Political Law Bar Review Notes - Ateneo 2021

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By downloading, acquiring possession, and/or using this material, whether, by electronic or other means, the recipients agree to protect the confidentiality of the material, refraining from any action which may lead to possession, duplication, or use by third parties . Ad maiorem Dei gloriam. GRACE ANN Q. BAJO TIMOTHY JACOB J. PALAFOX 20 21 C H AI R PER S O N S KATHLEEN KAE Z. ENDOZO ARISTEO RAPHAEL T. MARBELLA III MEG V. BUENSALIDO MARIE KAYLA C. GALIT 20 21 AD MI NI ST RA TI V E CO M MI T TE E HE A D S 20 21 A C AD E MI C C O M MI T TEE HE AD S CARLOS ROSAURO N. MANALO MA. CRISTINA ASUNCION 20 21 A C AD E MI C C O M MI T TEE U N D ER ST U D I ES DEAN SEDFREY M. CANDELARIA ATTY. BLESSILDA B. ABAD-GAMO ATTY. DIANNA LOUISE R. WILWAYCODELA GUERRA ATTY. MARIA LUISA ISABEL l. ROSALES ATTY. MARK LEINAD ENOJO ATTY. EUGENE T. KAW 20 21 P OLI TI C AL L A W F A CU L TY A D V I S E RS CHEY ABUEG BAI SHARIA L. TAMBUANG LUMINA ALINEA O. AQUINO GRACELLE TREASURE A. SAMSON THEA RUTH FRANCES GONZALES HAROLD BRYANT V. PASION MARY STEPHANIE C. CRUZ KIM ABBYGALE C.RIBO MARK DAVID Q. VERGARA TIMOTHY K. ILOG DATU AMIR E. WAGAS BRIAN EARL LESHEN JOHN JOSHUA R. CARILLO 20 21 P OLI TI C AL L A W SU BJE CT HE AD S JEFFREY ABRAZALDO CARLO ALIVIA CAMILLE BULATAO JOSE LORENZO ANGELES III LORIEDEL FAJARDO NADINE ONG 20 21 P OLI TI C AL L A W U ND E RS TU D I E S SHAULA FLORESTA PATRICIA JOY IGNACIO RAYMIELLE MAGCALAS JETHRO VERA CRUZ ROSEANNE REALUBIN AIMIEL MARIAN F. REYES MIKKO RINGIA ISABELLA SABIO NORBERTO SARIGUMBA III JONATHAN TORRES VERA DE VERA 20 21 P OLI TI C AL L A W V OLU NTE ER S JONATHAN DF. TORRES GAEL PAULINE R. MORALES RIA ALEXANDRA D. CASTILLO NICOLE ANN C. PAGLICAWAN JULIANNE BEATRICE N. ROSARIO 20 21 C R E ATI V E S JOSEPH BILL P. QUINTOS SAMANTHA J. MAGAOAY FREEDOM JUSTIN B. HERNANDEZ STEFI MONIKA S. SUERO KATHLEEN C. ROMINA SERMAE ANGELA G. PASCUAL 20 21 TE C H NI CA L 2 02 1 FI N AN CE AINA RAE L. CORTEZ LUMINA ALINEA O. AQUINO ANNA MARIE GRACE M. ANTONIO MARY STEPHANIE CABRERA CRUZ CLARISSE MAE D. ZAPLAN CHRISTIAN GIO R. SENARLO MAEDEN M. BORCELANGO IMI LIZA B. ESPINA FRANCIS SABIN BELTRAN ANTHONY JEFFERSON Y. JULIO 20 21 S PE CI AL P R OJ E C TS 20 21 LO GI STI C S DONN MARIE ISABELLE BALINA ALISHA BEATRICE A. VERGARA PRISHA LEIGH D. CRUZ ALITHEA C. SORIANO AARON C. CHENG MELISSA GABRIELLE P. REMULLA GRACIELLA RACHEL D. ROBLES DANELLA DIANE D. DIMAPILIS REYNALDO M. REVECHE CZAREANA JOUSCH T. PARRA 20 21 M AR K E TI N G 20 21 PU BLI C R E L A TI ON S JUSTIN LUIGI V. HERNANDEZ 20 2 0 C HAI R P ER SO N YVES PETER CARLO D. MEDINA KATRINA ISABELLE G. PIMENTEL GENICA GALE F. LAHOZ THERESE ANNE C. ESPINOSA HAZEL VIANCA I. ORTEGA VINCE ZYRENCE T. BARLONGAY 20 2 0 AD MI NI S TR ATI V E CO M MI T TE E HE A D S HE AD S 20 2 0 HO TEL C O M MI TTEE HEA D S EUNICE A. MALAYO FRANCES CHRISTINE P. SAYSON MEG V. BUENSALIDO MARIE KAYLA C. GALIT 20 2 0 A CAD E MI C CO M MI T TEE HE AD S 2 02 0 A CA D E M I C CO M MIT T E E U ND E R S T U DI E S DEAN SEDFREY M. CANDELARIA DEAN MAITA CHAN-GONZAGA ATTY. DIANNA LOUISE R. WILWAYCO-DELA GUERRA ATTY. FRANCIS TOM TEMPROSA 20 2 0 POLI TI CA L L A W F A CU L TY A D V I S E RS ANDREA FAUSTINE R. DE VERA MARK DAVID Q. VERGARA ALIJA ROWIE SCHAILEY M. PANDAPATAN GERARD ANDRE P. BARRON JUSTIN MARK C. CHAN ISABELLE NICOLE VELANDRES 20 2 0 POLI TI CA L L A W SU BJE CT HE AD S KIM ABBYGALE C.RIBO LUMINA ALINEA O. AQUINO TIMOTHY K. ILOG DATU AMIR E. WAGAS BRIAN EARL LESHEN JOHN JOSHUA R. CARILLO 20 2 0 POLI TI CA L L A W U ND E RS TU D I E S ANNA BEATRICE L. SALAZAR JOSIAH M. LIM FONSO RAMOS VERA DE VERA STEPHANIE A. SERAPIO JOANNAH MARIE V. SALAMAT RENEE DESIREE R. NAVARRA MIA GATO NORLENE ANDAYA MICHELLE TIU JONATHAN DF. TORRES AINA RAE L. CORTEZ MA. KATRINA RAFALLE M. ORTIZ RANDO TORREGOSA RAYM MAGCALAS MA. VERONICA S. PINE GAEL PAULINE R. MORALES RACHEL MEGAN AGLAUA 20 2 0 POLI TI CA L L A W V OLU NTE ER S ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 TABLE OF CONTENTS I. THE 1987 CONSTITUTION ................................................................................................................ 2 A. NATURE AND CONCEPT OF A CONSTITUTION ...................................................................... 2 B. PARTS OF A CONSTITUTION..................................................................................................... 3 C. AMENDMENTS AND REVISIONS (PHIL CONST., ART. XVII.) ................................................. 4 D. METHODS OF INTERPRETING THE CONSTITUTION .............................................................. 8 II. BASIC CONCEPTS ......................................................................................................................... 13 A. DECLARATION OF PRINCIPLES AND STATE POLICIES ...................................................... 13 B. SOVEREIGNTY ........................................................................................................................... 15 C. STATE IMMUNITY ...................................................................................................................... 15 D. SEPARATION OF POWERS ...................................................................................................... 20 E. CHECKS AND BALANCES ........................................................................................................ 20 F. DELEGATION OF POWERS ...................................................................................................... 20 G. FUNDAMENTAL POWERS OF THE STATE ............................................................................ 22 1. POLICE POWER ...................................................................................................................... 24 2. EMINENT DOMAIN .................................................................................................................. 24 3.TAXATION................................................................................................................................. 25 III. NATIONAL TERRITORY................................................................................................................ 27 IV. CITIZENSHIP ................................................................................................................................. 31 A. KINDS OF CITIZENSHIP ............................................................................................................ 31 B. WHO ARE CITIZENS .................................................................................................................. 34 C. WHO CAN BE CITIZENS ........................................................................................................... 34 D. MODES OF ACQUIRING CITIZENSHIP .................................................................................... 34 E. MODES OF LOSING & REACQUIRING CITIZENSHIP............................................................. 37 1. LOSING CITIZENSHIP ............................................................................................................ 37 2. REACQUIRING CITIZENSHIP ................................................................................................ 37 F. DUAL CITIZENSHIP AND DUAL ALLEGIANCE ....................................................................... 38 V. LEGISLATIVE DEPARTMENT ....................................................................................................... 41 A. LEGISLATIVE POWER .............................................................................................................. 41 1. SCOPE AND LIMITATIONS .................................................................................................... 41 2. PRINCIPLE OF NON-DELEGABILITY; EXCEPTIONS ........................................................... 45 B. CHAMBERS OF CONGRESS; COMPOSITION; QUALIFICATIONS....................................... 45 1. SENATE ................................................................................................................................... 45 2. HOUSE OF REPRESENTATIVES........................................................................................... 45 A. DISTRICT REPRESENTATIVES AND QUESTIONS OF APPORTIONMENT .................. 46 i ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW B. PARTY-LIST SYSTEM......................................................................................................... 49 C. LEGISLATIVE PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS .............................. 55 D. QUORUM AND VOTING MAJORITIES ..................................................................................... 57 E. DISCIPLINE OF MEMBERS ....................................................................................................... 59 F. PROCESS OF LAW-MAKING .................................................................................................... 60 G. ELECTORAL TRIBUNALS AND THE COMMISSION ON APPOINTMENTS .......................... 63 ELECTORAL TRIBUNALS ........................................................................................................... 63 1. NATURE ................................................................................................................................... 63 2. POWERS.................................................................................................................................. 64 COMMISSION ON APPOINTMENTS .......................................................................................... 66 1. NATURE ................................................................................................................................... 66 2. POWERS.................................................................................................................................. 66 H. POWERS OF CONGRESS ......................................................................................................... 67 1. LEGISLATIVE INQUIRIES AND OVERSIGHT FUNCTIONS ................................................. 67 2. NON-LEGISLATIVE ................................................................................................................. 71 A. INFORMING FUNCTION ..................................................................................................... 71 B. POWER OF IMPEACHMENT .............................................................................................. 71 I. INITIATIVE AND REFERENDUM ................................................................................................ 72 VI. EXECUTIVE DEPARTMENT ......................................................................................................... 74 A. QUALIFICATIONS, ELECTION, AND TERM OF PRESIDENT AND VICE-PRESIDENT ........ 74 B. PRIVILEGES, INHIBITIIONS, AND DISQUALIFICATIONS ...................................................... 75 1. PRESIDENTIAL IMMUNITY .................................................................................................... 76 2. PRESIDENTIAL PRIVILEGE ................................................................................................... 77 C. POWERS OF THE PRESIDENT................................................................................................. 79 1. GENERAL EXECUTIVE AND ADMINISTRATIVE POWERS ................................................. 79 2. POWERS OF APPOINTMENT ................................................................................................ 79 A. IN GENERAL........................................................................................................................ 79 B. LIMITATIONS ON THE EXERCISE/POWER ...................................................................... 79 C. TYPES OF APPOINTMENT ................................................................................................ 80 3. POWER OF CONTROL AND SUPERVISION......................................................................... 83 A. DOCTRINE OF QUALIFIED POLITICAL AGENCY ............................................................ 84 B. EXECUTIVE DEPARTMENTS AND OFFICES ................................................................... 84 C. LOCAL GOVERNMENT UNITS .......................................................................................... 85 4. EMERGENCY POWERS ......................................................................................................... 85 5. COMMANDER-IN-CHIEF POWERS ....................................................................................... 85 A. CALLING OUT POWERS .................................................................................................... 86 B. DECLARATION OF MARTIAL LAW AND SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS; EXTENSION ........................................................................... 87 6. EXECUTIVE CLEMENCY ........................................................................................................ 90 A. NATURE AND LIMITATION ................................................................................................ 90 B. FORMS OF EXECUTIVE CLEMENCY ............................................................................... 90 ii ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW 7. DIPLOMATIC POWER ............................................................................................................. 91 8. POWERS RELATIVE TO APPROPRIATION MEASURES .................................................... 93 9. DELEGATED POWERS........................................................................................................... 93 10. RESIDUAL POWERS ............................................................................................................ 94 11. VETO POWERS ..................................................................................................................... 94 D. RULES OF SUCCESSION ......................................................................................................... 95 VII. JUDICIAL DEPARTMENT ............................................................................................................ 99 A. CONCEPTS ................................................................................................................................. 99 1. JUDICIAL POWER ................................................................................................................... 99 2. JUDICIAL REVIEW ................................................................................................................ 100 A. REQUISITES...................................................................................................................... 100 B. OPERATIVE FACT DOCTRINE ........................................................................................ 104 C. POLITICAL QUESTION DOCTRINE ................................................................................. 104 B. JUDICIAL INDEPENDENCE AND AUTONOMY ..................................................................... 105 C. APPOINTMENTS TO THE JUDICIARY ................................................................................... 107 1. QUALIFICATIONS OF MEMBERS OF THE JUDICIARY ..................................................... 107 2. JUDICIAL AND BAR COUNCIL ............................................................................................. 108 A. COMPOSITION .................................................................................................................. 108 B. POWERS ........................................................................................................................... 109 D. THE SUPREME COURT ........................................................................................................... 110 1. COMPOSITION ...................................................................................................................... 110 2. POWERS AND FUNCTIONS ................................................................................................. 110 VIII. CONSTITUTIONAL COMMISSIONS ........................................................................................ 119 A. COMMON PROVISIONS .......................................................................................................... 119 B. INSTITUTIONAL INDEPENDENCE SAFEGUARDS ............................................................... 120 C. POWERS AND FUNCTIONS .................................................................................................... 122 D. COMPOSITION AND QUALIFICATION OF MEMBERS ......................................................... 130 F. PROHIBITED OFFICES AND INTERESTS .............................................................................. 133 IX. BILL OF RIGHTS ......................................................................................................................... 135 A. CONCEPT OF BILL OF RIGHTS ............................................................................................. 136 1. PRIVACY AND AUTONOMY ................................................................................................. 136 2. RELATION TO HUMAN RIGHTS .......................................................................................... 137 B. DUE PROCESS OF LAW ......................................................................................................... 137 1. CONCEPT OF RIGHT TO LIFE, LIBERTY, AND PROPERTY ............................................. 138 2. KINDS OF DUE PROCESS ................................................................................................... 138 A. SUBSTANTIVE DUE PROCESS ....................................................................................... 138 B. PROCEDURAL DUE PROCESS ....................................................................................... 139 C. LEVELS OF SCRUTINY ........................................................................................................... 145 1. STRICT SCRUTINY TEST ..................................................................................................... 145 iii ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW 2. HEIGHTENED OR INTERMEDIATE SCRUTINY TEST ....................................................... 146 3. RATIONAL BASIS TEST........................................................................................................ 146 C. EQUAL PROTECTION OF LAWS............................................................................................ 147 1. CONCEPT AND PURPOSE .................................................................................................. 147 2. REQUISITES FOR VALID CLASSIFICATION....................................................................... 148 3. LEVELS OF SCRUTINY ........................................................................................................ 151 A. STRICT SCRUTINY TEST ................................................................................................ 151 B. INTERMEDIATE SCRUTINY TEST .................................................................................. 151 C. RATIONAL BASIS TEST ................................................................................................... 151 D. RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES ..................................... 151 1. CONCEPT OF PRIVACY ....................................................................................................... 152 2. CONCEPT OF A SEARCH .................................................................................................... 153 3. REQUISITES OF A VALID SEARCH WARRANT ................................................................. 153 A. PROBABLE CAUSE .......................................................................................................... 153 B. PERSONAL DETERMINATION BY THE JUDGE ............................................................. 154 C. PERSONAL EXAMINATION OF THE COMPLAINANT AND THE WITNESSES ............ 154 D. FACTS PERSONALLY KNOWN TO THE APPLICANT AND THE WITNESSES ............ 155 E. PARTICULARITY OF DESCRIPTION ............................................................................... 155 4. WARRANTLESS SEARCHES ............................................................................................... 158 A. WAIVER OF RIGHT ........................................................................................................... 158 B. SEARCH INCIDENTAL TO A LAWFUL ARREST ............................................................. 159 C. SEIZURE OF EVIDENCE IN PLAIN VIEW ....................................................................... 160 D. EXIGENT AND EMERGENCY CIRCUMSTANCES ......................................................... 161 E. SEARCH OF A MOVING VEHICLE .................................................................................. 162 F. STOP AND FRISK RULE (TERRY SEARCH) ................................................................... 162 G. CUSTOMS SEARCH ......................................................................................................... 163 H. AIRPORT SEARCHES ...................................................................................................... 164 I. CHECKPOINT SEARCH ..................................................................................................... 165 J. WARRANTLESS SEARCH BY A PRIVATE INDIVIDUAL ................................................. 166 5. CONCEPT OF AN ARREST .................................................................................................. 167 A. PROBABLE CAUSE .......................................................................................................... 167 B. PERSONAL DETERMINATION OF PROBABLE CAUSE ................................................ 168 C. PERSONAL EVALUATION OF THE REPORT AND THE SUPPORTING DOCUMENTS ................................................................................................................................................ 168 D. PARTICULARITY OF DESCRIPTION ............................................................................... 169 6. WARRANTLESS ARRESTS AND DETENTION ................................................................... 170 A. IN FLAGRANTE DELICTO ................................................................................................ 170 B. HOT PURSUIT ARREST ................................................................................................... 171 C. WAIVER OF RIGHT........................................................................................................... 172 7. EXCLUSIONARY RULE......................................................................................................... 173 8. EFFECTS OF UNREASONABLE SEARCHES AND SEIZURES ......................................... 174 9. EFFECTS OF ILLEGAL DETENTION ................................................................................... 174 E. PRIVACY OF COMMUNICATION AND CORRESPONDENCE .............................................. 175 1. CONCEPT OF COMMUNICATION AND CORRESPONDENCE ......................................... 175 2. INTRUSION, WHEN AND HOW ALLOWED ......................................................................... 176 iv ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW A. UPON LAWFUL ORDER OF THE COURT ....................................................................... 176 B. WHEN PUBLIC SAFETY OR ORDER REQUIRES OTHERWISE AS PRESCRIBED BY LAW ........................................................................................................................................ 177 3. EXCLUSIONARY RULE......................................................................................................... 177 F. FREEDOM OF SPEECH AND EXPRESSION.......................................................................... 179 1. CONCEPT .............................................................................................................................. 179 A. CONTINUUM OF THOUGHT, SPEECH, EXPRESSION, AND SPEECH ACTS ............. 180 B. PURPOSES OF FREE SPEECH DOCTRINES ................................................................ 180 C. BALANCE BETWEEN UNBRIDLED EXPRESSION AND LIBERTY ................................ 181 2. TYPES OF REGULATION ..................................................................................................... 181 A. PRIOR RESTRAINT AND SUBSEQUENT PUNISHMENT .............................................. 181 B. CONTENT BASED AND CONTENT NEUTRAL ............................................................... 183 C. INCITEMENT AND ADVOCACY ....................................................................................... 184 D. SPECIFICITY OF REGULATION AND OVERBREADTH DOCTRINE ............................. 184 E. SPEECH REGULATION IN RELATION TO ELECTION ................................................... 186 F. SPEECH REGULATION IN RELATION TO MEDIA.......................................................... 189 3. JUDICIAL ANALYSIS, PRESUMPTIONS AND LEVELS AND TYPES OF SCRUTINY ....... 191 A. CLEAR AND PRESENT DANGER TEST.......................................................................... 192 B. DANGEROUS TENDENCY RULE .................................................................................... 192 C. BALANCING OF INTERESTS TEST ................................................................................ 193 4. SPECIAL TOPICS IN FREE EXPRESSION CASES ............................................................ 194 A. HATE SPEECH AND FIGHTING WORDS ........................................................................ 194 B. DEFAMATION AND LIBEL ................................................................................................ 195 C. SEDITION AND SPEECH IN RELATION TO REBELLION .............................................. 198 D. OBSCENITY/PORNOGRAPHY......................................................................................... 199 E. COMMERCIAL SPEECH ................................................................................................... 200 F. NATIONAL EMERGENCIES .............................................................................................. 200 G. SPEECH OF PUBLIC OFFICERS..................................................................................... 201 H. HECKLER S VETO ............................................................................................................ 202 5. COGNATE RIGHTS ............................................................................................................... 202 A. FREEDOM OF ASSEMBLY AND PETITION .................................................................... 202 B. FREEDOM OF ASSOCIATION ......................................................................................... 205 C. FREEDOM OF INFORMATION......................................................................................... 207 G. FREEDOM OF RELIGION ........................................................................................................ 210 1. BASIC PRINCIPLES .............................................................................................................. 210 A. PURPOSE .......................................................................................................................... 210 B. CONCEPT OF RELIGION ................................................................................................. 210 2. PRINCIPLE OF SEPARATION OF CHURCH AND STATE .................................................. 211 3. NON-ESTABLISHMENT CLAUSE......................................................................................... 211 4. FREE EXERCISE CLAUSE ................................................................................................... 216 H. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT ....................................................... 221 1. SCOPE AND LIMITATIONS .................................................................................................. 221 2. WATCH-LIST AND HOLD DEPARTURE ORDERS .............................................................. 222 I. EMINENT DOMAIN .................................................................................................................... 222 v ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW 1. CONCEPT .............................................................................................................................. 222 2. JUST COMPENSATION ........................................................................................................ 225 3. ABANDONMENT OF INTENDED USE AND RIGHT OF REPURCHASE ............................ 228 4. EXPROPRIATION BY LOCAL GOVERNMENT UNITS ........................................................ 229 J. NON-IMPAIRMENT OF CONTRACTS ..................................................................................... 231 K. ADEQUATE LEGAL ASSISTANCE AND FREE ACCESS TO COURTS .............................. 233 L. RIGHT AGAINST SELF INCRIMINATION ............................................................................... 233 1. SCOPE AND COVERAGE ..................................................................................................... 234 2. APPLICATION ........................................................................................................................ 237 3. IMMUNITY STATUTES .......................................................................................................... 237 M. RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION .......................................... 238 1. AVAILABILITY ........................................................................................................................ 240 2. REQUISITES .......................................................................................................................... 242 3. WAIVER ................................................................................................................................. 242 N. RIGHTS OF THE ACCUSED .................................................................................................... 244 1. CRIMINAL DUE PROCESS ................................................................................................... 244 2. BAIL ........................................................................................................................................ 245 3. PRESUMPTION OF INNOCENCE ........................................................................................ 248 4. RIGHT TO BE HEARD ........................................................................................................... 249 5. ASSISTANCE OF COUNSEL ................................................................................................ 249 6. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION ................ 249 7. RIGHT TO SPEEDY, IMPARTIAL, AND PUBLIC TRIAL ...................................................... 250 A. RIGHT TO SPEEDY TRIAL ............................................................................................... 250 B. RIGHT TO IMPARTIAL TRIAL........................................................................................... 251 C. RIGHT TO PUBLIC TRIAL ................................................................................................ 251 8. RIGHT OF CONFRONTATION.............................................................................................. 251 9. COMPULSORY PROCESS ................................................................................................... 252 10. TRIALS IN ABSENTIA ......................................................................................................... 252 O. RIGHT TO THE SPEEDY DISPOSITION OF CASES ............................................................. 253 P. RIGHT AGAINST EXCESSIVE FINES AND CRUEL, DEGRADING, AND INHUMAN PUNISHMENTS ............................................................................................................................. 254 Q. NON-IMPRISONMENT FOR DEBTS ....................................................................................... 256 R. RIGHT AGAINST DOUBLE JEOPARDY ................................................................................. 256 1. REQUISITES TO RAISE THE DEFENSE OF DOUBLE JEOPARDY: ................................. 256 A. A FIRST JEOPARDY ATTACHED PRIOR TO THE SECOND ......................................... 256 B. THE FIRST JEOPARDY HAS BEEN VALIDLY TERMINATED ........................................ 257 C. A SECOND JEOPARDY IS FOR THE SAME OFFENSE AS IN THE FIRST .................. 258 2. LIMITATIONS ......................................................................................................................... 259 A. MOTIONS FOR RECONSIDERATION AND APPEALS ................................................... 259 B. DISMISSAL WITH CONSENT OF ACCUSED .................................................................. 260 C. CYBERCRIME PREVENTION ACT .................................................................................. 260 S. RIGHT AGAINST INVOLUNTARY SERVITUDE ..................................................................... 261 vi ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW T. EX POST FACTO LAWS AND BILLS OF ATTAINDER .......................................................... 261 1. EX POST FACTO LAW .......................................................................................................... 261 2. BILL OF ATTAINDER............................................................................................................. 262 J. PRIVILEGE OF THE WRIT OF HABEAS CORPUS ................................................................ 263 X. LAW ON PUBLIC OFFICERS ...................................................................................................... 268 A. GENERAL PRINCIPLES .......................................................................................................... 268 B. MODES OF ACQUIRING TITLE TO PUBLIC OFFICE............................................................ 270 C. MODES AND KINDS OF APPOINTMENTS ............................................................................ 273 D. ELIGIBILITY AND QUALIFICATION REQUIREMENTS ......................................................... 275 E. DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS ................................................... 278 F. POWERS AND DUTIES OF PUBLIC OFFICERS .................................................................... 283 G. RIGHTS OF PUBLIC OFFICERS ............................................................................................. 285 H. LIABILITIES OF PUBLIC OFFICERS ...................................................................................... 287 1. PREVENTIVE SUSPENSION AND BACK SALARIES ......................................................... 288 2. ILLEGAL DISMISSAL, REINSTATEMENT AND BACK SALARIES ..................................... 290 I. IMMUNITY OF PUBLIC OFFICERS........................................................................................... 291 J. DE FACTO V DE JURE OFFICERS ......................................................................................... 292 K. TERMINATION OF OFFICIAL RELATIONS ............................................................................ 294 L. THE CIVIL SERVICE ................................................................................................................. 299 1. SCOPE ................................................................................................................................... 299 2. APPOINTMENTS TO THE CIVIL SERVICE.......................................................................... 299 3. PERSONNEL ACTIONS ........................................................................................................ 301 M. ACCOUNTABILITY OF PUBLIC OFFICERS .......................................................................... 303 1. TYPES OF ACCOUNTABILITY ............................................................................................. 303 A. ADMINISTRATIVE LIABILITY ........................................................................................... 303 B. CRIMINAL ACCOUNTABILITY.......................................................................................... 305 2. THE OMBUDSMAN AND THE OFFICE OF THE SPECIAL PROSECUTOR ..................... 307 3. THE SANDIGANBAYAN ....................................................................................................... 315 N. TERM LIMITS ........................................................................................................................... 318 XI. ADMINISTRATIVE LAW .............................................................................................................. 323 A. GENERAL PRINCIPLES .......................................................................................................... 323 B. ADMINISTRATIVE AGENCIES ................................................................................................ 324 C. POWERS OF ADMINISTRATIVE AGENCIES ......................................................................... 327 1. QUASI-LEGISLATIVE OR RULE-MAKING POWER ............................................................ 330 A. KINDS OF ADMINISTRATIVE RULES AND REGULATIONS .......................................... 333 B. REQUISITES OF A VALID ADMINISTRATIVE ISSUANCE, RULE, OR REGULATION . 334 2.QUASI-JUDICIAL OR ADJUDICATORY POWER ................................................................. 336 vii ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW A. ADMINISTRATIVE DUE PROCESS: (HIP DESK) ............................................................ 339 B. ADMINISTRATIVE APPEAL AND REVIEW APPEAL....................................................... 343 C. ADMINISTRATIVE RES JUDICATA ................................................................................. 344 D. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS ........................................................ 345 1. DOCTRINE OF PRIMARY (ADMINISTRATIVE) JURISDICTION......................................... 346 2. DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES .................................... 347 3. DOCTRINE OF FINALITY OF (ADMINISTRATIVE) ACTION ............................................... 350 XII. ELECTION LAW ......................................................................................................................... 355 A. GENERAL PRINCIPLES ON SUFFRAGE ............................................................................... 355 B. COMMISSION ON ELECTIONS (COMELEC) ......................................................................... 357 C. VOTERS AND VOTING ............................................................................................................ 361 1. QUALIFICATION AND DISQUALIFICATION OF VOTERS .................................................. 361 2. REGISTRATION AND DEACTIVATION OF VOTERS .......................................................... 362 3. INCLUSION AND EXCLUSION PROCEEDINGS ................................................................. 365 4. OVERSEAS AND LOCAL ABSENTEE VOTING ................................................................... 365 D. CANDIDATES ........................................................................................................................... 368 1. DEFINITION ........................................................................................................................... 368 2. QUALIFICATIONS OF CANDIDATES ................................................................................... 369 3. FILING OF CERTIFICATES OF CANDIDACY (COC)........................................................... 371 E. CAMPAIGN ............................................................................................................................... 387 1. ELECTION CAMPAIGN OR PARTISAN POLITICAL ACTIVITY .......................................... 387 2. ELECTION CAMPAIGN ACTS .............................................................................................. 388 3. ELECTION PROPAGANDA ................................................................................................... 388 4. CONTRIBUTIONS AND EXPENDITURES............................................................................ 392 F. ELECTION CONTROVERSIES AND REMEDIES ................................................................... 396 1. CONTROVERSIES AND REMEDIES BEFORE PROCLAMATION .................................... 396 A. POSTPONEMENT OF ELECTION .................................................................................... 396 B. FAILURE OF ELECTION ................................................................................................... 396 C. DISQUALIFICATION PETITIONS ..................................................................................... 397 D. PRE-PROCLAMATION CONTROVERSIES ..................................................................... 402 E. BOARD OF ELECTION INSPECTORS AND BOARD OF CANVASSERS ...................... 406 2. CONTROVERSIES AND REMEDIES AFTER PROCLAMATION (ELECTION CONTESTS) .................................................................................................................................................... 408 A. ELECTION PROTESTS ..................................................................................................... 409 B. QUO WARRANTO ............................................................................................................. 411 G. ELECTION OFFENSES ............................................................................................................ 412 XIII. PUBLIC CORPORATIONS AND LOCAL GOVERNMENT ...................................................... 415 A. GENERAL PRINCIPLES .......................................................................................................... 415 1. CORPORATION AND CLASSES OF CORPORATION ........................................................ 415 2. GOVERNMENT OWNED OR CONTROLLED CORPORATIONS (GOCC) ......................... 416 3. MUNICIPAL CORPORATIONS ............................................................................................. 419 viii ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW B. PRINCIPLES OF LOCAL AUTONOMY ................................................................................... 421 C. TERRITORIAL AND POLITICAL SUBDIVISIONS .................................................................. 428 1. PROVINCE, CITY, MUNICIPALITY, BARANGAY, SPECIAL METROPOLITAN POLITICAL SUBDIVISION ............................................................................................................................ 428 2. SETTLEMENT OF BOUNDARY DISPUTES ......................................................................... 434 D. POWERS OF LOCAL GOVERNMENT UNITS ........................................................................ 434 1. POLICE POWER (GENERAL WELFARE CLAUSE)............................................................. 435 A. LOCAL LEGISLATIVE POWER......................................................................................... 438 2. POWER OF EMINENT DOMAIN (EXPROPRIATION).......................................................... 442 3. POWER OF TAXATION (POWER TO GENERATE AND APPLY RESOURCES) .............. 446 4. CORPORATE POWERS AND OTHER POWERS ................................................................ 456 A. MUNICIPAL LIABILITY ...................................................................................................... 457 B. RECLASSIFICATION OF LANDS ..................................................................................... 461 C. CLOSURE AND OPENING OF ROADS ........................................................................... 462 E. LOCAL ELECTIVE OFFICIALS................................................................................................ 463 1. QUALIFICATIONS ................................................................................................................. 463 2. DISQUALIFICATIONS ........................................................................................................... 464 3. DISCIPLINE............................................................................................................................ 464 4. RECALL.................................................................................................................................. 469 5. VACANCIES AND SUCCESSION ......................................................................................... 471 6. TERM LIMITS ......................................................................................................................... 473 XIV. NATIONAL ECONOMY AND PATRIMONY ............................................................................. 477 A. EXPLORATION, DEVELOPMENT, AND UTILIZATION OF NATURAL RESOURCES ........ 481 B. FRANCHISES, AUTHORITIES, AND CERTIFICATES FOR PUBLIC UTILITY ..................... 482 C. ACQUISITION, OWNERSHIP, AND TRANSFER OF PUBLIC AND PRIVATE LANDS ........ 484 D. PRACTICE OF PROFESSIONS ............................................................................................... 486 E. ORGANIZATIONS AND REGULATION OF PRIVATE AND PUBLIC CORPORATIONS ..... 486 F. MONOPOLIES, RETRAINT OF TRADE, AND UNFAIR COMPETITION ................................ 486 XV. SOCIAL JUSTICE AND HUMAN RIGHTS ................................................................................ 488 A. CONCEPT OF SOCIAL JUSTICE ............................................................................................ 488 B. ECONOMIC, SOCIAL, AND CULTURAL RIGHTS .................................................................. 489 1. LABOR ................................................................................................................................... 489 2. AGRARIAN AND NATURAL RESOURCES REFORM ......................................................... 490 A. COMPREHENSIVE AGRARIAN REFORM LAW .............................................................. 491 B. OTHER PROVISIONS ....................................................................................................... 492 3. URBAN LAND REFORM AND HOUSING ............................................................................. 493 4. HEALTH ................................................................................................................................. 493 5. WOMEN ................................................................................................................................. 493 6. PEOPLE S ORGANIZATION ................................................................................................. 494 C. COMMISSION ON HUMAN RIGHTS ....................................................................................... 494 ix ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW 1. POWERS................................................................................................................................ 494 2. COMPOSITION AND QUALIFICATION OF MEMBERS ....................................................... 494 XVI. EDUCATION, SCIENCE, TECHNOLOGY, ARTS, CULTURE AND SPORTS ........................ 496 A. ACADEMIC FREEDOM ............................................................................................................ 499 XVII. PUBLIC INTERNATIONAL LAW ............................................................................................. 504 A. CONCEPTS ............................................................................................................................... 505 B. RELATIONSHIP BETWEEN INTERNATIONAL AND PHILIPPINES DOMESTIC LAW ........ 507 C. SOURCES OF OBLIGATIONS INTERNATIONAL LAW ........................................................ 510 1. ARTICLE 38. INTERNATIONAL COURT OF JUSTICE STATUTE ..................................... 510 2. EFFECT OF UNITED NATIONS DECLARATIONS, SECURITY COUNCIL RESOLUTIONS, GENERAL ASSEMBLY RESOLUTIONS ................................................................................... 515 3. EFFECT OF ACTIONS OF ORGANS OF INTERNATIONAL ORGANIZATIONS CREATED BY TREATY ................................................................................................................................ 515 D. SUBJECTS OF INTERNATIONAL LAW ................................................................................. 515 1. STATES.................................................................................................................................. 516 2. INTERNATIONAL ORGANIZATIONS ................................................................................... 519 3. INDIVIDUALS ......................................................................................................................... 520 4. OTHERS................................................................................................................................. 520 E. JURISDICTION OF STATES .................................................................................................... 522 1. BASIS OF JURISDICTION..................................................................................................... 522 A. WHAT IS TERRITORIALITY PRINCIPLE? ....................................................................... 522 B. WHAT IS NATIONALITY PRINCIPLE? ............................................................................. 523 C. WHAT IS THE PROTECTIVE PRINCIPLE? ..................................................................... 523 D. WHAT IS THE UNIVERSALITY PRINCIPLE? .................................................................. 523 E. WHAT IS THE PASSIVE PERSONALITY PRINCIPLE? .................................................. 523 2. EXEMPTION FROM JURISDICTION .................................................................................... 524 A. WHAT IS THE ACT OF STATE DOCTRINE? ................................................................... 524 B. WHAT ARE THE IMMUNITIES OF INTERNATIONAL ORGANIZATIONS AND ITS OFFICERS?............................................................................................................................ 524 F. DIPLOMATIC AND CONSULAR LAW ..................................................................................... 526 G. NATIONALITY AND STATELESSNESS NATIONALITY ....................................................... 528 H. GENERAL PRINCIPLES OF TREATY LAW ........................................................................... 530 I. DOCTRINE OF STATE RESPONSIBILITY ............................................................................... 535 ELEMENTS ................................................................................................................................ 535 THERE IS AN INTERNATIONALLY WRONGFUL ACT OF A STATE WHEN CONDUCT CONSISTING OF AN ACTION OR OMISSION:........................................................................ 535 A. IS ATTRIBUTABLE TO THE STATE UNDER INTERNATIONAL LAW; AND ................... 535 B. CONSTITUTES A BREACH OF AN INTERNATIONAL OBLIGATION OF THE STATE. (ASR, ART. 2)............................................................................................................................. 535 J. REFUGEES................................................................................................................................ 540 x ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW K. TREATMENT OF ALIENS ........................................................................................................ 542 1. EXTRADITION ....................................................................................................................... 542 A. FUNDAMENTAL PRINCIPLES.......................................................................................... 542 B. NOTICE AND HEARING ................................................................................................... 543 C. DISTINGUISHED FROM DEPORTATION ........................................................................ 544 2. EXPROPRIATION .................................................................................................................. 544 L. INTERNATIONAL HUMAN RIGHTS LAW ............................................................................... 545 1. UNIVERSAL DECLARATION OF HUMAN RIGHTS ( UDHR )............................................. 545 2. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) ................... 546 3. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS (ICESCR) .................................................................................................................................... 548 M. INTERNATIONAL HUMANITARIAN LAW .............................................................................. 548 1. CATEGORIES OF ARMED CONFLICT ................................................................................ 550 TYPES OF ARMED CONFLICT............................................................................................. 550 A. INTERNATIONAL ARMED CONFLICTS (IAC) ................................................................. 550 B. INTERNAL OR NON-INTERNATIONAL ARMED CONFLICT (NIAC) .............................. 551 C. WARS OF NATIONAL LIBERATION ................................................................................ 552 2. CORE INTERNATIONAL OBLIGATIONS OF STATES IN INTERNATIONAL HUMANITARIAN LAW ............................................................................................................... 552 3. PRINCIPLES ON INTERNATIONAL HUMANITARIAN LAW ................................................ 553 4. LAW ON NEUTRALITY .......................................................................................................... 557 N. LAW OF THE SEA .................................................................................................................... 558 1. BASELINES............................................................................................................................ 558 2. ARCHIPELAGIC STATES ..................................................................................................... 559 A. STRAIGHT ARCHIPELAGIC BASELINES ........................................................................ 559 B. ARCHIPELAGIC WATERS ................................................................................................ 559 C. ARCHIPELAGIC SEA LANES PASSAGE......................................................................... 559 D. REGIME OF ISLANDS ...................................................................................................... 561 3. INTERNAL WATERS ............................................................................................................. 561 4. TERRITORIAL SEA ............................................................................................................... 562 5. CONTIGUOUS ZONE ............................................................................................................ 562 6. EXCLUSIVE ECONOMIC ZONE ........................................................................................... 562 7. CONTINENTAL SHELF ......................................................................................................... 563 8. INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA ............................................... 565 O. INTERNATIONAL ENVIRONMENTAL LAW ........................................................................... 566 xi THE 1987 CONSTITUTION Political Law ATENEO CENTRAL BAR OPERATIONS 2020/21 I. THE 1987 CONSTITUTION TOPIC OUTLINE UNDER THE SYLLABUS: I. THE 1987 CONSTITUTION A. NATURE AND CONCEPT OF A CONSTITUTION B. PARTS OF A CONSTITUTION C. AMENDMENTS AND REVISIONS D. METHODS OF INTERPRETING THE CONSTITUTION POLITICAL LAW A. NATURE AND CONCEPT OF A CONSTITUTION Political Law Political law branch of public law which deals with the organization and operations of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory. (People v. Perfecto, G.R. No. L-18463, Oct. 4, 1922) Subjects covered by Philippine Political Law 1. Constitutional Law - guaranties of the constitution to individual rights and the limitations on governmental action 2. Administrative Law - exercise of executive power in the making of rules and the decision of questions affecting private rights 3. Election Law - the study of the laws, rules, and procedures involving the conduct of the election of all public officials who will exercise the powers of government as allocated to and within their functions and responsibilities 4. Law of Public Corporations governmental agencies for local government or for other special purposes 5. Law of Public Officers - study of the creation, modification, and dissolution of public office as well as the eligibility of public officers, the manner of their election or appointment and assumption of office, their rights, duties, powers, inhibitions and liabilities, and the modes of terminating official relations. Constitutional Law Designates the law embodied in the Constitution and the legal principles growing out of the interpretation and application of its provisions by the courts in specific cases. It is the study of the maintenance of the proper balance between the authority as represented by the three inherent powers of the State and liberty as guaranteed by the Bill of Rights. Page 2 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Definition of Constitution 1. A written instrument enacted by direct action of the people by which the fundamental powers of government are established, limited, and defined, and by which these powers are distributed among several departments, for their more safe and useful exercise, for the benefit of the body politic (Bernas, 1987 Philippine Constitution, 2009). 2. The written instrument agreed upon by the people as the absolute rule of action and decision for all departments and officers of the government and in opposition to which any act or rule of any department or officer of the government, or even of the people themselves, will be altogether void (Cooley, III Constitutional Limitations, 1868). 3. The Constitution both creates the structures of government and limits their powers. 4. It is the document which serves as the fundamental law of the state; that written instrument enacted by the direct action of the people by which the fundamental powers of the government are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise, for the benefit of the body politic. (Malcolm, Phil. Constitutional Law) Classes of Constitution 1. Written and Unwritten a. A written constitution precepts are embodied in one document or set of documents. b. An unwritten constitution consists of rules which have not been integrated into a single, concrete form but are scattered in various sources, such as statutes of fundamental character, judicial decisions, commentaries of publicists, customs and traditions. (Cruz, Constitutional Law 4-5; Nachura, Outline Reviewer in Political Law 2) POLITICAL LAW 2. Enacted (Conventional) and Evolved (Cumulative) a. A conventional constitution is enacted formally at a definite time and place following a conscious or deliberate effort taken by a constituent body or ruler. b. A cumulative body is the result of political evolution, not inaugurated at any specific time but changing by accretion rather than by any systematic method. (Cruz, id., at 5) 3. Rigid and Flexible a. A constitution is classified as rigid when it may not be amended except through a special process distinct from and more involved than the method of changing ordinary laws. It is supposed that by such a special procedure, the constitution is rendered difficult to change and thereby acquires a greater degree of stability. b. A constitution is classified as flexible when it may be changed in the same manner and through the same body that enacts ordinary legislation. The Constitution of the UK is flexible. Note: The Philippine Constitution is written, conventional and rigid. Philippine Constitution and Effectivity Dates 1. 1935 Constitution: May 14, 1935 2. 1973 Constitution: Jan. 17, 1973 3. 1986 Freedom Constitution: Mar. 25, 1986 4. 1987 Constitution: Feb. 2, 1987 B. PARTS OF A CONSTITUTION Essential Parts of a Written Constitution 1. Constitution of Liberty sets forth the fundamental civil and political rights of citizens, and imposing limitations on the powers of government as a means of Page 3 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 securing the enjoyment of those rights. (PHIL. CONST., art. III.) 2. Constitution of Government outlines the organization of government, enumerating its powers, laying down rules regarding its administration, and defining the electorate. (PHIL. CONST., art. VI-IX.) 3. Constitution of Sovereignty the mode or procedure with which formal changes in the fundamental law may be made. (PHIL. CONST., art. XVII.) Preamble An introduction that identifies: the authors of the Constitution (i.e. sovereign Filipino people) their intentions, and its purpose(s) of the document. Self-Executing and Non-Self Executing Provisions 1. Self-Executing - provisions which are complete in itself and become operative without the aid of supplementary or enabling legislation, or that which supplies a sufficient rule by means of which the right it grants may be enjoyed or protected. (Manila Prince Hotel v GSIS, G.R. No. 122156, Feb. 3, 1997) 2. Non-Self-Executing - provisions which lay down a general principle General Rule: The provisions of the Constitution are considered self-executing, and do not require future legislation for their enforcement. Exceptions: 1. The principles found in Article II are not intended to be self-executing principles ready for enforcement through the courts. They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws (Tondo Medical v. Court of Appeals, G.R. No. 167324, July 17, 2007). 2. The social and economic rights guaranteed in Article XIII are also non-selfexecuting provisions. (Bernas, POLITICAL LAW Constitutional Rights and Social Demands, 1, 2010). Exceptions to the Exceptions: 1. Article II, Sec. 16 - The right to a balanced and healthful ecology is self-executory and does not need an implementing legislation (Oposa v. Factoran, G.R. No. 101083, July 30, 1993). 2. Article II, Sec. 28 The duty of full public disclosure is self-executory (Province of North Cotabato v. GRP, G.R. No. 183591, Oct. 14, 2008). 3. Article II, Sec. 15 - The right to health is also self-executing (Imbong v. Ochoa, G.R. No. 204819, Apr. 8, 2014). NOTE: Whether or not a provision is self-executing depends on the language of the provision. Most of the provisions in Article II are couched in non-selfexecuting language. C. AMENDMENTS AND REVISIONS (PHIL CONST., ART. XVII.) Amendment An alteration of one or a few specific separable provisions of the Constitution. The changes brought about by amendments will not affect the other provisions of the Constitution (Bernas, 1987 Philippine Constitution: A Commentary, 1345, 2009). An addition or change within the lines of the original constitution as will effect an improvement, or better carry out the purpose for which it was framed; a change that adds, reduces or deletes without altering the basic principles involved; affects only the specific provision being amended. (Lambino v. COMELEC, G.R. No. 174153, Oct. 25, 2006) Examples: a change reducing the voting age from 18 years to 15 years; a change reducing Filipino ownership of mass media companies from 100% to 60%; a change requiring a college degree Page 4 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 as an additional qualification for election to the Presidency (Lambino v. COMELEC, G.R. No. 174153, Oct. 25, 2006). Revision A re-examination of the entire Constitution or of provisions which have over-all implications for 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 (Bernas, 1987 Philippine Constitution: A Commentary, 1345, 2009). A change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances; alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. re i ion (Lambino v. COMELEC, G.R. No. 174153, Oct. 25, 2006). Necessary Steps to Give Effect to Amendments or Revisions (PSR) 1. Proposal of amendments or revisions by the proper constituent assembly 2. Submission of the proposed amendments or revisions to the people 3. Ratification Ways of Proposing Amendments (CCP) 1. Constituent Assembly (ConAss) Acting as a Constituent Assembly, the Congress by itself may propose amendments by 3/4 vote of all its members. Notes: The power of Congress to propose amendments is NOT part of its ordinary legislative power. Congress possesses constituent power only because it has been specifically given that power by and under the conditions of Article XVII (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 544, 2011, citing Gonzales v. COMELEC, G.R. No. L28196, Nov. 9, 1967). Each House may separately formulate amendments by a vote of 3/4 of all its members, and then pass it on to the other house for similar process. Nothing is said about joint sessions (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 544, 2011). Even in a joint session, they must still vote separately because Congress is bicameral. Examples: altering the principle of separation of powers or the system of checks-andbalances; a switch from the presidential system to a parliamentary system; a switch from a bicameral system to a unicameral system (Lambino v. COMELEC, G.R. No. 174153, Oct. 25, 2006). Two-part test in determining whether a proposal involves an amendment or revision. 1. Quantitative test The court examines only the number of provisions affected and does not consider the degree of the change. Whether the proposed change is so extensive in its provision as to change direc l he b ance en ire of he Constitution by the deletion or alteration of numerous provisions. 2. Qualitative test Inquires into the qualitative effects of the proposed change in the Constitution. The main inquiry is he her he change ill accompli h ch far-reaching changes in the nature of our basic governmental plan as to amount to a 2. Constitutional Convention (ConCon) Congress may call a ConCon by a 2/3 vote of all its members, or By a majority vote of all its members, Congress may submit to the electorate the question of calling a ConCon. Notes: Page 5 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 The choice of either a ConAss or ConCon for the purpose of initiating amendments or revisions is left to the discretion of Congress. In other words, it is a political question. The manner of calling a ConCon is subject to judicial review, because the Constitution has provided for voting requirements. If Congress, acting as a ConAss, calls for a ConCon but does not provide the details for the calling of such ConCon, Congress exercising its ordinary legislative power may supply such details. But in so doing, Congress (as legislature) should not transgress the resolution of Congress acting as a constituent assembly (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 544-545, 2011). Congress, as a ConAss and the ConCon, has no power to appropriate money for their expenses. Money may be spent from the treasury only pursuant to an appropriation made by law. However, the constitutional convention is free to dispose the funds appropriated by Congress for the Con en ion opera ion (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 545, 2011). 3. P I a For a alid People Ini ia i e, here m be: 1. Petition to propose such amendments must be signed by at least 12% of all registered voters. 2. Every legislative district must be represented by at least 3% of the registered voters therein. While the substance of the proposals made by each type of ConAss is not subject to judicial review, the manner the proposals were made is subject to judicial review. Since a ConAss owes their existence to the Constitution, the courts may determine whether the assembly has acted in accordance with the Constitution, for example: o Whether a proposal was approved by the required number of votes in Congress (acting as a constituent assembly). o Whether the approved proposals were properly submitted to the people for ratification. Notes: The electorate can propose through initiative ONLY amendments, since it would be practically impossible to have an over-all review of the Constitution through action by the entire electoral population. No amendmen hro gh a People Initiative shall be authorized within 5 years following the ratification of the 1987 Constitution (Feb. 2, 1987) nor more often than once every 5 years. Congress shall provide for the implementation of the exercise of this right. (Art. XVII, Sec.2) Revision of the Constitution cannot be effected through initiative and referendum. Formulation of provisions revising the Constitution requires both cooperation and debate which can only be done through a collegial body. (BERNAS) Ways of Proposing Revisions 1. By Congress, upon a vote of 3/4 of its members 2. By a Constitutional Convention Doctrine of Proper Submission A plebiscite may be held on the same day as a regular election (Gonzales v. COMELEC, G.R. No. L-28196, Nov. 9, 1967). The entire Constitution must be submitted for ratification at one plebiscite onl . The people m ha e a proper frame of reference . (Tolentino v. COMELEC, G.R. No. L34150, Oct. 16, 1971). No piecemeal bmi ion, e.g. submission of age amendment ahead of other proposed amendments. (Lambino v. COMELEC, G.R. No.174153, Oct. 25, 2006) Page 6 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 N.B. The process of revision is the same in all respects except that it cannot be proposed via a People Ini ia i e. [Id.] Judicial Review of Amendments The validity of the process of amendment is not a political question because the Court must review if constitutional processes were followed. [Id.] Ratification of Proposal if made through ConAss or ConCon Amendments and revisions are valid when ratified by a majority of votes cast in a plebiscite. Plebiscite is held not earlier than 60 days nor later than 90 days from the approval of such amendments or revisions. Ratification of Proposal if made through P I a Valid when ratified by a majority of votes cast in a plebiscite. Plebiscite is held not earlier than 60 days nor later than 90 days after the certification by COMELEC of the petition's sufficiency. Requisites for Valid Ratification: (PCR) 1. Held in a Plebiscite conducted under the election law. 2. Supervised by the COMELEC. 3. Where only franchised (Registered) voters take part. 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. POLITICAL LAW 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 invalid. All the proposed amendments or 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. All the amendments to be proposed by the same Convention must be submitted to the people in a single "election" or plebiscite (Tolentino v. COMELEC, G.R. No. L-34150, Oct. 16, 1971). Presidential proclamation is NOT required for effectivity of amendments/revisions. Exception: When the proposed amendments or revisions so provide (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 550, 2011). Date of Effectivity of an Amendment or Revision Since Section 4 of Article XVII, says that any amendment or revision hall be alid hen ra ified , the date of effectivity of any amendment or revision should be the same as that of the date of ratification, that is, the day on which the votes are cast. However, the amendments themselves might specify otherwise. (BERNAS) Page 7 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 Amendments v. Revisions AMENDMENTS REVISIONS Change in the Constitution Purpose is to improve specific parts Purpose is to examine entirety Affects only the specific provision amended Affects several provisions Adds, reduces, deletes without altering basic Affects basic principles principle Affects substantial entirety E.g. lowering the voting age E.g. shift from presidential to parliamentary system Amendments CAN BE DONE BY: 1. Congress (Constituent Assembly/ConAss) 2. Constitutional Convention (ConCon) 3. People Revisions Initiative 1. Congress (Constituent Assembly/ConAss) 2. Constitutional Convention (ConCon) HOW By a vote of 3/4 of all its members RATIFICATION By a vote of 2/3 of all the members of Congress; or By a majority vote of all its members, Congress may submit to the electorate the question of calling a ConCon Petition must be signed by at least 12% of all registered voters; and Every legislative district must be represented by at least 3% of the registered voters therein. By a vote of 3/4 of all its members Through a plebiscite, 60-90 days after submission of the amendments By a vote of 2/3 of all the members of Congress; or By a majority vote of all its members, Congress may submit to the electorate the question of calling a ConCon D. METHODS OF INTERPRETING THE CONSTITUTION Basic Principles of Constitutional Construction 1. Verba legis whenever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed; 2. Ratio legis est anima where there is ambiguity, the words of the Constitution should be interpreted in accordance with the intent of the framers; 3. Ut magis valeat quam pereat the Constitution should be interpreted as a whole (Francisco v. House of Representatives, G.R. No. 160261, Nov. 10, 2003) Ordinary Meaning To the extent possible, words must be given their ordinary meaning; this is consistent with the basic Page 8 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW precept of verba legis. The Constitution is truly a public document in that it was ratified and approved by a direct act of the People exercising their right of suffrage, they approved of it through a plebiscite. The preeminent consideration in reading the Constitution, therefore, is the People's consciousness: that is, popular, rather than technical-legal, understanding. (LEONEN - David v. SET, G.R. No. 221538, Sept. 20, 2016) The Philippine Flag (§ 1.) Red, white, and blue with a sun and 3 stars The design may be changed only by constitutional amendment. Ascertainment of Intent One fundamental principle of constitutional construction is that the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution, it may also be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the framers. (Nitafan v. CIR, G.R. No. 78780, July 23, 1987) The law takes effect upon ratification by the people in a national referendum. In case of doubt, the provisions should be considered: 1. self-executing (Manila Prince Hotel v GSIS, G.R. No. 122156, Feb. 3, 1997); 2. mandatory rather than directory (Tanada v Cuenco, G.R. No. L-10250, Feb. 28, 1957) and 3. prospective rather than retroactive (Peralta v Director of Prisons, G.R. No. L-49, Nov. 12, 1945) Doctrine of Constitutional Supremacy If a law or a contract violates any norm of the Constitution, that law or contract, whether promulgated by the legislative or executive branch of the government or entered into by private persons for private purposes, is null and void, and without any force and effect. Since the Constitution is the fundamental and supreme law of the land, it is deemed written in every statute and every contract. (NACHURA) GENERAL PROVISIONS (PHIL CONST., art. XVI.) Congress may, by law, adopt a new: (§ 2.) Name for the country National anthem National seal The Armed Forces of the Philippines (§ 4 & 5.) Military men cannot engage, directly or indirectly, in any partisan political activity, except to vote. Members of the AFP in active service cannot be appointed to a civilian position in the government, including GOCCs or their subsidiaries. The Police Force (§ 6.) The State shall establish and maintain one police force, national in scope and civilian in character. The national police is now governed by R.A. No. 6975 which took effect on January 1, 1991. Consumer Protection (§ 9.) The State shall protect consumers from trade malpractices and from substandard or hazardous products. The protection is intended, not only against traders, but also to manufacturers who dump defective products in the market. Mass Media and Advertising (§ 11.) The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, whollyowned and managed by citizens. Only Filipino citizens or corporations or associations at least 70% of the capital of which is owned by Filipino citizens shall be allowed to engage in the advertising industry. GOVERNMENT Page 9 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 GOVERNMENT An element of a state; that institution through which the State exercises power; the aggregate of institutions by which an independent society makes and carries out rules of action which are necessary to enable men and women 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. (Bacani v. NACOCO, G.R. L- 9657, Nov. 29, 1956) ADMINISTRATION Set of people currently running the government institution. Unitary v. Federal Form of Government UNITARY FEDERAL Powers are The central authority concentrated in one and constituent central authority and political units divide some of which are and share the power, merely delegated to where the central other units (e.g. government is focused delegated legislative on more specific power to LGUs) functions such as national defense and foreign policy. The constituent units are given more powers to develop their territories without much intervention by the central government Classification According to Legitimacy of Government De Jure Legitimate; possessing all the legal requisites of government. De facto Lacking one or more of the legal requisites of government. Types Of De Facto Governments: (VIP) Government that usurps government and maintains itself against the will of the majority by force or by Violence. Government established as an independent government by inhabitants POLITICAL LAW who rise in Insurrection against the parent state. Government established and maintained by military forces which invade or occupy a territory of the enemy in the course of war; a government of Paramount force. Common Forms of Democratic Government Presidential Government is characterized by a separation of powers among the Legislative, Executive, and Judiciary. Thi em embodie in erdependence b epara ion and coordina ion. The head of State is the President, who likewise presides over the Executive Department. Parliamentary Government characterized by in erdependence b in egra ion. Here, the ministers of the executive branch get their democratic legitimacy from the legislature and are accountable to that body, such that the executive and legislative branches are intertwined. Essential Features of a Parliamentary System of Government (SCRePS) Members of government, or the cabinet, or the executive are as a rule, simultaneously members of the legislature. The government or cabinet is in effect a committee of the legislature. Both government and legislature possess control devices with which each can demand of the other immediate political responsibility. The government or cabinet has a pyramidal structure at the apex of which is the Prime Minister or his equivalent. Government or cabinet stays in power only so long as it enjoys the support of the majority of the legislature. Page 10 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 LEGISLATURE po er o e erci e a o e of no confidence (cen re) hereb go ernmen ma be ousted. EXECUTIVE power to dissolve the legislature and call for new elections. Traditional Classification of Government Functions 1. Constituent Compulsory functions which constitute the very bonds of society. Examples: Keeping order and providing protection to persons and property Fixing of legal relations between husband and wife, parents and children Regulation of the holding, transmission, interchange of property; determination of liabilities for debt or crime Determination of contract rights between individuals Definition and punishment of crime Administration of justice in civil cases Determination of political duties, privileges, and relations of citizens Dealings of the State with foreign powers: preservation of the State from external danger or encroachment and advancement of international interest POLITICAL LAW unrealistic, not to say obsolete. The areas which used to be left to private enterprise and initiative and which the government was called upon to enter optionally, and only "because it was better equipped to administer for the public welfare than is any private individual or group of individuals," continue to lose their well-defined boundaries and to be absorbed within activities that the government must undertake in its sovereign capacity if it is to meet the increasing social challenges of the times. (ACCFA v. CUGCO, G.R. No. L-21484, Nov. 29, 1969) - end of topic - 2. Ministrant Discretionary or optional functions intended to achieve a better life for the community. Principles to Determine Whether or Not Government Should Exercise Ministrant Functions: Government should do for the public welfare those things which private capital would not naturally undertake. Government should do those things which by its nature it is better equipped to administer for the public welfare than is any private individual or group of individuals. The growing complexities of modern society, however, have rendered this traditional classification of the functions of government quite Page 11 of 568 BASIC CONCEPTS Political Law ATENEO CENTRAL BAR OPERATIONS 2020/21 II. BASIC CONCEPTS TOPIC OUTLINE UNDER THE SYLLABUS: II. BASIC CONCEPTS A. DECLARATION OF PRINCIPLES AND STATE POLICIES POLITICAL LAW A. DECLARATION OF PRINCIPLES AND STATE POLICIES Principles Binding rules which must be observed in the conduct of government Policies Guidelines for the orientation of the state B. SOVEREIGNTY C. STATE IMMUNITY D. SEPARATION OF POWERS E. CHECKS AND BALANCES F. DELEGATION OF POWERS G. FUNDAMENTAL POWERS OF THE STATE 1. POLICE POWER 2. EMINENT DOMAIN 3. TAXATION Generally Accepted Principles of International Law Principles based on natural justice common to most national systems of law Examples: 1. The right of an alien to be released on bail while awaiting deportation when his failure to leave the country is due to the fact that no country will accept him (Mejoff v. Director of Prisons, G.R. No. L-4254, Sept. 26, 1951). 2. The right of a country to establish military commissions to try war criminals (Kuroda v. Jalandoni, G.R. No. L-2662, Mar. 26, 1949). 3. The Vienna Convention on Road Signs and Signals (Agustin v. Edu, G.R. No. L49112, Feb. 2, 1979). 4. Duty to protect the premises of embassies and legations (Reyes v. Bagatsing, G.R. No. L-65366, Nov. 9, 1983). 5. Pacta sunt servanda international agreements must be performed in good faith (Tañada v. Angara, G.R. No. 118295, May 2, 1997). The Philippines renounces aggressive war as an instrument of national policy, but allows for a defensive war. Civilian Authority Article II, Section 3 of the Constitution states that [c]i ilian a hori i , a all ime , preme o er he 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 he na ional erri or . Page 13 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 Civilian Authority - The head of the armed forces is a civilian president and the primary purpose of AFP is to serve and protect the people. Mark of Sovereignty - Positively, the military is the guardian of the people and of the integrity of the national territory and therefore ultimately of the majesty of the law. Negatively, it is an expression against military abuses. Freedom from Nuclear Weapons DOES NOT PROHIBITS PROHIBIT Possession, control Peaceful use and manufacture of nuclear energy nuclear weapons; nuclear arms tests of Exception to policy against nuclear weapons may be made by political departments, but must be justified by demands of national interest. Social Justice The State shall promote social justice in all phases of national development. Social Justice has been defined as the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated (Calalang v. Williams, G.R. No. 47800, Dec. 2, 1940). Protection of the Life of the Unborn It is not an assertion that the unborn is a legal person. It is not an assertion that the life of the unborn is placed exactly on the same level of the life of the mother. Hence, when it is necessary to save the life of the mother, the lie of the unborn may be sacrificed. The Roe v. Wade doctrine allowing abortion up to the 6th month of pregnancy cannot be adopted in the Philippines human lives are sacred from the moment of conception, and that destroying those new lives is never licit, no matter what the purported good outcome would be. (Imbong vs. Ochoa, G.R. No. 204819, April 8, 2014) Right to a Balance and Healthful Ecology The right to a balanced and healthful ecology is not less important than any of the civil and political rights enumerated in the Bill of Rights. The right to a balanced and healthful ecology carries with it an intergenerational responsibility to care for and protect the environment (Oposa v. Factoran, G.R. No. 101083, Jul. 30, 1993). In environmental cases, the precautionary principle is used when there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect. The precautionary principle, as a principle of last resort, shifts the burden of evidence of harm away from those likely to suffer harm and onto those desiring to change the status quo. (International Service for the Acquisition of Agri-Biotech v. Greenpeace, G.R. No. 209271, Dec. 8, 2015) Elements for the Application of Precautionary Principle: (UPP) Uncertainty Possibility of irreversible harm Possibility of serious harm (International Service for the Acquisition of AgriBiotech v. Greenpeace, G.R. No. 209271, Dec. 8, 2015) Standing to file an action for violation of environmental laws The enactment of the Rules of Procedure for Environmental Cases enabled litigants enforcing environmental rights to file their cases as citizen suits. It liberalized standing for all cases filed enforcing environmental laws and collapses the traditional rule on personal and direct interest, based on the principle that humans are stewards of nature. The need to give animals legal standing in environmental cases has been eliminated by the Rules since any Filipino citizen, as a steward of nature, is allowed to bring a suit to enforce environmental laws. (Resident Marine Mammals v. Reyes, G.R. No. 180771, Apr. 21, 2015) Requisites for the Issuance of Writ of Kalikasan (CPE) Page 14 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 1. There is an actual or threatened violation of the Constitutional right to a balance and healthful ecology; 2. The actual or threatened violation arises from an unlawful act or omission of a Public official or employee, or private individual or entity; 3. The actual or threatened violation involves or will lead to an Environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities of provinces. (LNL Archipelago Minerals Inc v. Agham Party List, GR 209165, Apr. 12, 2016) B. SOVEREIGNTY Elements of a State (GSPoT) Government - 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 Sovereignty - power of the State to regulate matters within its own territory Population - community of persons sufficient in number and capable of maintaining the continued existence of the community and held together by a common bond of law. Territory - a definite area over which the State exercises sovereign jurisdiction POLITICAL LAW Auto-Limitation I i o be admi ed ha an a e ma , b its consent, express or implied, submit to a restriction of its sovereign rights. There may thus be a curtailment of what otherwise is a power plenary in character. That is the concept of sovereignty as auto-limitation, which, in the succinct language of Jellinek, "is the property of a state-force due to which it has the exclusive capacity of legal selfdetermination and self-restriction." A state then, if it chooses to, may refrain from the exercise of what o her i e i illimi able compe ence. (People v. Gozo, G.R. No. L-36409, Oct. 26, 1973) Note: Even though the country allows a foreign power to participate in the exercise of jurisdictional right over certain portions of its territory, such areas do not become impressed with alien character but rather, it retains its status as native soil. (Id) Limited by International Law and Treaties B heir inheren na re, rea ie reall limi or restrict the absoluteness of sovereignty. By their voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits gran ed b or deri ed from a con en ion or pac . (Tanada v. Angara, G.R. 118295, May 2, 1997). C. STATE IMMUNITY BASIS: Art. XVI, Sec. 3: The state may not be sued without its con en . This is based on the principle of equality of states par in parem non habet imperium. Definition of Sovereignty The supreme and uncontrollable power inherent in a State by which that State is governed. (Nachura, Outline Reviewer in Political Law, 2015) Doctrine of State Immunity It refers to a principle by which a state, its agents, and property are immune from the jurisdiction of another state (MAGALLONA). Two types of Sovereignty 1. Political Sovereignty - the supreme power to make laws 2. Legal Sovereignty - the sum total of all the influences in a state, legal and nonlegal, which determine the course of law. (Bernas, The 1987 Constitution of the Republic of the Philippines: A commentary, 2009 ) Principle of Equality of States This principle is premised on the juridical equality of states, according to which a state may not impose its authority or extend its jurisdiction to another state without the consent of the latter through a waiver of immunity. Thus, domestic courts must decline to hear cases against foreign Page 15 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 sovereigns out of deference to their role as sovereigns. Kinds of Immunity Absolute sovereign immunity - where a state cannot be sued in a foreign court no matter what the act it is sued for; Restrictive sovereign immunity - where a state is immune from suits involving governmental actions (jure imperii), but not from those arising from commercial or non-governmental activity (jure gestionis). Summary General rule The State cannot be sued. Exception The State consents to be sued. How a State gives its consent 1. Express consent a. General Law b. Special Law 2. Implied consent a. When the State commences litigation, it becomes vulnerable to a counterclaim; (US v. Guinto, G.R. No. 76590, Feb. 26, 1990) b. State enters into a business contract (thus exercising proprietary functions); (Id.) c. When it would be inequitable for the State to invoke immunity; d. In eminent domain cases. State's Business Contracts A S a e commercial ac i i i a de cen o he level of individuals and there is a form of tacit consent to be sued when it enters into business contracts with others. However, not every contract entered into is a form of tacit consent to be sued. It depends upon whether the foreign state is engaged in the activity in the regular course of business. If not, or if it is in pursuit of a sovereign activity, it falls within the exemption of acts jure imperii especially when not intended for gain or profit. POLITICAL LAW A party who feels transgressed by anyone claiming immunity may ask his own government to espouse his cause through diplomatic channels. Extent of Immunity Immunity from jurisdiction is enjoyed by both the head of State and by the State itself. The State's diplomatic agents, including consuls to a certain extent, are also exempt from the jurisdiction of local courts and administrative tribunals. Restrictive Application of State Immunity This traditional rule of State immunity which exempts a State from being sued in the courts of another State without the former's consent or waiver has evolved into a restrictive doctrine which distinguishes sovereign and governmental acts (Jure imperii) from private, commercial and proprietary acts (Jure gestionis). Under the restrictive rule of State immunity, State immunity extends only to acts jure imperii. The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs (Arigo v. Swift, G.R. No. 206510, Sept. 16, 2014). Scope of State Immunity Jure Imperii - Immunity is granted only with respect to their governmental acts Jure Gestionis - Immunity is not granted with respect to their commercial acts Difference between Jure Gestionis and Jure Imperii JURE GESTIONIS JURE IMPERII By right of economic or By right of sovereign business relation power, in the exercise of sovereign functions May be sued May not be sued Two Conflicting Concepts of Sovereign Immunity: 1. Classical or absolute theory sovereign cannot, without its consent, be made a respondent in the courts of another sovereign. Page 16 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 2. Newer or restrictive theory the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state but not with regard to private acts or acts jure gestionis. A certification executed by the Economic Commercial Office of the Embassy of the People Republic of China stating that a project is in pursuit of a sovereign activity is not the kind of certification that can establish entitlement to immunity from suit. It unequivocally refers to the determination of the Foreign Office of the state where it is used (China National Machinery Equipment v. Santa Maria, G.R. No. 185572, Feb. 7, 2012). When Suit is Considered against the State: (NUO) The Republic is sued by Name Suits against an Unincorporated government agency Suit is against a government Official, but is such that ultimate liability shall devolve on the government It produces adverse consequences to the public treasury in terms of disbursement of public funds and loss of government property. It cannot prosper unless the State has given its consent. When Not against the State It was held that the suit is not against the State: 1. When the purpose of the suit is to compel an officer charged with the duty of making payments pursuant to an appropriation made by law in favor of the plaintiff to make such payment, since the suit is intended to compel performance of a ministerial duty (Begosa v. PVA, G.R. No. L-25916, Apr. 30, 1970); 2. When from the allegations in the complaint, it is clear that the respondent is a public officer sued in a private capacity; 3. When the action is not in personam with the government as the named defendant, but an action in rem that does not name the government in particular POLITICAL LAW Test to Determine if Suit is against the State Will the enforcement thereof (decisions rendered against the public officer or agency impleaded) require an affirmative act from the State, such as the appropriation of the needed amount to satisfy the judgment? If so, then it is a suit against the State. (Sanders v Verdiano, G.R. No. L-46930, June 10, 1988) Duration of Immunity of Head of State Immunity of head of state for private acts lasts while a person is still in office; for public acts, even after office. Consent to be Sued is Given by the State either EXPRESSLY or IMPLIEDLY EXPRESS The law expressly grants the authority to sue the State or any of its agencies. a. General Law: Authorizes any person who meets the conditions stated in the law to sue the government in accordance with the procedure in the law (e.g. money claims arising from contract express or implied, liability of local government units for torts) b. Special Law: may come in the form of a private bill authorizing a named individual to bring a suit on a special claim. IMPLIED (C BIP) a. When the State Commences litigation, it becomes vulnerable to counterclaim b. When the State enters into a Business contract (in jure gestionis or proprietary functions) c. When it would be Inequitable for the State to invoke its immunity d. In instances when the State takes private property for Public use or purpose (Eminent Domain) Specific Rules a. When State Commences Litigation Exception: When the State intervenes not for the purpose of asking for any affirmative relief, but only for the purpose of resisting the claim precisely because of immunity from suit (Lim v Brownell, GR No. L-8587, Mar 24 1960) Page 17 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 b. When State enters a Business Contract Types of Capacity of the State in entering into contracts: 1. Acta jure gestionis - by right of economic or business relations; commercial or proprietary acts. The State may be sued (US v. Guinto, GR. No. 76607, Feb. 26, 1990) 2. Acta jure imperii - by right of sovereign power and in the exercise of sovereign functions; there is no implied consent to be sued (US v. Ruiz, GR No. 35645, May 22, 1985) c. When State Executes and Enters Private Contracts General Rule: The State may be sued if a private contract is entered into by the proper office and within the scope of his authority. Exception: When the private contract is incidental to the performance of a government function Suits against Public Officers General Rule: The doctrine of state immunity also applies to complaints filed against officials of the State for acts performed by them in the discharge of their duties within the scope of their authority. Exception: The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his: 1. private and personal capacity as an ordinary citizen 2. for acts without authority or in excess of the powers vested in him. (Lansang v. CA, G.R. 102667, Feb. 23, 2000) Rule on Liability of Public Officers (SGU) 1. Acting beyond Scope of Authority: When a public officer acts in bad faith, or beyond the scope of his authority, he can be held personally liable for damages. 2. Acting in Good Faith: If a public officer acted pursuant to his official duties, without malice, negligence, or bad faith, he is not personally liable, and the suit is really one against the State POLITICAL LAW 3. Ultra Vires Act: Where a public officer has committed an ultra vires act, or where there is showing of bad faith, malice, or gross negligence, the officer can be held personally accountable even if such acts were claimed to have been performed in connection with official duties (Wylie v. Rarang, G.R. No. 74135, May 28, 1992). Suits against Government Agencies 1. Incorporated: If the charter provides that the agency can sue and be sued, then suit will lie, including one for tort. The provision in the charter constitutes express consent on the party of the State to be sued (PNB v. CIR, G.R. No. L-32667, Jan 31, 1978) 2. Unincorporated: a. Performs governmental functions: Cannot be without State consent even if performing proprietary function incidentally. Thus, even in the exercise of proprietary functions, an unincorporated agency still cannot be sued without its consent b. Performs proprietary functions: Can be sued except when the proprietary functions are indispensable in the discharge of its governmental functions (Mobil PHL Exploration v. Customs Arrastre Service, GR No. 23139, Dec 17, 1966) Case Law Exceptions when State/Public Officer May Be Sued without Prior Consent (RUPJuG) 1. To compel him to do an act Required by law; 2. To restrain him from enforcing an act claimed to be Unconstitutional 3. To compel the Payment of damages from an already appropriated assurance fund or to refund tax overpayments from a fund already available for the purpose; 4. To secure a Judgement that the officer impleaded may satisfy by himself without the State having to do a positive act to assist him; 5. Where the Government itself has violated its own laws. (Sanders v Verdiano, G.R. No. L-46930, Jun 10, 1988) Page 18 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Rules regarding Garnishment of Government Funds General Rule: Garnishment of government funds is not allowed. Whether the money is deposited by way of general or special deposit, they remain government funds and are not subject to garnishment. Exceptions: 1. Where a law or ordinance has been enacted appropriating a specific amount to pay a valid government obligation, then the money can be garnished 2. If the funds belong to a public corporation or a GOCC which is clothed with a personality of its own, then the funds are not exempt from garnishment (NHA v. Guivelando, G.R. No. 154411, Jun 19, 2003) To enforce monetary decisions against the Government, a person may file a claim with the Commission on Audit. It is settled jurisprudence that upon determination of State liability, the prosecution, enforcement, or satisfaction thereof must still be pursued in accordance with the rules and procedures laid down in P.D. No 1445 (Government Auditing Code of the Philippines). All money claims against the Government must first be filed with the Commission on Audit, which must act upon it within 60 days. Rejection of the claim will authorize the claimant to elevate the matter to the Supreme Court on certiorari and in effect, sue the State thereby (Department of Agriculture v NLRC, G.R. No 104269, Nov. 11, 1993; PD 1445, § 49-50) Consent to be Sued is Not Equivalent to Consent to Liability - The fact that the State consented to being sued does not mean that the State will ultimately be held liable (US v. Guinto, G.R. 76607, Feb. 26, 1990) - Even if the case is decided against the State, an award cannot be satisfied by writs of execution or garnishment against public funds. No money shall be paid out of the public treasury unless pursuant to an appropriation made by law POLITICAL LAW Payment of interest by the Government in Money Judgment Against it: General Rule: Government cannot be made to pay interests Exceptions (EEG): 1. Eminent domain 2. Erroneous collection of tax 3. Government agrees to pay interest pursuant to law Immunity from Jurisdiction General rule: The jurisdiction of a state within its territory is complete and absolute Exceptions (SDH): 1. Sovereign immunity 2. Diplomatic immunity 3. Hostis Humanis Generis - enemy of all mankind or crimes justiciable by any state anywhere e.g. piracy (Filartiga v. Pena-Irala, 630 F.2d 876, 1980) Acts of State Immunity Every state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves This immunity is for the benefit of the State. Thus, only the state may waive it. Nothing in the complaint would require a court to pass judgment on any official act of the Philippine government. Just as raising the specter of political issues cannot sustain dismissal under the political question doctrine, neither does a general invocation of international law or foreign relations mean that an act of state is an essential element of a claim. It cannot be thought that every case touching foreign relations lies beyond judicial cognizance. (Provincial Government of Marinduque v. Placer Dome, Inc G.R. No. 07-1630, 2009) Page 19 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 The commission of a crime by a state official, which is an international crime against humanity and jus cogens, is NOT an act done in an official capacity on behalf of the state. As a matter of general customary international law, a head of state will PERSONALLY be liable to account if there is sufficient evidence that he authorized or perpetrated serious international crimes. Individuals who commit international crimes are internationally accountable for them. General Rule: Any person who in performing an act of the state, commits a criminal offense is immune from prosecution. This applies not only to ex-heads of state and ex-ambassadors but to all state officials who have been involved in carrying out the functions of the state (Immunity Ratione Materiae/Functional Immunity - Imm ni of he official ) Exception: Functional Immunity of state officials of the foreing state could no longer be invoked in cases of international crimes (Regina v. Bartle and the Commissioner of Police, “Pinochet Case”) Exception to the Exception: When the case is brought against the State itself for liability to damages (e.g. civil proceedings against a state), the rationale for the judgment in the Pinochet case has no bearing. Note: A state is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict. The court distinguished between immunity and substantive jus cogens rules of international law and held that a finding of immunity does not equal a finding that a state did not owe reparations (Jurisdictional Immunities of the State: Germany v. Italy, 2012). POLITICAL LAW preventing one from invading the domain of the others, but the separation is not total. The principle of separation of powers ordains that each of the three great government branches has exclusive cognizance of and is supreme in concerns falling within its own constitutionally allocated sphere; e.g., the judiciary as Justice La rel empha icall a er ed ill nei her direc nor re rain e ec i e [or legi la i e] ac ion (Republic v. Bayao, G.R. No. 179492, Jun 5, 2013). E. CHECKS AND BALANCES A system operating between and among the three branches of government the net effect of which is that no one department is able to act without the cooperation of at least one of the other departments. Examples: - Legislation in the form of an enrolled bill needs final approval from the President to become a law; - President must obtain the concurrence of Congress to complete certain acts (e.g. granting of amnesty); - Money can be released from the Treasury only by authority of Congress; - Appropriation, revenue, tariff, increases in public debt and private bills originate in House of Representatives; - SC can declare acts of Congress or the Executive unconstitutional. F. DELEGATION OF POWERS D. SEPARATION OF POWERS General Rule: Legislative power is vested in Congress which consists of the Senate and the House of Representatives by the sovereign Filipino people. Congress cannot delegate its legislative power under the maxim delegata potestas non potest delegari (delegated power may not be delegated). An allocation of the three great powers of government in the following manner: legislation to Congress, execution of laws to the Executive, and settlement of legal controversies to the Judiciary. It is also an implicit limitation on their powers, Exceptions: (PLATE) 1. Delegation to the People To the extent reserved to the people by the provision on initiative and referendum. Page 20 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 2. Delegation to Local Government Units Local legislative bodies are allowed by our Constitution to legislate on purely public matters. Since what was given to local legislative bodies are not power to make rules and regulations but legislative power, the rules on valid delegation do not apply. However, when what is given to local legislative body is executive power, the rules applicable to the empowerment of administrative agencies also become applicable (Rubi v. Provincial Board, G.R. No. L-14078, March 7, 1919). - The BPO issued by the Punong Barangay is not an undue delegation of legislative power for it merely orders the perpetrator to desist from (a) causing physical harm to the woman or her child; and (2) threatening to cause the woman or her child physical harm. Such function of the Punong Barangay is purely executive in nature, in pursuance of his duty under the LGC to enforce all la and ordinance , and o main ain p blic order in he baranga . (Garcia v. Drilon, G.R. No. 179267, June 25, 2013) 3. Delegation of Rule-Making Power to Administrative Bodies power to issue supplementing rules and regulations provided that the delegation must be complete and must prescribe sufficient standards. It also includes the determination of the presence of the conditions for the law to take effect. - Rationale: o Increasing complexity of the task of government o Lack of technical competence on the part of Congress to provide for specific details of implementation o Administrative agencies may fill up details of the statute for implementation o Legi la re ma pa con ingen legi la ion hich lea e o ano her body the business of ascertaining facts necessary to bring the law into action (ABAKADA v. Ermita, G.R. No. 168056, Sept 1, 2005). - - - - If there was a valid delegation, administrative rules and regulations are just binding as if it was written in the law. Administrative agencies may not issue regulations that contravene the law (Solicitor General v. Metro Manila Authority, G.R. No. 102782, Dec 11, 1991) nor may they add to the standards set by law (Tatad v. Secretary of Energy, G.R. No. 124360, Nov. 5, 1997). Administrative rules and regulations may be penal in nature provided that: - such a violation is made a crime by the delegating law; - penalty of such is provided in the statutes - the regulation is published. Powers of Congress which are not to be delegated are those that are strictly or inherently legislative. Purely legislative power is the authority to make a complete law - complete as to the time it shall take effect or to whom it shall be applicable and to determine the expediency of the enactment 4. Tariff Powers - Art. VI, § 28(2) authorizes Congress to delegate to the President the power to fix tariff rates, import and export quotas, tonnage, wharfage dues, and other duties and impost. 