls.
c. Officers of the AFP from the rank of Colonel or Naval Captain: and
d. Other officers whose appointments are vested in him by the Constitution (e.g.
COMELEC members).
2.) 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.
3.) 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
1.) CA meets only while Congress is in session.
2.) Meetings are held either at the call of the Chairman or a majority of all its members.
3.) Since the CA 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 ET and the CA 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
Scope:
1. Either House or any of their committees may conduct inquires ‘in aid of legislation’.
2. “In aid of legislation” does not mean that there is pending legislation regarding the
subject of the inquiry. In fact, investigation may be needed for purposes of proposing
future legislation.
3. If the stated purpose of the investigation is to determine the existence of violations of
the law, the investigation is no longer ‘in aid of legislation’ but ‘in aid of prosecution’.
This violates the principle of separation of powers and is beyond the scope of
congressional powers.
Enforcement:
1. Since experience has shown that mere requests for information does not usually
work, Congress has the inherent power to punish recalcitrant witnesses for
contempt, and may have them incarcerated until such time that they agree to testify.
2. The continuance of such incarceration only subsists for the lifetime, or term, of such
body. Once the body ceases to exist after its final adjournment, the power to
incarcerate ceases to exist as well. 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.
3. BUT, in order for a witness to be subject to this incarceration, the primary
requirement is that the inquiry is within the scope of Congress’ powers. i.e. it is in aid
of legislation.
4. 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.
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5. The power to punish for contempt is inherent in Congress and this power is sui
generis. It cannot be exercised by local government units unless they are expressly
authorized to do so.
Limitations:
1. The inquiry must be conducted in accordance with the ‘duly published rules of
procedure’ of the House conducting the inquiry; and
2. The rights of persons appearing in or affected by such inquiries shall be respected.
Ex. The right against self-incrimination.
Appearance by department heads before Congress:
1.
Since members of the executive department are co-equals with those of the
legislative department, under the principle of separations of powers, department
heads cannot be compelled to appear before Congress. Neither may the
department heads impose their appearance upon Congress.
2.
Department heads may appear before Congress in the following instances:
a. Upon their own initiative, with the consent of the President (and that of the
House concerned); or
b. Upon the request of either House (which cannot compel them to attend)
3.
The appearance will be conducted in EXECUTIVE SESSION when:
a. Required by the security of state or required by public interest; and
b. When the President so states in writing
Sections 23-24. DECLARATION OF WAR/EMERGENCY POWERS
Vote requirement: (to declare the existence of a state of war)
1. 2/3 of both Houses, in joint session
2. Voting separately
Emergency powers:
1. During times of war or other national emergency, Congress may, BY LAW, authorize
the President to exercise powers necessary and proper to carry out a declared
national policy.
2. Limitations:
a. Powers will be exercised for a limited period only; and
b. Powers will be subject to restrictions prescribed by Congress
3. Expiration of emergency powers
a. By resolution of Congress or
b. Upon the next adjournment of Congress
Sections 24-27, 30-31 LEGISLATION
Bills that must originate from the House of Representatives (Section 24)
CODE: A R T Pu Lo P
1.
2.
3.
4.
5.
6.
Appropriation bills
Revenue bills
Tariff bills
Bills authorizing the increase of public debt
Bills of local application
Private bills
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Note: The Senate may, however, propose or concur with amendments.
Appropriation bills
1. The primary and specific aim of an appropriation bill is to appropriate a sum of
money from the public treasury.
2. Thus, a bill enacting the budget is an appropriations bill.
3. BUT: A bill creating a new office, and appropriating funds therefor is NOT an
appropriation bill.
Revenue Bill
1.
A revenue bill is one specifically designed to raise money or revenue through
imposition or levy.
2.
Thus, a bill introducing a new tax is a revenue bill, 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:
1. For appropriation bills:
a. Congress cannot increase the appropriations recommended by the President for
the operation of the Government as specified in the budget.
b. Each provision or enactment in the General Appropriations Bill 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.
c. The procedure in approving appropriations for Congress shall strictly follow the
procedure for approving appropriations for other departments and agencies.
d. 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.
e. Transfer of appropriations:
i.
ii.
f.
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
- President
- President of the Senate
- Speaker of the House of Representatives
- Chief of Justice of the Supreme Court
- Heads of the Constitutional Commissions
Discretionary funds appropriated for particular officials shall be:
i.
Disbursed only for public purposes;
ii.
Should be supported by appropriate vouchers; and
iii.
Subject to guidelines as may be prescribed by law.
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g. If Congress fails to pass General Appropriations Bill (GAB) by the end of any
fiscal year:
i. The GAB for the previous year is deemed reenacted
ii. It will remain in full force and effect until the GAB is passed by Congress.
2. For law granting tax exemption
It should be passed with the concurrence of a MAJORITY of ALL the members of
Congress.
3. For bills in general
a. Every bill shall embrace only one (1) subject, as expressed in the title thereof
i.
As a mandatory requirement
ii.
The title does not have to be a complete catalogue of everything stated in
the bill. It is sufficient if the title expresses the general subject of the bill
and all the provisions of the statute are germane to that general subject.
iii.
A bill which repeals legislation regarding the subject matter need not state
in the title that it is repealing the latter. Thus, a repealing clause in the bill
is considered germane to the subject matter of the bill.
b. Readings
1. In order to become a law, each bill must pass three (3) readings in both
Houses.
2. General rule: Each reading 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.
3. 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.
4. 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. Every bill, in order to become a law, must be presented to and signed by the
President.
2. If the President does not approve of the bill, he shall 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 overriden and becomes a law without
need of presidential approval.
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6. Item veto
a. The President may veto particular items in an appropriation, revenue or tariff bill.
b. This veto will not affect items to which he does not object.
c. Definition of item
TYPE OF BILL
1. Revenue/tax bill
2. Appropriations bill
ITEM
Subject of the tax and the tax rate imposed thereon
Indivisible sum dedicated to a stated purpose
d. Veto of RIDER
1. A rider is a provision which does not relate to a particular appropriation stated
in the bill.
2. Since it is an invalid provision under Section 25(2), the President may veto it
as an item.
Specific limitations on legislation
1. No law shall be enacted increasing the Supreme Court’s appellate jurisdiction
without the SC’s advice and concurrence.
2. No law shall be enacted granting titles of royalty or nobility.
Section 28. POWER TO TAX
Limitations:
1)
2)
3)
4)
The rule of taxation should be UNIFORM
It should be EQUITABLE
Congress should evolve a PROGRESSIVE system of taxation.
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 clauses of the Constitution should be
observed.
Delegation of power to fix rates
1) Congress may, BY LAW, authorize the President to fix the following:
a) Tariff rates
b) Import and Export Quotas
c) Tonnage and wharfage dues
d) Other duties and imposts
Within the framework of the national development program of the Government
2) The exercise of such power by the President shall be within the specified limits fixed
by Congress and subject to such limitations and restrictions as it may impose.
Constitutional tax exemptions:
1) The following properties are exempt from REAL PROPERTY taxes
(CODE: Cha Chu M- CA)
a)
b)
c)
d)
e)
Charitable institutions
Churches, and parsonages or convents appurtenant thereto
Mosques
Non-profit cemeteries; and
All lands, buildings and improvements actually, directly and exclusively used
for religious, charitable, or educational purposes.
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2) 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))
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))
Section 29. Power of the Purse
1) No money shall be paid out of the National Treasury EXCEPT in pursuance of an
appropriation made by law.
a) This places the control of public funds in the hands of Congress.
b) 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.
2) Limitations.
a) Appropriations must be for a PUBLIC PURPOSE
b) Cannot appropriate public funds or property, directly or indirectly, in favor of
(i)
Any sect, church, denomination, or sectarian institution or system of
religion or
(ii)
Any priest, preacher, minister, or other religious teacher or dignitary as
such.
EXCEPT if the priest, etc is assigned to:
- the Armed Forces; or
- any penal institution; or
- government orphanage; or
- leprosarium
c) BUT the government is not prohibited from appropriating money for a valid
secular purpose, 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.
d) ALSO, the temporary use of public property for religious purposes is valid, as
long as the property is available for all religions
3) Special Funds
a) Money collected on a tax levied for a special purpose shall be treated as a
special fund and paid out for such purpose only.
b) Once the special purpose is fulfilled or abandoned, any balance shall be
transferred to the general funds of the Government
Section 32. INITIATIVE AND REFERENDUM
1) Through the system of initiative and referendum, the people can directly propose and
enact laws or approve or reject any act or law or part thereof passed by the
Congress or local legislative body.
2) Required Petition
a) Should be signed by at least 10% of the total number of registered voters
b) Every legislative district should be represented by at least 3% of the registered
voters
c) Petition should be registered
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ARTICLE VII. THE EXECUTIVE DEPARTMENT
Section 1. EXECUTIVE POWER
Scope:
1) Executive power is vested in the President of the Philippines.
2) The scope of this power is set forth in Art. VII of the Constitution. But this power is
not limited to those set forth therein. 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 not set forth in the Constitution. EXAMPLE: The President is
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.
Section 2. QUALIFICATIONS
1)
2)
3)
4)
5)
Natural-born citizen of the Philippines
Registered voter;
Able to read and write;
At least 40 years old on the day of election
Philippine resident for at least 10 years immediately preceding such election.
Note: The Vice-President has the same qualifications & term of office as the President.
He is elected with & in the same manner as the President. He may be removed from
office in the same manner as the President.
Section 4. MANNER OF ELECTION/ TERM OF OFFICE
Manner of Election
1) The President and Vice-President shall be elected by direct vote of the people.
2) Election returns for President and Vice-President, 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
the presence of both houses of Congress, assembled in joint public session.
4) The Congress, after determining the authenticity and due execution of the
certificates, shall canvass the votes.
5) The person receiving the highest number of votes shall be proclaimed elected.
6) 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.
7) 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.
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Term of Office
1) President
a) 6 years beginning at noon on 30 June immediately following the election and
ending at noon on the same day 6 years later.
b) Term limitation: Single term only; not eligible for any reelection.
c) 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.
2) Vice-President:
a) 6 years, starting and ending the same time as the President.
b) Term limitation: 2 successive terms.
c) Voluntary renunciation of the office for any length of time is NOT an interruption
in the continuity of service for the full term for which the Vice-President was
elected.
Section 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
President-elect fails to qualify or to be
chosen
President-elect dies or is permanently
disabled.
Both President and VP-elect are not
chosen or do not qualify or both die, or
both become permanently disabled.
SUCCESSOR
VP-elect will be Acting President until
someone is qualified/chosen as President.
VP becomes President.
1. Senate President or
2. In case of his inability, the Speaker of
the House shall act as President until a
President or a VP shall have been
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
President dies, is permanently disabled, is
impeached, or resigns.
Both President and Vice-President die,
become
permanently
disabled,
are
impeached, or resign.
SUCCESSOR
Vice-President becomes President for the
unexpired term.
1. Senate President or
2. In case of his inability, the Speaker of
the House shall act as President until
the President or VP shall have been
elected and qualified.
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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 tem
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.
BUT: No special election shall be called if the vacancy occurs within 18 months
before the date of the next presidential election.
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 re-assumes 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
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Section 13. DISQUALIFICATIONS
SUBJECT
SOURCE OF DISQUALIFICATION
President,
Vice-President, Prohibited from:
Cabinet Members, Deputies or 1. Holding any office or employment during their
Assistants of Cabinet Members
tenure, UNLESS:
a. otherwise provided in the Constitution (e.g. VP
can be appointed a Cabinet Member, Sec. of
Justice sits on Judicial and Bar Council); or
b. 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).
2.
Practicing, directly or indirectly, any other
profession during their tenure;
3.
Participating in any business;
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.
th
Spouses
and
4
degree Cannot be appointed during President’s tenure as:
relatives of the President
(consanguinity or affinity)
1.
Members of the Constitutional Commissions;
2.
Office of the Ombudsman;
3.
Department Secretaries;
4.
Department under-secretaries;
5.
Chairman or heads of bureaus or offices
including GOCC’s and their subsidiaries.
N.B.
a. 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.
b. Spouses, etc., can be appointed to the judiciary
and as ambassadors and consuls.
Sections 14-16. POWER TO APPOINT
Principles:
1)
2)
Since the power to appoint is executive in nature, Congress cannot usurp this
function.
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.
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Scope:
The President shall appoint the following:
1)
2)
3)
4)
Heads of executive departments (CA confirmation needed):
Ambassadors, other public ministers, and consuls (CA confirmation needed).
Officers of AFP from rank of colonel or naval captain (CA confirmation needed).
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;
d) Sectoral representatives in Congress.
•
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)
b)
c)
d)
Nomination by President
Confirmation by CA
Appointment by President; and
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.
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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:
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.
Section 17. Power of Control and Supervision
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.
Thus, the President exercises control over all the executive
departments, bureaus, and offices.
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:
1) Since all executive and administrative organizations are adjuncts of the Executive
Department, the heads of such departments, etc. are assistants and agents of the
President.
2) Thus, 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.
3) Exception: If the acts are disapproved or reprobated by the President.
4) Under Administrative Law, decisions of Department Secretaries need not be
appealed to the President in order to comply with the requirement of exhaustion of
administrative remedies.
5) Qualified political agency does NOT apply 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.
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Disciplinary Powers:
1) The power of the President to discipline officers flows from the power to appoint the,
and NOT from the power control.