5. Emergency Powers - Art. VI, § 23(2) authorizes Congress to give the President the power necessary and proper to carry out a declared national policy in times of war or other national emergency pursuant to law. Test of Valid Delegation 1. Completeness Test The law must state the policy that must be carried out or implemented and leave no room for the delegate to legislate; nor allow discretion on their part to say what Page 21 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 the law is; there must be nothing left for the delegate to do but to enforce the law. 2. Sufficiency of Standard The limits are sufficiently determinate and determinable to which the delegate must conform in the performance of his actions. Examples: i. Public interest (People v. Rosenthal, G.R. Nos. L-46076 and L-46077, Jun. 12, 1939). ii. Fair and equitable employment practices (Eastern Shipping Lines v. POEA, supra) iii. Justice and equity iv. Public convenience and welfare v. Simplicity, economy, and efficiency. Note: Standards may be expressed or implied from the law taken as a whole (Edu v. Ericta, G.R. No. L32096, Oct. 24, 1970). They can even be gathered in another statute of the same subject matter (Chongbian v. Orbos, G.R. No. 96754, June 6, 1995). A law allowing a judge to inflict punishment of imprisonment in its discretion without any designated limits is invalid. (People v. Dacuycoy, G.R. No. L-45127, May 5, 1989). Section 8 of PD 910 regarding the Malampaya f nd pro ide : all fee , re en e and receip nder he Pe role m Ac of 1949; a ell a he go ernmen hare hall form par of a special fund to be used to finance energy resource development and exploitation programs and projects of the government and for such other purposes as may be hereafter provided by the Pre iden . This is not a valid delegation of legislative power. The provision constitutes an undue delegation of legislative power insofar as it does not lay down a sufficient standard to adeq a el de ermine he limi of he Pre iden authority (Belgica v. Ochoa, G.R. No. 208566, Nov. 19, 2013). Congress can only delegate, usually to administrative agencies, rule-making power or POLITICAL LAW law execution. This involves either of two tasks for the administrative agencies: - Subordinate Legislation: Filling up the details of an otherwise complete statute; or - Contingent Legislation: Ascertaining the fac nece ar o bring a con ingen la or provision into actual operation. Any post-enactment congressional measure should be limited to scrutiny and investigation. In particular, congressional oversight must be confined to the following: (SAHM) · Scr in ba ed primaril on Congre power of appropriation and the budget hearings conducted in connection with it · Its power to ask heads of departments to Appear before and be Heard by either of its Houses on any matter pertaining to their departments and its power of confirmation and investigation · Monitoring of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. Legislative vetoes fall in this class (Abakada v. Purisima, G.R. No. 166715, Aug. 14, 2008). Reorgani a ion in ol e he red c ion of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of f nc ion . The general r le ha al a been that the power to abolish a public office is lodged with the legislature. The exception, however, is that as far as bureaus, agencies or offices in the executive depar men are concerned, he Pre iden po er of control may justify him to inactivate the functions of a particular office, or certain laws may grant him the broad authority to carry out reorganization measures (Malaria Employees v. Romulo, G.R. 160093, Jul 31, 2007). G. FUNDAMENTAL POWERS OF THE STATE Concept, Application, and Limits Page 22 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 The totality of governmental power is contained in three great powers: police power, power of eminent domain and power of taxation. These belong to the very essence of government, without which no government can exist. A constitution does not grant such powers to government; a constitution can only define and delimit them and allocate their exercise among various government agencies. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) POLICE EMINENT TAXATION POWER DOMAIN Authority which exercises the power May be exercised only by the May be government or its political granted to subdivisions public service companies or public utilities Purpose The use of The property The property the property (generally in i aken for i reg la ed the form of public benefit, for the money) is hence, it must purpose of taken for the be promoting support of compensated the general government . welfare, hence it is not compensabl e Persons affected Usually Operates on operates an entity or an upon a individual as community the owner of a of a class of particular entities or property individuals There is no transfer of title. At most, there is a restraint on the injurious Effect The money contributed in the concept of taxes becomes part There is a transfer of the right to property whether it be ownership or use of the property The person affected receives no direct and immediate benefit but only such as may arise from the maintenance of a healthy economic standard of society and is often referred to as damnum absque injuria i.e. damage without inj r The amount imposed should not be more than sufficient to cover the cost of the license and the necessary expense of police surveillance and inspection, examination, or regulation as nearly as can be estimated of the public funds Benefit Person affected receives the equivalent of the tax in the form of protection, public improvements, and benefits he receives from the government as such. Therefore, taxation may be used as an implementatio n of police power (Lutz v. Araneta, 1955) Imposition There is generally no limit to the amount that may be imposed to a lesser right (e.g. possession) The person affected receives the full and fair market value of the property taken from him There is no amount imposed but rather the owner is paid the market value of the property taken Extent Page 23 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Regulates both liberty and property Affect only property rights 1. POLICE POWER Police Power in General - Based on public necessity and the right of the State and of the public to self-protection. For this reason, its scope expands and contracts with changing needs. (Baseco v. PCGG, G.R. No. 75885, May 27, 1987) - It is the power of the State to enacts regulations to promote the health, morals, peace and order, and welfare of the society (Ermita-Malate Hotel and Motel Operators v. City of Manila, G.R. No. L-24693, Oct. 23, 1967). The e fall nder p blic nece i - Police power has been properly characterized as the most essential, insistent and the least limitable of powers, extending as it does to all great public needs. (Id.) Requisites 1. Reasonable Subject - The subject of the measure is within the scope of police, i.e. that the activity or property sought to be regulated affects the public welfare. The interest of the public, generally as compared to a particular class requires interference by the state. 2. Reasonable Means - The means employed are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive on individuals. Both the end and the means must be legitimate (US v. Toribio, G.R. No. L-5060, Jan. 1, 1910) Nature Legislative but may be delegated to the following: - President - Administrative Bodies - Legislative Bodies of Local Government Units 2. EMINENT DOMAIN The purpose of the taking must be public use. Just compensation must be given to the private owner. POLITICAL LAW (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) The State has a paramount interest in exercising its power of eminent domain for the general welfare and that the superior right of the State to expropriate private property always takes precedence over the interest of private owners, provided that: the expropriation is for public use the exercise of the right to eminent domain complies with the guarantees of due process (Estate of JBL Reyes v. City of Manila, G.R. Nos 132431 & 137146, Feb. 13, 2004). The ma er i legi la i e, ho e er, once a hori is given to exercise the power, the matter ceases to be wholly legislative. The executive authorities may then decide whether the power will be invoked and to what extent (Republic v. Juan, G.R. No. L24740, Jul 30, 1979). It may be delegated to LGUs, other public entities and public utilities. The scope is narrower and may be exercised only when authorized by Congress, subject to its control and restraints imposed through the law conferring the power or in other legislations. Thus, the power of eminent domain delegated to an LGU is in reality not eminent but inferior. The na ional legi la re i ill he principal of the LGUs, the latter cannot go beyond he principal ill or modif he ame (Beluso v. Municipality of Panay, G.R. 153974, Aug. 7, 2006). Requisites 1. Public Use It means public usefulness, utility, or advantage or what is productive of general benefit, so that any appropriation of private property by the state under its right of eminent domain, for purposes of great advantage to the community, is a taking for public use. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009 citing Gohl Realty Co. v. Hartford, 104 A.2d 365, 368-9 Conn,. 1954). What has emerged is a concept of public use which is as broad as public welfare. The scope of the power of eminent domain has become as broad as the Page 24 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 expansive and ever expanding scope of police power itself (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) 2. Ta : EPAP-D a. Expropriator must Enter the private property b. Entrance must not be for a momentary period, must be Permanent c. Entry must be under warrant or color of legal Authority d. Property must be devoted to a Pubic use e. Utilization of property must Deprive owner of all beneficial enjoyment of the property (Republic v. Vda Castellvi, G.R. No. L20620, Aug. 15, 1974) 3. Just Compensation This includes not only the determination of the amount to be paid (market value) to the owner of the land but also the payment of the and within a reasonable period of time from its taking (Municipality of Makati v. Court of Appeals, G.R. No. 89898-99, Oct. 1, 1990). It also includes interest in case of delay. (Republic v. Court of Appeals, G.R. No. 146587, Jul 2, 2002). General Rule: The power to tax is purely legislative and it cannot be delegated Exceptions: I. As to the President Congress may, by law, authorize the President to fix within specific limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. (PHIL. CONST., art. VI, § 28, ¶ 2. ) II. As to Local Government Under the present Constitution, each local government unit is now expressly given the power to create its own sources of revenue and to levy taxes, subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy (PHIL. CONST., art. X, § 5.) A. A municipal corporation has no inherent right to impose taxes Its power to tax must always yield to a legislative act which is superior having been passed by the State itself which has the inherent power to tax (Basco v. PAGCOR, G.R. No. 91649, May 14, 1991). 3.TAXATION The power of taxation is essentially a legislative function. Taxation is an attribute of sovereignty. It is the strongest of all powers of the government. There is a presumption in favor of legislative determination. Public policy decrees that since upon the prompt collection of revenue depends the very existence of government itself, whatever determination shall be arrived at by the legislature should not be interfered with, unless there be a clear violation of some constitutional inhibition (Sarasola v. Trinidad, G.R. No. 14595, Oct. 11, 1919). The legislature is free to select the subjects of taxation and it may determine within reasonable bounds what is necessary for its protection and expedients for its promotion (Lutz v. Araneta, G.R. No. L -7859, Dec. 22, 1955). III. As to Administrative Agencies When the delegation relates merely to administrative implementation which may call for some degree of discretionary powers under a set of sufficient standards expressed by law (Maceda v. Macaraig, G.R. No. 88291, May 31, 1993) - end of topic - Page 25 of 568 NATIONAL TERRITORY Political Law ATENEO CENTRAL BAR OPERATIONS 2020/21 III. NATIONAL TERRITORY Provision on National Territory The National Territory comprises the Philippine Archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimension, form part of the internal waters of the Philippines (PHIL. CONST., art. I, § 1) Purpose of Article I a) Initially it was to prevent the US from dismembering the Philippines, an acceptance by the US President of the Constitution would oblige the US to keep the integrity of the Philippine territory. b) Now, it is to determine the State’s jurisdiction over which it can exercise its sovereignty. The government can exercise its power over those areas included in the national territory and citizens must respect that. At the same time, citizens could demand its rights from the government under those areas. Note: It is only a municipal or local law. The constitution is not definitive to claims of other states. But it has value, if in history, no one questions it, we can rely on the fact that it has not been challenged but it does not stop others from claiming it. Archipelagic Doctrine A body of water studded with islands, or the islands surrounded with water, is viewed as a unity of islands and waters together forming one integrated unit. [N.B. Embodied in Art. II, specifically by the mention of the “Philippine archipelago” and the specification on “internal waters.”] Application to the Philippines The waters around, between, and connecting the islands of the archipelago, regardless of their POLITICAL LAW breadth and dimensions, form part of the internal waters of the Philippines. (PHIL. CONST., art. I, § 1) Treaty limits of the Philippine archipelago (1) Treaty of Paris of 10 December 1898: Spain cede o he Uni ed S a e he archipelago known as the Philippines Islands, and comprehending the islands l ing i hin he follo ing line Ar icle 3 of he said treaty defines the metes and bounds of the archipelago by longitude and latitude, degrees and seconds. Technical descriptions are made of the scope of the archipelago as this may be found on the surface of the earth. (2) Treaty of Washington of 7 November 1900 between the United States and Spain: Ceding Cagayan, Sibuto and Sulu. (3) Treaty of 12 January 1930 between the United States and Great Britain: Ceding the Turtle and Mangsee Islands. [BERNAS (2003), cited in Justice Velasco’s concurring opinion in Magallona v. Ermita (2011)]. Composition of National Territory 1. Philippine Archipelago, with all the islands and waters embraced therein; 2. Internal Waters: waters around, between and connecting the islands of the archipelago, regardless of breadth and dimension; and 3. All other territories over which the Philippines has sovereignty or jurisdiction It consists of: 1. Territorial sea, seabed, subsoil, insular shelves, and other submarine areas 2. Terrestrial, fluvial, and aerial domains Concept of Innocent Passage Passage through territorial waters which is neither prejudicial to the interests of the coastal state nor contrary to recognized principles of international law. Example: Entry into territorial waters by a cruise ship. Page 27 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 Future Acquisitions Territory included in National The clause includes any territory presently belonging or those that might in the future belong to the Philippines through any of the accepted international modes of acquiring territory. Territories belonging to Philippines by historic right or title The clause also includes what was referred to under the 1973 Constitution as territories belonging o he Philippine b hi oric righ or legal i le, ha i , erri orie hich, depending on available evidence, might belong to the Philippines (e.g., Sabah, the Marianas, Freedomland) (Bernas, Constitutional Rights and Social Demands, 8, 2010). Under Ar icle 3 of he UNCLOS, e er a e ha the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from he ba eline Contiguous Zone It is an area of water which extends up to 24 nautical miles from the baseline (12 nautical miles from the Territorial Sea). Although not part of the territory, the coastal State may exercise jurisdiction to prevent infringement of customs, fiscal, immigration, or sanitary laws. Exclusive Economic Zone This refers to the body of water extending up to 200 nautical miles beyond the baseline, within which the state may exercise sovereign rights to explore, exploit, conserve, and manage the natural resources. Extended Continental Shelf Portion of the continental shelf that lies beyond the 200 nautical mile limit. A coastal state may establish a continental shelf beyond the 200 nautical miles from its coastline. The coastal State may establish the outer limits of its juridical continental shelf wherever the continental margin extends beyond 200 nautical miles by establishing the foot of the continental slope, by meeting the requirements of Article 76, paragraphs 4-7, of the UNCLOS. The Philippine archipelago and all other territories consist of the following domains: (TAFA) 1. Terrestrial 2. Aerial 3. Fluvial 4. All other territories outside archipelago over which RP has sovereignty or jurisdiction Normal Baseline Method The baseline is drawn following the low-water line along the coasts as marked on large-scale charts officially recognized by the coastal State. This line follows the sinuosities of the coast and therefore would normally not consist of straight lines (Section 5, 1982 LOS; Bernas, 1987 Philippine Constitution: A Commentary, 23, 2009). Straight Baseline Method Consists of drawing straight lines connecting appropriate points on the coast without departing to any appreciable extent from the general direction of the coast, in order to delineate the internal waters from the territorial waters of an archipelago. The Baseline Law (R.A. 9522, 2009) R.A. No. 9522 amended R.A. No. 3046, entitled "An Act to Define the Baselines of the Territorial Sea of the Philippines;" specified that baselines of Kalayaan Group of Islands and Bajo de Masinloc (Scarborough Shoal) shall be determined as Regime of I land nder he Rep blic of he Philippines, consistent with the UNCLOS. R.A. No. 9522 is constitutional: (a) It is a statutory tool to demarcate the maritime zone and continental shelf of the Philippines under UNCLOS III, and does not alter the national territory. Baselines laws are nothing but statutory mechanisms for UNCLOS III state parties to delimit with precision the extent of their maritime zones and continental shelves. The law has nothing to do with acquisition, enlargement, or diminution of territory, as States may Page 28 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 only acquire (or lose) territory through the following modes: (CAPO) Cession, Accretion, Prescription, and Occupation (Magallona v. Ermita, G.R. No. 187167, 2011). (b) The law also does not abandon the co n r claim to Sabah, as it does not expressly repeal the entirety of R.A. No. 5446. (Magallona v. Ermita, G.R. No. 187167, Jul. 16, 2011) The law also does not convert internal waters into archipelagic waters (which allow the right of innocent passage). The Philippines still exercises sovereignty over the body of water lying landward of the baselines including the air space over it and the submarine areas underneath. The political branches of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage (Magallona v. Ermita, G.R. No. 187167, Jul. 16, 2011). The Baselines Law does not abandon the Philippine claim o er Sabah nder RA 5446. The definition of the baselines of the territorial sea of the Philippine Archipelago is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Philippines has acquired dominion and sovereignty (R.A. No. 556, § 2). CONTINENTAL SHELF Submerged prolongation of the land territory Sovereign rights of exploration and exploitation of living and non-living resources of the seabed Regime of Islands Under Article 121 of the UNCLOS III, any naturally formed area of land surrounded by water, which is above water at high tides, qualifies under the ca egor of regime of i land ho e i land generate their own applicable maritime zones (e.g., Kalayaan Islands and Scarborough Shoal). Kalayaan Islands has its own Territorial Sea, Contiguous Zone, and Exclusive Economic Zone. - BUT Scarborough Shoal ONLY has a Territorial Sea and Contiguous Zone. - There can be a Continental Shelf without an EEZ, but not an EEZ without a Continental Shelf. - end of topic - Maritime Zones TERRITORIAL SEA 12 nautical miles from baselines Absolute Sovereignty CONTIGUOUS ZONE 24 nautical miles from baselines Enforcement of customs, fiscal, immigration, sanitation laws EXCLUSIVE ECONOMIC ZONE 200 nautical miles from baselines Exploitation of living and non-living resources Page 29 of 568 CITIZENSHIP Political Law ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 A. KINDS OF CITIZENSHIP IV. CITIZENSHIP TOPIC OUTLINE UNDER THE SYLLABUS IV. CITIZENSHIP A. KINDS OF CITIZENSHIP, PURPOSE OF DISTINGUISHING CITIZENSHIP AND KINDS OF CITIZENSHIP 1. Natural born citizens 2. Naturalized citizens Who are Natural Born Citizens 1. Those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship (PHIL CONST., art. IV, § 2) B. WHO ARE CITIZENS C. WHO CAN BE CITIZENS D. MODES OF ACQUIRING CITIZENSHIP E. MODES OF LOSING AND REACQUIRING CITIZENSHIP 1. LOSING CITIZENSHIP 2. REACQUIRING CITIZENSHIP F. DUAL CITIZENSHIP ALLEGIANCE AND DUAL Ha ing to perform an ac means that the act must be personally done by the citizen. (PoeLlamanzares v. COMELEC, G.R. No. 221697, March 8, 2016) 2. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority (PHIL CONST., art. IV, § 2) 3. Those who were repatriated and were originally natural born citizens (Bengzon v. HRET, G.R. No. 142840, May 7, 2001) Who are Naturalized Citizens Foreigners adopted into the political body of a nation and clothed with the privileges of a citizen. (So v. Republic, G.R. No. 170603, Jan. 29, 2007) Natural Born Citizens v. Naturalized Citizens In general, the law cannot treat Natural Born Citizens and those who were naturalized differently except in the instances where the Constitution itself makes a distinction. Otherwise there would be a violation of the equal protection clause. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Page 31 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 Natural born citizens v. Naturalized Citizens NATURAL BORN NATURALIZED CITIZENS CITIZENS Article IV, Section 2 One who is not natural-born citizen As one who is a citizen of the They are former aliens Philippines "from birth or foreigners who had without having to to undergo a rigid perform any act to procedure, in which acquire or perfect they had to adduce Philippine sufficient evidence to citizenship." (i .e., did prove that they not have to undergo possessed all the the process of qualifications and naturalization to none of the obtain Philippine disqualifications citizenship) provided by law in order to become Filipino citizens. Requirements: Generally required to file a verified petition. He or she must establish, among others, that he or she is of legal age, is of good moral character, and has the capacity to adapt to Filipino culture, tradition, and principles, or otherwise has resided in the Philippines for a significant period of time. Further, the applicant must show that he or she will not be a threat to the state, to the public, and to the Filipinos' core beliefs. Natural Born Citizens & Public Office Under the Constitution, the following must be natural-born citizens: 1. President (PHIL CONST., art. VII, § 2) 2. Vice-President (PHIL CONST., art. VII, § 3) 3. 4. 5. 6. 7. 8. Members of Congress (PHIL CONST., art. VI § 3 & 6) Justices of SC and lower collegiate courts (PHIL CONST., art. VIII, § 7(1)) Ombudsman and his deputies (PHIL CONST., art. XI, § 8) Members of Constitutional Commissions: a. CSC (PHIL CONST., art. IX-B, §1(1)) b. COMELEC (PHIL CONST., art. IX-C, §1) c. COA (PHIL CONST., art. IX-D, § 1(1)) Members of the central monetary authority (PHIL CONST., art. XII, § 20) Members of the Commission on Human Rights (PHIL CONST., art. XIII, § 17(2)) Former Filipino Citizens Running for Public Office Natural-born Filipinos who have been naturalized elsewhere and wish to run for elective public office must comply with all of the following requirements: 1. Taking the oath of allegiance to the Republic. This effects the retention or reacquisition of one's status as a natural-born Filipino. This also enables the enjoyment of full civil and political rights, subject to all attendant liabilities and responsibilities under existing laws, provided the solemnities recited in Section 5 of Republic Act No. 9225 are satisfied. 2. Making a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. This, along with satisfying the other qualification requirements under relevant laws, makes one eligible for elective public office. FOUNDLINGS Natural Born Citizens As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Con i ion enumeration is silent as to foundlings, there is no restrictive language which would definitely exclude foundlings either. No such intent or language permits discrimination against foundlings. On the contrary, all three Constitutions (1935, 1973, 1987) guarantee the basic right to equal protection of the laws. All exhort the State to render social justice. (Poe-Llamanzares v. COMELEC, G.R. No. 221697, March 8, 2016) Page 32 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 The Constitution provides for only two types of citizens: (1) natural-born, and (2) naturalized. Petitioner never had to go through the naturalization processes and has been treated as a Filipino citizen upon birth. A natural-born citizen can be identified under two approaches: (1) as a matter of constitutional interpretation that all foundlings found in the Philippines, being presumptively born to either a Filipino biological father or a Filipina biological mother, are naturalborn, unless there is substantial proof to the contrary, and (2) is the definition under Art. 6, § 1(2) of the 1987 Constitution which requires that the father or the mother is a Filipino citizen. Furthermore, the Philippines has obligated itself to defend the People against statelessness and protect and ensure the status and nationality of children immediately upon birth. Therefore, any interpretation that excludes foundlings from natural-born citizens is inconsistent with Philippine laws and treaty obligations. However, the circumstances of and during her birth lead to her paren / Filipino citizenship as the most probable inference. Aside from her being left in front of a Catholic church in a place which was populated mainly of Filipinos, Pe i ioner physical features are consistent with the physical features of many Filipinos and that the latest statistic show that in the year she was born, Petitioner had a 99.8% chance of being born a Filipino. The conclusion that Petitioner is a natural-born Filipina is based on fair and reasonable reading of constitutional provisions, statutes, and international norms having the effect of law, and on the evidence presented before the COMELEC. (Poe-Llamanzares v. COMELEC, G.R. No. 221697, 221698-70, March 6, 2018; Leonen, J., Concurring Opinion) Treaties & Status of Foundlings Congress has enacted statutes founded on the premise that foundlings are Filipino citizens at birth. It has adopted mechanisms to effect the constitutional mandate to protect children. Likewise, the Senate has ratified treaties that put this mandate into effect. POLITICAL LAW Section 4 (b) of the Republic Act No. 9344 defines the "best interest of the child" as the "totality of the circumstances and conditions which are most congenial to the survival, protection and feelings of security of the child and most encouraging to the child's physical, psychological and emotional development." Consistent with this statute is our ratification of the United Nations Convention on the Rights of the Child. This specifically requires the states-parties' protection of: first, children's rights to immediate registration and nationality after birth; second, against statelessness; and third, against discrimination on account of their birth status. The Philippines likewise ratified the 1966 International Covenant on Civil and Political Rights. As with the Convention on the Rights of the Child, this treaty requires that children be allowed immediate registration after birth and to acquire a nationality. (David v. SET, G.R. No. 221538, Sept. 20, 2016) Presumption that Foundlings Are Natural Born The presumption that all foundlings found in the Philippines are born to at least either a Filipino father or a Filipino mother (and are thus naturalborn, unless there is substantial proof otherwise) arises when one reads the Constitution as a whole, so as to "effectuate its whole purpose. Article II, Section 13 and Article XV, Section 3 of the 1987 Constitution require the state to enhance children's well-being and to protect them from conditions prejudicial to or that may undermine their development. The assumption should be that foundlings are natural-born unless there is substantial evidence to the contrary. This is necessarily engendered by a complete consideration of the whole Constitution, not just its provisions on citizenship. (David v. SET, G.R. No. 221538, Sept. 20, 2016) Foundlings v. Natural Born Citizens Concluding that foundlings are not natural-born Filipino citizens is tantamount to permanently discriminating against our foundling citizens. Art II, Sec. 26 and Art III Sec. 1 guarantees equal protection of the laws and equal access to opportunities for public service, respectively. Other than the anonymity of their biological parents, no substantial distinction differentiates foundlings Page 33 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 from children with known Filipino parents. They are both entitled to the full extent of the state's protection from the moment of their birth. (David v. SET, G.R. No. 221538, Sept. 20, 2016) B. WHO ARE CITIZENS The following 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. (PHIL CONST., art. IV, § 1) Illegitimate Child of a Foreign Mother If the father is unknown, follow the mother's citizenship. If the father is known and is Filipino, the illegitimate child is considered Filipino after proving the paternity. (Tecson v. COMELEC, G.R. No. 161434, March 3, 2004) Election of Philippine Citizenship 1. Prior to the 1973 Constitution - If a Filipina married an alien, she loses her Filipino citizenship. Hence, her child would have to elect Filipino citizenship upon reaching the age of majority. 2. Under the 1973 Constitution - Children born of Filipino mothers were already considered Filipinos. 3. Therefore, the provision on election of citizenship under the 1987 Constitution only applies to those persons who were born under the 1935 Constitution. 4. In order for the children to elect Filipino citizenship, the mother must have been Filipinos at the time of their marriage (Cu v. Republic, G.R. No. L-3018, July 18, 1951; Villahermosa v. Commissioner of Immigration, G.R. No. L-1663, Mar. 31, 1948) 5. The election must be made within a reasonable period after reaching the age of majority. The phrase "reasonable time" has been interpreted to mean that the elections should be made within three (3) years from reaching the age of majority. (Cuenco v. Sec. of Justice, G.R. No. L- 18069, May 26, 1962; Cabiling v. Commissioner Fernandez Jr., G.R. No. 183133, July 26, 2010, Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) C. WHO CAN BE CITIZENS & D. MODES OF ACQUIRING CITIZENSHIP 1. Jus sanguinis acquisition of citizenship on the basis of blood relationship 2. Jus soli acquisition of citizenship on the basis of place of birth 3. Naturalization the legal act of adopting an alien and clothing him with the privilege of a native-born citizen (Tecson v. COMELEC, G.R. No. 161434, March 3, 2004; Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) The Philippines follows jus sanguinis and naturalization. Naturalization is a mode for both acquisition (governed by CA 473) and reacquisition (governed by CA 63) of Philippine citizenship. Principle of Jus Sanguinis in the 1987 Constitution If a child is born under the 1973 or 1987 Constitution and either his father or mother is a Filipino citizen at the time the child is born, the child is a Filipino citizen no matter where he may be born. NATURALIZATION What is naturalization Naturalization signifies the act of formally adopting a foreigner into the political body of a nation by clothing him or her with the privileges of a citizen. (So v. Republic, G.R. No. 170603, Jan. 29, 2007) Three Modes of Naturalization 1. Administrative Naturalization (R.A. No. 9139) 2. Judicial Naturalization (C.A. No. 473) 3. Legislative Naturalization in the form of a law enacted by Congress granting Philippine citizenship to an alien C.A. No. 473 v. R.A. No. 9139 Page 34 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 C.A. No. 473 and R.A. No. 9139 are separate and distinct laws the former covers all aliens regardless of class while the latter covers nativeborn aliens who lived here in the Philippines all their lives, who never saw any other country and all along thought that they were Filipinos; who have demonstrated love and loyalty to the Philippines and affinity to the customs and traditions. (So v. Republic, G.R. No. 170603, Jan. 29, 2007) a. C.A. No. 473 Qualifications 1. Not less than twenty-one years of age on the day of the hearing of the petition; 2. Resided in the Philippines for a continuous period of 10 years or more; 3. Of good moral character; believes in the principles underlying the Philippine Constitution; conducted himself in a proper and irreproachable manner during the entire period of his residence towards the government and community 4. Must own real estate in the Philippines worth P5,000 or more OR must have lucrative trade, profession, or lawful occupation; 5. Able to speak or write English or Spanish or anyone of the principal languages; and 6. Enrolled his minor children of school age in any of the recognized schools where Philippine history, government and civics are taught or prescribed as part of the school curriculum, during the entire period of the residence in the Philippines required of him. (C.A. 473, § 2) Special Qualifications (ANY will result to reduction of the 10-year period of continuous residency requirement to 5 years under no. 2 above) 1. Having honorably held office under the Government of the Philippines or under that of any of the provinces, cities, municipalities, or political subdivisions thereof; 2. Established a new industry or introduced a useful invention in the Philippines; 3. Married to a Filipino woman; 4. Engaged as a teacher in the Philippines in a public or recognized private school not established for the exclusive instruction of children of persons of a particular nationality or POLITICAL LAW race, in any of the branches of education or industry for a period of 2 years or more; or 5. Born in the Philippines (C.A. 473, § 3) Denaturalization: Cancellation of Certificate of Naturalization 1. If it is shown that said naturalization certificate was obtained fraudulently or illegally. 2. If the person naturalized shall, within the five years next following the issuance of said naturalization certificate, return to his native country or to some foreign country and establish his permanent residence there: Provided, That the fact of the person naturalized remaining for more than one year in his native country or the country of his former nationality, or two years in any other foreign country, shall be considered as prima facie evidence of his intention of taking up his permanent residence in the same. 3. If the petition was made on an invalid declaration of intention. 4. If it is shown that the minor children of the person naturalized failed to graduate from a public or private high schools recognized by the Office of Private Education of the Philippines, where Philippine history, government and civics are taught as part of the school curriculum, through the fault of their parents either by neglecting to support them or by transferring them to another school or schools. A certified copy of the decree cancelling the naturalization certificate shall be forwarded by the clerk of the Court to the Department of the Interior and the Bureau of Justice. 5. If it is shown that the naturalized citizen has allowed himself to be used as a dummy requiring Philippine citizenship as a requisite for the exercise, use or enjoyment of a right, franchise or privilege (C.A. No. 473, § 18) b. R.A. No. 9139 Qualifications 1. The applicant must be born in the Philippines and residing therein since birth; 2. The applicant must not be less than eighteen (18) years of age, at the time of filing of his/her petition; 3. The applicant must be of good moral character and believes in the underlying principles of the Constitution, and must have conducted Page 35 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 4. 5. 6. 7. himself/herself in a proper and irreproachable manner during his/her entire period of residence in the Philippines in his relation with the duly constituted government as well as with the community in which he/she is living; The applicant must have received his/her primary and secondary education in any public school or private educational institution dully recognized by the Department of Education, Culture and Sports, where Philippine history, government and civics are taught and prescribed as part of the school curriculum and where enrollment is not limited to any race or nationality: Provided, That should he/she have minor children of school age, he/she must have enrolled them in similar schools; The applicant must have a known trade, business, profession or lawful occupation, from which he/she derives income sufficient for his/her support and if he/she is married and/or has dependents, also that of his/her family: Provided, however, That this shall not apply to applicants who are college degree holders but are unable to practice their profession because they are disqualified to do so by reason of their citizenship; The applicant must be able to read, write and speak Filipino or any of the dialects of the Philippines; and The applicant must have mingled with the Filipinos and evinced a sincere desire to learn and embrace the customs, traditions and ideals of the Filipino people (R.A No. 9139, § 3) Disqualifications 1. Those opposed to organized government or affiliated with any association of group of persons who uphold and teach doctrines opposing all organized governments; 2. Those defending or teaching the necessity of or propriety of violence, personal assault or assassination for the success or predominance of their ideas; 3. Polygamists or believers in the practice of polygamy; 4. Those convicted of crimes involving moral turpitude; 5. Those suffering from mental alienation or incurable contagious diseases; 6. Those who, during the period of their residence in the Philippines, have not mingled socially POLITICAL LAW with Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions and ideals of the Filipinos; 7. Citizens or subjects with whom the Philippines is at war, during the period of such war; and 8. Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to be naturalized citizens or subjects thereof. (R.A. No. 9139, § 4) c. Effects of Judicial Naturalization Effects 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. (C.A. No. 473, § 15, Tuang v. Galang, G.R. No. L-18775, Nov. 30, 1963) Naturalization & Res Judicata A naturalization proceeding not being a judicial adversary proceeding, the decision rendered therein is not res judicata as to any of the reasons or matters which would support a judgment cancelling the certificate of naturalization for illegal or fraudulent procurement (Republic v. Go Bon Lee, G.R. No. L-11499, Apr. 29, 1966) Pursuant to P.D. No. 836 and 923, naturalization extends to the alien wife and minor children of the person naturalized upon the wife's showing that she does not suffer from any of the disqualifications under Letter of Instructions No. 270, and that she and her minor children reside permanently in the Philippines at the time of her husband's naturalization. In other words, the only persons to undergo the proceeding before the Special Committee on Naturalization will only be the person naturalized and his wife. The minor children, in the words of Letter of Presidential Decree No. 836, follow the acquired Filipino citizenship of their mother. (Republic v. Lao, G.R. Nos. 205218 & 207075, Feb. 10, 2020) When Res Judicata Applies Res judicata may only be applied in cases of citizenship when the following concur: Page 36 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 1. A person's citizenship must be raised as a material issue in a controversy where said person is a party; 2. The Solicitor General or his authorized representative took active part in the resolution thereof; 3. The finding on citizenship is affirmed by the Supreme Court. (Go v. Bureau of Immigration and Deportation, G.R. No. 191810, June 22, 2015) Direct Naturalization v. Derivative Naturalization Derivative Direct Naturalization Naturalization Citizenship is acquired by Citizenship an alien through: conferred on: 1. Judicial naturalization under CA 473 2. Administrative naturalization under RA 9139 3. Legislative naturalization in the form of a law enacted by Congress, bestowing Philippine citizenship to an alien 1. Wife of naturalized husband 2. Minor children of naturalized person 3. Alien woman upon marriage to a national E. MODES OF LOSING & REACQUIRING CITIZENSHIP Philippine citizenship may be lost or reacquired in the manner provided by law (PHIL CONST., art. IV, § 3) Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it. (PHIL CONST., art. IV, § 4) 1. LOSING CITIZENSHIP 1. Naturalization in a foreign country (C.A. 63, § 1(1)) 2. Express renunciation or expatriation (CA 63, §1(2)) 3. Taking an oath of allegiance to another country upon reaching the age of majority; 4. Marriage by a Filipino woman to an alien, if by the laws of her h band country, she becomes a citizen thereof. 5. Accepting a commission and serving in the armed forces of another country, unless there is an offensive/defensive pact with the country, or it maintains armed forces in RP with RP consent; 6. Denaturalization; 7. Being found by final judgment to be a deserter of the AFP 2. REACQUIRING CITIZENSHIP Citizenship may be Reacquired by: 1. Repatriation 2. Naturalization 3. Legislative Act Repatriation Repatriation results in the recovery of the original nationality. This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural-born Filipino. (Bengzon v. HRET, G.R. No. 142840, May 7, 2001) 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. (C.A. No. 63, sec. 4) Repatriation Not a Matter of Right Repatriation is not a matter of right, but it is a privilege granted by the State. The State has the power to prescribe by law the qualifications, procedure, and requirements for repatriation. It has the power to determine if an applicant for repatriation meets the requirements of the law for it is an inherent power of the State to choose who will be its citizens, and who can reacquire citizenship once it is lost. (Tabasa v. CA, G.R. No. 125793, Aug. 29, 2006) As distinguished from the lengthy process of naturalization, repatriation simply consists of the taking of an oath of allegiance to the Republic of Page 37 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 the Philippines and registering said oath in the Local Civil Registry of the place where the person concerned resides or last resided. He would not even need to file a petition in court. (Bengson III v. HRET, G.R. No.142840, May 7, 2001) Who May be Repatriated: 1. Filipino women who have lost their Philippine citizenship by marriage to aliens 2. Natural-born Filipinos who have lost their Philippine citizenship, including their minor children, on account of political or economic necessity (R.A. No. 8171, § 1) How is Repatriation Effected 1. By taking the necessary oath of allegiance to the Republic of the Philippines. 2. Registration in the proper civil registry and in the Bureau of Immigration. 3. The Bureau of Immigration shall thereupon cancel the pertinent alien certificate of registration and issue the certificate of identification as Filipino citizen to the repatriated citizen (R.A. No. 8171, § 2) Who Cannot be Repatriated (OVM2) 1. Person Opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing organized government; 2. Person defending or teaching the necessity or propriety of Violence, personal assault, or association for the predominance of their ideas; 3. Person convicted of crimes involving Moral turpitude; or 4. Person suffering from Mental alienation or incurable contagious diseases. (R.A. No. 8171, § 1) Effective Date of Repatriation The effective date is the date of application for repatriation not the date when repatriation was approved (Lee v. Commission on Elections & Frivaldo, G.R. No. 120295, June 28, 1996) Repatriation under R.A. No. 9225 Citizens who lost their citizenship by reason of their naturalization as citizens of a foreign country are deemed to have reacquired their Philippine citizenship upon taking the oath of allegiance. This reacquisition works to restore natural-born status as though it was never lost at all. Reacquisition v. Retention Natural-born Filipinos who have lost their citizenship by naturalization in a foreign country shall re-acquire their Philippine citizenship upon taking the oath of allegiance to the Republic of the Philippines. Natural-born Filipinos who became foreign citizens after R.A. 9225 took effect, shall retain their Philippine citizenship upon taking the same oath. The taking of oath of allegiance is required for both categories of natural-born Filipino citizens who became citizens of a foreign country. (David v. Agbay, G.R. No, 199113, March 18, 2015) Repatriation and Domicile To reacquire domicile he must provide proof of intent to stay in the Philippines. After he does that, his occasional absence from the recovered domicile does not have the effect of removing him from the domicile for as long as he manifests animus manendi et revertendi. The domicile is not established strictly from the time that a person was repatriated under R.A. No. 9225. The Court said that other evidence may be admitted to determine the time that domicile is established. Also, issue of residence could be decided particularly on the facts-of-the-case basis, as what would a series of jurisprudence would also dictate. Hence, domicile cannot strictly be established only from a per on repatriation. (PoeLlamanzares v. Comelec et al., G.R. Nos. 221697 & 221698-700, March 8, 2016) F. DUAL CITIZENSHIP AND DUAL ALLEGIANCE Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. (PHIL CONST., art. 4, § 5) Dual Citizenship v. Dual Allegiance DUAL CITIZENSHIP DUAL ALLEGIANCE Involuntary and legal Voluntary and illegal Page 38 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 As a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. (Mercado v. Manzano, G.R. No. 135083, May 26, 1999) Refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an indi id al volition. (Mercado v. Manzano, G.R. No. 135083, May 26, 1999) Dual Allegiance and the Constitution The specific target of this new provision is not dual citizenship but dual allegiance arising from e.g., mixed marriages or birth in foreign soil. This was seen as more insidious than dual citizenship To the extent, however, that dual citizenship also imports dual allegiance, then it must also be "dealt with by law." In other words, the Constitution leaves the disposition of the problem of dual citizenship and dual allegiance to ordinary legislation. POLITICAL LAW R.A. 9225 R.A. 9225 provides that a Filipino who has previously renounced his Filipino citizenship can reacquire it without renouncing his foreign citizenship. Likewise, a Filipino who acquires foreign citizenship after the effectivity of R.A. 9225 retains his Filipino citizenship. R.A. 9225 is a law about dual citizenship not dual allegiance. (AASJS v. Datumanong, G.R. No. 160869, May 11, 2007) R.A. 9225, however, requires that those who acquired dual citizenship must specifically renounce foreign citizenship upon filing of candidacy. (R.A. 9225 § 5[2]) The continued use of foreign passport render the renunciation of foreign citizenship nugatory. The renunciation of foreign citizenship must be complete and unequivocal. The requirement that the renunciation must be made through an oath emphasizes the solemn duty of the one making the oath of renunciation to remain true to what he has sworn to. Allowing the subsequent use of a foreign passport because it is convenient for the person to do so is rendering the oath a hollow act. It devalues the act of taking of an oath, reducing it to a mere ceremonial formality. (Maquiling v. COMELEC, G.R. No. 195649, April 16, 2013) Derivative Citizenship The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizenship of the Philippines. (R.A. 9225 § 4) - end of topic - Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. (Mercado v. Manzano, G.R. No. 135083, May 26, 1999) Page 39 of 568 LEGISLATIVE DEPARTMENT Political Law ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW V. LEGISLATIVE DEPARTMENT A. LEGISLATIVE POWER TOPIC OUTLINE UNDER THE SYLLABUS: 1. SCOPE AND LIMITATIONS V. LEGISLATIVE DEPARTMENT A. LEGISLATIVE POWER 1. Scope and limitations 2. Principle of non-delegability; exceptions Nature of Legislative Power Legislative power is the authority to make, alter and repeal laws. (PHIL. CONST., art. VI, § 1.) C. LEGISLATIVE PRIVILEGES; INHIBITIONS; DISQUALIFICATIONS Classification of Legislative Power (COrODe): 1. Constituent - the power to propose amendments to the Constitution 2. Ordinary - the power to pass ordinary laws 3. Original - possessed by the people in their sovereign capacity, exercised via initiative and referendum. 4. Delegated - possessed by Congress and other legislative bodies by virtue of the Constitution; subordinate to the original power of the people who delegated the same D. QUORUM AND VOTING MAJORITIES Who Exercises Legislative Power (CoLoPeP) E. DISCIPLINE OF MEMBERS 1. Congress Legislative power is vested in Congress, which consists of the Senate and the House of Representatives. B. CHAMBERS OF CONGRESS; COMPOSITION; QUALIFICATIONS 1. Senate 2. House of Representatives a. District representatives and questions of apportionment b. Party-list system F. PROCESS OF LAW-MAKING G. ELECTORAL TRIBUNALS AND THE COMMISSION ON APPOINTMENTS a. Nature b. Powers H. POWERS OF CONGRESS 1. Legislative inquiries and oversight functions 2. Non-legislative a. Informing function b. Power of impeachment I. INITIATIVE AND REFERENDUM General Plenary Power The grant of legislative power to Congress is broad, general and comprehensive. The legislative body possesses plenary power for all purposes of civil government. Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere. Except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to matters of general concern or common interest. (Ople v. Torres, G.R. No. 127685, July 23, 1998) 2. Local Legislative Body Local legislative bodies are allowed by the Constitution to legislate on purely public matters. Since what was given to local legislative bodies is not power to make rules and regulations but legislative power, the rules on valid delegation do not apply. However, when what is given to a local legislative body is executive power, the rules Page 41 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 applicable to the empowerment of administrative agencies also becomes applicable (Rubi v. Provincial Board, G.R. No. L-14078. March 8, 1919). Requisites of A Valid Ordinance: (Must NOT CUPPU, Must be GC) 1. Must not Contravene the Constitution or any statute 2. Must not be Unfair or oppressive 3. Must not be Partial or discriminatory 4. Must not Prohibit, but may regulate trade 5. Must not be Unreasonable 6. Must be General and Consistent with public policy (Magtajas v. Pryce Properties, G.R. No. 111097, July 20, 1994). 3. Pe I a Sa Initiative The power of the people to propose amendments to the Constitution or to propose and enact legislation called for the purpose (R.A. No. 6735, § 3(a)) Three Types of Initiative (CSL) 1. Initiative on the Constitution - A petition proposing amendments to the Constitution. 2. Initiative on Statutes - A petition proposing to enact a national legislation. 3. Initiative on Local Legislation - A petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or ordinance (R.A. No. 6735, § 3(a)) Local Initiative Registered voters within a local government unit may file a petition with the Regional Assembly or local legislative body, respectively, proposing the adoption, enactment, repeal or amendment of any law, ordinance or resolution. (R.A. No. 6735, § 13(a)) MINIMUM NUMBER OF REGISTERED VOTERS REQUIRED PER LGU LGU NOT LESS THAN: Autonomous region 2000 Province or city 1000 Municipality 100 Barangay 50 Limitations on the Power of Local Initiative 1. Should not be exercised more than once a year; 2. Extended only to subjects or matters which are within the legal powers of local legislative bodies to enact; 3. If the local legislative body adopts the proposition in toto before the initiative is held, the initiative shall be cancelled. Those against such action may apply for initiative. (R.A. No. 6735, § 15) Limitation on Local Legislative Body vis-a-vis Local Initiative Any proposition, ordinance, or resolution approved through an initiative and referendum Shall not be repealed, modified or amended by the local legislative body concerned within 6 months from its date of approval May be amended, modified, repealed within 3 years thereafter by a vote of 3/4 of all its members. In case of barangays, the period shall be 18 months after approval. (R.A. No. 6735, § 16; Local Government Code, § 125.) Indirect Initiative Exercise of initiative by the people through a proposition sent to the Congress or the local legislative body for action (R.A. No. 6735, § 3(b)) Referendum The power of the electorate to approve or reject legislation through an election called for the purpose (R.A. No. 6735, § 3(c)) Page 42 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 Two Classes of Referendum (R.A. No. 6735, § 3(c); Local Government Code, § 126.) 1. Referendum on statutes - petition to approve or reject an act or law, or part thereof, passed by Congress 2. Referendum on local laws - legal processes whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the Sanggunian Required Petition 1. Petition should be registered with the Commission on Elections 2. Should be signed by at least 10% of the total number of registered voters 3. Every legislative district must be represented by at least 3% of the registered voters thereof The petition to be signed by the people should contain a definite proposal of the amendment of the Constitution; not merely a general question whether they approve of the amendment or not (Lambino v. COMELEC, G.R. No. 174153, October 25, 2006). Matters Which May Not Be the Subject of Initiative or Referendum (R.A. No. 6735, § 10.) 1. A petition embracing more than one subject. 2. Statutes involving emergency measures Initiative v. Referendum (SBMA v. COMELEC, G.R. No. 125416, Sept. 26, 1996) INITIATIVE REFERENDUM Power of the people to propose bills and laws, and to enact or reject them at the polls independent of the legislative assembly Right reserved to the people to adopt or reject any act or measure which has been passed by a legislative body and which in most cases would without action on the part of electors become a law Entirely the work of the electorate Begun and consented to by the law-making body A process of lawmaking by the people themselves without the participation and against the wishes of their elected representatives Consists merely of the electorate approving or rejecting what has been drawn up or enacted by a legislative body 4. The President under a Martial Law Rule or in a Revolutionary Government Martial Law During the period from 1972 to 1987, the laws of the Philippines did recognize the legislative power lodged in the presidency. Today, the 1987 Constitution has not disturbed this fact and still recognizes the legitimate exercise of legislative power by then President Ferdinand Marcos (Bernas, 1987 Philippine Constitution: A Commentary, 681, 2009). a. Martial Law Powers and Article XVII of the 1973 Constitution Shortly after martial law and the birth of the 1973 Constitution the legislative power in the President, as flowing from his martial law powers and Article XVII, Section 3(2) of the 1973 Constitution, was recognized as extraordinary legislative power given to the President to enable him to cope with an extraordinary situation especially at a time when there was no operating legislative body (Aquino, Jr. v. COMELEC, G.R. No. L-40004, January 31, 1975). b. Amendment No. 6 In 1976, Amendment No. 6 clarified the legislative po er of he Pre iden : Whene er in he j dgmen of the President (Prime Minister), there exists a grave emergency or threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary Page 43 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW decrees, orders or letters of instruction, which shall form part of he la of he land. Limitations on Legislative Power (A) Substantive - limitations on the content of laws The legislative power given in Amendment no. 6 is also concurrent with that of the regular Batasang Pambansa (Legaspi v. Minister of Finance, G.R. No. L-58289, July 24, 1982). Express limitations 1. Bill of Rights a. No law shall be passed abridging freedom of speech, of expression, etc. b. No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof c. No law impairing the obligation of contracts shall be passed d. No ex post facto law or bill of attainder shall be enacted 2. On appropriation a. The procedure in approving appropriations for Congress shall strictly follow the procedure for approving appropriations for other departments or agencies b. Prohibition against use of public money or property for a religious purpose c. No specific funds shall be appropriated or paid for use or benefit of any religion, sect, etc., except for priests, etc. assigned to AFP, penal institutions, etc. 3. On taxation a. No law granting any tax exemption shall be passed without the concurrence of a majority of all Members of Congress b. All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only c. All revenues and assets of nonstock, non-profit educational institutions 4. On he S preme Co r j ri dic ion. No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in the Constitution without its advice and concurrence 5. On nobility. No law granting title of royalty or nobility shall be passed Notes: 1. The 1973 Constitution provided for two concurrent legislative agencies: a. Batasang Pambansa b. President 2. The legislative power of Batasan was ordinary, while the legislative power of the President was extraordinary. Hence, the President in his judgment may undo what the legislature might have done not to his satisfaction (Bernas, 1987 Philippine Constitution: A Commentary, 684, 2009). Revolutionary Government a. Proclamation No. 3 After the 1986 revolution, President Corazon Aquino assumed revolutionary legislative power and, on March 25, 1986 issued Proclamation No. 3, the Provisional Freedom Constitution. Article II, Section 1 vested legislative power in the President until a legislature is elected and convened under a new Constitution. b. 1987 Constitution Section 6 of the Transitory Provisions of the 1987 Con i ion pro ide ha The inc mben President shall continue to exercise legislative po er n il he fir Congre i con ened. President Corazon Aquino exercised legislative power alone while President Ferdinand Marcos exercised legislative power concurrently first with the interim Batasang Pamabansa and then with the regular Batasang Pambansa (Bernas, 1987 Philippine Constitution: A Commentary, 685, 2009). President Corazon Aquino lost her legislative power on July 26, 1987 when Congress was convened. Page 44 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Implied limitations 1. Prohibition against irrepealable laws 2. Non-delegation of powers Jurisprudence 1. Power to provide holdover: Congress cannot provide for the holdover of elective officers if the same would go beyond their terms fixed by the Constitution (Abas Kida v. Senate, G.R. No. 196271, 2011) 2. Power to create new term and appoint the occupant of the position: Congress cannot create a new term and effectively appoint the occupant of the position for the new term. (Id.) 3. Power to grant franchise for public utilities: Congress cannot grant legislative franchises for the operation of public utilities which shall be exclusive in character and which shall not be subject to amendment, alteration or repeal when common good requires. (Tawang Multipurpose v. La Trinidad Water District, G.R. No. 166471, 2011) (B) Procedural - limitations on the manner of passing laws 1. There must only be one subject to be stated in the title of the bill to prevent hodgepodge or log-rolling legislation. 2. Three readings on separate days, printed copies of the final bill in its final form to be distributed to members three days before its passage, except if the President certifies to its immediate enactment to meet a public calamity or emergency; upon its last reading, no amendment is allowed and the vote thereon taken immediately and the yeas and nays entered into the Journal. 3. Appropriation, revenue, tariff, bills authorizing the increase of public debts, bills of local application, and private bills shall originate exclusively in the House of Representatives. 2. PRINCIPLE OF NON-DELEGABILITY; EXCEPTIONS POLITICAL LAW Principle of Non-Delegability General Rule: Congress cannot delegate its legislative power under the principle of nondelegation (delegata potestas non potest delegari or delegated power may not be delegated). Exceptions: (PLATE) 1. To the extent reserved to the People by the provision on initiative and referendum. 2. Delegation to Local government 3. Delegation of rule-making power to Administrative bodies 4. Congress may delegate Tariff powers to the President 5. Emergency powers delegated by Congress to the President For an exhaustive discussion of this topic, see page 20, II (F) [Delegation of Powers] of this Reviewer. B. CHAMBERS OF CONGRESS; COMPOSITION; QUALIFICATIONS 1. SENATE Composition 24 who are elected at large by the qualified voters of the Philippines. (PHIL. CONST., art. VI, § 2.) Term of Office 6 years commencing at noon on the 30th day of June following their election (PHIL. CONST., art. VI, § 4.) Term Limit No Senator shall serve for more than 2 consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected (PHIL. CONST., art. VI, § 4.) 2. HOUSE OF REPRESENTATIVES Composition Not more than 250 members, unless otherwise fixed by law, consisting of: 1. District Representatives: elected from legislative districts apportioned among the Page 45 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 provinces, cities and the Metropolitan Manila area 2. Party-list Representatives: shall constitute 20% of the total number of the members of the House of Representatives including those under the party-list. Term of Office 3 years, commencing at noon on the 30th day of June next following their election Term Limit No member of the HOR shall serve for more than 3 consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. List of Qualifications for both Senators and Members of the House Resident of the Philippines for at least 2 years immediately preceding the election Resident of the said district for at least 1 year immediately preceding election (except party-list representative) Term of 6 years commencing at noon on June 30, next following their election Term of 3 years commencing at noon on June 30, next following their election Term limit: no more than 2 consecutive terms Term limit: no more than 3 consecutive terms a. District representatives and questions of apportionment 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 (PHIL. CONST., art. VI, § 3 & 6; Pimentel v. COMELEC, G.R. No. 161658, Nov. 3, 2008). District Representative (PHIL. CONST., art. VI, § 5.) Elected from legislative districts that are apportioned in accordance with the number of inhabitants in each area and on the basis of a uniform and progressive ratio. Qualifications for Representatives: Qualifications 1. Natural born citizen 2. At least 25 years of age on the day of the election 3. Able to read and write 4. Registered voter in the district in which he shall be elected 5. A resident of the Philippines for a period of not less than 1 year immediately preceding the day of the election Senate SENATOR and House REPRESENTATIVE Natural-born citizen of the Philippines Able to read and write At least 35 years old on the DAY OF THE ELECTION At least 25 years old on the DAY OF THE ELECTION Registered voter Registered voter in the district in which he shall be elected (except party-list representatives) of Residence Requirement The term "residence" has been understood as synonymous with domicile not only under the previous Constitutions but also under the 1987 Constitution. (Co v. HRET, G.R. Nos. 92191-92, July 30, 1991) Domicile denotes a fixed permanent residence to which when absent for business or pleasure, one intends to return. The absence of a person from said Page 46 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 permanent residence, no matter how long, notwithstanding, it continues to be the domicile of that person. In other words, domicile is characterized by animus revertendi. (Id.) The manifest intent of the law in fixing a residence qualification is to exclude a stranger or newcomer, unacquainted with the conditions and needs of a community and not identified with the latter, from an elective office to serve that community. (Gallego v. Verra, G.R. No. L-48641, Nov. 24, 1941) Domicile of origin is not easily lost. To successfully effect a change of domicile, the following must be proven: (AID) an Actual removal or an actual change of domicile a bona fide Intention of abandoning the former place of residence and establishing a new one Definite acts which correspond with the purpose (Aquino v. COMELEC, G.R. No. 120265, Sept. 18, 1995) Therefore, in order to acquire a domicile by choice, there must be an animus non revertendi and an animus manendi. (Gallego v. Verra, G.R. No. L-48641, Nov. 24, 1941) While voting is not conclusive of residence, it does give rise to a strong presumption of residence. The fact that one has continuously voted in a particular locality is a strong factor in assisting to determine the status of his domicile. (Domino v. COMELEC, G.R. No. 134015, July 29, 1999) It is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining whether or not an individual has satisfied the constitution's residency qualification requirement. The said statement becomes material only when there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. (Romualdez-Marcos, G.R. No. 119976, Sept. 18, 1995) Creation of Legislative Districts The rules on legislative apportionment or creation of legislative districts are found in Art. VI, Section 5 (1), (3) and (4). (Bagabuyo v. COMELEC, G.R. No. 176970, Dec. 8, 2008) LEGISLATIVE APPORTIONMENT REAPPORTIONMENT The determination of the number of representatives which a State, county or other subdivision may send to a legislative body The realignment or change in legislative districts brought about by changes in population and mandated by the constitutional requirement of equality of representation It is the allocation of seats in a legislative body in proportion to the population; the drawing of voting district lines so as to equalize population and voting power among the districts Only Congress can create provinces and cities because the creation of provinces and cities necessarily includes the creation of legislative districts, a power only Congress can exercise under Section 5, Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. The ARMM Regional Assembly cannot create a province without a legislative district because the Constitution mandates that every province shall have a legislative district (Sema v. COMELEC, G.R. No. 177597, July 16, 2008). The COMELEC cannot correct the imbalance resulting from the increase of districts by transferring districts. The COMELEC must wait for Page 47 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 a legislative enactment. (Montejo v. COMELEC, G.R. No. 118702, March 16, 1995) Rules on apportionment of legislative districts Under the Constitution 1. Legislative districts shall be made in accordance with the number of respective inhabitants and on the basis of a uniform and progressive ratio 2. Each district shall comprise, as far as practicable, Contiguous, Compact and Adjacent territory. (CCA) 3. Each city with at least 250,000 inhabitants will be entitled to at least one representative while each province will have at least one representative. 4. Each province, irrespective of the number of inhabitants, is entitled to at least 1 representative 5. Legislative districts shall be re-apportioned by Congress within 3 years after the return of each census. Gerrymandering Formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party. This is the reason why the Constitution requires that Legislative Districts be continuous, compact, and adjacent. The formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party (Navarro v. Executive Secretary, G.R. No. 180050, Feb. 10, 2010). The Constitutional standards used to determine the apportionment of legislative districts, i.e. that each legislative district is to comprise, as far as practicable, a contiguous, compact, and adjacent erri or , i mean o pre en gerrymandering. (Id.) Jurisprudence 250,000 minimum population NOT a requirement for provinces: There is no specific provision in the Constitution that fixes a 250,000 minimum population that must compose of every legislative district. What the Constitution provides is a POLITICAL LAW 250,000 minimum population only for a city to be entitled to a representative, but not so for a province. (Aquino v. COMELEC, G.R. No. 189793, April 7, 2010) 250,000 only to create an initial legislative district: The requirement for cities applies only to its initial legislative district. The Constitution does not require a city to increase its population by another 250,000 to be entitled to an additional district (Id.) Necessity of confirmation by plebiscite: The creation of legislative districts does not need confirmation by plebiscite if it does not involve the creation of a local government unit. (Bagabuyo v. COMELEC, G.R. No. 176970, Dec. 8, 2008) When a municipality is converted into a city large enough to entitle it to one district, the incidental effect is splitting the district into two. This does not need a consensus. There is no need for plebiscite under Art. X of the Constitution when one district is split into two, because there is no creation of new juridical personalities nor division of territory per se. There is only a need for plebiscite if you are creating a new Local Government Unit. (Tobias v. Abalos, G.R. No. L-114783, Dec. 8, 1994). Reapportionment either through a special law or general reapportionment law: The reapportionment of legislative districts may be made through a special law, such as the charter of a new city. The Constitution clearly provides that Congress shall be composed of not more than two hundred fifty (250) members, unless otherwise fixed by law. As thus worded, the Constitution did not preclude Congress from increasing its membership by passing a law, other than a general reapportionment law. (Mariano v. COMELEC, G.R. No. 118577, Mar. 7, 1995) Page 48 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Difference of Reapportionment in Sec. 5(10), Art. VI and the Creation of LGU in Sec. 10, Art. X. In the former, the purpose is to ensure better acce o one di ric repre en a i e in Congre . No political or corporate unit is created. Thus, there is no need for a plebiscite in the creation, dissolution, or any other similar action on a legislative district. In the latter, political and corporate units are created or altered. These possess legal personality and are con idered in r men ali ie of he S a e in carr ing o he f nc ion of go ernmen . The exercise special functions for the sole benefit of constituents. Thus, the need for a plebiscite to expressly secure the consent of the people affected by the creation, division, merger, abolition or alteration of boundaries of local government units through a plebiscite. (Bagabuyo v. COMELEC, G.R. No. 176970, Dec. 8, 2008). b. Party-list system Party-List Representatives (Sec. 5 (2)) Constitute 20% of the total number of representatives (the total includes the party-list representatives). The maximum number of House of Representative members is set at 250, which means a maximum of 50 party-list members are allowed. But this number can be increased through a passage of a law (Banat v. COMELEC, G.R. Nos. 179271 & 179295, July 8, 2009). However, for 3 consecutive terms after the ratification of the 1987 Constitution (1987-1992, 1992-1995 and 1995-1998) from February 2, 1987 until 1998, one half of the seats allocated to partylist representatives shall be filled as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector (PHIL. CONST., art. VI, § 5(2).). Under Art. XVIII, Sec. 7, until a law is passed, the President may fill by appointment from a list of POLITICAL LAW nominees by the respective sectors the seats reserved for sectoral representation. R.A. No. 7941, the Party-List System Act was approved on March 3, 1995. This law put into place the mechanics for a party-list system of representation based on election and ended the appointment of sectoral representatives by the President as provided in the Transitory Provisions. For the purposes of the May 1998 elections, the first 5 major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the party-list system. Mechanics (R.A. No. 7941, § 8.) 1. Registered party-lists, organizations, or coalitions shall submit to the COMELEC a list of not less than five (5) nominees in order of priority. a. A person may be nominated in one (1) list only. b. Only persons who have given their consent in writing may be named in the list. c. Candidates for any elective office in the immediately preceding election shall be disqualified from becoming a nominee. d. No change of names or alteration of the order of nominees shall be allowed after the same shall have been submitted to the COMELEC Exceptions: 1. when the nominee dies 2. withdraws in writing his nomination 3. becomes incapacitated in which case the name of the substitute nominee shall be placed last in the list. Incumbent sectoral representatives in the House of Representatives who are nominated in the party-list system shall not be considered resigned. Page 49 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 2. The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes garnered during elections. (R.A. No. 7941, § 11.) Formula: a) If the number of District Seats is given. Total House Seats = District Seats / 0.8 Party-List Seats = District Seats x 0.25 b) If the total number of House Seats is given. Party-List Seats = Total House Seats x 0.2 District Seats = Total House Seats x 0.8 c) If the total number of Party-List Seats is given. Total House Seats = Party-List Seats / 0.2 District Seats = Party-List Seats / .25 Parameters in Party-List Elections 20% of the total number of the membership of the House of Representatives is the maximum number of seats available to party-list organizations, such that there is automatically one party-list seat for every four existing legislative districts. Garnering 2% of the total votes cast in the party-list elections guarantees a party-list organization one seat. The guaranteed seats shall be distributed in a first round of seat allocation to parties receiving at least two percent of the total party-list votes. The additional seats, i.e. the remaining seats after allocation of the guaranteed seats, shall be distributed to the party-list organizations including those that received less than 2% of the total votes. The additional seats shall be distributed to the parties in a second round of seat allocation according to the two-step procedure laid down in the BANAT Decision of 21 April 2009. The continued operation of the 2% threshold as it applies to the allocation of the additional seats is unconstitutional because this threshold mathematically and physically prevents the filling up of the available party-list seats. The three-seat cap is constitutional. The three-seat cap is intended by the Legislature to prevent any party from dominating the party-list system. There is POLITICAL LAW no violation of the Constitution because the 1987 Constitution does not require absolute proportionality for the party-list system. The well-settled rule is that courts will not question the wisdom of the Legislature as long as it is not violative of the Constitution (Banat v. COMELEC, G. R. No. 179271, July 8, 2009). Seat Allocation for the Party-list Representatives 1. Determine the number of seats available to party-list representatives through the following formula: (Number of seats available to legislative districts ÷ 0.80) x 0.20 2. Rank all party-lists according to votes received. 3. Determine the 2% qualifiers through the formula below. These party-lists are guaranteed one seat in the House ( g aran eed ea or he n mber of ea allocated to the 2% qualifiers). Number of votes received by the party-list ÷ the total number of votes cast for the party-list system (divisor) LEONEN: The divisor to be used in interpreting the formula used in BANAT is the total votes cast for the party-list system. This should not include the invalid votes. However, so as not to disenfranchise a substantial portion of the electorate, total votes cast for the party-list system should mean all the votes validly cast for all the candidates listed in the ballot, [even those] that are subsequently disqualified, so long as they were presented as a choice to the electorate. The voter relies on the ballot when making his or her choices. (ARARO v. COMELEC, G.R. No. 192803, Dec. 10, 2013) 4. De ermine he addi ional ea hro gh the following formula: Page 50 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Maximum number of seats (result of #1) - guaranteed seats 5. Divide the number of votes received by all parties (2% qualifiers and non-qualifiers) by the total number of votes cast, as in #3) and multiply the result to the number available seats, as in #4 6. Distribute the additional seats (rounded down) in accordance to the ranking. 7. Take note of the three seat cap. (BANAT v. COMELEC, G.R. No. 179271, 2009) Qualifications of Party List Representatives (R.A. No. 7941, § 9.) 1. Natural born citizen of the Philippines; 2. Registered voter; 3. Resident of the Philippines for a period of not less than 1 year immediately preceding the day of the election; 4. At least 25 years of age on the day of the election (youth sector nominee must be at least 25 years old but not more than 30 years old on day of election); 5. Able to read and write; 6. A bona fide member of the party or organization he seeks to represent for at least 90 days before the day of the election. 7. A nominee who changes his sectoral affiliation within the same party will only be eligible for nomination under the new sectoral affiliation if the change has been effected at least six months before the elections (Amores v. HRET, G.R. No. 189600, June 29, 2010). Rules on Party-Lists Principle of Social Justice: The inspiration of the system is social justice understood in both the economic and political sense. Participation not Limited to Sectoral Groups: Participation in the system is not limited to the sectors enumerated by the Constitution or law. The framers of the 1987 Constitution did not intend to leave out non-sectoral parties in the party-list system and exclusively limit it to sectoral groups. POLITICAL LAW Groups must comply with the Constitution and other applicable laws: The enumeration of marginalized and under-represented sectors is not exclusive. The crucial element is not whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of the Constitution and RA 7941. Moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of homosexuals from participation in the party-list system (Ang Ladlad v. COMELEC, G.R. No. 190582, April 8, 2010). Three different groups may participate in the party-list system: national parties or organizations, regional parties or organizations, and sectoral parties or organizations. Rule on National and Regional Parties/Organizations: The national and regional organizations need not be economically marginalized and do not need to organize along sectoral lines but they must be politically or ideologically disadvantaged or marginalized. Rule on Sectoral Parties: Sectoral parties or organizations may either be 'marginalized and underrepresented' or lacking in 'well-defined political constituencies'. It is enough that their principal advocacy pertains to the special interest and concerns of their sector. Marginalized and Underrepresented sectors: (HI FLOW PUV) i. Handicapped ii. Indigenous Cultural Communities iii. Fisher Folk iv. Labor v. Overseas Workers vi. Peasant vii. Urban Poor viii. Veterans Sectors that lack 'well defined poli ical con i encie (PWEY) Page 51 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 i. Professionals ii. Women iii. Elderly iv. Youth Rule on Political Party Participation: Political parties can participate in party-list elections provided they register under the party-list system and do not field candidates in legislative district elections. A political party, whether major or not, that fields candidates in legislative district elections can participate in party-list elections only through its sectoral wing that can separately register under the party-list system. The sectoral wing is by itself an independent sectoral party, and is linked to a political party through a coalition. (Atong Paglaum v. COMELEC, G.R. No. 203766, April 2, 2013) Rules on Members of Sectoral Parties or Organizations A majority of the members of both types of sectoral parties or organizations must belong to the sector they represent, i.e. majority must: Be marginalized and underrepresented or Lack well-defined political constituencies Rules on Nominees of Party-Lists The nominees of sectoral parties or organizations that represent the "marginalized and underrepresented" or that represent those who lack "well-defined political constituencies," must either: Belong to their respective sectors or To belong in he marginalized and underrepresented sector does not mean one must "wallow in poverty, destitution or infirmity." It is sufficient that one, or POLITICAL LAW his or her sector, is below the middle class Have a track record of advocacy for their respective sectors The nominees of national and regional parties or organizations must be bonafide members of such parties or organizations. National, regional, and sectoral parties or organizations shall not be disqualified if some of their nominees are disqualified, provided that they have at least one nominee who remains qualified. (Atong Paglaum v. COMELEC, G.R. No. 203766, April 2, 2013) The proviso does not authorize a party-list from not complying with the submission of at least five nominees upon its manifestation to participate in the party-list elections. (COCOFED v. COMELEC, G.R. No. 207026, Aug. 6, 2013) Disqualifications of Parties or Organizations (R.A. No. 7941, § 6.) 1. religious sector; 2. advocates of violence or unlawful means of seeking its goal; 3. foreign party or organization; 4. receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or 5. members or indirectly through third parties for partisan election purposes; 6. fails to comply with laws, rules or regulations relating to elections; 7. declares untruthful statements in its petition; 8. ceased to exist for at least 1 year; or fails to participate in the last 2 preceding elections or, fails to obtain at least 2% of the votes cast under the party-list system in the 2 preceding elections for the constituency in which it has registered. Note: The ord or i a di j nc i e erm ignif ing disassociation and independence of one thing from Page 52 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 the other things enumerated; it should, as a rule, be construed in the sense in which it ordinarily implies, as a disjunctive word. Thus, the plain, clear and unmistakable language of the law provides for two (2) separate reasons for delisting. (Philippine Guardians Brotherhood Inc. v. COMELEC, G.R. No. 190529, Apr. 29, 2010) Who determines whether a party represents a marginalized sector? COMELEC has jurisdiction to determine whether an organization applying for the party list system represents a marginalized sector. It cannot be challenged by certiorari because the decision is based on facts and the SC does not try facts (V.C. Cadangen v. COMELEC, G.R. No. 177179, June 5, 2009). Sectoral parties are not required to adduce evidence showing their track record that they have undertaken to further the cause of the sector they represent. It is sufficient that their ideals are geared towards the cause of the sector they represent (Abang-Lingkod v. COMELEC, G.R. No. 206952, Oct. 22, 2013). Term vs. Tenure TERM TENURE The period during which the elected officer is legally authorized to assume his office and exercise the powers thereof The period during which such officer actually holds the position Cannot be reduced May be limited by law Ways by Which Tenure of Members of Congress May Be Shortened: (FRED) 1. Forfeiture of his seat by holding any other office or employment in the government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or subsidiaries (PHIL. CONST., art. VI, § 13.); 2. Voluntary Renunciation of office (PHIL. CONST., art. VI, § 4, ¶ 3.). Mere filing of a certificate of candidac d ring one erm i considered voluntary renunciation since the law deems such act as a resignation. (Dimaporo v Mitra, G.R. No. 96859, Oct. 15, 1991) 3. Expulsion as a disciplinary action for disorderly behavior (PHIL. CONST., art. VI, § 16, ¶ 3). 4. Disqualification as determined by resolution of the electoral tribunal in an election contest (PHIL. CONST., art. VI, § 17.). Vacancy and Special Election In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term. Special Election (R.A. No. 6645, as amended by R.A. No. 7166) 1. Special election will be called if vacancy occurs: a. At least 18 months before the next regular election for the members of the Senate; b. At least 1 year before the next regular election for members of the House of Representatives 2. The particular House of Congress where vacancy occurs must pass either a resolution if Congress is in session, or the Senate President or the Speaker must sign a certification, if Congress is not in session a. Declaring the existence of vacancy b. Calling for a special election to be held within 45 to 90 days from the date of the resolution or certification 3. The Senator or representative elected shall serve only for the unexpired term. COMELEC R aS ca E c 6645, as amended by R.A. No. 7166) (R.A. No. Page 53 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term, COMELEC is required: 1. to call a special election by fixing the date of the special election: a. House of Representatives - the date shall not be earlier than sixty (60) days nor later than ninety (90) after the occurrence of the vacancy b. Senate - the special election shall be held simultaneously with the next succeeding regular election 2. to give notice to the voters of, among other things, the office or offices to be voted for. The calling of an election, that is, the giving notice of the time and place of its occurrence, whether made by the legislature directly or by the body with the duty to give such call, is indispensable to the c a . In a special election to fill a vacancy, the rule is that a statute that expressly provides that an election to fill a vacancy shall be held at the next general elections fixes the date at which the special election is to be held and operates as the call for that election. Consequently, an election held at the time thus prescribed is not invalidated by the fact that the body charged by law with the duty of calling the election failed to do so. This is because the right and duty to hold the election emanate from the statute and not from any call for the election by some authority and the law thus charges voters with knowledge of the time and place of the election. Conversely, where the law does not fix the time and place for holding a special election but empowers some authority to fix the time and place after the happening of a condition precedent, the statutory provision on the giving of notice is considered mandatory, and failure to do so will render the election a nullity. Thus, the failure of the COMELEC to properly call for a special election to fill a permanent vacancy in the Senate under R.A. 7166 does not nullify the election held since the statute already fixes the date. However, the failure of the COMELEC to do so in case of a permanent vacancy in the House of Representatives would produce the opposite result. (Tolentino v. COMELEC, G.R. No. 148334, Jan. 21, 2004) District v. Party List Representatives DISTRICT REPRESENTATIVE PARTY-LIST REPRESENTATIVE As to election or selection Elected according to legislative district by the constituents of such district Elected nationally, with party-list organizations garnering at least 2% of all the votes cast for the party-list system entitled to 1 seat, which is increased according to proportional representation, but is in no way to exceed 3 seats per organization As to Residency Requirement Must be a resident of his legislative district for at least 1 year immediately before the election No special residency requirement in a legislative district As to manner of candidate’s election Elected personally (i.e. by name of candidate) Voted upon by party or organization; it is the party who designates who will sit as its representative. As to effect of change of affiliation during the term Does not lose seat if If she/he changes Page 54 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 he/she changed party or affiliation party or affiliation, loses his seat, in which case he/she will be substituted by another qualified person in the party/organization based on the list submitted to the COMELEC. As to manner of filling vacancies A special election may be held provided that the vacancy takes place at least 1 year before the next election A substitution will be made within the party, based on the list submitted to the COMELEC As to effect of losing in the previous election A district representative is not prevented from running again as a district representative if he/she lost during the previous election. A party-list representative cannot sit if he ran and lost in the previous election. As to effect of change of affiliation prior to election A change in affiliation within months prior to election does not prevent a district representative from running under his new party. A change in affiliation within 6 months prior to election prohibits the party-list representative from sitting as representative under his new party/organization. C. LEGISLATIVE PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS Privileges (PHIL. CONST., art. VI, § 11.) Immunity from Arrest Legislators are privileged from arrest while Congress is in session only (whether regular or special) with respect to offenses punishable by not more than 6 years of imprisonment. The immunity does not extend to the prosecution of criminal offenses. Right of Members to Attend Congressional Sessions: A Senator, who remains in detention, cannot be allowed to go to the Senate to attend all its official functions. All prisoners whether under preventive detention or serving final sentence cannot practice their profession nor engage in any business or occupation, or hold office, elective or appointive, while in detention. This is a necessary consequence of arrest and detention. The presumption of innocence does not carry with it the full enjoyment of civil and political rights (Trillanes v. Judge Pimentel, G.R. No 179817, June 27, 2008). Privileged Speech No member shall be questioned or held liable in any forum other than his/her respective Congressional body for any speech or debate in Congress or in any Committee thereof. S c ba includes: Utterances made by Congressmen in the performance of their official functions, such as speeches delivered, statements made, or votes cast in the halls of Congress, while the same is in session Bills introduced in Congress, whether the same is in session or not Other acts performed by Congressmen, either in Congress or outside the premises housing its offices, in the official discharge of their duties as members of Congress and of Congressional Committees duly authorized to perform its functions as such, at the time of the performance of the acts in question. (Jimenez v. Cabangbang, G.R. No. L-15905, Aug. 3, 1966) Page 55 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 The privilege arises not because the statement is made by a lawmaker, but because it is uttered in furtherance of legislation. It cannot be invoked when the lawmaker's speech or utterance is extraneous to the due functioning of the legislative process. (Trillianes v. Castillo-Marigomen, G.R. No. 223451, March 14, 2018) To participate in or respond to media interviews is not an official function of any lawmaker; it is not demanded by his sworn duty nor is it a component of the process of enacting laws. A lawmaker may discharge his duties and legislate without having to communicate with the press. A lawmaker's participation in media interviews is not a legislative ac , b i "poli ical in na re, o ide he ambi of the immunity conferred under the Speech or Debate Clause. (Trillianes v. Castillo-Marigomen, G.R. No. 223451, March 14, 2018) A complaint for disbarment or disciplinary action based on disparaging remarks made by an incumbent Senator against the Chief Justice will not prosper because of the Speech and Debate clause. (Pobre v. Defensor-Santiago, A.C. No. 7399, Aug. 25, 2009) Limitations: 1. Protection is only against prosecution in any forum other than Congress itself. Hence, the Senate or the House may discipline their respective members. 2. The peech or deba e m be made in performance of their duties as members of Congress. 3. Congress need not be in session when the utterance is made, as long as it forms part of legislative action (e.g. part of the deliberative and communicative process used to participate in legislative proceedings in consideration of proposed legislation or with respect to other matters i h Congre j ri dic ion) Requirements to Avail of the Privilege of Speech and Debate Clause 1. That the remarks must be made while the legislature or the legislative committee is functioning, that is, in session; and 2. That they must be made in connection with the discharge of official duties Inhibitions (PHIL. CONST., art. VI, § 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. Therefore, senators and representatives are not prohibited from introducing bills that have conflicts with their interest, as long as they disclose. Disqualifications (PHIL. CONST., art. VI, § 13 & 14.) DISQUALIFICATION WHEN APPLICABLE Cannot hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including GOCCS or their subsidiaries. During his term. If he does so, he forfeits his seat in Congress. Cannot be appointed During the term for to any office which which he was elected was created or the emoluments thereof increased Cannot personally During his term of appear as counsel office before any court of justice, electoral tribunal, quasi-judicial and administrative body. Cannot be financially During his term of interested directly or office indirectly in any contract, franchise, or special privilege Page 56 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 granted by the Government, or any subdivision, agency or instrumentality thereof, including any GOCC or its subsidiary. Cannot intervene in During his term of any matter before any office office of the government when it is for his pecuniary benefit or where he may be called upon to act on account of his office. A Senator who is likewise the Chairman of the National Red Cross does not forfeit his seat in the Senate because the National Red Cross is a private corporation performing a public function. (Liban v. Gordon, G.R. No. 175352, Aug. 15, 2009) A congressman cannot buy nominal shares in a corpora ion and appear in in er en ion before he SEC. This is a circumvention of the constitutional policy. (Puyat v. De Guzman, G.R. No. L-51122, Mar. 25, 1982). Rules on Increase in Salaries (PHIL. CONST., art. VI, § 10.) 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. Since the Constitution provides for rules on alarie and no emol men , member of he House may appropriate for themselves other sums of money such as travel allowances, as well as other benefits. A new senator or representative elected through a special election is not entitled to the new salary rate because the new members are serving the terms of those who approved the increase. Thus, they are not entitled to the increase. POLITICAL LAW D. QUORUM AND VOTING MAJORITIES Sessions (PHIL. CONST., art. VI, § 15.) Regular sessions - Congress convenes once every year on the 4th Monday of July (unless otherwise provided for by law). It continues in session for as long as it may determine, until 30 days before the opening of the next regular session, excluding Saturdays, Sundays, and legal holidays. Special Sessions - called by the President at any time when Congress is not in session i.e. when the legislature is in recess Regular v. Special Session Under the 1935 Constitution, the distinction between regular and special sessions was significant because during a special session, the legislature could consider only the subject matter designated by the President. Under the present law, which leaves discretion to Congress as to the number of regular session days, the distinction is no longer significant for the purpose of determining what the legislature may consider. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Kinds of Recess Voluntary Recess - takes place before the adjournment of Congress like Christmas recess Compulsory Recess - takes place when the Congress adjourns Quorum to do business - Majority of each House shall constitute a quorum. A smaller number may adjourn from day to day and may compel the attendance of absent members. In computing a quorum, members who are outside the country and thus outside of each Ho e coerci e j ri dic ion are no included. Page 57 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 Majority in Senate: The basis in determining the existence of a quorum in the Senate is the total number of Senators who are in the country and within the coercive jurisdiction of the Senate (Avelino v. Cuenco, G.R. No. L-2821, March 4, 1949). Majority of the House: means 1/2 +1 of the actual membership of the House who are within the coercive jurisdiction of the Congress (within the Philippines). Majority of all members of Congress: means majority of the entire composition of Congress regardless of the number of members present or absent during time the question is brought to the floor as long as there is quorum (e.g. (24/2) +1 for the Senate and (250/2) +1 for the HOR) Nature of Proceeding Required Votes Basis Discipline Members 2/3 of All Sec. 16(3) Election of Officers Majority of All Sec. 16(1) Declare the Existence of a State of War 2/3 of Both Houses, voting separately Sec. 23 Override President's Veto 2/3 of All in the House of Origin Sec. 27(1) Quorum to do business Majority w/in Compulsive Power of the House Sec. 16(2); Avelino v. Cuenco Voting Majorities of Congress SENATE Nature of Proceeding Required Votes Basis For the effectivity of treaty or international agreement 2/3 of All Sec. 21, Art. VII Conviction in impeachment 2/3 of All Sec. 3(6), Art. XI HOUSE OF REPRESENTATIVES Nature of Proceeding Required Votes Basis Affirm or Override Resolution to Impeach 1/3 of All Sec. 3(3), Art. XI COMMON TO BOTH Yeas and 1/5 of Sec. 16(4) Nays in the Members Journal present of each house Tax Exemption Majority of All Sec. 28(4) Confirmation of new VP nominated by President Majority of Art. VII, Sec. 9 Both Houses, voting separately Determination that Pres. unable to discharge powers & duties 2/3 of Both Art. VII, Sec. Houses, 11 voting separately To break a tie Majority of All, Art. VII, Sec. 4 in presidential voting election separately Revocation of Majority of All, Art. VII, Sec. Proc. of voting jointly 18 Martial Law/ Suspension of Priv. of Writ of Page 58 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 Habeas Corpus Extension of Majority of All, Art. VII, Sec. Proc. of voting jointly 18 ML/Suspensio n. of Priv. of WHC To Concur w/ Majority of All President in granting amnesty Art. VII, Sec. 19 Instances when Congress is Voting Separately 1. Determining the winning candidate for President or Vice President in case two or more candidates have an equal and highest number of votes (PHIL. CONST., art. VII, § 4.) 