2) 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:
1) This is the power of a superior officer to ensure that the laws are faithfully executed
by subordinates.
2) 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.
3) The execution of laws is an OBLIGATION of the President. He cannot suspend the
operation of laws.
4) The power of supervision does not include the power of control; but the power of
control necessarily includes the power of supervision.
Section 18. COMMANDER-IN-CHIEF POWERS
Scope:
1) The President is the Commander-in-Chief of the Armed Forces.
2) Whenever necessary, the President may call out the AFP to PREVENT or
SUPPRESS:
a) Lawless violence;
b) Invasion; or
c) Rebellion.
3) The President 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.
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c. Congress, by majority vote and voting jointly, may revoke the same, and the
President cannot set aside the revocation.
d. In the same manner, at the President’s initiative, Congress can extend the
same for a period determined by Congress if:
i. Invasion or rebellion persist and
ii. 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.
g. Suspension of privilege of the writ:
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 is subject to the President’s judgment and
discretion.
Section 19: EXECUTIVE CLEMENCY
Scope:
1.) The President may grant the following: [ Pa R C Re]
a. Pardons (conditional or plenary)
b. Reprieves
c. Commutations
d. Remittance of fines and forfeitures
2.) These may only be granted AFTER conviction by final judgment.
3.) ALSO: The power to grant clemency includes cases involving administrative
penalties.
4.) Where a conditional pardon is granted, the determination of whether it has been
violated rests with the President.
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Limitations:
1.) As to scope:
Cannot be granted:
a.) Before conviction
b.) In cases of impeachment
c.) For violations of election laws, rules, and regulation without the favorable
recommendation of the COMELEC
d.) In cases of civil or legislative contempt
2.) As to effect:
a.) Does not absolve civil liabilities for an offense.
b.) Does not restore public offices already forfeited, although eligibility for the
same may be restored.
Amnesty:
1.) 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.
2.) President alone CANNOT grant amnesty. Amnesty needs concurrence by a
majority of all the members of Congress.
3.) 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.
4.) 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 or after Only granted after conviction by final
conviction
judgement
Section 20. Power to Contract or Guarantee Foreign Loans
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
(2) Subject to such limitations as may be provided by law.
Section 21. Foreign Relations Powers include:
(1) Power to negotiate treaties and other international agreements
(a) BUT: Such treaty of international agreement must be concurred in by at least
2/3 of all Senators in order to be valid and effective in our country.
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(b) Options of Senate when a treaty is submitted for its approval:
(i)
Approve with 2/3 majority;
(ii)
Disapprove outright; or
(iii)
Approve conditionally, with suggested amendments.
(c) If treaty is not re-negotiated, no treaty
(d) If treaty is re-negotiated and the Senate’s suggestions are incorporated, the
treaty will go into effect without need of further Senate approval.
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.
(e) Conflict between treaty and municipal law.
(i) Philippine court:
The later enactment will prevail, be it treaty or law, as it is the latest
expression of the State’s will.
(ii) International tribunal
Treaty will always prevail. A State cannot plead its municipal law to justify
noncompliance with an international obligation.
(2) Power to appoint ambassadors, other public ministers, and consuls.
(3) Power to receive ambassadors and other public ministers accredited to the
Philippines.
(4) Power to contract and guarantee foreign loans on behalf of the Republic
(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 legislation as regards 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.
BUT: The alien is not entitled to bail as a matter of right.
ARTICLE VIII. THE JUDICIAL DEPARTMENT
SEC. 1. JUDICIAL POWER
Scope:
1. 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.
2. Vested in the Supreme Court and such lower courts as may be established by law.
3. Since the courts are given ‘judicial power’ and nothing more, courts 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.
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4. In order that courts may exercise this power, there must exist the following:
a.
b.
c.
An actual controversy with legally demandable and enforceable rights;
Involving real parties in interest;
The exercise of such power will bind the parties by virtue of the court’s
application of existing laws.
5. Judicial power cannot be exercised in vacuum. Without any laws from which rights
arise and which are violated, there can be no recourse to the courts.
6. The courts cannot be asked for advisory opinions.
7. Judicial power includes:
a. The duty of the courts to settle actual controversies involving rights which are
legally demandable and enforceable; and
b. 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.
Political Questions:
1.
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 full discretionary authority has been delegated to a co-equal
branch of the Government.
2. 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.
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.
3. Thus, Congress has the power to define, prescribe and apportion the jurisdiction of
various courts.
4. BUT, Congress cannot deprive the Supreme Court of its jurisdiction over cases
provided for in the Constitution.
5. Creation and abolition of courts:
a. The power to create courts implies the power to abolish and even reorganize courts.
b. BUT this power cannot be exercised in a manner which would undermine
the security of tenure of the judiciary.
c. If the abolition/re-organization is done in good faith and not for political or
personal reasons, then it is VALID. (same rule applies for civil servants)
SEC. 3. FISCAL AUTONOMY
1. The entire judiciary shall enjoy fiscal autonomy.
2. Annual appropriations for the judiciary cannot be reduced below the amount
appropriated for the previous year.
3. Once approved, appropriations shall be automatically and regularly released.
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SECS. 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:
1.
2.
3.
4.
Natural born citizen of the Philippines
At least 40 years old
At least 15 years of experience as a judge or in the practice of law in the Philippines
Person of proven competence, integrity, probity and independence.
Qualifications of members of lower collegiate courts (CA, CTA, Sandiganbayan)
1.
2.
3.
4.
Natural born citizen of the Philippines
Member of the Philippine bar
Possesses other qualifications prescribed by Congress
Person of proven competence, integrity, probity and independence.
Qualifications of judges of lower non-collegiate courts:
1.
2.
3.
4.
Citizen of the Philippines (may be a naturalized citizen)
Member of the Philippine Bar
Possesses other qualifications prescribed by Congress
Person of proven competence, integrity, probity and independence.
Section 8. JUDICIAL AND BAR COUNCIL
1. The Judicial and Bar Council is under the supervision of the SC.
A. Is under the supervision of the Supreme Court and is composed of:
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 re 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
1. Principal function: recommend appointees to the Judiciary
2. Exercise such other functions as the SC may assign to it.
C. Appointments to the Judiciary
1. President shall appoint from a list of at least 3 nominees for each
vacancy, as prepared by the JBC.
2. No CA confirmation is needed for appointments to the Judiciary.
3. Vacancies in SC should be filled within 90 days from the occurrence
of the vacancy.
4. Vacancies in lower courts should be filled within 90 days from
submission to the President of the JBC list.
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SEC. 10. SALARIES
1. Salaries of SC Justices and judges of lower courts shall be fixed by law.
2. Cannot be decreased during their continuance in office, but can be increased.
3. Members of the Judiciary are NOT exempt from payment of income tax.
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.
2. Disciplinary action against judges of lower courts:
a. Only the SC en banc has jurisdiction to discipline or dismiss judges of lower
courts.
b. Disciplinary action/dismissal: Majority vote of SC Justices who took part in
the deliberations and voted therein.
3. Removal of SC Justices:
a. Only by IMPEACHMENT.
b. Cannot be disbarred while they hold office.
SECS. 4-6, 13. THE SUPREME COURT
Hearing of cases:
1.
2.
En banc; or
Divisions of 3, 5, or 7.
Cases required to be heard en banc:
1. All cases involving constitutionality of a/an:
a. Treaty
b. International or executive agreement or
c. Law.
2. All cases required to be heard en banc under the Rules of Court:
a. Appeals from Sandiganbayan; and
b. From the Constitutional Commissions
3. All cases involving the constitutionality, application or operation of
a. Presidential decrees
b. Proclamations
c. Orders
d. Instructions
e. Ordinances; and
f. Other regulations.
4. Cases heard by a division where required majority of 3 was not obtained.
5. Cases where SC modifies or reverses a doctrine or principle of law laid down by the
SC en banc or by a division.
6. Administrative cases to discipline or dismiss judges of lower courts; and
7. Election contests for President and Vice-President.
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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
1. SC has ORIGINAL jurisdiction over
a. Cases affecting ambassadors, other public ministers and consuls.
Note:
This refers to foreign ambassadors, etc., stationed in the
Philippines.
b. Petitions for certiorari, prohibiton, mandamus, quo warranto, and habeas
corpus.
2. SC has APPELLATE jurisdiction over final judgments and orders in the following:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
a. All cases involving the constitutionality or validity of any
treaty
international or executive agreement
law
presidential decree
proclamation
order
instruction
ordinance, or
regulation;
b. All cases involving the legality of any
i.
tax
ii.
impost
iii.
assessment or
iv.
toll or
v.
any penalty imposed in relation thereto;
c. All cases in which the jurisdiction of any lower court is in issue
d. Criminal cases where the penalty imposed is reclusion perpetua or higher; and
e. 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.
4. Order a change of venue or place of trial to avoid a miscarriage of justice.
5. Promulgate rules concerning:
a. The protection and enforcement of constitutional rights;
b. Pleading, practice and procedure in all courts;
c. Admission to the practice of law;
d. The Integrated Bar; and
e. Legal assistance to the underprivileged.
Limitations on Rule Making Power
a. It should provide a simplified and inexpensive procedure for the speedy
disposition of cases.
b. It should be uniform for all courts of the same grade.
c. It should not diminish, increase, or modify substantive rights.
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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
1.
Judicial Review is the power of the SC to declare a law, treaty, ordinance etc.
unconstitutional.
2. Lower courts may also exercise the power of judicial review, subject to the appellate
jurisdiction of the SC.
3. Only SC decisions are precedent, and thus, only SC decisions are binding on all.
Requisites
Code: [A R S Co R]
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.
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:
1. 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.
2. Thus, vested rights may have been acquired under such law before it was declared
unconstitutional.
3. These rights 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 it is based.
2. Refusal to give due course to petitions for review and motions for reconsideration
must state the legal basis for such refusal.
3. 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.
4. These rules only apply to courts. They do not apply to quasi-judicial or administrative
bodies nor to military tribunals.
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ARTICLE IX – THE CONSTITUTIONAL COMMISSIONS
Section 1. Constitutional Commissions
Independent Constitutional Commissions:
1) Civil Service Commission (CSC)
2) Commission on Elections (COMELEC)
3) Commission on Audit (COA)
Why Independent?
They perform vital functions of government. Their integrity is protected by the fact that
they:
1) Are constitutionally created (Sec. 1)
2) Have independent powers of appointment (Sec. 4)
3) Each Commission may promulgate its own procedural rules (Sec. 6)
4) Fiscal autonomy (Sec. 5)
5) Salaries may not be diminished during their office (Sec. 3)
6) Commissioners have a fixed term
7) Commissioners are removable by impeachment only.
Section 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, direct or indirect, in any contract, franchise, privilege
granted by the government, any of its subdivisions, agencies,
instrumentalities, including GOCC's and their subsidiaries.
Note: The Ombudsman and his deputies are subject to the same qualifications.
Section 3. SALARIES
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.
Section 6. RULES OF PROCEDURE
Procedures:
1) Rules: The Commissions may promulgate its own rules EN BANC.
2) Limitation: It shall not:
a) Diminish,
b) Increase, or
c) Modify substantive rights.
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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
Section 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.
 COMELEC may sit en banc or in 2 divisions.
 Election cases, including pre-proclamation controversies are decided in
division, with motions for reconsideration filed to the COMELEC en banc.
 The SC has held that a majority decision 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).
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.
Enforcement:
 It has been held that the CSC can issue a writ of execution to enforce
judgments which are final.
THE CIVIL SERVICE COMMISSION
Section 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:
1) Chairman -7 years; Commissioner1 - 5 yrs; Commissioner2 - 3 yrs
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.
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Section 2. Scope:
The Civil Service embraces all:
A.
B.
C.
D.
E.
branches,
subdivisions,
instrumentalities,
agencies of the government,
including GOCCs with original charters.
1."With Original Charter" means that the GOCC was created by special
law/by Congress
2. If incorporated under the Corporation Code, it does not fall within the
Civil Service, and is not subject to the CSC jurisdiction.
3. Even if once government-controlled, then becomes privatized, ceases
to fall under CSC.
4. 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 gov't
b) Primarily confidential -
more than ordinary confidence; close
intimacy insures freedom of intercourse
without betrayals of personal trust...
requires technical skill to a superior degree.
c) Highly technical
-
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.
3). The CSC CANNOT add qualifications other 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.
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Tenure (Classification of Positions)
Career Service
1. Entrance based on merit and fitness to
be determined as far as practicable by
competitive examinations or based on
highly technical qualifications.
2. Entitled to security of tenure
Non-Career Service
1. Entrance on bases OTHER than usual
tests of merit and fitness.
2. Tenure limited to:
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 the expiration
of the term of office
c). Non-career service officers and employees do not enjoy security of tenure.
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:
(a) In good faith; (good faith is presumed)
(b) Not for political or personal reasons; and
(c) 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.
3). BUT: They can only be removed by the one who appointed them.
4). 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.
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4) Prohibition does not apply to department secretaries
Right to organize
The right to organize does NOT include the right to strike
Sections 6-7. DISQUALIFICATIONS
Disqualifications
1) Losing candidates in any election
a). Cannot be appointed to any office in the government or GOCC's or their
subsidiaries
b). Period of disqualification: One (1) year after such election.
2) Elective officials
a). Not eligible for appointment or designation ANY CAPACITY to ANY PUBLIC
OFFICE or position during their tenure.
b). EXCEPTION: May hold ex officio positions.