2. De ermine Pre iden di abili (PHIL. CONST., art. VII, § 11.) 3. Declaring existence of a state of war in joint session (PHIL. CONST., art. VI, § 23(1).) 4. Confirming he Pre iden nomina ion of a Vice-President from Congress whenever there is a vacancy in the Office of the Vice President (PHIL. CONST., art. VII, § 0.) 5. Proposing Constitutional amendments (PHIL. CONST., art. XVII, § 1.) Instances when Congress is Voting Jointly 1. Revoking or extending proclamation suspending the privilege of writ of habeas corpus (PHIL. CONST., art. VII, § 18.) 2. Revoking or extending declaration of martial law (PHIL. CONST., art. VII, § 18.) Officers of Congress (PHIL. CONST., art. VI, § 16.) 1. Senate President 2. Speaker of the House 3. Such other officers as it may deem necessary. Election of Officers By a majority vote of all respective members Congress has the sole prerogative in choosing its officers and the manner by which they are chosen. (DefensorSantiago v. Guingona, G.R. No. 134577, Nov. 18, 1988) While the Constitution mandates that the President of the Senate must be elected by a number constituting more than one half of all the members thereof, it does not provide that the members who will not vote for him shall ipso facto constitute the "minority," who could thereby elect the minority leader. Verily, no law or regulation states that the defeated candidate shall automatically become the minority leader. (Id.) The Senate President or Speaker of the HOR is elected through a majority vote of all its respective Members, and such other officers as may deem necessary. (PHIL. CONST., art. VI, § 16.) E. DISCIPLINE OF MEMBERS Suspension v. Expulsion 1. SUSPENSION - shall not exceed 60 days, with the concurrence of 2/3 of all its members. 2. EXPULSION - concurrence of 2/3 of all its members. Nature of Disciplining Authority Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of 2/3 of all its members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed 60 days. (PHIL. CONST., art. VI, § 16(3).) The disciplinary action taken by Congress against a member is not subject to judicial review because each House is the sole judge of what disorderly conduct is (Osmeña v. Pendatun, G.R. No. L17144, Oct. 28, 1960). The parliamentary immunity of members of Congress is not absolute. While parliamentary immunity guarantees the legislator complete freedom of expression without fear of being made Page 59 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 responsible before the courts or any other forum outside of Congressional Hall, it does NOT protect him (her) from responsibility before the legislative body itself whenever words and conduct are considered disorderly or unbecoming a member thereof. For unparliamentary Congress can be: conduct, members of censured, committed to prison, suspended, and even expelled by the votes of their colleagues (Osmeña v. Pendatun, G.R. No. L-17144, Oct. 28, 1960). Is preventive suspension considered an interruption of a term? Preventive suspension is not considered in err p ion of a erm nder Sec. 8, Art. X and Sec. 43 (b) of R.A. No. 7160. A preventive suspension cannot simply be considered an interruption because the suspended official continues to stay in office although barred from exercising the functions and prerogatives of the office within the suspension period. The best indica or of he pended official con in i in office is the absence of a permanent replacement and the lack of the authority to appoint one since no vacancy exists (Aldovino v. COMELEC, G.R. No. 184836, Dec. 23, 2009). Authority of Sandiganbayan to Suspend A Congressman can be preventively suspended by the Sandiganbayan for violation of Anti-Graft Law notwithstanding the exclusive power of Congress to discipline its members. The suspension contemplated in Article VI, Section 16(3) of the Constitution is a punishment that is imposed by the Senate or House of Representatives upon an erring member. It is distinct from the suspension under Section 13 of the Anti-Graft and Corrupt Practices Act, which is not a penalty but a preventive measure. Since Section 13 of the Act does not state that the public officer must be suspended only in the office where he is alleged to have committed the acts which he has been charged, it applies to any office which he may be holding (Santiago v. Sandiganbayan, G.R. No. 128055, April 18, 2001). F. PROCESS OF LAW-MAKING Bills that must originate in the House (PuP-TL) (PHIL. CONST., art. VI, § 24.) Note: While these bills must originate from the House, the Senate may introduce amendments and pass a completely different bill from the original one from the house. What is required only is that the bill originate in the House. 1. Bills authorizing the increase of Public debt One which creates public indebtedness such as bills for the issuance of bonds and other forms of obligations 2. Private bills One affecting purely private interest, such as one granting a franchise. 3. Tariff bills One that specifies the rates or duties to be imposed on imported articles 4. 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 (Tolentino v. Secretary of Finance, G.R. No. 115455, Oct. 30, 1995). Revenue Bills One specifically designed to raise money or revenue through imposition or levy. For example, registration fees used for the construction and maintenance of highways. (PAL vs. Edu, G.R. No. L41383, Aug. 15, 1988). Page 60 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 The Videogram Regulatory Board Law imposing a tax on video rentals does not make the law a revenue bill because the purpose is primarily regulation, and not to raise revenue. (Tio v. Videogram Regulatory Board, G.R. No. L-75697, June 18, 1987) General Limitations (PHIL. CONST., art. VI, § 26.) Every bill shall embrace only one (1) subject, as expressed in the title thereof, which does not have to be a complete catalogue of everything stated in the bill. An Act creating the Videogram Regulatory Board including 30% tax on gross receipts on video transactions was held to be valid. Taxation is sufficiently related to regulation of the video industry (Tio v. Videogram Regulatory Board, G.R. No. L-75697, June 18, 1987). It is sufficient that the title expressing the general subject of the bill and all the provisions of the statute are germane to such general subject (Sumulong v. COMELEC, G.R. No. L-48609, Oct. 10, 1941). Bills passed by either House must pass 3 readings on separate days, and printed copies thereof in its final form distributed to its members 3 days before its passage. 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; 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. Exceptions: When the President certifies to the necessity of the bill immediate enactment to meet a public calamity or emergency, the three readings can be held on the same day. (PHIL. CONST., art. VI, § 26(2).) When the offices of the President and Vice-President are both vacant, the bill calling for a special election to elect a President and Vice-President is deemed certified. (PHIL. CONST., art. VII, § 10.) See Part V(1) on the Substantive and Procedural Limitations on Congress’ Law-Making Powers. BICAMERAL CONFERENCE COMMITTEE an extra-constitutional creation which is intended to resolve conflicts between House and Senate versions of bills. (Bernas, 1987 Philippine Constitution: A Commentary, 790, 2009). Scope C Of The Bicameral Conference Powers (A2R2P) Adopt the Bill entirely; or Amend; or Revise; or Reconcile the House Bill and the Senate Bills; Propose entirely new provisions not found in either the House Bill or the Senate Bill. (Amendments in the nature of a substitute) Limitation: So long as the amendment is germane to the subject of the bill before the Committee. In a bicameral system, bills are independently processed by both Houses of Congress. It is not unusual that the final version approved by one House differs from what has been approved by the other. The conference commi ee, consisting of members nominated from both Houses, is an extra-constitutional creation of Congress whose function is to propose to Congress ways of reconciling conflicting provisions found in the Senate version and in the House version of a bill. It is within the power of a conference committee to include in its report an entirely new provision that is not found either in the House bill or in the Senate bill. If the committee can propose an amendment consisting of one or two provisions, there is no reason why it cannot propose several provisions, collectively considered as an "amendment in the nature of a substitute," so long as such amendment is germane to the subject of the bills before the committee. After all, its report was not final but Page 61 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 needed the approval of both houses of Congress to become valid as an act of the legislative department (Tolentino v. Secretary of Finance, G.R. No. 115455, Aug. 25, 1994). Presidential Veto Every bill passed by Congress shall be presented to the President before it becomes law. To approve, he shall sign it. Otherwise, he shall veto the bill. (PHIL. CONST., art. VI, § 27(1).) Overriding a Veto The President shall transmit to House where the bill originated. If, after such reconsideration, 2/3 of all the members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by 2/3 of all the members of that House, it shall become law. To override the veto, at least 2/3 of all the members of each House must agree to pass the bill. In such case, the veto is overridden and becomes a law without need of presidential approval. (PHIL. CONST., art. VI, § 27(1).) Item Veto General Rule: As a general rule, if the President disapproves of a provision in a bill approved by congress, he must veto the entire bill. Exception: As an exception, the President is allowed to item-veto in these types of bills: (ART) 1. Appropriation 2. Revenue, and 3. Tariff (Sec. 27 (2)). Exceptions to the Exception: DOCTRINE OF INAPPROPRIATE PROVISIONS A provision that is constitutionally inappropriate for an appropriation bill may be subject to veto even if it is not an appropriation or revenue i em . (Gonzalez v. Macaraig, Jr., G.R. No. 87636, Nov. 19, 1990). POLITICAL LAW EXECUTIVE IMPOUNDMENT - Refusal of the President to spend funds already allocated by Congress for a specific purpose. It is in effect, an impo ndmen of the law allocating such expenditure of funds. Note: There is no doctrine for or against executive impoundment. It has not been judicially questioned. Type of Item Bill TYPE OF BILL ITEM Revenue/tax bill Subject of the tax, and tax rate imposed thereon Appropriations bill Indivisible sum dedicated to a stated purpose VETO OF RIDER - A rider is a provision that does not relate to a particular appropriation stated in an appropriation bill. Being an invalid provision under Section 25 (2), the President may exercise item veto. Internal Rules As part of their inherent power, each House may determine its own rules. Hence, the courts cannot intervene in the implementation of these rules insofar as they affect the members of Congress. (Arroyo v. De Venecia, G.R. No. 127255, Aug. 14, 1997) The only limitation to the power of Congress to promulgate its own rules is the observance of quorum, voting, and publication when required. As long as these requirements are complied with, the Court will not interfere with the right of Congress to amend its own rules. (Pimentel v. Senate Committee, G.R. No. 187714, March 8, 2011) Congressional Journals and Records (PHIL. CONST., art. VI, § 16.) General Rule: The Journal is conclusive upon the courts. Exception: An enrolled bill prevails over the contents of the Journal. Page 62 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 ENROLLED BILL - 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. ENROLLED BILL DOCTRINE The signing of a bill by the Speaker of the House and the President of the Senate and its certification by the secretaries of both Houses of Congress that such bill was passed are conclusive of its due enactment (Arroyo v. De Venecia, G.R. No.127255, Aug. 14, 1997). ENROLLED BILL Official copy of approved legislation, with certifications of presiding officers Submitted to the President for signature, indicating approval JOURNAL RECORD Abbreviated account of daily proceedings in Congress Word for word transcript of deliberations in Congress Provides proof of what transpired during deliberations Provides detailed proof of what transpired during deliberations Supports the journal entry Insures publicity of legislative proceedings Cases When the Constitution Requires Yeas And Nays To Be Recorded 1. Last and third readings of a bill 2. Upon 1/5 member request 3. Re-passing a bill over Presidential veto Adjournment Neither House during the sessions of the Congress, shall without the consent of the other, adjourn for more than 3 days, nor to any other place than that in which the two Houses shall be sitting. (PHIL. CONST., art. VI, § 16.) Types of Adjournment 1. Day to day 2. Yearly 3. Sine die resumption with no appointed date for P ac Refers not to the building but to the political unit where the Houses may be sitting. G. ELECTORAL TRIBUNALS AND THE COMMISSION ON APPOINTMENTS ELECTORAL TRIBUNALS 1. NATURE The Senate and the House of Representatives shall each have an Electoral Tribunal (SET and HRET). (PHIL. CONST., art. VI, § 17.) Composition Nine (9) members 1. Three (3) Supreme Court Justices to be designated by the Chief Justice. o The senior Justice in the Electoral Tribunal shall be its Chairman. 2. Six (6) Members of the Senate or House, as the case may be. They shall be chosen on the basis of proportional representation from the political parties and party-list organizations. The presence of the three Justices, as against six members of [each House], was intended as an additional guarantee to ensure impartiality in the judgment of cases before it. As such, there should always be one member of the Tribunal who is a Justice. If all three Justice-members inhibit themselves in a case, the Supreme Court will designate another Justice to chair the Electoral Tribunal. (Reyes v. HRET, G.R. No. 221103, Oct. 16, 2018) Nature of Tribunals The tribunal was created to function as a nonpartisan court although two-thirds of its members are politicians. It is a non-political body in a sea of politicians. As judges, the members of the tribunal must be non-partisan. They must discharge their functions with complete detachment, impartiality, and independence Page 63 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 even independence from the political party to which they belong. Hence, "disloyalty to party" and "breach of party discipline," are not valid grounds for the expulsion of a member of the tribunal. (Bondoc v. Pineda, G.R. No. 97710, Sept. 26, 1991) LEONEN: An Electoral Tribunal is a quasi-judicial body. Therefore, the degree of proof required is only substantial evidence or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (David v. SET, G.R. No. 221538, Sept. 20, 2016) Security of Tenure Membership in the HRET may not be terminated except for a just cause, such as the expiration of the member's congressional term of office, his death, permanent disability, resignation from the political party he represents in the tribunal, formal affiliation with another political party, or removal for other valid cause. A member may not be expelled by the HOR for par di lo al short of proof that he has formally affiliated with another political group. (Bondoc v. Pineda, G.R. No. 97710, Sept. 26, 1991) 2. POWERS Jurisdiction Each Electoral Tribunal shall be the sole judge of all contests relating to the (ERQ) 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. Q alifica ion are not limited to the qualifications prescribed by the Constitution for a Member of Congress under Art. VI, Sec. 6. (Guerrero v. COMELEC, G.R. No. 137004, July 26, 2000) The COMELEC jurisdiction over election contests relating to election, returns, and qualifications ends, and the HRET's own jurisdiction begins once a winning candidate is: 1. proclaimed 2. taken his oath, and POLITICAL LAW 3. assumed office as a Member of the House of Representatives. (Aggabao v. COMELEC, G.R. No. 163756, Jan. 26, 2005) Thus, in an electoral contest where the validity of the proclamation of a winning candidate who has taken his oath of office and assumed his post as Congressman is raised, that issue is best addressed to the HRET. (Guerrero v. COMELEC, G.R. No. 137004, July 26, 2000) Once COMELEC loses its jurisdiction, the proper remedy is to file a petition for quo warranto before the HRET and not a petition for certiorari before the Supreme Court. (Señeres v. COMELEC, G.R. No. 178678, Apr. 16, 2009) Note: The Constitution provides that a person assumes office a noon on the 30th day of J ne . The Oath of Office the petitioner presented is not valid. As far as the court is concerned, she took her oath on 5th of June which is not the one prescribe by the Constitution. Therefore, the COMELEC still has jurisdiction. Before there is a valid taking of the oath, it must be made: 1. before the Speaker of the House of Representatives, and 2. in open session. (Reyes v. COMELEC, G.R. No. 207264, June 25, 2013) Does the HRET have jurisdiction over preproclaimed controversies? No, the COMELEC has exclusive jurisdiction over pre-proclaimed controversies. (Omnibus Election Code, § 242) Is jurisdiction lost upon withdrawal or protest? No. Jurisdiction once acquired, is not lost upon the instance of the parties, but continues until the case is terminated. Mere filing of a motion to withdraw protest, without any action on the part of the tribunal, does not divest it of jurisdiction. An election protest is impressed with public interest in the sense that the public is interested in knowing what happened in the elections. Thus, private interest must yield to the common good. (Robles v HRET, G.R. No. 86647, Feb. 5, 1990) Page 64 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Election Contest where a defeated candidate receiving the second highest number of votes challenges the qualifications of a winning candidate and claims for himself the seat of a proclaimed winner. In the absence of an election contest, the Electoral Tribunal is without jurisdiction. However, each House can expel its own members or even defer their oath taking until their qualifications are determined. This may be exercised even without an election contest. The power of the HRET to determine the citizenship of a winning candidate does not include looking at the grant of citizenship to the candida e ascendant. That would be a prohibited collateral attack (Vilando v. HRET, G.R. Nos. 192147 & 192149, Aug. 23, 2011). An Electoral Tribunal may annul election results if in its determination, fraud, terrorism or other electoral irregularities existed to warrant the annulment. Because in doing so, it is merely exercising its constitutional duty to ascertain who among the candidates received the majority of the valid votes cast. (Abayon v. HRET, G.R. No. 222236, May 3, 2016) Since the Electoral Tribunals are independent constitutional bodies: Neither Congress nor the Courts may interfere with procedural matters relating to the functions of the Electoral Tribunals. (Angara v. Electoral Commission, G.R. No. L-45081, July 15, 1936) Its members may not be arbitrarily removed from their positions in the tribunal by the parties that they represent. Neither may they be removed for not voting according to party lines, since they are acting independently of Congress. (Bondoc v. Pineda, G.R. No. 97710, Sept. 26, 1991) The mere fact that the members of either the Senate or the House sitting on the Electoral Tribunal are themselves the ones sought to be disqualified (due to the filing of an election contest against them) does POLITICAL LAW not warrant the disqualification of all the members of the Electoral Tribunal. (Abbas v. SET, G.R. No. 83767, Oct. 27, 1988) Judicial review of decisions of the Electoral Tribunals may be had with the Supreme Court only on the ground of grave abuse of discretion, the decision or resolution having been rendered without or in excess of jurisdiction. (Pimentel v. HRET, G.R. No. 141489, Nov. 29, 2002) o E.g. A final vote tally made by an Electoral Tribunal without supporting evidence has been struck down by the Court. (Lerias v. COMELEC, G.R. No. 97105, Oct. 15, 1991) Jurisprudence (LEONEN) When the names of the parents of a foundling cannot be discovered despite a diligent search, but sufficient evidence is presented to sustain a reasonable inference that satisfies the quantum of proof required to conclude that at least one or both of his or her parents is Filipino, then this should be sufficient to establish that he or she is a naturalborn citizen. When these inferences are made by the SET in the exercise of its sole and exclusive prerogative to decide the qualifications of the members of the Senate, then there is no grave abuse of discretion. (David v. SET, G.R. No. 221538, Sept. 20, 2016) The cardinal objective in ballot appreciation is to discover and give effect to, rather than frustrate, the intention of the voter. Extreme caution is observed before any ballot is invalidated and doubts are resolved in favor of the ballo validity. This Court finds no grave abuse of discretion by the HRET in its findings after its careful review of the objected ballots and guided by existing principles, rules and rulings on its appreciation. (Locsin v. HRET, G.R. No. 204123, March 19,2013) Rule Making Power The power of the HRET, as the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives, to promulgate rules and regulations relative to matters within its jurisdiction, Page 65 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 including the period of filing election protests before it, is beyond dispute. I rule-making power necessarily flows from the general power granted it by the Constitution. (Lazatin v HRET, G.R. No. 84297, 1998) COMMISSION ON APPOINTMENTS 1. NATURE Composition 1. Senate President as ex-officio chairman 2. 12 Senators 3. 12 Members of the House The Commission on Appointments (CA) acts as a legislative check on the appointing authority of the President. For the effectivity of the appointment of certain key officials enumerated in the Constitution, the consent of the CA is needed. (Bernas) Manner of Constitution Elected on the basis of proportional representation from the political parties and party-list organizations within 30 days after the Senate and the House of Representatives shall have organized with the election of the Senate President and the Speaker of the House (PHIL. CONST., art. VI, § 19.) The Constitution does not require that the poli ical par ie be registered before the COMELEC. (Daza v. Singson, G.R. No. 86344, Dec. 21, 1989) The minimum required number of elected senators belonging to the same political party in order for the party to qualify for a seat in the CA is at least two (2) elected senators for every seat in the CA. (Guingona v. Gonzales, G.R. No. 106971, March 1, 1993). The Constitution does not require that the full complement of 12 senators be elected to the membership in the CA before it can discharge its functions and that it is not mandatory to elect 12 senators to the CA (Guingona vs. Gonzales, G.R. No. 106791, March 1, 1993). POLITICAL LAW The two Houses have primary jurisdiction on who should sit in the CA. This includes determination of party affiliation and number of party members for purpose of determining proportional representation (Drilon v. De Venecia, G.R. No. 180055, July 31, 2009). Voting 1. The Commission shall rule by a majority vote of all the Members. (PHIL. CONST., art. VI, § 18.) 2. The chairman shall only vote in case of a tie. (Id.) 3. The Commission shall act on all appointments submitted to it within 30 session days. (Id.) 4. The Commission shall meet only while Congress is in session, at the call of its Chairman or a majority of all its members. (PHIL. CONST., art. VI, § 19.) 2. POWERS Jurisdiction (PHIL. CONST., art. VII, § 16.) The Commission on Appointments shall confirm the appointments by the President with respect to the following positions: (E-MA²-C) 1. Heads of the Executive Departments o Exception: Appointment of Vice President as a member of the Cabinet needs no confirmation (PHIL. CONST., art. VII, § 15.) 2. Ambassadors, 3. Other public Ministers or consuls 4. Officers of the AFP from the rank of Colonel or Naval Captain and above; and 5. Other officers whose appointments are vested in him by the Constitution (e.g. COMELEC members) o Examples: Chairmen and commissioners of the CSC, COMELEC, and COA; regular members of the Judicial Bar Council (JBC) Note: The consent of Commission on Appointments is required only in the 1st sentence Page 66 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 enumeration of Art. VII, Section 16. (Sarmiento v. Mison, G.R. No L-79974, Dec. 17, 1987) j. Limitations 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. Appointments extended by the President to the enumerated positions while Congress is not in session shall only be effective until disapproval by the CA, or until the next adjournment of Congress. Since the Commission on Appointments is an independent constitutional body, its rules of procedure are outside the scope of congressional powers as well as that of the judiciary. For further discussion on this topic, see page 79 VI (C)(2) [Powers of the President: Power of Appointment] of this Reviewer. H. POWERS OF CONGRESS General Classification 1. Legislative a. General plenary power b. Specific power of appropriation c. Taxation d. Expropriation e. Legislative investigation f. Question hour 2. Non-legislative a. Canvass presidential elections b. Declare the existence of a state of war c. Delegation of emergency powers d. Call a special election for President and Vice President e. Concur to treaties and amnesties f. Propose constitutional amendments g. Confirm certain appointments h. Impeach i. Decide the disability of the President in cases where majority of the Cabinet dispute his k. assertion that he is able discharge his duties Revoke or extend proclamation suspension of privilege of writ habeas corpus or declaration martial law Power with regard to utilization natural resources to of of of of 1. LEGISLATIVE INQUIRIES AND OVERSIGHT FUNCTIONS LEGISLATIVE INQUIRIES (PHIL. CONST., art. VI, § 21.) Scope The power of legislative investigation includes: 1. Power to issue summons and notices; 2. Power to punish or declare a person in contempt 3. The power to determine the rules of its proceedings Limitations: (ADR) 1. The inquiry must be in Aid of legislation. 2. The inquiry must be conducted in accordance with the Duly published rules of proced re of the House conducting the inquiry; and 3. The rights of persons appearing in or affected by such inquiries shall be Respected. (e.g., right to due process, right against self- incrimination) (Bernas, 1987 Philippine Constitution: A Commentary, 761, 2009). Nature and Purpose The power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to effect or change; and where the legislative body does not itself possess the requisite information which is not infrequently true recourse must be had to others who do possess it. (Arnault v. Nazareno, G.R. No. L-3820, July 18, 1950) Page 67 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Legislative inquiries must be conducted in aid of legislation which does not necessarily mean that there is pending legislation regarding the subject of the inquiry. Hence, the materiality of a question is determined not by its connection to any pending legislation, but by its connection to the general scope of the inquiry. (Bengzon v. Senate Blue Ribbon Committee, G.R. No. 89914, Nov. 20, 1991) If the investigation is no longer in aid of legi la ion but, in aid of prosecution where the stated purpose of the investigation is, to determine the existence of violations of the law, it is beyond the scope of congressional powers. Compulsory Process The power of legislative investigation includes the power to compel the attendance of witnesses. Corollary to the power to compel the attendance of witnesses is the power to ensure that said witnesses would be available to testify in the legislative investigation. (Standard Chartered v. Senate, G.R. No. 167173, Dec. 27, 2007). Duly Published Rules of Procedure It is incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress or otherwise make the published rules clearly state that the same shall be effective in subsequent Congresses or until they are amended or repealed to sufficiently put the public on notice. If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity. Publication in the internet does not satisfy the requirement of publication as provided in the Constitution (Garcillano v. House of Representatives, G.R. No. 170338, Dec. 23, 2008). Right against Self-Incrimination A subpoenaed witness cannot refuse to attend a legislative inquiry by invoking his or her right against self-incrimination. Such right may be invoked only when the incriminating question is being asked, since they have no way of knowing in advance the nature or effect of the questions to be POLITICAL LAW asked of them. (Sabio v. Gordon, G.R. No. 174340, Oct. 17, 2006). Non-Applicability of the Sub Judice Rule to Inquiries in Aid of Legislation The mere filing of a criminal or an administrative complaint before a court or a quasi-judicial body should not automatically bar the conduct of legislative investigation. Otherwise, it would be extremely easy to subvert any intended inquiry by Congress through the convenient ploy of instituting a criminal or an administrative complaint. Surely, the exercise of sovereign legislative authority, of which the power of legislative inquiry is an essential component, cannot be made subordinate to a criminal or an administrative investigation. (Standard Chartered v. Senate, G.R. No. 167173, Dec. 27, 2007). A legislative investigation in aid of legislation and court proceedings have different purposes. On one hand, courts conduct hearings or like adjudicative procedures to settle, through the application of a law, actual controversies arising between adverse litigants and involving demandable rights. On the other hand, inquiries in aid of legislation are, inter alia, undertaken as tools to enable the legislative body to gather information and, thus, legislate wisely and effectively; and to determine whether there is a need to improve existing laws or enact new or remedial legislation, albeit the inquiry need not result in any potential legislation. On-going judicial proceedings do not preclude congressional hearings in aid of legislation. (Romero v. Estrada, G.R. No. 174105, April 2, 2009) Power to Punish for Contempt The power to punish contempt must be considered implied or incidental to the exercise of legislative power. How could a legislative body obtain the knowledge and information on which to base intended legislation if it cannot require and compel the disclosure of such knowledge and information, if it is impotent to punish a defiance of its power and authority? (Standard Chartered v. Senate, G.R. No. 167173, Dec. 27, 2007). Page 68 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 The exercise by Congress or by any of its committees of its contempt power is based on the principle of self-preservation (i.e. preserving its authority and dignity). As the branch of the government vested with the legislative power, independently of the judicial branch, it can assert its authority and punish contumacious acts against it. Such power is sui generis, as it attaches not to the discharge of legislative functions per se, but to the sovereign character of the legislature as one of the three independent and coordinate branches of government. (Id.) Period of Detention for Contempt (Balag v. Senate, G.R. No. 234608, July 3, 2018) HOUSE OF SENATE REPRESENTATIVES Can last only until the Can last only until the final adjournment of termination of the the last session of legislative inquiry such Congress (even during recess) under which the said power is invoked The legislative inquiry of the Senate terminates on two instances: 1. Upon the approval or disapproval of the Committee Report 2. Upon the expiration of such Congress Prior to Balag, the prevailing rule was that the Senate, as a continuing body (as opposed to the House of Representatives), can incarcerate a witness indefinitely based on Arnault v. Nazareno. However, the Court ruled that an indefinite and unspecified period of detention will amount to excessive restriction and will certainly violate any person's right to liberty. (Id.) If Congress decides to extend the period of imprisonment for the contempt committed by a witness beyond the duration of the legislative inquiry, then it may file a criminal case under existing statute (Art. 150 of the Revised Penal Code penalizes the refusal of a witness to answer any legal inquiry before Congress), amend existing law, or enact a new law to increase the definite period of imprisonment. Augmenting its power of contempt and extending the period of imprisonment shall be in the sole discretion of Congress. This constitutes as a statutory power of contempt, which is different from the inherent power of contempt. (Id.) OVERSIGHT FUNCTIONS (PHIL. CONST., art. VI, § 22.) Section 22 pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress' oversight function. Question Hour Appearance of department heads before Congress to give account of their stewardship (Bernas, 1987 Philippine Constitution: A Commentary, 769, 2009). Under Section 22, department heads (members of the Executive Department) cannot be compelled to appear before Congress. Neither may department heads impose their appearance upon Congress. This is in line with the principle of separation of powers. Department Heads May Appear before Congress in the Following Instances: Upon their own initiative, with the consent of the President (and that of the House concerned) Upon the request of either House Written questions shall be submitted to the President of the Senate or Speaker of the House at least 3 days before the scheduled appearance of the department heads. Interpellations shall not be limited to written questions, but may cover related matters. Page 69 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 The inquiry will be conducted in executive session when: o Required by the security of state, or public interest, and o When the President so states in writing. There is no such thing as a q e ion ho r in the Constitution (It is a parliamentary concept and practice). The distinction in legislative hearings is between investigative function and oversight function. (Senate v. Ermita, G.R. No. 169777, April 20, 2006). Any post-enactment congressional measure should be limited to scrutiny and investigation, in following the principle separation of powers. An accountability mechanism with which the proper expenditure of public funds may be checked is the power of congressional oversight, which may be performed either through: 1. Scrutiny based primarily on Congre power of appropriation and the budget hearings conducted in connection with it, its power to ask heads of departments to appear before and be heard by either of its Houses on any matter pertaining to their departments and its power of confirmation; 2. Investigation and monitoring of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation. (Belgica v. Ochoa, G.R. No. 208566, Nov. 19, 2013). Question Hour vs. Legislative Investigation Sections 21 and 22, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congre oversight function. (Neri v. Senate, G.R. No. 180643, March 25, 2008) Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is "in aid of legislation" under Section 21, the appearance is mandatory (Senate v. Ermita, G.R. No. 169777, April 20, 2006). QUESTION HOUR (SEC. 22) Who may appear Who conducts Subject matter or purpose Nature Exempted persons Exempted informatio n Only department heads Entire body LEGISLATIVE INVESTIGATIO N (SEC. 21) Any person Entire body or its respective committees Any matter in aid of legislation Matters related to the department only as an exercise of Congre oversight function Discretionar Compulsory y All heads of (1) President departments (2) Justices of the of the Supreme Court Executive (3) Members of Branch of the AFP, if the prevented by the government President as shall secure Commander-inthe consent Chief (Gudani v. of the Senga, G.R. No. President 170165, Aug. 15, prior to 2006) appearing before either House of Congress (EO 464, Sec.1) (1) Executive privilege, which must be invoked by the President himself or through the Executive Secretary by authority of the Page 70 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 President (Senate v. Ermita, G.R. No. 169777, April 20, 2006) (2) Privileged information e.g. national defense, diplomatic, military secrets, etc. (3) Right against selfincrimination Invocation of Executive Privilege Under Article VI, Section 22, the appearance of department heads in the question hour is discretionary on their part. However, under Section 21, Congress is not bound to respect their refusal to appear in inquiries in aid of legislation, unless a valid claim of privilege is subsequently made, either by the President herself or by the Executive Secretary. (Senate v. Ermita, G.R. No. 169777, April 20, 2006) Only the President may invoke this. If it is invoked by some other person, there must be proof that he or she has Presidential authority. A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly asserted. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be respected (Senate v. Ermita, G.R. No. 169777, April 20, 2006). The President has constitutional authority to prevent any member of the Armed Forces from testifying before a legislative inquiry by virtue of her power as commander-in- chief, and that as a consequence a military officer who defies such injunction is liable under military justice. The only way to circumvent this is by judicial order because the President may be commanded by judicial order to compel the attendance of the military officer. Final judicial orders have the force of the law of the land which the President has the duty to faithfully execute (Gudani v. Senga, G.R. No. 170165, Aug. 15, 2006). When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22 of Article VI, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is in aid of legi la ion under Section 21, Article VI, the appearance is mandatory (Senate v. Ermita, G.R. No. 169777, April 20, 2006). 2. NON-LEGISLATIVE a. Informing function The power of Congress, when it investigates, is not limited to oversight or in aid of legislation. Equally important and a fundamental power and duty of Congress is its informing function by way of investigating for the purpose of enlightening the electorate. The informing function of Congress should be preferred even to its legislative function [for] the only really self-governing people is that people which discusses and interrogates its admini ra ion (Akbayan v. Aquino, G.R. 170516, July 16, 2008; J. Azcuna, Separate-Dissenting opinion citing Schlesinger, 10, 76-77 quoting Wilson, Congressional Government, 278, 279, 299, 301, 303). b. Power of impeachment (Phil. Const., art. XI.) Exclusive Power To Initiate The House of Representatives shall have the exclusive power to initiate all cases of impeachment (PHIL. CONST., art. IX, § 3(1).) The impeachment proceedings begin with a complaint filed with the House of Representatives either by a member of the House or by any citizen supported by a Page 71 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 resolution of endorsement by any member. The complaint is referred to a Committee which prepares a report (which can be favorable or unfavorable). In either case, the House by a vote of 1/3 of all its members decides whether complaint should be given due course. (PHIL. CONST., art. IX, § 3(2 & 3).) Referral to the Committee and decision by the House is unnecessary if the complaint is filed by at least 1/3 of all the members of the house (PHIL. CONST., art. IX, § 3(4).) Exclusive Power to Try and Decide The Senate shall have the sole power to try and decide all cases of impeachment. No person shall be convicted without the concurrence of 2/3 of all the Members of the Senate (PHIL. CONST., art. IX, § 3(6).) The penalty imposable shall be limited to: removal from office and disqualification to hold any office under the Republic of the Philippine (PHIL. CONST., art. IX, § 3(7).) Officers Subject to Impeachment (PHIL. CONST., art. IX, § 2.) (P-VSCO) President Vice President Members of the Supreme Court Members of the Constitutional Commissions Ombudsman Grounds for Impeachment (PHIL. CONST., art. IX, § 2.) (BGC-T2O) Bribery Graft and Corruption Culpable Violation of the Constitution Treason Betrayal of Public Trust Other high crimes I. INITIATIVE AND REFERENDUM See Part V(1) for discussion. - end of topic Page 72 of 568 EXECUTIVE DEPARTMENT Political Law ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 VI. EXECUTIVE DEPARTMENT TOPIC OUTLINE UNDER THE SYLLABUS: VI. EXECUTIVE DEPARTMENT A. QUALIFICATIONS, ELECTION, AND TERM OF THE PRESIDENT AND VICEPRESIDENT B. PRIVILEGES, INHIBITIIONS, DISQUALIFICATIONS 1. Presidential Immunity 2. Presidential Privilege AND C. POWERS OF THE PRESIDENT 1. General executive and administrative powers 2. Powers of appointment a. In General b. Limitations on the Exercise/Power c. Types of Appointment 3. Power of control and supervision a. Doctrine of Qualified Political Agency b. Executive Departments and Offices c. Local Government Units 4. Emergency Powers 5. Commander-in-chief Powers a. Calling out Powers b. Declaration of Martial Law and Suspension of the Privilege of the Writ of Habeas Corpus; Extension 6. Executive Clemency a. Nature and Limitation b. Forms of executive Clemency 7. Diplomatic Power 8. Powers Relative to Appropriation Measures 9. Delegated Powers 10. Residual Powers 11. Veto Powers D. RULES OF SUCCESSION A. QUALIFICATIONS, ELECTION, AND TERM OF PRESIDENT AND VICEPRESIDENT Qualifications of President and Vice-President (Secs 3-4): PRESIDENT VICEPRESIDENT 1. Natural-born citizen of the Philippines 2. Registered voter 3. Able to read and write 4. At least 40 years old on the day of election 5. Resident of the Philippines for at least 10 years immediately preceding the election 6. Term of 6 years 7. Unless otherwise provided by law, term of office commences at noon of June 30 next following the election Single term only; not Term limitation; 2 eligible for any successive terms reelection (but can run if no longer incumbent president, like President Estrada in May 2020) Any person who has succeeded as President, and served as much for more than 4 years shall NOT be qualified for election to the same office at any time Voluntary renunciation of the office for any length of time shall not be considered an interruption in the continuity of service Term of Office The President and Vice President shall be elected by direct vote of the people for a term of 6 years (PHIL. CONST. art. VII, § 4). The president shall not be eligible for any reelection. No person who has succeeded as President and has served for more than 4 years shall be qualified for election to the same office at any time. (PHIL. CONST., art VII, § 4, ¶ 1). Page 74 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 No Vice-President shall serve for more than 2 consecutive terms. (PHIL. CONST., art. VII, § 4, ¶ 2). Election Regular: 2nd Monday of May, every 6 years Special (Requisites) Death, Permanent disability, removal from office or resignation of both President and Vice-President Vacancies occur more than 18 months before the next regular presidential election; and A law passed by Congress calling for a special election to elect a President and Vice President to be held not earlier than 45 days nor later than 60 days from the time of such call (PHIL. CONST., art VII, § 10) Congress as Canvassing Board The proclamation of presidential and vice presidential winners is a function of Congress and not of the COMELEC (Macalintal v COMELEC, G.R. No. 157013, June 10, 2003) SC as the Presidential Electoral Tribunal (PET) The SC, sitting en banc, shall be the sola judge of all contests relating to the election, returns and qualifications of the President or Vice President, and may promulgate its rules for the purpose. (Macalintal v. PET, G.R. No. 191618, Nov. 23, 2010) Oath of Office Before they enter on the execution of their office, the President, Vice President or the Acting President shall take the oath or affirmation (PHIL. CONST., art. VII, § 5). B. PRIVILEGES, INHIBITIIONS, AND DISQUALIFICATIONS Disqualifications SUBJECT President Vice President Cabinet Members Deputies Assistants Cabinet members or of SOURCE OF DISQUALIFICATION PROHIBITED FROM: Holding any office or employment during their tenure Exceptions: Otherwise provided in the Constitution (e.g., Vice President appointed as a member of the Cabinet, Secretary of Justice sits as an exofficio member on Judicial and Bar Council) The positions are exofficio and they do not receive any salary or other emoluments therefor (e.g. Sec. of Finance is head of Monetary Board) Practicing, directly or indirectly, any other profession during their tenure Participating business in any 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 GOCCs or their subsidiaries (PHIL. CONST., art VII, § 13) Page 75 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Spouses and 4th degree relatives of the President (consanguinity or affinity) Cannot be appointed during Pre iden en re a : (a) Members of the Constitutional Commissions (b) Office of the Ombudsman (c) Department Secretaries (d) Department Undersecretaries (e) Chairman or heads of bureaus or offices including GOCCs and their subsidiaries If the spouse, etc., was already in any of the above offices before his/her spouse became President, he/she may continue in office. What is prohibited is appointment and reappointment, not continuation in office. Spouses etc., can be appointed to the judiciary and as ambassadors and consuls The Chief Presidential Legal Counsel (CPLC) has the duty of giving independent and impartial legal advice on the actions of the heads of various executive departments and agencies and to review investigations involving heads of executive departments and agencies, as well as other Presidential appointees. The PCGG is charged with the responsibility, under the President, of recovering ill-gotten wealth. The offices of the PCGG and CPLC are incompatible. Without question, the PCGG is an agency under the Executive Department. Thus, the actions of the PCGG Chairman are subject to the review of the CPLC (Public Interest Group v. Elma, G.R. No. 138965, June 30, 2006). Exception to the Prohibition on the President and His/Her Official Family from Holding Any Other Office or Employment If 4th degree relatives are already in office when a President assumes office, the relatives are not POLITICAL LAW thereby ousted from their positions. What is prohibited is appointment or reappointment and not uninterrupted continuance in office Inhibitions No increase in salaries until after the expiration of the term of the incumbent during which such increase was approved (PHIL. CONST., art. VII, §6). Shall not, during tenure, directly or indirectly, practice any other profession, participate in any business, or be 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 GOCCs or their subsidiaries (PHIL. CONST., art. VII, § 13). Shall not receive any other emoluments from the government or any other source (PHIL. CONST., art. II, § 6) Shall avoid conflict of interest in conduct of office (PHIL. CONST., art. VII, § 13). 1. PRESIDENTIAL IMMUNITY Immunity from suit is personal to the President and may be invoked by him alone. The President may waive it impliedly, as when he himself files suit (Soliven v. Makasiar, G.R. No. 82585, Nov. 14, 1988). The presidential immunity from suit remains preserved under our system of government, albeit not expressly reserved in the present constitution (Rubrico, et al. v. Gloria Macapagal-Arroyo, et al., G.R. No. 183871, Feb. 18, 2010). Unlawful acts of public officials are not acts of State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser. Once out of office, even before the end of the six-year term, immunity for non-official acts is lost (Estrada v. Desierto, G.R. No. 146710-15, March 2, 2001). Even if the DECS Secretary is an alter ego of the President, the Pre iden immunity from suit cannot be invoked because the questioned acts Page 76 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 are not the acts of the President but merely those of a Department Secretary (Gloria v. CA, G.R. No. 119903, Aug. 15, 2000). Duration of Presidential Immunity After his tenure, the Chief Executive cannot invoke immunity from suit for civil damages arising out of acts done by him while he was President which were not performed in the exercise of official duties. (Estrada v. Desierto, G.R. No. 146710, March 2, 2001) A department secretary, even if an alter ego of the President, cannot invoke presidential immunity in a case filed against him because the questioned acts are not the acts of the President. (Gloria v CA, G.R. No. 119903, Aug. 15, 2000) 2. PRESIDENTIAL PRIVILEGE Executive Privilege is the power of the President to withhold certain types of information from the court, the Congress, and the public. (Neri v. Senate, G.R. No. 180643, March 25 2008). For the presidential communications privilege to apply, the following must concur: (a) Communications relate to a q in e en ial and nondelegable po er of the President. (e.g. the power to enter into an executive agreement with other countries without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence) (b) Communications are recei ed by a close advisor of the President. Under the opera ional pro imi test, Secretary Neri of NEDA can be considered a close advisor, being a member of President Arro o cabinet. (c) There is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority. Scope of Executive Privilege Executive privilege covers all confidential or classified information between the President and POLITICAL LAW the public officers covered by this executive order; including: (a) Conversations and correspondence between the President and the public official covered by this executive order (Chavez v Public Estates Authority, G.R. No. 133250, July 9, 2002) (b) Military, diplomatic and other national security matters which in the interest of national security should not be divulged; (c) Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. PCGG, G.R. No. 130716, Dec. 9, 1998); (d) Discussion in close-door Cabinet meetings (Chavez v. PCGG, G.R. No. 130716, Dec. 9, 1998); (e) Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, Jul. 9, 2002). Person Covered by the Privilege The person covered by the executive privilege is a person in possession of information which is, in the judgment of the head of office concerned, privileged Operational Proximity Not every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege. The privilege should apply only to communications authored or solicited and received by those members of an immediate White House ad i or staff who have broad and significant responsibility for investigation and formulating of the advice to be given the President on the particular matter to which the communications relate (Neri v. Senate Committee, G.R. No. 180643, March 25, 2008 citing In re: Sealed, No. 96-3124, 121 F.3d 729,326 U.S. App. D.C. 276, 1997). Presidential communications are presumptively privileged and such presumption can be overcome only by mere showing of public need by the branch seeking access to conversations. The oversight function of Congress may be facilitated by compulsory process ONLY to the extent that it is Page 77 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 performed in pursuit of legi la ion (Neri v. Senate, G.R. No. 180643, March 25, 2008). While the final text of the JPEPA may not be kept perpetually confidential - since there should be ample opportunity for discussion before a treaty is appro ed the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. Diplomatic negotiations privilege bears a close resemblance to the deliberative process and residential communica ion privilege. Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged character of the deliberative process (Akbayan v. Aquino, G.R. No. 170516, July 16, 2008). When To Apply Executive Privilege: (a) Must fall within one of the above. (b) Must be stated with sufficient particularity so the Congress or Court can determine the legitimacy of the claim of privilege. Exception to Executive Privilege: The President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. (U.S. v. Nixon, 418 U.S. 683, 1974). Executive privilege cannot be used to conceal a crime or a possible wrongdoing. Thus, the specific need for evidence in a pending criminal trial outweighs the Pre iden generalized interest in confidentiality (Neri v. Ermita, G.R. No. 169777, April 20, 2006). Difference between Presidential Communications Privilege and Deliberative Process Privilege Presidential Deliberative Process Communications Privilege Privilege Pertains to Includes advisory communications, opinions, documents or other recommendations and materials that reflect deliberations presidential decision- comprising part of a making and process by which deliberations governmental decisions and policies are formulated Applies to decision- Applies to decisionmaking of the making of executive President officials (and judiciary) Rooted in the constitutional principle of separation of powers Based on common law privilege Requisites: Requisites: (a) It must involve a (a) Predecisional it quintessential and precedes, in non-delegable temporal sequence, power of the the decision to President which it relates (b) Operational (b) Deliberative Proximity reflects the give and (c) Important and take of the compelling need to consultative be confidential, not process such that merely based on disclosure would general interest discourage candid discussion within the agency (In Re: Production of Court Records and Documents, Feb. 14, 2012) Page 78 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW C. POWERS OF THE PRESIDENT 2. POWERS OF APPOINTMENT 1. GENERAL EXECUTIVE AND ADMINISTRATIVE POWERS a. In General Executive Powers, In General The Constitution provides that "[t]he executive power shall be vested in the President of the Philippine . However, it does not define what is meant by executive power although in the same article it touches on the exercise of certain powers by the President, i.e., the power of control over all executive departments, bureaus and offices, the power to execute the laws, the appointing power, the powers under the commander-in-chief clause, the power to grant reprieves, commutations and pardons, the power to grant amnesty with the concurrence of Congress, the power to contract or guarantee foreign loans, the power to enter into treaties or international agreements, the power to submit the budget to Congress, and the power to address Congress. The Pre iden Executive powers are not limited to those set forth in the Constitution. The President has residual powers as the Chief Executive of the country, which powers include others not set forth in the Constitution (Marcos v. Manglapus, G.R. No. 88211, Sept. 15, 1989). Power of Administrative Reorganization The President has the continuing authority to reorganize the national government, which includes the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities and to standardize salaries and materials, if effected in good faith and for the purpose of economy or make the bureaucracy more efficient. (MEWAP v Executive Secretary, G.R. No. 160093, July 31, 2007) Faithful Execution Clause Until and unless a law is declared unconstitutional, the President has a duty to execute it regardless of his doubts as to its validity. Nature of the Power to Appoint Executive in nature; while Congress (and the Constitution in certain cases) may prescribe the qualifications for particular offices, the determination of who among those who are qualified will be appointed is the Pre iden prerogative. In case of vacancy in an office occupied by an alter ego of the President, such as the office of a department secretary, the President must necessarily appoint an alter ego of her choice as acting secretary before the permanent appointee of her choice could assume office. Congress, through a law, cannot impose on the President the obligation to appoint automatically the undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds a position of great trust and confidence. Congress, in the guise of prescribing qualifications to an office, cannot impose on the President who her alter ego should be (Pimentel v. Ermita, G.R. No. 164978, Oct. 13, 2005). May the President appoint an individual as acting Solicitor General and acting Secretary of Justice? The President may not appoint an individual as acting Solicitor General and acting Secretary of Justice in a concurrent capacity. The designation of Alberto Agra as acting Secretary of Justice concurrently with his position as Solicitor General is in violation of the constitutional prohibition under Article VII, Section 13. It is of no moment that the designation was in a temporary capacity. The Constitution makes no reference to the nature of the designation (Funa v. Agra, G.R. No. 191644, Feb. 19, 2013). b. Limitations on the Exercise/Power The Constitutional Limitations on the P appointing power The President may not appoint his/her spouse and relatives by consanguinity or affinity within the 4th civil degree as members of the: Page 79 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 (a) (b) (c) (d) (e) (f) Constitutional Commissions Ombudsman Department Secretaries Undersecretaries Chairmen and heads of Bureaus and Offices GOCCs (PHIL. CONST., art. VII, § 13) Appointments extended by an acting President shall remain effective unless revoked by the elected President within 90 days from assumption of office (PHIL. CONST., art. VII, § 14) Two months immediately before the next Presidential elections and up to the end of his/her term, a President or Acting President shall not make appointments except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety (PHIL. CONST., art. VII, § 15). The appointment of the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution require the consent of the Commission on Appointments (PHIL. CONST., art. VII, § 16). c. Types of Appointment Kinds of Presidential Appointments under Art VII, Sec.15 of the Constitution (a) Appointments made by an acting president (b) Midnight appointment appointment made by a President after the election of his successor and up to the end of his term. This is prohibited by the Constitution. (c) Appointments for Partisan Political Consideration. Those made 2 months before the next Presidential election. This is prohibited by the Constitution. (d) Regular presidential appointments, with or without confirmation by the Commission on Appointments, and rece or adin erim appointments. POLITICAL LAW Appointment in an Acting Capacity The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap measure intended to fill an office for a limited time until the appointment of a permanent occupant to the office. The law expressly allows the President to make such acting appointment. EO 292 states ha [ ]he Pre iden ma emporaril de igna e an officer already in the government service or any other competent person to perform the functions of an office in he e ec i e branch. B EO 292 also provides that acting appointments cannot exceed one year. The law has incorporated this safeguard to prevent abuses, like the use of acting appointments as a way to circumvent confirmation by the Commission on Appointments. (Pimentel v. Ermita, G.R. No. 164978, Oct. 13, 2005) Requisites for Valid Appointment Authority to appoint and evidence of its exercise; Transmittal of the appointment and proof of it; Vacant position at the time of appointment; and receipt of the appointment and its acceptance by the appointee, who possesses all the qualifications and none of the disqualifications. (Velicaria-Garafil v. OP, G.R. No. 203372, June 16, 2015). Exceptions to Midnight Appointments Requisites (a) It is necessary to make such appointment (b) Only temporary appointments can be extended (c) Appointments only in the Executive Department (PHIL. CONST., art. VII, § 15) The Court held that the rule does not apply to appointments made in the Supreme Court. (De Castro v. JBC, G.R. No. 191002, April 20, 2010) Ad-Interim Appointments (PHIL. CONST., art VII, § 16) When Congress is in recess, the President may still appoint officers to positions subject to CA confirmation. These appointments are effective immediately, but are only effective until they are disapproved by the CA or until the next adjournment of Congress. Page 80 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Applies only to positions requiring confirmation of CA Appointments to fill an office in an ac ing capacity are NOT adinterim in nature and need no CA approval. The assumption of office on the basis of the ad interim appointments issued by the President does not amount to a temporary appointment which is prohibited by § 1 (2), Art. IX-C. An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. (Matibag v. Benipayo G.R. No. 149036, April 2, 2002). What is an ad interim appointment? An ad interim appointment is a permanent appointment unless otherwise indicated. It is an appointment made by the President while Congress is NOT in session or during recess. How Ad-Interim Appointments Terminated (a) Disapproval of the appointment by the CA; (b) Adjournment by the Congress without the CA acting on the appointment (NACHURA) Difference between Disapproval and ByPassed Appointments APPOINTMENTS BY-PASSED DISAPPROVED APPOINTMENTS When the Commission When an ad-interim disapproves an ad position is by-passed interim appointment, because of law of time the appointee can no or failure of the longer be extended a Commission to new appointment, organize, there is no inasmuch as the final decision, the disapproval is a final President is free to decision in the renew the ad-interim exercise of the appointment. Commi ion checking power on the appointment authority of the President POLITICAL LAW Appointments By An Acting President (PHIL. CONST., art. VII, § 14) These shall remain effective unless revoked by the elected President within 90 days from his assumption or re-assumption of office. The power of the succeeding President to revoke appointments made by the Acting President refers only to appointments in the Executive Department (De Castro v. JBC, G.R. No. 191002, April 20, 2010). Regular Appointments Requiring Consent of Commission on Appointment (CA) The following may be appointed by the president, subject to approval by the Commission on Appointments (CA): (a) Heads of executive departments (b) Ambassadors, consuls, and other public ministers (c) Officers of AFP from the rank of colonel or naval captain (d) Other officers whose appointment is vested in him by the Constitution, such as: a. Chairmen and members of the COMELEC, COA, and CSC. b. Regular members of the JBC. c. The Ombudsman and his deputies. d. Sectoral representatives in Congress, as provided in Transitory Provisions (Sec. 16). Appointments With Prior Recommendation or Nomination By The JBC Members of the SC and judges of the lower courts; these appointments do not need CA confirmation (PHIL. CONST., art. VIII, § 9). Ombudsman and his Deputies (PHIL. CONST., art. VIII, § 9). Regular Appointments Without Need Of CA Confirmation All other officers whose appointments are not otherwise provided for by law and those whom he may be authorized by law to appoint do not require CA confirmation. This includes the Chairman and members of the Commission on Human Rights Page 81 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 (CHR), whose appointments are provided for by law, and NOT by the Constitution. (PHIL. CONST., Art. VII, Sec. 16) Congress may, by law, vest in the President alone or in the courts, or in the heads of departments, agencies boards or commissions the appointment of other officers lower in rank than those mentioned above (PHIL. CONST., Art. VII, Sec 16) However, 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 (Calderon v. Carale, G.R. No. 91636, April 23, 1992). (b) (c) PROCEDURE WHEN CA CONFIRMATION NEEDED: (a) Nomination by President (b) Confirmation by CA (c) Appointment by President (d) Acceptance by appointee. a. At any time before all four steps have been complied with, the President can withdraw the nomination or appointment. (d) Procedure When No CA Confirmation Needed: (a) Appointment (b) Acceptance Once appointee accepts, President can no longer withdraw the appointment Midnight Appointments General Rule: Two (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 making midnigh appoin men . (PHIL. CONST., art. VII, § 15). Exception: Temporary appointments to executive positions if continued vacancies will prejudice public service or endanger public safety. (a) Prohibition does not extend to appointments in the Supreme Court. Had the framers intended to extend the (e) prohibition to the appointment of Members of the Supreme Court, they could have explicitly done so. The prohibition is confined to appointments in the Executive Department. Existence of the JBC also prevents possible abuses in appointment (De Castro v JBC, G.R. No. 191002, April 20, 2010); overturned In re: Appointment of Valenzuela, A.M. 98-5-01-SC, Nov. 9, 1998). There is no law that prohibits local elective officials from making appointments during the last days of his or her tenure. Prohibition only applies to appointments by the President (De la Rama v. CA, G.R. No. 131136, Feb. 28, 2001). If the President is not satisfied with the list submitted by the JBC, he may ask for another list. But once the appointment is issued by the President and accepted by the nominee, it needs no further confirmation. President may appoint SC Justice within 60 days prior to election. Article VII deals entirely with the executive department while Article VIII deals with the judiciary. Had the framers intended to extend the 60day prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the Pre iden or Acting Pre iden term does not refer to the Members of the Supreme Court. The usage in Section 4 (1), Article VIII of the word shall an imperative, operating to impose a duty that may be enforced should not be disregarded. The framers did not need to extend the prohibition against midnight appointments to appointments in the Judiciary, because the establishment of the JBC and subjecting the nomination and screening of candidates for judicial positions to the Page 82 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 unhurried and deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the Judiciary. JBC intervention eliminates the danger that appointments to the Judiciary can be made for the purpose of buying votes in a coming presidential election, or of satisfying partisan considerations. The creation of the JBC was precisely intended to de-politicize the Judiciary by doing away with the intervention of the Commission on Appointments (De Castro v. JBC, G.R. No. 191002, April 20 2010). Prohibition against Midnight Appointments applicable to Presidential Appointments only (LEONEN) The prohibition on midnight appointments under Article VII, Sec 15 only applies to presidential appointments. It does not apply to appointments made by local chief executives. Nevertheless, the Civil Service Commission has the power to promulgate rules and regulations to professionalize the civil service. It may issue rules and regulations prohibiting local chief executives from making appointments during the last days of their tenure. Appointments of local chief executives must conform to these civil service rules and regulations in order to be valid. (Provincial Government of Aurora v Marco, G.R. No. 202331, April 22, 2015) Power of Removal General Rule: The express power of appointment of the President has the corollary implied power of removal. Hence, the President may remove appointees. Exception: Appointments requiring certain methods for removal (e.g., Impeachment, appointment of judges of inferior courts (PHIL. CONST., art. VIII, § 11; Gonzales III vs. Office of the President of the Philippines, G.R. No. 196231, Sept. 4, 2012). The succeeding President may not revoke appointments to the Judiciary made by an Acting President. Sec. 14, Art. VII refers only to appointments in the Executive Department. It has no application to appointments in the Judiciary POLITICAL LAW because temporary or acting appointments can only undermine the judiciary due to their being revocable at ill Prior to their mandatory retirement or resignation, judges of the first or second level courts and the Justices of the third level courts may only be removed for cause, but the members of the Supreme Court may be removed only by impeachment (De Castro v. JBC, G.R. No. 191002, Apr. 20, 2010). Disciplinary Powers The power of the President to discipline officers flows from the power to appoint the officer, and NOT from the power of control. 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. 3. 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. The Pre iden power of control is a self-executing provision. The incumbent President is free to amend, rescind and modify any political agreements entered into by the previous Presidents (Ocampo v. Enriquez, G.R. No. 225973, Nov. 8, 2016). The appeal from the decision of a Department Secretary to the President can be restricted due to the Pre iden power of control. It may be limited by executive order of the President, a law providing for judicial review, and a rule of procedure promulgated by the Supreme Court. (Angeles v. Gaite, G.R. No. 165276, Nov. 25, 2009). Power of Supervision The power of a superior officer to ensure that the laws are faithfully executed by subordinates. Page 83 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 The power of supervision does not include the power of control; but the power of control necessarily includes the power of supervision. The Pre iden power over GOCCs comes not from the Constitution but from statute. Hence, it may similarly be taken away by statute. For Administrative Proceedings, decisions of Department Secretaries need not be appealed to the President in order to comply with the requirement of exhaustion of administrative remedies. The execution of laws is an OBLIGATION of the President. He cannot suspend the operation of laws. a. Doctrine of Qualified Political Agency QUALIFIED POLITICAL AGENCY - Acts of department heads, etc., performed and promulgated in the regular course of business, are presumptively acts of the President. Exceptions: If the acts are disapproved or reprobated by the President. If the President is required to act in person by law or by the Constitution (e.g. the power to grant pardons). Application to Cabinet Members and Executive Secretary (LEONEN) The doctrine of qualified political agency acknowledges the multifarious executive responsibilities that demand a president's attention, such that the delegation of control power to his or her Cabinet becomes a necessity. Unless the Constitution or law provides otherwise, Cabinet members have the president's imprimatur to exercise control over the offices and departments under their respective jurisdictions, which authority nonetheless remains subject to the president's disapproval or reversal. In a long line of decisions, the Court upheld the notion that "the power of the president to reorganize the National Government may validly be delegated to his [or POLITICAL LAW her] cabinet members exercising control over a particular executive depar men . But the Court retains the distinction that the doctrine remains limited to the President's executive secretary and other Cabinet secretaries. It does not extend to deputy executive secretaries or assistant deputy secretaries. Clearly, the president cannot be expected to personally exercise his or her control powers all at the same time. This entails the delegation of power to his or her Cabinet members. (Philippine Institute for Development Studies v. Commission on Audit, GR. No. 212022, Aug. 20, 2019) b. Executive Departments and Offices The President may, by executive or administrative order, direct the reorganization of government entities under the Executive Department. Section 17, Article VII of the 1987 Constitution, clearly states: The President shall have control of all executive departments, bureaus and office . The Administrative Code also grants the President the power to reorganize the Office of the President in recognition of the recurring need of every President to reorganize his or her office o achieve simplicity, economy and efficienc (Tondo Medical v. Court of Appeals, G.R. No. 167324, July 17, 2007). The President may transfer any agency under the Office of the President to any other department or agency, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency (Anak Mindanao v. Executive Secretary, G.R. No. 166052, Aug. 29, 2007). The creation of the Truth Commission does not fall within the Pre iden power to reorganize. It flows from the faithful-execution clause of the Constitution under Article VII, Section 17 thereof. One of the recognized powers of the President is the power to create ad hoc committees. This flows from the need to ascertain facts and determine if laws have been faithfully executed or guide the President in performing his duties relative to the execution and enforcement of laws. The Truth Commission will not supplant the Ombudsman or the Department of Justice or erode their respective Page 84 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 powers. The investigative function of the Commission will complement those of the two offices (Biraogo v. The Philippine Truth Commission of 2010 / Rep. Edcel C. Lagman, et. al. v. Exec. Sec. Paquito N. Ochoa, Jr., et al., G.R. No. 192935 & G.R. No. 193036, Dec. 7, 2010) c. Local Government Units The power of the president over local government units is only of general supervision. He can interfere with the actions of their executive heads only if these are contrary to law. The President exercises direct supervision over autonomous regions, provinces, and independent cities. To facilitate the exercise of power of general supervision of local government, the President may merge administrative regions and transfer the regional center to Koronadal City from Cotabato City (Republic v. Bayao, G.R. No. 179492, June 5, 2013). 4. EMERGENCY POWERS Congress is the repository of emergency powers. But in times of war or other national emergency, it may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. (PHIL. CONST., art. VI, § 23(2); IBP v. Zamora, G.R. No. 141284, Aug. 15, 2000) Conditions for the Exercise of the President of Emergency Powers (David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006) 1. There must be a war or national emergency; 2. There must be a law authorizing the President to exercise emergency powers; 3. Exercise must be for a limited period; 4. Exercise must be necessary and proper to carry out a declared national policy; and 5. Must be subject to restrictions that Congress may provide. POLITICAL LAW The President could validly declare the existence of a state of national emergency even in the absence of a Congressional enactment. But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is a different matter. This requires a delegation from Congress. (Id.) Article XII, Section 17 of the Constitution, which states that, [i]n times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public in ere , is an aspect of the emergency powers clause (i.e. PHIL. CONST., art. VI, § 23(2)). Whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof. (Id.) 5. COMMANDER-IN-CHIEF POWERS Extraordinary/Commander-in-Chief Powers Differentiated SUSPENDING THE PRIVILEGE OF THE CALLING OUT WRIT OF HABEAS POWERS CORPUS/DECLARING MARTIAL LAW Grounds May be resorted to May be exercised only whenever it becomes when there is actual necessary to prevent invasion or rebellion, or suppress lawless and public safety violence, invasion, or requires it rebellion Action by the legislative or judicial branch The Court may nullify Congress may revoke the exercise of such such proclamation or power only when the suspension and the President acts in a Court may review the manner constituting sufficiency of the factual grave abuse of basis thereof discretion Page 85 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017; IBP v. Zamora, G.R. No. 141284, Aug. 15, 2000) Graduation of the Extraordinary Powers The 1987 Constitution gives the President a sequence of graduated power[s]. From the most to the least benign, these are: the calling out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare martial law. It must be stressed, however, that the graduation refers only to hierarchy based on scope and effect. It does not in any manner refer to a sequence, arrangement, or order which the Commander-in-Chief must follow. This so-called "graduation of powers" does not dictate or restrict the manner by which the President decides which power to choose. The power to choose, initially, which among these extraordinary powers to wield in a given set of conditions is a judgment call on the part of the President. It is thus beyond doubt that the power of judicial review does not extend to calibrating the President's decision pertaining to which extraordinary power to avail given a set of facts or conditions. To do so would be tantamount to an incursion into the exclusive domain of the Executive and an infringement on the prerogative that solely, at least initially, lies with the President. (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017) a. Calling out Powers As Commander-in-Chief of the Armed Forces, whenever necessary, the President may call out the Armed Forces to PREVENT or SUPPRESS: (a) Lawless violence (b) Invasion (c) Rebellion Among the three extraordinary powers, the calling out power is the most benign and involves ordinary police action. The power to call is fully discretionary to the President; the only limitations being that he acts within permissible constitutional boundaries or POLITICAL LAW in a manner not constituting grave abuse of discretion. In fact, the actual use to which the President puts the armed forces is not subject to judicial review. (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017) The President's calling out power is in a different category from the power to suspend the privilege of the writ of habeas corpus and the power to declare martial law. In other words, the President may exercise the power to call out the Armed Forces independently of the power to suspend the privilege of the writ of habeas corpus and to declare martial law, although, of course, it may also be a prelude to a possible future exercise of the latter powers. (Id.) The factual necessity of calling out the armed forces is something that is for the President to decide. (IBP v. Zamora, G.R. No. 141284, Aug. 15, 2000) Judicial inquiry can go no further than to satisfy the Court not that the Pre iden decision is correct but that the President did not act arbitrarily. Thus, the standard laid down is not correctness, but arbitrariness. PP 1017 is constitutional insofar as it constitutes a call by PGMA on the AFP to suppress lawless violence, which pertains to a spectrum of conduct that is manifestly subject to state regulation, and not free speech. PP 1017 is unconstitutional insofar as it grants PGMA the authority to promulgate decree . Legislative power is within the province of the Legislature. She can only order the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence (David v. Gloria Macapagal-Arroyo, G.R. No. 171396, May 3, 2006). Gen. Order No. 5 is constitutional since it provides a standard by which the AFP and the PNP should implement PP 1017, that is, suppressing lawless violence. However, considering that ac of errori m have not yet been defined and made punishable by the Legislature, such portion of G.O. Page 86 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 No. 5 is declared unconstitutional. (David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006) Declaration of a State of Emergency The declaration of a state of emergency is merely a description of a situation that authorizes (the President) to call out the Armed Forces to help the police maintain law and order. It gives no new power to her, or to the military, or to the police. Certainly, it does not authorize warrantless arrests or control of media (David v. Ermita, G.R. No. 171409, May 3, 2006). Emergency Powers v. Calling Out Powers The presidential proclamation of a state of emergency is NOT sufficient to allow the President to take over any public utility. Since it is an aspect of emergency powers in accordance with § 23 (2), Art. VI of the Constitution, there must be a law delegating such power to the President (David v. Macagapal Arroyo, G.R. No. 171396, May 3, 2006). b. Declaration of Martial Law and Suspension of the Privilege of the Writ of Habeas Corpus; Extension Besides his calling out powers, the President may also: (a) Suspend the privilege of the writ of habeas corpus (b) Proclaim a state of martial law A state of martial law is peculiar because the President, at such a time, exercises police power, which is normally a function of the Legislature. In particular, the President exercises police power, with the mili ar assistance, to ensure public safety and in place of government agencies which for the time being are unable to cope with the condition in a locality, which remains under the control of the State. (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017) Grounds For The Suspension Of The Privilege Of The Writ Of Habeas Corpus And Declaration Of Martial Law 1. Actual rebellion or invasion (not imminent) 2. Public safety requires it POLITICAL LAW Checks and Balances to Limit the Exercise of the Martial Law and Suspension Powers/Safeguards against Abuse (Lagman v. Pimentel III, G.R. No. 235935, Feb. 6, 2018) 1. The President may declare martial law or suspend of the privilege of the writ of the privilege of habeas corpus only when there is an invasion or rebellion and public safety requires such declaration or suspension. 2. The President's proclamation or suspension shall be for a period not exceeding 60 days. 3. Within 48 hours from the proclamation or suspension, the President must submit a Report in person or in writing to Congress. 4. The Congress, voting jointly and by a vote of at least a majority of all its Members, can revoke the proclamation or suspension. 5. The President cannot set aside the Congress' revocation of his proclamation or suspension. 6. The President cannot, by himself, extend his proclamation or suspension. He should ask the Congress' approval. 7. Upon such initiative or request from the President, the Congress, voting jointly and by a vote of at least a majority of all its Members, can extend the proclamation or suspension for such period as it may determine. 8. The extension of the proclamation or suspension shall only be approved when the invasion or rebellion persists and public safety requires it. 9. The Supreme Court may review the sufficiency of the factual basis of the proclamation or suspension, or the extension thereof, in an appropriate proceeding filed by any citizen. 10. The Supreme Court must promulgate its decision within 30 days from the filing of the appropriate proceeding 11. Martial law does not suspend the operation of the Constitution. Accordingly, the Bill of Rights remains effective under a state of martial law. Its implementers must adhere to the principle that civilian authority is supreme over the military and the armed Page 87 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 forces is the protector of the people. They must also abide by the State's policy to value the dignity of every human person and guarantee full respect for human rights. 12. Martial law does not supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function. 13. The suspension of the privilege of the writ applies only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. 14. Finally, during the suspension of the privilege of the writ, any person thus arrested or detained should be judicially charged within three days, otherwise he should be released. Territorial Coverage The Constitution grants to the President the discretion to determine the territorial coverage of martial law and the suspension of the privilege of the writ of habeas corpus. He may put the entire Philippines or only a part thereof under martial law. (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017) Limiting the proclamation and/or suspension to the place where there is actual rebellion would not only defeat the purpose of declaring martial law, it will make the exercise thereof ineffective and useless. (e.g. martial law over Mindanao as a whole and not merely Marawi where actual rebellion transpired) It is difficult, if not impossible, to fix the territorial scope of martial law in direct proportion to the "range" of actual rebellion and public safety simply because rebellion and public safety have no fixed physical dimensions. Moreover, the President's duty to maintain peace and public safety is not limited only to the place where there is actual rebellion; it extends to other areas where the present hostilities are in danger of spilling over. (Id.) POLITICAL LAW Congressional Check on the Exercise of Martial Law and Suspension Powers 1. The power to review the President's proclamation of martial law or suspension of the privilege of the writ of habeas corpus, and to revoke such proclamation or suspension. 2. The power to approve any extension of the proclamation or suspension, upon the President's initiative, for such period as it may determine, if the invasion or rebellion persists and public safety requires it. (Lagman v. Pimentel III, G.R. No. 235935, Feb. 6, 2018) Duty to Report to Congress Section 18, Article VII, requires the President to report his actions to Congress, in person or in writing, within 48 hours of such proclamation or suspension. In turn, the Congress is required to convene without need of a call within 24 hours following the Presidents proclamation or suspension. Clearly, the Constitution calls for quick action on the part of the Congress. Whatever form that action takes, therefore, should give the Court sufficient time to fulfill its own mandate to review the factual basis of the proclamation or suspension within 30 days of its issuance. (Fortun v. Arroyo, G.R. No. 190293, March 20, 2012) As to what facts must be stated in the proclamation and the written Report is up to the President. As Commander-in-Chief, he has sole discretion to determine what to include and what not to include in the proclamation and the written Report taking into account the urgency of the situation as well as national security. (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017) Supreme Court Review (a) In an appropriate proceeding filed by any citizen (b) The SC may review the sufficiency of the factual basis of the proclamation or suspension, or the extension thereof (c) Its decision must be promulgated within 30 days from filing Page 88 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Parameters of the Court for Determining the Sufficiency of the Factual Basis for the Declaration of Martial Law and/or the Suspension of the Privilege of the Writ of Habeas Corpus (Sufficiency of the Factual Basis Test) 1. Actual rebellion or invasion 2. Public safety requires it 3. There is probable cause for the President to believe that there is actual rebellion or invasion. (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017) The scope of the Supreme Co r power to review the declaration of Martial Law or suspension of the writ of habeas corpus is limited to a determination of the sufficiency (not accuracy) of the factual basis of such declaration or suspension. (Id.) The nature of the Supreme Co r jurisdiction to determine the sufficiency of the factual basis for the declaration of martial law and the suspension of the privilege of the writ of habeas corpus by the President is sui generis and granted by Sec. 18, Art. VII of the Constitution. It does not stem from Sec. 1 or 5 of Art. VIII. (Id.) Extension of Martial Law When approved by the Congress, the extension of the proclamation or suspension, as described during the deliberations on the 1987 Constitution, becomes a "joint executive and legislative act" or a "collective judgment" between the President and the Congress. (Lagman v. Medialdea, G.R. No. 243522, Feb. 19, 2019) The Court need not make an independent determination of the factual basis for the proclamation or extension of martial law and the suspension of the privilege of the writ of habeas corpus. The Court is not a fact-finding body required to make a determination of the correctness of the factual basis for the declaration or extension of martial law and suspension of the writ of habeas corpus. It would be impossible for the Court to go on the ground to conduct an independent investigation or factual inquiry, since it is not equipped with resources comparable to that POLITICAL LAW of the Commander-in-Chief to ably and properly assess the ground conditions. (Id.) In determining the sufficiency of the factual basis for the extension of martial law, the Court needs only to assess and evaluate the written reports of the government agencies tasked in enforcing and implementing martial law in Mindanao. (Id.) The test of sufficiency is not accuracy nor preciseness but reasonableness of the factual basis adopted by the Executive in ascertaining the existence of rebellion and the necessity to quell it. (Id.) Manner of Approval by Congress of Extension is a Political Question The Court cannot review the rules promulgated by Congress (in extending martial law or the suspension of the writ of habeas corpus) in the absence of any constitutional violation. Legislative rules, unlike statutory laws, do not have the imprints of permanence and obligatoriness during their effectivity. In fact, they may be revoked, modified or waived at the pleasure of the body adopting them. (Lagman v. Pimentel III, G.R. No. 235935, Feb. 6, 2018; Lagman v. Medialdea, G.R. No. 243522, Feb. 19, 2019) Judicial Power to Review vs. Congressional Power to Revoke Martial Law and Suspension of the Writ of Habeas Corpus JUDICIAL POWER CONGRESSIONAL TO REVIEW POWER TO REVOKE Court can only refer Congress may take into to information consideration: available to the (a) Data available President prior to or to the President at the time of the prior to or at the declaration time of the declaration and Court is not allowed (b) Events to undertake an supervening the independent declaration investigation beyond the pleadings Page 89 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 Does not look into the absolute correctness of the factual basis Can probe further and deeper, can delve into accuracy of facts presented before it Passive Initiated by filing of a pe i ion in an appropriate proceeding b a citizen Automatic May be activated by Congress itself at any time after the proclamation or suspension was made (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017) The Court can simultaneously exercise its power of review with, and independently from, the power to revoke by Congress. Corollary, any perceived inaction or default on the part of Congress does not deprive or deny the Court of its power to review. (Id.) Ways to Lift the Proclamation of Martial Law and/or Suspension of the Privilege: (a) Lifting by the President himself; (b) Revocation by Congress; (c) Nullification by the Supreme Court; and (d) By operation of law after 60 days (PHIL. CONST. art. VII, § 18) 6. EXECUTIVE CLEMENCY The matter of executive clemency is non-delegable power and must be exercised by the President personally (Villena v. Secretary of the Interior, G.R. No. L-46570, April 21, 1939). The power exists as an instrument for correcting the infirmities in administration of justice and for mitigating whenever a strict application of the provisions of the law will result in undue harshness. (Bernas, 1987 Philippine Constitution: A Commentary, 924, 2009). in cases The exercise of the pardoning power is discretionary in the President and may not be interfered with by Congress or the Court, except only when it exceeds the limits provided for by the Constitution (Risos-Vidal v. COMELEC, G.R. No. 206666, Jan. 21, 2015). (b) For violations of election laws, rules, and regulations without the favorable recommendation of the COMELEC in cases of civil or legislative contempt (c) Granted only after conviction by final judgment. (People. v. Salle, G.R. No. 103567, Dec. 4, 1995) 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 (Monsanto v. Factoran, G.R. No. 78239, Feb. 9, 1989). b. Forms of executive Clemency a. Nature and Limitation Limitations Cannot be granted: (a) Before conviction, impeachment The President can pardon criminal offenses after an impeachment proceeding such as what happened in 2007 when President Arroyo pardoned former President Estrada after having been convicted by the Sandiganbayan of plunder. of PARDON An act of grace, proceeding from the power entrusted of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed (United States v. Wilson, 503 U.S. 329, 1992). It is either conditional or plenary. AMNESTY - An act of grace concurred in by Congress, usually extended to groups of persons who commit political offenses, which puts into oblivion the offense itself. The President alone cannot grant amnesty for it needs the concurrence by a majority of all the members of Congress. When a person applies for amnesty, he must admit his guilt of the offense that is subject to such amnesty. If his application is denied, he can be convicted based on this admission of guilt. Page 90 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 REPRIEVE postpones the execution of an offense to a day certain (People v. Vera, G.R. No. L-45685, Dec. 22, 1937). REMISSION OF FINES AND FORFEITURES prevents the collection of fines or the confiscation of forfeited property but it cannot have the effect of returning the property which has been vested in 3rd parties or money already in the public treasury (Bernas, 1987 Philippine Constitution: A Commentary, 933, 2009). COMMUTATION a remission of a part of the punishment; it is a substitution of a lesser penalty for the one originally imposed (People v. Vera, G.R. No. L- 45685, Dec. 22, 1937). Amnesty v. Pardon AMNESTY Political Offenses 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 offense the May be granted before or after conviction PARDON Ordinary Offenses 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 Only granted after conviction by final judgment EXECUTIVE CLEMENCY IN ADMINISTRATIVE CASES: The power to grant clemency includes cases involving administrative penalties. Where a conditional pardon is granted, the determination of whether it has been violated rests with the President. The President can extend it to administrative cases but only in the Executive Branch, not in the Judicial or Legislative Branches of government (Llamas v. Orbos, G.R. No. 99031, Oct. 15, 1991). TAX AMNESTY: General pardon to impose penalties on persons guilty of evasion or violation of revenue or tax law (Republic v. IAC, G.R. No. 69344, Apr. 26, 1991). 7. DIPLOMATIC POWER Power to Contract of Guarantee Foreign Loans (PHIL. CONST., art. VII, § 20) The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board; and subject to such limitations as may be provided by law The Monetary Board shall, within 30 days from the end of every quarter of the calendar year, submit to Congress a complete report on loans to be contracted or guaranteed by the government of GOCCs the would have the effect of increasing foreign debts. Principle of Transformation of International Law (PHIL. CONST., art. VII, § 21) No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of ALL the Members of the Senate TREATIES International agreements involving political issues or changes of national policy and those involving international arrangements of permanent character EXECUTIVE AGREEMENTS International agreements embodying adjustments of detail carrying out wellestablished national policies and traditions and those involving arrangements of more or less temporary nature Page 91 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Power to enter into foreign relations includes: (a) The power to appoint ambassadors, other public ministers, and consuls (b) The power to receive ambassadors and other public ministers accredited to the Philippines (c) The power to contract and guarantee foreign loans on behalf of the Republic (d) The power to deport aliens this power is vested in the President by virtue of his office, subject only to restrictions as may be provided by legislation as regards grounds for deportation. In the absence of any legislative restriction to authority, the President may exercise this power (e) The power to negotiate treaties and other international agreements. However, such treaty or international agreement shall be transmitted to the Senate, with the following options: a. Approve it by 2/3 majority vote b. Disapprove it outrights c. Approve it conditionally, with suggested amendments. If renegotiated and the Sena e suggestions are incorporated, the treaty goes into effect without need of further Senate approval. NOTE: While a treaty is re-negotiated, there is yet no treaty EXECUTIVE AGREEMENTS Executive agreements are concluded: (a) to adjust the details of a treaty, e.g., EDCA as to VFA; (b) pursuant to or upon confirmation by an act of the Legislature; or (c) in the exercise of the President's independent powers under the Constitution. The President may enter into an executive agreement on foreign military bases, troops or facilities only if the executive agreement is not the instrument that allows the presence of foreign military bases, troops or facilities; or merely aims to implement an existing law or treaty. (Saguisag v. Exec. Sec., G.R. No. 212426, Jan. 12, 2016) POLITICAL LAW Although 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. The President cannot, by executive agreement, undertake an obligation that indirectly circumvents a legal prohibition. The President alone without the concurrence of the Senate abrogated a treaty. Assume that the other country party to the treaty is agreeable to the abrogation provided it complies with the Philippine Constitution. If a case involving the validity of the treaty abrogation is brought to the SC, it should dismiss the case. The jurisdiction of the SC (other lower courts) over a treaty is only with respect to questions of its constitutionality of validity. It does not pertain to the termination/abrogation of a treaty (Gonzales v. Hechanova, G.R. No. L-21897, Oct. 22, 1963). Treaty v. Executive Agreement TREATY EXECUTIVE AGREEMENT Involves political Involves details issues, national policy carrying out national policy International More or less agreements of a temporary in character permanent kind Must be ratified No need to be ratified Rules In Case Of Conflict Between Treaty And Municipal Law, Depending On Venue Philippine court: Provided both are self-executing, the later enactment will prevail, be it treaty or law, as it is the latest expression of the will of the State. International tribunal: Treaty will always prevail. A State cannot plead its municipal law to justify noncompliance with an international obligation. Exception: Vienna Convention on Law of Treaties Art. 46. Page 92 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Constitutional violation was: (a) Manifest Objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith (b) Concerned a rule of its international law of fundamental importance An c a of is a record of a routine agreement that has many similarities with a private law contract. The agreement consists of the exchange of two documents, each of the parties being in possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. An exchange of notes is considered a form of an executive agreement, which becomes binding through executive action without the need of a vote by the Senate or Congress (Abaya vs. Edbane, G.R. No. 167919, Feb. 14, 2007). The Exchange of Notes between Secretary Romulo and the US Ambassador embodying a No Surrender Agreemen regarding citizens arrested under the Rome Treaty is valid. An exchange of Notes is equivalent to an executive agreement and it is a valid form of international agreement. The categorization of agreements in Eastern Sea Trading, is not cast in stone. Neither a hard and fast rule on whether Senate concurrence is needed for executive agreements. (Bayan Muna v. Secretary Romulo, G.R. No. 159618, Feb. 1, 2011). 8. POWERS RELATIVE TO APPROPRIATION MEASURES ITEM VETO POWER on the basis of: Doctrine of Inappropriate Provisions - A provision that is constitutionally inappropriate for an appropriation bill may be subject to veto even if it is not an appropriation or revenue i em. Executive Impoundment - Refusal of the President to spend funds already allocated by Congress for a specific purpose. It is, in effect, an impo ndmen of the law allocating such expenditure of funds. POLITICAL LAW Budget The Executive Branch proposes a budget to Congress, which the latter considers in drafting appropriation laws. Power to Augment No law shall be passed authorizing any transfer of appropriations; however, /the President, /the President of the Senate, /the Speaker of the House of Representatives, /the Chief Justice of the Supreme Court, and /the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. (PHIL. CONST., Art. VI, § 25(5)) What are the requisites for a valid transfer of appropriation? There are two essential requisites in order that a transfer of appropriation with the corresponding funds may legally be effected. First, there must be savings in the programmed appropriation of the transferring agency. Second, there must be an existing item, project or activity with an appropriation in the receiving agency to which the savings will be transferred. (Sanchez v. COA, 552 SCRA 471) Actual savings is a sine qua non to a valid transfer of funds from one government agency to another. The ord ac al deno e ha ome hing is real or substantial, or exists presently in fact as opposed to something which is merely theoretical, possible, potential or hypothetical. (Sanchez v. COA, 552 SCRA 471) See page 60, Part V(F) for more details on item veto. 9. DELEGATED POWERS General Rule: Legislative power is non-delegable. Exceptions (pertinent to the President): The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. (PHIL. CONST., art. VI, § 28(2)) Page 93 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. (PHIL. CONST., art. VI, § 23(2)) Malampaya and Presidential Social Fund Violates the Non-Delegability of Legislative Power Malampaya fund - The phrase "and for such other purposes as may be hereafter directed by the President" under Section 8 of PD 910 constitutes an undue delegation of legislative power insofar as it does not lay down a sufficient standard to adequately determine the limits of the Pre iden authority with respect to the purpose for which the Malampaya Funds may be used. (Belgica v. Hon. Ochoa, G.R. No. 208566, Nov. 19, 2013) Presidential Social Fund - "to finance the priority infrastructure development projects" under Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No. 1993, for both failing the sufficient standard test in violation of the principle of non-delegability of legislative power as it gives the President the unlimited discretion to determine which projects are considered priori . (Belgica v. Hon. Ochoa, G.R. No. 208566, Nov. 19, 2013) 10. RESIDUAL POWERS The President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above, or which are not delegated by the President in accordance with law. The textual justification for this under the Constitution is Article VII, Section 17 to ensure that the laws are faithfully executed called the Faithful Execution Clause. The power involved is the President's residual power to protect the general welfare of the people. It is founded on the duty of the President, as POLITICAL LAW steward of the people. To paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything not forbidden by the Constitution or the laws that the needs of the nation demand. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws are faithfully executed (Marcos v Manglapus, G. R. No. 88211, Sept. 15, 1989). 11. VETO POWERS 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 law as if he signed it. This rule eliminates the possibility of a pocke e o whereby the President simply refuses to act on the bill. In exercising the veto power, the bill is rejected and returned with his objections to the House from which it originated. The House shall enter the objections in the journal and proceed to reconsider it. (See earlier comment) Pocket Veto vs. Item Veto POCKET VETO ITEM VETO When the president is Power of a president to considered to have nullify or cancel rejected a bull specific provisions of a submitted to him for his bill, usually a budget approval when appropriations bill, Congress adjourns without vetoing the during the period given entire legislative to the president to package approve or reject a bill Congressional pork barrel violates the P power to item-veto The President cannot exercise his item-veto power because the purpose of the lump-sum discretionary budget is still uncertain. Furthermore, it cannot be considered an item because an item is defined in the field of appropriations as the particulars, details, distinct and severable parts of the appropriation or of thevbill. (Belgica v. Hon. Ochoa, G.R. No. 208566, Nov. 19, 2013) Page 94 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 See page 60, Part V(F) for more details on item veto. Non-Delegable Powers of the President Commander-in-Chief powers; Appointment and removal power; The power to grant pardons and reprieves; The authority to receive ambassadors and other public officials; and The power to negotiate treaties. (Neri v. Senate, G.R. No.180643, Mar. 25, 2008) Other Powers (a) Borrowing Power: The President may contract or guarantee foreign loans on behalf of the Republic with the concurrence of the Monetary Board, subject to such limitations as may be provided by law. (b) Deportation Power (c) Power to Receive Ambassadors and other public ministers duly accredited to the Philippines (d) Informing Power: The President shall address Congress at the opening of its regular session. He may also appear before it at any time. (e) Call Congress to a special session (f) Power to Classify and Reclassify lands D. RULES OF SUCCESSION Manner Of Election (PHIL. CONST., art. VII, § 4) The President and Vice-President shall be elected by the direct vote of the people. Election returns for President and Vice-President, duly certified by the Board of Canvassers of each province or city, shall be transmitted to Congress, directed to the Senate President. Upon receipt of the certificates of canvass, the Senate President shall, not later than 30 days after the day of the election, open all the certificates in the presence of both houses of Congress, assembled in joint public session. POLITICAL LAW The Congress, after determining the authenticity and due execution of the certificates, shall canvass the votes. The person having the highest number of votes shall be proclaimed elected. In case of a tie between 2 or more candidates, one shall be chosen by a majority of ALL the members of both Houses, voting separately. 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 VicePresident and may promulgate its rules for the purpose. Congress may delegate counting to a committee provided it approves it as a body (considered as a non-legislative function of Congress). Proclamation of President-Elect & VP-Elect is the function of Congress not the COMELEC . Limitations (a) Salaries and emoluments of the President and Vice-President shall be determined by law (b) Shall not be decreased during the tenure of the President and the Vice-President (c) Increases take effect only after the expiration of the term of the incumbent during which the increase was approved. (d) No other emolument from the government or any other source during their tenure may be received. Succession of President-Elect and VicePresident Elect at the Start of the Term (PHIL. CONST., art. VII, § 7) VACANCY SUCCESSOR President-elect fails to VP-elect will be Acting qualify or to be chosen President until a President is qualified/chosen President-elect dies or VP becomes permanently disabled President Page 95 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Both President and VP-Elect are not chosen, or do not qualify, or both die, or both become permanently disabled Death, permanent disability, or inability of Senate President and Speaker of the house as Acting President Senate President, or in case of his inability, Speaker of the House shall act as President until a President or a VP shall have been chosen and qualified. Congress shall determine, by law, who will be the Acting President until a President or VP shall have qualified. Succession of President and Vice-President During Mid-Term (PHIL. CONST., art. VII, § 8) VACANCY SUCCESSOR President VP becomes dies/permanently President for the disabled/impeached or unexpired term resigns Both President and VP die/ permanently disabled/ impeached or resign Death, permanent disability, or inability of Senate President and Speaker of the house as Acting President Senate President, or in case of his inability, Speaker of the House shall act as president until the President or VP shall have been elected and qualified. Congress shall determine, by law, who will be the Acting President until a President or VP shall have been elected and qualified, subject to the same restrictions of powers and disqualifications as the Acting President Vacancy in the Office of the Vice-President (PHIL. CONST., art. VII, § 9) Procedure To Fill Up Vacancy President will nominate new VP from among the members of either House of Congress. POLITICAL LAW Nominee shall assume office upon confirmation by majority vote of ALL members of both Houses, voting separately. (In effect, nominee forfeits his seat in Congress.) Election of President and Vice-President after vacancy (PHIL. CONST., art. VII, § 10) Procedure Congress shall convene 3 days after the vacancy in the offices of both the President and the VP, without need of a call. The convening of Congress cannot be suspended. 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. The requirement of three readings on separate days under Sec. 26(2), Art VI shall not apply to a bill calling for a special election. The law shall be deemed enacted upon its approval on third reading. The special election shall be held within 45-60 days from the time of the enactment of the law. Limitation: No special election shall be called if the vacancy occurs within 18 months before the date of the next presidential election. Temporary Disability of the President to discharge his duties (PHIL. CONST. art. VII, Sec. 11) 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 all Cabinet members transmit to the Senate President and the Speaker of the House their written declaration. The VP will immediately assume the powers and duties of the office as Acting President. Page 96 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 Scenarios After Disability is Relayed in the Congress: If the President transmits a written declaration that he is not disabled, he reassumes his position. If within 5 days after the President re-assumes his position, the majority of the Cabinet transmits their written declaration to the contrary, Congress shall decide the issue. In this event, Congress shall convene within 48 hours if it is not in session, without heed of a call 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. Presidential Illness (Sec. 12) General Rules: If the President is seriously ill, the public must be informed thereof. During such illness, the following shall not be denied access to the President: (a) National Security Adviser (b) Secretary of Foreign Affairs (c) Chief of Staff of the AFP - end of topic - Page 97 of 568 JUDICIAL DEPARTMENT Political Law ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW VII. JUDICIAL DEPARTMENT A. CONCEPTS TOPIC OUTLINE UNDER THE SYLLABUS: 1. JUDICIAL POWER VII. JUDICIAL DEPARTMENT A. CONCEPTS 1. Judicial power 2. Judicial review a. Requisites b. Operative fact doctrine c. Political question doctrine B. JUDICIAL INDEPENDENCE AND AUTONOMY C. APPOINTMENTS TO THE JUDICIARY 1. Qualifications of members of the judiciary 2. Judicial and Bar council a. Composition b. Powers D. THE SUPREME COURT 1. Composition 2. Powers and functions Judicial Power 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 and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. (Lopez v. Roxas, G.R. No. L-25716, July 28, 1966). Where Vested Vested in the Supreme Court and such lower courts as may be established by law. (PHIL. CONST., art. VIII, § 1.) Hence, they may neither attempt to assume or be compelled to perform non-judicial functions. They may not be charged with administrative functions, except when reasonably incidental to the fulfillment of their duties (Meralco v. Pasay Transportation Co., G.R. No. L-37878, Nov. 25, 1932). Judicial Power includes the duty of the courts: (PHIL. CONST., art. VIII, § 1.) To settle actual controversies involving rights which are legally demandable and enforceable; 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. Necessity of Applicable Law Before a tribunal, board, or officer may exercise judicial or quasi-judicial acts, it is necessary that there be a law that give rise to some specific rights of persons or property under which adverse claims to such rights are made, and the controversy ensuing therefrom is brought, in turn, before the tribunal, board or officer clothed with power and authority to determine what that law is and thereupon adjudicate the respective rights of the contending parties. (Santiago Jr. v. Bautista, G.R. No. L-25024, March 30, 1970). Page 99 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Thus, an award of honors to a student by a board of teachers may not be reversed by a court where the awards are governed by no applicable law. (Id) The court has no authority to entertain an action for judicial declaration of citizenship because there was no law authorizing such proceeding (Channie Tan v. Republic, G.R. No. L-14159, April 18, 1960). Courts cannot reverse the award of a board of judges in an oratorical contest (Felipe v. Leuterio, G.R. No. L-4606, May 30, 1952). Jurisdiction The power to hear and decide a case. Who Defines: Congress shall have the power to define, prescribe and apportion the jurisdiction of the various courts, but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Sec. 5, Art. VIII [PHIL. CONST., art. VIII, § 2.], No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in the Constitution without its advice and concurrence (PHIL. CONST., art. VI, § 30.) Scope of Jurisdiction The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot be the subject of substantial subtraction, for out Constitution vests the entirety of judicial power in one Supreme Court and in such lower courts as may be established by law. (Echegaray v. SOJ, G.R. No. 132601, Jan. 19, 1999) Limitations of Judicial Power 1. Political Questions: A question, the resolution of which has been vested by the Constitution exclusively In 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 (Tanada v. Cuenco, G.R. No. L-10520, Feb. 28, 1957). 2. Separation of Powers: The Supreme Court and its members should not and cannot be required to exercise any power or to perform any trust or to assume any duty not pertaining to or connected with the administering of judicial functions. (Manila POLITICAL LAW Electric Co. v Pasay Transportation, G.R. No. 37878, Nov. 25, 1932) 3. Not the function of the judiciary to give advisory opinion: The function of the courts is to determine controversies between litigants. They do not give advisory opinions. (Director of Prisons v Ang Cho Kio, G.R. No. 30001, June 23, 1970) Expanded Jurisdiction and Authority of the Supreme Court Art. VIII, Sec.1, par. 2, of the Constitution expanded the power, authority and jurisdiction of the courts of justice, particularly the Supreme Court, to determine whether any branch of the government has committed grave abuse of discretion amounting to lack or excess of jurisdiction. Under this expanded jurisdiction conferred to the Supreme Court, the political question doctrine is no longer the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review (Oposa v. Factoran, Jr. G.R. No. 101083, July 30, 1993) 2. JUDICIAL REVIEW a. Requisites Judicial Review The power of the Supreme Court to declare a law, treaty, ordinance, etc. unconstitutional (PHIL. CONST., art. VIII, § 4(2).) Lower courts may also exercise the power of judicial review, subject to the appellate jurisdiction of the SC. (PHIL. CONST., art. VIII, § 5(2).) Only Supreme Court decisions set precedents. As thus, only SC decisions are binding on all. Requisites of Judicial Review: (EARLS) The question of constitutionality must be raised in the first instance, or at the Earliest opportunity. The question involved must be Ripe for adjudication, e.g. the challenged Page 100 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 government act must have had an adverse effect on the person challenging it. An Actual case calling for the exercise of judicial power. Resolution of the issue of constitutionality is unavoidable or is the very Lis mota of the case. The person challenging the governmental act must have S anding (Locus Standi) Exception: The Court can waive the procedural rule on standing in cases that raise issues of transcendental importance. Functions of Judicial Review 1. Checking invalidating a law or executive act that is found to be contrary to the Constitution 2. Legitimating upholding the validity of the law that results from a mere dismissal of a case challenging the validity of the law 3. Symbolic to educate the bench and bar as to the controlling principles and concepts on matters of grave public importance for the guidance of and restraint upon the future (Salonga v. Cruz Pa o, G.R. No. 59524, Feb. 18, 1985) Doctrine of Judicial Supremacy When the judiciary allocates constitutional boundaries, it neither asserts superiority nor nullifies an act of the Legislature. It only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. Justiciable Controversy A definite and concrete dispute touching on the legal relations of parties having adverse legal interests, which may be resolved by a court of law through the application of a law (Cutaran v. DENR, G.R. No 134958, Jan. 31, 2001) Requirements for Justiciability 1. That there be an actual controversy between or among the parties to the dispute; 2. That the interests of the parties be adverse; POLITICAL LAW 3. That the matter in controversy be capable of being adjudicated by judicial power; and 4. That the determination of the controversy will result in practical relief to the complainant. Actual Case/Controversy An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. (PHILCONSA v Philippine Government, G.R. No. 218406, Nov. 29, 2016) There must be a contrast of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence. (Id.) LEONEN: It is the parties' duty to demonstrate actual cases or controversies worthy of judicial resolution. Pleadings must show a violation of an existing legal right or a controversy that is ripe for judicial determination. (Falcis v. Civil Registrar General, G.R. No. 217910, Sept. 3, 2019) Facts are the basis of an actual case or controversy. There must be sufficient facts to enable the Court to intelligently adjudicate the issues. (Id.) Advisory Opinions Even the expanded jurisdiction of this Court under Article VIII, Section 1 does not provide license to provide advisory opinions. An advisory opinion is one where the factual setting is conjectural or hypothetical. (LEONEN, PBOAP v. DOLE, G.R. No. 202275, July 17, 2018) o In such cases, the conflict will not have sufficient concreteness or adversariness so as to constrain the discretion of this Court. After all, legal arguments from concretely lived facts are chosen narrowly by the parties. Those who bring theoretical cases will have no such limits. (Id.) The Court generally declines to issue advisory opinions or to resolve hypothetical or feigned problems, or mere Page 101 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 academic questions. The limitation of the power of judicial review to actual cases and controversies assures that the courts will not intrude into areas specifically confined to the other branches of government. (PHILCONSA v Philippine Government, G.R. No. 218406, Nov. 29, 2016) o Ripe for Adjudication A constitutional question is ripe for adjudication when the governmental act being challenged has had a direct adverse effect on the individual challenging it. It is also necessary that there be a law that gives rise to some specific rights of persons or property, under which adverse claims are made. (Santiago Jr. v. Bautista, GR No. 25024, March 30, 1970) For a case to be considered ripe for adjudication, it is a prerequisite that: o an act had then been accomplished or performed by either branch of government before a court may interfere, and o the petitioner must allege the existence of an immediate or threatened injury to himself as a result of the challenged action. (PHILCONSA v. Philippine Government, G.R. No. 218406, Nov. 29, 2016) o Moot Questions An action is considered moot when it no longer presents a justiciable controversy because the issues involved have become academic or dead or when the matter has already been resolved. There is nothing for the court to resolve as the determination thereof has been overtaken by subsequent events (Atty. Evillo C. Pormento v. Estrada and COMELEC, G.R. No. 191988, Aug. 31, 2010). However, the moo and academic principle is not a magical formula that automatically dissuades courts in resolving a case. The Court may still take cognizance of an otherwise moot case, if it finds that: o o there is a grave violation of the Constitution; the situation is of exceptional character and paramount public interest is involved; the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and the case is capable of repetition yet evading review. (Narra Nickel Mining and Development Corp. v. Redmont Consolidation Mines Corp., G.R. No. 195580, Jan. 28, 2015) Locus Standi/Legal Standing Definition: a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. (Francisco v. HOR, G.R. No. 160261, Nov. 10, 2003) The term "interest" is material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. (Joya v. PCGG, G.R. No. 96541, Aug. 24, 1993) o Moreover, the interest of the party plaintiff must be personal and not one based on a desire to vindicate the constitutional right of some third and related party. (Id.) Test: whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. (Id.) Elements (ITR) o The petitioner must have personally suffered some actual or threatened Injury which can be legal, economic, or environmental; o The injury is fairly Traceable to the challenged action; and o The injury is likely to be Redressed by a favorable action (TELEBAP v. Page 102 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 COMELEC, GR No. 132922, April 21, 1998) Requisites for Third Party Standing (jus tertii) (IRH) 1. The litigant must have suffered an injuryin-fact, thus giving him or her a "sufficiently concrete interest" in the outcome of the issue in dispute; 2. The litigant must have a close Relation to the third party; and 3. There must exist some Hindrance to the third party's ability to protect his or her own interests. (White Light v. City of Manila, G.R. No. 122846, Jan. 20, 2009) Rules on the Liberal Approach on Locus Standi Taxpayer Allowed to sue where there is a claim of any of the following: public funds are illegally disbursed (Information Technology v. COMELEC, G.R. No. 159139, Jan. 13, 2004) public money is being deflected to any improper purpose (Id.) there is a wastage of public funds through the enforcement of an invalid or unconstitutional law (Id.) the tax measure is unconstitutional (David v. Arroyo, G.R. No. 171396, May 3, 2006) Voters Before he can invoke the power of judicial power, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a direct injury as a result of the enforcement of the questioned statute or contract. (Francisco v. HOR, G.R. No. 160261, Nov. 10, 2003) There must be a showing of obvious interest in the validity of the election law in question Concerned citizens Legislators (David v. Arroyo, G.R. No. 171396, May 3, 2006) There must be a showing that the issues raised are of transcendental importance which must be settled early (Id.) There must be a claim that the official action complained of infringes upon their prerogatives as legislators (Biraogo v. Philippine Truth Commission, G.R. No. 192935, Dec. 7, 2010) Standing in Environmental Cases The Rules of Procedure for Environmental Cases liberalized the requirements on standing, allowing the filing of a citizen's suit by any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws. (Resident Marine Mammals v. Reyes, G.R. No. 180771, April 21, 2015; Segovia v. The Climate Change Commission, G.R. No. 211010, March 7, 2017) Guidelines in determining whether or not a matter is of transcendental importance: The character of the funds or other assets involved in the case; The presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and The lack of any other party with a more direct and specific interest in the questions being raised (Chamber of Real Estate and Builders’ Association, Inc. v. Energy Regulatory Commission, et al., G.R. No. 174697, July 8, 2010). Rule on Raising at the Earliest Opportunity General Rule: The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same. (Matibag v. Benipayo, G.R. No. 149036, April 2, 2002) Exceptions: 1. In criminal cases at any time at the discretion of the court Page 103 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 2. In civil cases at any stage of the proceedings if necessary for the determination of the case itself; or 3. In every case (Except where there is estoppel) at any stage if it involves the jurisdiction of the court (People v. Vera, G.R. No. 45685, Nov. 16, 1937) b. Operative fact doctrine Effect of a Declaration of Unconstitutionality An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is inoperative as if it has not been passed at all. (Film Development Council of the Philippines v. Colon Heritage Realty Corp., G.R. Nos. 203754 & 204418, Oct. 15, 2019) The exception is the doctrine of operative fact, which applies as a matter of equity and fair play. (Id.) This doctrine nullifies the effects of an unconstitutional law or an executive act by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences that cannot always be ignored. (Id.) Hence, it legitimizes otherwise invalid acts done pursuant thereto because of considerations of practicality and fairness. In this regard, certain acts done pursuant to a legal provision which was just recently declared as unconstitutional cannot be anymore undone because not only would it be highly impractical to do so, but more so, unfair to those who have, in good faith, relied on the said legal provision prior to the time it was struck down. (Id.) It applies only to cases where extraordinary circumstances exist, AND only when the extraordinary circumstances have met the stringent conditions that will permit its application. (Araullo v. Aquino III, G.R. No. 209287, July 1, 2014) POLITICAL LAW c. Political question doctrine Political Question A question, the resolution of which has been vested by the Constitution exclusively: 1. In the people, in the exercise of their sovereign capacity, or 2. In which full discretionary authority has been delegated to a co-equal branch of the Government (Tanada v. Cuenco, G.R. No. L-10520, Feb. 28, 1957). The judiciary is NOT precluded from reviewing poli ical q e ion . Under the second clause of Sec. 1, Art. VIII (the power to determine whether or not there has been a grave abuse of discretion) the Courts may now determine whether there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. LEONEN: A political question arises in constitutional issues relating to the powers or competence of different agencies and departments of the executive or those of the legislature. The political question doctrine is used as a defense when the petition asks this court to nullify certain acts that are exclusively within the domain of their respective competencies, as provided by the Constitution or the law. In such situation, presumptively, this court should act with deference. It will decline to void an act unless the exercise of that power was so capricious and arbitrary so as to amount to grave abuse of discretion. The existence of constitutionally imposed limits justifies subjecting the official actions of the body to the scrutiny and review of the Court. Furthermore, the concept of a political question never precludes judicial review when the act of a constitutional organ infringes upon a fundamental individual or collective right. (The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, Jan. 21, 2015) While courts can determine questions of legality with respect to governmental action, they cannot review government policies and the wisdom behind such policies. These questions are Page 104 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 vested by the Constitution in the Executive and Legislative Departments. Examples of political questions in jurisprudence Interpretation of the meaning of di orderl beha ior and the legi la re power to suspend a member (there is no procedure for the imposition of the penalty of suspension nor did the 1935 Constitution define what di orderl behavior is). The matter is left to the discretion of the legislature (Osme a, Jr. v. Pendatun, G.R. No. L-17144, Oct. 28, 1960). Whether the court could intervene in a case where the House of Representatives was said to have disregarded its own rule. The court was held to have been without authority to intervene (Arroyo v. De Venecia, G.R. No. 127255, Aug. 14, 1997). Recognition of diplomatic immunity (ICMC v. Hon. Calleja, G.R. No. 85750, Sept. 28, 1990). The determination of what constitutes be ra al of public r or o her high crime is a political question. A determination of what constitutes an impeachable offense is a purely political question, which the Constitution has left to the sound discretion of the legislature (Gutierrez v. The House of Representatives Committee on Justice, et al., G.R. No. 193459, Feb. 15, 2011). Examples of cases in jurisprudence where the Court held that there was no political question involved. Apportionment of representative districts (because there are constitutional rules governing apportionment) (Bagabuyo v. COMELEC, G.R. No. 176970, Dec. 8, 2008). Suspension of the privilege of the writ of habeas corpus because the Constitution sets limits to executive discretion on the matter (Montenegro v. Casta eda, G.R. No. L-4221, Aug. 30, 1952). Manner of forming the Commission on Appointments (Daza v. Singson, G.R. No. 86344, Dec. 21, 1989; Coseteng v. Mitra, G.R. No. 86649, July 12, 1990; Guingona v. Gonzales, G.R. No. 106971, Oct. 20, 1992). B. JUDICIAL INDEPENDENCE AND AUTONOMY Concepts of Judicial Independence Decisional Institutional Independence or (Judicial) Individual Judicial Independence Independence Refers to a judge's Describes the ability to render separation of the decisions free from judicial branch from political or popular the executive and influence based solely legislative branches of on the individual facts government and applicable law Focuses on each particular judge and seeks to insure his or her ability to decide cases with autonomy within the constraints of the law Focuses on the independence of the judiciary as a branch of government and protects judges as a class A judge has this kind of independence when he can do his job without having to hear or at least without having to take it seriously if he does hear criticisms of his personal morality and fitness for judicial office Refers to the collective independence of the judiciary as a body A truly independent judiciary is possible only when both concepts of independence are preserved wherein public confidence in the competence and integrity of the judiciary is maintained, and the public accepts the legitimacy of judicial authority. (Re: COA Opinion on Computation of Appraised Value of Properties Purchased by SC Justices, A.M. No. 11-7-10-SC, July 31, 2012; In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet, A.M. No. 07-09-13-SC, Aug. 8, 2008) Page 105 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Constitutional Safeguards to Secure Judicial Independence Judiciary in General Creation and abolition of courts o Congre power to create courts implies the power to abolish and even re-organize courts. But this power cannot be exercised in a manner that would undermine the security of tenure of the judiciary. If the abolition or re-organization is done in good faith and not for political or personal reasons, it is valid. (De La Llana v. Alba, G.R. No. L-57883, March 12 1982) o Congress may enact laws prohibiting courts from issuing restraining orders against administrative acts in controversies involving facts or the exercise of discretion. However, on issues involving questions of law, courts cannot be prohibited from exercising their power to restrain such acts. (Malaga v. Penachos, Jr., G.R. No. 86695, Sept. 3, 1992) Members of the judiciary enjoy security of tenure. (PHIL. CONST., art. VIII, § 2.) Members of judiciary may not be designated to any agency performing quasi-judicial or administrative functions. (PHIL. CONST., art. VIII, § 12.) o The Presidential Electoral Tribunal (PET) does not exercise quasijudicial functions. When the Supreme Court, as the PET, resolves a presidential or vicepresidential election contest, it performs what is essentially a judicial power (Macalintal v. PET, G.R. No. 191618, Nov. 23, 2010). The salaries of Justices and judges shall be fixed by law and cannot be decreased during their continuance in office. (PHIL. CONST., art. VIII, § 10.) o However, their salaries are properly subject to a general income tax law applicable to all income earners and that the POLITICAL LAW payment of such income tax does not fall within the constitutional protection against decrease of their salaries during their continuance in office. (Nitafan v. CIR, G.R. No. 78780, July 23, 1987). The right to criticize the courts and judicial officers must be balanced against the equally primordial concern that the independence of the Judiciary be protected from due influence or interference. (In re Letter of UP Law Faculty, A.M. No. 10-10-4-C, March 8, 2011) The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released. (PHIL. CONST., art. VIII, § 3.) o The grant of fiscal autonomy to the Judiciary is more extensive than the mere automatic and regular release of its approved annual appropriations. Real fiscal autonomy covers the grant to the Judiciary of the authority to use and dispose of its funds and properties at will, free from any outside control or interference. (Re: COA Opinion on Computation of Appraised Value of Properties Purchased by SC Justices, A.M. No. 11-7-10-SC, July 31, 2012) o Fiscal autonomy contemplates a guarantee on full flexibility to allocate and utilize their resources with the wisdom and dispatch that the J diciar needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be provided by law or prescribed by Page 106 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 o them in the course of the discharge of their functions. (Bengzon v. Drilon, G.R. No. 103524, April 15, 1992) Legal fees constitute not only a vital source of the Co r financial resources but also comprise an essential element of the Co r fiscal independence. Any exemption from the payment of legal fees granted by Congress to GOCCs and LGUs will necessarily reduce the Judiciary Development Fund (JDF) and the Special Allowance for the Judiciary Fund (SAJF). Such situation is constitutionally infirm for it impairs the Co r guaranteed fiscal autonomy, which recognizes the power and authority of the Court to levy, assess and collect fees including legal fees. (Re: In the Matter of Clarification Of Exemption from Payment of All Court and Sheriff's Fees of Cooperatives, A.M. No. 12-2-03-0, March 13, 2012) Supreme Court in General Being a Constitutional body, it may not be abolished by law. In GENERAL, its members may only be removed through impeachment. (PHIL. CONST., art. XI, § 2.) o Members of the Supreme Court may now be removed from office through a petition for quo warranto. Section 2, Article XI of the Constitution allows the institution of a quo warranto action against an impeachable officer. A quo warranto petition is predicated on grounds distinct from those of impeachment. The former questions the validity of a public officer's appointment while the latter indicts him for the so-called impeachable offenses without questioning his title to the office he holds. (Republic v. Sereno, G.R. No. 237428, June 19, 2018) POLITICAL LAW Jurisdiction o It may not be deprived of minimum and appellate jurisdiction o Congress may not increase the Supreme Co r appellate jurisdiction without its advice or concurrence (PHIL. CONST., art. VI, § 30.) o Congress cannot deprive the Supreme Court of its jurisdiction over cases provided for in the Constitution (PHIL. CONST., art. VIII, § 2.) and may only do the following: Define enforceable and demandable rights; prescribing remedies for violations of such rights Determine the court with jurisdiction to hear and decide controversies or disputes arising from legal rights (Lopez v. Roxas, G.R. No. L-25716,1966) It has administrative supervision over all inferior courts and personnel. (PHIL. CONST., art. VIII, § 6.) It has exclusive power to discipline or dismiss judges/ justices of inferior courts. (PHIL. CONST., art. VIII, § 11.) The Court alone may initiate the Rules of Court. (PHIL. CONST., art. VIII, § 5(5).) The Court alone may order temporary detail of judges. (PHIL. CONST., art. VIII, § 5(3).) The Court can appoint all officials and employees of the Judiciary. (PHIL. CONST., art. VIII, § 5(6).) C. APPOINTMENTS TO THE JUDICIARY 1. QUALIFICATIONS OF MEMBERS OF THE JUDICIARY Every prospective appointee to the judiciary must apprise the appointing authority of every matter bearing on his fitness for judicial office including such circumstances as may reflect on his integrity and probity (In Re: JBC v. Judge Quitain, JBC No. 013, Aug. 22, 2007). Page 107 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 Until a correction of existing records on one birth and citizenship, one cannot accept an appointment to the judiciary, as that would be a violation of the Constitution. For this reason, he can be prevented by injunction from doing so (Kilosbayan v. Ermita, G.R. No. 177721, July 3, 2007). Qualifications for Judges and Justices (PHIL. CONST., art. VIII, § 7.) Lower Collegiate Lower NonSupreme Courts (CA, Collegiate Court CTA, Courts Sandiganbayan) Natural-born citizen of the Citizen of the Philippines Philippines (may be naturalized) At least 40 Possesses other qualifications years old prescribed by Congress At least 15 Member of the Philippine Bar years of experience as a judge or in the practice of law in the Philippines A person of proven competence, integrity, probity, and independence A Supreme Court Justice, who is required under the Constitution to be a Member of the Philippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarment during his incumbency. Further, during his incumbency, he cannot be charged criminally before the Sandiganbayan or any other court with any offence which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office. (In Re Gonzalez, A.M. No. 88-4-5433, April 15, 1988) The Constitution requires that members of the Judiciary must be of proven integrity. To be of proven integrity means that the applicant must have established steadfast adherence to moral and ethical principles. One who chronically fails to file his or her SALN violates the Constitution and the laws; and one who violates the Constitution and the laws cannot rightfully claim to be person of integrity and may thus be removed through a quo warranto petition. (Republic v. Sereno, G.R. No. 237428, June 19, 2018) Lower Non-Collegiate Courts RTC MTC At least 35 years old At least 30 years old Engaged for at least Engaged for at least 5 10 years in the years in the practice practice of law in the of law in the Philippines or Philippines or Has held public office in the Philippines requiring admission to the practice of law as a requisite Has held public office in the Philippines requiring admission to the practice of law as a requisite Term (PHIL. CONST., art. VIII, § 11.) Members of the Supreme Court and judges of the lower courts hold office during good behavior until: 1. The age of 70 years old 2. They become incapacitated to discharge their duties 2. JUDICIAL AND BAR COUNCIL a. Composition (PHIL. CONST., art. VIII, § 8.) 1. Chief Justice, as ex-officio chairman 2. Secretary of Justice, as ex-officio member 3. Representative of Congress, as ex-officio member 4. Representative of the Integrated Bar 5. A professor of law 6. A retired member of the Supreme Court 7. Private sector representative Regular Members of the JBC The last four in the enumeration above are the regular members of the JBC. The President, with the consent of the Commission on Appointments, appoints regular members who serve for 4 years, in staggered terms. (PHIL. CONST., art. VIII, § 8(2).) Page 108 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 They shall receive such emoluments as may be determined by the Supreme Court. (PHIL. CONST., art. VIII, § 8(4).) Clerk of the Supreme Court serves as the secretary ex officio of the Council and shall keep a record of its proceedings (PHIL. CONST., art. VIII, § 8(3).) The JBC is composed of 7 members coming from different sectors. Thus, while we do not lose sight of the bicameral nature of our legislative department, it is beyond dispute that the Constitution is explicit that we have only a representative . Thus, two (2) representatives from Congress would increase the number of JBC members to eight (8), a number beyond what the Constitution has contemplated. The lone representative of Congress is entitled to one full vote. This effectively disallows the scheme of splitting the said vote into half between two representatives of Congress. (Chavez v. JBC, G.R. No. 202242, April 16, 2013) Thus, any inclusion of another member, whether with one whole vote or 1/2 of it, goes against that mandate. Section 8(1), Article VIII of the Constitution, providing Congress with an equal voice with other members of the JBC in recommending appointees to the Judiciary is explicit. (Id.) The JBC can still perform its mandated task of submitting the list of nominees to the President despite a vacancy in the position of Chief Justice or the ex-officio Chairman (as a result, for example, of impeachment). In such case, the most Senior Justice of this Court who is not an applicant for the position of Chief Justice should participate in the deliberations for the selection of nominees for the said vacant post and preside over the proceedings. (Dulay v. JBC, G.R. No. 202143, July 3, 2012) The Supreme Court shall provide in its annual budget the appropriations for the Council. (PHIL. CONST., art. VIII, § 8(4)). b. Powers Functions of The JBC (PHIL. CONST., art. VIII, § 8(5).) Primary Function: Recommend appointees to the Judiciary. Secondary Function: It may also exercise such other functions as the SC may assign to it. Incidental Functions The functions of searching, screening, and selecting are necessary and incidental to the JBC's principal function of choosing and recommending nominees for vacancies in the judiciary for appointment by the President. In carrying out its main function, the JBC has the authority to set the standards/criteria in choosing its nominees for every vacancy in the judiciary, subject only to the minimum qualifications required by the Constitution and law for every position. (Villanueva v. JBC, G.R. No. 211833, April 7, 2015) Rules on Appointments/Clustering of Nominees 1. The President shall appoint Members of the Supreme Court and judges of lower courts from a list of at least three (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. 5. Midnight Appointments Explicit prohibition against midnight appointments is already unnecessary due to the intervention of and screening made by Judicial Bar Council (JBC) (De Castro v. JBC, G.R. No. 191002, April 20, 2010) The Supreme Court has supervision over the JBC, and this authority covers the overseeing of the JBC compliance with its own rules. (Jardeleza v. Sereno, G.R. No. 213181, Aug. 19, 2014) The primary limitation to the JBC's exercise of discretion is that the nominee must possess the Page 109 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 minimum qualifications required by the Constitution and the laws relative to the position. While the resolution of who to nominate as between two candidates of equal qualification cannot be dictated by this Court upon the JBC, such surrender of choice presupposes that whosoever is nominated is not otherwise disqualified. The question of whether or not the nominee possesses the requisite qualifications is determined based on facts and therefore does not depend on, nor call for, the exercise of discretion on the part of the nominating body. Thus, the nomination by the JBC is not accurately an exercise of policy or wisdom as to place the JBC's actions in the same category as political questions that the Court is barred from resolving. (Republic v. Sereno, G.R. No. 237428, June 19, 2018) Mandamus will not lie to compel the JBC to select and recommend nominees for vacant judicial positions, which is a discretionary function. There is no legal right to be included in the list of nominees for judicial vacancies. Possession of the constitutional and statutory qualifications for appointment to the judiciary may not be used to legally demand that one's name be included in the list of candidates for a judicial vacancy. (Villanueva v. JBC, G.R. No. 211833, April 7, 2015) The clustering of nominees for the six vacancies in the Sandiganbayan by the JBC impaired the President's power to appoint members of the Judiciary and to determine the seniority of the newly-appointed Sandiganbayan Associate Justices. The clustering by the JBC of nominees for simultaneous or closely successive vacancies in collegiate courts can actually be a device to favor or prejudice a particular nominee. A favored nominee can be included in a cluster with no other strong contender to ensure his/her appointment; or conversely, a nominee can be placed in a cluster with many strong contenders to minimize his/her chances of appointment. (Aguinaldo v. Aquino, G.R. No. 224302, November 29, 2016) D. THE SUPREME COURT 1. COMPOSITION A Constitutional Court The Supreme Court is the only constitutional court, all the lower courts being of statutory creation. POLITICAL LAW Members (PHIL. CONST., art. VIII, § 4(1).) Chief Justice, and 14 Associate Justices The President cannot appoint a temporary member of the Supreme Court. There can be no doubt that the Chief Justice and Associate Justices required by the Constitution to compose the Supreme Court are regular members of the Court. A temporary member would be a misnomer, implying a position not contemplated by the Constitution. Thus, a law which authorizes the President to designate any judge of the lower court or cadastral judge to act as member of the Supreme Court is void (Vargas vs. Rillaroza, G.R. No. L-1612, Feb. 26, 1948). The members of the judiciary perform judicial functions. This function is exclusive. They cannot perform non- judicial functions. For this reason, the Constitution provides that the members of the Supreme Court and of other courts shall not be delegated to any agency performing quasi-judicial or administrative functions. (PHIL. CONST., art. VIII, § 12.) Primus Inter Pares Literally, first among equals; the maxim indicates that a person is the most senior of a group of people sharing the same rank or office. The phrase has been used to describe the status, condition or role of the Chief Justice in many supreme courts around the world. Hearing Of Cases In The Supreme Court (PHIL. CONST., art. VIII, § 4(1).) Divisions of 3, 5, or 7 members En Banc Any vacancy should be filled within 90 days from the occurrence thereof. 2. POWERS AND FUNCTIONS Decisions in General No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. (PHIL. CONST., art. VIII, § 14.) It is a requirement of due process that the parties to a litigation be informed of how it was decided, with an explanation of the Page 110 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 factual and legal reasons that led to the conclusions of the court. (NICOS Industrial Corp. v. Court of Appeals, G.R. No. 88709, Feb. 11, 1992) The purpose [of this Constitutional requirement is] to inform the person reading the decision, and especially the parties, of how it was reached by the court after consideration of the pertinent facts and examination of the applicable laws. (Francisco v. Permskul, G.R. No. 81006, May 12, 1989) The [provision] does not apply to interlocutory orders, such as one granting a motion for postponement or quashing a subpoena, because it refers only to decisions on the merits and not to orders of the trial court resolving incidental matters. (NICOS Industrial Corp. v. Court of Appeals, G.R. No. 88709, Feb. 11, 1992) So long as the decision contains the necessary facts to warrant its conclusions, it is no error for [the court] to withhold any specific finding of facts with respect to the evidence for the defense. The mere failure to specify (in the decision) the contentions of the appellant and the reasons for refusing to believe them is not sufficient to hold the same contrary to the requirements of the provisions of law and the Constitution. (Air France v. Carrascoso, G.R. No. L-21438, Sept. 28, 1986) The significance of factual findings lies in the value of the decision as a precedent. How will the ruling be applied in the future, if there is no point of factual comparison? (Velarde v. Social Justice Society, G.R. No. 159357, April 28, 2004) No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor. (PHIL. CONST., art. VIII, § 14).) Decisions by The Supreme Court (PHIL. CONST., art. VIII, § 13.) The conclusions of the Court in any case submitted to it for decision en banc or in division shall be reached in consultation POLITICAL LAW before the case is assigned to a Member for the writing of the opinion of the Court. 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. o Absence of a certification does not mean that there was no consultation prior to assignment of the case to a member. The presumption of regularity prevails but the erring officer will be liable administratively (Consing v. CA, G.R. No. 78272, Aug. 29, 1989). Any Member who took no part, or dissented, or abstained from a decision or resolution must state the reason therefor. The same requirements shall be observed by all lower collegiate courts. All lower collegiate courts shall observe the same procedure (e.g., CA, CTA, and Sandiganbayan). Minute Resolutions The adjudication of a case by minute resolution is an exercise of judicial discretion and constitutes sound and valid judicial practice. (Agoy v. Araneta Center, Inc., G.R. No. 196358 (Resolution), March 21, 2012) Minute resolutions are issued for the prompt dispatch of the actions of the Court. While they are the results of the deliberations by the Justices of the Court, they are promulgated by the Clerk of Court or his assistants whose duty is to inform the parties of the action taken on their cases by quoting verbatim the resolutions adopted by the Court. Neither the Clerk of Court nor his assistants take part in the deliberations of the case. They merely transmit the Court's action in the form prescribed by its Internal Rules. (Id.) When a minute resolution denies or dismisses a petition for failure to comply with formal and substantive requirements, the challenged decision, together with its findings of fact and legal conclusions, are deemed sustained. (Philippine Health Care Providers v. CIR, G.R. No. 167330, June 12, 2009) Page 111 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 With respect to the same subject matter and the same issues concerning the same parties, it constitutes res judicata. However, if other parties or another subject matter (even with the same parties and issues) is involved, the minute resolution is not binding precedent. (Id.) There are substantial, not simply formal, distinctions between a minute resolution and a decision. The constitutional requirement that the facts and the law on which the judgment is based must be expressed clearly and distinctly applies only to decisions, not to minute resolutions. A minute resolution is signed only by the clerk of court by authority of the justices, unlike a decision. It does not require the certification of the Chief Justice. Moreover, unlike decisions, minute resolutions are not published in the Philippine Reports. Finally, the proviso of Section 4(3) of Article VIII speaks of a decision. Indeed, as a rule, this Court lays down doctrines or principles of law which constitute binding precedent in a decision duly signed by the members of the Court and certified by the Chief Justice. (Id.) Memorandum Decisions 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. (Oil and Natural Gas Commission v. CA, G.R. No. 114323, July 23, 1998) Sin Perjuico Judgments One that is rendered without a statement of the facts in support of its conclusions, to be later supplemented by the final judgment. The Supreme Courted expressed its disapproval of the practice of rendering of sin perjuico judgments. (NACHURA) Timeframe for Deciding (PHIL. CONST., art. VIII, § 15.) SUPREME COLLEGIATE LOWER COURT COURTS COURTS 24 months 12 months 3 months from from from submission submission submission The periods above commence from the date of submission for decision or resolution. POLITICAL LAW A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the Rules of Court or by the Court itself. Upon expiration of the period without decision or resolution, a certification stating why no decision or resolution has been rendered shall be issued and signed by the Chief Justice or presiding judge. A copy of the certification shall be attached to the record of the case or matter, and served upon the parties. The certification shall state why a decision or resolution has not been rendered or issued within said period. The expiration of the period notwithstanding, the court shall decide or resolve the case or matter without further delay. LEONEN: Being the court of last resort, the Supreme Court should be given an ample amount of time to deliberate on cases pending before it. While the 24-month period provided under the 1987 Constitution is persuasive, it does not summarily bind this Court to the disposition of cases brought before it. It is a mere directive to ensure this Court's prompt resolution of cases, and should not be interpreted as an inflexible rule. (Re: Elvira N. Enalbes, A.M. No. 18-11-09-SC (Resolution, Jan. 22, 2019) The Sandiganbayan falls under the 3-month rule because it is a trial-court, not a collegiate court (Re: Problems of Delays in Cases Before the Sandiganbayan, A.M. No. 00- 8-05-SC, Jan. 31, 2002). A judge who fails to resolve cases within the period prescribed may be held liable for gross inefficiency, unless he explains his predicament and asked for extensions of time from the Supreme Court. (OCA v. Quiñanola, A.M. No. MTJ-99-1216, Oct. 20, 1999) EN BANC AND DIVISION CASES En Banc (PHIL. CONST., art. VIII, § 4(2).) All cases involving constitutionality of a: (LIT) o Law Page 112 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 International or executive agreement o Treaty All cases involving the constitutionality, application or operation of: (POPORI) o Presidential decrees o Orders o Proclamations o Ordinances o Other Regulations o Instructions Cases required to be heard en banc under the Rules of Court: o Appeals from Sandiganbayan and from the Constitutional Commissions o Cases heard by a division where required majority of 3 was not obtained o Cases where SC modifies or reverses a doctrine or principle of law laid down by the SC en banc or by a division o Administrative cases to discipline or dismiss judges of lower courts o Election contests for President and Vice-President o Cases required to be heard en banc shall be decided with the concurrence of a majority of the Members who: actually took part in the deliberations on the issues in the case and voted thereon No doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc. Division (PHIL. CONST., art. VIII, § 4(3).) Cases or matters heard by a division shall be decided or resolved with: o the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon and, o in no case without the concurrence of at least three of such Members. POLITICAL LAW When the required number is not obtained, the case shall be decided en banc. There is a distinction between cases, on the one hand, and matters, on the other hand, such that cases are "decided" while matters, which include motions, are "resolved", applying the rule of reddendo singula singulis. (Fortich v. Corona, G.R. No. 131457, Aug. 19, 1999) Only cases are referred to the Court en banc for decision whenever the required number of votes is not obtained. Conversely, the rule does not apply where the required three votes is not obtained in the resolution of a motion for reconsideration. Hence, hen the required number is not obtained, the case shall be decided en banc only speaks of ca and not a . Article VIII, Section 4(3) pertains to the disposition of cases by a division. If there is a tie in the voting, there is no decision. The only way to dispose of the case then is to refer it to the Court en banc. On the other hand, if a case has already been decided by the division and the losing party files a motion for reconsideration, the failure of the division to resolve the motion because of a tie in the voting does not leave the case undecided. There is still the decision which must stand in view of the failure of the members of the division to muster the necessary vote for its reconsideration. Quite plainly, if the voting results in a tie, the motion for reconsideration is lost. The Supreme Court sitting en banc is not an appellate court vis- -vis its Divisions, and it exercises no appellate jurisdiction over the latter. Each division of the Court is considered not a body inferior to the Court en banc, and sits veritably as the Court en banc itself. It bears to stress further that a resolution of the Division denying a par motion for referral to the Court en banc of any Division case, shall be final and not appealable to the Court en banc. (Apo Fruits v. CA, G.R. No. 164195, 2008) Page 113 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 PROCEDURAL RULE-MAKING (PHIL. CONST., art. VIII, § 5(5).) The Supreme Court has the power to promulgate rules concerning the: Protection and enforcement of constitutional rights Pleading, practice and procedure in all courts Admission to the practice of law The Integrated Bar Legal assistance to the underprivileged Limitations on Judicial Rule-Making: 1. It should provide a simplified and inexpensive procedure for the speedy disposition of cases. 2. It should be uniform for all courts of the same grade. 3. It should not diminish, increase, or modify substantive rights. It is possible for a substantive matter to be nonetheless embodied in a rule of procedure. Yet the absorption of the substantive point into a procedural rule does not prevent the substantive right from being superseded or amended by statute, for the creation of property rights is a matter for the legislature to enact on, and not for the courts to decide upon. (Republic v. Gingoyon, G.R. No. 166429, Feb. 1, 2006). In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower courts, abridges, enlarges, or modifies any substantive right, the test is whether the rule really regulates procedure, that is, the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to appeal, it may be classified as a substantive matter; but if it operates as a means of implementing an existing right then the rule deals merely with procedure. (Estipona v. Lobrigo, G.R. No. 226679, Aug. 15, 2017) The rules on plea bargaining neither create a right nor take away a vested right. Instead, it operates as a means to implement an existing right by POLITICAL LAW regulating the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. Sec. 23 of the Comprehensive Dangerous Drugs Act, which states that [a]ny person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining, is unconstitutional as it encroaches on the constitutional rule-making power of the Court. (Id.) A legislative grant of exemption from the payment of legal fees under RA 8291 was held to be unconstitutional since the payment of legal fees is an integral part of the rules promulgated by the court pursuant to its rule-making power under the Constitution. The other branches cannot trespass upon this prerogative by enacting laws or issue orders that effectively repeal, alter or modify any of the procedural rules (Re: Petition for Recognition of the GSIS from Payment of Legal Fees, A.M. No. 08-2-01-0, Feb. 11, 2010). Rule-making power also includes the inherent power to suspend its own rules in particular cases in the interest of justice. (Philippine Blooming Mills Employment v. Philippine Blooming Mills Co., G.R. No. L-31195, June 5, 1973) The constitutional grant to promulgate rules carries with it the power, inter alia, to determine whether to give the said rules prospective or retroactive effect. (People v. Lacson, G.R. No. 149453, April 1, 2003) ADMINISTRATIVE SUPERVISION OVER LOWER COURTS (PHIL. CONST., art. VIII, § 6.) The Supreme Court has administrative supervision over all inferior courts and personnel. Administrative supervision merely involves overseeing the operations of agencies to ensure that they are managed effectively, efficiently and economically, but without interference with day-today activities. Thus, to effectively exercise its power of administrative supervision over all courts as prescribed by the Constitution, P.D. No. 828, as amended, created the Office of the Court Administrator. Nowhere in the functions of the several offices in the Office of the Court Administrator is it provided that the Supreme Court Page 114 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 can assume jurisdiction over a case already pending with another court. (Agcaoili v. Fariñas, G.R. No. 232395, July 3, 2018) Administrative jurisdiction over a court employee belongs to the Supreme Court, regardless of whether the offense was committed before or after employment in the judiciary. (Ampong v CSC, G.R. No. 167916, Aug. 26, 2008) It is only the Supreme Court that can oversee the j dge and court per onnel compliance with all laws, and take the proper administrative action against them if they commit any violation thereof. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers. (Maceda v. Vasquez, G.R. No. 102781, April 22, 1993) Thus: The Ombudsman cannot justify its investigation of a judge on the powers granted to it by the Constitution. It cannot compel the Court, as one of the three branches of government, to submit its records, or to allow its personnel to testify on this matter. (Id.) The Ombudsman cannot determine for itself and by itself whether a criminal complaint against a judge, or court employee, involves an administrative matter. The Ombudsman is duty bound to have all cases against judges and court personnel filed before it, referred to the Supreme Court for determination as to whether and administrative aspect is involved therein. (Caoibes, Jr. v. Ombudsman, G.R. No. 132177, July 19, 2001) The CSC must likewise bring its complaint against a judicial employee before the OCA. However, such employee may be estopped from questioning the jurisdiction of the CSC under specific circumstances. (Ampong v CSC, G.R. No. 167916, Aug. 26, 2008) Administrative supervision also includes: Power to temporarily assign lower court judges to other stations in the public interest; such assignment shall not exceed POLITICAL LAW six (6) months without the consent of the judge concerned (PHIL. CONST., art. VIII, § 5(3).) Order a change of venue or place of trial to avoid a miscarriage of justice (PHIL. CONST., art. VIII, § 5(4).) The administrative function of the Court to transfer cases is a matter of venue, rather than jurisdiction. The Court may transfer the trial of cases from one court to another of equal rank in a neighboring site, whenever the imperative of securing a fair and impartial trial, or of preventing a miscarriage of justice, so demands. (Agcaoili v. Fariñas, G.R. No. 232395, July 3, 2018) POWER TO DISCIPLINE (PHIL. CONST., art. VIII, § 11.) The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. Decisions of the SC on disciplinary cases en banc is needed only when the penalty imposed is dismissal of a judge, disbarment of a lawyer, suspension of either for more than 1 year or a fine exceeding 10,000 pesos. Otherwise, the case may be decided by a division. (People v. Gacott, G.R. No. 116049, July 13, 1995) The rule prohibiting the institution of disbarment proceedings against an impeachable officer applies only during his or her tenure and does not create immunity from liability for possibly criminal acts or for alleged violations of the Code of Judicial Conduct or other supposed violations. Provided that the requirements of due process are met, the Court may penalize retired members of the Judiciary for misconduct committed during their incumbency. (In Re Undated Letter of Mr. Louis C. Biraogo, A.M. No. 09-2-19-SC, Feb. 24, 2009) POWER TO APPOINT The Supreme Court has the power to appoint all officials and employees of the Judiciary in accordance with the Civil Service Law. ORIGINAL AND APPELLATE JURISDICTION (PHIL. CONST., art. VIII, §5(1) and (2).) Page 115 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 The Supreme Court has original jurisdiction over: 1. Cases affecting: a. Foreign ambassadors b. Other foreign public ministers c. Consuls stationed in the Philippines 2. Petitions for: a. Certiorari b. Prohibition c. Mandamus d. Quo Warranto e. Habeas Corpus The Supreme Court has appellate jurisdiction (i.e. review, revise, reverse, modify, or affirm on appeal or certiorari) over final judgments and orders of lower courts in: 1. All cases involving constitutionality or validity of any Law, International agreement or Treaty (LIT) 2. All cases involving the constitutionality or validity of any Presidential decree, Order, Proclamation, Ordinance, Regulation or Instruction (POPORI) 3. All cases involving the legality of any: Tax, Impost, Toll, Assessment or any Penalty imposed in relation thereto (TITAP) 4. All cases in which the jurisdiction of any lower court is in issue 5. Criminal cases where the penalty imposed is reclusion perpetua or higher 6. All cases where only errors or questions of law are involved Judicial Privilege Judicial privilege insulates the Judiciary from an improper intrusion into the functions of the judicial branch and shields justices, judges, and court officials and employees from public scrutiny or the pressure of public opinion that would impair a j dge ability to render impartial decisions. (In Re: Production of Court Records and Documents and the Attendance of Court Officials and Employees as Witnesses under the Subpoenas of February 10, 2012 and the Various Letters of Impeachment Prosecution Panel dated January 19 and 25, 2012, Notice of Resolution, February 14, 2012). Deliberative Process Privilege (Id.) This privilege guards against the disclosure of information/communication involving as it does the POLITICAL LAW deliberative process of reaching a decision. This enables the Members of the Court to freely discuss the issues without fear of criticism for holding unpopular positions or fear of humiliation for one's comments. To qualify for protection under the deliberative process privilege, the agency must show that the document is both predecisional and deliberative. Predecisional if it precedes, in temporal sequence, the decision to which it relates i.e. if they were made in the attempt to reach a final conclusion. Deliberative if it reflects the give-andtake of the consultative process. The key question in determining whether the material is deliberative in nature is whether disclosure of the information would discourage candid discussion within the agency. Summary of privileged documents or communications not subject to disclosure: (Id.) Court actions such as the result of the raffle of cases and the actions taken by the Court on each case included in the agenda of the Co r session on acts done material to pending cases, except where a party litigant requests information on the result of the raffle of the case, pursuant to Rule 7, Section 3 of the Rules of Court of the Supreme Court (IRSC); Court deliberations or the deliberations of the Members of the court sessions on cases and matters pending before the Court; Court records which are pre-deci ional and delibera i e in nature; Confidential Information secured by justices, judges, court officials and employees in the course of their official functions mentioned in the 2 preceding enumerations, are privileged even after their term of office; Records of cases that are still pending for decision are privileged materials that cannot be disclosed, except only for pleadings, orders and resolutions that have been made available by court to the general public. Page 116 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 The principle of comity or interdepartmental courtesy demands that the highest officials of each department be exempt from the compulsory processes of the other departments; These privileges belong to the Supreme Court as an institution, not to any justice or judge in his or her individual capacity. Since the Court is higher than the individual justices or judges, no sitting or retired justice or judge, not even the Chief Justice, may claim exception without the consent of the Court. The Internal Rules of the Supreme Court (IRSC) prohibits the disclosure of: 1. Result of the raffle of cases; 2. Actions taken by the Court on each case included in the agenda of the Co r session; 3. Deliberations of the Members in court sessions on cases and matters pending before it; 4. The privilege against disclosure of these kinds of information/communication is known as deliberative process privilege - end of topic - Page 117 of 568 CONSTITUTIONAL COMMISSIONS Political Law ATENEO CENTRAL BAR OPERATIONS 2020/21 VIII. CONSTITUTIONAL COMMISSIONS TOPIC OUTLINE UNDER THE SYLLABUS: POLITICAL LAW A. COMMON PROVISIONS REVIEW OF FINAL ORDERS, RESOLUTIONS, AND DECISIONS VIII. CONSTITUTIONAL COMMISSIONS A. COMMON PROVISIONS B. INSTITUTIONAL INDEPENDENCE SAFEGUARDS C. POWERS AND FUNCTIONS D. COMPOSITION AND QUALIFICATION OF MEMBERS E. PROHIBITED OFFICES AND INTERESTS How Commission decides Matters or Cases Each commission shall decide matters or cases by a majority vote of all its members within 60 days from submission. The rule on majority vote shall apply both in a division or en banc. Who constitutes a This provision is clear when it says that the voting should be a majority vote of all its members and not only of those who participated in the deliberation and voted therein. Effect of Resignation of a Commissioner When a commissioner resigns, it does not automatically invalidate the decision. So long as the required majority of the commission is still achieved despite the withdrawal of the vote of the one who resigned, the decision shall stand. Exception: COMELEC may sit en banc or in 2 divisions. How Election cases are decided on Election cases, including pre-proclamation controversies are decided in division, with motions for reconsideration filed to the COMELEC en banc. Majority Decision of a Division A majority decision decided by a division of the COMELEC is valid. No One member can decide a case for the Commission As collegial bodies, each commission must act as one, and no one member can decide a case for the entire commission. (e.g. Chairman cannot ratify a decision that would otherwise have been void.) Rendered in the exercise of quasi-judicial functions Decisions, orders or rulings of the COMELEC or the COA may be brought on certiorari to the SC under Rule 64. Decisions, orders or ruling of the CSC should be appealed to the CA under Rule 43. Page 119 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Period for appeals is 30 days from receipt of a copy of the decision, order, or ruling. It is however a requirement, that a motion for reconsideration must first be filed before the commission en banc, before resort to court is taken. The certiorari jurisdiction of the court is limited only to cases and matters rendered by a commission in the exercise of its adjudicatory power, or those relating to an election dispute and not to cases and matters purely administrative or executive in nature. Rendered in the Exercise of Administrative Functions Administrative disciplinary cases involving penalty of suspension for more than 30 days, or fine in an amount exceeding 30 da salary, demotion, transfer, removal, or dismissal from office shall be appealable to the CSC Decision may be executed pending appeal Decision of CSC may be brought on appeal to the CA under Rule 43 Decision of CA may be brought on appeal to the SC under Rule 45. Exoneration of officers or employees from administrative charges does not bar appeal. The CSC is the proper party to bring the appeal (PD 807, §37- 39); (CSC v. Dacoycoy, G.R. No. 135805, April 29, 1999). Enforcement - It has been held that the CSC can issue a writ of execution to enforce judgments, which is deemed final. B. INSTITUTIONAL INDEPENDENCE SAFEGUARDS Constitutional Safeguards The commissions are constitutionally created, and may not be abolished by law (PHIL. CONST. art. IX-A, §1) Each is expressly described as independen Each is conferred certain powers and functions by the Constitution which cannot POLITICAL LAW be reduced by statute (PHIL. CONST. art. IXB, C, and D) The Chairmen and members cannot be removed, except by impeachment (PHIL. CONST. art. XI, § 2) The Chairmen and the members are given a fairly long term of office of 7 years (PHIL. CONST. art. IX-B, C, and D, § 1, ¶ 2) The Chairmen and members may not be re-appointed or appointed in an acting capacity The salaries of the Chairmen and members are relatively high and may not be decreased during continuance in office (PHIL. CONST. art. IX, § 3; art. XVIII, § 117) The Commissions enjoy fiscal autonomy (PHIL. CONST. art. IX-A, § 5). Each Commission en banc may promulgate its own procedural rules, provided they do not diminish, increase or modify substantive rights (PHIL. CONST. art. IX, § 6) o In case of conflict between the Rules of Court and the Rules promulgated by the commission, the prevailing rule will depend on where the case is filed. If before the commission, the rule of the commission prevails, if before a regular court, the Rules of Court will prevail. o The power of the Supreme Court to review the rules of quasi-judicial agencies does not apply to Constitutional Commissions The Chairmen and members are subject to certain disqualifications calculated to strengthen their integrity (PHIL. CONST. art. IX, § 2) The Commissions may appoint their own officials and employees in accordance with Civil Service Law (PHIL. CONST. art. IX, § 4). Fiscal Autonomy Fiscal autonomy means that there is automatic and regular release as opposed to the fiscal autonomy of the judiciary, which includes the rule that Page 120 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 appropriation may not be less than the previous year. Rotational Scheme of Appointments This scheme provides that the first appointees shall serve terms of 7, 5 and 3 years, respectively. There appears to be near unanimity as to the purpose/s of the rotational system, as originally conceived, i.e., to place in the commission a new appointee at a fixed interval (every two years presently), thus preventing a four-year administration appointing more than one permanent and regular commissioner, or to borrow from Commissioner Monsod of the 1986 CONCOM, o prevent one person (the President of the Philippines) from dominating the commi ion (Funa v. Chairman of COA, G.R. No. 192791, April 24, 2012). The 2 conditions for the workability of the R a a Sc are: The terms of the first batch of commissioners should start on a common date; and Any vacancy due to the death, resignation or disability before the expiration of the term should be filled only for the unexpired balance of the term (Funa v. Chairman of COA, G.R. No. 192791, Apr. 24, 2012 citing Republic v. Imperial, G.R. No. L8684, March 31, 1955). Where the Rotational Scheme Applies: Civil Service Commission (CSC) Commission on Elections (COMELEC) Commission on Audit (COA) Judicial and Bar Council (JBC) Promotional Appointment of Commissioner to Chairman Article IX-D, Sec. 1(2) does not prohibit a promotional appointment from commissioner to chairman as long as: (a) The commissioner has not served the full term of 7 years; and (b) The appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. (PHIL. CONST. art. IXD, Sec. § 1(2)) POLITICAL LAW (c) The promotional appointment must conform to the rotational plan or the staggering of terms in the commission membership. Jurisprudence on Sec.1(2), Art.IX-D 1. Term of Appointment: The appointment of members of any of the three constitutional commissions, after the expiration of the uneven terms of office of the first set of commissioners, shall always be for a fixed term of seven (7) years; an appointment for a lesser period is void and unconstitutional. The appointing authority cannot validly shorten the full term of seven (7) years in case of the expiration of the term as this will result in the distortion of the rotational system prescribed by the Constitution. 2. Rule on Appointment to Vacancies: Appointments to vacancies resulting from certain causes (death, resignation, disability or impeachment) shall only be for the unexpired portion of the term of the predecessor; such appointments cannot be less than the unexpired portion [as it will disrupt the staggering]. 3. Members of Commission who served Full Term: Members of the Commission who were appointed for a full term of seven years and who served the entire period, are barred from reappointment to any position in the Commission. The first appointees in the Commission under the Constitution are also covered by the prohibition against reappointment. 4. Eligibility for Appointment as Chairman of Commissioner who resigns: A commissioner who resigns after serving in the Commission for less than seven years is eligible for an appointment as Chairman for the unexpired portion of the term of the departing chairman. Such appointment is not covered by the ban on reappointment, provided that the aggregate period of the length of service will not exceed seven (7) Page 121 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 years and provided further that the vacancy in the position of Chairman resulted from death, resignation, disability or removal by impeachment. This is not a reappointment, but effectively a new appointment. 5. Rule on Temporary Appointments: Any member of the Commission cannot be appointed or designated in a temporary or acting capacity. . Term of Office of Each Commission Member The terms of the first Chairmen and Commissioners of the Constitutional Commissions under the 1987 Constitution must start on a common date, irrespective of the variations in the dates of appointments and qualifications of the appointees, in order that the expiration of the first terms of seven, five and three years should lead to the regular recurrence of the two-year interval between the expiration of the terms. This common appropriate starting point must be on February 02, 1987, the date of the adoption of the 1987 Constitution. (a) Term the time during which the officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another. (b) Tenure term during which the incumbent actually holds the office. The term of office is not affected by the holdover. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent. (Gaminde v. Commission on Audit, G.R. No. 140335, Dec. 13, 2000) C. POWERS AND FUNCTIONS Civil Service Commission The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to POLITICAL LAW public accountability. It shall submit to the President and the Congress an annual report on its personnel programs. (PHIL. CONST. art. IX-B, § 3) FUNCTIONS OF THE CSC 1. In the exercise of its powers to implement R.A. 6850 (granting civil service eligibility to employees under provisional or temporary status who have rendered seven years of efficient service), the CSC enjoys a wide latitude of discretion, and may not be compelled by mandamus (Torregoza v. Civil Service Commission, G.R. No. 101526, July 3, 1992). 2. Under the Administrative Code of 1987, the Civil Service Commission has the power to hear and decide administrative cases instituted before it directly or on appeal, including contested appointments. 3. The Commission has original jurisdiction to hear and decide a complaint for cheating in the Civil Service examinations committed by government employees. (Cruz v. CSC, G.R. No. 144464, Nov. 27, 2001) 4. It is the intent of the Civil Service Law, in requiring the establishment of a grievance procedure, that decisions of lower level officials (in cases involving personnel actions) be appealed to the agency head, then to the Civil Service Commission. (Olanda v.Bugayong G.R. No. 140917, Oct. 10, 2003). 5. As the central personnel agency of the government, shall establish a career service and adopt measures to promote morale, efficiency, integrity responsiveness, progressiveness and courtesy in the Civil Service. a. It may revoke a certificate of eligibility motu proprio and consequently, the power to revoke one that has been given. b. Where the case simply involves the rechecking of examination papers and nothing more than a re-evaluation of documents already in the records of the CSC according to a standard answer key previously set by it, notice and hearing is not required. Instead, Page 122 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 6. 7. 8. 9. what will apply in such a case is the rule of res ipsa loquitur (Lazo v. Civil Service Commission, G.R. No. 108824, Sept. 14, 1994). Strengthen the merit and rewards system Integrate all human resources development programs for all levels and ranks Institutionalize a management climate conducive to public accountability Submit to the President and the Congress an annual report of personnel programs Scope of the Civil Service Commission (BIGAS) 1. Branches 2. Instrumentalities 3. GOCCs with original charters 4. Agencies of the government 5. Subdivisions (PHIL. CONST. art. IX-B, § 2(1)) Classes of Service 1. Career Service: characterized by entrance (a) based on merit and fitness to be determined, as far as practicable, by competitive examinations; or (b) based on highly technical qualifications; with opportunity for advancement to higher career positions and security of tenure. a. Open Career Positions: where prior qualification in an appropriate examination is required b. Closed career positions: scientific or highly technical in nature; c. Career Executive Service: undersecretaries, bureau directors d. Career Officers: other than those belonging to the Career Executive Service who are appointed by the President (e.g. those in the foreign service) e. Positions in the AFP although governed by a different merit system f. Personnel of GOCCs with original charters g. Permanent laborers, whether skilled, semiskilled or unskilled 2. Non-Career Service: characterized by entrance on bases other than those of the usual tests utilized for the career service, POLITICAL LAW tenure limited to a period specific by law, or which is co-terminus with that of the appointing authority or subject to his pleasure, or which is limited to the duration a. Elective officials, and their personal and confidential staff; b. Department heads and officials of Cabinet rank who hold office at the pleasure of the President, and their personal and confidential staff; c. Chairmen and members of commissions and bureaus with fixed terms; d. Contractual personnel; e. Emergency and seasonal personnel The CSC cannot disallow an appointment to a position authorized by law but not included in the Index of Occupational Service. Although the CSC rules limit appointments to positions within the Index of Occupational Service, nevertheless, it is limited to the implementation of the laws it is tasked to enforce. RA 8494 exempted the Trade and Investment Corporation from conforming to the position classification; thus, the appointment is valid (Trade and Investment v. CSC, G.R. No. 182249, March 5, 2013). Appointments in the Civil Service General Rule: Made only according to merit and fitness to be determined, as far as practicable, by competitive examination Exceptions: 1. Policy determining Where the officer lays down principal or fundamental guidelines or rules; or formulates a method of action for government or any of its subdivisions; e.g. department head. 2. Primarily confidential Denoting not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayals on confidential matters of state (De los Santos v. Mallare, G.R. No. L-3881, Aug. 31, 1950); OR one declared to be so by the President of the Philippines upon the Page 123 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 recommendation of the CSC (Salazar v. Mathay, G.R. No. L-44061, Sept. 20, 1976) 3. Highly technical Requires possession of technical skill or training in supreme degree. (De los Santos v. Mallare, supra) Types of Appointment 1. Permanent Status: A permanent appointment shall be issued to a person who meets all the requirements for the positions to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof. 2. Temporary Status: In the absence of appropriate eligibles and when it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility; provided that such temporary appointment shall not exceed 12 months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available. CSC may not terminate the employment of a civil servant The CSC may not terminate the employment of a civil servant. The CSC is not a co-manager or surrogate administrator of government offices and agencies. Its functions and authority are limited to approving or reviewing appointments to determine their compliance with requirements of the Civil Service Law. On its own, the Commission does not have the power to terminate employment or drop members from the rolls (UP and Torres v. CSC, G.R. No. 132860, April 3, 2001). Security of Tenure in Civil Service Law The concept of security of tenure in the Civil Service Law is embraced in Section 2(3), Article XIB. No officer or employee of the civil service shall be removed or suspended except for cause provided by la . Classes of non-competitive positions Policy determining where the officer lays down principal or fundamental POLITICAL LAW guidelines or rules or formulates a method of action for government or any of its subdivisions. (Nachura, p. 418) Primarily confidential when the nature of the office requires close intimacy between the appointee and appointing authority which insures freedom of intercourse without embarrassment or freedom from misgiving of betrayal of personal trust on confidential matters of state. Highly technical it means something beyond the ordinary requirements of the profession. Hence, its determination is always a question of fact. (CSC v. Javier, G.R. No. 173264, Feb. 22, 2008) When Position Primarily Confidential A position is considered primarily confidential if the nature of the office requires close intimacy between the appointee and appointing authority which insures freedom of intercourse without embarrassment or freedom from misgiving of betrayal of personal trust on confidential matters of state. The Guarantee of Security of Tenure for Primarily Confidential Positions They are covered by the guarantee of security of tenure but the termination of their official relation can be justified on the ground of loss of confidence because in that case their cessation from office involves no removal but the expiration of the term of office. The CSC cannot take back-up files in the computer of an employee to determine if he was acting as counsel for employees with cases before the Commission when such employee has a reasonable expectation of privacy. In determining such, the following factors should be considered: (RAC) 1. The Emplo ee Relationship to the item seized; 2. Whether the employee took Action to maintain his privacy in the item 3. Whether the item was in the immediate Control of the employee; (Pollo v. Constantino-David, G.R. No. 181881, Oct. 18, 2011) Page 124 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Rule on Security of Tenure No officer of employee of the CSC shall be removed or suspended except for causes provided by law (PHIL. CONST. art. IX-B, § 2, ¶ 3). Security tenure is available even to positions which are considered highly technical, policy-determining and primarily confidential. Rule on Partisan Political Activity Joint Circular No.001 d. 2016 of the COMELEC and CSC reiterated art. IX, § 2(4) that no officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign. However, the prohibition of engaging in partisan political activity does not apply to department secretaries. (Santos v. Yatco, G.R. No. L013932, Dec. 24, 1959) Right to Self-Organization The right to self-organization shall not be denied to government employees. But employees in the civil service may not resort to strikes, walkouts, and other temporary work stoppages, like workers in the private sector, to pressure the government to accede to their demands. Thus, their right to organize does not include the right to strike. (SSS v. CA, G.R. No. 85279, July 28, 1989) Prohibition against Additional and Double Compensation Rule: No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office or title of any kind from any foreign government. Note that, pensions or gratuities shall not be considered as additional, double or indirect compensation. (PHIL. CONST. art. IX-B, § 8) a. Additional Compensation: when for one and the same office for which compensation has been fixed there is added to such fixed compensation an extra reward in the form of bonus and the like (BERNAS) b. Double Compensation: refers to two sets of compensation for two different offices held concurrently by one officer POLITICAL LAW Can ex officio members receive per diems? No, ex officio members of a board are not entitled to per diems. (PEZA v COA, G.R. No. 189767, July 3, 2012) Commission on Elections Enforce and administer All laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. e.g., COMELEC can enjoin construction of public works within 45 days of an election. The COMELEC can take cognizance of any question on the conduct of plebiscite such as to correct or check what the Board of Canvassers erroneously or fraudulently did during the canvassing, verify or ascertain the results of the plebiscite either through pre-proclamation case or through revision of ballots. The power of the COMELEC to ascertain the results of the plebiscite is implicit in the power to enforce all laws relative to the conduct of plebiscite. COMELEC can take jurisdiction over cases involving party identity and leadership or controversy as to leadership in the party. Such jurisdiction is sourced from the general power of the Commission to administer laws and rules involving the conduct of election. here is no need for a special legislation for the authorization of the conduct of recall elections because it is deemed included in the constitutional function of COMELEC, hence, contemplated in its budget in the GAA (Goh v. Bayron, G.R. No. 212584, Nov. 25, 2014). Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial and city officials Election contests in the Sangguniang Kabataan (SK) are not under COMELEC jurisdiction but under the jurisdiction of the DILG. Exercise appellate jurisdiction over all contests involving: Page 125 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 1. Elective municipal officials decided by trial courts of general jurisdiction 2. Elective barangay officials decided by trial courts of limited jurisdiction a. A petition for certiorari questioning an interlocutory order of a trial court in an electoral protest was within the appellate jurisdiction of the COMELEC. The Court recognizes the COMELEC appellate jurisdiction over petitions for certiorari against all acts or omissions of courts in election cases (Bulilis v. Nuez, G.R. No. 195953, Aug. 9, 2011). b. Petition for certiorari questioning the decision of COMELEC division is premature as there is a plain and speedy remedy before COMELEC En Banc (Villarosa v. Festin, G.R. No. 212953, Aug. 5, 2014). 3. Decisions, final orders, or rulings of the COMELEC contests involving elective municipal and barangay offices shall be final, executory, and not appealable. a. Exception: May be appealed to the SC EN BANC on questions of law When the decision is brought on a special civil action for certiorari, prohibition, or mandamus under Rule 64 for grave abuse of discretion under Article IX-A Section 7. Issue writs of certiorari, prohibition and mandamus in the exercise of its appellate jurisdiction. Contempt powers 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. If it is a pre-proclamation controversy, the COMELEC exercises quasi-judicial or administrative powers. Its jurisdiction over con e (after proclamation) is in exercise of its judicial functions. POLITICAL LAW 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. These petitions are cognizable by the Regular Courts (MTC). 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. This power is NOT limited to the election period. Applies to both criminal and administrative cases. Register political parties, organizations, or coalitions, accredit ci i en arms of the Commission on Elections. Political parties, etc. must present their platform or program of government. There should be sufficient publication. Groups that cannot be registered: 1. Religious denominations/ sects 2. Those that seek to achieve their goals through violence or unlawful means 3. Those that refuse to uphold and adhere to the Constitution 4. Those supported by any foreign government e.g. receipt of financial contributions related to elections File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting elections frauds, offenses and malpractices. COMELEC has exclusive jurisdiction to investigate and prosecute cases for violations of election laws. COMELEC can deputize prosecutors for this purpose. The actions of the prosecutors are the actions of the COMELEC. Page 126 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 COMELEC can conduct preliminary investigation on election cases falling within its jurisdiction. 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. Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision. Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall (PHIL. CONST. art. IX-C, § 2). The vote requirement for a valid COMELEC en Banc resolution is a majority of the votes of all members, or 4 votes. If the six members are evenly divided, the Commission on Elections should rehear the case (Sevilla v. COMELEC, G.R. 203833, March 19, 2013). Powers not given to COMELEC Decide questions involving the right to vote (placed under jurisdiction of courts); Transfer municipalities from one congressional district to another for the purpose of preserving proportionality. Cases decided by COMELEC subject to judicial review: Decisions or determinations by COMELEC in the exercise of its administrative (not quasi-judicial) power may be questioned in an ordinary civil action before the trial court. (Filipinas Engineering & Machine Shop v. Ferrer, G.R. No. L-31455, Feb. 28, 1985). The Court has no power to review on certiorari an interlocutory order or even a final resolution issued by a DIVISION of the COMELEC. The Court can only review a final decision or resolution of the COMELEC en banc (Cagas vs. COMELEC, G.R. No. 194139, Jan. 24, 2012). POLITICAL LAW COMELEC has jurisdiction to determine the presence of probable ca e in election cases. The finding of probable cause and the prosecution of election offenses rests in the COMELEC sound discretion (Baytan v. COMELEC, G.R. No. 153945, Feb. 4, 2003). The Chief State Prosecutor, who may have been designated by the COMELEC to prosecute a criminal action, merely derives his authority from the COMELEC. It is beyond his power to oppose the appeal made by COMELEC (Comelec v. Silva, G.R. No. 129417, Feb. 10, 1998). The COMELEC cannot itself, in the same cancellation (of certificate of candidacy) case, decide the qualification or lack thereof of the candidate if such issues are yet undecided or undetermined by the proper authority. The provisions in Article IX-C, Section 2, enumerating the powers and functions of COMELEC does not have the same exactitude of the provisions of Art. VI, Sec. 17, which provides for the HRET and SET, or that of Art. VII, Sec. 4, which provides that the SC en banc shall be the sole judge of all contest regarding the Presidency and Vice-Presidency. These tribunals have jurisdiction over the question of qualifications of the President, VP, Senators, and the HoR. o Not one of the enumerated powers of the COMELEC as stated in Article IX-C, Sec. 2 of the Constitution grants the commission the power to determine the qualifications of a candidate. A COMELEC rule or resolution cannot supplant or vary the legislative enactments that distinguish the grounds for disqualification from those of ineligibility, and the appropriate proceedings to raise the said grounds. (Fermin v. COMELEC, G.R. No. 179695, Dec. 18, 2008) Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 of the COMELEC rules do not allow authorization and do not constitute vestment of Page 127 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 jurisdiction for the COMELEC to determine the qualification of a candidate. The facts of qualification must first be established in a prior proceeding before an authority vested with jurisdiction. Prior determination of qualification may be by statute, by an executive order or by a judgment of a competent court or tribunal. Lacking this prior determination, the certificate of candidacy cannot be cancelled or denied due course on ground of false representations regarding a candida e qualifications except if there exists self-evident facts of unquestioned or unquestionable veracity and judicial confessions. In this light the COMELEC cannot cancel Poe certificate of candidacy lacking prior determination of her qualifications by a competent body. (Poe-Llamanzares v. Comelec et al, G.R. Nos. 221697 & 221698-700, March 8, 2016) The COMELEC po er o motu proprio deny due course to a certificate of candidacy is subject to the candida e oppor ni o be heard. Under Ar icle II, Sec ion 26 of he Con i ion, he a e hall guarantee equal access to opportunities for public ser ice. (PHIL. CONST. art. II, § 26). This, however, does not guarantee a constitutional right to run for or hold public office. To run for public office is a mere privilege subject to limitations imposed by law, such as prohibition on nuisance candidates. To minimize logistical confusion caused by n i ance candida e , heir COC ma be denied due course by the COMELEC, through motu proprio or upon verified petition of an interested party, subject to an opportunity to be heard. (LEONEN: Timbol v Commission on Elections, G.R. No. 206004, Feb. 24, 2015) Regulation of Public Utilities, Media and Franchises The COMELEC may, during the election period, supervise or regulate the utilization of all franchises or permits for the operation of transportation and other public utilities, media, all grants, privileges and concessions, granted by the Government. (PHIL. CONST. art. IX-C, § 4) POLITICAL LAW The aim is to ensure equal opportunity, time, and space, and the right to reply, including reasonable equal rates for public information campaigns and forums among candidates. (PHIL. CONST. art. IX-C, § 4). Can print media be compelled to allocate free space? No. Print media may not be compelled to allocate free space to the Commission. Such would amount to a taking of property without just compensation. (Philippine Press Institute v. COMELEC, G.R. No 119694, May 22, 1995) Can the COMELEC regulate expressions made by private citizens? No. COMELEC had no legal basis to regulate expressions made by private citizens. As such, COMELEC order to remove the tarpaulin posted by the Diocese of Bacolod bearing the heading Con cience Vo e was unconstitutional. (Diocese of Bacolod v COMELEC, G.R. No 205728, Jan. 21, 2015) Are the functions under R.A. No. 8436 mandatory? (LEONEN) Yes. The minimum functional capabilities enumerated under Section 6 of R.A. No. 8436, as amended, are mandatory. These functions constitute the most basic safeguards to ensure the transparency, credibility, fairness and accuracy of the upcoming elections. The law is clear. A o erverified paper audit rail requires the following: (a) individual voters can verify whether the machines have been able to count their votes; and (b) that the verification at minimum should be paper based. There appears to be no room for further interpretation of a o er-verified paper audit rail. The paper audit trail cannot be considered the physical ballot, because there may be instances where the machine may translate the ballot differently, or the voter inadvertently spoils his or her ballot. (Bagumbayan-VNP Movement, Inc. vs COMELEC, G.R. No. 222731, March 8, 2016) Commission on Audit Examine, audit, and settle all accounts pertaining to: 1. Revenue and receipts of funds or property Page 128 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 2. 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. GOCCs with original charters. COA is endowed with enough latitude to determine, prevent and disallow irregular, unnecessary, excessive, extravagant or unconscionable expenditures of government funds. In resolving cases brought before it on appeal, respondent COA is not required to limit its review only to the grounds relied upon by a government agenc auditor with respect to disallowing certain disbursements of public funds. In consonance with its general audit power, respondent COA is not merely legally permitted, but is also duty-bound to make its own assessment of the merits of the disallowed disbursement and not simply restrict itself to reviewing the validity of the ground relied upon by the auditor of the government agency concerned. To hold otherwise would render COA vital constitutional power unduly limited and thereby useless and ineffective (Yap v. Commission on Audit, G.R. No.158562, April 23, 2010). Funds cannot be released without auditing in preaudit while in post-audit, the auditing is done only after the funds are released. (Maritime Industry Authority v. Commission on Audit, G.R. No. 185812, Jan. 13, 2015) COA is not required to limit its review only to the grounds relied upon by the auditor with respect to disallowing certain disbursements of public funds. In consonance with its general audit power, COA is not merely legally permitted but is also duty-bound to make its own assessment of the merits of the disallowed disbursement and not simply restrict to reviewing the validity of the ground relied upon by the auditor of the government agency concerned. To settle government accounts This means the power to settle liquidates accounts i.e. accounts which may be adjusted simply by an arithmetical process. It does not include the power to fix the amount of an unfixed or undetermined debt. POLITICAL LAW To define the scope and techniques for its own auditing procedures To promulgate accounting and auditing rules including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures; Conduct post-audit with respect to the following: 1. Constitutional bodies, commissions, and offices granted fiscal autonomy 2. Autonomous state colleges and universities 3. GOCCs and their subsidiaries incorporated under the Corporation Code 4. Non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the government, which are required by law, through the granting institution, to submit to such audit. 5. To decide administrative cases involving expenditure of public funds (PHIL. CONST. art. IX-D, § 2) If COA finds the internal control system of audited agencies inadequate, COA may adopt measures, including temporary or special pre-audit, as necessary to correct deficiencies. Keep the general accounts of the government Preserve vouchers and other supporting papers pertaining thereto for such period as may be provided by law The functions of COA can be classified as: 1. Examining and auditing all forms of government revenues and expenditures 2. Settling government accounts 3. Promulgating accounting and auditing rules 4. Deciding administrative cases involving expenditures of public funds. COA non-exclusive power to audit The COA does not have the exclusive power to examine and audit government entities. As such, public corporations under COA, jurisdiction may employ private auditors. However, COA findings Page 129 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 and conclusions necessarily prevail over those of private auditors, at least insofar as government agencies and officials are concerned (DBP v COA, G.R. No. 88435, Jan. 16, 2002) Thus, private auditors can be hired but if there is a conflict, COA audit prevails. Prosecutors Power to Review Accounts Settled by COA Prosecutors may still review accounts already settled and approved by COA for the purpose of determining possible criminal liability. This is because COA interest in such accounts is merely administrative. Exclusive Authority to Define Scope of Audit and Examination Pursuant to its mandate as the guardians of public funds, the COA has the exclusive authority to define the scope of its audit and examination, establish the techniques and methods for such review and promulgate accounting and auditing rules and regulations (Veloso v. Commission on Audit, G.R. No. 193677, Sept. 6, 2011). What are Considered Private Corporations Note that not all corporations, which are not government owned or controlled, are ipso facto to be considered private corporations as there exists another distinct class of corporations or chartered institutions which are otherwise known as p blic corpora ion . These corporations are treated by law as agencies or instrumentalities of the government. As presently constituted, the BSP is a public corporation created by law for a public purpose, and being such the funds of the BSP fall under the jurisdiction of the Commission on Audit. (Boy Scouts of the Philippines v. COA, G.R. No. 177131, June 7, 2011) Complete Discretion afforded to COA COA is generally accorded complete discretion in the exercise of its constitutional duty and responsibility to examine and audit expenditures of public funds. Only in instances when COA acts without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction shall the Court interfere. Thus, COA can disallow TESDA from paying a healthcare allowance to their employees. (TESDA v. COA, G.R. No. 196418, Feb. 10, 2015) POLITICAL LAW Jurisdiction 1. Of the Commission in General: No law shall be passed exempting any entity of the Government, or any investment of public funds, from the jurisdiction of the COA (PHIL. CONST. art. IX-D, § 3) 2. Over GOCCs: The Constitution vests in the COA audit jurisdiction over go ernmen owned and controlled corporations with original charters, as well as government owned or controlled corporations without original char er . GOCCs with original charters are subject to COA pre-audit, while GOCCs without original charters are subject to COA post-audit. The determining factor of COA audit jurisdiction is government ownership or control of the corporation. 