 Examples:

The Vice President may be appointed Cabinet member

Congressman may sit in the Judicial and Bar Council
c). To be eligible to hold any other office, the elected official must first resign his
office
d). 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.
c). 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.
Section 8. COMPENSATION
1) Prohibitions: applies to elected or appointed officers and employees
Cannot receive:
A. Additional B. Double -
an extra reward given for the same office i.e. bonus
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
Section 1. COMPOSITION/QUALIFICATIONS/TERM
Composition: (7)
1)Chairman and
2)Commissioners (6)
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:
1) 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.
Section 2. POWERS AND FUNCTIONS
Powers:
1) Enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall.
(a) Ex: COMELEC can enjoin construction of public works within 45 days of an
election.
3) Exercise:
A. Exclusive original jurisdiction over all contests relating to the elections, returns,
and qualifications of all elective
1. Regional,
2. Provincial, and
3. City officials
B. 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.
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.
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D. Contempt powers
1. 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.
2. If it is a pre-proclamation controversy, the COMELEC exercises quasijudicial/administrative powers.
3. 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.
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
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.
d). BUT: Political parties with religious affiliation or which derive their principles
from religious beliefs are registerable.
e). Financial contributions from foreign governments and their agencies to
political parties, organizations, coalitions, or candidates related to elections
constitute interference in national affairs. 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 valid.
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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
or, 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.
Section 3. RULES OF PROCEDURE/DECISION-MAKING
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. Provided that,
2) Motions for reconsideration of decisions should be decided by COMELEC en banc.
3) ”Decisions” mean resolutions on substantive issues.
4) If a division dismisses a case for failure of counsel to appear, the Motion for
Reconsideration here may be heard by the division.
5) EXCEPTION: COMELEC en banc may directly assume jurisdiction over a petition to
correct manifest errors in the tallying of results by Board of Canvassers.
Section 4. SUPERVISION/REGULATION OF FANCHISES / PERMITS / GRANTS /
SPECIAL PRIVILEGES / CONCESSIONS
Regulation of franchises
A. What can COMELEC supervise or regulate
1). The enjoyment or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or
information.
2). Grants, special privileges or concessions granted by the Government or any
subdivision, agency or instrumentality thereof, including any GOCC or its
subsidiary
B. When can COMELEC exercise this power
1). During the election period
a). Under Article XI, Section 9, the election period commences 90 days
before
the day of the election and ends 30 days thereafter.
b). In special cases, COMELEC can fix a period.
2). Applies not just to elections but also to plebiscites and referenda.
3). Plebiscite: Submission of constitutional amendments or important legislative
measures to the people ratification
4). Referendum: power of the electorate to approve or reject legislation through
an election called for that purpose.
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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.
Section 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.
Section 6
Definition of Political Party
 organized group of persons pursuing the same political ideals in a
government and includes its branches, and divisions
Importance of registration of a political party
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.
Section 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.
Prohibition on block-voting
1) General rule: Block voting NOT allowed
2) EXCEPTION: those registered under the party-list system
Section 8. PARTY LIST SYSTEM
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.
Poll Watchers
 Political parties, etc. are entitled to appoint poll watchers in accordance with
law.
Section 10. Bona fide candidates for any public office shall be free from any form
of harassment and discrimination.
 This section does not give candidates immunity from suit.
 Discrimination includes unequal treatment in the availment of media facilities.
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Section 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.
THE COMMISSION ON AUDIT
Section 1. COMPOSITION/QUALIFICATIONS
Composition:
1) Chairman, and
2) Commissioners (2).
Qualifications:
1) Natural-born citizens of the Philippines
2) At least 36 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:
1) Chairman -7 yrs; Commissioner1 -5yrs; Commissioner - 2 -3 yrs.
2) LIMITATION: - Single terms only; no re-appointment allowed
3) Appointments to any vacancy shall only be for the unexpired portion of predecessor’s
term
Section 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:
A. The Government;
B. Any of its subdivisions, agencies or instrumentalities;
C. Including GOCC’s with original charters.
2) Conduct post-audit with respect to the following:
A.
B.
C.
D.
Constitutional bodies, commissions, and offices granted fiscal autonomy;
Autonomous state colleges and universities;
GOCC’s and their subsidiaries incorporated under the Corporation Code.
None-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.
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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.
B.
Including those for the prevention or disallowance of irregular, unnecessary,
excessive, extravagant, or unconscionable expenditures or uses of
government funds and properties.
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.
B.
C.
D.
Examine and audit all forms of government revenues;
Examine and audit all forms of gov’t expenditures
Settle gov’t accounts
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.
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.
Section 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.
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ARTICLE X: LOCAL GOVERNMENT
Section 1. TERRITORIAL/POLITICAL SUBDIVISIONS OF THE REPUBLIC OF THE
PHILIPPINES ARE THE:
Composition:
1)
2)
3)
4)
Provinces
Cities;
Municipalities; and
Barangays
There shall be Autonomous regions in:
1) Muslim Mindanao, and
2) Cordileras [At present, it is only the Cordilera ADMINISTRATIVE region]
Note: 1) A third autonomous regions would require a constiutional amendment.
2) These political subdivisions, created by the Constitution cannot be replaced by
AMENDMENT, and not by law.
3) While Congress can abolish or eradicate individual units, it cannot abolish an
entire class of LGU’s
Section 2. Local Autonomy
1) All political subdivisions shall enjoy local autonomy
2) This does not mean that the LGU’s 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.
Section 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.
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7) Cities and municipalities exercise direct supervision over component barangays.
Section 5. EACH LOCAL GOVERNMENT SHALL HAVE THE POWER TO CREATE
OWN SOURCES 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.
Section 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) The share of each LGU should be 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) The share of each LGU 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 projects.
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:
1. Department of Finance Secretary
2. DILG Secretary
3. DBM Secretary
6) IRA considered for purposes of conversion from one political subdivision to the next.
(Alvarez v. Guingona)
Section 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 share the same with the inhabitants by way of direct benefits.
Under the LGC
1) LGUs have a share of 40% of the gross collection derived by the national
government from the preceding fiscal year from
A. Mining taxes
B. Royalties
C. Forestry and fishery charges
D. Other taxes, fees and charges
E. 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
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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
Election of Sector Representatives
SEC. 10. Creation, abolition and division of LGU’s
1) Requisites
A. Compliance with the requirements of the Local Government Code; and
B. Approved by a majority of the votes cast in a plebiscite held in the political
units DIRECTLY affected.
2) Thus, a province is supposed 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. 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
1) The component cities and municipalities retain their basic autonomy
2) They shall be entitled to their own local executive and legislative assemblies.
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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 thecity charter from voting in provincial elections)
Independence from the Province
1) Highly urbanized cities and independent component cities are independent of the
province.