3. Over LGUs: LGUs, through granted local fiscal autonomy are still within the audit jurisdiction of the COA (Veloso v. Commission on Audit, G.R. No. 193677, Sept. 6, 2011). COA authority in Public Bidding COA has the power to determine the meaning of p blic bidding and what constitutes failure of the same when regulations require public bidding for the sale of government property. D. COMPOSITION AND QUALIFICATION OF MEMBERS Civil Service Commission Composition A Chairman, and 2 Commissioners Qualifications (PHIL. CONST., art. IX-B, § 1(1)) 1. Natural-born citizens of the Philippines; 2. At the time of their appointment, at least 35 years of age 3. With proven capacity for public administration; and 4. Must not have been candidates for any elective position in the election immediately preceding their appointment Page 130 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 Disqualifications 1. No candidate who has lost in any election shall, within 1 year after such election, be appointed to any office in the Government of any GOCC or in any of their subsidiaries. (PHIL. CONST. Art. IX-B, §6) 2. No elective official shall be eligible for appoint or designation in any capacity to any public office or position during his tenure. (PHIL. CONST. Art. IX-B, § 7, ¶ 1) Exceptions: a. the Vice President may be appointed as member of the Cabinet b. Member of the Congress is designated to sit in the JBC 3. Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the government or any subdivision, agency or instrumentality thereof including GOCCs or their subsidiaries. (PHIL. CONST. art. IX-B, § 7, ¶ 2) 4. No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign, (PHIL. CONST. art.IX-B, § 2, ¶ 4) Appointment and Term Appointed by the President with the consent of the Commission on Appointments. The term is 7 years, without reappointment. The prohibition of reappointment applies even if the Commissioner has served for less than 7 years. (BERNAS) Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any member be appointed or designated in a temporary or acting capacity. (PHIL. CONST., art. IXB, § 1, ¶ 2) Commission on Elections Composition One Chairman and 6 Commissioners Qualifications (NTCIM) 1. Natural-born citizen; 2. At least 35 years old at the time of appointment; 3. College degree holder; 4. Not a candidate in any election Immediately preceding the appointment; and 5. Majority, including the chairman, must be members of the Philippine Bar who have been engaged in the practice of law for at least 10 years (PHIL. CONST., art. IX-C, § 1, ¶ 1). Appointment and Term Appointed by the President with the consent of the commission of Appointment, for a term of 7 years, without reappointment. (PHIL. CONST. art. IX-C, § 1, ¶ 2) If the appointment was ad interim, a subsequent renewal of the appointment does not violate the prohibition on reappointment because no previous appointment was confirmed by the Commission on Appointment. Further, the total term of both appointments must not exceed the 7-year limit. (Matibag v. Benipayo, G.R. No. 149036, April 2, 2002) Commission on Audit Composition 1 Chairman, 2 Commissioners Qualifications 1. Natural born citizen; 2. At least 35 years old at the time of appointment 3. CPAs with at least 10 years auditing experience or members of the Bar with at least 10 years of experience in the practice of law; at no time shall all members belong to the same profession, and 4. Not a candidate in any election immediately preceding appointment (PHIL. CONST. art. IX-D, § 1, ¶ 1) Appointment and Term Appointed by the President with the consent of the Commission of Appointments for a term of 7 years, without reappointment. Page 131 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Appointment to any vacancy shall only be for the unexpired portion of the term of the predecessor. In no case shall any member be appointed or designated in a temporary or acting capacity. (PHIL. CONST. art. IX-D, § 1, ¶ 2) Jurisdiction of each Constitutional Commission Civil Service Commission Scope: All branches, subdivisions, instrumentalities, agencies of the government, including government owned and controlled corporations with original charters. Wi h Original Char er means that the GOCC was created by special law or by Congress If incorporated under the Corporation Code, it does not fall within the Civil Service and is not subject to the CSC jurisdiction If previously government-controlled, but is later privatized, it ceases to fall under CSC Jurisdiction is determined as of the time of filing the complaint. Commission on Elections EXCLUSIVE ORIGINAL jurisdiction over all contests relating to the elections, returns, and qualifications of all elective REGIONAL, PROVINCIAL and CITY officials Election contests in the Sangguniang Kabataan (SK) are not under COMELEC jurisdiction but under the jurisdiction of the DILG. APPELLATE jurisdiction over all contests involving: o ELECTIVE MUNICIPAL officials decided by trial courts of general jurisdiction o ELECTIVE BARANGAY officials decided by trial courts of limited jurisdiction A petition for certiorari questioning an interlocutory order of a trial court in an electoral protest was within the appellate jurisdiction of the COMELEC. The Court recognizes the COMELEC appellate jurisdiction over petitions for certiorari POLITICAL LAW against all acts or omissions of courts in election cases (Bulilis v. Nuez, G.R. No. 195953, Aug. 9, 2011). The COMELEC HAS jurisdiction over intra-party disputes. The ascertainment of the identity of a political party and its legitimate officers is a matter that is well within its authority. The COMELEC has the power to enforce and administer all laws and regulations relative to the conduct of an election. To resolve the issue, the COMELEC need only refer to the Party Constitution. It need not go as far as to resolve the root of the conflict between the parties. It need only resolve issues as may be necessary in the exercise of its enforcement powers. Commission on Audit COA is endowed with enough latitude to determine, prevent and disallow irregular, unnecessary, excessive, extravagant or unconscionable expenditures of government funds. In resolving cases brought before it on appeal, respondent COA is not required to limit its review only to the grounds relied upon by a government agenc auditor with respect to disallowing certain disbursements of public funds. In consonance with its general audit power, respondent COA is not merely legally permitted, but is also duty-bound to make its own assessment of the merits of the disallowed disbursement and not simply restrict itself to reviewing the validity of the ground relied upon by the auditor of the government agency concerned. To hold otherwise would render COA vital constitutional power unduly limited and thereby useless and ineffective (Yap v. Commission on Audit, G.R. No.158562, April 23, 2010). 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. COA has the authority to define the scope of its audit and examination, establish the techniques and methods for such review and promulgate accounting and auditing rules and regulations (Veloso v. Commission on Audit, G.R. No. 193677, Sept. 6, 2011). Page 132 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 The Boy Scout of the Philippines ( BSP ) is a government-owned and controlled corporation under the jurisdiction of COA. The BSP Charter (Commonwealth Act 111), entitled An Act to Create a Public Corporation to be Known as the Boy Scouts of the Philippines, and to Define its Powers and P rpo e created the BSP as a p blic corpora ion (Boy Scouts of the Philippines v. COA, G.R. No. 177131, June 7, 2011) POLITICAL LAW - end of topic - The Manila Economic and Cultural Office ( MECO ) is subject to audit by the COA. The MECO is sui generis. It was established when the Philippines severed diplomatic relations with Taiwan upon recognition of China. None of its members are government officials. It is not a GOCC nor an instrumentality. Its functions are of a kind that would otherwise be performed by the diplomatic and consular offices of the Philippines. Nevertheless, the consular fees collected by the MECO may be audited by the COA. (Funa v. Manila Economic and Cultural Office, G.R. 193462, Feb. 4, 2014) Water districts are within the coverage of the COA. A water district is a GOCC with a special charter since it is created pursuant to a special law. Thus, COA has the authority to investigate whether directors, officials or employees of GOCCs receiving allowances and bonuses are entitled to such benefits under applicable laws. (Feliciano v. Commission on Audit, G.R. 147402, Jan. 14, 2004) F. PROHIBITED OFFICES AND INTERESTS Prohibited Offices and Interests (BEEH) No member of a Constitutional Commission shall, during his tenure: 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 Engage in the Practice of any profession; Engage in the Active management and control of any business which in any way may be affected by the functions of his office; and Hold any other Office or Employment. Page 133 of 568 BILL OF RIGHTS Political Law ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 2. Types of Regulation a. Prior restraint and subsequent punishment b. Content based and content neutral c. Incitement and advocacy d. Specificity of regulation and overbreadth doctrine e. Speech regulation in relation to election f. Speech regulation in relation to media 3. Judicial analysis, presumptions and levels and types of scrutiny 4. Special topics in free expression cases a. Hate speech b. Defamation and libel c. Sedition and speech in relation to rebellion d. Obscenity/pornography e. Commercial speech f. National emergencies g. Speech of public officers 5. Cognate rights a. Freedom of assembly b. Freedom of association c. Freedom of information IX. BILL OF RIGHTS TOPIC OUTLINE UNDER THE SYLLABUS IX. BILL OF RIGHTS i. CONCEPT OF BILL OF RIGHTS 1. Privacy and autonomy 2. Relation to human rights ii. DUE PROCESS OF LAW 1. Concept to right to life, liberty and property 2. Kinds of due process a. Substantive b. Procedural i. Judicial ii. Administrative c. Levels of Scrutiny iii. EQUAL PROTECTION OF LAWS 1. Concept 2. Requisites for valid classification 3. Levels of scrutiny iv. RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES 1. Concept of privacy 2. Concept of a search 3. Requisites of a valid warrant 4. Warrantless searches 5. Warrantless arrests and detention 6. Exclusionary rule 7. Effects of unreasonable searches and seizures 8. Effects of illegal detention v. vi. PRIVACY OF COMMUNICATIONS AND CORRESPONDENCE 1. Concept of communications, correspondence 2. Intrusion, when and how allowed 3. Exclusionary rule FREEDOM OF SPEECH AND EXPRESSION 1. Concept a. Continuum of thought, speech, expression, and speech acts b. Purpose of free speech doctrines c. Balance between unbridled expression and liberty vii. FREEDOM OF RELIGION 1. Basic principles a. Purpose b. Concept of religion 2. Principle of separation of church and state 3. Non-establishment clause 4. Free exercise clause viii. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT 1. Scope and limitations 2. Watch-list and hold departure orders ix. EMINENT DOMAIN 1. Concept 2. Just compensation 3. Abandonment of intended use and right of repurchase 4. Expropriation by local government units x. NON-IMPAIRMENT OF CONTRACTS xi. ADEQUATE LEGAL ASSISTANCE AND FREE ACCESS TO COURTS xii. RIGHT AGAINST SELF-INCRIMINATION 1. Scope and coverage Page 135 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 2. Application 3. Immunity statutes xiii. xiv. A. CONCEPT OF BILL OF RIGHTS RIGHTS OF PERSONS CUSTODIAL INVESTIGATION 1. Availability 2. Requisites 3. Waiver UNDER RIGTS OF THE ACCUSED 1. Criminal due process 2. Bail 3. Presumption of innocence 4. Right to be heard 5. Assistance of counsel 6. Right to be informed of the nature and cause of accusation 7. Right to speedy, impartial, and public trial 8. Right of confrontation 9. Compulsory process 10. Trials in absentia xv. RIGHT TO SPEEDY DISPOSITION OF CASES xvi. RIGHT AGAINST EXCESSIVE FINES AND CRUEL, DEGRADING, AND INHUMAN PUNSIHMENTS xvii. NON-IMPRISONMENT FOR DEBTS xviii. RIGHT AGAINST DOUBLE JEOPARDY 1. Requisites; scope 2. Limitations xix. xx. RIGHT AGAINST SERVITUDE INVOLUNTARY EX POST FACTO LAWS AND BILLS OF ATTAINDER Concept and Purpose The Bill of Rights governs the relationship between the individual and the state. (People v. Marti, G.R. No. 81561, Jan. 18, 1991) The provisions in the Bill of Rights are selfexecuting. (Manila Prince Hotel v. GSIS, G.R. No. 122156 Feb. 3, 1997) The Bill of Rights is designed to preserve the ideals of liberty, equality and security against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of those who have no patience with general principles. (Philippine Blooming Mills Employment Organization v. Philippine Blooming Mills Co., Inc., G.R. No. L-31195, June 5, 1973) The purpose of the Bill of Rights is to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's rights to life, liberty and property, to free speech, or free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections. (Philippine Blooming Mills Employment Organization, citing West Virginia State Board of Education vs. Barnette, 319 U.S. 624, 638) 1. PRIVACY AND AUTONOMY The Bill of Rights governs the relationship between the individual and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder. (People v. Marti, G.R. No. 81561, Jan. 18, 1991) In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked. Put differently, the Bill of Rights is not meant to be invoked against acts of private individuals. The equal protection erects no shield against private conduct, however discriminatory or wrongful. Private actions, no matter how egregious, cannot violate the equal protection Page 136 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 guarantee. (Yrasuegui v. PAL, G.R. No. 168081, Oct. 17, 2008) If the violation is by private individuals, the remedy is found in the Civil Code, or if proper, in the Revised Penal Code. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) 2. RELATION TO HUMAN RIGHTS While the Bill of Rights also protects property rights, the primacy of human rights over property rights is 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. (Philippine Blooming Mills Employment Organization v. Philippine Blooming Mills Co., Inc., G.R. No. L31195, June 5, 1973) Property and property rights can be lost thru prescription; but human rights are imprescriptible. If human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the power of government and ceases to be an efficacious shield against the tyranny of officials, of majorities, of the influential and powerful, and of oligarchs political, economic or otherwise. (Philippine Blooming Mills Employment Organization v. Philippine Blooming Mills Co., Inc., G.R. No. L-31195, June 5, 1973) The superiority of human rights over property rights is underscored by the fact that a mere reasonable or rational relation between the means employed by the law and its object or purpose that the law is neither arbitrary nor discriminatory nor oppressive would suffice to validate a law which restricts or impairs property rights. On the other hand, a constitutional or valid infringement of human rights requires a more stringent criterion, namely existence of a grave and immediate danger of a substantive evil which the State has the right to prevent. (Philippine Blooming Mills Employment Organization v. Philippine Blooming Mills Co., Inc., G.R. No. L-31195, June 5, 1973) POLITICAL LAW B. DUE PROCESS OF LAW 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. (PHIL. CONST., art. III, § 1) Concept and Purpose Due process of law means simply, first, that there shall be a law prescribed in harmony with the general powers of the legislative department of the Government; second, that this law shall be reasonable in its operation; third, that it shall be enforced according to the regular methods of procedure prescribed; and fourth, that it shall be applicable alike to all the citizens of the state or to all of a class. (Rubi v. Provincial Board of Mindoro, G.R. No. L-14078, March 7, 1919) Due process evades a precise definition. The purpose of the guaranty is to prevent arbitrary governmental encroachment against the life, liberty and property of individuals. The due process guaranty serves as a protection against arbitrary regulation or seizure. Even corporations and partnerships are protected by the guaranty insofar as their property is concerned. (White Light Corporation v. City of Manila, G.R. No. 122846, Jan. 20, 2009) Scope The guarantees of the Bill of Rights are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, color, or nationality. All natural persons, and artificial persons, only in so far as their property is concerned, are protected by the Due Process clause. (Smith, Bell & Co. v. Natividad, G.R. No. 15574, Sept. 17, 1919) Relativity The concept of due process is not a static one. What is due process of law depends on circumstances. It varies with the subject-matter and necessities of the situation. (Rubi v. Provincial Board, citing Moyer vs. Peabody [1909], 212 U. S., 82) Page 137 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 1. CONCEPT OF RIGHT TO LIFE, LIBERTY, AND PROPERTY Life The constitutional protection of the right to life is not just a protection of the right to be alive or to the security of one limb against physical harm. The right to life is the right to a good life. The importance of the quality of living now finds stronger emphasis in Art. XIII on social justice, and even the life of the unborn under Art. II. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) While the right to life guarantees essentially the right to be alive - upon which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee of the secure quality of this life. A secure quality of life pertains to a life lived with the assurance that the government he established and consented to, will protect the security of his person and property. (Secretary of Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008) Essentially, the right to security of person is [1] freedom from fear; [2] a guarantee of bodily and psychological integrity or security, and [3] a guarantee of protection of one rights by the government. (Secretary of Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008) Liberty The right to liberty guaranteed by the Constitution includes the right to exist and the right to be free from arbitrary personal restraint or servitude. (Rubi v. Provincial Board of Mindoro, G.R. No. L-14078, March 7, 1919) Liberty includes the right of the citizens to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by an lawful calling; to pursue any avocations, and for that purpose, to enter into all contracts which may be proper, necessary, and essential to his carrying out these purposes to a successful conclusion. (Rubi v. Provincial Board of Mindoro, G.R. No. L14078, March 7, 1919) The chief elements of the guaranty are: 1. The right to contract; 2. The right to choose one's employment; POLITICAL LAW 3. The right to labor; and 4. The right of locomotion. (Rubi v. Provincial Board of Mindoro, G.R. No. L-14078, March 7, 1919) Property Protected property includes all kinds of property found in the Civil Code. It has been deemed to include vested rights such as a perfected mining claim, or a perfected homestead, or a final judgement. It also includes the right to work and the right to earn a living. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) However, a license authorizing a person to enjoy a certain privilege is neither a property nor property right. A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority granting it and the person to whom it is granted; neither is it property or a property right, nor does it create a vested right. All licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protected by the due process clause of the Constitution. (Chavez v. Romulo, G.R. No. 157036, June 9, 2004) 2. KINDS OF DUE PROCESS The due process guaranty has traditionally been interpreted as imposing two related but distinct restrictions on government, "procedural due process" and "substantive due process." (White Light Corporation v. City of Manila, G.R. No. 122846, Jan. 20, 2009) a. Substantive Due Process If due process were confined solely to its procedural aspects, there would arise absurd situation of arbitrary government action, provided the proper formalities are followed. Substantive due process completes the protection envisioned by the due process clause. It inquires whether the government has sufficient justification for depriving a person of life, liberty, or property. (White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009) Substantive due process requires that laws be [1] grounded on reason and [2] be free from Page 138 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW arbitrariness. The government must have sufficient justification for depriving a person of life, liberty, or property. Essentially, substantive due process is satisfied if the deprivation is done in the exercise of the police power of the State. (Provincial Bus Operators Association of the Philippines v. DOLE, G.R. No. 202275, July 17, 2018) victimize others. Therefore, the license requirement to own and operate a firearm is a valid exercise of police power and not a violation of the right to due process. (Acosta v. Ochoa, G.R. Nos. 211559, 211567, 212570 & 215634, Oct. 15, 2019) Requisites Laws which interfere with life, liberty, and property satisfy substantive due process when there is: 1. Lawful Subject The interests of the public generally, as distinguished from those of a particular class, require such interference; and 2. Lawful Means The means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. 1. It must not contravene the constitution or any statute; 2. It must not be unfair or oppressive; 3. It must not be partial or discriminatory; 4. It must not prohibit but may regulate trade; 5. It must not be unreasonable; and 6. It must be general and consistent with public policy. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the court. (US v. Toribio, G.R. No. L-5060, Jan. 26, 1910) License to Own and Operate Firearms With the bearing of arms being a mere privilege, there could not have been a deprivation of right to due process in requiring a license for the possession of firearms. Article III, Section 1 of the Constitution is clear that only life, liberty, or property is protected by the due process clause. It is settled that the license to possess a firearm is neither a property nor a property right. Assuming, for the sake of argument, that the right to possess a firearm were considered a property right, it is doctrine that property rights are always subject to the State's police power. Further, the PNP Guidelines, which suspended the issuance of permits to carry firearms outside of residence, was a valid police power measure. The interest of the general public was satisfied, since the Guidelines were issued in response to the rise in high-profile crimes. As to the means employed to retain peace and order in society, the revocation of all permits to carry firearms outside of residence would make it difficult for criminals to commit gun violence and Requisites of a Valid Ordinance (Police Power of LGUs) (Must NOT CUPPU, Must be GC) Publication Due process, which is a rule of fairness, requires that those who must obey a command must first know the command. Thus, Art. 2 of the Civil Code prescribes a 15-day period of publication of laws before they take effect, unless otherwise provided. The omission of publication of laws would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it. The term "laws" should refer to all laws and not only to those of general application, but including those of local application and private laws. Covered by this rule are presidential decrees and executive orders promulgated by the President. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. However, no publication is required for internal regulations issued by administrative agencies. Publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. (Tañada v. Tuvera, G.R. No. L-63915, Dec. 29, 1986) b. Procedural Due Process Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Procedural due process concerns itself with government action adhering to the established process when it makes an intrusion into the private sphere. (White Light Corporation v. City of Manila, G.R. No. 122846, Jan. 20, 2009) Page 139 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Essence The essence of procedural due process is embodied in the basic requirement of [1] notice and [2] a real opportunity to be heard. (Vivo v. PAGCOR, G.R. No. 187854, Nov. 12, 2013) While it is true that the right to due process safeguards the opportunity to be heard and to submit any evidence one may have in support of his claim or defense, where the opportunity to be heard is accorded, and the party can pre en its ide or defend its interest in due co r e , there is no denial of due process because what the law proscribes is the lack of opportunity to be heard. (Oca v Custodio, GR 199825, July 26, 2017) Publication Every agency shall file with the Office of the National Administrative Register (ONAR) in the University of the Philippines Law Center three (3) certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months from the date shall not thereafter be the basis of any sanction against any party or persons. (Section 3 of Chapter 2, Book VII of the Administrative Code of 1987) These requirements of publication and filing were put in place as safeguards against abuses on the part of lawmakers and as guarantees to the constitutional right to due process and to information on matters of public concern and, therefore, require strict compliance. (Republic v. Pilipinas Shell, G.R. No. 173918, April 8, 2008) However, not all rules and regulations adopted by every government agency are to be filed with the UP Law Center. Only those of general or of permanent character are to be filed. According to the UP Law Cen er guidelines for receiving and publication of rules and regulations, interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the Administrative agency and not the public, need not be filed with the UP Law Center. (The Board of Trustees of the GSIS v. Velasco, G.R. No. 170463, Feb. 2, 2011) Late Petitions Rules of procedure are intended to ensure the orderly administration of justice and the protection POLITICAL LAW of substantive rights in judicial and extrajudicial proceedings. It is a mistake to suppose that substantive law and adjective law are contradictory to each other or, as has often been suggested, that enforcement of procedural rules should never be permitted if it will result in prejudice to the substantive rights of the litigants. This is not exactly true; the concept is much misunderstood. As a matter of fact, the policy of the courts is to give effect to both kinds of law, as complementing each other, in the just and speedy resolution of the dispute between the parties. Observance of both substantive and procedural rights is equally guaranteed by due process, whatever the source of such rights, be it the Constitution itself or only a statute or a rule of court. (Tupas v. CA, G.R. No. 89571, Feb. 6, 1991) A party having forfeited the right to appeal cannot claim that he/she has been denied due process. (Tupas v. CA, G.R. No. 89571, Feb. 6, 1991) In a case of falsification of public documents, the accused claimed that his constitutional rights were violated when the Sandiganbayan denied his motion for new trial and motion to allow him to present additional witnesses. The Court ruled that his right to due process was not violated. The accused had 4 years to present evidence yet he only asked for the opportunity to present additional evidence via a motion for reconsideration after the Sandiganbayan had already admitted all the formal offers of evidence of the accused. Further, he failed to present the witness through the compulsory process of subpoena, during all the time that he testified for his defense for a period of six (6) months. Moreover, his motion to present additional witness was denied due to his failure to comply with Sections 4-5 of Rule 15. In addition, the evidence he seeks to present is not a newly discovered evidence since it was already presented by the other parties. All this points out to the conclusion that he was given ample opportunity to be heard. (Escobar v. People. G.R. No. 205576, Nov. 20, 2017) Motion for Reconsideration Due process is satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the controversy or an opportunity to move for a reconsideration of the action or ruling Page 140 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 complained of. (Elenita S. Binay v. Office of the Ombudsman, 213957-58, Aug. 7, 2019) A city enacted an ordinance classifying certain areas as agricultural lands. A landowner filed an application for exemption and an Order was issued by the Secretary of Agrarian Reform, granting the exemption. Farmers of lando ner landholdings filed an MR of the Order, which was subsequently granted by the judge, thereby revoking the first Order. However, this Order was sent to another city and not to the correct address of the landowner. The Court ruled that the lando ner right to due process was not violated. She was still able to file her MR from the Order, albeit beyond the allowable period to file and was still given due course. While it may be true that she was prevented from filing a timely MR, it would be erroneous to conclude that she had been completely denied her opportunity to be heard. In administrative proceedings, procedural due process means that one is given the opportunity to explain one side and the opportunity to seek a reconsideration of the action or ruling complained of, not only through verbal arguments in court but also through pleadings. When she filed her MR, she was able to completely and exhaustively present her arguments. (Espiritu v. Del Rosario, G.R. No. 204964. Oct. 15, 2014) There is no denial of the right to due process if there was an opportunity for the parties to defend their interests in due course. Petitioner had been able to file a Motion for Reconsideration Ad Cautelam before the trial court, and later elevated its case before the Court of Appeals. There is no denial of due process if a party was given an opportunity to be heard in a Motion for Reconsideration. Petitioner did not take advantage of the opportunities it was given to lead a responsive pleading. It allowed the periods it was given for the filing of pleadings to lapse. (Philippine National Construction Corporation v. Asiavest Merchant Bankers (M) Berhad, GR. No. 172301, Aug. 19, 2015) Administrative Proceeding; Dead Respondent In administrative cases, the essence of procedural due process is one right to given the opportunity to be heard. This opportunity to be heard must be present at every single stage of proceedings. Administrative proceedings require that the POLITICAL LAW respondent be informed of the charges and be given an opportunity to refute them. Even after judgement is rendered, due process requires that the respondent not only be informed of the judgement but also given the opportunity to seek reconsideration of that judgement. The opportunity to be heard can only be exercised by those who have resigned or retired. The reason is obvious: They are still alive. Even if they cease to hold public office, they can still be made aware of the proceedings and actively submit pleadings. However, death forecloses any opportunity to be heard. Dead respondents will never know how the proceedings will continue. They cannot submit responsive pleadings or plead innocence of beg clemency. To continue with the proceedings is a violation of the right to due process. (FloresConcepcion v. Castañeda, A.M. No. RTJ-15-2438 (Resolution), Sept. 15, 2020) Standard for Different Types of Proceedings PROCEEDING STANDARD Judicial (Ju3NO) Proceedings 1. There must be a court or tribunal clothed with judicial power to hear and determine the matter before it; 2. Jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceeding; 3. The defendant must be given an opportunity to be heard; and 4. Judgment must be rendered upon lawful hearing. (El Banco Español – Filipino v. Palanca, G.R. No. L-11390, March 26, 1918) Administrative/ (HESS-PIK) Quasi-Judicial 1. The right to a Hearing, Proceedings which includes the right to pre en one ca e and submit evidence in support thereof; 2. The tribunal must consider the Evidence presented; Page 141 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 3. The decision must have something to Support itself; 4. Evidence supporting the finding or conclusion must be Substantial; 5. 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. (Ang Tibay v. CIR, G.R. No. L46496, Feb. 27, 1940) Academic Disciplinary Proceedings A lack of formal hearing in the administrative level does not violate procedural due process. The due process requirement before administrative bodies are not as strict compared to judicial tribunals in that it suffices that a party is given a reasonable opportunity to be heard. (Saunar v. Ermita, G.R. No. 186502, Dec. 13, 2017) (WAEEC) 1. The students must be informed in Writing of the nature and cause of any accusation against them; 2. That they shall have the right to Answer the charges against them with the assistance of counsel, if desired; 3. They shall be informed of the Evidence against them; 4. They shall have the right to adduce Evidence in their own behalf; and 5. The evidence must be duly Considered by the investigating committee or official designated by the school authorities to hear and decide the case. Deportation Proceedings Disciplinary cases involving students need not necessarily include the right to cross examination. An administrative proceeding conducted to investigate students' participation in a hazing activity need not be clothed with the attributes of a judicial proceeding. Thus, it is not subject to the rigorous requirements of criminal due process, particularly with respect to the specification of the charge involved. (ADMU v. Capulong, G.R. No. 99327, May 27, 1993) (GIHO) 1. There should be a prior determination by the Board of Commissioners of the existence of the Ground as charged against the alien; 2. The alien should be Informed of the specific grounds for deportation; 3. A Hearing should be conducted pursuant to the Rules of Procedure presented by the Commissioner of Immigration; and 4. Order of deportation based on the determination of the Page 142 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 Commissioner Immigration. Extradition Proceedings (Granting of bail) of Although a deportation proceeding does not partake of the nature of a criminal action, however, considering that it is a harsh and extraordinary administrative proceeding affecting the freedom and liberty of a person, the constitutional right of such person to due process should not be denied. (Lao Gi v. CA, G.R. No. 81798, Dec. 29, 1989) If bail can be granted in deportation cases, there is no justification why it should not also be allowed in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue. (Government of Hongkong v. Olalia, G.R. No. 153675, April 19, 2007) While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. The applicable standard of due process, however, should not be the same as that in criminal proceedings. (Government of Hongkong v. Olalia, G.R. No. 153675, April 19, 2007) Bail may be granted to a possible extraditee only upon a clear and convincing showing: 1. That he will not be a flight risk or a danger to the community; and 2. That there exist special, humanitarian and compelling circumstances. (Rodriguez v. Presiding Judge of RTC Manila, G.R. No. 157977, Feb. 27, 2006) The grant of the bail presupposes that the extraditee has already presented evidence to prove his/her right to be on bail, that she is no flight risk, and the trial court had already exercised its sound discretion and had already determined that under the Constitution and laws in force, the extraditee is entitled to provisional release. (Rodriguez v. Presiding Judge of RTC Manila, G.R. No. 157977, Feb. 27, 2006) Thus, the cancellation of an e radi ee bail, without prior notice and hearing, could be considered a violation of his/her right to due process tantamount to grave abuse of discretion. (Rodriguez v. Presiding Judge of RTC Manila, G.R. No. 157977, Feb. 27, 2006) Instances when hearing is not necessary: (a) When administrative agencies are exercising their quasi-legislative functions. (b) When administrative agencies are exercising their quasi-judicial functions if temporary pending hearing. (c) Abatement of nuisance per se. (d) Granting by courts of provisional remedies. (e) Cases of preventive suspension. (f) Removal of temporary employees in the government. (g) Issuance of warrants of distraint and/or levy by the BIR Commissioner. (h) Cancellation of the passport of a person charged with a crime. Page 143 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 (i) Suspension of a bank operations by the Monetary Board upon a prima facie finding of liquidity problems in such bank. Due Process Standards in Administrative Proceedings Due process in administrative proceedings does not necessarily require a trial type of hearing. Neither does it require an exchange of pleadings between or among the parties. Due process is satisfied if the party who is properly notified of allegations against him or her is given an opportunity to defend himself or herself against those allegations, and such defense was considered by the tribunal in arriving at its own independent conclusions. (Gutierrez v COA, GR. No. 200628, Jan. 13, 2015) Due Process Standards in Student Disciplinary Cases Due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice. The proceedings may be summary. Cross-examination is not an essential part of the investigation or hearing. The required proof in a student disciplinary action, which is an administrative case, is neither proof beyond reasonable doubt nor preponderance of evidence but only substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. What is crucial is that official action must meet minimum standards of fairness to the individual, which generally encompass the right of adequate notice and a meaningful opportunity to be heard. A cadet facing dismissal from the military academy for misconduct has constitutionally protected private interests (life, liberty, or property); hence, disciplinary proceedings conducted within the bounds of procedural due process is a must. For that reason, the PMA is not immune from the strictures of due process. Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, the minimal requirements of the due process clause must be satisfied. The statement that "a cadet can be compelled to surrender some civil rights and liberties in order for POLITICAL LAW the Code and System to be implemented" simply pertains to what cadets have to sacrifice in order to prove that they are men or women of integrity and honor, such as the right to entertain vices and the right to freely choose what they want to say or do. In the context of disciplinary investigation, it does not contemplate a surrender of the right to due process but, at most, refers to the cadets' rights to privacy and to remain silent. (Cudia v. Superintendent of the PMA, G.R. No. 211362, Feb. 24, 2015) Publicity and Coverage The right of an accused to a fair trial is not incompatible to a free press. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. (People v. Claudio Teehankee, Jr., G.R. Nos., 111206-08, Oct. 6, 1995). The peculiarity of the subject criminal cases is that the proceedings already necessarily entail the presence of hundreds of families. It cannot be gainsaid that the families of the 57 victims and of the 197 accused have as much interest, beyond mere curiosity, to attend or monitor the proceedings as those of the impleaded parties or trial participants. It bears noting at this juncture that the prosecution and the defense have listed more than 200 witnesses each. The impossibility of holding such judicial proceedings in a courtroom that will accommodate all the interested parties, whether private complainants or accused, is unfortunate enough. What more if the right itself commands that a reasonable number of the general public be allowed to witness the proceeding as it takes place inside the courtroom. Technology tends to provide the only solution to break the inherent limitations of the courtroom, to satisfy the imperative of a transparent, open and public trial. Thus, the Court partially granted pro hac vice pe i ioner prayer for a live broadcast of the trial court proceedings, subject to strict guidelines. (In Re: Petition for Radio and T.V. Coverage of The Multiple Murder Case Against Zaldy Ampatuan et al., A.M. No. 10-11-5-SC, June 14, 2011) Page 144 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 CONSTITUTIONAL AND STATUTORY DUE PROCESS What is often said about statutory due process is a procedure created by law, which upholds the constitutional right of a person to due process. Dismissal of Employees To be sure, the Due Process Clause in Article III, Sec. 1 of the Constitution embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our entire history. Due process is that which comports with the deepest notions of what is fair and right and just. It is a constitutional restraint on the legislative as well as on the executive and judicial powers of the government provided by the Bill of Rights. Due process under the Labor Code, like constitutional due process, has two aspects: substantive, (i.e., the valid and authorized causes of employment termination under the Labor Code) and procedural, (i.e., the manner of dismissal). Procedural due process requirements for dismissal are found in the Implementing Rules of P.D. 442, as amended, otherwise known as the Labor Code of the Philippines in Book VI, Rule I, Sec. 2, as amended by Department Order Nos. 9 and 10. Breaches of these due process requirements violate the Labor Code. Therefore, statutory due process should be differentiated from failure to comply with constitutional due process. Constitutional due process protects the individual from the government and assures him of his rights in criminal, civil or administrative proceedings; while statutory due process found in the Labor Code and Implementing Rules protects employees from being unjustly terminated without just cause after notice and hearing. Where the dismissal is for a just cause, the lack of statutory due process should not nullify the dismissal, or render it illegal, or ineffectual. However, the employer should indemnify the employee for the violation of his statutory rights. (Agabon v. NLRC, G.R. No. 158693, Nov. 17, 2004) POLITICAL LAW Although the closure was done in good faith and for valid reasons, we find that ITC did not comply with the notice requirement. While an employer is under no obligation to conduct hearings before effecting termination of employment due to authorized cause, however, the law requires that it must notify the DOLE and its employees at least one month before the intended date of closure. (Timber Co. v Ababon, G.R. No. 164518, Jan. 25, 2006) Preliminary Investigation The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the State from useless and expensive trials. The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. However, in order to satisfy the due process clause, it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More importantly, it is a part of the guarantees of freedom and fair play, which are birthrights of all who live in our country. (Salonga v. Panon, G.R. No. L-59524, Feb. 18, 1985) C. LEVELS OF SCRUTINY 1. STRICT SCRUTINY TEST Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest. In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms. Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection. The United States Supreme Court has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage, judicial access and interstate travel. Page 145 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 (White Light Corporation v. City of Manila, G.R. No. 122846, Jan. 20, 2009) 2. HEIGHTENED OR INTERMEDIATE SCRUTINY TEST Under intermediate review, governmental interest is extensively examined and the availability of less restrictive measures is considered. (White Light Corporation v. City of Manila, G.R. No. 122846, Jan. 20, 2009) 3. RATIONAL BASIS TEST Using the rational basis examination, laws or ordinances are upheld if they rationally further a legitimate governmental interest. (White Light Corporation v. City of Manila, G.R. No. 122846, Jan. 20, 2009) VOID FOR VAGUENESS DOCTRINE Concept A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. It must be stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or mathematical exactitude. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes. (Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001) In determining whether the words used in a statute are vague, words must not only be taken in accordance with their plain meaning alone, but also in relation to other parts of the statute. It is a rule that every part of the statute must be interpreted with reference to the context, that is, every part of it must be construed together with the other parts and kept subservient to the general intent of the whole enactment. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014) Purpose A vague statute is repugnant to the Constitution in two (2) respects: 1. It violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and 2. It leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. (Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001) OVERBREADTH DOCTRINE Concept Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms. Application to Penal Statutes General Rule: The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapplicable for testing the validity of penal statutes. Rationale: All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect or the fear of possible prosecution. But to prevent the State from legislating criminal laws because they instill such kind of fear is to render the state powerless in addressing and penalizing socially harmful conduct. Exceptions: 1. When a penal statute is challenged as applied 2. When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the overbreadth and vagueness doctrine is acceptable. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) Page 146 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 AS APPLIED V. FACIAL CHALLENGE Unconstitutional Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities. Statute or act General Rule: In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any constitutional ground absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third persons not before the court. This rule is also known as the prohibition against thirdparty standing. Violates due process; Invades creates unbridled freedoms discretion Exception: A petitioner may for instance mount a "facial" challenge to the constitutionality of a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on grounds of overbreadth or vagueness of the statute. Rationale: To counter the "chilling effect" on protected speech that comes from statutes violating free speech. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) VOID FOR VAGUENESS V. OVERBREADTH 1. Vagueness and overbreadth are distinct from each other; a vague law must lack clarity and precision, while an overbroad law need not. 2. It is submitted that while the defect of overbreadth as an analytical tool is applicable only to cases involving speech, this is not so about vagueness. VOID FOR VAGUENESS OVERBREADTH Gov't regulation of free speech Lacks comprehensible Means sweep standards unnecessarily broadly People guess at its Not meaning; differ in unclear application necessarily protected (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) C. EQUAL PROTECTION OF LAWS 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. (PHIL. CONST., art. III, § 1) 1. CONCEPT AND PURPOSE The equal protection of the law clause merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is limited either in the object to which it is directed or by territory within which is to operate. It does not demand absolute equality among residents. (Ichong v. Hernandez, G.R. No. L-7995, May 31, 1957) Scope The guarantees of the Bill of Rights are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, color, or nationality. All natural persons, and artificial persons, only in so far as their property is concerned, are protected by the Equal Protection clause. (Smith, Bell & Co. v. Natividad, G.R. No. 15574, Sept. 17, 1919) Page 147 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Not a Guaranty of Equality in the Application of Laws The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the circumstances surrounding them. (Victoriano v. Elizalde Rope Workers’ Union, G.R. No. L-2524, Sept. 12, 1974) Guarantees Equality, Not Identity of Rights The equal protection of the law guarantees equality, not identity of rights. The Constitution does not require that things which are different in fact be treated in law as though they were the same. The equal protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to which it is directed or by the territory within which it is to operate. (Victoriano v. Elizalde Rope Workers’ Union, G.R. No. L-2524, Sept. 12, 1974) 2. REQUISITES FOR VALID CLASSIFICATION The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. All that is required of a valid classification is that it be reasonable, which means that the classification should be: (GEES) 1. Be Germane to the purposes of the law; 2. Not limited to Existing conditions only; 3. Applied Equally to all members of the same class; and 4. Rest on Substantial distinctions which make for real differences. (Victoriano v. Elizalde Rope Worker Union, G.R. No. L-2524, Sept. 12, 1974) POLITICAL LAW APPLICATION General Banking Law of 2002 The General Banking Law provides a shorter period for redemption of three (3) months or earlier to juridical entities compared to the one (1) year redemption period given to natural persons. However, this does not violate the equal protection clause. Equal protection permits of reasonable classification. The difference in the treatment of juridical persons and natural persons was based on the nature of the properties foreclosed whether these are used as residence, for which the more liberal one-year redemption period is retained, or used for industrial or commercial purposes, in which case a shorter term is deemed necessary to reduce the period of uncertainty in the ownership of property and enable mortgagee banks to dispose sooner of these acquired assets. (Zomer Development Co. v. Special 20th Division of the CA, G.R. No. 194461, Jan. 07, 2020) Section 6 of the Cybercrime Prevention Act Section 6 of the Cybercrime Prevention Act imposing a penalty one degree higher than that provided in the RPC for acts committed by, through and with the use of information and communications technologies was assailed for violating equal protection. The Court upheld the section and explained that Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. There exists a substantial distinction between crimes committed through the use of information and communications technology and similar crimes committed using other means. In using the technology in question, the offender often evades identification and is able to reach far more victims or cause greater harm. The distinction, therefore, creates a basis for higher penalties for cybercrimes. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) Disbursement Acceleration Program The DAP was challenged as nfair as it [was] elec i e because the funds released under the DAP was not made available to all the legislators, with some of them refusing to avail themselves of the DAP funds, and others being unaware of the availability of such funds. The Court held that the Page 148 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 challenge based on the contravention of the Equal Protection Clause, which focuses on the release of funds under the DAP to legislators, lacks factual and legal basis. The denial of equal protection of any law should be an issue to be raised only by parties who supposedly suffer it, and, in these cases, such parties would be the few legislators claimed to have been discriminated against in the releases of funds under the DAP. The requirement was not met here. (Araullo v. Aquino III, G.R. No. 209287, July 1, 2014) Classification Freeze Provision The classification freeze provision does not violate the equal protection and uniformity of taxation. Even though it failed to promote fair competition among the players in the industry, the classification freeze provision was not precipitated by a veiled attempt or hostile attitude on the part of Congress to unduly favor older brands. Since the provision was done in good faith and is germane to the purpose of the law, the Court cannot declare it unconstitutional nor question its wisdom. (British American Tobacco v. Camacho, G.R. No. 163583, Aug. 20 2009) Cityhood Laws The Cityhood laws were constitutional. Based on the deliberations by Congress on R.A. 9009, Congress intended that those with pending cityhood bills during the 11th Congress would not be covered by the new and higher income requirement of P100 million imposed by RA 9009. The exemption clauses found in the individual Cityhood Laws are the express articulation of that intent to exempt respondent municipalities from the coverage of RA 9009. Such Cityhood Laws are, therefore, also amendments to the LGC itself. In the enactment of the Cityhood Laws, Congress merely took the 16 municipalities covered thereby from the disadvantaged position brought about by the abrupt increase in the income requirement (from 20 million to 100 million) of RA 9009, acknowledging the pri ilege that they have already given to those newly-converted component cities, which prior to the enactment of RA 9009, were undeniably in the same footing or cla as the respondent municipalities. But in effect, the Cityhood Laws granted to 33 municipalities amended RA 9009 through the exemption clauses found therein. (League of Cities of the Phil. et al. v. POLITICAL LAW COMELEC, et al. G.R. Nos. 176951, 177499, 178056, April 12, 2011) VAWC RA 9262 (An Act Defining Violence Against Women and Their Children - VAWC) is not violative of the equal protection clause. There is a valid classification. The unequal power relationship that women are more likely to be victims of violence and the widespread gender bias and prejudice against women make for real differences justifying the classification. The distinction is germane to the purpose of the law to address violence committed against women. The law applies to women and children who suffer violence and abuse. (Garcia v. Hon. Drilon, G.R. No. 179267, June 25, 2013) RH Law The RH Law, in providing that the poor are to be given priority in the government's reproductive health care program, does not violate the equal protection clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution which recognizes the distinct necessity to address the needs of the underprivileged by providing that they be given priority in addressing the health development of the people. It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who are suffering from fertility issues and desire to have children. (Imbong v. Ochoa, G.R. 204819, April 8, 2014) Discounts to PWDs The Supreme Court upheld the constitutionality of R.A. No. 9442 or the Magna Carta for Persons with Disability granting the PWDs a 20% discount on the purchase of medicine, and a tax deduction scheme was adopted wherein covered establishments may deduct the discount granted from gross income based on the net cost of goods sold or services rendered. The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable foundation or rational basis and not arbitrary. With respect to R.A. No. 9442, its expressed public policy is the rehabilitation, selfdevelopment and self-reliance of PWDs. Persons with disability form a class separate and distinct from the other citizens of the country. Indubitably, such substantial distinction is germane and intimately related to the purpose of the law. Hence, the classification and treatment accorded to the Page 149 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 PWDs fully satisfy the demands of equal protection. Thus, Congress may pass a law providing for a different treatment to persons with disability apart from the other citizens of the country. (Drugstores Association of the Philippines, Inc. and Northern Luzon Drug Corporation v. National Council on Disability Affairs, et al., G.R. No. 194561, Sept. 4, 2016) Elective and Appointive Officials There is a substantial distinction between elective and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. (Eleazar P. Quinto and Gerino A. Tolentino, Jr., vs. COMELEC, G.R. No. 189698, Feb. 22, 2010) Tax Ordinance Specific to an Entity When the taxing ordinance was enacted, Ormoc Sugar Co., Inc. was the only sugar central in the City. A reasonable classification should be in terms applicable to future conditions as well. The taxing ordinance should not be singular and exclusive as to exclude any subsequently established sugar central from the coverage of the tax. A subsequently established sugar central cannot be subject to tax because the ordinance expressly points to Ormoc Sugar Company, Inc. as the entity to be levied upon. (Ormoc Sugar Company v. Ormoc City, G.R. No. L-23794, Feb. 17, 1968) 5 Years of Experience as a Lower Court Judge as Requirement for RTC Judge Consideration of experience by JBC as one factor in choosing recommended appointees does not constitute a violation of the equal protection clause. The JBC does not discriminate when it employs number of years of service to screen and differentiate applicants from the competition. The number of years of service provides a relevant basis to determine proven competence which may be measured by experience, among other factors. The difference in treatment between lower court judges who have served at least five years and those who have served less than five years is upheld in order to meet the requirements of proven competence, experience, integrity, probity, and independence. The foregoing shows that substantial distinctions do exist between lower court judges with five year experience and those with less than five years of experience and the classification enshrined in the assailed policy is reasonable and relevant to its legitimate purpose. The Court, thus, rules that the questioned policy does not infringe on the equal protection clause as it is based on reasonable classification intended to gauge the proven competence of the applicants. Therefore, the said policy is valid and constitutional. (Villanueva v. JBC, G.R. No. 211833, April 07, 2015) Doctrine of Relative Unconstitutionality A statute valid at one time may become void at another time because of altered circumstances. Thus, if a statute in its practical operation becomes arbitrary or confiscatory, its validity, even though affirmed by a former adjudication, is open to inquiry and investigation in the light of changed conditions. This doctrine was invoked in a case to invalidate RA 7653, which started as a valid measure of legislative power applicable to Central Bank employees, but, with the enactment of subsequent laws exempting all rank and file employees of all GFIs from the Salary Standardization Law, was rendered void on account of a violation of the equal protection clause. (Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208, Dec. 15, 2004) Suspect Classification A suspect classification is one where distinctions are made based on the most invidious bases for classification that violate the most basic human rights, i.e., on the basis of race, national origin, alien status, religious affiliation and, to a certain extent, sex and sexual orientation. (Serrano v. Gallant, G.R. No. 167614, Mar. 24, 2009) A "suspect class" is defined as "a class saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the Page 150 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 majoritarian political process. (Zomer Development Co. v. Special 20th Division of the CA, G.R. No. 194461, Jan. 07, 2020) Juridical entities cannot be considered a "suspect class." Juridical entities enjoy certain advantages that natural persons do not, such as limited liability. The properties of juridical entities are also often used for commercial purposes. In contrast, the properties of natural persons are more often used for residential purposes. They are also directly responsible for the liabilities they incur and, often, are not equipped with the same resources that juridical entities may have. Juridical entities, thus, cannot be considered a "suspect class." (Zomer Development Co. v. Special 20th Division of the CA, G.R. No. 194461, Jan. 07, 2020) 3. LEVELS OF SCRUTINY Philippine jurisprudence has developed three (3) tests of judicial scrutiny to determine the reasonableness of classifications. a. Strict Scrutiny Test The most demanding of all the three tests. Under the strict scrutiny test, the legislative classification is presumed to be unconstitutional and the government has the burden of proving that the classification is necessary to achieve a compelling State interest, and is the least restrictive means to protect such interest or the means chosen is narrowly tailored to accomplish the interest. (Serrano v. Gallant, G.R. NO. 167614, Mar. 24, 2009) The strict scrutiny test applies when a classification either (i) interferes with the exercise of fundamental rights, including the basic liberties guaranteed under the Constitution, or (ii) burdens suspect classes. (Spark v. Quezon City, G.R. No. 225442, Aug. 08, 2017) b. Intermediate Scrutiny Test The intermediate scrutiny test requires the government to show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving the interest. (Serrano v. Gallant, G.R. No. 167614, Mar. 24, 2009) POLITICAL LAW The intermediate scrutiny test applies when a classification does not involve suspect classes or fundamental rights, but requires heightened scrutiny, such as in classifications based on gender and legitimacy. (Spark v. Quezon City, G.R. No. 225442, Aug. 08, 2017) c. Rational Basis Test Under the rational basis test, a legislative classification, to survive an equal protection challenge, must be shown to rationally further a legitimate state interest. (British American Tobacco v. Camacho, G.R. No. 163583, Aug. 20 2009) The rational basis test applies to all other subjects not covered by the first two tests. (Spark v. Quezon City, G.R. No. 225442, Aug. 08, 2017) D. RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (PHIL. CONST., art. III, § 2) Does Not Prohibit Reasonable Search and Seizure The Constitutional guarantee does not prohibit all forms of searches and seizures. It is only directed against those that are unreasonable. Conversely, reasonable searches and seizures fall outside the scope of the prohibition and are not forbidden. General Rule: Searches and seizures are normally unreasonable. Exception: Unless authorized by a validly issued search warrant or warrant of arrest. (Sapi v. People, G.R. No. 200370, June 7, 2017) Page 151 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 To Whom Available: Natural & Juridical Persons; Aliens The constitutional right against unreasonable searches and seizures is a personal right invocable only by those whose rights have been infringed, or threatened to be infringed. (Valmonte v. Gen. De Villa, G.R. No. 83988, September 29, 1989) This right equally applies to both citizens and foreigners in this country. (Chee Gan v. Deportation Board, G.R. No. L-10280, Sept. 30, 1963) A corporation is entitled to immunity, under the 4th Amendment, against unreasonable searches and seizures. A corporation is, after all, but an association of individuals under an assumed name and with a distinct legal entity. In organizing itself as a collective body it waives no constitutional immunities appropriate to such body. Its property cannot be taken without compensation. It can only be proceeded against by due process of law. (Bache & Co., v. Ruiz, G.R. No. L-32409, Feb. 27, 1971) To Whom Directed: The State The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed. the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government. (People v. Marti, G.R. No. 81561, Jan. 18, 1991) Purely a Judicial Question There is no hard and fast rule in determining when a search and seizure is reasonable. In any given situation, what constitutes a reasonable search is purely a judicial question, the resolution of which depends upon the unique and distinct factual circumstances. This may involve an inquiry into the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles POLITICAL LAW procured. (Sapi v. People, G.R. No. 200370, June 7, 2017) No Presumption of Regularity A presumption of regularity in the performance of official duty is made in the context of an existing rule of law or statute authorizing the performance of an act or duty or prescribing a procedure in the performance thereof. The presumption applies when nothing in the record suggests that the law enforcers deviated from the standard conduct of official duty required by law; where the official act is irregular on its face, the presumption cannot arise. (Carreon v. People, G.R. No. 214490, Jan. 13, 2016) No presumption of regularity may be invoked in aid of the process when the officer undertakes to justify an encroachment of rights secured by the Constitution. (Nala v. Barroso, G.R. No. 153087, Aug. 7, 2003) There is no presumption of regularity. Normally, searches and seizures are nrea onable unless there is a valid warrant issued. A liberal construction in search and seizure cases is given in favor of the individual. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) 1. CONCEPT OF PRIVACY The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of the right protected by the guarantee against unreasonable searches and seizures. The right to privacy exists independently of its identification with liberty; it is in itself fully deserving of constitutional protection. Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a "constitutional right" and "the right most valued by civilized men," but also from our adherence to the Universal Declaration of Human Rights which Page 152 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 mandates that, "no one shall be subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of the law against such interference or attacks." Two constitutional guarantees create these zones of privacy: 1. The right against unreasonable searches and seizures, which is the basis of the right to be let alone, and 2. The right to privacy of communication and correspondence. In assessing the challenge that the State has impermissibly intruded into these zones of privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) 2. CONCEPT OF A SEARCH Search Warrant A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. (ROC, Rule 126, § 1) Validity of a Search Warrant A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void. (ROC, Rule 126, § 10) When Any Court May Issue Search Warrant In certain cases when no criminal action has yet been filed, any court may issue a search warrant even though it has no jurisdiction over the offense allegedly committed, provided that all the requirements for the issuance of such warrant are present. (People v. Hon. Castillo, Sr., G.R. No. 204419, Nov. 7, 2016) 3. REQUISITES OF A VALID SEARCH WARRANT The requisites for the issuance of a search warrant are: (POJEWS) POLITICAL LAW 1. Probable cause is present (in connection with one specific offense); 2. Such probable cause must be determined personally by the judge; 3. The judge must examine, in writing and under oath or affirmation, the complainant and the witnesses he or she may produce; 4. The applicant and the witnesses testify on the facts personally known to them; and 5. The warrant specifically describes the place to be searched and the things to be seized. (People v. Mamaril, G.R. No. 171980, Oct. 6, 2010) A search warrant shall not issue except upon probable cause in connection with one specific offense 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 things to be seized which may be anywhere in the Philippines. (ROC, Rule 126, § 4) A search warrant must conform strictly to the constitutional requirements for its issuance; otherwise, it is void. (Diaz v. People, G.R. No. 188794, Sept. 2, 2015) a. Probable Cause Definition Probable cause for a search warrant is defined as such facts and circumstances which would lead a reasonably discrete 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 sought to be searched. (Laud v. People, G.R. No. 199032, Nov. 19, 2014) Concept A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands more than bare suspicion; it requires less than evidence which would justify conviction. The existence depends to a large degree upon the finding or opinion of the judge conducting the examination. However, the findings of the judge should not disregard the facts before him nor run counter to the clear dictates of reason. (Laud v. People, G.R. No. 199032, Nov. 19, 2014) Page 153 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Probability, Not Absolute or Moral Certainty Probable cause is concerned with probability, not absolute or even moral certainty. What is required is not proof beyond reasonable doubt but merely probable cause. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) b. Personal Determination by the Judge Trial Court Discretion There is no exact test for the determination of probable cause in the issuance of search warrants. It is a matter wholly dependent on the finding of trial judges in the process of exercising their judicial function. They determine probable cause based on "evidence showing that, more likely than not, a crime has been committed and that it was committed" by the offender. (Worldwide Web Corporation v. People, G.R. No. 161106, Jan. 13, 2014) Probing and Exhaustive Examination In determining the existence of probable cause for the issuance of a search warrant, the examining magistrate must make probing and exhaustive, not merely routine or pro forma examination of the applicant and the witnesses. (Nala v. Barroso, G.R. No. 153087, Aug. 7, 2003) Facts and Circumstances Must Be Examined in their Totality Ultimately, in determining the existence of probable cause, the facts and circumstances must be personally examined by the judge in their totality, together with a judicious recognition of the variable complications and sensibilities attending a criminal case. (Laud v. People, G.R. No. 199032, Nov. 19, 2014) Delay in Application Does Not Negate Probable Cause The supposed delay in the search arran application does not dilute the probable cause finding made herein. The delay may be accounted for by a i ne fear of reprisal and natural reluctance to get involved in a criminal case. (Laud v. People, G.R. No. 199032, Nov. 19, 2014) POLITICAL LAW Trial Judge Determination Accorded Great Deference by the Reviewing Court Generally, a j dge determination of probable cause for the issuance of a search warrant is accorded great deference by a reviewing court, so long as there was substantial basis for that determination. Substantial basis means that the questions of the examining judge brought out such facts and circumstances as would lead a reasonably discreet and prudent man to believe that an offense has been committed, and the objects in connection with the offense sought to be seized are in the place sought to be searched. (Diaz v. People, G.R. No. 188794, Sept. 2, 2015) If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. (ROC, Rule 126, § 6) c. Personal Examination of the Complainant and the Witnesses Purpose The intent was to ensure that a warrant is issued not merely on the basis of the affidavits of the complainant and his witnesses, but only after examination by the judge of the complainant and his witnesses. (Diaz v. People, G.R. No. 188794, Sept. 2, 2015) Personal Examination v. Personal Determination What the Constitution requires is for the judge to conduct an "examination under oath or affirmation of the complainant and the witnesses he may produce," after which he determines the existence of probable cause for the issuance of the warrant. (Diaz v. People, G.R. No. 188794, Sept. 2, 2015) Personal examination by the judge of the complainant and his witnesses is necessary to enable him to determine the existence or nonexistence of a probable cause. The determination of whether or not a probable cause exists calls for the exercise of judgment after a judicial appraisal of facts and should not be allowed to be delegated in the absence of any rule to the contrary. (Bache Page 154 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 and Co. v. Ruiz, G.R. No. L-32409. February 27, 1971) Affidavits are Insufficient Affidavits of the complainant and his witnesses are insufficient to establish the factual basis for probable cause. Personal examination by the judge of the applicant and his witnesses is indispensable, and the examination should be probing and exhaustive, not merely routinary or a rehash of the affidavits. (Diaz v. People, G.R. No. 188794, Sept. 2, 2015) The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. (ROC, Rule 126, § 5) Compliance is Shown by the Depositions and the Transcript Ideally, compliance with the examination requirement is shown by the depositions and the transcript. In their absence, however, a warrant may still be upheld if there is evidence in the records that the requisite examination was made and probable cause was based thereon. There must be, in the records, particular facts and circumstances that were considered by the judge as sufficient to make an independent evaluation of the existence of probable cause to justify the issuance of the search warrant. (Diaz v. People, G.R. No. 188794, Sept. 2, 2015) POLITICAL LAW d. Facts Personally Known to the Applicant and the Witnesses Purpose The oath required must refer to the truth of the facts within the personal knowledge of the applicant or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause. (Burgos v. Chief of Staff, G.R. No. L-6426, Dec. 26, 1984) Testimony Must Not be Based on Mere Hearsay The testimony must be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. (Nala v. Barroso, G.R. No. 153087, Aug. 7, 2003) Testimony Must Not be Based on Personal Belief The applicant and the witness must testify on their personal knowledge, not personal belief. (Nala v. Barroso, G.R. No. 153087, Aug. 7, 2003) e. Particularity of Description Purpose The evident purpose and intent of the requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant to leave the officers of the law with no discretion regarding what articles they should seize, to the end that unreasonable searches and seizures may not be made and that abuses may not be committed. (People v. Go, G.R. No. 144639, Sept. 12, 2003) Test of Sufficiency A description of a place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it from other places in the community. Any designation or description known to the locality that points out the place to the exclusion of all others, and on inquiry leads the officers unerringly to it, satisfies the constitutional requirement. (Laud v. People, G.R. No. 199032, Nov. 19, 2014) Page 155 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Particular Description Not Required if Goods by their Nature are Described Generally The search warrant must contain a particular description of the place to be searched and the person or thing to be seized. These provisions are mandatory and must be strictly complied with; but where, by the nature of the goods to be seized, their description must be rather generally, it is not required that a technical description be given, as this would mean that no warrant could issue. (Alvarez v. CFI, G.R. No. L-45358, Jan. 29, 1937) Technical Precision of Description Not Required Technical precision of description is not required. It is only necessary that there be reasonable particularity and certainty as to the identity of the property to be searched for and seized, so that the warrant shall not be a mere roving commission. Indeed, the law does not require that the things to be seized must be described in precise and minute detail as to leave no room for doubt on the part of the searching authorities. If this were the rule, it would be virtually impossible for the applicants to obtain a warrant as they would not know exactly what kind of things to look for. Any description of the place or thing to be searched that will enable the officer making the search with reasonable certainty to locate such place or thing is sufficient. (Worldwide Web Corporation v. People, G.R. No. 161106, Jan. 13, 2014) Required Wherever and Whenever it is Feasible The particularity of the description of the place to be searched and the things to be seized is required "wherever and whenever it is feasible." A search warrant need not describe the items to be seized in precise and minute detail. The warrant is valid when it enables the police officers to readily identify the properties to be seized and leaves them with no discretion regarding the articles to be seized. (Worldwide Web Corporation v. People, G.R. No. 161106, Jan. 13, 2014) Search Warrant for an Unnamed Party; John Doe Search Warrant A warrant for the apprehension of an unnamed party is void, except in those cases where it contains a descriptio personae such as will enable the officer to identify the accused. The description must be sufficient to indicate clearly the proper POLITICAL LAW person upon whom the warrant is to be served. As the search warrant stated that John Doe had gambling apparatus in his possession in the building occupied by him at No. 124 Calle Arzobispo, City of Manila, and as this John Doe was Jose Ma. Veloso, the manager of the club, the police could identify John Doe as Jose Ma. Veloso without difficulty. (People v. Veloso, G.R. No. L23051, Oct. 20, 1925) John Doe Search Warrants Exception, Not the Rule John Doe search warrants should be the exception and not the rule. The police should particularly describe the place to be searched and the person or things to be seized, wherever and whenever it is feasible. The police should not be hindered in the performance of their duties, which are difficult enough of performance under the best of conditions, by superficial adherence to technicality or farfetched judicial interference. (People v. Veloso, G.R. No. L-23051, Oct. 20, 1925) Mistake in the Name of the Person Does Not Invalidate the Warrant A mistake in the name of the person to be searched does not invalidate the warrant, especially when the authorities had personal knowledge of the drugrelated activities of the accused. In fact, a "John Doe" warrant satisfies the requirements so long as it contains a descriptio personae such as will enable the officer to identify the accused. A mistake in the identification of the owner of the place does not invalidate the warrant provided the place to be searched is properly described. (People v. Tiu Won Chua, G.R. No. 149878, July 1, 2003) General Warrants are Void A general warrant is defined as a search or arrest warrant that is not particular as to the person to be arrested or the property to be seized. It is one that allows the seizure of one thing under a warrant describing another and gives the officer executing the warrant the discretion over which items to take. (Worldwide Web Corporation v. People, G.R. No. 161106, Jan. 13, 2014) General warrants do not meet the requirement in Art. III, Sec. 1, of the Constitution, and of Sec. 3, Rule 126 of the Revised Rules of Court, that the warrant should particularly describe the things to Page 156 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 be seized. (Uy v. BIR, G.R. No. 129651, Oct. 20, 2000) Laboratories v. Isip, G.R. No. 163858, June 28, 2005) General Rule: A general warrant is null and void. (Nolasco v. Pa o, G.R. No. L- 69803, Oct. 8, 1985). CONDUCT OF A SEARCH Exception: The search warrant is severable, and those items not particularly described may be cut off without destroying the whole warrant. (Uy v. BIR, G.R. No. 129651, Oct. 20, 2000) WHAT MAY BE SEARCHED Personal Property to be Seized A search warrant may be issued for the search and seizure of personal property: 1. Subject of the offense; 2. Stolen or embezzled and other proceeds, or fruits of the offense; or 3. Used or intended to be used as the means of committing an offense. (ROC, Rule 126, § 3) Ownership Not Required, But Control or Possession The above rule does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It may or may not be owned by him. In fact, under subsection [2] of the above-quoted Section 2, one of the properties that may be seized is stolen property. Necessarily, stolen property must be owned by one other than the person in whose possession it may be at the time of the search and seizure. Ownership, therefore, is of no consequence, and it is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized. (Burgos v. Chief of Staff, G.R. No. L-6426, Dec. 26, 1984) Only Those Things Particularly Described in the Search Warrant The officers of the law are to seize only those things particularly described in the search warrant. A search warrant is not a sweeping authority empowering a raiding party to undertake a fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to a crime. The search is limited in scope so as not to be general or explanatory. Nothing is left to the discretion of the officer executing the warrant. (United Place to be Searched What is material in determining the validity of a search is the place stated in the warrant itself, not what the applicants had in their thoughts, or had represented in the proofs they submitted to the court issuing the warrant. (People v. CA, G.R. No. 126379, June 26, 1998) Time of Making Search The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. (ROC, Rule 126, § 9) Search of House, Room, or Premises to Be Made in Presence of Two Witnesses No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. (ROC, Rule 126, § 3) This requirement is mandatory to ensure regularity in the execution of the search warrant. The Rules of Court clearly and explicitly establishes a hierarchy among the witnesses in whose presence the search of the premises must be conducted. Thus, Section 8, Rule 126 provides that the search should be witnessed by o witnesses of sufficient age and discretion residing in the same locali only in the absence of either the lawful occupant of the premises or any member of his family (People v. Go, G.R. No. 144639, Sept. 12, 2003) K c and A c Principle in the Service of a Search Warrant Police officers are obliged to give notice, show their authority, and demand that they be allowed entry. They may only break open any outer or inner door or window of a house to execute the search warrant if, after such notice and demand, such officers are refused entry to the place of directed search. This is known as the knock and anno nce principle Page 157 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 which is embodied in Anglo-American Law. The method of entry of an officer into a dwelling and the presence or absence of such notice are as important considerations in assessing whether subsequent entry to search and/or arrest is constitutionally reasonable. (People v. Huang Zhen Hua, G.R. No. 139301, Sept. 29, 2004) Unannounced Intrusion When Permissible Unannounced intrusion into the premises is permissible when: 1. A party whose premises or is entitled to the possession thereof refuses, upon demand, to open it; 2. When such person in the premises already knew of the identity of the officers and of their authority and persons; 3. When the officers are justified in the honest belief that there is an imminent peril to life or limb; and 4. When those in the premises, aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers to believe that an escape or the destruction of evidence is being attempted. Suspects have no constitutional right to destroy evidence or dispose of evidence. However, the exceptions above are not exclusive or conclusive. At times, without the benefit of hindsight and ordinarily on the spur of the moment, the officer must decide whether or not to make an unannounced intrusion into the premises. Although a search and seizure of a dwelling might be constitutionally defective, if the police officer entry was without prior announcement, law enforcement interest may also establish the reasonableness of an unannounced entry. Indeed, there is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances. In determining the lawfulness of an unallowed entry and the existence of probable cause, the courts are concerned only with what the officers had reason to believe and the time of the entry. (People v. Huang Zhen Hua, G.R. No. 139301, Sept. 29, 2004) When Forcible Entry Justified The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein. (ROC, Rule 126, § 7) The police a hori ie claim that they had to use some force in order to gain entry cannot be doubted. The occupants of the house, especially accused-appellant, refused to open the door despite the fact that the searching party knocked on the door several times. Furthermore, the agents saw the suspicious movements of the people inside the house. These circumstances justified the searching party's forcible entry into the house, founded as it is on the apprehension that the execution of their mission would be frustrated unless they do so. (People v. Salanguit, G.R. No. 133254-55, April 19, 2001) 4. WARRANTLESS SEARCHES There are exceptional circumstances when searches are reasonable even when warrantless. There are recognized instances of permissible warrantless searches laid down in jurisprudence. (Sapi v. People, G.R. No. 200370, June 7, 2017) Warrantless searches are allowable in the following circumstances: (WIPE MS CACP) 1. Waiver of right 2. Search Incidental to a lawful arrest 3. Seizure of evidence in Plain view 4. During exigent and Emergency circumstances 5. Search of a Moving vehicle 6. Stop and frisk rule (Terry Search) 7. Customs search 8. Airport searches 9. Checkpoint Search 10. Warrantless search by a Private individual [Note: This is found in Sec. 5, Rule 113 of the Rules of Court where a private person may arrest a person without a warrant, and in turn such private individual may validly conduct a search incidental to a lawful arrest] (People v. Aruta, G.R. No. 120915, April 3, 1998) a. Waiver of Right Requisites Page 158 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 There is an effective waiver of rights against unreasonable searches and seizures if the following requisites are present: (EKI) 1. It must appear that the rights Exist; 2. The person involved had Knowledge, actual or constructive, of the existence of such right; 3. Said person had an actual Intention to relinquish the right. (People v. Tudtud, G.R. No. 144037, Sept. 26, 2003) Who May Waive The constitutional immunity from unreasonable searches and seizures, being personal one, cannot be waived by anyone except: 1. The person whose rights are invaded; or 2. One who is expressly authorized to do so in his or her behalf. (People v. Damaso, G.R. No. 93516, Aug. 12, 1992) Prosecution Must Prove the Waiver with Clear and Convincing Evidence Silence or lack of resistance can hardly be considered as consent to the warrantless search. Although the right against unreasonable searches and seizures may be surrendered through a valid waiver, the prosecution must prove that the waiver was executed with clear and convincing evidence. Consent to a warrantless search and seizure must be unequivocal, specific, intelligently given and unattended by duress or coercion. (Sapi v. People, G.R. No. 200370, June 7, 2017) Determined by the Totality of the Circumstances The validity of a consented warrantless search is determined by the totality of the circumstances. This may involve an inquiry into the environment in which the consent was given such as the presence of coercive police procedures. (Sapi v. People, G.R. No. 200370, June 7, 2017) Waiver Not Presumed Mere passive conformity or silence to the warrantless search is only an implied acquiescence, which amounts to no consent at all. Silence or lack of aggressive objection is a natural reaction to a coercive environment brought about by the police officer's excessive intrusion into his private space. The prosecution and the police carry the burden of showing that the waiver of a constitutional right is one which is knowing, intelligent, and free from any coercion. In all cases, such waivers are not to be presumed. (Sapi v. People, G.R. No. 200370, June 7, 2017) Invalid Waiver Under RA 10951 RA No. 10591 authorizes warrantless inspections of houses, which are unreasonable and, therefore, require a search warrant. Signing the Consent of Voluntary Presentation for Inspection in the pro forma Individual Application for New Firearm Registration cannot be considered a valid waiver of the right against unreasonable searches under Article III, Section 2 of the Constitution. There is a legitimate, almost absolute, expectation of privacy in one's residence. The inspection contemplated may only be done with a search warrant. Therefore, the signing of the Consent of Voluntary Presentation for Inspection is violative of the protection against unreasonable searches and seizures. (Acosta v. Ochoa, G.R. Nos. 211559, 211567, 212570 & 215634, Oct. 15, 2019) b. Search Incidental to a Lawful Arrest A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. (ROC, Rule 126, § 13) Purpose The purpose of allowing a warrantless search and seizure incident to a lawful arrest is to protect the arresting officer from being harmed by the person arrested, who might be armed with a concealed weapon, and to prevent the latter from destroying evidence within reach. It is therefore a reasonable exercise of the S a e police power to protect (1) law enforcers from the injury that may be inflicted on them by a person they have lawfully arrested; and (2) evidence from being destroyed by the arrestee. It seeks to ensure the safety of the arresting officers and the integrity of the evidence under the control and within the reach of the arrestee. (People v. Calantiao, G.R. No. 203984, June 18, 2014) Requisites Page 159 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Test for a valid warrantless search incidental to a lawful arrest: (LCC) 1. The arrest must be Lawful; 2. The item to be searched was within the arre ee Custody or area of immediate control; and 3. The search was Contemporaneous with the arrest. Lawful Arrest Must Precede the Search General Rule: A search incidental to a lawful arrest requires that there must first be a lawful arrest before a search is made. Otherwise stated, a lawful arrest must precede the search; the process cannot be reversed. (Sapi v. People, G.R. No. 200370, June 7, 2017) Exception: A search substantially contemporaneous with an arrest can precede the arrest if the police has probable cause to make the arrest at the outset of the search. (People v. Mariacos, G.R. No. 188611, June 16, 2010) Scope of Warrantless Search The scope of allowable warrantless search is limited to the area within which the person arrested could reach for a weapon or reach for evidence to destroy it. (Chimel v. California, 395 U.S. 752, June 23, 1969) Moreover, in lawful arrests, it becomes both the duty and the right of the apprehending officers to conduct a warrantless search not only on the person of the suspect, but also in the permissible area within the la er reach. Otherwise stated, a valid arrest allows the seizure of evidence or dangerous weapons either on the person of the one arrested or within the area of his immediate control. The phrase "within the area of his immediate control" means the area from within which he might gain possession of a weapon or destructible evidence. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. (People v. Calantiao, G.R. No. 203984, June 18, 2014) In Valeroso, however, the Court held that the evidence searched and seized from him could not be used against him because they were discovered in a room, different from where he was being detained, and was in a locked cabinet. Thus, the POLITICAL LAW area searched could not be considered as one within his immediate control that he could take any weapon or destroy any evidence against him. (People v. Calantiao, G.R. No. 203984, June 18, 2014) The better and established rule is a strict application of the exception provided in Rule 126, sec. 12 [now Sec. 13] and that is to absolutely limit a warrantless search of a person who is lawfully arrested to his or her person at the time of and incident to his or her arrest and to "dangerous weapons or anything which may be used as proof of the commission of the offense." Such warrantless search obviously cannot be made in a place other than the place of arre . (Nolasco v. Pano, G.R. No. L- 69803, Jan. 30, 1987) What May Be Searched Assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was: 1. Used in the commission of the crime, or 2. The fruit of the crime, or 3. That which may be used as evidence, or 4. Which might furnish the arrestee with the means of escaping or committing violence. (People v. Comprado, G.R. No. 213225, April 4, 2018) c. Seizure of Evidence in Plain View Concept Objects in the "plain view" of an officer who has the right to be in the position to have that view are subject to seizure without a warrant. Requisites The following elements must be present before the doctrine may be applied: (VIAJ) 1. A prior Valid intention based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; 2. The evidence was Inadvertently discovered by the police who have the right to be where they are; 3. The evidence must be immediately Apparent; and 4. "Plain view" Justified were seizure of evidence without further search. (People v. Compacion, G.R. No. 124442, July 20, 2001) Page 160 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Immediately Apparent Requirement; Probable Cause The immediate requirement means that the executing officer can, at any time of discovery of the object or the facts therein available to him, determine probable cause of the objec incriminating evidence. Probable cause must be the direct result of the officer instantaneous sensory perception of the object. The immediately apparent test does not require an unduly high degree of certainty as to the incriminating character of the evidence. (United Laboratories v. Isip, G.R. No. 163858, June 28, 2005) Exception to the Inadmissibility of Evidence Obtained in a Warrantless Search Incident to a Lawful Arrest Outside the S c Person and Premises under his Immediate Control The Plain View Doctrine is actually the exception to the inadmissibility of evidence obtained in a warrantless search incident to a lawful arrest outside the pec person and premises under his immediate control. It serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused and permits the warrantless seizure. (People v. Calantiao, G.R. No. 203984, June 18, 2014) Applied Where a Police Officer is Not Searching for Evidence The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. (Valeroso v. CA, G.R. No. 164815, Sept. 3, 2009) Object Seized Inside a Closed Package General Rule: An object is in plain view if the object itself is plainly exposed to sight. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. Exception: However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then POLITICAL LAW the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure. (Caballes v. CA, G.R. No. 136292, Jan. 15, 2002) Plain View Doctrine Not Applicable When Evidence Discovered in the Course of a Search The seizure of the passports, bankbooks, checks, typewriter, check writer, dry seals and stamp pads and other assorted documents does not fall within the plain ie exception. The assertions of the police officers that said objects were inad er en l seized within their plain ie are mere legal conclusions which are not supported by any clear narration of the factual circumstances leading to their discovery. The supposed illegal character of the items claimed to have been seized within the plain ie of the policemen was not readily and immediately apparent. Rather, the suspicions of the policemen appear to have been aroused by the presence of the numerous passports and immigration documents which they discovered in the course of their search. (People v. Go, G.R. No. 144639, Sept. 12, 2003) d. Exigent and Emergency Circumstances In the event of a coup d e a conducted by the Reform the Armed Forces Movement Soldiers of the Filipino People , the EUROCAR Building was put under surveillance pursuant to an intelligence report that it housed large quantities of ammunition. During the operations, the car of the surveillance team was fired upon by 5 persons from a crowd within the vicinity of the EUROCAR Building. The team proceeded to the building without a warrant and was able to seize de Gracia and plenty of explosives and ammunition. The SC held that the arrests were impelled by the exigencies of the situation, which concerned the very survival of society and the government. In this case, the military operatives had reasonable ground to believe that a crime was being committed. The team had no opportunity to apply for a search warrant from the courts, as the court with Page 161 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 jurisdiction, at that time, was closed due to disorder. (People v. De Gracia, G.R. Nos. 10200910, July 6, 1994). e. Search of a Moving Vehicle Concept The rules governing searches and seizures have been liberalized when the object of a search is a vehicle for practical purposes. Police officers cannot be expected to appear before a judge and apply for a search warrant when time is of the essence considering the efficiency of vehicles in facilitating transactions involving contraband or dangerous articles. However, the inherent mobility of vehicles cannot justify all kinds of searches. Law enforcers must act on the basis of probable cause. (Sapi v. People, G.R. No. 200370, June 7, 2017) Rationale Securing a search warrant is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. (Papa v. Mago, G.R. No. L-27360, Feb. 28, 1968) Visual Search No Probable Cause Required Thus, routinary and indiscriminate searches of moving vehicles are allowed if they are limited to a visual search. This holds especially true when the object of the search is a public vehicle where individuals have a reasonably reduced expectation of privacy. (Sapi v. People, G.R. No. 200370, June 7, 2017) A search of a moving vehicle may either be a mere routine inspection or an extensive search. The search in a routine inspection is limited to the following instances: 1. Where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds; 2. Simply looks into a vehicle; 3. Flashes a light therein without opening the car's doors; 4. Where the occupants are not subjected to a physical or body search; 5. Where the inspection of the vehicles is limited to a visual search or visual inspection; and 6. Where the routine check is conducted in a fixed area. (Macad v. People, G.R. No. 227366, Aug. 1, 2018) POLITICAL LAW Extensive Search Probable Cause Required On the other hand, extensive searches are permissible only when they are founded upon probable cause. Any evidence obtained will be subject to the exclusionary principle under the Constitution. (Sapi v. People, G.R. No. 200370, June 7, 2017) That the object of a warrantless search is allegedly inside a moving vehicle does not justify an extensive search absent probable cause. Moreover, law enforcers cannot act solely on the basis of confidential or tipped information. A tip is still hearsay no matter how reliable it may be. It is not sufficient to constitute probable cause in the absence of any other circumstance that will arouse suspicion. (Sapi v. People, G.R. No. 200370, June 7, 2017) When a vehicle is stopped and subjected to an extensive search, such a warrantless search has been held to be valid only as long as the officers conducting the search have reasonable or probable cause to believe before the search that they will find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched. (Macad v. People, G.R. No. 227366, Aug. 1, 2018) A confidential informer tipped the police that a Gemini car was going to deliver shabu. When they stopped the car, they saw a gun tucked in T a on waist. He did not have any documents, which strengthened the police suspicion. After he was told to step out of the car, they found plastic sachets containing shabu on the dri er seat. These circumstances are sufficient to establish probable cause for the warrantless search of the car. Hence, the sachets of shabu may be admitted as evidence. (People v. Tuazon, G.R. No. 175783, Sept. 3, 2007) f. Stop and Frisk Rule (Terry Search) Concept A "stop and frisk" search is the act of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s) or contraband. (Sapi v. People, G.R. No. 200370, June 7, 2017) Requisites (URIRA) 1. Police Officer observes Unusual conduct. Page 162 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 2. Reasonable suspicion that person is engaged in some type of criminal activity in light of experience. 3. Identifies himself as a policeman upon approach. 4. Makes Reasonable inquiries. 