2) Component cities whose charter contain no such prohibition are still under the
control of the province and its voters may still vote for elective provincial officials.
Section 13. Coordination among LGUS
Consolidation and Coordination of Efforts, Services and Resources
1) It is optional on the part of LGUs as shown by the use of the word “may”
2) It can be done for purposes commonly beneficial to them in accordance with the law.
Under LGC (Section 33)
1) Consolidation and coordination may be done through appropriate ordinances.
2) A public hearing should be conducted and the approval of the sanggunian obtained.
3) An LGU can:
A. Contribute funds, real estate, equipment and other kinds of property
B. Appoint/assign personnel under such terms and conditions as may be agreed
upon by the participating LGUs through Memoranda of Agreement.
Section 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
Section 15. AUTONOMOUS REGIONS
Where:
1) Muslim Mindanao
2) Cordillera region
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Factors:
1)
2)
3)
4)
Historical heritage
Cultural heritage
Economic and social structures,
Other relevant characteristics within:
A. The framework of the consititution
B. National sovereignty
C. Territorial integrity.
Creation:
1) Provided by law.
2) 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.
3) Only those Provinces, Cities, and Geographical Areas voting favorably in such
plebiscite shall form part of the autonomous region.
4) If only 1 province approved the law, NO AUTONOMOUS REGION created, since the
constitution requires more than one province to constitute one (like what happened in
the Cordillera plebiscite)
5) The question of which LGU’s shall constitute an autonomous region is one which is
exclusively for Congress to decide.
Section 16. GENERAL SUPERVISION OVER AUTONOMOUS REGIONS
By Whom:
The President
Purpose:
To ensure that the laws are faithfully executed.
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
Section 20. LEGISLATIVE POWERS
The Organic Act of Autonomous Region shall provide for legislative powers over:
1)
2)
3)
4)
5)
6)
7)
8)
9)
Administrative organization;
Creation of sources of revenues;
Ancestral domain and natural resources
Personal, family and property relations
Regional, urban, and rural planning development;
Economic, social, and tourism development;
Educational policies;
Preservation and development of the cultural heritage; and
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 and national laws
2) To be exercised within its territorial jurisdiction
Section 21. PRESERVATION OF PEACE AND ORDER/DEFENSE AND SECURITY
Peace and Order
It shall be the responsibility of the local police agencies.
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Defense and Security
It shall be the responsibility of the national government.
ARTICLE XI: ACCOUNTABILITY OF PUBLIC OFFICERS
Section 1: PUBLIC OFFICE AS A PUBLIC TRUST
Public officers and employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty and efficiency, act with
patriotism and justice and lead modest lives.
Section 2: IMPEACHMENT/REMOVAL FROM OFFICE
Impeachment: (as means of removal from office)
1. Who may be impeached:
President
VP
SC Justices
Constitutional Commission members
Ombudsman
2. Grounds
Culpable violation of the Constitution
treason
bribery
graft and corruption
other high crimes or
betrayal of public trust
Note: It is an exclusive list. Congress cannot, by law, add to the list of impeachable
offenses.
3. These officers cannot be charged in court with offenses that have removal from
office as penalty.
4. The President cannot be charged with murder.
5. A SC Justice cannot be disbarred because this would disqualify him from his
position.
6. BUT AFTER an official has been impeached, he can be charged with the appropriate
offense.
7. 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
1. They may be removed from office as provided by law
2. 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.
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Procedure:
1. Filling of verified complaint
a. Can be filed by:
1. Any member of the House of Representatives or
2. Any citizen upon a resolution of endorsement by any Member of
the House or
3. By at least 1/3 of all the Members of the House of Representatives
2.)
3.)
4.)
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
a. There should be a hearing
b. There should be a majority vote of the members
c. The report should be submitted within 60 days from referral, after hearing,
and by a majority vote of ALL its members.
5.)
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:
6.)
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.
7.)
Trial in the Senate
A. Senate has the sole power to try and decide all cases of impeachment
B. For this purpose, the Senators shall be under oath or affirmation
a. When the President of the Philippines is on trial, the CJ of the Supreme
Court presides. However, he/she will not vote.
8.)
Judgment of Conviction
This requires the concurrence of 2/3 of all the Members of the Senate
9.)
Effect of the Impeachment
a. Removal from office of the official concerned
b. Disqualification to hold any office under the Republic of the Philippines
c. Officer still liable to prosecution, trial, and punishment if the impeachable
offense committed also constitutes a felony or crime.
Section 4: SANDIGANBAYAN
Sandiganbayan = the anti-graft court
Sections 5-6, 8-14: OFFICE OF THE OMBUDSMAN
Composition:
1.)
2.)
3.)
4.)
Ombudsman/Tanodbayan
Overall deputy
At least one Deputy each for Luzon, Visayas and Mindanao
Deputy for military establishment may be appointed
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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. Engage 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 franchise or privilege granted by the Government, any of its subdivisions,
agencies or instrumentalities, including GOCCs or their subsidiaries
Appointment
1. Of Ombudsman and deputies
a. 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
b. Appointments do NOT require confirmation
c. All vacancies shall be filled within 3 months after they occur.
2. Of other officials and employees of the Office of the Ombudsman
d. By the Ombudsman
e. 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. The SC held that the power to investigate and prosecute cases involving
public officers and employees has been transferred to the Ombudsman.
b. The Ombudsman may always delegate his power to investigate.
c. The power to investigate includes the power to impose preventive
suspension.
d. This preventive suspension is not a penalty.
e. “INVESTIGATE” does not mean preliminary investigation.
f. The complaint need not be drawn up in the usual form.
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g. The “ILLEGAL” act or omission need not be in connection with the duties
of the public officer or employee concerned.
h. 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.
4.) Direct the officer concerned, in any appropriate case, and subject to such limitations
as may be provided by law to furnish it with copies of documents relating to contracts or
transactions entered into by his office involving the disbursement or use of public funds
of properties, and report any irregularity to COA for appropriate action.
5.) Request any government agency for assistance and information necessary in the
discharge of its responsibilities, and to examine, if necessary, pertinent records and
documents.
6.) Public matters covered by its investigation when circumstances so warrant and with
due process
7.) 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
8.) 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.
Fiscal Autonomy:
The Office of the Ombudsman enjoys fiscal autonomy.
appropriations should be automatically and regularly released.
Its approved annual
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Section 7: OFFICE OF THE SPECIAL PROCECUTOR
1. Under the 1987 Constitution, the existing Tanodbayan became the Office of the
Special Prosecutor
2. Powers
a. It will continue to function and exercise its powers as now or hereafter
may be provided by law
b. Exception: Powers conferred on the Office of the Ombudsman
3. The Office of the Special Prosecutor is subordinate to and acts under the orders of the
Ombudsman
Note: According to Jack, the SC was wrong because the ConCom intended that the SP
was to prosecute anti-graft cases.
Section 15: RECOVERY OF ILL-GOTTEN WEALTH
Prescription, Laches, Estoppel
1.) 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.
2.) Their right to prosecute criminally these officials and employees may prescribe.
Section 16: PROHIBITION ON CERTAIN FINANCIAL TRANSACTIONS
Coverage:
This prohibition applies to:
1.)
2.)
3.)
4.)
5.)
6.)
7.)
8.)
President
Vice-President
Members of the Cabinet
Members of Congress
Members of Supreme Court
Members of Constitutional Commissions
Ombudsman
Any firm or entity in which they have controlling interest
When prohibition applies:
Prohibition applies during their TENURE.
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:
1. Government owned or controlled banks; or
2. 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.
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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:
These declarations shall be disclosed to the public in a manner provided by law in the
case of:
1.)
2.)
3.)
4.)
5.)
6.)
7.)
8.)
President
Vice-President
Members of the Cabinet
Members of Congress
Justices of the Supreme Court
Members of Constitutional Commissions
Other constitutional offices
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:
a. Change his citizenship; or
b. 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.
a. 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
This renunciation must be some other than, and prior to, the filling of the certificate of
candidacy.
ARTICLE XII – NATIONAL ECONOMY AND PATRIMONY
SEC. 1. GOALS OF THE NATIONAL ECONOMY
Three-fold goal:
1. More equitable distribution of opportunities, income and wealth;
2. Sustained increase in the amount of goods and services produced by the nation for
the benefit of the people; and
3. 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.
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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
1. Imperium
Government authority possessed by the State which is appropriately embraced in
sovereignty.
2. 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:
The following are owned by the State:
1. Lands of the public domain:
Waters
Minerals, coals, petroleum, and other mineral oils;
All sources of potential energy;
Fisheries;
Forests or timber;
Wildlife;
Flora and fauna; and
Other natural resources.
Alienation of Natural Resources
1. General Rule: All natural resources CANNOT be alienated
2. Exception: Agricultural lands
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 CO-PRODUCTION, JOINT VENTURE OR
PRODUCTION-SHARING arrangements with
1. Filipino citizen or
2. 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.
4. In case of water rights/water supply/fisheries/industrial uses other than the
development of water power
The beneficial use may be the measure and limit of the grant.
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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 given to
subsistence fishermen and fishworkers in the rivers, 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-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.
2. They should be based on the real contributions to economic growth and general
welfare of the country.
3. In the agreements, the State should promote the development and use of local
scientific and technical resources.
4. The President should notify Congress of every contract under this provision within 30
days from its execution.
5. 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.
Section 3. LANDS OF THE PUBLIC DOMAIN ARE CLASSIFIED INTO
1.
2.
3.
4.
Agricultural
Forest/timber
Mineral lands &
National Parks
Note:
1. Classification of public lands is an exclusive prerogative of the Executive Department
through the Office of the President, upon recommendation by the DENR.
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
B. Period: Cannot exceed 25 years, renewable for not more than 25 years
C. Area: Lease cannot exceed 1,000 hectares
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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
Taking into account the requirements of conservation, ecology and development, and
subject to the requirements of agrarian reform, Congress shall determine by law the size
of the lands of the public domain which may be acquired, developed, held or lease and
the conditions therefore.
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. Here, in possession since time immemorial, presumption is 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 that land belongs to the State.
Section 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
a. Endangered forest and
b. Watershed areas
for such period as it may determine.
Section 5. ANCESTRAL LANDS
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
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2. Exceptions
A. In intestate succession, where an alien heir of a Filipino is the transferee of
private land.
B. A natural born citizen of the Philippines who has lost his Philippine citizenship
may be a transferee of PRIVATE ALND, subject to limitation provided by law.
Hence, land can be used only for residential purposes. In this case, he only
acquires derivative title.
C. 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 mortgages 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 non-Filipinos cannot acquire and own
land, even for religious purposes.
Remedies to recover private lands from disqualified aliens:
1. Escheat proceedings
2. Action for reversion under the Public Land Act
3. An action by the former Filipino owner to recover the land
A. The former pari delicto principle has been abandoned
B. Alien still has the title (didn’t pass it on to one who is qualified)
Section 10. NATIONAL ECONOMY AND PATRIMONY/INVESTMENTS
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 covering the national economy and
patrimony, the State shall give preference to QUALIFIED Filipinos.
Section 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).
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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.
Section 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.
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 conditions
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.
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Filipino citizenship or equity requirements:
ACTIVITY REQUIREMENTS
CITIZENSHIP AND/OR EQUITY
Exploitation of natural resources
1. Filipino citizens; or
2. Corporations incorporated in RP, with
60% Filipino ownership
Operation of Public Utilities
1. Filipino citizens; or
2. Corporations incorporated in RP, with
60% Filipino ownership
Acquisition of alienable lands of
the public domain
1. Filipino citizens;
2. Corporations incorporated in RP, with
60% Filipino ownership;
3. Former natural-born citizens of RP, as
transferees,
with
certain
legal
restrictions; and
4. Alien heirs as transferees in case of
intestate succession.
Practice of ALL Professions
Filipino citizens only (natural persons)
*Congress may, by law, otherwise prescribe
Mass Media
1. Filipino citizens; or
2. Corporations incorporated in RP, and
100% Filipino owned
Advertising
1. Filipino citizens; or
2. Corporations incorporated in RP, and
70% Filipino owned.
Educational institution
1. Filipino citizens; or
2. Corporations incorporated in RP, with
60% Filipino ownership
EXCEPT: Schools established by religious
groups and mission boards.
*Congress may, by law, increase Filipino
equity requirements for ALL educational
institutions.
Other economic activities
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
order to achieve a more equitable distribution of wealth and political power.
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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)
2)
3)
4)
collective bargaining agreements,
grievance machineries,
voluntary modes of settling disputes, and
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.
Reach of agrarian reform
 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)
2)
3)
4)
5)
Natural-born citizens of the Philippines;
Majority of the Commission must be members of the Philippine Bar;
Term of office, other qualifications and disabilities shall be provided by law;
The appointment of the CHR members is NOT subject to CA confirmation; and
The CHR is not of the same level as the COMELEC, CSC, or COA.
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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 in order to
enhance respect for the primacy of human rights.
7) Recommend to Congress effective measures to promote human rights and to provide
compensation to victims of human rights violations or their families.
8) Monitor compliance by the government with international treaty obligations on human
rights.
9) 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.
10) Request assistance from any department, bureau, office, or agency in the
performance of its functions.
11) Appoint its officers and employers in accordance with law.
12) 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
b) The misconduct affects the student’s status, or the good name or reputation of the
school.