5. There i rea onable fear for one own, or o her afe . Th , he i en i led o cond c a limited search of the outer clothing of such persons in an Attempt to discover weapons that might be used for assault. (Terry v. Ohio, 392 U.S. 1, June 10, 1968) Scope The allowable scope of a "stop and frisk" search is limited to a protective search of outer clothing for weapons. (Sapi v. People, G.R. No. 200370, June 7, 2017) Totality of Suspicious Circumstances; At Least 2 or More Suspicious Circumstances For a op and fri k search to be valid, it must be supported by evidence such that the totality of the suspicious circumstances observed by the arresting officer led him/her to believe that an accused was committing an illicit act. (Telen v. People, G.R. 228107, Oct. 9, 2019) To sustain the validity of a stop and frisk search, the arresting officer should have personally observed two (2) or more suspicious circumstances, the totality of which would then create a reasonable inference of criminal activity to compel the arresting officer to investigate further. (Manibog vs People, G.R. No. 211214, March 20, 2019) The police officer must observe at least 2 or more suspicious circumstances. In this case, the prosecution failed to prove the legality of the warrantless arrest and the bare assertion that they caught X in flagrante delicto of illegal possession of a hand grenade is insufficient to cloth the police officers with the authority to restrain X liberty. PO3 Y suspicion based on the sight of a metal object is not sufficient to defeat X constitutional right to privacy. More importantly, the prosecution in this case failed to prove the existence of a hand grenade as no evidence was proffered on its chain custody. (Telen v. People, G.R. 228107, Oct. 9, 2019) POLITICAL LAW Probable Cause Not Required; But Genuine Reason Based on Experience Law enforcers do not have unbridled discretion in conducting "stop and frisk" searches. While probable cause is not required, a "stop and frisk" search cannot be validated on the basis of a suspicion or hunch. Law enforcers must have a genuine reason to believe, based on their experience and the particular circumstances of each case, that criminal activity may be afoot. Reliance on one (1) suspicious activity alone, or none at all, cannot produce a reasonable search. (Sapi v. People, G.R. No. 200370, June 7, 2017) g. Customs Search The Tariff and Customs Code of 1957 authorizes persons having police authority under Section 2203 of the Tariff and Customs Code to enter, pass through or search any land, inclosure, warehouse, store or building, not being a dwelling house; and also to inspect, search and examine any vessel or aircraft and any trunk, package, or envelope or any person on board, or to stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the Philippines contrary to law, without mentioning the need of a search warrant in said cases. But in the search of a dwelling house, the Code provides that said dwelling house may be entered and searched only upon warrant issued by a judge or justice of the peace. Thus, except in the case of the search of a dwelling house, persons exercising police authority under the customs law may effect search and seizure without a search warrant in the enforcement of customs laws. (Papa v. Mago, G.R. No. L-27360, Feb. 28, 1968) Requisites Customs searches are allowed when persons exercising police authority under the customs law effect search and seizure in the enforcement of customs laws. To be valid, the requirements are: (ACH) 1. The person conducting the search is exercising police Authority under customs law; 2. The search was for the enforcement of Customs law; and 3. The place searched is not a dwelling place or House. (Dela Cruz v People of the Philippines, G.R. No. 209387, Jan. 11, 2016) Page 163 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 CUSTOMS MODERNIZATION AND TARIFF ACT Persons Exercising Police Authority The following persons are authorized to effect search, seizure, and arrest: 1. Officials of the Bureau, District Collectors, Deputy District Collectors, police officers, agents, inspectors and guards of the Bureau; 2. Upon authorization of the Commissioner, officers and members of the Armed Forces of the Philippines (AFP) and national law enforcement agencies; and 3. Officials of the BIR on all cases falling within the regular performance of their duties, when payment of internal revenue taxes is involved. (Customs Modernization And Tariff Act, § 214) Authority to Enter Properties Any person exercising police authority may, at any time, enter, pass through, and search any land, enclosure, warehouse, store, building or structure not principally used as a dwelling house. When a security personnel or any other employee lives in the warehouse, store, or any building, structure or enclosure that is used for storage of goods, it shall not be considered as a dwelling house for purposes of this Act. (Customs Modernization And Tariff Act, § 219) Authority to Search Dwelling House A dwelling house may be entered and searched only upon warrant issued by a Judge of a competent court, the sworn application thereon showing probable cause and particularly describing the place to be searched and the goods to be seized. (Customs Modernization And Tariff Act, § 220) Authority to Search Vessels or Aircrafts and Persons or Goods Conveyed Therein Any person exercising police authority under this Act may board, inspect, search and examine a vessel or aircraft and any container, trunk, package, box or envelope found on board, and physically search and examine any person thereon. In case of any probable violation of this Act, the person exercising police authority may seize the goods, vessel, aircraft, or any part thereof. POLITICAL LAW Such power to search includes removal of any false bottom, partition, bulkhead, or any other obstruction for the purpose of uncovering any concealed dutiable or forfeitable goods. The proceeding herein authorized shall not give rise to any claim for damage caused to the goods, vessel or aircraft, unless there is gross negligence or abuse of authority in the exercise thereof. (Customs Modernization And Tariff Act, § 221) Authority to Search Vehicles, Other Carriers, Persons and Animals Upon reasonable cause, any person exercising police authority may open and examine any box, trunk, envelope, or other container for purposes of determining the presence of dutiable or prohibited goods. This authority includes the search of receptacles used for the transport of human remains and dead animals. Such authority likewise includes the power to stop, search, and examine any vehicle or carrier, person or animal suspected of holding or conveying dutiable or prohibited goods. (Customs Modernization And Tariff Act, § 222) Authority to Search Persons Arriving From Foreign Countries Upon reasonable cause, travelers arriving from foreign countries may be subjected to search and detention by the customs officers. The dignity of the person under search and detention shall be respected at all times. Female inspectors may be employed for the examination and search of persons of their own sex. (Customs Modernization And Tariff Act, § 223) h. Airport Searches The search was made pursuant to routine airport security procedure, which is allowed under Section 9 of Republic Act No. 6235 reading as follows: SEC. 9. Every ticket issued to a passenger by the airline or air carrier concerned shall contain among others the following condition printed thereon: "Holder hereof and his hand-carried luggage(s) are subject to search for, and seizure of, prohibited materials or substances. Holder refusing to be searched shall not be allowed to board the aircraft," Page 164 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 which shall constitute a part of the contract between the passenger and the air carrier. This constitutes another exception to the proscription against warrantless searches and seizures. As admitted by SUSAN and shown in Annex "D" of her Brief, the afore-quoted provision is stated in the "Notice to All Passengers" located at the final security checkpoint at the departure lounge. From the said provision, it is clear that the search, unlike in the Terry search, is not limited to weapons. Passengers are also subject to search for prohibited materials or substances. In this case, after the metal detector alarmed SUSAN consented to be frisked, which resulted in the discovery of packages on her body. It was too late in the day for her to refuse to be further searched because the discovery of the packages whose contents felt like rice granules, coupled by her apprehensiveness and her obviously false statement that the packages contained only money, aroused the suspicion of the frisker that SUSAN was hiding something illegal. It must be repeated that R.A. No. 6235 authorizes search for prohibited materials or substances. To limit the action of the airport security personnel to simply refusing her entry into the aircraft and sending her home (as suggested by appellant), and thereby depriving them of "the ability and facility to act accordingly, including to further search without warrant, in light of such circumstances, would be to sanction impotence and ineffectivity in law enforcement, to the detriment of society." Thus, the strip search in the ladie room was justified under the circumstances. (People v. Canton, G.R. No. 148825, Dec. 27, 2002) i. Checkpoint Search Concept A checkpoint search is a variant of a search of a moving vehicle. Checkpoints per se are not invalid. They are allowed in exceptional circumstances to protect the lives of individuals and ensure their safety. They are also sanctioned in cases where the government's survival is in danger. Considering that routine checkpoints intrude on a motorist's right to 'free pa age to a certain extent, they must be conducted in a way least intrusive to motorists. (Sapi v. People, G.R. No. 200370, June 7, 2017) POLITICAL LAW Requisites (No body LAV) 1. Passengers Not subjected to Body search; 2. Limited to visual search 3. Abnormal times; and 4. Vehicle not searched. (Valmonte v. Gen. De Villa, G.R. No. 83988, September 29, 1989) Limited to a Visual Search; Vehicle and Body Search Not Allowed The extent of routine inspections must be limited to a visual search. Routine inspections do not give law enforcers carte blanche to perform warrantless searches. (Sapi v. People, G.R. No. 200370, June 7, 2017) For 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, said routine checks cannot be regarded as violative of an individual's right against unreasonable searches. Thus, a search where an officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, or simply looks into a vehicle, or flashes a light therein is not unreasonable. (Sapi v. People, G.R. No. 200370, June 7, 2017) Extensive Search Allowed When Probable Cause Present However, an extensive search may be conducted on a vehicle at a checkpoint when law enforcers have probable cause to believe that the vehicle's passengers committed a crime or when the vehicle contains instruments of an offense. (Sapi v. People, G.R. No. 200370, June 7, 2017) Exclusive reliance on information tipped by informants goes against the very nature of probable cause. A single hint hardly amounts to the existence of 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. The finding of should be premised on more than just the initial information relayed by assets. It was the confluence of initial tips and a myriad of other occurrences that ultimately sustained probable cause. In this case, a radio message cannot be the sole basis of the finding of probable cause to Page 165 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 warrant the extensive search of the vehicle of the accuse on the police checkpoint. (People v. Yanson, G.R. No. 238453, July 31, 2019) j. Warrantless Search by a Private Individual If the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of a private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government. (People v. Marti, G.R. No. 81561, Jan. 18, 1991) REASONABLE SEARCH V. WARRANTLESS SEARCH A reasonable search, on the one hand, and a warrantless search, on the other, are mutually exclusive. While both State intrusions are valid even without a warrant, the underlying reasons for the absence of a warrant are different. (Saluday v. People, G.R. No. 215305, April 3, 2018) Reasonable Search A reasonable search arises from a reduced expectation of privacy, for which reason Section 2, Article III of the Constitution finds no application. Examples include searches done at airports, seaports, bus terminals, malls, and similar public places. (Saluday v. People, G.R. No. 215305, April 3, 2018) Warrantless Search In contrast, a warrantless search is presumably an "unreasonable search," but for reasons of practicality, a search warrant can be dispensed with. Examples include search incidental to a lawful arrest, search of evidence in plain view, consented search, and extensive search of a private moving vehicle. (Saluday v. People, G.R. No. 215305, April 3, 2018) REASONABLE SEARCH: BUS SEARCHES POLITICAL LAW (Saluday v. People, G.R. No. 215305, April 3, 2018) Prior to Entry Prior to entry, passengers and their bags and luggages can be subjected to a routine inspection akin to airport and seaport security protocol. In this regard, metal detectors and x-ray scanning machines can be installed at bus terminals. Passengers can also be frisked. In lieu of electronic scanners, passengers can be required instead to open their bags and luggages for inspection, which inspection must be made in the passenger's presence. Should the passenger object, he or she can validly be refused entry into the terminal. While in Transit While in transit, a bus can still be searched by government agents or the security personnel of the bus owner in the following three instances: (IPC) 1. Upon receipt of information that a passenger carries contraband or Illegal articles, the bus where the passenger is aboard can be stopped en route to allow for an inspection of the person and his or her effects. This is no different from an airplane that is forced to land upon receipt of information about the contraband or illegal articles carried by a passenger onboard. 2. Whenever a bus picks passengers en route, the Prospective passenger can be frisked and his or her bag or luggage be subjected to the same routine inspection by government agents or private security personnel as though the person boarded the bus at the terminal. This is because unlike an airplane, a bus is able to stop and pick passengers along the way, making it possible for these passengers to evade the routine search at the bus terminal. 3. A bus can be flagged down at designated military or police Checkpoints where State agents can board the vehicle for a routine inspection of the passengers and their bags or luggages. Requisites In both situations (prior to entry and while in transit), the inspection of passengers and their effects prior to entry at the bus terminal and the search of the bus while in transit must also satisfy the following conditions to qualify as a valid reasonable search: (LIDSE) 1. First, as to the manner of the search, it must be the Least Intrusive and must uphold the dignity Page 166 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 of the person or persons being searched, minimizing, if not altogether eradicating, any cause for public embarrassment, humiliation or ridicule. 2. Second, neither can the search result from any Discriminatory motive such as insidious profiling, stereotyping and other similar motives. In all instances, the fundamental rights of vulnerable identities, persons with disabilities, children and other similar groups should be protected. 3. Third, as to the purpose of the search, it must be confined to ensuring public Safety. 4. Fourth, as to the Evidence seized from the reasonable search, courts must be convinced that precautionary measures were in place to ensure that no evidence was planted against the accused. Applies to Other Vehicles Aside from public transport buses, any moving vehicle that similarly accepts passengers at the terminal and along its route is likewise covered by these guidelines. Hence, whenever compliant with these guidelines, a routine inspection at the terminal or of the vehicle itself while in transit constitutes a reasonable search. Otherwise, the intrusion becomes unreasonable, thereby triggering the constitutional guarantee under Section 2, Article III of the Constitution. Does Not Apply to Privately-Owned Cars The guidelines do not apply to privately-owned cars. Neither are they applicable to moving vehicles dedicated for private or personal use, as in the case of taxis, which are hired by only one or a group of passengers such that the vehicle can no longer be flagged down by any other person until the passengers on board alight from the vehicle. REASONABLE SEARCH: PORT SEARCHES Searches pursuant to port security measures are not unreasonable per se. The security measures of x-ray scanning and inspection in domestic ports are akin to routine security procedures in airports. The reason behind the exception to the prohibition against warrantless searches is that there is a reasonable reduced expectation of privacy when coming into airports or ports of travel. Actual inspection upon showing of probable cause that a crime is being or has been committed is part POLITICAL LAW of reasonable security regulations to safeguard the passengers passing through ports or terminals. Any perceived curtailment of liberty due to the presentation of person and effects for port security measures is a permissible intrusion to privacy when measured against the possible harm to society caused by lawless persons. Thus, when the results of the x-ray scan revealed the existence of firearms in the bag, the port authorities have probable cause to conduct a search of the per on bag. (Dela Cruz v People of the Philippines, GR 209387, Jan. 11, 2016) 5. CONCEPT OF AN ARREST Definition Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. (ROC, Rule 113, § 1) Arrest, How Made An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest. No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention. (ROC, Rule 113, § 2) Requisites of a Valid Warrant of Arrest The requisites for the issuance of a warrant of arrest are: (3PS) 1. Existence of Probable cause; 2. Such probable cause must be determined Personally by the judge; 3. Probable cause is determined by the judge through a Personal evaluation of the report and the supporting documents submitted by the fiscal; and 4. The warrant Specifically describes the place to be searched and the things to be seized. (AAA v. Carbonell, G.R. No. 171465, June 8, 2007) a. Probable Cause Definition Probable cause is such set of facts and circumstances as would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought Page 167 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 to be arrested. (Viudez II v. CA, G.R. No. 152889, June 5, 2009) Purpose The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is to insulate from the very start those falsely charged with crimes from the tribulations, expenses and anxiety of a public trial. (Viudez II v. CA, G.R. No. 152889, June 5, 2009) More Than Suspicion, Less Than Evidence That Would Justify Conviction In determining probable cause, the average man weighs the facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands more than suspicion; it requires less than evidence that would justify conviction. (Viudez II v. CA, G.R. No. 152889, June 5, 2009) Probable Cause: Executive v. Judicial The executive determination of probable cause is one made during preliminary investigation. It is a function that properly pertains to the public prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom he believes to have committed the crime as defined by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case must be filed in court. Whether or not that function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon. The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice. If the judge finds no probable cause, the judge POLITICAL LAW cannot be forced to issue the arrest warrant. (Mendoza v. People, G.R. No. 197293, April 21, 2014) b. Personal Determination of Probable Cause Exclusive The function of the judge to issue a warrant of arrest upon the determination of probable cause is exclusive; thus, the consequent implementation of a warrant of arrest cannot be deferred pending the resolution of a Petition for Review by the Secretary of Justice as to the finding of probable cause, a function that is executive in nature. To defer the implementation of the warrant of arrest would be an encroachment on the exclusive prerogative of the judge. (Viudez II v. CA, G.R. No. 152889, June 5, 2009) Relies Solely on the P c Certification Grave Abuse of Discretion If a Judge relies solely on the certification of the Prosecutor as in this case where all the records of the investigation have not yet been submitted to him, he or she has not personally determined probable cause. The determination is made by the Provincial Prosecutor. The constitutional requirement has not been satisfied. The Judge commits a grave abuse of discretion. (Lim, Sr. v. Hon. Felix, G.R. Nos. 94054-57, Feb. 19, 1991) c. Personal Evaluation of the Report and the Supporting Documents Judge Not Required to Personally Examine the Complainant and His Witnesses; Only Required in the Issuance of Search Warrants What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: 1. Personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or Page 168 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 2. If on the basis thereof he finds no probable ca e, he ma di regard he fi cal repor and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would by unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. (AAA v. Carbonell, G.R. No. 171465, June 8, 2007) Judge Should Not Solely Rely on the Report of the Prosecutor Indeed, what the law requires as personal determination on the part of the judge is that he should not rely solely on the report of the investigating prosecutor. The judge should consider not only the report of the investigating prosecutor but also the affidavit and the documentary evidence of the parties, the counteraffidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information. If the report, taken together with the supporting evidence, is sufficient to sustain a finding of probable cause, it is not compulsory that a personal examination of the complainant and his witnesses be conducted. (AAA v. Carbonell, G.R. No. 171465, June 8, 2007) d. Particularity of Description Does Not Prevent the Issue and Service of a Warrant Against a Party Whose Name is Unknown This rule or principle does not prevent the issue and service of a warrant against a party whose name is unknown. In such case the best description possible of the person to be arrested is to be given in the warrant; but it must be sufficient to indicate clearly on whom it is to be served, by stating his occupation, his personal appearance and peculiarities, the place of his residence, or other circumstances by which he can be identified. (People v. Veloso, G.R. No. L-23051, Oct. 20, 1925) Arrest Warrant for an Unnamed Party; John Doe Arrest Warrant Warrant for the apprehension of an unnamed party is void, except in those cases where it contains a descriptio personae such as will enable the officer to identify the accused." The description must be sufficient to indicate clearly the proper person upon whom the warrant is to be served. (People v. Veloso, G.R. No. L-23051, Oct. 20, 1925) General Warrants are Void A general arrest warrant is a warrant upon which any other individual might as well have been arrested, as being included in the description, as the defendant himself. (People v. Veloso, G.R. No. L-23051, Oct. 20, 1925) A general warrant is defined as a search or arrest warrant that is not particular as to the person to be arrested or the property to be seized. It is one that allows the seizure of one thing under a warrant describing another and gives the officer executing the warrant the discretion over which items to take. (Worldwide Web Corporation v. People, G.R. No. 161106, Jan. 13, 2014) CONDUCT OF AN ARREST Time of Making Arrest An arrest may be made on any day and at any time of the day or night. (ROC, Rule 113, § 6) Method of Arrest by Officer by Virtue of Warrant When making an arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable. (ROC, Rule 113, § 7) Method of Arrest by Officer Without Warrant When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an Page 169 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 offense, is pursued immediately after its commission, has escaped, flees, or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. (ROC, Rule 113, § 8) Method of Arrest by Private Person When making an arrest, a private person shall inform the person to be arrested of the intention to arrest him and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, or has escaped, flees, or forcibly resists before the person making the arrest has opportunity to so inform him, or when the giving of such information will imperil the arrest. (ROC, Rule 113, § 9) When Forcible Entry Justified An officer, in order to make an arrest either by virtue of a warrant, or without a warrant, may break into any building or enclosure where the person to be arrested is or is reasonably believed to be, if he is refused admittance thereto, after announcing his authority and purpose. (ROC, Rule 113, § 11) 6. WARRANTLESS ARRESTS AND DETENTION Purpose To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances. (Umil v. Ramos, G.R. No. 81567 July 9, 1990) Instances When Warrantless Arrest May Be Made A peace officer or a private person may, without a warrant, arrest a person: 1. In Flagrante Delicto: When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; 2. Hot Pursuit Arrest: When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and POLITICAL LAW 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 is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. (ROC, Rule 113, § 5) a. In Flagrante Delicto Requisites (OP) 1. The person to be arrested must execute an Overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and 2. Such overt act is done in the Presence or within the view of the arresting officer. Reliable information alone is insufficient to support the arrest absent any overt act from the person to be arrested indicating a crime has just been committed, was being committed, or is about to be committed. (Sapi v. People, G.R. No. 200370, June 7, 2017) Officer Sees the Offense, Although at a Distance When the illegal act was committed in the presence of the arresting officers, a warrantless arrest may be effected. An offense is committed in the presence of an officer when the officer sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene of the crime. Police officers have personal knowledge of the actual commission of the crime when they had earlier conducted surveillance activities of the accused. (People v. Sucro, G.R. No. 93239, March 18, 1991) Continuing Offense The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assaults against the State and are in the nature of continuing crimes. Thus, a rebel may be arrested without a warrant at any time for he is deemed to be in the act of committing a crime. (Umil v. Ramos, G.R. No. 81567 July 9, 1990) Buy-Bust In buy-bust operations, the arresting officers catch the malefactor in flagrante delicto. But the arresting Page 170 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW officers must neither instigate nor induce the arrestee to commit a crime. Entrapment is the employment of such ways and means for the purpose of capturing a lawbreaker from whose mind the criminal intent originated. In such cases, a search warrant is not necessary because a search pursuant to a buy-bust operation is one made incidental to a lawful arrest the arrestee is caught in flagrante delicto. (People v. De La Cruz, G.R. No. 101315, May 12, 1993) police officer's determination of probable cause would necessarily be limited to raw or uncontaminated facts or circumstances, gathered as they were within a very limited period of time. The same provision adds another safeguard with the requirement of probable cause as the standard for evaluating these facts of circumstances before the police officer could effect a valid warrantless arrest. (Pestilos v. Generoso, G.R. No. 182601, Nov. 10, 2014) 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 for having committed an offense in his presence. Manlulu was arrested without a warrant for allegedly having killed another person at around 1:00AM in the morning. The warrantless arrest was made around 7:00PM or about 19 hours later. The SC held that for there to be a lawful warrantless arrest, the arresting officer must have personal knowledge of the offense, which has in fact just been committed. In other words, the arrest has to immediately follow the commission of the offense. If a sufficient amount of time lapses as to allow him to procure a warrant, then the police officer must do so. In this case, not only was the arrest 19 hours after the alleged crime, but the arresting officer also did not have any personal knowledge of the facts. The SC also held that personal gathering of information is different from personal knowledge. (People v. Manlulu, G.R. No. 102140, Apr. 22, 1994) b. Hot Pursuit Arrest Requisites (BC-PC-PK) 1. An offense has just Been Committed; and 2. The arresting officer has Probable Cause to believe based on Personal Knowledge of facts or circumstances that the person to be arrested has committed it. (People v. Comprado, G.R. No. 213225, April 4, 2018) Element of Immediacy The clincher in the element of ''personal knowledge of facts or circumstances" is the required element of immediacy within which these facts or circumstances should be gathered. This required time element acts as a safeguard to ensure that the police officers have gathered the facts or perceived the circumstances within a very limited time frame. This guarantees that the police officers would have no time to base their probable cause finding on facts or circumstances obtained after an exhaustive investigation. The reason for the element of the immediacy is this - as the time gap from the commission of the crime to the arrest widens, the pieces of information gathered are prone to become contaminated and subjected to external factors, interpretations and hearsay. On the other hand, with the element of immediacy imposed under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure, the Probable Cause In determining probable cause, the arresting officer may rely on all the information in his possession, his fair inferences therefrom, including his observations. Mere suspicion does not meet the requirements of showing probable cause to arrest without warrant especially if it is a mere general suspicion. Probable cause may rest on reasonably trustworthy information as well as personal knowledge. Thus, the arresting officer may rely on information supplied by a witness or a victim of a crime; and under the circumstances, the arresting officer need not verify such information. The arresting officer should base his determination of probable cause on his personal knowledge of facts and circumstances that the person sought to be arrested has committed the crime. In other words, the arresting officer operates on the basis of more limited facts, evidence or available Page 171 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 information that he must personally gather within a limited time frame. One should not expect too much of an ordinary policeman. He is not presumed to exercise the subtle reasoning of a judicial officer. Oftentimes, he has no opportunity to make proper investigation but must act in haste on his own belief to prevent the escape of the criminal. (Pestilos v. Generoso, G.R. No. 182601, Nov. 10, 2014) Personal Knowledge: Hearsay Tip Insufficient The rule requires that an offense had just been committed. It connotes immediacy in point of time. Law enforcers need not personally witness the commission of a crime. However, they must have personal knowledge of facts and circumstances indicating that the person sought to be arrested committed it. A hearsay tip by itself is not personal knowledge required by the rule. (Sapi v. People, G.R. No. 200370, June 7, 2017) The requirement of personal knowledge is absent in this case. The Policeman was about 6-10 meters away when he saw the accused emerge from an alley holding a plastic sachet. His testimony fails to state that he had personal knowledge that the sachet contained shabu, or that he saw the sachet containing white crystalline substance, to create a reasonable suspicion that the sachet did indeed contain shabu. From all indications the time of the arrest being 11:30 p.m., the Policeman's location, and the tinted front windshield of the van through which he was looking it was highly doubtful that the Policeman saw, let alone deciphered, the contents of the sachet. For sure, it was only when he held the hand of the accused and confiscated the plastic sachet that he was able to verify its contents. (Villasana y Cabahug v. People, G.R. No. 209078, Sept. 4, 2019) c. Waiver of Right Objection to Illegal Arrest Must be Made Before Plea Appellant is estopped from questioning the legality of his arrest considering that he never raised this before entering his plea. Any objection involving a warrant of arrest or the procedure in the acquisition of jurisdiction over the person of an accused must be made before he enters his plea, otherwise, the POLITICAL LAW objection is deemed waived. Consequently, any irregularity attendant to his arrest, if any, had been cured by his voluntary submission to the jurisdiction of the trial court when he entered his plea and participated during the trial. (People v. Salvatierra, G.R. No. 104663, July 24, 1997) Accused was seen having a pot session and that the police who arrested him were conducting a ake-o operation. When accused tested positive for drugs, he was charged with violation of RA 9165. Accused did not deny that he was positive for drugs but rather, he questions the alleged illegality of his arrest. The Court ruled that accused had already waived the right to question the arrest. He was assisted by counsel when he entered his plea and was able to present his evidence. The right to question the validity of an arrest may be waived if the accused, assisted by counsel, fails to object to its validity before arraignment. (Lapi v. People, G.R. No. 210731, Feb. 13, 2019) Waiver of an Illegal Arrest, Not a Waiver of an Illegal Search A waiver of an illegal arrest, however, is not a waiver of an illegal search. While the accused has already waived his right to contest the legality of his arrest, he is not deemed to have equally waived his right to contest the legality of the search. (Villanueva v. People, G.R. No. 199042, Nov. 17, 2014) A waiver of an illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest. (Valdez v. People, G.R. No. 170180, Nov. 23, 2007) The right to question the validity of an arrest may be waived if the accused, assisted by counsel, fails to object to its validity before arraignment. This waiver, however, does not carry with it a waiver of the inadmissibility of the evidence seized during the illegal arrest. (Lapi v. People, G.R. No. 210731, Feb. 13, 2019) Application for Bail, Not a Waiver An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, Page 172 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 provided that he raises them before entering his plea. (ROC, Rule 114, § 26) ADMINISTRATIVE ARRESTS Deportation Proceedings Section 37 of the Immigration Law, empowering the Commissioner of Immigration to issue warrants for the arrest of overstaying aliens is constitutional. The arrest is a step preliminary to the deportation of the aliens who had violated the condition of their stay in this country. The requirement of probable cause, to be determined by a Judge, does not extend to deportation proceedings. There need be no "truncated" recourse to both judicial and administrative warrants in a single deportation proceeding. (Harvey v. Miriam Defensor Santiago, G.R. No. 82544, June 28, 1988) Drug, Alcohol, and Blood Test The Court acknowledged that compelled urinalysis was a form of search but its rea onablene must be judged by balancing the intrusion on the individ al interests against the promotion of legitimate government interests. What was essential was the chool custodial responsibility and authority, the nature of the intrusion, the confidentiality of the test results and the legitimate government interest. (Vernonia School District v. Acton, 515 U.S. 64, June 26, 1995; Board of Education v. Earls, 536 U.S. 22, June 27, 2002) The Philippine courts followed the ruling in Vernonia when it decided a case involving the mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the pro ec or office with certain offenses. The SC held that the right to privacy has been accorded as a facet of the right to unreasonable searches and seizures. On the case of mandatory drug testing provided for in the Dangerous Drug Act, the Supreme Court held the following: 1. Candidates for Constitutional Offices Unconstitutional A law cannot provide additional qualifications other than those outlined in the Constitution. POLITICAL LAW 2. Employees Constitutional The random drug testing would be undertaken in such a manner as to protect the privacy of the employees involved. Also, the privacy interest in an office is circum cribed b he compan ork policies, CBAs, and the right of the employer to maintain discipline and efficiency in the workplace. The right to privacy must yield to the necessary and reasonable requirements of police power. 3. Students Constitutional It is within the prerogative of schools to require compliance with reasonable school regulations, as a condition for admission or enrollment. The court found: a. Schools and their administrators stand in loco parentis with respect to their students; b. Minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; c. Schools, acting in loco parentis, have a duty to safeguard the health and well-being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and d. Schools have the right to impose conditions on applicants for admission that are fair, just, and non- discriminatory. 4. Persons charged before the public prosecutor's office Unconstitutional Defendants in a criminal complaint are not randomly picked; neither are they beyond suspicion. Certain persons are singled out and are impleaded against their will, making a medical test a tool for criminal prosecution. (Social Justice Society v. Dangerous Drugs Board, G.R. Nos. 157870, 158633, 161658, Nov. 3, 2008) 7. EXCLUSIONARY RULE Concept Any evidence obtained in violation of the right against unreasonable searches and seizure shall be inadmissible for any purpose in any proceeding. (PHIL. CONST., art. III, § 3[2]) Any evidence obtained in violation of the right against unreasonable searches and seizures shall Page 173 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 be inadmissible for any purpose in any proceeding. This exclusionary rule instructs that evidence obtained and confiscated on the occasion of such unreasonable searches and seizures are deemed tainted and should be excluded for being the proverbial fruit of a poisonous tree. In other words, evidence obtained from unreasonable searches and seizures shall be inadmissible in evidence for any purpose in any proceeding. (People v. Comprado, G.R. No. 213225, April 4, 2018) To Whom Directed: The State The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed. (People v. Marti, G.R. No. 81561, Jan. 18, 1991) If the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government. (People v. Marti, G.R. No. 81561, Jan. 18, 1991) 8. EFFECTS OF UNREASONABLE SEARCHES AND SEIZURES Exclusionary Rule: Fruit of the Poisonous Tree To protect the people from unreasonable searches and seizures, Section 3 (2), Article III of the 1987 Constitution provides that evidence obtained from unreasonable searches and seizures shall be inadmissible in evidence for any purpose in any proceeding. In other words, evidence obtained and confiscated on the occasion of such unreasonable searches and seizures are deemed tainted and should be excluded for being the proverbial fruit of a poisonous tree. (Miguel v. People, G.R. No. 227038, July 31, 2017) 9. EFFECTS OF ILLEGAL DETENTION POLITICAL LAW Invalidity of Arrest The invalidity of an arrest leads to several consequences among which are: 1. The failure to acquire jurisdiction over the person of an accused; 2. Criminal liability of law enforcers for illegal arrest; and 3. Any search incident to the arrest becomes invalid thus rendering the evidence acquired as constitutionally inadmissible. (Sapi v. People, G.R. No. 200370, June 7, 2017) Arbitrary Detention Any public officer or employee who, without legal grounds, detains a person, shall suffer: 1. The penalty of arresto mayor in its maximum period to prisión correccional in its minimum period, if the detention has not exceeded three days; 2. The penalty of prisión correccional in its medium and maximum periods, if the detention has continued more than three but not more than fifteen days; 3. The penalty of prisión mayor, if the detention has continued for more than fifteen days but not more than six months; and 4. That of reclusión temporal, if the detention shall have exceeded six months. The commission of a crime, or violent insanity or any other ailment requiring the compulsory confinement of the patient in a hospital, shall be considered legal grounds for the detention of any person. (REVISED PENAL CODE, art. 124) Delay in the Delivery of Detained Persons to the Proper Judicial Authorities The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of one hour. (REVISED PENAL CODE, art. 125) Delaying Release The penalties provided for in article 124 shall be imposed upon any public officer or employee who delays for the period of time specified therein the performance of any judicial or executive order for the release of a prisoner or detention prisoner, or unduly delays the service of the notice of such Page 174 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 order to said prisoner or the proceedings upon any petition for the liberation of such person. (REVISED PENAL CODE, art. 126) E. PRIVACY OF COMMUNICATION AND CORRESPONDENCE (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. (PHIL. CONST., art. III, § 3) Right to Privacy The right to privacy is the right to be free from unwarranted exploitation of one person or from intrusion into one private activities in such a way as to cause humiliation to a per on ordinary sensibilities. It is the right of an individual to be free from unwarranted publicity, or to live without unwarranted interference by the public in matters in which the public is not necessarily concerned. Simply put, the right to privacy is "the right to be let alone." The Bill of Rights guarantees the people right to privacy and protects them against the S a e abuse of power. In this regard, the State recognizes the right of the people to be secure in their houses. No one, not even the State, except in case of overriding social need and then only under the stringent procedural safeguards, can disturb them in the privacy of their homes. (Sps. Hing v. Choachuy, G.R. No. 179736, June 26, 2013) Three Strands of the Right to Privacy 1. Locational or Situational Privacy The privacy that is felt in physical space, such as that which may be violated by trespass and unwarranted search and seizure. 2. Informational Privacy The right of individuals to control information about themselves. 3. Decisional Privacy The right of individuals to make certain kinds of fundamental choices with respect to their personal and reproductive autonomy. (Vivares v. St. Theresa’s College, G.R. No. 202666, Sept. 29, 2014) Zones of Privacy Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a "constitutional right" and "the right most valued by civilized men," but also from our adherence to the Universal Declaration of Human Rights which mandates that, "no one shall be subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of the law against such interference or attacks." (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) The right of privacy is recognized and enshrined in several provisions of the Bill of Rights: 1. Sec. 3 Privacy of Communication & Correspondence 2. Sec. 1 Due Process & Equal Protection; Right to Life, Liberty, and Property 3. Sec. 2 Right Against Unreasonable Searches and Seizures 4. Sec. 6 Liberty of Abode & Right to Travel 5. Sec. 8 Right to Form Associations 6. Sec. 17 Right Against Self Incrimination (Ople v. Torres, G.R. No. 127685, July 23, 1998) Zones of privacy are likewise recognized and protected in our laws and rules: 1. Civil Code 2. Revised Penal Code 3. Anti-Wire Tapping Law 4. Secrecy of Bank Deposits Act 5. Intellectual Property Code 6. Rules of Court (Ople v. Torres, G.R. No. 127685, July 23, 1998) 1. CONCEPT OF COMMUNICATION AND CORRESPONDENCE Concept Page 175 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Forms of communication and correspondence considered private and protected by this provision include: 1. Letters 2. Messages 3. Telephone calls 4. Telegrams and the like (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Reasonable Expectation of Privacy Test In ascertaining whether there is a violation of the right to privacy, courts use the "reasonable expectation of privacy" test. This test determines whether a person has a reasonable expectation of privacy and whether the expectation has been violated. The reasonableness of a per on expectation of privacy depends on a two-part test: 1. Subjective: Whether, by his conduct, the individual has exhibited an expectation of privacy; and 2. Objective: This expectation is one that society recognizes as reasonable. (Pollo v. Constantino-David, G.R. No. 181881, Oct. 18, 2011) Customs, community norms, and practices may, therefore, limit or extend an indi id al reasonable expectation of privacy. Hence, the reasonableness of a per on expectation of privacy must be determined on a case-to-case basis since it depends on the factual circumstances surrounding the case. (Sps. Hing v. Choachuy, G.R. No. 179736, June 26, 2013) In assessing the challenge that the State has impermissibly intruded into these zones of privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) A government employee has a burden of proving that he has legitimate expectation of privacy either in his office or computer files. He can prove this by alleging and demonstrating the following: he used a password on his computer, did not share his office with co-workers and kept the same locked. However, the existence of a workplace privacy POLITICAL LAW policy may limit or erode the reasonable expectation of privacy. (Pollo v. Constantino-David, G.R. No. 181881, Oct. 18, 2011) Private Communications Can Be Made Public Private communications can be made public where a secret involves public questions which the State should and ought to know, the State may infringe that privacy of communication by some process or by appealing to the Court for the purpose of determining whether or not the privacy should be maintained. The court may allow intrusions on privacy of communication and correspondence only on the ground of probable cause. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Public Figure The right of privacy of a "public figure" is necessarily narrower than that of an ordinary citizen. (Ayer v. Capulong, G.R. No. 82380, April 29, 1988) Personal Matters Section 7, Article III of the 1987 Constitution grants the right of the people to information on matters of public concern. Personal matters are exempt or outside the coverage of the people right to information on matters of public concern. The data treated as "strictly confidential" under EO 420 being private matters and not matters of public concern, these data cannot be released to the public or the press. (KMU v. Dir. Gen. of NEDA, G.R. No. 167798, April 19, 2006) 2. INTRUSION, WHEN AND HOW ALLOWED The privacy of communication and correspondence shall be inviolable except: 1. Upon lawful order of the court, or 2. When public safety or order requires otherwise as prescribed by law. (PHIL. CONST., art. III, § 3[1]) a. Upon Lawful Order of the Court Probable Cause Required The constitutional text does not give any ground. It is submitted that the requirement of probable cause in the preceding section (Art. III, Sec. 2) should be followed. After all, the privacy right is but an aspect Page 176 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 of the right to be secure in one person. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) b. When Public Safety or Order Requires Otherwise as Prescribed by Law Prescribed by Law It should be based upon a government official assessment that public safety and order demand such intrusion, as provided by law. It is not only that the discretion of the executive officer is limitable by law but also that a public officer who exercises this power must be able to point to a law under which he acts. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Public Order and Safety The security of human lives, liberty, and property against the activities of invaders, insurrectionists, and rebels. (1971 Constitutional Convention, Nov. 25, 1972) 3. EXCLUSIONARY RULE Concept Any evidence obtained in violation of the right to privacy of communication and correspondence shall be inadmissible for any purpose in any proceeding. (Phil. Const., art. III, § 3[2]) To Whom Directed: The State To come under the exclusionary rule, however, the evidence must be obtained by government agents and not by private individuals acting on their own. This does not mean however that private individuals cannot be held liable. Almost all these liberties are also guaranteed by Article 32 of the Civil Code, making private violations actionable even if the violation does not have a constitutional consequence such as the applicability of the exclusionary rule. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Exclusionary rule will not apply if the recipient of the message granted access to the message(s) sent. (Office of the Court Administrator v. Judge Eliza B. Yu, A.M. No. MTJ-12-1813, Mar. 14, 2017) POLITICAL LAW Applied to wife who took documents and papers from ba clinic without the latter's knowledge and consent The constitutional injunction declaring the privacy of communication and correspondence to be inviolable is no less applicable simply because it is the wife (who thinks herself aggrieved by her husband's infidelity) who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a lawful order from a court or when public safety or order requires otherwise, as prescribed by law. Any violation of this provision renders the evidence obtained inadmissible for any purpose in any proceeding. The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/her integrity or his right to privacy as an individual and the constitutional protection is ever available to him or to her. The law insures absolute freedom of communication between the spouses by making it privileged. Neither husband nor wife may testify for or against the other without the consent of the affected spouse while the marriage subsists. Neither may be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage, save for specified exceptions. But one thing is freedom of communication; quite another is a compulsion for each one to share what one knows with the other. And this has nothing to do with the duty of fidelity that each owes to the other. (Zulueta v. CA, G.R. No. 107383, Feb. 20, 1996) R.A. 10175 (CYBERCRIME PREVENTION ACT) Certain Cybercrime Offenses under RA 10175 were assailed for violating both the right against unreasonable searches and seizures and the right to privacy. The court held that relevant to any discussion of the right to privacy is the concept known as the Zones of Privacy, as discussed earlier. Page 177 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 In assessing the challenge that the State has impermissibly intruded into these zones of privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion. The usual identifying information regarding a person includes his name, his citizenship, his residence address, his contact number, his place and date of birth, the name of his spouse, if any, his occupation, and similar data. The law punishes those who acquire or use such identifying information without right, implicitly to cause damage. Petitioners failed to show how government effort to curb computerrelated identity theft violates the right to privacy and correspondence as well as the right to due process of law. However, Section 12 on real-time collection of traffic data was declared unconstitutional for the authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of their sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked information or, worse, to extortion from certain bad elements in these agencies. Section 12, of course, limits the collection of traffic data to those a ocia ed with specified comm nica ion . But this supposed limitation is no limitation at all since, evidently, it is the law enforcement agencies that would specify the target communications. The power is virtually limitless, enabling law enforcement authorities to engage in fi hing e pedi ion, choosing whatever specified communication they want. This evidently threatens the right of individuals to privacy. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) R.A. 4200 (ANTI-WIRETAPPING ACT) a. Only protects letters, messages, telephone calls, telegrams and the like. b. The substance of the conversation need not be specifically alleged in the information. c. Under Section 3 of R.A. 4200, a peace officer, who is authorized by a written order of the Court, may execute any of the acts declared to POLITICAL LAW be unlawful in the said law in cases involving the crimes of: 1. Treason 2. Espionage 3. Provoking war and disloyalty in case of war 4. Piracy and mutiny in the high seas 5. Rebellion (conspiracy and proposal to commit; inciting to commit) 6. Sedition (conspiracy to commit and inciting to commit) 7. Kidnapping 8. Violations of C.A. No. 616 (punishing espionage and other offenses against national security) d. R.A. 4200 does not distinguish between a party to the private communication or a third person. Hence, both could be held liable under R.A. 4200 if they commit any of the prohibited acts under R.A. 4200. (Ramirez v. CA, G.R. No. 93833, Sept. 28, 1995) e. 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, G.R. No. L- 69809, Oct. 16, 1986) ONLINE SOCIAL NETWORK PRIVACY Before one can have an expectation of privacy in his or her Online Social Network activity, it is first necessary that said user manifest the intention to keep certain posts private. In the cyber world, utilization of privacy tools is the manifestation of the er invocation of his or her right to informational privacy. That the photos are viewable by friend onl does not necessarily bolster the contention to the right to privacy. In this regard, the cyber community is agreed that the digital images under this setting still remain to be outside the confines of the zones of privacy in view of the following: 1. Facebook allo he orld o be more open and connected by giving its users the tools to in erac and hare in an concei able a 2. A good n mber of Facebook er befriend other users who are total strangers; 3. The heer n mber of Friend one er ha , usually by the hundreds; and Page 178 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 4. A er Facebook friend can hare he former po , or ag o her ho are no Facebook friends with the former, despite its being visible only to his or her own Facebook friends. Setting a po or profile de ail privacy to Friend is no assurance that it can no longer be viewed by another user who is not Facebook friends with the source of the content. Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny access to his or her post or profile detail should not be denied the informational privacy right which necessarily accompanies said choice. Otherwise, using these privacy tools would be a feckless exercise, such that if, for instance, a user uploads a photo or any personal information to his or her Facebook page and sets its privacy level at "Only Me" or a custom list so that only the user or a chosen few can view it, said photo would still be deemed public by the courts as if the user never chose to limit the pho o visibility and accessibility. Such position, if adopted, will not only strip these privacy tools of their function but it would also disregard the very intention of the user to keep said photo or information within the confines of his or her private space. (Vivares v. St. Theresa’s College, G.R. No. 202666, Sept. 29, 2014) WRIT OF HABEAS DATA (A.M. No 08-1-16-SC) Definition (Sec. 1) The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. Purpose It bears reiteration that like the Writ of Amparo, habeas data was conceived as a response, given the lack of effective and available remedies, to address the extraordinary rise in the number of killings and enforced disappearances. Its intent is to address violations of or threats to the rights to life, liberty or security as a remedy independently from those provided under prevailing Rules. Writs POLITICAL LAW of Amparo and habeas data will not issue to protect purely property or commercial concerns nor when the grounds invoked in support of the petitions therefor are vague or doubtful. Employment constitutes a property right under the context of the due process clause of the Constitution. It is evident that re ponden reservations on the real reasons for her transfer - a legitimate concern respecting the terms and conditions of one employment - are what prompted her to adopt the extraordinary remedy of habeas data. (Manila Electric Company v. Lim, G.R. No. 184679, Oct. 5, 2010) Who May File (P-SCP-R) (Sec. 2) 1. Any person whose right to Privacy is threatened 2. In case of extrajudicial disappearance or killings: a. Spouse, Children and Parents b. Any ascendant, descendant or collateral Relative of the aggrieved party within the fourth civil degree of consanguinity or affinity in default of those mentioned in the preceding paragraph. National Bilibid Inmates The right of a convicted national inmate to his or her privacy runs counter to the state interest of preserving order and security inside our prison systems. There is no longer any reasonable expectation of privacy when one is being monitored and guarded at all hours of the day. Unless there is compelling evidence that a public employee engaged in the gathering, collecting or storing of data or information on the convicted national inmate has committed an unlawful act which threatens the life of the inmate, a petition for the writ of habeas data cannot prosper (In the Matter of the Petition for Writ of Habeas Corpus/Data v. De Lima, G.R. Nos. 215585 & 215768, Sept. 8, 2020). F. FREEDOM OF SPEECH AND EXPRESSION No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. (PHIL. CONST., art. III, § 4) 1. CONCEPT Page 179 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Freedom of expression has gained recognition as a fundamental principle of every democratic government, and given a preferred right that stands on a higher level than substantive economic freedom or other liberties. In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our constitutional system. This right was elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable condition for nearly every other form of freedom. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) a. Continuum of Thought, Speech, Expression, and Speech Acts Speech may be said to be inextricably linked to freedom itself as the right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought. (Diocese of Bacolod v. COMELEC, G.R. No. 205728, Jan. 21, 2015, citing Bernas from the Records of the 1987 Constitutional Convention) Communication is an essential outcome of protected speech. Communication exists when (1) a speaker, seeking to signal others, uses conventional actions because he or she reasonably believes that such actions will be taken by the audience in the manner intended; and (2) the audience so takes the actions. In communicative action, the hearer may respond to the claims by either accepting the speech ac claims or opposing them with criticism or requests for justification Speech is not limited to vocal communication. Conduct is treated as a form of speech sometimes referred to as mbolic peech, such that when peech and non peech elements are combined in the same course of conduct, the communicative element of the conduct may be sufficient to bring into play the right to freedom of expression. The right to freedom of expression, thus, applies to the entire continuum of speech from utterances made to conduct enacted, and even to inaction itself as a symbolic manner of communication. POLITICAL LAW (Diocese of Bacolod v. COMELEC, G.R. No. 205728, Jan. 21, 2015) Scope The scope of freedom of extends protection to: 1. Written or spoken words 2. Symbolic speech 3. Motion pictures (Diocese of Bacolod v. COMELEC, G.R. No. 205728, Jan. 21, 2015) Includes the Right to be Silent Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights that guarantees to the individual the liberty to utter what is in his mind also guarantees to him the liberty not to utter what is not in his mind. (Diocese of Bacolod v. COMELEC, G.R. No. 205728, Jan. 21, 2015) Protects Speech, Print and Assembly The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects (1) speech, (2) print and (3) assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Protects Media, Whether Print or Broadcast The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to speech or publications that are entertaining as well as instructive or informative. All forms of media, whether print or broadcast, are entitled to the broad protection of the clause on freedom of speech and of expression. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) b. Purposes of Free Speech Doctrines The constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Page 180 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 There are several theories and schools of thought that strengthen the need to protect the basic right to freedom of expression: a. The right of the people to participate in public affairs, including the right to criticize government actions. Speech that promotes dialogue on public affairs, or airs out grievances and political discontent, should thus be protected and encouraged. b. Free speech should be encouraged under the concept of a market place of ideas based on the theory that the ultimate good desired is better reached by the free trade in ideas. c. Free speech involves self-expression that enhances human dignity. This right is a means of assuring individual self-fulfillment, among others. d. Expression is a marker for group identity. Free speech must be protected as the vehicle to find those who have similar and shared values and ideals, to join together and forward common goals. e. The Bill of Rights, free speech included, is supposed to protect individuals and minorities against majoritarian abuses perpetrated through the framework of democratic governance. f. Free speech must be protected under the afe al e heor . Thi pro ide ha nonviolent manifestations of dissent reduce the likelihood of violence. Free speech must, thus, be protected as a peaceful means of achieving one goal, con idering he po ibility that repression of nonviolent dissent may spill over to violent means just to drive a point. (Diocese of Bacolod v. COMELEC, G.R. No. 205728, Jan. 21, 2015) c. Balance Between Unbridled Expression and Liberty From the language of Sec. 4, the right to free speech and a free press is not susceptible of any limitation. But the realities of life in a complex society preclude a literal interpretation of the provision prohibiting the passage of a law that would abridge such freedom. For freedom of expression is not an absolute, nor is it an unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) POLITICAL LAW Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or society. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) The freedom of expression, as with the other freedoms encased in the Bill of Rights, is, however, not absolute. It may be regulated to some extent to serve important public interests, some forms of speech not being protected. The limits of the freedom of expression are reached when the expression touches upon matters of essentially private concern. The constitutional guarantee obviously was not intended to give immunity for every possible use of language. The freedom to express one sentiments and belief does not grant one the license to vilify in public the honor and integrity of another. Any sentiments must be expressed within the proper forum and with proper regard for the rights of others. (Soriano v. Laguardia, G.R. No. 164785, April 29, 2009) 2. TYPES OF REGULATION a. Prior Restraint and Subsequent Punishment PRIOR RESTRAINT (CENSORSHIP) Concept Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Essence of Censorship The Session Law of Minnesota mandated the abatement, as public nuisances, of malicious, scandalous, and defamatory publications. After publishing articles that criticized certain local public officials and personalities, The Saturday Press, owned by the petitioner Near, was enjoined from further publication. The court held that the Page 181 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter...and unless the owner or publisher is able to disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is of the essence of censorship. (Near v. Minnesota, 283 U.S. 697, June 1, 1931; Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Presumed Invalid and Unconstitutional General Rule: Any system of prior restraints of expression comes to court bearing a heavy Presumption against its constitutional validity. The Government thus carries a heavy burden of showing justification for in enforcement of such restraint. There, thus a reversal of the normal presumption of validity that inheres in every legislation. (SWS v. COMELEC, G.R. No. 147571, May 5, 2001) Exception: The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the rights of free speech and free press. For supervision or regulation of the operations of media enterprises is scarcely conceivable without such accompanying limitation. Thus, the applicable rule is the general, time-honored one that a statute is presumed to be constitutional and that the party asserting its unconstitutionality must discharge the burden of clearly and convincingly proving that assertion. (National Press Club v. COMELEC, G.R. No. 102653 March 5, 1992) Any prior restraint upon the freedom of the press bears a heavy presumption against its constitutionality. In other words, the government POLITICAL LAW must clearly make out a case to overcome this presumption, which it failed to do in this case. The word ec ri is so broad that it should not be used to abrogate the fundamental law. The publication would not cause an inevitable, immediate, and direct event that would imperil the safety of the American forces, such that there was no grave and irreparable danger. The US Supreme Court also held that the 1st Amendment does not tolerate prior restraints predicated upon beliefs that untoward consequences may result therefrom. The press must be left free to publish news, whatever the source, without censorship or restraint because only a free and unrestrained press can effectively expose government deception to the people. (New York Times v. United States, 403 U.S. 713, June 30, 1971) Government Acts Precluded Freedom from prior restraint precludes governmental acts that: 1. Requires approval of a proposal to publish; 2. Licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and 3. Injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) When Prohibition on Prior Restraint Does Not Apply (WOS) 1. When the nation is at War. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) (e.g., The government can prevent publication about the number or location of its troops) 2. Obscene publications 3. Security of community life may be protected against incitements to acts of violence or overthrow by force of orderly government. (Near v. Minnesota, 283 U.S. 697, June 1, 1931) SUBSEQUENT PUNISHMENT Page 182 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Concept The aspect of freedom from liability subsequent to publication precludes liability for completed publications of views traditionally held innocent. Otherwise, the prohibition on prior restraint would be meaningless, as the unrestrained threat of subsequent punishment, by itself, would be an effective prior restraint. Thus, opinions on public issues cannot be punished when published, merely because the opinions are novel or controversial, or because they clash with current doctrines. This fact does not imply that publishers and editors are never liable for what they print. Such freedom gives no immunity from laws punishing scandalous or obscene matter, seditious or disloyal writings, and libelous or insulting words. As classically expressed, the freedom of the press embraces at the very least the freedom to discuss truthfully and publicly matters of public concern, without previous restraint or fear of subsequent punishment. For discussion to be innocent, it must be truthful, must concern something in which people in general take a healthy interest, and must not endanger some important social end that the government by law protects. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) b. Content Based and Content Neutral It is not enough to determine whether a challenged governmental act constitutes some form of restraint on freedom of speech. A distinction has to be made whether the restraint is (1) a contentneutral regulation, or (2) a content-based restraint or censorship. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) CONTENT-BASED REGULATION Concept A content-based restraint or censorship is where the restriction is based on the subject matter of the utterance or speech. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Subject to the Clear and Present Danger Rule POLITICAL LAW A governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster, with the government having the burden of overcoming the presumed unconstitutionality. Unless the government can overthrow this presumption, the content-based restraint will be struck down. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Clear and Present Danger Test Whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Requisites of a Valid Content-Based Regulation With respect to content-based restrictions, the government must: (HIIR) 1. The government must show the type of Harm the speech sought to be restrained would bring about especially the gravity and the imminence of the threatened harm otherwise the prior restraint will be invalid; 2. The regulation which restricts the speech content must serve an important or substantial government Interest, which is unrelated to the suppression of free expression; and 3. The Incidental Restriction on speech must be no greater than what is essential to the furtherance of that interest. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) CONTENT-NEUTRAL REGULATION Concept A content-neutral regulation is merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under welldefined standards. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Subject to Intermediate Approach When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is required for its validity. Page 183 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Because regulations of this type are not designed to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but an intermediate approach somewhere between the mere rationality that is required of any other law and the compelling interest standard applied to content-based restrictions. The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Intermediate Approach: O B Test for a Valid Content-Neutral Regulation A governmental regulation is sufficiently justified if: (CISUNOG) 1. It is within the Constitutional power of the Government; 2. It furthers an Important or Substantial governmental interest; 3. The governmental interest is Unrelated to the suppression of free expression; and 4. The incident restriction on alleged freedom of speech & expression is NO Greater than is essential to the furtherance of that interest. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) c. Incitement and Advocacy General Rule: The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation. Exception: Except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. (Brandenburg v. Ohio, 395 U.S. 444, June 9, 1969) Further, it is incumbent on the court to make clear in some fashion that the advocacy must be of action and not merely abstract doctrine. (Yates v. United States, 354 U.S. 298, June 17, 1957) d. Specificity of Regulation and Overbreadth Doctrine POLITICAL LAW Specificity of Regulation and Vagueness Doctrine The vagueness doctrine is an analytical tool developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. A facial challenge is allowed to be made to a vague statute and also to one which is overbroad because of possible "'chilling effect' on protected speech that comes from statutes violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or vague law thus chills him into silence. (Lagman v. Medialdea, G.R. No. 231658) It is best to stress that the vagueness doctrine has a special application only to free-speech cases. They are not appropriate for testing the validity of penal statutes. (Lagman v. Medialdea, G.R. No. 231658) A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible 'chilling effect' upon protected speech. The theory is that when statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity. This rationale does not apply to penal statutes. In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing 'on their faces' statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. As Page 184 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 has been pointed out, vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated only 'as applied' to a particular defendant. "On its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected. It constitutes a departure from the ca e and con ro er requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts. (Estrada v. Sandiganbayan, G.R. No. 148560, Nov. 19, 2001) Overbreadth Doctrine Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms. Prohibiting placing of campaign decals on private cars is overbroad, and thus invalid prohibition. (Adiong v. COMELEC, G.R. No. 103956 March 31, 1992) Banning the publishing of survey results is also overbroad because it does not meet the O Brien test, since it suppresses one type of expression while allowing others like editorials. (SWS v. COMELEC, G.R. No. 147571, May 5, 2001) Summary of Rules General Rule: The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapplicable for testing the validity of penal statutes. Rationale: All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect or the fear of possible prosecution. But to prevent the State from legislating criminal laws because they instill such kind of fear is to render the state powerless in addressing and penalizing socially harmful conduct. Exceptions: 1. When a penal statute is challenged as applied 2. When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the overbreadth and vagueness doctrine is acceptable. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) The facial challenge has expanded its scope to cover statutes not only regulating free speech, but also those involving religious freedom, and other fundamental rights because of the expanded scope of judicial power. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014) As Applied v. Facial Challenge Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities. General Rule: In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any constitutional ground absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third persons not before the court. This rule is also known as the prohibition against thirdparty standing. Exception: A petitioner may for instance mount a "facial" challenge to the constitutionality of a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on grounds of overbreadth or vagueness of the statute. Rationale: To counter the "chilling effect" on protected speech that comes from statutes Page 185 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 violating free speech. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) e. Speech Regulation in Relation to Election R.A. NO. 9006: FAIR ELECTION ACT Purpose Republic Act No. 9006 was adopted with the end in mind of guaranteeing or ensuring equal opportunity for public service and to this end, stipulates mechanisms for the supervision or regulation of the enjoyment or utilization of all franchises or permits for the operation of media of communication or information. The Fair Election Act provides means to realize the policy articulated in Article II, Section 26 of the 1987 Constitution to guarantee equal access to opportunities for public service. (SWS v. COMELEC, G.R. No. 208062, April 07, 2015) Sec. 5.4 of R.A. 9006 Unconstitutional §5.4 lays a prior restraint on freedom of speech, expression, and the press prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election seven (7) days before a local election. Sec. 5.4 fails to meet criterion [3] of the O Brien test because the causal connection of expression to the asserted governmental interest makes such interest not unrelated to the suppression of free expression. By prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election, §5.4 actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other opinion makers. In effect, §5.4 shows a bias for a particular subject matter, if not viewpoint, by preferring personal opinion to statistical results. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restriction of free expression is only incidental, §5.4 nonetheless fails to meet criterion [4] of the O Brien test, namely, that the restriction be not greater than is necessary to further the governmental interest. As already stated, §5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon effect, j nking of weak or lo ing candidates, and resort to the form of election cheating called dagdag-ba a . Praiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such speech creates the danger of such evils. To summarize then, §5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression. (SWS v. COMELEC, G.R. No. 147571, May 5, 2001) COMELEC Resolution Constitutional No. 9674 Section 5. Election Surveys. – 5.2. During the election period, any person, natural as well as juridical, candidate or organization who publishes a survey must likewise publish the following information: a. The name of the person, candidate, party or organization who commissioned or paid for the survey. SWS, Pulse Asia and other survey firms of similar circumstance are required to submit the names of all commissioners and payors of surveys. The submission shall include the names of all "subscribers" of those published surveys. Such information/data shall be for the exclusive and confidential use of the Commission. All surveys published subsequent to the promulgation of this Resolution must be accompanied by all the information required in Republic Act no. 9006, including the names of commissioners, payors and subscribers. A violation of these rules shall constitute an election offense as provided in Republic Act no. 9006, or the Fair Election Act. COMELEC Resolution No. 9674 is valid. The names of those who commission or pay for election Page 186 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 surveys, including subscribers of survey firms, must be disclosed pursuant to Section 5.2(a) of the Fair Elections Act. This requirement is a valid regulation in the exercise of police power and effects the constitutional policy of guaranteeing equal access to opportunities for public service. Section 5.2(a) requirement of disclosing subscribers does not curtail pe i ioner free speech rights. a) Appl ing he O Brien Test, first, the text of Section 5.2(a) of the Fair Elections Act supports the inclusion of subscribers among those persons who paid for the survey. Thus, Resolution No. 9674 is a regulation finding basis in statute. b) Second, not only an important or substantial state interest but even a compelling one rea onabl gro nd Re ol ion No. 9674 inclusion of subscribers to election surveys. Thus, regardless of whether an intermediate or strict standard is used, Resolution No. 9674 passes scrutiny. c) Third, while it does regulate expression (i.e., pe i ioner p blica ion of elec ion r e ), i does not go so far as to suppress desired expression. There is neither prohibition nor censorship specifically aimed at election surveys. The freedom to publish election surveys remains. All Resolution No. 9674 does is articulate a regulation as regards the manner of publication, that is, that the disclosure of those who commissioned and/or paid for, including those subscribed to, published election surveys must be made. d) Lastly, Resolution No. 9674 is narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and considering the primacy of the guarantee of free expression and is demonstrably the least restrictive means to achieve that object. (SWS v. COMELEC, G.R. No. 208062, April 07, 2015) COMELEC Resolution No. 9674 Not a Prior Restraint Resolution No. 9674 poses no prohibition or censorship specifically aimed at election surveys. Apart from regulating the manner of publication, survey companies remain free to publish election surveys. The disclosure requirement kicks in only upon, not prior to, publication. (SWS v. COMELEC, G.R. No. 208062, April 07, 2015) Public Election Surveys May Be Subject to Regulation POLITICAL LAW Election surveys, on their face, do not state or allude to preferred candidates. As a means, election surveys are ambivalent. Election surveys thus become unambiguous only when viewed in relation to the end for which they are employed. To those whose end is to get a candidate elected, election surveys, when limited to their own private consumption, are a means to formulate strategy. When published, however, the tendency to shape voter preferences comes into play. In this respect, published election surveys partake of the nature of election propaganda. It is then declarative speech in the context of an electoral campaign properly subject to regulation. (SWS v. COMELEC, G.R. No. 208062, April 07, 2015) Effects of Election Surveys on Voter Behavior 1. Bandwagon effect where electors rally to support the candidate leading in the polls. 2. Underdog effect where electors rally to support the candidate trailing in the polls. 3. Motivating effect where individuals who had not intended to vote are persuaded to do so. 4. Demotivating effect where voters abstain from voting out of certainty that their candidate or party will win. 5. Strategic voting where voting is influenced by the chances of winning. 6. Free-will effect where voters cast their ballots to prove the polls wrong. (SWS v. COMELEC, G.R. No. 208062, April 07, 2015) REGULATION OF SPEECH IN THE CONTEXT OF ELECTORAL CAMPAIGNS Regulation of Speech Made by Candidates or the Members of Their Political Parties Valid if Content-Neutral Regulation of speech in the context of electoral campaigns made by candidates or the members of their political parties or their political parties may be regulated as to time, place, and manner (contentneutral regulation). (Diocese of Bacolod v. COMELEC, G.R. No. 205728, Jan. 21, 2015) Regulation of Speech of Persons Who Are Not Candidates or Who Do Not Speak as Members of a Political Party - Unconstitutional Regulation of speech in the context of electoral campaigns made by persons who are not candidates or who do not speak as members of a Page 187 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 political party which are, taken as a whole, principally advocacies of a social issue that the public must consider during elections is unconstitutional. Such regulation is inconsistent with the guarantee of according the fullest possible range of opinions coming from the electorate including those that can catalyze candid, uninhibited, and robust debate in the criteria for the choice of a candidate. COMELEC does not have the authority to regulate the enjoyment of the right to freedom of expression exercised by citizens who are neither electoral candidates nor sponsored by any electoral candidate. A tarpaulin that expresses a political opinion constitutes political speech. Speech that promotes dialogue on public affairs, or airs out grievances and political discontent, should be protected and encouraged. However, this does not mean that there cannot be a specie of speech by a private citizen which will not amount to an election paraphernalia to be validly regulated by law. (Diocese of Bacolod v. COMELEC, G.R. No. 205728, Jan. 21, 2015) Test for a Valid Regulation of Election Paraphernalia Directed to Private Persons Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons who are not candidates or who do not speak as members of a political party if they are not candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal object the endorsement of a candidate only. The regulation should be: (LR-NT-LR) 1. Provided by Law; 2. Reasonable; 3. Narrowly Tailored to meet the objective of enhancing the opportunity of all candidates to be heard and considering the primacy of the guarantee of free expression; and 4. Demonstrably the Least Restrictive means to achieve that object. The regulation must only be content-neutral, i.e. with respect to the time, place, and manner of the rendition of the message. In no situation may the speech be prohibited or censored on the basis of its content. For this purpose, it will not matter whether the speech is made with or on private POLITICAL LAW property. (Diocese of Bacolod v. COMELEC, G.R. No. 205728, Jan. 21, 2015) Regulation on Size Limitations of Tarpaulins A Content-Based Regulation Size limitations during elections hit at a core part of expression. The content of the tarpaulin is not easily divorced from the size of its medium. A content-based regulation, however, bears a heavy presumption of invalidity and is measured against the clear and present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague. With the clear and present danger test, respondent COMELEC failed to justify the regulation. There is no compelling and substantial state interest endangered by the posting of the tarpaulin as to justify curtailment of the right of freedom of expression. There is no reason for the state to minimize the right of noncandidate petitioners to post the tarpaulin in their private property. The size of the tarpaulin does not affect anyone el e constitutional rights. (Diocese of Bacolod v. COMELEC, G.R. No. 205728, Jan. 21, 2015) Prohibition on Posting of Election Campaign Materials During an Election Period in PUVs and Transport Terminals A Prior Restraint; Unconstitutional COMELEC Resolution No. 9615: Posting an election campaign material during an election period in PUVs and transport terminals carries with it the penalty of revocation of the public utility franchise and shall make the owner thereof liable for an election offense. The prohibition constitutes a clear prior restraint on the right to free expression of the owners of PUVs and transport terminals. As a result of the prohibition, owners of PUVs and transport terminals are forcefully and effectively inhibited from expressing their preferences under the pain of indictment for an election offense and the revocation of their franchise or permit to operate. Resolution No. 9615 are content-neutral regulations since they merely control the place where election campaign materials may be posted. However, the prohibition is still repugnant to the Page 188 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 free speech clause as it fails to satisfy all of the requisites for a valid content-neutral regulation (O Brien Test). Applying the O Brien Test, it is conceded that Resolution No. 9615 furthers an important and substantial governmental interest, i.e., ensuring equal opportunity, time and space among candidates aimed at the holding of free, orderly, honest, peaceful, and credible elections. It is further conceded that the governmental interest in imposing the said prohibition is unrelated to the suppression of free expression. However, Resolution No. 9615 is not within the constitutionally delegated power of the COMELEC, thus fails the first criterion of the O Brien Test. (1UTAK v. COMELEC, G.R. No. 206020, April 14, 2015) COMELEC May Only Regulate the Franchise or Permit to Operate and Not the Ownership per se of PUVs and Transport Terminals Section 4, Article IX-C of the Constitution only grants COMELEC supervisory and regulatory powers over the enjoyment or utilization of all franchises or permits for the operation, inter alia, of transportation and other public utilities. The COMELEC constitutionally delegated powers of supervision and regulation do not extend to the ownership per se of PUVs and transport terminals, but only to the franchise or permit to operate the same. There is a marked difference between the franchise or permit to operate transportation for the use of the public and the ownership per se of the vehicles used for public transport. In the same manner, the COMELEC does not have the constitutional power to regulate public transport terminals owned by private persons. (1-UTAK v. COMELEC, G.R. No. 206020, April 14, 2015) Resolution No. 9615 Not Justified Under the Captive Audience Doctrine The captive-audience doctrine states that when a listener cannot, as a practical matter, escape from intrusive speech, the speech can be restricted. The captive-audience doctrine recognizes that a listener has a right not to be exposed to an unwanted message in circumstances in which the communication cannot be avoided. A regulation based on the captive-audience doctrine is in the guise of censorship, which undertakes selectively POLITICAL LAW to shield the public from some kinds of speech on the ground that they are more offensive than others. Such selective restrictions have been upheld only when the speaker intrudes on the privacy of the home or the degree of captivity makes it either impossible or impractical for the unwilling viewer or auditor to avoid exposure. A government regulation based on the captiveaudience doctrine may not be justified if the supposed cap i e a dience may avoid exposure to the otherwise intrusive speech. The prohibition under Resolution No. 9615 is not justified under the captive- audience doctrine; the commuters are not forced or compelled to read the election campaign materials posted on PUVs and transport terminals. Nor are they incapable of declining to receive the messages contained in the posted election campaign materials since they may simply avert their eyes if they find the same unbearably intrusive. (1-UTAK v. COMELEC, G.R. No. 206020, April 14, 2015) Prohibition on Posting of Decals and Stickers in Mobile Places Unconstitutional COMELEC prohibition on posting of decals and stickers on mobile places whether public or private except in designated areas provided for by the COMELEC itself is null and void on constitutional grounds. The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any substantial government interest. There is no clear public interest threatened by such activity so as to justify the curtailment of the cherished ci i en right of free speech and expression. The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else. (Adiong v. COMELEC, G.R. No. 103956 March 31, 1992) f. Speech Regulation in Relation to Media Page 189 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW Four Aspects of Freedom of the Press 1. Freedom from prior restraint 2. Freedom from punishment subsequent to publication 3. Freedom of access to information 4. Freedom of circulation. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) However, the clear and present danger rule applies to all media, including broadcast, but only when the challenged act is a content-based regulation that infringes on free speech, expression and the press. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Print v. Broadcast Media While all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other print media. Motion Pictures Censorship When the MTRCB classified the movie Kapit sa Patalim as "For-Adults-Only," the Supreme Court dismissed this petition for certiorari solely on the ground that there are not enough votes for a ruling that there was a grave abuse of discretion in the classification. According to U.S. Courts, the three major reasons why broadcast media stands apart from print media are: a. The scarcity of the frequencies by which the medium operates [i.e., airwaves are physically limited while print medium may be limitless]; b. Its "pervasiveness" as a medium; and c. Its unique accessibility to children. According to Philippine jurisprudence, first, the difference in treatment, in the main, is in the regulatory scheme applied to broadcast media that is not imposed on traditional print media, and narrowly confined to unprotected speech (e.g., obscenity, pornography, seditious and inciting speech), or is based on a compelling government interest that also has constitutional protection, such as national security or the electoral process. The test to determine whether freedom of expression may be limited is the clear and present danger of an evil of a substantive character that the State has a right to prevent. Such danger must not only be clear but also present. a. There should be no doubt that what is feared may be traced to the expression complained of. The causal connection must be evident. b. Also, there must be reasonable apprehension about its imminence. The time element cannot be ignored. Nor does it suffice if such danger be only probable. Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has consistently held that the clear and present danger test applies to content-based restrictions on media, without making a distinction as to traditional print or broadcast media. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Clear and Present Danger Rule: Applicable to Broadcast Media IF Content-Based Regulation All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule. (Eastern Broadcasting v. Dans, G.R. No. L-59329 July 19, 1985) The basic postulate, wherefore, is that where the movies, theatrical productions radio scripts, television programs, and other such media of expression are concerned included as they are in freedom of expression censorship, especially so if an entire production is banned, is allowable only under the clearest proof of a clear and present danger of a substantive evil to public morals, public health or any other legitimate public interest. (Gonzales v. Katigbak, G.R. No. L-69500 July 22, 1985) A limited intrusion into a person's privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute of a public character. The right of privacy cannot be invoked resist publication and dissemination of matters of public interest. The interest sought to be protected by the right of privacy is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern. Page 190 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 (Ayer v. Capulong, G.R. No. 82380 April 29, 1988, On the proposed motion picture entitled "The Four Day Revolution" involving Sen. Juan Ponce Enrile) Television Censorship PD No. 1986 gives the MTRCB the power to screen, review and examine all "television programs." By the clear terms of the law, the Board has the power to approve, delete and/or prohibit the exhibition and/or television broadcast of television programs. The law also directs the MTRCB to apply contemporary Filipino cultural values as standard to determine those which are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines and its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime. It is significant to note that in Iglesia ni Cristo v. CA, the Court declared that freedom of religion has been accorded a preferred status by the framers of our fundamental laws. Yet despite the fact that freedom of religion has been accorded a preferred status, still the Court, did not exempt the Iglesia ni Cri o religious program from pe i ioner review power. If the Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction and review power of petitioner MTRCB, with more reason, there is no justification to exempt therefrom "The Inside Story" which, is protected by the constitutional provision on freedom of expression and of the press, a freedom bearing no preferred status. Thus, MTRCB has power to review both religious shows like the INC program, as well as public affairs and documentary programs like The Inside Story. (MTRCB v. ABS-CBN, G.R. No. 155282, Jan. 17, 2005) Live TV coverage of a criminal case may be allo ed... mere fear of possible undue influence is not tantamount to actual prejudice resulting in the deprivation of the right to a fair rial. (In Re: Petition For Radio And TV Coverage Of The Multiple Murder Case Against Zaldy Ampatuan et al., A.M. No. 10-11-5-SC, June 14, 2011) POLITICAL LAW Radio Censorship In Santiago v. Far Eastern Broadcasting, the case hinges on whether the petitioner has a clear legal right to broadcast any speech over one of the radio stations owned and operated by the respondent without first submitting the manuscript, and whether there is a corresponding duty devolved by law upon the respondent to permit the petitioner to do so. The Court ruled that it is not the duty of the respondent as a public service corporation to broadcast speeches without requiring the submission of the manuscript thereof in advance, but that, on the contrary, the laws and regulations expressly authorize the respondent to make such requirement. a. Section 2 of Act No. 3180, which is the franchise of the respondent corporation, provides that the broadcasting service shall be open to the general public subject to the general regulations of the grantee for the allotment of time and the class of communications acceptable for broadcasting. b. Commonwealth Act No. 98, where the Secretary of the Interior "shall examine all programs, sustaining or sponsored, of all broadcasting stations," with the power "to eliminate or cancel from the program such number or parts thereof as in his opinion are neither moral, educational nor entertaining, and prejudicial to public interest." c. Department Order No. 13, which requires all broadcasting stations to submit daily to the Secretary of the Interior at least twenty-four hours in advance of the actual broadcasting hour, two copies of all programs to be broadcasted by the stations. Further, it is provided that if a program contains any speeches, ... copies of these or a gist thereof, may be required by the Secretary of the Interior to be submitted together with the program. (Santiago v. Far Eastern Broadcasting, G.R. No. L-48683, Nov. 8, 1941) 3. JUDICIAL ANALYSIS, PRESUMPTIONS AND LEVELS AND TYPES OF SCRUTINY Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three tests. As articulated in our jurisprudence, the Court has applied either the dangerous tendency doctrine or clear and present danger test to resolve free speech challenges. Page 191 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 More recently, the Court has concluded that it has generally adhered to the clear and present danger test. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) a. Clear and Present Danger Test Concept This test is used for statements against lower courts. Whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. Clear connotes a causal connection with the danger of the substantive evil arising from the utterance questioned. Pre en refers to the time element that is identified with imminent and immediate danger. (Gonzales v. COMELEC, G.R. No. L-27833, April 18, 1969) Applies to Content-Based Regulation; Presumed Unconstitutional A governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster, with the government having the burden of overcoming the presumed unconstitutionality. Unless the government can overthrow this presumption, the content-based restraint will be struck down. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) As Applied to Broadcast Media Radio station DYRE was summarily closed for national security reasons because it allegedly aired subversive programs. The Court ruled that all forms of media are entitled to the protection of the freedom of speech and expression clause. The clear and present danger test may be applied to test the limits of free speech. That the words are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. The SC recognized that the government also has a right to be protected against POLITICAL LAW broadcasts that incite the listeners to violently overthrow it. However, the clear and present danger test is not an all-embracing interpretation that is applicable to all utterances in all forums. Freedom of television and radio broadcasting is lesser in scope than the freedom accorded to newspaper and print media. Radio broadcasting receives the most limited protection from the free expression clause. Broadcast media have a uniquely pervasive presence in the lives of all citizens it reaches even the privacy of the home. Broadcast media is uniquely accessible to all, even children selectivity is more difficult in radio and TV. In other words, the audiences of radio and TV have lesser opportunity to cogitate, analyze, and reject the utterances. (Eastern Broadcasting v. Dans Jr., G.R. No. L-59329, July 19, 1985) Applied to Cases involving the C Power of Contempt The power of contempt should be balanced with the right to freedom of expression, especially when it may have the effect of stifling comment on public matters. The power to punish for contempt is not exercised without careful consideration of the circumstances of the allegedly contumacious act, and the purpose of punishing the act. Especially where freedom of speech and press is involved, this Court has given a restrictive interpretation as to what constitutes contempt. An article which does not impede, obstruct, or degrade the administration of justice is not contumacious. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent. It is a question of proximity and degree. (Roque v. Chief of Staff, G.R. No. 214986, February 15, 2017) b. Dangerous Tendency Rule Concept If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it Page 192 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 necessary that the language used be reasonably calculated to incite persons to acts of force, violence or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil the utterance be to bring about the substantive evil which the legislative body seeks to prevent. (Cabansag v. Fernandez, G.R. No. L-8974, Oct. 18, 1957) This is used for statements against the Supreme Court and permits the application of restrictions when: a. There is a rational connection between the speech restrained and the danger apprehended; and b. The tendency of one to create the other is shown. (Gonzales v. COMELEC, G.R. No. L27833, April 18, 1969) Applied to the Cases Involving Independence of the Court The "dangerous tendency" rule has been adopted in cases where extreme difficulty is confronted determining where the freedom of expression ends and the right of courts to protect their independence begins. There must be a remedy to borderline cases and the basic principle of this rule lies in that the freedom of speech and of the press, as well as the right to petition for redress of grievance, while guaranteed by the constitution, are not absolute. They are subject to restrictions and limitations, one of them being the protection of the courts against contempt. (Cabansag v. Fernandez, G.R. No. L-8974, Oct. 18, 1957) Applied to Seditious Speech Citizen Perez made this remark at a political discussion at a town municipio: and the Filipinos, like myself, must use bolos for cutting off Wood head for having recommended a bad thing for the Philippine . The court held that criticism, no matter how severe, on the Executive, the Legislature, and the Judiciary, is within the range of liberty of speech, unless the intention and effect be seditious. In this case, the Court found a seditious tendency which could easily produce disaffection among the people and a state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws. (People v. Perez, G.R. No. L-21049, Dec. 22, 1923; Bernas, POLITICAL LAW The 1987 Constitution of the Republic of the Philippines, 2009) c. Balancing of Interests Test Concept The balancing of interests test is used as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation of type of situation. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Republic Act 4880 among other things prohibits the too early nomination of political candidates and limits the period for partisan political activity. Its purpose is to prevent the debasement of the political process. In determining the validity of the law, free speech as a social value must be weighed against the political process as a social value. (Gonzales v. COMELEC, G.R. No. L-27833, April 18, 1969) The dangerous tendency rule and the clear and present danger rule were evolved in the context of prosecution for seditious speech. They are thus couched in terms of degree of evil and proximity of the evil. But not all evils easily lend themselves, like sedition to measurement of proximity and degree. For legislation therefore whose object is not the prevention of evil measurable in terms of proximity and degree, another test had to be evolved. The balancing of interests serves this purpose. It is used, for instance, for commercial speech. (People v. Perez, G.R. No. L-21049, Dec. 22, 1923; Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Factors to Consider Although the urgency of the public interest sought to be secured by Congressional power restricting the individual's freedom, and the social importance and value of the freedom so restricted, are to be judged in the concrete, not on the basis of abstractions, a wide range of factors are necessarily relevant in ascertaining the point or line of equilibrium. Among these are: a. The social values and importance of the specific aspect of the particular freedom restricted by the legislation; Page 193 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 b. The specific thrust of the restriction, i.e., whether the restriction is direct or indirect, whether or not the persons affected are few; c. The value and importance of the public interest sought to be secured by the legislation the reference here is to the nature and gravity of the evil which Congress seeks to prevent; d. Whether the specific restriction decreed by Congress is reasonably appropriate and necessary for the protection of such public interest; and e. Whether the necessary safeguarding of the public interest involved may be achieved by some other measure less restrictive of the protected freedom. (J. Castro, Separate Opinion in Gonzales v. COMELEC, G.R. No. L27833, April 18, 1969) Summary TEST CRITERION Clear and Present Danger Whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. Dangerous Tendency If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. There should be a rational connection between the speech restrained and the danger apprehended and the tendency of one to create the other is shown. Balancing Interests of Courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation of type of situation. 