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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
A. Ownership:
1). Filipino citizens, or
2). Corporations incorporated in RP and 60% Filipino-owned.
EXCEPT: Schools established by religious groups and mission boards.
3). Congress may increase Filipino equity requirements in ALL educational
institutions.
B. Control and Administration:
1). Must be vested in Filipino citizens
2). Refers to line positions, such as President, Dean, Principal, and Trustees
3). Faculty members may be foreigners.
C. Student Population:
1). GENERAL RULE: Cannot establish school exclusively for aliens. Aliens can
only comprise up to 1/3 of total enrollment.
2). 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
A. Non-stock, non-profit educational institutions:
1) All revenues and assets actually, directly and exclusively used for educational
purposes are exempt from taxes and duties.
2) This is self-executory.
B. Proprietary educational institutions, including cooperatives:
1) Entitled to exemptions as may be provided by law, including restrictions on
dividends and re-investment
2) Requires an enabling statute
3) Grants, endowments, donations and contributions actually, directly and
exclusively used for educational purposes are exempt from taxes, subject to
conditions prescribed by law.
III. Academic Freedom
A. Educational Institutions
Schools have the freedom to determine:
1) Who may teach,
2) What may be taught,
3) How it shall be taught, and
4) Who may be admitted to study.
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B. Faculty members
1) Full freedom in research and in the publication of the results, subject to the
adequate performance of their other academic duties.
2) 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.
3) When faculty members speak or write in their capacity as citizens, then they
are free from institutional censorship or discipline.
C. Students
They have the right to enjoy in school the guarantees of the Bill of Rights.
D. Limitations
1) Dominant police power of the State
2) Social interest of the community
E. Budgetary Priority:
1). Education must be assigned the highest budgetary priority.
2). 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:
1) Express written option by parents and 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
1) National language: Filipino
2) Official Languages: Filipino, and unless otherwise provided by law, English.
3) Regional languages are auxiliary to the official languages.
4 (Spanish and Arabic are promoted only on an optional and voluntary basis.
ARTICLE XVI - GENERAL PROVISIONS
Sections 1-2. Symbols of Nationality
1) Flag
 Red, white, and blue.
 With a sun and 3 stars
 The design may be changed by constitutional amendment.
2) Congress may, by law, adopt a new:
(a) Name for the country,
(b) National anthem, or
(c) National seal.
Note: Law will take effect upon ratification by the people in a NATIONAL
REFERENDUM.
90
POLITICAL LAW (CONSTITUTIONAL LAW)
REVIEWER & MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2001
Louie, Carrie, Evelyn, Thel, Gem, Ronald
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, they are 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.
Consent to be sued
A. 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.
B. Implied consent:
1). The State enters into a private contract.
a). The contract must be entered into by the proper officer and within the
scope of his authority.
b). 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.
3). Suit against an incorporated government agency.
a) This is because they generally conduct propriety business operations
and have charters which grant them a separate juridical personality.
4). The State files suit against a private party.
UNLESS: The suit is entered into only to resist a claim.
Garnishment of government funds:
1) GENERAL RULE: NO. Whether the money is deposited by way of general or special
deposit, they remain government funds and are not subject to garnishment.
2) EXCEPTION: A law or ordinance has been enacted appropriating a specific amount
to pay a valid government obligation, then the money can be garnished.
91
POLITICAL LAW (CONSTITUTIONAL LAW)
REVIEWER & MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2001
Louie, Carrie, Evelyn, Thel, Gem, Ronald
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.
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:
1) Tour of duty: Not exceed to three years
2) 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:
1) 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.
2) 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 v. Legislative power
1) Constituent power is the power to formulate a Constitution or to propose
amendments to or revisions of the Constitution and to ratify such proposal.
Legislative power is the power to pass, repeal or amend or ordinary laws or statutes
(as opposed to organic law).
2) Constituent power is exercised by Congress (by special constitutional conferment),
by a Constitutional Convention or Commission, by the people through initiative and
referendum, and ultimately by sovereign electorate, whereas legislative power is an
ordinary power of Congress and of the people, also through initiative and
referendum.
3) The exercise of constituent power does not need the approval of the Chief Executive,
whereas 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.
92
POLITICAL LAW (CONSTITUTIONAL LAW)
REVIEWER & MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2001
Louie, Carrie, Evelyn, Thel, Gem, Ronald
Proposal of amendments:
Amendments may be proposed by:
A. Congress, acting as a constituent assembly, by a 3/4 vote of all its members.
 The power of Congress to propose amendments is NOT part of its ordinary
legislative power.
 The only reason Congress can exercise such power is that the Constitution has
granted it such power.
B. Constitutional Convention:
1) How a Constitutional Convention may be called
a). Congress may call a ConCon by a 2/3 vote of all its members; or
b). By a majority vote of all its members, Congress may submit to the
electorate the question of whether to call a ConCon or not.
2) 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.
3) BUT: The manner of calling a ConCon is subject to judicial review, because
the Constitution has provided for vote requirements.
4) 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 assemble.
5) 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 to pursuant to an appropriation made by law.
C. People’s Initiative
1) Petition to propose such amendments must be signed be at least 12% of ALL
registered voters.
2) Every legislative district represented by at least 3% of the registered voters
therein.
3) Limitation:
It cannot be exercised oftener than once every 5 years.
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 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
1) By Congress, upon a vote of 3/4 of its members
2) By a constitutional convention
93
POLITICAL LAW (CONSTITUTIONAL LAW)
REVIEWER & MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2001
Louie, Carrie, Evelyn, Thel, Gem, Ronald
Ratification
1) Amendments and revisions proposed by Congress and/or by a ConCon:
a) Valid when ratified by a MAJORITY of votes cast in a plebiscite.
b) Plebiscite is held not earlier than 60 days nor later than 90 days from the
approval of such amendments or revisions.
2) Amendments proposed by the people via initiative:
a) Valid when ratified by a MAJORITY of votes cast in a plebiscite.
b) Plebiscite is held not earlier than 60 days nor later than 90 days after the
certification by COMELEC of the petition's sufficiency.
3) Requisites of a valid ratification:
a) Held in a plebiscite conducted under the election law;
b) Supervised by the COMELEC; and
c) Where only franchised voters (registered) voters take part.
4) Issues regarding ratification:
a) 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.
b) The
determination
of
the
conditions
under
which
proposed
amendments/revisions are submitted to the people falls within the legislative
sphere. That Congress could have done better does not make the steps
taken unconstitutional.
c) 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.
d) 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
people cast their votes ratifying the Constitution.
Military bases agreements
1) Renewals of military bases agreements must be through a strict treaty.
2) Ratification of the agreement in a plebiscite is necessary only when Congress so
requires.
3) Section 25 of Article XVIII allows possible local deployment of only AMERICAN
forces.