4. SPECIAL TOPICS IN FREE EXPRESSION CASES a. Hate Speech and Fighting Words HATE SPEECH Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful. (Matal v. Tam, 582 U.S., June 19, 2017) Speech that carries no meaning other than the expression of hatred for some group, such as a particular race, esp. in circumstances in which the communication is likely to provoke violence. (Black Law Dictionary, 10th ed.) No Hate Speech Exception to Free Speech The proudest boast of our free speech jurisprudence is that we protect the freedom to express he thought that we ha e. (Matal v. Tam, 582 U.S., June 19, 2017) FIGHTING WORDS Words which by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. (Chaplinsky v. New Hampshire, 315 U.S. 568, March 9, 1942) Test The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. (Chaplinsky v. New Hampshire, 315 U.S. 568, March 9, 1942) Fighting Words No Constitutional Protection IF Defamatory or Tortious "Fighting words" are not entitled to constitutional protection and may be penalized. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Fighting words are not subject to subsequent punishment unless they are defamatory or tortious. Fighting words refer to profane or vulgar words that are likely to provoke a violent response from an audience. Profane or vulgar words like "Fuck the Page 194 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 draft," when not directed at any particular person, ethnic or religious group, are not subject to subsequent punishment. As aptly stated, "one man vulgarity may be another man lyric." If profane or vulgar language like "Fuck the draft" is not subject to subsequent punishment, then with more reason it cannot be subject to prior restraint. Without a law punishing the actual utterance or publication of an expression, an expression cannot be subject to prior restraint because such expression is not unlawful or illegal. (J. Carpio, Separate Opinion in Soriano v. Laguardia, G.R. No. 164785, April 29, 2009; citing Cohen v. California, 403 U.S. 15, June 7, 1971) Summary HATE SPEECH Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful. Protected Speech FIGHTING WORDS Words which by their very utterance, inflict injury or tend to incite an immediate breach of the peace. Unprotected Speech (if defamatory or tortious) b. Defamation and Libel Definition A libel is a public and malicious imputation of a crime, or of a vice or a defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. (REVISED PENAL CODE, art. 353) Libel Not a Constitutionally Protected Speech Libel is not a constitutionally protected speech and that the government has an obligation to protect private individuals from defamation. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) Elements The elements of libel are: (APIM) a. The Allegation of a discreditable act or condition concerning another; b. Publication of the charge; c. Identity of the person defamed; and d. Existence of Malice. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) Proof that Statement is False In the absence of proof that the defendant knew that the statement was false or published with reckless disregard of whether or not it was true, the defendant cannot be held liable for libel. (Guingguing v. Court of Appeals, G.R. No. 128959, Sept. 30, 2005) When is Malice Present There is malice when the author of the imputation is prompted by ill-will or spite and speaks not in response to duty but merely to injure the reputation of the person who claims to have been defamed. (Alonzo v. CA, G.R. No. 110088, Feb. 1, 1995) Every Defamatory Imputation Presumed Malicious General Rule: Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown. Exceptions: 1. A private communication made by any person to another in the performance of any legal, moral or social duty; and 2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. (REVISED PENAL CODE, art. 354) Doctrine of Fair Commentaries The enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. Page 195 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 The doctrine of fair commentaries means "that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. (Yuchengco v. The Manila Chronicle, G.R. No. 184315, Nov. 25, 2009) Cyberlibel Only the Original Author is Liable Only the original author of the statement should be prosecuted for libel. Because of the unique culture of cyberspace, the inclusion of those who just shared the statement in the case would have a chilling effect upon them. This makes the law overbroad and therefore in violation of freedom of expression. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) Contempt is Akin to a Case of Libel Contempt is akin to a case of libel for both constitute limitations upon freedom of the press or freedom of expression guaranteed by our Constitution. What is considered a privilege in one may likewise be considered in the other. The principle of privileged communications can also be invoked in contempt charges. When a lawyer has become a public figure for being involved in a public issue, the controversy involving such individual becomes a matter of public interest. Therefore, the media has the right to report the disciplinary case as legitimate news. Such will not be considered as a violation of the confidentiality rule in disciplinary proceedings against lawyers. (Atty. Raymund P. Palad v. Lolit Solis, et al., G.R. No. 206691, Oct. 3, 2016) Privileged Communications 1. Absolutely Privileged Communications Those which are not actionable even if the author has acted in bad faith. POLITICAL LAW by public officers in the performance of their duties, and allegations or statements made by the parties or their counsel in their pleadings or motions or during the hearing of judicial proceedings, as well as the answers given by witnesses in reply to questions propounded to them, in the course of said proceedings, provided that said allegations or statements are relevant to the issues, and the answers are responsive or pertinent to the questions propounded to said witnesses. 2. Qualifiedly Privileged Communications Those which contain defamatory imputations but are not actionable unless found to have been made without good intention justifiable motive. To this genre belong "private communications" and "fair and true report without any comments or remark under article 354 of the Revised Penal Code. (Manila Bulletin v. Domingo, G.R. No. 170341, July 5, 2017) While generally every defamatory imputation is presumed malicious, if the communication is privileged, the presumption does not arise. The plaintiff assumes the burden of proving malice. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Requisites of a Qualifiedly Privileged Communication under Article 354, No. 1 of the Revised Penal Code P a C ca In order to prove that a statement falls within the purview of a qualified privileged communication under Article 354, No. 1, the following requisites must concur: (DAG) 1. The person who made the communication had a legal, moral, or social Duty to make the communication, or at least, had an interest to protect, which interest may either be his own or of the one to whom it is made; 2. The communication is Addressed to an officer or a board, or superior, having some interest or duty in the matter, and who has the power to furnish the protection sought; and 3. The statements in the communication are made in Good faith and without malice. (Syhunliong v. Rivera, G.R. No. 200148, June 4, 2014) This classification includes statements made by members of Congress in the discharge of their functions as such, official communications made Page 196 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Group/Class Libel Where the defamation is alleged to have been directed at a group or class, it is essential that the statement must be so sweeping or all-embracing as to apply to every individual in that group or class, or sufficiently specific so that each individual in the class or group can prove that the defamatory statement specifically pointed to him, so that he can bring the action separately, if need be. (Newsweek v. IAC, G.R. No. L-63559, May 30, 1986) If the group is a very large one, then the alleged libelous statement is considered to have no application to anyone in particular, since one might as well defame all mankind. Not only does the group as such have no action; the plaintiff does not establish any personal reference to himself. As the size of these groups increases, the chances for members of such groups to recover damages on tortious libel become elusive. This principle is said to embrace two (2) important public policies: a. First, where the group referred to is large, the courts presume that no reasonable reader would take the statements as so literally applying to each individual member; and b. Second, the limitation on liability would satisfactorily safeguard freedom of speech and expression, as well as of the press, effecting a sound compromise between the conflicting fundamental interests involved in libel cases. (MVRS Publication v. Islamic Da’wah Council of the Philippines, G.R. No. 135306. Jan. 28, 2003) LIBEL AGAINST PUBLIC OFFICIALS AND PUBLIC FIGURES Public Figure Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention. (Gertz v. Welch, 418 U.S. 323, June 25, 1974) Public Official Those who hold governmental office. (Gertz v. Welch, 418 U.S. 323, June 25, 1974) New York Times Standard Actual Malice Public officials/figures must prove that the statement was made with ac al malice in order to POLITICAL LAW recover damages for a defamatory falsehood relating to his official conduct. Actual malice means there was knowledge that it was false or with reckless disregard of whether it was false or not. (NY Times v. Sullivan, 376 U.S. 254, 1964). General Rule: Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown. Exception: If the defamed is a public figure/official, there is no presumption of malice. Instead, the public official/figure defamed m pro e ac al malice. Fair Commentaries These are privileged and constitute a valid defense in an action for libel or slander. When the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order for it to be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred. The insertion of an old picketing footage in a news report was not libelous because it did not convey anything derogatory in nature, and it was actually simultaneously voiced over by the narration of the news report. The report was also merely quoted from the contents and allegations in the petition and is merely a summary of the petition. (GMA Network v. Bustos, G.R. No. 146848, Oct. 17, 2006) LIBEL AGAINST PRIVATE INDIVIDUALS New York Times Standard Not Applicable to Defamed Private Individuals So long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability (less demanding than the New York Times standard actual malice) for a publisher or broadcaster of defamatory falsehood injurious to a private individual. Page 197 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 The States, however, may not permit recovery of presumed or punitive damages when liability is not based on knowledge of falsity or reckless disregard for the truth, and the private defamation plaintiff who establishes liability under a less demanding standard than the New York Times test may recover compensation only for actual injury. (Gertz v. Welch, 418 U.S. 323, June 25, 1974) Rationale Because private individuals characteristically have less effective opportunities for rebuttal than do public officials and public figures, they are more vulnerable to injury from defamation. Because they have not voluntarily exposed themselves to increased risk of injury from defamatory falsehoods, they are also more deserving of recovery. The state interest in compensating injury to the reputation of private individuals is therefore greater than for public officials and public figures. To extend the New York Times standard to media defamation of private persons whenever an issue of general or public interest is involved would abridge to an unacceptable degree the legitimate state interest in compensating private individuals for injury to reputation and would occasion the additional difficulty of forcing courts to decide on an ad hoc basis which publications and broadcasts address issues of general or public interest and which do not. (Gertz v. Welch, 418 U.S. 323, June 25, 1974) c. Sedition and Speech in Relation to Rebellion Seditious Speech is an Unprotected Speech Criticism is permitted to penetrate even to the foundations of Government. Criticism, no matter how severe, on the Executive, the Legislature, and the Judiciary, is within the range of liberty of speech, unless the intention and effect be seditious. But when the intention and effect of the act is seditious, the constitutional guaranties of freedom of speech and press and of assembly and petition must yield to punitive measures designed to maintain the prestige of constituted authority, the supremacy of the constitution and the laws, and the existence of the State. (People v. Perez, G.R. No. L-21049, Dec. 22, 1923) POLITICAL LAW The freedom of speech secured by the Constitution does not confer an absolute right to speak or publish without responsibility whatever one may choose. It is not unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. So statutes against sedition have guaranty, although they should not be interpreted so as to agitate for institutional changes. Thus, another limit of free speech and writing is seditious speech which is prohibited under Art. 142 of the Revised Penal Code. (Mendoza v. People, G.R. No. L-2990, Dec. 17, 1951) When a fictitious suicide photo and letter were published in newspapers of general circulation expressing disappointment in the Roxas administration and instructing a fictitious wife to teach their children to burn photos of the President, the Court held that such act constitutes inciting to sedition. It suggests or incites rebellious conspiracies or riots and tends to turn the people against the constituted authorities, or to provoke violence from opposition groups who may seek to silence the writer, which is the sum and substance of the offense under consideration. (Mendoza v. People, G.R. No. L-2990, Dec. 17, 1951) Reason Why Seditious Utterances are Prohibited Manifestly, the legislature has authority to forbid the advocacy of a doctrine designed and intended to overthrow the Government without waiting until there is a present and immediate danger of the success of the plan advocated. If the State were compelled to wait until the apprehended danger became certain, then its right to protect itself would come into being simultaneously with the overthrow of the Government, when there would be neither prosecuting officers nor courts for the enforcement of the law. (Gitlow vs. New York, 268 U.S. 652, June 7, 1925) Tests Applied to Seditious Words 1. Clear and Present Danger Test A political party applied for a permit to hold a public meeting in Manila. The Mayor refused to grant permit. The refusal of the Mayor to grant permit for the holding of a public meeting was predicated upon fear that in view of the bitterness of the Page 198 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 speeches expected from the minority men who were fresh from a political defeat and were smarting with charges of fraud against those in power, there might be breach of the peace and of public order. The Court ruled that the danger apprehended was not imminent and the evil to be prevented was not a serious one. Thus, the Mayor was ordered by the Supreme Court in mandamus proceedings to issue a permit. (Primicias v. Fugoso, G.R. No. L-1800, Jan. 27, 1948) 2. Dangerous Tendency Test Citizen Perez made this remark at a political discussion at a town municipio: and the Filipinos, like myself, must use bolos for cutting off Wood head for having recommended a bad thing for the Philippine . The court held that criticism, no matter how severe, on the Executive, the Legislature, and the Judiciary, is within the range of liberty of speech, unless the intention and effect be seditious. In this case, the Court found a seditious tendency which could easily produce disaffection among the people and a state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws. (People v. Perez, G.R. No. L-21049, Dec. 22, 1923) Utterances Must Incite the Public to Commit Sedition It is not inciting to sedition when it is not proved that the defendant incited the people to rise publicly and tumultuously in order to attain any of the ends mentioned in Art. 139 (sedition), which are: 1. To prevent the promulgation or execution of any law or the holding of any popular election; 2. To prevent the National Government, or any provincial or municipal government, or any public officer thereof from freely exercising its or his functions, or prevent the execution of any administrative order; 3. To inflict any act of hate or revenge upon the person or property of any public officer or employee; 4. To commit, for any political or social end, any act of hate or revenge against private persons or any social class; and 5. To despoil, for any political or social end, any person, municipality or province, or the National Government of all its property or any part thereof. (People vs. Arrogante, 39 O.G. 1974) POLITICAL LAW d. Obscenity/Pornography Concept; Miller Test for Obscenity There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which established basic guidelines, to wit: (PILV) 1. Whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the Prurient Interest; 2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state Law; and 3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific Value. (Fernando v. CA, G.R. No. 159751, Dec. 6, 2006; Miller v. California, 413 U.S. 15, June 21, 1973) But, it would be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in determining what is "patently offensive. No one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct. Examples included (a) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. What remains clear is that obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on the j dge sound discretion. (Fernando v. CA, G.R. No. 159751, Dec. 6, 2006) Relative Obscenity The Court noted that there was no perfect definition of ob ceni and that ultimately therefore ob ceni is an issue proper for judicial determination and should be treated on a case to case basis and on the j dge sound di cre ion. (Soriano v. Laguardia, G.R. No. 164785, April 29, 2009) Obscenity is an Unprotected Speech As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to protect, as parens patriae, the public from obscene, immoral and indecent materials Page 199 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 must justify the regulation or limitation. One such regulation is Article 201 of the Revised Penal Code. (Fernando v. CA, G.R. No. 159751, Dec. 6, 2006) Necessarily, that the confiscated materials are obscene must be proved. (Fernando v. CA, G.R. No. 159751, Dec. 6, 2006) Procedure for Conviction Under Art. 201 1. The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an obscenity rap is in order; 2. The authorities must convince the court that the materials sought to be seized are "obscene", and pose a clear and present danger of an evil substantive enough to warrant State interference and action; 3. The judge must determine whether or not the same are indeed "obscene:" the question is to be resolved on a case-to-case basis and on His Honor's sound discretion. 4. If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for; 5. The proper suit is then brought in the court under Article 201 of the Revised Penal Code; 6. Any conviction is subject to appeal. The appellate court may assess whether or not the properties seized are indeed "obscene." (Pita v. CA, G.R. No. 80806, Oct. 5, 1989) Mere Possession Not Punishable; Publicity is Necessary Mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not punishable under Article 201 of the RPC, considering the purpose of the law is to prohibit the dissemination of obscene materials to the public. The offense in any of the forms under Article 201 is committed only when there is publicity. The law does not require that a person be caught in the act of selling, giving away or exhibiting obscene materials to be liable, for as long as the said materials are offered for sale, displayed or exhibited to the public. (Fernando v. CA, G.R. No. 159751, Dec. 6, 2006) e. Commercial Speech Concept Commercial speech is speech that does no more than propose a commercial transaction. (Central POLITICAL LAW Hudson Gas v. Public Service Commission, 447 U.S. 557, June 20, 1980) Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price. So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable. And if it is indispensable to the proper allocation of resources in a free enterprise system, it is also indispensable to the formation of intelligent opinions as to how that system ought to be regulated or altered. (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, May 24, 1976) Accorded Lesser Protection Although the Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression, nevertheless the First Amendment protects commercial speech from unwarranted governmental regulation. (Central Hudson Gas v. Public Service Commission, 447 U.S. 557, June 20, 1980) Central Hudson Test for a Valid Commercial Speech Regulation For commercial speech to come within the First Amendment: (FISDO) 1. Speech must not be False or misleading or proposing an illegal activity; 2. Governmental Interest sought to be served by the regulation must be Substantial; 3. The regulation must Directly advance the governmental interest asserted; and 4. The regulation must not be Overbroad not more extensive than is necessary to serve that interest. (Central Hudson Gas v. Public Service Commission, 447 U.S. 557, June 20, 1980) f. National Emergencies Page 200 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW The right of freedom of speech and to peacefully assemble and petition the government for redress of grievances, are fundamental personal rights of the people recognized and guaranteed by the Constitutions of democratic countries. In many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. But it is a settled principle growing out of the nature of well-ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, not injurious to the rights of the community or society. The power to regulate the exercise of such and other constitutional rights is termed the sovereign "police power" which is the power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of the people. This sovereign police power is exercised by the government through its legislative branch by the enactment of laws regulating those and other constitutional and civil rights, and it may be delegated to political subdivisions, such as towns, municipalities, and cities authorizing their legislative bodies, called municipal and city councils to enact ordinances for the purpose. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. (Schenck v. United States, 249 U.S. 47, March 3, 1919) However, under our democratic system of government no such unlimited power may be validly granted to any officer of the government, except perhaps in cases of national emergency. (Primicias v. Fugoso, G.R. No. L-1800, Jan. 27, 1948) Speech During War Time In the landmark case of Schenck v. United States, the Supreme Court affirmed the conviction of Charles Schenck and Elizabeth Baer for violating the Espionage Act of 1917 through actions that obstructed the recr i ing or enlistment er ice during World War I. The ruling established that Congress has more latitude in limiting speech in times of war than in peacetime. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. g. Speech of Public Officers Civil Service Does Not Deprive Government Workers of their Freedom of Expression Government workers, whatever their ranks, have as much right as any person in the land to voice out their protests against what they believe to be a violation of their rights and interests. Civil Service does not deprive them of their freedom of expression. It would be unfair to hold that by joining the government service, the members thereof have renounced or waived this basic liberty. This freedom can be reasonably regulated only but can never be taken away. (GSIS v. Villaviza, G.R. No. 180291, July 27, 2010) Freedom of Expression Regulated, But Not Removed It is correct to conclude that those who enter government service are subjected to a different degree of limitation on their freedom to speak their mind; however, it is not tantamount to the relinquishment of their constitutional right of expression otherwise enjoyed by citizens just by reason of their employment. Unarguably, a citizen who accepts public employment must accept certain limitations on his or her freedom. But there are some rights and freedoms so fundamental to liberty that they cannot be bargained away in a contract for public employment. It is the Co r responsibility to ensure that citizens are not deprived of these fundamental rights by virtue of working for the government. In simple paraphrase, regulation of the freedom of expression is not removal of the constitutional right. Page 201 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 (Davao City Water District v. Aranjuez, G.R. No. 194192, June 16, 2015) h. H c Veto The heckler e o involves situations in which the government attempts to ban protected speech because it might provoke a violent response. In such situations, the mere possibility of a violent reaction to protected speech is simply not a constitutional basis on which to restrict the right to speak. (Cohen v. California, 403 U.S. 15 June 7, 1971) In Feiner v. New York (340 U.S. 315, Jan. 14, 1951), petitioner was neither arrested nor convicted for the making of the speech or the content of his speech, but for the reaction which it actually engendered. The Court held that the police cannot be used as an instrument for the suppression of unpopular views; but, when a speaker passes the bounds of argument or persuasion and undertakes incitement to riot, the police are not powerless to prevent a breach of the peace. 5. COGNATE RIGHTS a. Freedom of Assembly and Petition No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. (PHIL. CONST., art. III, § 4) Concept The right of petition is the primary right, the right peaceably to assemble a subordinate and instrumental right, as if the provision read: The right of the people peaceable to a emble in order to pe i ion the go ernmen . The right to peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009, citing De Jonge v. Oregon, 299 U.S. 353, Jan. 3, 1937) The right to peaceably assemble and petition for redress of grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. For these rights constitute the very basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected. (Bayan v. Ermita, G.R. No. 169838, April 25, 2006) Definition of Assembly & Public Assembly "Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It is a necessary consequence of our republican institution and complements the right of speech. As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. In other words, like other rights embraced in the freedom of expression, the right to assemble is not subject to previous restraint or censorship. It may not be conditioned upon the prior issuance of a permit or authorization from the government authorities except, of course, if the assembly is intended to be held in a public place, a permit for the use of such place, and not for the assembly itself, may be validly required. (David v. Arroyo, G.R. No. 171396, May 3, 2006) "Public assembly" means any rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place for the purpose of presenting a lawful cause; or expressing an opinion to the general public on any particular issue; or protesting or influencing any state of affairs whether political, economic or social; or petitioning the government for redress of grievances. The definition herein contained shall not include picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227. (B.P. 880, Sec. 3[a]) B.P. 880: THE PUBLIC ASSEMBLY ACT OF 1985 Purpose B.P. 880 sets forth the requirements and procedure which are necessary to regulate the time, place and manner of public assemblies. Page 202 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Rules on Assembly in Public Place (a) The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. (b) If the assembly were to be held at a private place, only the consent of the owner or the one entitled to its legal possession is required. (c) 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. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. (d) 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. (e) 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. (Reyes v. Bagatsing, G.R. No. L-65366, Nov. 9, 1983; Codified in the provisions of B.P. 880) Application Permit General Rule: A written permit shall be required for any person or persons to organize and hold a public assembly in a Public Place. Exceptions: However, no permit shall be required if the public assembly shall be done or made in a: (FPC) 1. Freedom park duly established by law or ordinance or; 2. In Private property, in which case only the consent of the owner or the one entitled to its legal possession is required; or 3. In the Campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. (B.P. 880, Sec. 4) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza, square, and/or any open space of public ownership where the people are allowed access. (B.P. 880, Sec. 3[b]) POLITICAL LAW Application Subject to the Clear and Present Danger Test It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health. (B.P. 880, Sec. 6[a]) The permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health. This is a recognized exception to the exercise of the right. (Bayan v. Ermita, G.R. No. 169838, April 25, 2006) The Mayor possesses rea onable discretion to determine or specify streets or public places to be used for the assembly in order to secure convenient use thereof by others and provide adequate and proper policing to minimize the risks of disorder and maintain public safety and order. (Navarro v. Villegas, G.R. No. L-31687, Feb. 26, 1970) Inaction of Mayors on the Application There is need to address the situation adverted to by petitioners where mayors do not act on applications for a permit and when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence and part of maximum tolerance, rallyists who can show the police an application duly filed on a given date can, after two days from said date, rally in accordance with their application without the need to show a permit, the grant of the permit being then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law. (Bayan v. Ermita, G.R. No. 169838, April 25, 2006) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, Page 203 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed. (B.P. 880, Sec. 6[b]) Freedom Parks No Prior Permit Required Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity this Act. (B.P. 880, Sec. 15) The existence of freedom parks is an essential part of the la system of regulation of the people exercise of their right to peacefully assemble and petition. No prior permit may be required for the exercise of such right in any public park or plaza of a city or municipality until that city or municipality shall have established or designated such freedom parks. For without such alternative forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be given to the authorities to ensure proper coordination and orderly proceeding. (Bayan v. Ermita, G.R. No. 169838, April 25, 2006) B.P. 880 is Constitutional B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies that would use public places. The reference to la f l ca e does not make it content-based because assemblies really have to be for lawful causes, otherwise they would not be peaceable and entitled to protection. Neither are the words opinion, pro e ing and infl encing in the definition of public assembly content based, since they can refer to any subject. The words pe i ioning the government for redress of grie ance come from the wording of the Constitution, so its use cannot be avoided. Finally, POLITICAL LAW maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally. Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent. There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation. (Bayan v. Ermita, G.R. No. 169838, April 25, 2006) The Calibrated Preemptive Response (CPR); Serves No Valid Purpose The CPR is a policy set forth in a press release (Sept. 21, 2005) by Malacañang issued in view of intelligence reports pointing to credible plans of anti-government groups to inflame the political situation, sow disorder and incite people against the duly constituted authorities. The rule of CPR was issued in lieu of ma im m olerance provided under B.P. 880. The Court ruled that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated by the law itself, namely, maximum tolerance, which specifically means the following: (Bayan v. Ermita, G.R. No. 169838, April 25, 2006) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same. (B.P. 880, Sec. 3[c]) A.M. 98-7-02-SC: GUIDELINES ON THE CONDUCT OF DEMONSTRATIONS, PICKETS, RALLIES AND OTHER SIMILAR GATHERINGS IN THE VICINITY OF THE SUPREME COURT AND ALL OTHER COURTS Prohibited Activity Near the SC and Other Courts Demonstrators, picketers, rallyists and all other similar persons are enjoined from holding any activity on the sidewalks and streets adjacent to, in Page 204 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 front of, or within a radius of two hundred (200) meters from, the outer boundary of the Supreme Court Building, any Hall of Justice, and any other building that houses at least one (1) court sala. Such activities unquestionably interrupt and hamper the working condition in the salas, offices and chambers of the courts. (Sec. 2) b. Freedom of Association 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. (PHIL. CONST., art. III, § 8) Does Not Include the Right to Compel Others The provision guarantees the right to form associations. It does not include the right to compel others to form an association. (Bernas, The 1987 Constitution: A Commentary, 2009) Article III, Section 8 guarantees the freedom to associate as well as the freedom not to associate. The provision is not a basis to compel others to form or join an association. (Acosta v. Ochoa, G.R. Nos. 211559, 211567, 212570 & 215634, Oct. 15, 2019) Aspect of Right to Liberty The right to form associations shall not be impaired without due process of law and is thus an aspect of the right of liberty. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011). Aspect of Freedom of Contract 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. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011). IRR of RA 10951; Sports Shooter Applicant Section 4.10 of the Rules Implementing RA 10951 does not compel a sports shooter applicant to join a gun club or sports shooting association; it only provides that they must submit a certification from the president of a recognized gun club or sports shooting association that he or she is joining the POLITICAL LAW competition. This certification ensures that the extra ammunition is indeed granted to legitimate sports shooters, which is remarkably more than that allowed to an ordinary owner of a firearm. Thus, Section 4.10 does not violate Article III, Section 8 of the Constitution. (Acosta v. Ochoa, G.R. Nos. 211559, 211567, 212570 & 215634, Oct. 15, 2019) Not Accorded to Top-level and Middle Managers The Commission intended the absolute right to organize of government workers, supervisory employees, and security guards to be constitutionally guaranteed. By implication, no similar absolute constitutional right to organize for labor purposes should be deemed to have been granted to top-level and middle managers. As to them the right of self-organization may be regulated and even abridged conformably to Art. III, § 8. If these managerial employees would belong to or be affiliated with a Union, the latter might not be assured of their loyalty to the Union in view of evident conflict of interests. The Union can also become company-dominated with the presence of managerial employees in Union membership (United Pepsi-Cola Supervisory Union (UPSU) v. Laguesma, G.R. No. 122226, March 25, 1998) Registration Not a Limitation to the Right The registration of labor unions is not a limitation to the right of assembly or association, which may be exercised with or without said registration. The latter is merely a condition sine qua non for the acquisition of legal personality by labor organizations, associations or unions and the possession of the "rights and privileges granted by law to legitimate labor organizations". The Constitution does not guarantee these rights and privileges, much less said personality, which are mere statutory creations, for the possession and exercise of which registration is required to protect both labor and the public against abuses, fraud, or impostors who pose as organizers, although not truly accredited agents of the union they purport to represent. Such requirement is a valid exercise of the police power, because the activities in which labor organizations, associations and union of workers are engaged affect public interest, which Page 205 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 should be protected. (Philippine Assoc. of Free Labor Unions v. Sec. of Labor, G.R. No. L-22228, Feb. 27, 1969) State Not Obligated to Accord Official Status The right to organize does not equate to the a e obligation to accord official status to every single association that comes into existence. It is one thing for individuals to galvanize themselves as a collective, but it is another for the group that they formed to not only be formally recognized by the state, but also bedecked with all the benefits and privileges that are attendant to official status. In pursuit of public interest, the state can set reasonable regulations procedural, formal, and substantive with which organizations seeking state imprimatur must comply. (Quezon City PTCA Federation, Inc. vs DepEd, G.R. No. 188720, February 23, 2016) B.P. 222 B.P. 222, which prevents political parties and groups from supporting directly or indirectly any barangay candida e campaign for election does not violate the right to form associations. Political parties may freely be formed although there is a restriction on their activities, i.e., their intervention in the election of barangay officials on May 17, 1982 is prescribed. But the ban is narrow, not total, and has the purpose of preventing the clear and imminent danger of the debasement of the electoral process. It operates only on concerted or group action of political parties. (Occeña v. COMELEC, G.R. No. L-60258, 1984) Automatic or Compulsory Membership Compulsory membership is an annotation on a lot owner's certificate of title. Hence, petitioners were bound by this annotation. The constitutional guarantee of freedom of association can only be invoked against the State, and does not apply to private transactions, like a sale, where a condition was validly imposed by the vendor. Automatic membership in a homeowners' association does not violate lot owners' right to freedom of association because they were not forced to buy their lots from the developer. (Cezar Yatco Real Estate Services, Inc. v. Bel-Air Village Association, Inc., G.R. No. 211780, Nov. 21, 2018.) POLITICAL LAW A closed shop agreement is legal since it is a valid form of union security. (Villar v. Inciong, G.R. No. L-50283-84, April 20, 1983). Compulsory membership of all lawyers in the Integrated Bar of the Philippines does not violate the right of association (In Re: Edillon, A.M. No. 1928, Aug. 3, 1978). Right to Strike of Employees in the Public Sector To grant employees of the public sector the right to strike, there must be a clear and direct legislative authority therefor. In the absence of any express legislation allowing government employees to strike, recognizing their right to do so, or regulating the exercise of the right, employees in the public service may not engage in strikes, walkouts and temporary work stoppages like workers in the private sector. (Bangalisan v. CA, G.R. No. 124678, July 31, 1997). In cases of CSC employees (e.g., SSS, public school teachers): Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor Management Council for appropriate action. But employees in the civil service may not resort to strikes, walk-outs and other temporary work stoppages, like workers in the private sector, to pressure the Government to accede to their demands. (Social Security System Employees Association (SSEA) v. Court of Appeals, G.R. No. 85279, July 28, 1989) Other Constitutional Provisions Related to the Right to Association: The State shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. (PHIL. CONST., art. III, § 3, par. 2) Page 206 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 The right to self-organization shall not be denied to government employees. (PHIL. CONST., art. IX-B, § 2, par. 5) c. Freedom of Information The right of the people to information on matters of public concern shall be recognized. (PHIL. CONST., art. III, § 7) The constitutional guarantee of the right to information on matters of public concern enunciated in Section 7 of Article III of the 1987 Constitution complements the S a e policy of full public disclosure in all transactions involving public interest expressed in Section 28 of Article II of the 1987 Constitution. These provisions are aimed at ensuring transparency in policy-making as well as in the operations of the Government, and at safeguarding the exercise by the people of the freedom of expression. In a democratic society like ours, the free exchange of information is necessary, and can be possible only if the people are provided the proper information on matters that affect them. But the people right to information is not absolute. The constitutional guarantee to information does not open every door to any and all information. It is limited to matters of public concern, and is subject to such limitations as may be provided by law. Likewise, the S a e policy of full public disclosure is restricted to transactions involving public interest, and is further subject to reasonable conditions prescribed by law. (Sereno v. Committee on Trade and Related Matters of NEDA, G.R. No. 175210, Feb. 1, 2016) Rights Guaranteed 1. Right to information on matters of public concern 2. Right of access to official records and documents The people have the right to information on matters of public concern, and access to official records shall be allowed to citizens as may be provided by law. It is a self-executing provision. (Legazpi v. CSC, G.R. No. L-72119, May 29, 1987) The threshold question is, therefore, whether or not the information sought is of public interest or public POLITICAL LAW concern. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine in a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. (Legazpi v. CSC, G.R. No. L-72119, May 29, 1987) In case of conflict, there is a need to strike a balance between the right of the people and the interest of the Government to be protected. (Sereno v. Committee on Trade and Related Matters of NEDA, G.R. No. 175210, Feb. 1, 2016) Limitations 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. A distinction has to be made between the discretion to refuse outright the disclosure of or access to a particular information and the authority to regulate the manner in which the access is to be afforded. The first is a limitation upon the availability of access to the information sought, which only the Legislature may impose. The second pertains to the government agency charged with the custody of public records. (Legazpi v. CSC, G.R. No. L72119, May 29, 1987) The regulations which the Register of Deeds, or the Chief of the General Land Registration Office, or the Secretary of Justice is empowered to promulgate are confined to prescribing the manner and hours of examination to the end that damage to, or loss of, the records may be avoided, that undue interference with the duties of the custodian of the books and documents and other employees may be prevented, that the right of other persons entitled to make inspection may be insured, and the like. (Subido v. Ozaeta, G.R. No. L-1631, Feb. 27, 1948) Although citizens are afforded the right to information and, pursuant thereto, are entitled to access to official records, the Constitution does not Page 207 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 accord them a right to compel custodians of official records to prepare lists, abstracts, summaries and the like in their desire to acquire information on matters of public concern. (Valmonte v. Belmonte Jr., G.R. No. 74930, Feb. 13, 1989) Examples of Matters of Public Information according to Jurisprudence: 1. Decision and voting slips of the MTRCB board for the classification of movies (AquinoSarmiento v. Morato, G.R. No. 92541, Nov. 13, 1991) 2. Civil Service eligibility of sanitarians (Legaspi v. CSC, G.R. No. L-72119, May 29, 1987) 3. Party-list nominees through medium other than the Cer ified Li (Bantay Republic Act or BARA 7941 v. COMELEC, G.R. No. 177271, May 4, 2007) 4. GSIS loans granted to former Batasang Pambansa members (Valmonte v. Belmonte Jr., G.R. No. 74930, Feb. 13, 1989) 5. Examination papers and answer keys in the CPA Board Exam (Antolin v. Domondon, G.R. No.165036, July 5, 2010) 6. Definite propositions and official recommenda ion of agencies preceding and even before the consummation of the contract (Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002) The right to information is paramount, and that the wiretapping issue is subservient to this right. The Hello Garci tapes should be played, because prohibiting its airing would be prior restraint. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) Exceptions (BENT DISC) The constitutional guarantee of the people's right to information do not cover: 1. Banking transactions 2. Executive Sessions 3. National Security matters 4. Trade secrets 5. Diplomatic correspondence 6. Intelligence information 7. Supreme Court deliberations 8. Closed Door cabinet meetings POLITICAL LAW There are certain classes of information which may be withheld from the public and even from Congress. These are national security matters or confidential diplomatic matters, trade secrets and banking transactions, the identity of informants in criminal investigations, confidential or classified matters which come to the knowledge of public officials by reason of their office. (Chavez v. PCGG, G.R. No 130716, Dec. 9, 1998) Before a definite proposition is reached by an agency, there are no official acts, transactions, or decisions yet which can be accessed by the public under the right to information. Only when there is an official recommendation can a definite proposition arise and, accordingly, the p blic right to information attaches. (DFA v. BCA International, G.R. No. 210858, June 29, 2016) Without doubt, therefore, ensuring and promoting the free exchange of ideas among the members of the committee tasked to give tariff recommendations to the President were truly imperative. The fact that some members of the committee were not part of the President's Cabinet was of no moment. The Court regarded the meeting of the committee as a Closed-door Cabinet meeting. (Sereno v. Committee on Trade and Related Matters of NEDA, G.R. No. 175210, Feb. 1, 2016) The chemical composition of special lubricants is a trade secret. The ingredients constitute the very fabric of the compan business. To compel its disclosure is to cripple their business and to place it at an undue disadvantage. Trade secrets should receive greater protection from discovery because they deserve economic value from being generally unknown and not readily ascertainable by the public. (Air Philippines v. Pennswell, Inc, G.R. No. 172835, Dec. 13, 2007) Diplomatic Negotiations It is clear that while the final text of the JPEPA may not be kept perpetually confidential since there should be ample opportunity for discussion before a treaty is appro ed the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese representatives submitted their offers with the Page 208 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 understanding that hi oric confiden iali would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. (Akbayan v. Aquino, G.R. No. 170516, July 16, 2008) Negotiations for Treaties and Executive Agreements Information regarding negotiations for treaties and executive agreements prior to conclusion of the agreement is privileged information. (Senate v. Ermita, G.R. No. 169777, April 20, 2006) Access to Court Records The right of the public to be informed of the proceedings in court is not founded in the desire or necessity of people to know about the doing of others, but in the necessity of knowing whether its servant, the judge, is properly performing his duty. Unlike court orders and decisions, however, pleadings and other documents filed by parties to a case need not be matters of public concern or interest. For they are filed for the purpose of establishing the basis upon which the court may issue an order or a judgment affecting their rights and interests. In fine, access to court records may be permitted at the discretion and subject to the supervisory and protective powers of the court, after considering the actual use or purpose for which the request for access is based and the obvious prejudice to any of the parties. (Hilado v. Judge Reyes, G.R. No. 163155, July 21, 2006) Court deliberations are traditionally recognized as privileged communications (deliberative process privilege). This privilege may be invoked by judges and also by court officials and employees who are privy to these deliberations. It is understood that the rule extends to documents and other communications which are part of or are related to the deliberative process. However, to invoke the privilege, there must be a showing that the document is both predecisional and deliberative. Court records which can be shown to possess both these qualities cannot be the subject of subpoena. (In Re: Production of Court Records and Documents and the Attendance of Court officials POLITICAL LAW and employees as witnesses under the subpoenas of Feb 10,2012 and the various letters for the Impeachment Prosecution Panel dated Jan 19 and 25, 2012, Feb. 14, 2012) Deliberative Process Privilege U.S. courts have established two fundamental requirements, both of which must be met, for the deliberative process privilege to be invoked: 1. Predecisional The communication must be predecisional, i.e., antecedent to the adoption of an agency policy; and 2. Deliberative The communication must be deliberative, i.e., a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters. The deliberative process privilege exempts materials that are 'predecisional' and 'deliberative,' but requires disclosure of policy statements and final opinions 'that have the force of law or explain actions that an agency has already taken. As a qualified privilege, the burden falls upon the government agency asserting the deliberative process privilege to prove that the information in question satisfies both requirements predecisional and deliberative. The agency bears the burden of establishing the character of the decision, the deliberative process involved, and the role played by the documents in the course of that process. It may be overcome upon a showing that the discoverant's interests in disclosure of the materials outweigh the government's interests in their confidentiality. The determination of need must be made flexibly on a case-by-case, ad hoc basis, and the factors relevant to this balancing include: the relevance of the evidence, whether there is reason to believe the documents may shed light on government misconduct, whether the information sought is available from other sources and can be obtained without compromising the government's deliberative processes, and the importance of the material to the discoverant's case. (DFA v. BCA International, G.R. No. 210858, June 29, 2016) Presidential Communications Privilege Page 209 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Applies to decision-making of the President; rooted in the constitutional principle of separation of power and the President's unique constitutional role; applies to documents in their entirety, and covers final and post-decisional materials as well as predeliberative ones; meant to encompass only those functions that form the core of presidential authority. Requisites: 1. The communications relate to a "quintessential and non-delegable power" of the President; 2. The communications are "received" by a close advisor of the President; and 3. There is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority. (Neri v. Senate Committee, G.R. No. 180643, March 25, 2008) Publication of Laws and Regulations The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette..." The word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. Publication is necessary to apprise the public of the contents of [penal] regulations and make the said penalties binding on the persons affected thereby. (Tanada v. Tuvera, G.R. No. L-63915, April 24, 1985). Other Constitutional Provisions Related to the Right to Information 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. (PHIL. CONST., art. II, § 28) G. FREEDOM OF RELIGION POLITICAL LAW 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. (PHIL. CONST., art. III, § 5) The constitutional assurance of religious freedom provides two guarantees: 1. The Establishment Clause 2. The Free Exercise Clause (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014) 1. BASIC PRINCIPLES a. Purpose The constitutional provision not only prohibits legislation for the support of any religious tenets or the modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any form of worship, but also assures the free exercise of one chosen form of religion within limits of utmost amplitude. It has been said that the religion clauses of the Constitution are all designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good. Any legislation whose effect or purpose is to impede the observance of one or all religions, or to discriminate invidiously between the religions, is invalid, even though the burden may be characterized as being only indirect. But if the state regulates conduct by enacting, within its power, a general law which has for its purpose and effect to advance the a e secular goals, the statute is valid despite its indirect burden on religious observance, unless the state can accomplish its purpose without imposing such burden. (Estrada v. Escritor, A.M. NO. P-02-1651, June 22, 2006) b. Concept of Religion In Philippine jurisprudence, religion, for purposes of the religion clauses, has thus far been interpreted as theistic. In 1937, the Philippine case Page 210 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 of Aglipay v. Ruiz involving the Establishment Clause, defined religion as a profession of faith to an active power that binds and elevates man to his Creator. Twenty years later, the Court cited the Aglipay definition in American Bible Society v. City of Manila, a case involving the Free Exercise clause. The latter also cited the American case of Davis v. Beason in defining religion, viz: it has reference to one views of his relations to His Creator and to the obligations they impose of reverence to His being and character and obedience to His Will. The Davis definition, however, has been expanded in U.S. jurisprudence to include non-theistic beliefs. (Estrada v. Escritor, A.M. NO. P-02-1651, June 22, 2006) Accorded Preferred Status Freedom of religion is accorded preferred status by the framers of our fundamental law. And the Supreme Court has consistently affirmed this preferred status, well aware that it is designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good. (Re: Letter of Tony Valenciano, A.M. No. 10-4-19-SC, March 7, 2017) POLITICAL LAW Verily, the principle of separation of Church and State is based on mutual respect. Generally, the State cannot meddle in the internal affairs of the church, much less question its faith and dogmas or dictate upon it. It cannot favor one religion and discriminate against another. On the other hand, the church cannot impose its beliefs and convictions on the State and the rest of the citizenry. It cannot demand that the nation follow its beliefs, even if it sincerely believes that they are good for the country. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014) Definition of Church The Constitution utilizes the term "church" in its generic sense, which refers to a temple, a mosque, an iglesia, or any other house of God which metaphorically symbolizes a religious organization. Thus, the "Church" means the religious congregations collectively. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014) Rationale Our history, not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to both, for occasions might arise when the state will use the church, and the church the state, as a weapon in the furtherance of their respective ends and aims. (Re: Letter of Tony Valenciano, A.M. No. 10-4-19-SC, March 7, 2017) Religious freedom, although not unlimited, is a fundamental personal right and liberty and has a preferred position in the hierarchy of values. Contractual rights, therefore, must yield to freedom of religion. It is only where unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary. (Estrada v. Escritor, A.M. NO. P-02-1651, June 22, 2006) The rationale of the rule is summed up in the familiar saying, "Strong fences make good neighbors." The idea is to delineate the boundaries between the two institutions and, thus, avoid encroachments by one against the other because of a misunderstanding of the limits of their respective exclusive jurisdictions. The demarcation line calls on the entities to render therefore unto Caesar the things that are Caesar's and unto God the things that are God's." (Re: Letter of Tony Valenciano, A.M. No. 10-4-19-SC, March 7, 2017) 2. PRINCIPLE OF SEPARATION OF CHURCH AND STATE 3. NON-ESTABLISHMENT CLAUSE The separation of Church and State shall be inviolable. (PHIL. CONST., art. II, § 6) Basis Concept The establishment clause principally prohibits the State from sponsoring any religion or favoring any religion as against other religions. It mandates a strict neutrality in affairs among religious groups. Page 211 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Essentially, it prohibits the establishment of a state religion and the use of public resources for the support or prohibition of a religion. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014) Basis In Philippine jurisdiction, there is substantial agreement on the values sought to be protected by the Establishment Clause, namely, voluntarism and insulation of the political process from interfaith dissension: 1. Voluntarism Voluntarism, has both a personal and a social dimension. As a personal value, it refers to the inviolability of the human conscience which is also protected by the free exercise clause. From the religious perspective, religion requires voluntarism because compulsory faith lacks religious efficacy. Compelled religion is a contradiction in terms. As a social value, it means that the growth of a religious sect as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular society will benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage. 2. Insulation of the Political Process From Interfaith Dissension Such voluntarism cannot be achieved unless the political process is insulated from religion and unless religion is insulated from politics. Nonestablishment thus calls for government neutrality in religious matters to uphold voluntarism and avoid breeding interfaith dissension. (Estrada v. Escritor, A.M. NO. P-02-1651, June 22, 2006) Prohibited Acts of the State Under the Establishment Clause The non-establishment clause reinforces the wall of separation between Church and State. It simply means that: 1. The State cannot set up a Church. 2. The State cannot pass laws which aid one religion, aid all religion, or prefer one religion over another. 3. The State cannot force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. POLITICAL LAW 4. The State cannot punish a person for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. 5. No tax in any amount, large or small, can be levied to support any religious activity or institution whatever they may be called or whatever form they may adopt or teach or practice religion. 6. The State cannot openly or secretly participate in the affairs of any religious organization or group and vice versa. Its minimal sense is that the State cannot establish or sponsor an official religion. (Re: Letter of Tony Valenciano, A.M. No. 10-4-19-SC, March 7, 2017) In effect, what non-establishment calls for is government neutrality in religious matters. Such government neutrality may be summarized in four general propositions: 1. Government must not prefer one religion over another or religion over irreligion because such preference would violate voluntarism and breed dissension. 2. Government funds must not be applied to religious purposes because this too would violate voluntarism and breed interfaith dissension. 3. Government action must not aid religion because this too can violate voluntarism and breed interfaith dissension. 4. Government action must not result in excessive entanglement with religion because this too can violate voluntarism and breed interfaith dissension. (Re: Letter of Tony Valenciano; citing Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Limiting the prohibition for religious use of the structure to 20 years obviously opens the facility to use for any purpose at the end of that period. It cannot be assumed that a substantial structure has no value after that period and hence the unrestricted use of a valuable property is in effect a contribution of some value to a religious body. Congress did not base the 20-year provision on any contrary conclusion. If, at the end of 20 years, the building is, for example, converted into a chapel or otherwise used to promote religious interests, the original federal grant will in part have the effect of advancing religion. To this extent the Act therefore trespasses on the Religion Clauses. The Page 212 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 restrictive obligations of a recipient institution under §751 (a) (2) cannot, compatibly with the Religion Clauses, expire while the building has substantial value. The limitation of federal interest in the facilities to a period of 20 years violates the Religion Clauses of the First Amendment, as the unrestricted use of valuable property after 20 years is in effect a contribution to a religious body. (Tilton v. Richardson, 403 U.S. 672, June 28, 1971) At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government. (PHIL. CONST., art. XIV, § 3[3]) When viewed in its overall context, the creche display violates the Establishment Clause. The creche angel's words endorse a patently Christian message: Glory to God for the birth of Jesus Christ. Moreover, nothing in the creche's setting detracts from that message. Although the government may acknowledge Christmas as a cultural phenomenon, it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus. (County of Allegheny v. ACLU, 492 U.S. 573, July 2, 1989) Ownership of Sectarian Educational Institutions Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of which is owned by such citizens. The Congress may, however, require increased Filipino equity participation in all educational institutions. (PHIL. CONST., art. XIV, §4[2]) Permitted Acts of the Establishment Clause 2. Jurisprudence State Under the 1. Constitutionally Created Tax Exemptions Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, nonprofit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. (PHIL. CONST., art. VI, § 28[3]) Limited Public Aid to Chaplaincies No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. (PHIL. CONST., art. VI, § 29[2]) Religious Instruction in Public Elementary and High Schools The holding of Catholic masses at the basement of the QC Hall of Justice is not a case of establishment, but merely accommodation. 1. There is no law, ordinance or circular issued by any duly constitutive authorities expressly mandating that judiciary employees attend the Catholic masses at the basement. 2. When judiciary employees attend the masses to profess their faith, it is at their own initiative, without any coercion from the judges or administrative officers. 3. No government funds are being spent because the lightings and air conditioning continue to be operational even if there are no religious rituals there. 4. The basement has neither been converted into a Roman Catholic chapel nor has it been permanently appropriated for the exclusive use of its faithful. 5. The allowance of the masses has not prejudiced other religions 6. In no case shall a particular part of a public building be a permanent place for worship for the benefit of any and all religious groups. There shall also be no permanent display of religious icons in all halls of justice in the country. In case of religious rituals, religious icons and images may be displayed but their presentation is limited only during the celebration of such Page 213 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 activities. After any religious affair, the icons and images shall be hidden or concealed from public view. (Re: Letter of Tony Valenciano, A.M. No. 10-4-19-SC, March 7, 2017) Aglipay of the Philippine Independent Church sought to prohibit the issuance and sale of such stamps commemorating a Catholic Eucharistic Congress for violating the command that no public money should be appropriated to support any system of religion. The SC held that the statute contemplates no religious purpose. The stamps were not sold for the benefit of the Catholic Church, but merely to advertise the Philippines as the seat of the Eucharistic Congress. Thus, the resulting propaganda possibly in favor of the Catholic Church is merely incidental and should not frustrate the main purpose of the law, which is to generate profit and boost tourism. (Aglipay v. Ruiz, G.R. No. L-45459, March 13, 1937) Government programs that neutrally provide benefits to a broad class of citizens and without reference to religion do not violate the nonestablishment clause, as when government furnishes a disabled child enrolled in a sectarian school with a sign language interpreter to facilitate his education because the service is part of a general government program that neutrally distributes benefits to any child qualifying as disabled under the IDEA, without regard to the sectarian or non-sectarian or public or non-public nature of the school the child attends. Neither does the IDEA create a financial incentive for parents to choose a sectarian school. Most cases, where governmental aids were struck down, challenged programs which gave direct grants of government aid, relieving sectarian schools of costs they otherwise would have borne. In this case, the child is the primary beneficiary and whatever benefits that may accrue to the school is merely incidental. (Zobrest, et al. v. Catalina Foothills School District, 509 U.S. 1, June 18, 1993) If there is nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio, then any activity intended to facilitate the worship of the patron saint (such as the acquisition and display of his image) cannot be branded as illegal. The barrio fiesta is a socio-religious affair. Its celebration is an ingrained tradition in rural POLITICAL LAW communities. The fiesta relieves the monotony and drudgery of the lives of the masses. Not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public money or property. (Garces v. Estenzo, G.R. No. L-53487, May 25, 1981) The express purpose of the statute was the furtherance of educational opportunities for the young, and the law merely makes available to all children the benefits of a general program to lend school books free of charge, and the financial benefit is to parents and children, not to schools. Parochial schools, in addition to their sectarian function, perform the task of secular education, and, on the basis of this meager record, the Court cannot agree with appellants that all teaching in a sectarian school is religious or that the intertwining of secular and religious training is such that secular textbooks furnished to students are in fact instrumental in teaching religion. (Board of Education v. Allen, 392 U.S. 236, June 10, 1968) The menorah display does not have the prohibited effect of endorsing religion, given its "particular physical setting." Its combined display with a Christmas tree and a sign saluting liberty does not impermissibly endorse both the Christian and Jewish faiths, but simply recognizes that both Christmas and Chanukah are part of the same winter-holiday season, which has attained a secular status in our society. The widely accepted view of the Christmas tree as the preeminent secular symbol of the Christmas season emphasizes this point. The tree, moreover, by virtue of its size and central position in the display, is clearly the predominant element, and the placement of the menorah beside it is readily understood as simply a recognition that Christmas is not the only traditional way of celebrating the season. The absence of a more secular alternative to the menorah negates the inference of endorsement. Similarly, the presence of the mayor's sign confirms that in the particular context the government's association with a religious symbol does not represent sponsorship of religious beliefs but simply a recognition of cultural diversity. Given all these considerations, it is not sufficiently Page 214 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 likely that a reasonable observer would view the combined display as an endorsement or disapproval of his individual religious choices. (County of Allegheny v. ACLU, 492 U.S. 573, July 2, 1989) The RH Law does not violate the Establishment Clause. The petitioners are misguided in their supposition that the State cannot enhance its population control program through the RH Law simply because the promotion of contraceptive use is contrary to their religious beliefs. Indeed, the State is not precluded to pursue its legitimate secular objectives without being dictated upon by the policies of any one religion. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014) TESTS FOR STATUTES CONSTITUTIONALITY OF Abington Test To withstand the strictures of the Establishment Clause: (SAIR) 1. There must be a Secular legislative purpose; and 2. A primary effect that neither Advances nor Inhibits Religion. If the purpose and the primary effect of the enactment is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. (School Dist. of Abington Tp. v. Schempp, 374 U.S. 203, June 17, 1963) Lemon Test The Lemon test requires a challenged policy to meet the following criteria to pass scrutiny under the Establishment Clause. The test for determining whether a law meets the requirements of the Establishment Clause is that: (SAIREE) 1. The statute must have a Secular legislative purpose; 2. Its primary or principal effect must be one that neither Advances nor Inhibits Religion; and 3. The statute must not foster an Excessive Entanglement with religion. (Lemon v. Kurtzman, 403 U.S. 602, June 28, 1971) Agostini Test for Excessive Entanglement To determine/assess excessive entanglement, the following must be taken into consideration: 1. The character and purposes of the benefitted institutions; 2. The nature of the aid that the State provides; and 3. The resulting relationship between the government and religion, e. g., whether it was neutral and nonideological. (Agostini v. Felton, 521 U.S. 203, June 23, 1997) Mitchell Test for Determining a S a Effect Three primary criteria for determining whether a statute/government aid has the effect of advancing religion: 1. If it results in governmental indoctrination; 2. If it defines its recipients by reference to religion; or 3. If it creates an excessive entanglement. The US Supreme Court further held that under the neutrality principle, aid that is offered to a broad range of groups or persons without regard to religion are valid. One way to assure the said neutrality is through the principle of private choice, wherein the government is not considered to have provided any support of religion when aid to schools, even if direct, is a) neutrally available and b) before reaching or benefitting any religious school, first passes through the hands of numerous private citizens who are free to direct the aid elsewhere. (Mitchell v. Helms, 530 US 793, June 28 2000) TWO MAIN STANDARDS USED BY THE COURT IN DECIDING RELIGION CLAUSE CASES 1. Separation Protects the principle of church-state separation with a rigid reading of the principle. a. Strict Separationist The Strict Separationist believes that the Establishment Clause was meant to protect the state from the church, and the a e hostility towards religion allows no interaction between the two. An absolute barrier to formal interdependence of religion and state needs to be erected. Religious institutions could not receive aid, Page 215 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 whether direct or indirect, from the state. Nor could the state adjust its secular programs to alleviate burdens the programs placed on believers. Only the complete separation of religion from politics would eliminate the formal influence of religious institutions and provide for a free choice among political views, thus a strict wall of separation is necessary. b. Strict Neutrality or Separationist View Unlike the strict separationists, the strict neutrality view believes that the wall of separation does not require the state to be their adversary. Rather, the state must be neutral in its relations with groups of religious believers and non-believers. State power is no more to be used so as to handicap religions than it is to favor them. The strict neutrality approach is not hostile to religion, but it is strict in holding that religion may not be used as a basis for classification for purposes of governmental action, whether the action confers rights or privileges or imposes duties or obligations. Only secular criteria may be the basis of government action. It does not permit, much less require, accommodation of secular programs to religious belief. 2. Benevolent Neutrality or Accommodation Benevolent neutrality protects religious realities, tradition and established practice with a flexible reading of the principle. Accommodations are government policies that take religion specifically into account not to promote the go ernmen favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a per on or in i ion religion. The government may take religion into account to exempt, when possible, from generally applicable governmental regulation individuals whose religious beliefs and practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in which voluntary religious exercise may flourish. Accommodation is forbearance and not alliance. it does not reflect agreement with the minority, but respect for the conflict between the temporal and spiritual authority in which the minority finds itself. Benevolent neutrality gives room for accommodation of religious exercises as required by the Free Exercise Clause. It allows breaches in the wall of separation to uphold religious liberty, which after all is the integral purpose of the religion clauses. Although the Philippine constitutional history and interpretation mandate benevolent neutrality, benevolent neutrality does not mean that the Court ought to grant exemptions every time a free exercise claim comes before it. But it does mean that the Court will not look with hostility or act indifferently towards religious beliefs and practices and that it will strive to accommodate them when it can within flexible constitutional limits; it does mean that the Court will not simply dismiss a claim under the Free Exercise Clause because the conduct in question offends a law or the orthodox view for this precisely is the protection afforded by the religion clauses of the Constitution, i.e., that in the absence of legislation granting exemption from a law of general applicability, the Court can carve out an exception when the religion clauses justify it. The Court thus lays down the doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality approach not only because of its merits as discussed above, but more importantly, because our constitutional history and interpretation indubitably show that benevolent neutrality is the launching pad from which the Court should take off in interpreting religion clause cases. The ideal towards which this approach is directed is the protection of religious liberty not only for a minority, however small not only for a majority, however large but for each of us to the greatest extent possible within flexible constitutional limits. (Estrada v. Escritor, A.M. NO. P-02-1651, June 22, 2006) 4. FREE EXERCISE CLAUSE Concept Page 216 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 The right to religious profession and worship has a two-fold aspect: freedom to believe and freedom to act on one belief. The first is absolute as long as the belief is confined within the realm of thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare. (Re: Letter of Tony Valenciano, A.M. No. 10-4-19-SC, March 7, 2017) Freedom to believe Absolute as long as the belief is confined within the realm of thought. The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may not be required to prove his beliefs. He may not be punished for his inability to do so. Religion, after all, is a matter of faith. "Men may believe what they cannot prove." Everyone has a right to his beliefs and he may not be called to account because he cannot prove what he believes. (Re: Letter of Tony Valenciano, A.M. No. 10-4-19-SC, March 7, 2017) Freedom to act on one's beliefs But where the individual externalizes his beliefs in acts or omissions that affect the public, his freedom to do so becomes subject to the authority of the State. As great as this liberty may be, religious freedom, like all other rights guaranteed in the Constitution, can be enjoyed only with a proper regard for the rights of others. It is error to think that the mere invocation of religious freedom will stalemate the State and render it impotent in protecting the general welfare. The inherent police power can be exercised to prevent religious practices inimical to society. (Re: Letter of Tony Valenciano, A.M. No. 10-4-19-SC, March 7, 2017) Purpose The Free Exercise Clause accords absolute protection to individual religious convictions and beliefs and proscribes government from questioning a per on beliefs or imposing penalties or disabilities based solely on those beliefs. The Clause extends protection to both beliefs and unbelief. (Estrada v. Escritor, A.M. NO. P-02-1651, June 22, 2006) However, a law advancing a legitimate governmental interest is not necessarily invalid as one interfering with the free exercise of religion merely because it also has an incidental and POLITICAL LAW detrimental effect on the same. (Centeno v. Villalon-Pornillos, G.R. No. 113092, Sept. 1, 1994) Benevolent neutrality and claims of religious freedom cannot shield respondent judge from liability for misconduct under our laws. She knowingly entered into a civil marriage with her first husband. She knew its effects under our laws. She had sexual relations with her second husband while her first marriage was subsisting. She cannot claim that engaging in sexual relations with another person during the subsistence of a marriage is an exercise of her religious expression. Legal implications and obligations attach to any person who chooses to enter civil marriages. This is regardless of how civil marriages are treated in that per on religion. Also, as a lawyer and a judge, is expected to abide by the law. Her conduct affects the credibility of the courts in dispensing justice. Thus, in finding respondent administratively liable for violation of her marriage obligations under our laws, this court protects the credibility of the judiciary in administering justice. (Perfecto v. Esidera, A.M. NO. RTJ-15-2417, July 22, 2015) Basis The basis of the free exercise clause is the respect for the inviolability of the human conscience. Under this part of religious freedom guarantee, the State is prohibited from unduly interfering with the outside manifestations of one's belief and faith. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014) Permitted Acts of the State Under the Free Exercise Clause The free exercise clause does not relieve one of the obligations to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids): 1. If the law is not specifically directed to religious practice. 2. If the law is constitutional as applied to those who engage in the specified act for nonreligious purposes. If the law is not specifically directed to religious practice and is applied equally to all, regardless of whether they do the act for religious or nonreligious purposes, it does not offend the free exercise clause. Page 217 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 The balancing of interests test, whereby government actions that substantially burden a religious practice must be justified by a compelling governmental interest, is inapplicable to an acrossthe-board criminal prohibition of a particular form of conduct. Otherwise, this would create an extraordinary right to ignore general laws in the name of religion for as long as no compelling State interest intervenes. (Employment Division v. Smith, 494 U.S. 872, April 17, 1990) A law that burdens religious practice need not be justified by a compelling governmental interest, if it is a) neutral and b) of general applicability. However, when the law is not neutral or not of general application, the same must undergo the most rigorous of scrutiny: 1. It must be justified by a compelling governmental interest. 2. It must be narrowly tailored to advance the said interest. (Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, June 11 1993) The Supreme Court upheld the exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop agreement between their employer and a union because it would violate the teaching of their church not to join any group. (Victoriano v. Elizalde Rope Workers’ Union, G.R. No. L-2524, Sept. 12, 1974) An exemption may be accorded to the Jeho ah Witnesses with regard to the observance of the flag ceremony out of respect for their religious beliefs, however bi arre those beliefs may seem to others. Nevertheless, their right not to participate in the flag ceremony does not give them a right to disrupt such patriotic exercises. (Ebralinag v. Division Superintendent, G.R. No. 95770, March 1, 1993) City Ordinance No. 3000, as amended, which requires obtaining of a Mayor's permit before any person can engage in any of the businesses, trades or occupations enumerated therein, does not impose any charge upon the enjoyment of a right granted by the Constitution, nor tax the exercise of religious practices. Hence, it cannot be considered unconstitutional, even if applied to plaintiff Society. (American Bible Society v. City of Manila, G.R. No. L-9637, April 30, 1957) POLITICAL LAW The First Amendment does not prohibit the challenged regulation from being applied to petitioner even though its effect is to restrict the wearing of the headgear (yarmulke) required by his religious beliefs. That Amendment does not require the military to accommodate such practices as wearing a yarmulke in the face of its view that they would detract from the uniformity sought by dress regulations. Here, the Air Force has drawn the line essentially between religious apparel that is visible and that which is not, and the challenged regulation reasonably and even-handedly regulates dress in the interest of the military's perceived need for uniformity. (Goldman v. Weinberger, 475 U.S. 503, March 25, 1986) Not all acts done by those who are priests, bishops, ustadz, imams, or any other religious make such act immune from any secular regulation. The religious also have a secular existence. They exist within a society that is regulated by law. The tarpaulin, on its face, does not convey any religious doctrine of the Catholic church. That the position of the Catholic church appears to coincide with the message of the tarpaulin regarding the RH Law does not, by itself, bring the expression within the ambit of religious speech. (Diocese of Bacolod v. COMELEC, G.R. No. 205728, Jan. 21, 2015) Prohibited Acts of the State Under the Free Exercise Clause A state statute which forbids any person to solicit money or valuables for any alleged religious cause, unless a certificate therefor shall first have been procured from a designated official, who is required to determine whether such cause is a religious one and who may withhold his approval if he determines that it is not, is a previous restraint upon the free exercise of religion and a deprivation of liberty without due process of law in violation of the Fourteenth Amendment. (Cantwell v. Connecticut, 310 U.S. 296, May 19, 1940) The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. The First Amendment does not select any one Page 218 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 group or any one type of religion for preferred treatment. It puts them all in that position. Thus, the District Court ruled properly when it withheld from the jury all questions concerning the truth or falsity of the religious beliefs or doctrines of respondents. This course was required by the First Amendment's guarantee of religious freedom. (United States v. Ballard, 322 U.S. 78, April 24, 1944) The provisions of City Ordinance No. 2529, as amended, which requires the payment of license fee for conducting the business of general merchandise, cannot be applied to plaintiff society, for in doing so, it would impair its free exercise and enjoyment of its religious profession and worship, as well as its rights of dissemination of religious beliefs. (American Bible Society v. City of Manila, G.R. No. L-9637, April 30, 1957) The State's claim that it is empowered, as parens patriae, to extend the benefit of secondary education to children regardless of the wishes of their parents cannot be sustained against a free exercise, for the Amish have introduced convincing evidence that accommodating their religious objections by forgoing one or two additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society. (Wisconsin v. Yoder, 406 U.S. 205, May 15, 1972) The ordinances' texts and operation demonstrate that they are not neutral, but have as their object the suppression of Santeria's central element, animal sacrifice. That this religious exercise has been targeted is evidenced by Resolution 87-66's statements of "concern" and "commitment," and by the use of the words "sacrifice" and "ritual" in Ordinances 87-40, 87-52, and 87-71. Moreover, the latter ordinances' various prohibitions, definitions, and exemptions demonstrate that they were "gerrymandered" with care to proscribe religious killings of animals by Santeria church members but to exclude almost all other animal killings. Although Ordinance 87-72 appears to apply to substantial nonreligious conduct and not to be overbroad, it must also be invalidated because it functions in tandem with the other ordinances to suppress Santeria religious worship. POLITICAL LAW (Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, June 11, 1993) TESTS USED IN ASCERTAINING THE LIMITS OF THE EXERCISE OF RELIGIOUS FREEDOM 1. Clear and Present Danger Test Appropriate for religious speech cases. (Estrada v. Escritor, A.M. NO. P-02-1651, June 22, 2006) The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it the right to disseminate religious information. Any restraints of such right can only be justified like other restraints of freedom of expression on the grounds that there is a clear and present danger of any substantive evil which the State has the right to prevent. (American Bible Society v. City of Manila, G.R. No. L-9637, April 30, 1957) 2. Benevolent Neutrality Compelling State Interest Test The "compelling state interest" test is proper where conduct is involved for the whole gamut of human conduct has different effects on the ae interests: some effects may be immediate and short-term while others delayed and far-reaching. Compelling State Interest Test From a Benevolent Neutrality Stance A three-step process is followed in weighing the a e interest and religious freedom when these collide: (BSCL) 1. Has the statute or government action created a Burden on the free exercise of religion? The courts often look into the Sincerity of the religious belief, but without inquiring into the truth of the belief because the Free Exercise Clause prohibits inquiring about its truth. 2. Is there a sufficiently Compelling state interest to justify this infringement of religious liberty? 3. Has the state in achieving its legitimate purposes used the Least intrusive means possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the state? In the above circumstances, the State undertakes the burden of presenting evidence of its compelling interest to override re ponden religious belief. Further, the State has to show that the means it has Page 219 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 adopted in pursuing the said interest is the least restrictive to means to a per on exercise of religious freedom. (Estrada v. Escritor, A.M. NO. P02-1651, June 22, 2006) 3. Conscientious Objector Test A person who for moral or religious reasons is opposed to participating in any war, and who may be excused from military conscription but remains subject to service in civil work for the na ion health, safety or interest. (Black Law Dictionary, 9th ed.) RH Law Sections 7, 23 and 24 commonly mandate that a hospital or a medical practitioner to immediately refer a person seeking health care and services under the law to another accessible healthcare provider despite their conscientious objections based on religious or ethical beliefs. In this case, the conscientious objector's claim to religious freedom would warrant an exemption from obligations under the RH Law, unless the government succeeds in demonstrating a more compelling state interest in the accomplishment of an important secular objective. Necessarily so, the plea of conscientious objectors for exemption from the RH Law deserves no less than strict scrutiny. The obligation to refer imposed by the RH Law violates the religious belief and conviction of a conscientious objector. Once the medical practitioner, against his will, refers a patient seeking information on modem reproductive health products, services, procedures and methods, his conscience is immediately burdened as he has been compelled to perform an act against his beliefs. In case of conflict between the religious beliefs and moral convictions of individuals, on one hand, and the interest of the State, on the other, to provide access and information on reproductive health products, services, procedures and methods to enable the people to determine the timing, number and spacing of the birth of their children, the Court is of the strong view that the religious freedom of health providers, whether public or private, should be accorded primacy. POLITICAL LAW Accordingly, a conscientious objector should be exempt from compliance with the mandates of the RH Law. If he would be compelled to act contrary to his religious belief and conviction, it would be violative of "the principle of non-coercion" enshrined in the constitutional right to free exercise of religion. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014) Conscientious Objection to Military Service Escritor was the court interpreter at the RTC of Las Pinas. A complaint for disgraceful and immoral conduct under the Revised Administrative Code was filed against Escritor because of living with a man not her husband. As a defense, she asserted that this conjugal arrangement was in conformity with her religious congregation which was the Jeho ah witnesses. In discussing the Free Exercise Clause, the court tackled United States v. Seeger, which involved four men who claimed "conscientious objector" status in refusing to serve in the Vietnam War. One of the four, Seeger, was not a member of any organized religion opposed to war, but when specifically asked about his belief in a Supreme Being, Seeger stated that "you could call (it) a belief in a Supreme Being or God. These just do not happen to be the words that I use." Forest Peter, another one of the four claimed that after considerable meditation and reflection "on values derived from the Western religious and philosophical tradition," he determined that it would be "a violation of his moral code to take human life and that he considered this belief superior to any obligation to the state." The Court avoided a constitutional question by broadly interpreting not the Free Exercise Clause, but the statutory definition of religion in the Universal Military Training and Service Act of 1940 which exempt from combat anyone "who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form." (Estrada v. Escritor A.M. No. P-02-1651, June 22, 2006. See also Gerona v. Secretary of Education, G.R. No. L13954, Aug. 12, 1959) As seen in U.S. v. Seeger, supra, it may also be used as a ground for exemption from compulsory military service. It also includes those with a sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by Page 220 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 the God of those admittedly qualifying for the exemption. (380 U.S. 163, March 8, 1965) H. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT 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. (PHIL. CONST., art. III, § 6) 1. SCOPE AND LIMITATIONS Rights Guaranteed 1. Freedom to choose and change one place of abode 2. Freedom to travel within the country and outside Liberty of Abode But one can search in vain for any law, order, or regulation, which even hints at the right of the Mayor of the city of Manila or the chief of police of that city to force citizens of the Philippine Islands — and these women despite their being in a sense lepers of society are nevertheless not chattels but Philippine citizens protected by the same constitutional guaranties as are other citizens — to change their domicile from Manila to another locality. (Villavicencio v. Lukban, G.R. No. L-14639, March 25, 1919) The order of the Court of Appeals releasing petitioner on bail constitutes such lawful order as contemplated by the above provision. The condition imposed by the Court of Appeals is simply consistent with the nature and function of a bail bond, which is to ensure that petitioner will make himself available at all times whenever the Court requires his presence. Besides, a closer look at the questioned condition will show that petitioner is not prevented from changing abode; he is merely required to inform the court in case he does so. (Yap Jr. v. Court of Appeals, G.R. No. 141529, June 6, 2001) Right to Travel AO1 does not infringe upon pe i ioner right to travel but merely bars motorcycles, bicycles, tricycles, pedicabs, and any non- motorized vehicles as the mode of traveling along limited access highways. The right to travel does not mean the right to choose any vehicle in traversing a toll way. The right to travel refers to the right to move from one place to another. Petitioners can traverse the toll way any time they choose using private or public four-wheeled vehicles. Petitioners are not denied the right to move from Point A to Point B along the toll way. Petitioners are free to access the toll way, much as the rest of the public can. The mode by which petitioners wish to travel pertains to the manner of using the toll way, a subject that can be validly limited by regulation. (Mirasol v. DPWH, G.R. No. 158793, June 8, 2006) City councils are authorized to enact curfew ordinances (as what respondents have done in this case) and enforce the same through their local officials. In other words, PD 603 provides sufficient statutory basis - as required by the Constitution - to restrict the minors' exercise of the right to travel. Considering that the right to travel is a fundamental right in our legal system guaranteed no less by our Constitution, the strict scrutiny test is the applicable test. (SPARK v. Quezon City, G.R. No. 225442, Aug. 8, 2017) No Right of Return to O Country Essentially, the right involved is the right to return to one's country, a totally distinct right under international law, independent from although related to the right to travel. Thus, the Universal Declaration of Humans Rights and the International Covenant on Civil and Political Rights treat the right to freedom of movement and abode within the territory of a state, the right to leave a country, and the right to enter one's country as separate and distinct rights. The Declaration speaks of the "right to freedom of movement and residence within the borders of each state" separately from the "right to leave any country, including his own, and to return to his country." (Marcos v. Manglapus, G.R. No. 88211, Sept. 15, 1989) Limitations (PHIL. CONST., art. III, § 6) RIGHT CONDITIONS FOR VALID CURTAILMENT LIBERTY OF ABODE Lawful order of the court and within the Page 221 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 limits prescribed by law. RIGHT TO TRAVEL May be curtailed even by administrative officers in the interest of national security, public safety, or public health, as may be provided by law. 2. WATCH-LIST AND HOLD DEPARTURE ORDERS Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the inherent power of the Courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxiliary writs, process and other means necessary to carry it into effect may be employed by such Court or officer. Holding an accused in a criminal case within the reach of the Courts by preventing his departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be dealt with in accordance with law. The offended party in any criminal proceeding is the People of the Philippines. It is to their best interest that criminal prosecutions should run their course and proceed to finality without undue delay, with an accused holding himself amenable at all times to Court Orders and processes. (Silverio v. CA, G.R. No. 94284, April 8, 1991) Department Circular No. 41 was bereft of legal basis because of the absence of a law authorizing the Secretary of Justice to issue Hold Departure Orders (HDO), Watch List Orders (WLO), or Allow Departure Order (ADO). The issuance of DOJ Circular No. 41, without a law to justify its action, is an unauthorized act of the DOJ of empowering itself under the pretext of dire exigency or urgent necessity (Genuino v. De Lima, G.R. No. 197930, April 17, 2018) I. EMINENT DOMAIN POLITICAL LAW Private property shall not be taken for public use without just compensation. (PHIL. CONST., art. III, § 9) 1. CONCEPT The State has the inherent power of eminent domain. It means the ultimate right of the sovereign power not only over public property but also over the private property of all citizens within its territorial sovereignty. Section 9 is NOT a grant of this power to the State but rather a limitation to it. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Who May Exercise (CELPQ) 1. Congress 2. Executive, pursuant to legislation enacted by Congress 3. Local government units, pursuant to an ordinance enacted by their respective legislative bodies (under LGC) 4. Public corporations, as may be delegated by law 5. Quasi-public corporations e.g. PNR, PLDT, Meralco. The delegated power of eminent domain of local government is strictly speaking not a power of eminent but of inferior domain--a share merely in eminent domain. Hence, it is only as broad as the authority delegated to it. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Since, as we have held above, the powers and functions of ISA have reverted to the Republic of the Philippines upon the termination of the statutory term of ISA, While the power of eminent domain is, in principle, vested primarily in the legislative department of the government, we believe and so hold that no new legislative act is necessary should the Republic decide, upon being substituted for ISA, in fact to continue to prosecute the expropriation proceedings. For the legislative authority, a long time ago, enacted a continuing or standing delegation of authority to the President of the Philippines to exercise, or cause the exercise of, the power of eminent domain on behalf of the Government of the Republic of the Philippines. Page 222 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 (Iron and Steel Authority v. CA, G.R. No. 102976, Oct. 25, 1995) REQUISITES FOR VALID EXERCISE: (TaPuCom) 1. There is a Taking of private property 2. Taking is for Public use 3. Payment of just Compensation The power of eminent domain is available only 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. Where the landowner agrees voluntarily to the taking of his property by the government for public use, he thereby waives his right to the institution of a formal expropriation proceeding covering such property. Failure for a long time of the owner to question the lack of expropriation proceedings covering a property that the government had taken constitutes a waiver of his right to gain back possession. The lando ner remedy in such case is an action for the payment of just compensation, not ejectment. (Republic of the Philippines v. Primo Mendoza and Maria Lucero, G.R. No. 185091, Aug. 8, 2010) The claim of Telephone Company A right of eminent domain cannot be properly resolved in a complaint for forcible entry or unlawful detainer. Eminent domain or expropriation is the inherent right of the state to condemn private property to public use upon payment of just compensation. The power is exercised by the legislature and may be delegated to local governments, other public entities, and public utilities. Expropriation may be judicially claimed only by filing a complaint for expropriation. An expropriation suit falls under the jurisdiction of the regional trial court because it is a case incapable of pecuniary estimation. It deals with the go ernmen exercise of its authority and right to take property for public use. The right of an expropriator to file a complaint for expropriation is not allowed in an action such as a forcible entry or unlawful detainer suit. These actions are summary in nature. Therefore, in this case, the Court cannot POLITICAL LAW award expropriation. Nevertheless, the resolution of this case is without prejudice to the filing of a separate case for expropriation. (PLDT v. Citi Appliance, G.R. No. 214546, October 9, 2019) The exercise of the right of eminent domain, whether directly by the State or by its authorized agents, is necessarily in derogation of private rights. It is one of the harshest proceedings known to the law. Consequently, when the sovereign delegates the power to a political unit or agency, a strict construction will be given against the agency asserting the power. The authority to condemn is to be strictly construed in favor of the owner and against the condemnor. (Jesus is Lord School v. Municipality of Pasig, G.R. No. 152230, Aug. 9, 2005) Eminent Domain is the taking of private property for public use, thus no expropriation proceeding can continue if the property to be expropriated will not be for public use. Considering that Corp A is no longer using respondent X properties for the purpose of building the Substation Project, it may be allowed to discontinue with the expropriation proceedings, subject to the approval of the court. However, in order to determine whether the expropriation may be dismissed, it must not fall under the following exceptions: first, the trial co r order already became final and executory, second, the government already took possession of the property; and lastly, the expropriation case already caused prejudice to the landowner. (National Power Corporation v. Posada, G.R. No. 191945, March 11, 2015) THERE IS TAKING OF PRIVATE PROPERTY The power of eminent domain must be distinguished from police power. When the State exercises "police power," property is merely "regulated." There is no transfer of ownership. By eminent domain, property is "taken." There is transfer of ownership. "Regulation" is not compensable but "taking" must be compensated. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011). In the context of the State's inherent power of eminent domain, there is "taking" where the owner is actually deprived or dispossessed of his Page 223 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 property; where there is a practical destruction or a material impairment of the value of his property; or when he is deprived of the ordinary use thereof. (PNOC v. Maglasang, G.R. No. 155407, Nov. 11, 2008) Neither can it be said that the right of eminent domain may be exercised by simply leasing the premises to be expropriated. Where, as here, the owner was compensated and not deprived of the ordinary and beneficial use of his property by its being diverted to public use, there is no taking within the constitutional sense. (PNOC v. Maglasang, G.R. No. 155407, Nov. 11, 2008) Elements of Taking (BEAPP) 1. 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; 2. The expropriator Enters the property; 3. Entry is made under warrant or color of legal Authority; 4. Property is devoted to Public use; and 5. The entrance must be Permanent (Republic v. Ortigas & Co., Ltd. Partnership, G.R. No. 171496, March 3, 2014) The owner of a property taken is entitled to be compensated when there is taking of private property for some public purpose. The Constitution proscribes taking of private property without just compensation, any taking must entail a corresponding appropriation for that purpose. When the road or street was delineated upon government request and taken for public use, the government must compensate the owner for his or her sacrifice, lest it violates the constitutional provision against taking without just compensation. (Republic v. Ortigas & Co., Ltd. Partnership, G.R. No. 171496, March 3, 2014) NPC is liable on the basis that its acquisition of a right-of-way easement over the portion of respondents' land was a taking under the power of eminent domain. A right-of-way easement or burden becomes a "taking" under eminent domain when there is material impairment of the value of the property or prevention of the ordinary uses of the property for an indefinite period. The intrusion into the property must be so immediate and direct as to subtract from the owner's full enjoyment of the POLITICAL LAW property and to limit his or her exploitation of it. Hence, due to the nature of the easement done by NPC in this case, which will deprive the normal use of the land for an indefinite period and expose the property owners' lives and limbs to danger, just compensation must be based on the full market value of the affected property. (NPC v Sps. Asoque, G.R. No. 172507, September 14, 2016) Expropriation is not limited to the acquisition of real property with a corresponding transfer of title or possession. The right-of-way easement resulting in a restriction or limitation on property rights over the land traversed by transmission lines also falls within the ambit of the term expropriation. The ownership of land extends to the surface as well as to the subsoil under it. Underground tunnels impose limitations on the o ner use of the property for an indefinite period and deprive them of its ordinary use. (NPC v. Lucman Ibrahim, G.R. No. 168732, June 29, 2007) There was a full taking on the part of NPC, notwithstanding that the owners were not completely and actually dispossessed. It is settled that the taking of private property for public use, to be compensable, need not be an actual physical taking or appropriation. (NAPOCOR v. Heirs of Macabangkit Sangkay, G.R. No. 165828, Aug. 24, 2011) Compensable taking includes destruction, restriction, diminution, or interruption of the rights of ownership or of the common and necessary use and enjoyment of the property in a lawful manner, lessening or destroying its value. (NAPOCOR v. Heirs of Macabangkit Sangkay, G.R. No. 165828, Aug. 24, 2011) The Republic may, in the exercise of the sovereign power of eminent domain, require the telephone company to permit interconnection of the government telephone system and that of the PLDT, as the needs of the government service may require, subject to the payment of just compensation to be determined by the court. Nominally, of course, the power of eminent domain results in the taking or appropriation of title to, and possession of, the expropriated property; but no cogent reason appears why the said power may not be availed of to impose only a burden upon the Page 224 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 owner of condemned property, without loss of title and possession. (Republic v. PLDT, G.R. No. L18841, Jan. 27, 1969) A regulation that deprives any person of the profitable use of his property constitutes a taking and entitles him to compensation, unless the invasion of rights is so slight as to permit the regulation to be justified under the police power. Similarly, a police regulation that unreasonably restricts the right to use business property for business purposes amounts to a taking of private property, and the owner may recover therefor. (OSG v. Ayala, G.R. No. 177056, Sept. 18, 2009) TAKING IS FOR PUBLIC USE The "public use" requirement for a and exercise of the power of eminent domain is a flexible and evolving concept influenced by changing conditions. It is accurate to state then that at present whatever may be beneficially employed for the general welfare satisfies the requirement of public use. Specifically, urban renewal or redevelopment and the construction of low-cost housing is recognized as a public purpose, not only because of the expanded concept of public use but also because of specific provisions in the Constitution. (Sumulong v. Guerrero, G.R. No. L48685, Sept. 30, 1987) Public use means p blic usefulness, utility or advantage, or what is productive of general benefit; so that any appropriating of private property by the State under its right of eminent domain for purposes of great advantage to the community, is a taking for public e. (Gohld Realty Co. v. Hartford, 104 A. 2d 365, 368-9 Conn., 1954; Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) The City of Manila, acting through its legislative branch, has the express power to acquire private lands in the city and subdivide these lands into home lots for sale to bona fide tenants or occupants thereof, and to laborers and lowsalaried employees of the city. That only a few could actually benefit from the expropriation of the property does not diminish its public use character. It is simply not possible to provide all at once land and shelter for all who need them. Corollary to the POLITICAL LAW expanded notion of public use, expropriation is not anymore confined to vast tracts of land and landed estates. It is therefore of no moment that the land sought to be expropriated in this case is less than half a hectare only. (Phil. Columbian Association v. Hon. Panis, G.R. No. L-106528, Dec. 21, 1993) The purpose in setting up the marker is essentially to recognize the distinctive contribution of the late Felix Manalo to the culture of the Philippines, rather than to commemorate his founding and leadership of the Iglesia ni Cristo. The practical reality that greater benefit may be derived by members of the Iglesia ni Cristo than by most others could well be true but such a peculiar advantage still remains to be merely incidental and secondary in nature. (Manosca v. CA, G.R. No. 106440, Jan. 29, 1996) 2. JUST COMPENSATION Just compensation has been defined as the "fair and full equivalent of the loss". The equivalent to be rendered for the property to be taken shall be real, substantial, full and ample. The constitutional limitation of "just compensation" is considered to be a sum equivalent to the market value of the property, broadly defined as the price fixed by the seller in open market in the usual and ordinary course of legal action and competition; or the fair value of the property; as between one who receives and one who desires to sell it, fixed at the time of the actual taking by the government. (NPC v Sps. Asoque, G.R. No. 172507, September 14, 2016) In eminent domain or expropriation proceedings, the just compensation is generally the market value. The market value is ha sum of money which a person is desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price to be given and received herefore. (Landbank of the Philippines v Manzano, GR 188243, Jan. 24, 2018) If municipal property is acquired in its corporate or private capacity, the State must pay just compensation. But if it is any other property such as public buildings or held by the municipality for the State in trust for the inhabitants, the State is free to dispose of it at will, without any compensation. (Land Bank v. Spouses Orilla, G.R. No. 157206, June 27, 2008) Page 225 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW The concept of just compensation does not imply fairness to the property owner alone. Compensation must be just not only to the property owner, but also to the public which ultimately bears the cost of expropriation. (DPWH v. Spouses Tecson, G.R. No. 179334, July 1, 2013) Includes Payment In Full Without Delay Just compensation does not only refer to the full and fair equivalent of the property taken; it also means, equally if not more than anything, payment in full without delay. (Land Bank of the Philippines v. Gallego, G.R. No. 173226, July 29 2013) Judicial Function The determination of just compensation is a judicial function which cannot be curtailed or limited by legislation, much less by an administrative rule. The executive department or legislature may make initial determinations but when a party claims a violation of the guarantee on the exercise of the power of eminent domain, no statute, decree, or executive order can mandate that its own determination shall prevail over the co r findings. (Landbank of the Philippines v Manzano, GR 188243, January 24, 2018) Tax Benefit as Just Compensation The tax benefit granted to the establishments can be deemed as their just compensation for private property taken by the State for public use. The taxation power can also be used as an implement for the exercise of the power of eminent domain. (Commissioner of Internal Revenue v. Central Luzon Drug Corporation, G.R. No. 159647, April 15, 2005) While administrative issuances are entitled to great respect, their application must always be in harmony with the law they seek to interpret. Administrative issuances or orders, though they enjoy the presumption of legalities, are still subject to the interpretation by the Supreme Court pursuant to its power to interpret the law. While rules and regulations issued by the administrative bodies have the force and effect of law and are entitled to great respect, courts interpret administrative regulations in harmony with the law that authorized them and avoid as much as possible any construction that would annul them as invalid exercise of legislative power. Thus, while the formula prescribed by the Department of Agrarian Reform requires due consideration, the determination of just compensation shall still be subject to the final decision of the special agrarian court. (Land Bank of the Philippines v. Franco, G.R. No. 203242, March 12, 2019) Just Compensation in Expropriation by LGUs The exercise of the power of eminent domain by a local government unit is now governed by Section 19 of Republic Act 7160. For properties under expropriation, the law now requires the deposit of an amount equivalent to fifteen percent (15%) of the fair market value of the property based on its current tax declaration. (Knecht v. Municipality of Cainta, G.R. No. 145254, 2006). Excludes Value of Excavated Soil The Court also upheld the CA ruling, which deleted the inclusion of the value of the excavated soil in the payment for just compensation. There is no legal basis to separate the value of the excavated soil from that of the expropriated properties. In the context of expropriation proceedings, the soil has no value separate from that of the expropriated land. Just compensation ordinarily refers to the value of the land to compensate for what the owner actually loses. Such value could only be that which prevailed at the time of the taking. (Republic of the Philippines, represented by the National Irrigation Administration v. Rural Bank of Kabacan Inc., G.R. No. 185124, Jan. 25, 2012) Who Are Entitled to Just Compensation: 1. Owner of the property 2. All owning, occupying or claiming to the property who have lawful interest in the property to be condemned (e.g. mortgagee, lessee, vendee under an executory contract). (Vda. De Ouano v. Republic, G.R. No. 168770, Feb. 9, 2011) Payment for Consequential Damages No actual taking of the building is necessary to grant consequential damages. Consequential damages are awarded if as a result of the expropriation, the remaining property of the owner suffers from an impairment or decrease in value. (Republic v. BPI, G.R. No. 203039, Sept. 11, 2013) Page 226 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 To determine just compensation, the trial court should first ascertain the market value of the property, to which should be added the consequential damages after deducting therefrom the consequential benefits which may arise from the expropriation. If the consequential benefits exceed the consequential damages, these items should be disregarded altogether as the basic value of the property should be paid in every case. (Republic v. BPI, G.R. No. 203039, Sept. 11, 2013) (B.H. Berkenkotter & Co. v. Court of Appeals, G.R. No. 89980, Dec. 14, 1992) Reckoning period The value of the property must be determined either as of the date of the taking of the property or the filing of the complaint, "whichever came first." (Eslaban v. De Onorio, G.R. No. 146062, June 18, 2001) If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or when no party appears to defend as required by this Rule, the court may issue an order of expropriation declaring that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. (ROC, Rule 67, § 4) Just Compensation in Agrarian Cases Under CARL, the final decision on the value of just compensation lies solely on the Special Agrarian Court. There is no need to exhaust administrative remedies through the various Adjudication Board of the Department of Agrarian Reform before a party can go to the Special Agrarian Court for determination of just compensation. (Landbank of the Philippines v Manzano, GR 188243, January 24, 2018) The Special Agrarian Court is req ired to con ider the facts in CARL and the formula in the administrative issuances. Consideration of these guidelines, however, does not mean that these are the sole bases for arriving at the just compensation. POLITICAL LAW The courts are not precluded from considering other factors. A argument on mandatory adherence to the provisions of law and the administrative orders must fail. (Landbank of the Philippines v Manzano, GR 188243, January 24, 2018) Settled is the rule that when the agrarian reform process is still incomplete, such as in this case where the just compensation due the landowner has yet to be settled, just compensation should be determined and the process be concluded under RA 6657. (Land Bank of the Philippines, v. Heirs of Jesus Alsua, G.R. No. 211351, Feb. 4, 2015) In determining just compensation, the cost of acquisition of the land, the current value of like properties, its nature, actual use and income, the sworn valuation by the owner, the tax declarations, and the assessment made by government assessors, shall be considered. The social and economic benefits contributed by the farmers and the farm workers and by government to the property as well as the non-payment of taxes or loans secured from any government financing institution on the said land shall be considered as additional factors to determine its valuation. (RA 6657, sec. 17, otherwise known as Comprehensive Agrarian Reform Law of 1988) It is not adequate to merely use the formula in an administrative order of the Department of Agrarian Reform or rely on the determination of a land assessor to show a final determination of the amount of just compensation. Courts are still tasked with considering all factors present, which may be stated in formulas provided by administrative agencies. When acting within the bounds of the Comprehensive Agrarian Reform Law, special agrarian courts "are not strictly bound to apply the DAR formula to its minute detail, particularly when faced with situations that do not warrant the formula's strict application; they may, in the exercise of their discretion, relax the formula's application to fit the factual situations before them. The Comprehensive Agrarian Reform Law merely provides for guideposts to ascertain the value of properties. Courts are not precluded from considering other factors that may affect the value of property. (Land Bank of the Philippines v. Franco, G.R. No. 203242, March 12, 2019) Page 227 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Effect of Non-Payment of Just Compensation Non-payment of just compensation does not entitle the private landowners to recover possession of their expropriated lot. But, the prolonged occupation of the government without instituting expropriation proceedings will entitle the landowner to damages. Such pecuniary loss entitles him to adequate compensation in the form of actual or compensatory damages, which in this case should be the legal interest (6%) on the value of the land at the time of taking, from said point up to full payment. (City of Iloilo v. Besana, G. R. No. 168967, Feb. 12, 2010) While the prevailing doctrine is that "the nonpayment of just compensation does not entitle the private landowner to recover possession of the expropriated lots, however, in cases where the government failed to pay just compensation within five (5) years from the finality of the judgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property. This is in consonance with the principle that "the government cannot keep the property and dishonor the judgment." To be sure, the five-year period limitation will encourage the government to pay just compensation punctually. This is in keeping with justice and equity. After all, it is the duty of the government, whenever it takes property from private persons against their will, to facilitate the payment of just compensation. We defined just compensation as not only the correct determination of the amount to be paid to the property owner but also the payment of the property within a reasonable time. Without prompt payment, compensation cannot be considered "just." (Republic v. Lim, G.R. No. 161656, June 29, 2005) Effect of Delay in Payment of Just Compensation Imposition of legal interest per annum on the just compensation due to the landowner is in the nature of damages for delay of payment. If property is taken for public use before compensation is deposited with the court having jurisdiction over the case, the final compensation must include interests on its just value to be computed from the time the property is taken to the time when compensation is actually paid or deposited with the court. (Landbank of the Philippines v Manzano, GR 188243, January 24, 2018) POLITICAL LAW The foregoing clearly dictates that valuation of the land for purposes of determining just compensation should not include the inflation rate of the Philippine Peso because the delay in payment of the price of expropriated land is sufficiently recompensed through payment of interest on the market value of the land as of the time of taking from the landowner. (NAPOCOR v. Manalastas, G.R. No. 196140, Jan. 27, 2016) Under Article III, Section 9 of the 1987 Constitution, pri a e property shall not be taken for public use without just compen a ion. The SC notes that for almost 20 years, the DPWH had been enjoying the use of X property without paying the full amount of just compensation under the Compromise Agreement. In keeping with substantial justice, the Court imposes the payment of legal interest on the remaining just compensation due to X. (Republic of the Philippines v. Fetalvero, G.R. No. 198008, February 4, 2019.) The concept of delay does not pertain to the length of time that elapsed from the filing of the Complaint until its resolution. Rather, it refers to the fact that property was taken for public use before compensation was deposited with the court having jurisdiction over the case. There will be delay if the property was taken for public use before compensation was paid or deposited with the court. Hence, between the taking of the property and the actual payment, legal interests accrue in order to place the owners in a position as good as the position they were in before the taking occurred. (National Power Corporation v. Heirs of Gregorio Ramoran, G.R. No. 193455, June 13, 2016) 3. ABANDONMENT OF INTENDED USE AND RIGHT OF REPURCHASE If the property ceases to be used for a public purpose, the property reverts to the owner in fee simple. (Bernas, The 1987 Constitution: A Comprehensive Reviewer, 2006). We now expressly hold that the taking of private property, consequent to the Go ernmen exercise of its power of eminent domain, is always subject to the condition that the property be devoted to the specific public purpose for which it Page 228 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 was taken. Corollarily, if this particular purpose or intent is not initiated or not at all pursued, and is peremptorily abandoned, then the former owners, if they so desire, may seek the reversion of the property, subject to the return of the amount of just compensation received. In such a case, the exercise of the power of eminent domain has become improper for lack of the required factual justification. (Mactan-Cebu International Airport v. Lozada, G.R. No. 176625, Feb. 25, 2010) If the genuine public necessity the very reason or condition as it were allowing, at the first instance, the expropriation of a private land ceases or disappears, then there is no more cogent point for the go ernmen retention of the expropriated land. The same legal situation should hold if the government devotes the property to another public use very much different from the original or deviates from the declared purpose to benefit another private person. A condemnor should commit to use the property pursuant to the purpose stated in the petition for expropriation, failing which it should file another petition for the new purpose. If not, then it behooves the condemnor to return the said property to its private owner, if the latter so desires. Lands should be differentiated from a piece of land, ownership of which was absolutely transferred by way of an unconditional purchase and sale contract freely entered by two parties, one without obligation to buy and the other without the duty to sell. In that case, the fee simple concept really comes into play. There is really no occasion to apply the "fee simple concept" if the transfer is conditional. The taking of a private land in expropriation proceedings is always conditioned on its continued devotion to its public purpose. As a necessary corollary, once the purpose is terminated or peremptorily abandoned, then the former owner, if he so desires, may seek its reversion, subject of course to the return, at the very least, of the just compensation received. (Ouano, et. al. v. Republic, G.R. No.168770, Feb. 9, 2011) 4. EXPROPRIATION BY LOCAL GOVERNMENT UNITS Requisites Before an LGU Can Exercise the Power of Eminent Domain (OPJO): POLITICAL LAW 1. An Ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property. 2. The power of eminent domain is exercised for Public use, purpose or welfare, or for the benefit of the poor and the landless. 3. There is payment of Just compensation, as required under Section 9, Article III of the Constitution, and other pertinent laws. 4. A valid and definite Offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted. (LOCAL GOVERNMENT CODE, sec. 19) Immediate Entry In the case of LGUs, entry into the property may be made before payment provided that a deposit is made in an amount set by the court (15%). The local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated. (LOCAL GOVERNMENT CODE, sec. 19) Limitations on the Exercise of the Eminent Domain Powers of LGUs Order of priority in acquiring land for socialized housing: Private lands rank last in the order of priority for purposes of socialized housing. RA No. 7279 (Urban Development & Housing Act) lays down the mandatory priority in the acquisition of lands: 1. Those owned by the government 2. Alienable lands of the public domain 3. Unregistered, idle, or abandoned lands 4. Those within declared Areas of Priority Development, Zonal Improvement, Slum Improvement, or Resettlement Program sites Bagong Lipunan Improvement Sites and Services (BLISS) which have not been acquired 5. Privately owned lands (last in the priority) Other modes of acquisition must first be exhausted. Page 229 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW The City of Manila failed to comply with any of the aforesaid requirements. The exercise of eminent domain cannot override the guarantees of due process conferred upon the property owners. (Heirs of JBL Reyes v. City of Manila, G.R. Nos. 132431 & 137146, Feb. 13, 2004) the public use character of the taking. Any law fixing the amount of just compensation is not binding on the courts because it is a question of fact which is always subject to review by the courts. (Bernas, The 1987 Constitution: A Commentary, 2009) LGUs v. National Government On the part of local government units, expropriation is also governed by Section 19 of the Local Government Code: The statements made in tax documents by the assessor may serve as one of the factors to be considered but they cannot exclude or prevail over a court determination made after expert commissioners have examined the property and all pertinent circumstances are taken into account and after the parties have had the opportunity to fully plead their cases before a competent and unbiased tribunal. (Manotok v. NHA, G.R. No. L-55166, May 21, 1987) LGUs 1. The filing of a complaint for expropriation sufficient in form and substance; and 2. The deposit of the amount equivalent to 15% of the fair market value of the property to be expropriated based on its current tax declaration. (Iloilo v. Legaspi, G.R. No. 154614, Nov. 25, 2004) Pursuant to Section 2 of Rule 67 of the 1997 Revised Rules of Civil Procedure: 1. The filing of a complaint for expropriation sufficient in form and substance; and NATIONAL GOV T 2. The making of a deposit equivalent to the assessed value of the property subject to expropriation. Upon compliance with the requirements, the issuance of the writ of possession becomes ministerial. (Biglang-awa v. Bacalla, G.R. Nos. 139927 and 139936, Nov. 22, 2000) JUDICIAL REVIEW Matters That May be Reviewed by the Courts: (ANP) 1. The Adequacy of the compensation 2. The Necessity of the taking 3. The P b c U character of the taking If the expropriation is pursuant to a specific law passed by Congress, the courts cannot question A previous decision is no obstacle to the legislative arm of the Government in thereafter (over two years later in this case) making its own independent assessment of the circumstances then prevailing as to the propriety of undertaking the expropriation of the properties in question and thereafter by enacting the corresponding legislation as it did in this case. (Republic v. De Knecht, G.R. No. 87335, Feb. 12, 1990) EMINENT DOMAIN V. POLICE POWER Action to Recover Just Compensation v. Action for Damages ACTION TO ACTION FOR RECOVER JUST DAMAGES COMPENSATION Also known as inverse Seeks to vindicate a condemnation, has legal wrong through the objective to damages, which may recover the value of be actual, moral, property taken in fact nominal, temperate, by the governmental liquidated, or defendant, even exemplary though no formal exercise of the power When a right is of eminent domain has exercised in a manner been attempted by the not conformable with taking agency. the norms enshrined in Article 19 and like provisions on human relations in the Civil Code, and the Page 230 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 exercise results to the damage of another, a legal wrong is committed and the wrongdoer is held responsible. The two actions are radically different in nature and purpose. The action to recover just compensation is based on the Constitution while the action for damages is predicated on statutory enactments. Indeed, the former arises from the exercise by the State of its power of eminent domain against private property for public use, but the latter emanates from the transgression of a right. The fact that the owner rather than the expropriator brings the former does not change the essential nature of the suit as an inverse condemnation, for the suit is not based on tort, but on the constitutional prohibition against the taking of property without just compensation. It would very well be contrary to the clear language of the Constitution to bar the recovery of just compensation for private property taken for a public use solely on the basis of statutory prescription. (NAPOCOR v. Heirs of Mabangkit Sangkay, G.R. No. 165828, Aug. 24, 2011) Article III, Section 9 of the Constitution provides a substantive guarantee that private property that is taken by the state for public use should be paid for with just compensation. If the state does not agree with the property owner on a price, the state, through the competent government agency, should file the proper expropriation action under Rule 67 of the Revised Rules of Court. In case of a taking without the proper expropriation action filed, the property owner may file its own action to question the propriety of the taking or to compel the payment of just compensation. Among these inverse condemnation actions is a complaint for payment of just compensation and damages. When an inverse condemnation is filed, the provisions for the appointment of commissioners under Rule 32 not Sections 5, 6, 7, or 8 of Rule 67 of the Rules of Court will be followed. (NPC v. Sps. Asoque, G.R. No. 172507, Sept. 14, 2016) MISCELLANEOUS APPLICATION 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. Exceptions to the Exception: If the value increased independently of what the expropriator did, then the value is that of the FILING of the case. Even before compensation is given, entry may be made upon the property condemned by depositing the money or an equivalent form of payment such as government bonds. J. NON-IMPAIRMENT OF CONTRACTS No law impairing the obligation of contracts shall be passed. (PHIL. CONST., art. 3, § 10) What Constitutes Impairment 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. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) (Clemens v. Nolting, 42 Phil. 702, Jan. 24, 1922) The non-impairment clause is a limit on the exercise of legislative power and not of judicial or quasi-judicial power. The SEC, through the hearing panel that heard the petition for approval of the Rehabilitation Plan, was acting as a quasi-judicial body and thus, its order approving the plan cannot constitute an impairment of the right and the freedom to contract. (BPI v. SEC, G.R. No. 164641, 2007) Settled is the rule that the non-impairment clause of the Constitution must yield to the loftier purposes targeted by the Government. The right granted by this provision must submit to the demands and Page 231 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 necessities of the State's power of regulation. Such authority to regulate businesses extends to the banking industry which, as this Court has time and again emphasized, is undeniably imbued with public interest. (Goldenway v. Merchandising Corporation v. Equitable PCI Bank, G.R. No. 195540, 2013) Public Contracts The non-impairment clause protects contracts with the government, including franchises. However, the obligation arising from franchises are subject to modification by police power. This is in consonance with Article 12, Section 11. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Even granting that the "agreement" between the two governments or their representatives creates a binding obligation under international law, it remains incumbent for each contracting party to adhere to its own internal law in the process of complying with its obligations. The promises made by a Philippine president or his alter egos to a foreign monarch are not transubstantiated by divine right so as to ipso facto render legal rights of private persons obviated. (Kuwait Airways v. Philippine Airlines, G.R. No. 156087, 2009) POLITICAL LAW Licenses are Not Considered Contracts Timber licenses, permits, and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. It cannot be denied that they merely evidence a privilege granted by the State, and it does not vest a permanent or irrevocable right. They are not deemed contracts within the due process of law clause. (Oposa v Factoran, G.R. No. 101083, July 30, 1993; C&M Timber Corporation v. Alcala, G.R. No. 111088, June 13, 1997) Instances When the Non-impairment Clause is Inapplicable The parties to a contract cannot, through the exercise of prophetic discernment, fetter the exercise of the taxing power of the State. For not only are existing laws read into contracts in order to fix obligations as between parties, but the reservation of essential attributes of sovereign power is also read into contracts as a basic postulate of the legal order. The policy of protecting contracts against impairment presupposes the maintenance of a government, which retains adequate authority to secure the peace and good order of society. In truth, the Contract Clause has never been thought as a limitation on the exercise of the State's power of taxation save only where a tax exemption has been granted for a valid consideration. (Tolentino v. Secretary of Finance, G.R. No. 115455, Oct. 30, 1995) These contractual stipulations on the use of the land even if said conditions are annotated on the Torrens title can be impaired if necessary to reconcile with the legitimate exercise of police power. (Presley v. Bel-Air Village Association, Inc., G.R. No. 86774, Aug. 21, 1991) (Ortigas & Co. Limited Partnership v. Feati Bank and Trust Co., G.R. No. L-24670, Dec. 14, 1979) Impairment is anything that diminishes the efficacy of the contract. Section 47 of the General Banking Law did not divest juridical persons of the right to redeem their foreclosed properties but only modified the time for the exercise of such right by reducing the one-year period originally provided in Act No. 3135. (Goldenway Merchandising Corp. v. Equitable PCI Bank, G.R. No. 195540, March 13, 2013) Page 232 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 The free exercise of religious profession or belief is superior to contract rights. In case of conflict, the latter must, therefore, yield to the former. (Victoriano v. Elizalde Rope Workers’ Union, G.R. No. L-25246, Sept. 12, 1974) K. ADEQUATE LEGAL ASSISTANCE AND FREE ACCESS TO COURTS Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. (PHIL. CONST., art. 3, § 11) Indigent Party A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. Such authority shall include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court may order to be furnished him. The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides. (ROC, Rule 3, § 21) Indigent Litigants Exempt From Payment of Legal Fees Indigent litigants (a) whose gross income and that of their immediate family do not exceed an amount double the monthly minimum wage of an employee and (b) who do not own real property with a fair market value as stated in the current tax declaration of more than three hundred thousand (P300,000.00) pesos shall be exempt from the payment of legal fees. The legal fees shall be a lien on any judgment rendered in the case favorable to the indigent litigant unless the court otherwise provides. To be entitled to the exemption herein provided, the litigant shall execute an affidavit that he and his POLITICAL LAW immediate family do not earn a gross income abovementioned, and they do not own any real property with the fair value aforementioned, supported by an affidavit of a disinterested person attesting to the truth of the litigan affidavit. The current tax declaration, if any, shall be attached to the li igan affidavit. (ROC, Rule 141, § 19) Matter of Right If the applicant for exemption meets the salary and property requirements under Section 19 of Rule 141, then the grant of the application is mandatory and is a matter of right. (Algura v. The Local Government Unit of the City of Naga G.R. No. 150135, Oct. 30, 2006) Matter of Discretion On the other hand, when the application does not satisfy one or both requirements, then the application should not be denied outright; instead, the court should apply the "indigency test" under Section 21 of Rule 3 that the applicant has no money or property sufficient and available for food, shelter and basic necessities for himself and his family and use its sound discretion in determining the merits of the prayer for exemption. (Algura v. The Local Government Unit of the City of Naga G.R. No. 150135, Oct. 30, 2006) S Expenses Sheriff expenses are not exacted for any service rendered by the court; they are the amount deposited to the Clerk of Court upon filing of the complaint to defray the actual travel expenses of the sheriff, process server or other courtauthorized persons in the service of summons, subpoena and other court processes that would be issued relative to the trial of the case. Thus, in In Re: Exemption of Cooperatives from Payment of Court and Sheriff Fees Payable to the Government in Actions Brought Under R.A. 6938, the Court clarified that heriff expenses are not considered as legal fees. (In Re Letter of Chief Public Attorney Acosta, AM No. 11-10-03-O, July 30, 2013) L. RIGHT AGAINST SELF INCRIMINATION No person shall be compelled to be a witness against himself. (PHIL. CONST., art. 3, § 17) Page 233 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 Concept It is the duty of the prosecution, in order to convict one of a crime, to produce evidence showing guilt beyond a reasonable doubt; and the accused cannot be called upon either by express words or acts to assist in the production of such evidence; nor should his silence be taken as proof against him. He has a right to rely on the presumption of innocence until the prosecution proves him guilty of every element of the crime with which he is charged. (US v. Navarro, G.R. No. 1272, Jan. 11, 1904) The right against self-incrimination is not merely a formal technical rule the enforcement of which is left to the discretion of the court; it is mandatory; it secures to a defendant a valuable and substantive right; it is fundamental to our scheme of justice. Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Thus, an accused has: 1. The right to forego testimony, and 2. The right to remain silent, unless he chooses to take the witness stand. (Chavez v. CA, G.R. No. L-29169, Aug. 19, 1968) Purpose It was established on the grounds of public policy and humanity 1. Of Policy: Because if the party were required to testify, it would place the witness under the strongest temptation to commit the crime of perjury. 2. Of Humanity: Because it would prevent the extorting of confessions by duress. (US v. Navarro, G.R. No. 1272, Jan. 11, 1904) Option of Refusal to Answer, Not a Prohibition of Inquiry The right against self-incrimination prescribes an option of refusal to answer incriminating questions and not a prohibition of inquiry. It simply secures to a witness, whether he be a party or not, the right to refuse to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. (People v. Ayson, G.R. No. 85215, July 7, 1989) 1. SCOPE AND COVERAGE Against Testimonial Compulsion The kernel of the right is not against all compulsion, but against testimonial compulsion. The right against self-incrimination is simply against the legal process of extracting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence. (Agustin v. CA, G.R. No. 162571, June 15, 2005) Covers Writing in a Prosecution for Falsification Writing is something more than moving the body, or the hands, or the fingers; writing is not a purely mechanical act, because it requires the application of intelligence and attention. Writing means that the accused is to furnish a means to determine whether or not he is the falsifier. (Beltran v. Samson, G.R. No. 32025, Sept. 23, 1929) Purely Mechanical Act: Must Be Related to the Offense Charged Petitioner was arrested for extortion; he resisted having his urine sample taken; and finally, his urine sample was the only available evidence that was used as basis for his conviction for the use of illegal drugs. The drug test was a violation of petitioner's right to privacy and right against self-incrimination. Cases where non-testimonial compulsion has been allowed reveal, however, that the pieces of evidence obtained were all material to the principal cause of the arrest. In the instant case, we fail to see how a urine sample could be material to the charge of extortion. The RTC and the CA, therefore, both erred when they held that the extraction of pe i ioner urine for purposes of drug testing was merely a mechanical act. (Dela Cruz v. People, G.R. No. 200748, July 23, 2014) EXCLUSIONS The essence of the right against self-incrimination is testimonial compulsion, that is, the giving of evidence against himself through a testimonial act. Page 234 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Purely mechanical acts are not included in the prohibition as the accused does not thereby speak his guilt, hence the assistance and guiding hand of counsel is not required. Thus, the right against self-incrimination does not apply in the following cases: 1. A woman charged with adultery may be compelled to submit to physical examination to determine her pregnancy. 2. An accused may be compelled to submit to physical examination and to have a substance taken from his body for medical determination as to whether he was suffering from gonorrhea which was contracted by his victim. 3. To e pel morphine from he defendan mo h. 4. To ha e he o line of he defendan foo traced to determine its identity with bloody footprints. 5. To be photographed or measured, or his garments or shoes removed or replaced, or to move his body to enable the foregoing things to be done. (Dela Cruz v. People, G.R. No. 200748, July 23, 2014) Over the years, the Supreme Court has expressly excluded several kinds of object evidence taken from the person of the accused from the realm of self-incrimination. These include: 1. Photographs, hair, and other bodily substances. 2. E amina ion of a oman geni alia, in an ac ion for annulment filed by her husband, to verify his claim that she was impotent, her orifice being too small for his penis. 3. DNA testing and its results. (Agustin v. CA, G.R. No. 162571, June 15, 2005) The right against self-incrimination does not apply to records required by law to be kept which are the appropriate subjects of governmental regulation and where restrictions are validly established. (Shapiro v. United States, 335 U.S. 1, June 21, 1948) WHEN TO INVOKE; WAIVER Available Only When the Incriminatory Question is Asked The right against self-incrimination can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to POLITICAL LAW decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to him, the answer to which may incriminate him for some offense, that he may refuse to answer on the strength of the constitutional guaranty. (People v. Ayson, G.R. No. 85215, July 7, 1989) 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. Further, a crime or a criminal act may contain two or more elements and that a question would have a tendency to incriminate, even if it tends to elicit only one of said elements. (Isabela Sugar Co. v. Macadaeg, G.R. No. L-5924, Oct. 28, 1953) Not Self-Executing; May Be Waived The right against self-incrimination is not selfexecuting or automatically operational. It must be claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. (People v. Ayson, G.R. No. 85215, July 7, 1989) When a person, however, voluntarily answers an incriminating question, he is deemed to have waived his right. Moreover, after the accused has pleaded guilty, for the purpose of ascertaining the proper penalty to be imposed or for any other legal purposes, the court may properly ask such questions which are necessary to that end. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Where the witness, in answer to previous incriminating questions, said, "I do not remember," that is clearly a refusal to answer, and the privilege is not deemed waived thereby. (Isabela Sugar Co. v. Macadaeg, G.R. No. L-5924, Oct. 28, 1953) Not a Valid Waiver; Judgement Void; Habeas Corpus is a Proper Remedy Page 235 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 In this case, petitioner is a defendant in a criminal case. He was called by the prosecution as the first witness in that case to testify for the People during the first day of trial thereof. Petitioner objected and invoked the privilege of self-incrimination. This he broadened "by the clear cut statement that he will not e if . But petitioner's protestations were met with the judge's emphatic statement that it "is the right of the prosecution to ask anybody to act as witness on the witness stand including the accused," and that defense counsel "could not object to have the accused called on the witness stand." The cumulative impact of all these is that accused-petitioner had to take the stand. He was thus peremptorily asked to create evidence against himself. The Court ruled that there is therefore no waiver of the privilege. To be effective, a waiver must be certain and unequivocal, and intelligently, understandably, and willingly made; such waiver following only where liberty of choice has been fully accorded. Habeas corpus is a high prerogative writ. It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights are disregarded. Such defect results in the absence or loss of jurisdiction and therefore invalidates the trial and the consequent conviction of the accused whose fundamental right was violated. That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus. This writ may issue even if another remedy which is less effective may be availed of by the defendant. Thus, failure by the accused to perfect his appeal before the Court of Appeals does not preclude a recourse to the writ. The writ may be granted upon a judgment already final. (Chavez v. CA, G.R. No. L-29169, Aug. 19, 1968) WHO MAY INVOKE Only Applies to Natural Persons Unlike the search and seizure clause, which protects both natural persons and corporations, the privilege against self-incrimination is a personal one, applying only to natural individuals. Thus, a corporation may be compelled to submit to the visitorial powers of the state even if this results in disclosure of criminal acts of the corporation. Moreover, a corporate officer may not prevent the production of corporate papers on the ground that they may incriminate him personally, for in such a situation it would not be a case of the officer incriminating himself but the corporation incriminating him. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Accused v. Ordinary Witness ACCUSED The defendant in a cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. The defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. ORDINARY WITNESS The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. A witness cannot refuse to take the witness stand. It is only when a particular question is addressed to which may incriminate himself for some offense that he may refuse to answer on the strength of the constitutional guaranty. As to an accused in a criminal case, it is settled that he can refuse outright to take the stand as a witness. An accused occupies a different tier of protection from an ordinary witness. Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others 1. To be exempt from being a witness against himself, and 2. To testify as witness in his own behalf; but if he offers himself as a witness he may be crossexamined as any other witness; however, his Page 236 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 neglect or refusal to be a witness shall not in any manner prejudice or be used against him. The right of the defendant in a criminal case to be exempt from being a witness against himself signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. In other words unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. (Rosete v. Lim, G.R. No. 136051, June 8, 2006) 2. APPLICATION General Rule: The right against self-incrimination is available in any civil, criminal, or administrative proceeding. (People v. Ayson, G.R. No. 85215, July 7, 1989) Expanded Application 1. The right is extended to respondents in administrative investigations that partake of the nature of or are analogous to criminal proceedings. 2. The right extends to all proceedings sanctioned by law. 3. The right extends to all cases in which punishment is sought to be visited upon a witness, whether a party or not. 4. The right extends to legislative investigations. 5. The right extends to administrative proceedings which possess a criminal or penal aspect, i.e. medical board investigation. 6. The right extends to investigations conducted by a fact-finding ad hoc board. (Standard Chartered Bank v. Senate Committee on Banks, G.R. NO. 167173, Dec. 27, 2007; Pascual v. Board of Medical Examiners, G.R. No. L-25018, May 26, 1969; Galman v. Pamaran, G.R. Nos. 71208-09, Aug. 30, 1985) POLITICAL LAW Nature and Purpose A state response to the constitutional exception the right against self-incrimination to its vast powers, especially in the field of ordinary criminal prosecution and in law enforcement and administration, is the use of an immunity statute. Immunity statutes seek a rational accommodation between the imperatives of an indi id al constitutional right against self-incrimination (considered the fount from which all statutes granting immunity emanate) and the legitimate governmental interest in securing testimony. By voluntarily offering to give information on the commission of a crime and to testify against the culprits, a person opens himself to investigation and prosecution if he himself had participated in the criminal act. To secure his testimony without exposing him to the risk of prosecution, the law recognizes that the witness can be given immunity from prosecution. In this manner, the state interest is satisfied while respecting the indi id al s constitutional right against self-incrimination. (Quarto v. Ombudsman, G.R. No. 169042, Oct. 5, 2011) Kinds of Immunity Statutes 1. Use Immunity prohibits use of witness' compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. 2. Transactional Immunity grants immunity to the witness from prosecution for an offense to which his compelled testimony relates. (Galman v. Pamaran, G.R. Nos. 71208-09, Aug. 30, 1985) Source of Immunity: The Legislative The power to grant immunity from prosecution is essentially a legislative prerogative. The exclusive power of Congress to define crimes and their nature and to provide for their punishment concomitantly carries the power to immunize certain persons from prosecution to facilitate the attainment of state interests, among them, the solution and prosecution of crimes with high political, social and economic impact. In the exercise of this power, Congress possesses broad discretion and can lay down the conditions and the extent of the immunity to be granted. (Quarto v. Ombudsman, G.R. No. 169042, Oct. 5, 2011) 3. IMMUNITY STATUTES Page 237 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Authority to Grant Immunity: The Executive, But Reviewable by Courts While the legislature is the source of the power to grant immunity, the authority to implement is lodged elsewhere. The authority to choose the individual to whom immunity would be granted is a constituent part of the process and is essentially an executive function. (Quarto v. Ombudsman, G.R. No. 169042, Oct. 5, 2011) On the other hand, it is the trial court that determines whether the pro ec ion preliminary assessment of the accused- i ne qualifications to be a state witness satisfies the procedural norms. This relationship is in reality a symbiotic one as the trial court, by the very nature of its role in the administration of justice, largely exercises its prerogative based on the pro ec or findings and evaluation. The court is given this power once it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. (Quarto v. Ombudsman, G.R. No. 169042, Oct. 5, 2011) Extent of Judicial Review of a Bestowed Immunity An immunity statute does not, and cannot, rule out a review by the Supreme Court of the Omb d man exercise of discretion. Like all other officials under our constitutional scheme of government, all their acts must adhere to the Constitution. The parameters of the Co r review, however, are narrow as the Court is not a trier of facts. Since the determination of the requirements under Section 17, Rule 119 of the Rules of Court (Discharge of Accused to be State Witness) is highly factual in nature, the Court must, thus, generally defer to the judgment of the Ombudsman who is in a better position (than the Sandiganbayan or the defense) to know the relative strength and/or weakness of the evidence presently in his possession and the kind, tenor and source of testimony he needs to enable him to prove his case. Thus, the Court rules on the basis of a petition for certiorari under Rule 65 and address mainly the Omb d man exercise of discretion. The room for intervention only occurs when a clear and grave abuse of the exercise of discretion is shown. (Quarto v. Ombudsman, G.R. No. 169042, Oct. 5, 2011) POLITICAL LAW M. RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. (PHIL. CONST., art. 3, § 12) Miranda Rights Under Sec. 12(1) 1. The right to remain silent. 2. The right to have competent and independent counsel preferably of his own choice. 3. The right to be informed of such rights. (People v. Rapeza, G.R. No. 169431, April 3, 2007) Purpose The objective is to prohibit incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights. (People v. Rapeza, G.R. No. 169431, April 3, 2007) The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or trick captive suspects into confessing, to relieve the inherently compelling pressures generated by the custodial setting itself, which work to undermine the indi id al will to resist, and as much as possible to free courts from the task of scrutinizing individual cases to try to determine, after the fact, whether particular confessions were voluntary. Page 238 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Those purposes are implicated as much by incustody questioning of persons suspected of misdemeanours as they are by questioning of persons suspected of felonies. (People v. Chavez, G.R. No. 207950, Sept. 22, 2014) RIGHT TO REMAIN SILENT Silence Not an Implied Admission of Guilt Clearly, when appellant remained silent when confronted by the accusation of "AAA" at the police station, he was exercising his basic and fundamental right to remain silent. At that stage, his silence should not be taken against him. Thus, it was error on the part of the trial court to state that appellan silence should be deemed as implied admission of guilt. (People v. Guillen, G.R. No. 191756, Nov. 25, 2013) A person under investigation has the right to refuse to answer any question. His silence, moreover, may not be used against him. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Must Include an Explanation that Anything Said Can and Will be Used Against Him The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. (Miranda v. Arizona, 384 U.S. 436, June 13, 1966) RIGHT TO COMPETENT AND INDEPENDENT COUNSEL Purpose The right to counsel at all times is intended to preclude the slightest coercion as would lead the accused to admit something false. The lawyer, however, should never prevent an accused from freely and voluntarily telling the truth. (People v. Mojello, G.R. No. 145566, March 9, 2004) Mandatory; Must be Provided if Person Cannot Afford The right to counsel is mandatory. Thus, if the person under custodial investigation cannot afford the services of a competent and independent POLITICAL LAW counsel, he must be provided with one. (PHIL. CONST., art. III, § 12[1]) Counsel of Choice Not Exclusive The right to counsel does not mean that the accused must personally hire his own counsel. The constitutional requirement is satisfied when a counsel is: 1. Engaged by anyone acting on behalf of the person under investigation; or 2. Appointed by the court upon petition of the said person or by someone on his behalf. (People v. Espiritu, G.R. No. 128287, Feb. 2, 1999) The phrase "preferably of his own choice" does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling the defense; otherwise the tempo of custodial investigation will be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer who, for one reason or another, is not available to protect his interest. (People v. Mojello, G.R. No. 145566, March 9, 2004) Non-Independent Counsel The Constitution further requires that the counsel be independent; thus, he cannot be: 1. A special counsel 2. Public or private prosecutor 3. Counsel of the police 4. A municipal attorney whose interest is admittedly adverse to that of the accused 5. Barangay captain 6. Lawyer applying for a position in the NBI where it was NBI conducting the investigation (People v. Reyes, G.R. No. 178300, March 17, 2009; People v. Tomaquin, G.R. No. 133188, July 23, 2004; People v. Januario, G.R. No. 98252, Feb. 7, 1997) Competent Counsel: Effective and Vigilant A competent counsel is an effective and vigilant counsel. An "effective and vigilant counsel" necessarily and logically requires that the lawyer be present and able to advise and assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession. (People v. Tomaquin, G.R. No. 133188, July 23, 2004) Page 239 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW RIGHT TO BE INFORMED issuing an in i a ion to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the in i ing officer for any violation of law. This means that even those who voluntarily surrendered before a police officer must be apprised of their Miranda rights. For one, the same pressures of a custodial setting exist in this scenario. (People v. Bitancor, GR. No. 207950; Sept. 22, 2014) Transmission of Meaningful Information An accused's right to be informed of the right to remain silent and to counsel contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. (People v. Januario, G.R. No. 98252, Feb. 7, 1997) Effective Communication on the Part of the Police The right of a person under custodial investigation to be informed of his rights to remain silent and to counsel implies a correlative obligation on the part of the police investigator to explain and to contemplate an effective communication that results in an understanding of what is conveyed. Short of this, there is a denial of the right, as it cannot then truly be said that the person has been truly informed of his rights. (People v. Januario, G.R. No. 98252, Feb. 7, 1997) When accused was merely told of his constitutional rights but was never asked whether he understood what he was told or whether he wanted to exercise or avail of such rights is an ineffective and inadequate compliance with the mandates of the constitution. Any confession obtained under these circumstances is flawed and cannot be used as evidence not only against the declarant but also against his co-accused. (People v. Verano, G.R. No. 181474, July 26, 2017) 1. AVAILABILITY Custodial Investigation The invocation of these rights applies during custodial investigation, which begins when the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police who starts the interrogation and propounds questions to the person to elicit incriminating statements. (People v. Chavez, G.R. No. 207950, Sept. 22, 2014) Applies to Invitation, R for A a a c & Voluntary Surrender Republic Act No. 7438 expanded the definition of custodial investigation to incl de the practice of The circumstances surrounding the appearance of the accused in the police station falls within the definition of custodial investigation. He was identified as a suspect and when he was given a req est for appearance , he was already singled out as the probable culprit. When he appeared before the police station, the pressure of custodial setting was present. Furthermore, based on his testimony, the police was inside the station during the confrontation. A "request for appearance" issued by law enforcers to a person identified as a suspect is akin to an "invitation." Thus, he is covered by the rights of an accused while under custodial investigation. Any admission obtained from the "request for appearance" without the assistance of counsel is inadmissible in evidence. (Lopez v. People, G.R. No. 212186, June 29, 2016) Does Not Apply to Police Lineups As a rule, a police lineup is not part of the custodial investigation. The right to be assisted by counsel attaches only during custodial investigation and cannot be claimed by the accused during identification in a police line-up because it is not part of the custodial investigation process. This is because during a police line-up, the process has not yet shifted from the investigatory to the accusatory and it is usually the witness or the complainant who is interrogated and who gives a statement in the course of the line-up. (People v. Lara, G.R. No. 199877, Aug. 13, 2012) However, the moment there is a move or even an urge of said investigators to elicit admissions or confessions or even plain information which may appear innocent or innocuous at the time, from said suspect, he should then and there be assisted by counsel, unless he waives the right, but the waiver shall be made in writing and in the presence of Page 240 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 counsel. (Gamboa v. Judge Cruz, G.R. No. L56291 June 27, 1988) NON-AVAILABILITY 1. The rights are not available before government investigators become involved. Thus, admissions made in an administrative investigation conducted by officials of the Philippine Airlines do not come under Section 12. (People v. Ayson, G.R. No. 85215, July 7, 1989) 2. The rights are not available when the confession or admission is made to a private individual. (People v. Tawat, G.R. No. L62871, May 25, 1984) 3. The rights do not apply to a person undergoing audit because an audit examiner is not a law enforcement officer. (Navallo v. Sandiganbayan, G.R. No. 97214, July 16, 1994) 4. The rights do not apply to a verbal admission made to a radio announcer who was not part of the investigation. (People v. Ordono, G.R. No. 132154, June 29, 2000) 5. The rights do not apply to an admission made to a mayor who is approached not as mayor but as confidante. (People v. Zuela, G.R. No. 112177, Jan. 28, 2000) 6. The rights do not apply to an interview recorded on video in the presence of newsmen, but the Supreme Court warned that trial courts should admit similar confessions with extreme caution. (People v. Endino, G.R. No. 133026, Feb. 20, 2001) 7. The rights do not apply to persons who voluntarily surrender, where no written confession was sought to be presented in evidence as a result of a formal custodial investigation. (People v. Taylaran, G.R. No. L49149, Oct. 23, 1981) 8. The rights do not apply to spontaneous statements, not elicited through questioning by the authorities, but given in an ordinary manner whereby the accused orally admits having committed the crime. (People v. Baloloy, G.R. No. 140740, April 12, 2002) 9. Person in a police line-up not entitled to counsel. (Gamboa v. Judge Cruz, G.R. No. L56291 June 27, 1988) 10. Administrative proceedings. (Cudia v. Superintendent of the PMA, G.R. No. 211362, Feb. 24, 2015) 11. Signing of arrest reports and booking sheets. It is not an extra-judicial statement and cannot be the basis of a judgment of conviction. The Booking Sheet is merely a statement of the POLITICAL LAW accused's being booked and of the date which accompanies the fact of an arrest. (People v. Bandin, G.R. No. 104494, Sept. 10, 1993) When Rights End The Criminal Process includes: 1. Investigation prior to the filing of charges 2. Preliminary examination and investigation after charges are filed 3. Period of trial The Miranda rights or the Section 12(1) rights were conceived for the first of these three phases, that is, when the inquiry is under the control of police officers. It is in this situation that the psychological if not physical atmosphere of custodial investigations, in the absence of proper safeguards, is inherently coercive. Outside of this situation, Section 12(1) no longer applies and Sections 14 and 17 come into play instead. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) The right to counsel under Section 12 (1) of Article III of the Constitution applies in criminal proceedings, but not in administrative proceedings. Any proceeding conducted by an administrative body is not part of the criminal investigation or prosecution. While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of the respondent's capacity to represent himself, and no duty rests on such body to furnish the person being investigated with counsel. In an administrative proceeding, a respondent has the option of engaging the services of counsel or not. Thus, the right to counsel is not always imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measure against erring public officers and employees, with the purpose of maintaining the dignity of government service. As such, the hearing conducted by the investigating authority is not part of a criminal prosecution. (Gutierrez v COA, G.R. No. 200628, Jan. 13, 2015, citing Remolona v CSC, G.R. No. 137473, Aug. 2, 2001) Summary of Availability and Non-Availability Page 241 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 AVAILABLE 1. After a person has been taken into custody 2. When a person is deprived of his freedom of action in any significant way 3. When a person is issued an invitation for an investigation in connection with an offense he is suspected to have committed 4. When a person voluntarily surrenders to the police 5. The investigation is being conducted by the government with respect to a criminal offense (police, DOJ, NBI) NOT AVAILABLE 1. During a police lineup [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 5. Signing of arrest reports and booking sheets 2. REQUISITES The Miranda doctrine requires that: (S3A) 1. Any person under custodial investigation has the right to remain Silent; 2. Anything he says can and will be used Against him in a court of law; 3. He has the right to talk to an Attorney before being questioned and to have his counsel present when being questioned; and 4. If he cannot Afford an attorney, one will be provided before any questioning if he so desires. (People v. Cabanada, G.R. No. 221424, July 19, 2017) 3. WAIVER The rights of persons under custodial investigation cannot be waived except: 1. In writing; and 2. In the presence of counsel. (PHIL. CONST., art. III, § 12[1]) R.A. 7438 Extrajudicial Confession (Sec. 2) Any extrajudicial confession made by a person arrested, detained or under custodial investigation: 1. Shall be in writing; and POLITICAL LAW 2. Signed by such person in the presence of his counsel or in the latter's absence: a. Upon a valid waiver, and b. In the presence of any of the following as chosen by him/her: Parents Elder brothers and sisters Spouse Municipal mayor Municipal judge District school supervisor Priest or minister of the gospel RA 7438 does not propose that the persons mentioned above appear in the alternative or as a substitute for counsel without any condition or clause. It is explicitly stated therein that before the above-mentioned persons can appear two (2) conditions must be met: 1. Counsel of the accused must be absent, and 2. A valid waiver must be executed. (People v. Ordono, G.R. No. 132154, June 29, 2000) Extrajudicial Confession Under the present laws, a confession to be admissible must be: (WAVES) 1. Made in Writing, and in the language known to and understood by the confessant; 2. Made with the Assistance of competent and independent counsel; 3. Given Voluntarily and intelligently where the accused realized the legal significance of his act; 4. Express and categorical; and 5. Signed, or if the confessant does not know how to read and write, thumbmarked by him. (People v. Olivarez, Jr., G.R. No. 77865, Dec. 4, 1998) Burden of Proof: Lies With the Prosecution Whenever a protection given by the Constitution is waived by the person entitled to that protection, the presumption is always against the waiver. Consequently, the prosecution must prove with strongly convincing evidence to the satisfaction of this Court that indeed: 1. The accused willingly and voluntarily submitted his confession; and 2. Knowingly and deliberately manifested that he was not interested in having a lawyer assist him during the taking of that confession. (People v. Jara, G.R. No. L-61356-57, Sept. 30, 1986) Effect of Absence of a Valid Waiver: Confession Inadmissible in Evidence Page 242 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 In the absence of a valid waiver, any confession obtained during the police custodial investigation relative to the crime, including any other evidence secured by virtue of the said confession is inadmissible in evidence even if the same was not objected to during the trial by the counsel of the appellant. (People v. Samontañez, G.R. No. 134530, Dec. 4, 2000) EXCLUSIONARY RULE Any confession or admission obtained in violation of the rights of a person under custodial investigation hereof shall be inadmissible in evidence against him. (PHIL. CONST., art. III, § 12[3]) Nature According to the exclusionary rule, once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the "fruit") derived from it is also inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas the "fruit of the poisonous tree" is the indirect result of the same illegal act. The "fruit of the poisonous tree" is at least once removed from the illegally seized evidence, but it is equally inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegally obtained evidence taints all evidence subsequently obtained. (People v. Samontañez, G.R. No. 134530, Dec. 4, 2000) Covers Both Confession & Admission Admission an act, declaration or omission of a party as to a relevant fact. Confession a declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein. (Aquino v. Paiste, G.R. No. 147782, June 25, 2008) Only Covers Confession or Admission Made During Custodial Investigation Infractions of the so-called Miranda rights render inadmissible only the extrajudicial confession or admission made during custodial investigation. The admissibility of other evidence, provided they are relevant to the issue and is not otherwise excluded by law or rules, is not affected even if POLITICAL LAW obtained or taken in the course of custodial investigation. The fact that that accused was not assisted by counsel during the investigation and inquest proceedings does not in any way affect his culpability. It has already been held that "the infractions of the so-called Miranda rights render inadmissible only the extrajudicial confession or admission made during custodial investigation." Here, appellant's conviction was based not on his alleged uncounseled confession or admission but on the testimony of the prosecution witness. (People v. Bio, G.R. No. 195850, Feb. 16, 2015) However, there is merit in J ani o claim that his constitutional rights during custodial investigation were violated by Judge Dicon when the latter propounded to him incriminating questions without informing him of his constitutional rights. It is settled that at the moment the accused voluntarily surrenders to, or is arrested by, the police officers, the custodial investigation is deemed to have started. So, he could not thenceforth be asked about his complicity in the offense without the assistance of counsel. Judge Dicon claim that no complaint has yet been filed and that neither was he conducting a preliminary investigation deserves scant consideration. The fact remains that at that time Juanito was already under the custody of the police authorities, who had already taken the statement of the witnesses who were then before Judge Dicon for the administration of their oaths on their statements. At any rate, while it is true that J ani o extrajudicial confession before Judge Dicon was made without the advice and assistance of counsel and hence inadmissible in evidence, it could however be treated as a verbal admission of the accused, which could be established through the testimonies of the persons who heard it or who conducted the investigation of the accused. (People v. Baloloy, G.R. No. 140740, April 12, 2002) Exclusionary Rule Not Applicable to the Violator of the Right The constitutional provision makes the confessions and admissions inadmissible again him, that is, against the source of the confession or admission. And it is he alone who can ask for exclusion. They are, however, admissible against the person Page 243 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 violating the constitutional prohibition, to the extent that admissibility is allowed by the ordinary rules on evidence. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Inter Alios Acta Rule General Rule: An extrajudicial confession is binding only on the confessant and is not admissible against his or her co-accused because it is considered as hearsay against them. The rights of a party cannot be prejudiced by an act, declaration, or omission of another. Exception: An admission made by a conspirator under Section 31, Rule 130 of the Rules of Court. This provision states that the act or declaration of a conspirator in furtherance of the conspiracy and during its existence may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act of declaration. It is admissible against a coaccused when it is used as circumstantial evidence to show the probability of participation of said co-accused in the crime. Thus, in order that the admission of a conspirator may be received against his or her co-conspirators, it is necessary that: 1. The conspiracy be first proved by evidence other than the admission itself; 2. The admission relates to the common object; and 3. It has been made while the declarant was engaged in carrying out the conspiracy. (People v. Cachuela, G.R. No. 191752, June 10, 2013) In order that an extra-judicial confession may be used against a co-accused of the confessant, there must be a finding of other circumstantial evidence which when taken together with the confession would establish the guilt of a co-accused beyond reasonable doubt. (People v. Constancio, G.R. No. 206226, April 04, 2016) N. RIGHTS OF THE ACCUSED 1. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. (PHIL. CONST., art. 3, § 13) 2. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. (PHIL. CONST., art. 3, § 14) Rights of the Accused 1. Criminal due process 2. Bail 3. Presumption of innocence 4. Right to be heard 5. Assistance of counsel 6. Right to be informed of the nature and cause of accusation 7. Right to speedy, impartial, and public trial 8. Right to confrontation 9. Compulsory process 10. Trials in absentia 3. CRIMINAL DUE PROCESS Concept As to procedural due process, the requirement that no person shall be held to answer for a criminal offense without due process of law simply requires that the procedure established by law be followed. If that procedure fully protects life, liberty and property of the citizens in the state, then it will be held to be due process of law. (U.S. v. Ocampo, G.R. No. L-5527, Dec. 22, 1910) Page 244 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 This presupposes that the penal law being applied satisfies the substantive requirements of due process. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Another aspect of due process is the right to be tried by an impartial judge (cold neutrality of an independent, wholly-free, disinterested and impartial tribunal). (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011). Due Process and Military Tribunal A military commission or tribunal cannot try and exercise jurisdiction, even during the period of martial law, over civilians for offenses allegedly committed by them as long as civil courts are open and functioning, and that any judgement rendered by such body relating to a civilian is null and void for lack of jurisdiction on the part of the military tribunal concerned. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) 4. BAIL Concept Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety; property bond, cash deposit, or recognizance. (ROC, Rule 114, § 1) Purpose (0) To honor the presumption of innocence until his guilt is proven beyond reasonable doubt (1) To enable him to prepare his defense without being subjected to punishment before conviction (Cortes v. Catral, A.M. No. RTJ-971387, Sept. 10, 1997) The main purpose of bail is to relieve an accused from the rigors of imprisonment until his conviction and secure his appearance at the trial. Thus, as bail is intended to secure one provisional liberty, the same cannot be posted before custody over him has been acquired by the judicial authorities, either by lawful arrest or voluntary surrender. Only those who have been either arrested, detained, or otherwise deprived of their freedom, will ever have the occasion to seek the protective mantle extended by the right to bail. But the person seeking provisional release need not wait for a formal complaint or information to be filed against him. (Paderanga v. Court of Appeals, G.R. No. 115407, Aug. 28, 1995) General Rule: All persons actually detained shall, before conviction be entitled to bail. (PHIL. CONST., art. 3, § 13). Since bail is constitutionally available to all per on , it must be available to one who is detained even before formal charges are filed. Exceptions: (1) Persons charged with offenses punishable by reclusion perpetua, life imprisonment and death, when evidence of guilt is strong For the purpose of determining whether an offense is punishable by reclusion perpetua, what is determinative is the penalty provided for by law regardless of the attendant circumstances. To require more than that would practically entail a full-dress trial thereby defeating the purpose of bail which is to enable the accused to obtain liberty pending trial. Strong evidence means proof e iden pre mp ion grea . or (2) Persons who are members of the AFP facing a court martial Trial Court Conviction If convicted by the trial court, bail is only discretionary pending appeal (Magno v. Abbas, G.R. No. L-19361, Feb.y 26, 1965; Comendador, et al. v. Villa, G.R. No. 93177, Aug. 2, 1991) When a person who is out on bail is convicted, the bondsman must surrender him for execution of the final judgement. (ROC, Rule 114, § 2[d]) Under Section 13, Article 3, Before Conviction, Bail is Either: A. A matter of right: When the offense charged is punishable by any penalty lower than reclusion perpetua. To this extent, the right is absolute. Page 245 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 B. A matter of discretion: When the offense charged is punishable by reclusion perpetua, it shall be denied if the evidence of guilt is strong. Once it is determined that the evidence of guilt is not strong, bail becomes a matter of right. (People v. Nitcha, G.R. No. 113517, Jan. 19, 1995) Discretion refers to the co r discretion to determine whether or not the evidence of guilt is strong. Do not confuse interpretation of Bail under Bill of Rights with the interpretation of Bail under Rule 114 of the Revised Rules of Criminal Procedure as to: i. Bail as a Matter of Right (Sec 4), ii. Bail as a Matter of Discretion (Sec 5), iii. Non-Bailable offenses (Sec 7). Strong Evidence Means Evident Proof or Presumption is Great Evident proof means clear, strong evidence which leads a well-guarded dispassionate judgment to the conclusion that the offense has been committed as charged, and that the accused is the guilty agent. Presumption is great when the circumstances testified to are such that the inference of guilt naturally to be drawn therefrom is strong, clear, and convincing to an unbiased judgment and excuses all reasonable probability of any other conclusion. (People v. Judge Cabral, G.R. No. 131909, Feb. 18, 1999) Since the grant of bail is discretionary and can only be determined by judicial findings, such discretion can only be exercised after evidence is submitted to the court, the petitioner has the right of cross examination and to introduce his own evidence in rebuttal. (Santos v. Judge How, A.M. No. RTJ-051946, Jan. 26, 2007) Health Considerations A mere claim of illness is not a ground for bail. Bail is not a sick pass for an ailing or aged detainee or prisoner needing medical care outside the prison facility. (People v. Fitzgerald, G.R. No. 149723, Oct. 27, 2006) POLITICAL LAW BUT SEE: The currently fragile state of Enrile health presents another compelling justification for his admission to bail. Bail for the provisional liberty of the accused, regardless of the crime charged, should be allowed independently of the merits of the charge, provided his continued incarceration is clearly shown to be injurious to his health or to endanger his life. Indeed, denying him bail despite imperiling his health and life would not serve the true objective of preventive incarceration during the trial. Accordingly, we conclude that the Sandiganbayan arbitrarily ignored the objective of bail to ensure the appearance of the accused during the trial; and unwarrantedly disregarded the clear showing of the fragile health and advanced age of Enrile. As such, the Sandiganbayan gravely abused its discretion in denying Enrile Motion to Fix Bail. (Juan Ponce Enrile v. Sandiganbayan, G.R. No. 213847, Aug. 18, 2015) A person is considered to be in the custody of law when: (1) He is arrested by virtue of a warrant of arrest or by warrantless arrest. (2) He has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities. The Court held that when the person has actually posted a bail bond, which was accepted by the court, he has effectively submitted himself to the jurisdiction of the court over his person. (Paderanga v. Court of Appeals, G.R. No. 115407, Aug. 28, 1995) Other Rights in Relation to Bail: A. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended B. Excessive bail shall not be required (PHIL. CONST., art. 3, § 13). Factors to be considered in setting the amount of bail: (F3P3 CAWN) 1. Financial Ability of the accused to give bail 2. Forfeiture of other bail Page 246 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 3. The accused was a Fugitive from justice when arrested 4. Probability of the accused appearing at the trial 5. Penalty for the offense charged 6. Pendency of other cases where the accused is on bail 7. Character and reputation of the accused 8. Age and health of the accused 9. Weight of the evidence against the accused 10. Nature and circumstance of the offense (ROC, Rule 114, § 9) Where the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive. (De La Camara v. Enage, G.R. Nos. L32951-2, Sept. 17, 1971) To fix bail at an amount equivalent to the civil liability of which petitioner is charged is to permit the impression that the amount paid as bail is an exaction of the civil liability that accused is charged of; this we cannot allow because bail is not intended as a punishment, nor as a satisfaction of civil liability which should necessarily await the judgment of the appellate court. (Yap v. CA, G.R. 141529, June 6, 2001) Courts Cannot Strictly Require Cash Bond The condition that the accused may have provisional liberty only upon his posting of a cash bond is abhorrent to the nature of bail and transgresses our law on the matter. The allowance of a cash bond in lieu of sureties is authorized in this jurisdiction only because our rules expressly provide for it. And even where cash bail is allowed, the option to deposit cash in lieu of a surety bond primarily belongs to the accused. Recognizance An obligation of record entered into before a court guaranteeing the appearance of the accused for trial. It is in the nature of a contract between the surety and the state. The details on how recognizance can be obtained or when it is applicable is left to legislation. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) POLITICAL LAW Apart from bail, a person may attain provisional liberty through recognizance, which is an obligation of record entered into by a third person before a court, guaranteeing the appearance of the accused for trial. It is in the nature of a contract between the surety and the state. (People v. Abner, G.R. No. L2508, Oct. 27, 1950) Dismissal of Appeal in Criminal Cases Due to Jumping of Bail The Court of Appeals/Supreme Court may, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant: 1. If appellant escapes from prison or confinement; 2. If appellant jumps bail; or 3. If appellant flees to another country during the pendency of the appeal (ROC, Rule 124, § 8; Rule 125, § 1) Bail in Deportation Proceedings As a general rule, the constitutional right to bail is available only in criminal proceedings. Thus, they do not apply in deportation proceedings, which are administrative in nature. However, see Mejoff v. Director of Prisons, where the court applied the general principles of international law found in the UDHR and ordered released under a bond in a Habeas Corpus petition. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Bail in Extradition Cases Our extradition law does not provide for the grant of bail to an extraditee. There is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. However, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subject to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings. The standard used in granting bail in extradition cases is clear and convincing e idence. This standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. Page 247 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 The potential extraditee must prove by clear and convincing e idence that : i. he is not a flight risk and will abide with all the orders and processes of the extradition court, and ii. that there exist special, humanitarian, and compelling reasons for him to be released on bail. (Government of Hong Kong v. Olalia, Jr., G.R. No.153675, April 19, 2007) Right to a Hearing In cases where the accused is charged with an offense punishable by reclusion perpetua, a hearing, mandatory in nature and which should be summary or otherwise in the discretion of the court, is required with the participation of both the defense and a duly notified representative of the prosecution for the purpose of ascertaining whether or not the evidence of guilt is strong. The constitutional right to bail necessarily includes the right to a hearing. When bail is denied without a hearing, a fundamental right is violated. Hence, the presentation of evidence for the prosecution in private inquiry, in the absence of the detainee, and the subsequent issuance of an order on the basis of the private inquiry, cannot be allowed. The hearing, however, need not be separate and distinct from the trial itself. And it need only be summary. The right to a prompt hearing is waived by agreeing to postponements. Parallel to the acc ed right to a hearing is the pro ec ion right to present evidence. If the prosecution is denied such right, the grant of bail is void. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) 3. PRESUMPTION OF INNOCENCE Concept Its principal effect is that no person shall be convicted unless the prosecution has proved him guilty beyond reasonable doubt. (Bernas, The 1987 Constitution: A Comprehensive Reviewer, 2011) Prima Facie Presumption 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. (U.S. v Luling, G.R. No. L11162, Aug. 12, 1916) Accusation Not Synonymous With Guilt An accusation, according to the fundamental law, is not synonymous with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a candidate is disqualified from running for public office on the ground alone that charges have been filed against him before a civil or military tribunal. It condemns before one is fully heard. A person disqualified to run for public office on the ground that charges have been filed against him is virtually placed in the same category as a person already convicted of a crime with the penalty of arresto, which carries with it the accessory penalty of suspension of the right to hold office during the term of the sentence (REVISED PENAL CODE, art. 44) (Dumlao v. COMELEC, G.R. No. L-52245, Jan. 22, 1980) Conviction in Illegal Drugs Cases To convict an accused of the illegal sale of dangerous drugs, the prosecution must not only prove that the sale took place, but also present the corpus delicti in evidence. The only time that conviction may be sustain despite noncompliance with the chain of custody requirements is if there were justifiable grounds provided. Before the courts may consider the seized drugs as evidence despite noncompliance with the legal requirements, justifiable grounds must be identified and proven. The prosecution must establish the steps taken to ensure that the integrity and evidentiary value of the seized items were preserved. It is the positive duty to establish its reason for the procedural lapses. (People v. Ternida y Munar, G.R. No. 212626, June 3, 2019) Continues Pending Appeal Presumption of innocence persists even when there is conviction by lower court and case is still on appeal. Such presumption is not destroyed until there is proof that accused is guilty beyond reasonable doubt based on evidence. (Bernas, The 1987 Constitution: A Comprehensive Reviewer, 2011) Equipoise Rule Page 248 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 Where the evidence in a criminal case is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused. (People v. Erguiza, G.R. No. 171348, Nov. 26 2008) Anti-Hazing Law Section 14 of the Anti-Hazing Law provides that an accused's presence during a hazing is prima facie evidence of his or her participation. However, this does not violate the constitutional presumption of innocence. The constitutional presumption of innocence is not violated when there is a logical connection between the fact proved and the ultimate fact presumed. When such prima facie evidence is unexplained or not contradicted by the accused, the conviction founded on such evidence will be valid. However, the prosecution must still prove the guilt of the accused beyond reasonable doubt. The existence of a disputable presumption does not preclude the presentation of contrary evidence. Neither has it been shown how Section 14 does away with the requirement that the prosecution must prove the participation of the accused in the hazing beyond reasonable doubt. (Fuertes v. Senate of the Philippines, G.R. No. 208162, Jan. 07, 2020) Duty of Court to Inform Accused of his Right to Counsel 1. Inform accused that he has the right to have his own counsel before being arraigned; 2. After giving such information, to ask accused whether he desires the aid of counsel; 3. If he so desires to procure the services of counsel, the court must grant him reasonable time to do so; and 4. If he so desires to have counsel but is unable to employ one, the court must assign a counsel de officio to defend him. (People v. Agbayani, G.R. No. 122770, Jan 16, 1998) (ROC, Rule 116, § 6) When an accused unaided by counsel qualifiedly admits his guilt to an ambiguous or vague information from which a serious crime can be deduced, it is not prudent for the trial court to render a serious judgment finding the accused guilty of a capital offense without absolutely any evidence to determine and clarify the true facts of the case. (People v. Holgado, G.R. No. L-2809, March 22, 1950) 6. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION 4. RIGHT TO BE HEARD Includes the right to be present at the trial from arraignment to promulgation of sentence. (U.S. Beecham, G.R. No. 5161 & 5162, Oct. 9, 1912) After arraignment, trial may notwithstanding absence of accused. proceed Elements: (PIC3) 1. 2. 3. 4. 5. Right to be Present at the trial; Right to Counsel; Right to an Impartial judge; Right of Confrontation; Right to Compulsory process to secure the attendance of witnesses. (Bernas, The 1987 Constitution: A Comprehensive Reviewer, 2011) 5. ASSISTANCE OF COUNSEL Purpose 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. (U.S. v. Karelsen, G.R. No. 1376, Jan. 21, 1904) Sufficiency of Complaint or Information A complaint or information is sufficient if it states the: 1. Name of the accused; 2. Designation of the offense given by the statute; 3. Acts or omissions complained of as constituting the offense; 4. Name of the offended party; 5. Approximate date of the commission of the offense; and 6. Place where the offense was committed. Page 249 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 When an offense is committed by more than one person, all of them shall be included in the complaint or information. (ROC, Rule 110, § 6) 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 based on the caption, preamble or from the cited provision of law allegedly violated. (People v. Labado, G.R. No. L-38548, July 24, 1980) In a situation where a court (in a fused action for the enforcement of criminal and civil liability) may validly order an accused-respondent to pay an obligation arising from a contract, a per on right to be notified of the complaint, and the right to have the complaint dismissed if there is no cause of action, are completely defeated. If the accusedrespondent is completely unaware of the nature of the liability claimed against him or her at the onset of the case, he is blindsided. It is a clear violation of a person's right to due process. (Gloria S. Dy v. People of the Philippines, GR No. 189081, August 10, 2016) POLITICAL LAW information. (People v. Begino, G.R. No. 181246, March 20, 2009) Date of Commission of the Crime General Rule: It is unnecessary to state in the information the precise date that the offense was committed Exception: When it is an essential element of the offense. (People v. Bugayong, G.R. No. 126518, Dec. 2, 1998) When the time given in the complaint is not essential, it need not be proven as alleged. The complaint will be sustained if there is proof that the offense was committed at any time within the period of the statute of limitations and before the commencement of the action. The date of commission is not an element of rape. The gravamen of rape is carnal knowledge of a woman. (People v. Rafon, G.R. No. 169059, Sept. 5, 2007) The Supreme Court has upheld complaints and information in prosecutions for rape which merely alleged the month and year of its commission. (People v. Ching, G.R. No. 177150, Nov. 22, 2007) 7. RIGHT TO SPEEDY, IMPARTIAL, AND PUBLIC TRIAL a. Right to Speedy Trial Qualifying and Aggravating Circumstances Must be Alleged The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. (ROC, Rule 110, § 8) Factors Used in Determining Whether the Right to a Speedy Trial Has Been Violated: (TL-RAP) 1. Time expired from the filing of the information 2. Length of delay involved 3. Reasons for the delay 4. Assertion or non-assertion of the right by the accused 5. Prejudice caused to the defendant (Bernas, The 1987 Constitution: A Comprehensive Reviewer 2011) Since the qualifying circumstance of common law po e was not alleged in the Information for rape against appellant, he could not be convicted of rape in the qualified form as he was not properly informed of the nature and cause of accusation against him. In a criminal prosecution, it is a fundamental rule that every element of the crime charged must be alleged in the complaint or Remedy if the Right to Speedy Trial was violated: 1. He can move for the dismissal of the case 2. If he is detained, he can file a petition for the issuance of writ of habeas corpus. (Bernas, The 1987 Constitution: A Comprehensive Reviewer, 2011) Page 250 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 The right to speedy trial is considered violated only when the proceeding is attended by vexatious, capricious and oppressive delays. Courts are required to do more than a mathematical computation of the number of postponements of the scheduled hearings of the case and to give particular regard to the facts and circumstances peculiar to each case. (Nelson Imperial, et al. v. Maricel M. Joson, et al.; Santos O. Francisco v. Spouses Gerard and Maricel Joson Nelson; Imperial, et al. v. Hilarion C. Felix, et al., G.R. Nos. 160067, 170410, 171622, Nov. 17, 2010) Where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance for more than a year, the accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, by habeas corpus to obtain his freedom. (Conde v. Rivera, G.R. No. L-21741, Jan. 25, 1924) Dismissal Based on the 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. (Bernas, The 1987 Constitution: A Comprehensive Reviewer, 2011) Speedy Trial v. Speedy Disposition of Cases The right to a speedy trial is available only to an accused and is a peculiarly criminal law concept, while the broader right to a speedy disposition of cases may be tapped in any proceedings conducted by state agencies. In this case, the appropriate right involved is the right to a speedy disposition of cases, the recovery of ill-gotten wealth being a civil suit. (Coconut Producers Federation, Inc. et al. v. Republic of the Philippines; Wigberto E. Tanada, et al., intervenors; Danilo S. Ursua v. Republic of the Philippines, G.R. Nos. 177857-58 & G.R. No. 178193, Jan. 24, 2012) b. Right to Impartial Trial The accused is entitled to the cold neutrality of an impartial j dge. It is an element of due process. POLITICAL LAW When a judge has previously convicted a person of a crime i.e., arson, he should disqualify himself from hearing another case involving the same person, but with a different crime, i.e., malversation (Ignacio v. Villaluz, G.R. No. L-37527-52, May 25, 1979) c. Right to 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. (Garcia v. Domingo, G.R. No. L-30104, July 25, 1973) The purpose is to serve as a afeg ard against any attempt to employ our courts as instruments of pro ec ion. The knowledge that every trial is subject to the contemporaneous review in the forum of the public opinion is an effective restraint on possible abuse of judicial power. (Garcia v. Domingo, G.R. No. L-30104, July 25, 1973) 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 he failed to object thereto. An accused is entitled to a public trial, at least to the extent of having his friends, relatives and counsel present no matter with what offense he may be charged. (In Re: Oliver, 333 U.S. 257, March 8, 1948) 8. RIGHT OF CONFRONTATION Purpose 1. To afford the accused an opportunity to crossexamine the witness 2. To allow the judge the opportunity to observe the conduct or demeanor of the witness (Bernas, The 1987 Constitution: A Comprehensive Reviewer, 2011) Exceptions to the right to face witnesses: 1. The admissibility of d ing declara ion 2. Trial in absentia under Section 14(2) 3. With respect to child testimony (Bernas, The 1987 Constitution: Comprehensive Reviewer, 2011) A Page 251 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 Notes: Where a party has had the opportunity to crossexamine an opposing witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record. (People v. Seneris, G.R. No. L-48883, Aug. 6, 1980) It is demandable only during trials. Thus, it cannot be availed of during preliminary investigations. Right of confrontation is available during trial which begins only upon arraignment. Section 7 of the Special Rules of Procedure prescribed for Shari a courts aforecited provides that if the plaintiff has no evidence to prove his claim, the defendant shall take an oath and judgment shall be rendered in his favor by the Court. On the other hand, should defendant refuse to take an oath, plaintiff may affirm his claim under oath, in which case judgment shall be rendered in his favor. Said provision effectively deprives a litigant of his constitutional right to due process. It denies a party his right to confront the witnesses against him and to crossexamine them. It should have no place even in the Special Rules of Procedure of the Shari a courts of the country. (Tampar v. Usman, G.R. No. 82077, Aug. 16, 1991) 9. COMPULSORY PROCESS Compulsory process to secure: 1. The attendance of witnesses 2. The production of evidence in his behalf The 1973 and 1987 Constitutions expanded the right to compulsory process which now includes the right to secure the production of evidence in one's behalf. By analogy, U.S. v. Ramirez which laid down the requisites for compelling the attendance of witnesses, may be applied to this expanded concept. Thus, the movant must show: 1. That the evidence is really material; 2. That he is not guilty of neglect in previously obtaining the production of such evidence; 3. That the evidence will be available at the time desired; and 4. That no similar evidence could be obtained. (Bernas, The 1987 Constitution: A Comprehensive Reviewer, 2011) 10. TRIALS IN ABSENTIA Requisites (ANU) 1. The accused has been validly Arraigned and 2. Accused has been duly Notified; and 3. His failure to appear is Unjustifiable. (Parada v. Veneracion, A.M. No. RTJ-96-1353, March 11, 1997) This is allowed to speed up disposition of criminal cases. (People v. Salas, G.R. No. L-66469, July 29, 1986) Voluntary Waiver Trial in absentia can also take place when the accused voluntarily waives his right to be present. The right may be waived provided that after arraignment he may be compelled to appear for the purpose of identification by the witnesses of the prosecution, or provided he unqualifiedly admits in open court after his arraignment that he is the person named as the defendant in the case on trial. Thus, for an accused to be excused from attending trial, it is not enough that he vaguely agrees to be identified by witnesses in his absence. He must unqualifiedly admit that every time a witness mentions as name by which he is known, the witness is to be understood as referring to him. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Judgement In Absentia While the accused is entitled to be present during promulgation of judgment, the absence of his counsel during such promulgation does not affect its validity. Promulgation of judgment in absentia is valid provided that the essential elements are present: 1. That the judgment be recorded in the criminal docket; and 2. That a copy be served upon the accused or counsel. Recording the decision in the criminal docket of the court satisfies the requirement of notifying the accused of the decision wherever Page 252 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 he may be. (Estrada v. People, G.R. No. 162371, Aug. 25, 2005) WHEN PRESENCE OF THE ACCUSED IS A DUTY 1. Arraignment and Plea 2. During Trial, for identification 3. Promulgation of Sentence Exception: Light offense where accused need not personally appear. It is important to state that the provision of the Constitution authorizing the trial in absentia of the accused in case of his non-appearance after arraignment despite due notice simply means that he thereby waives his right to meet the witnesses face to face among others. An express waiver of appearance after arraignment, as in this case, is of the same effect. However, such waiver of appearance and trial in absentia does not mean that the prosecution is thereby deprived of its right to require the presence of the accused for purposes of identification by its witnesses which is vital for the conviction of the accused. Such waiver of a right of the accused does not mean a release of the accused from his obligation under the bond to appear in court whenever so required. The accused may waive his right but not his duty or obligation to the court. (Carredo v. People, G.R. No. 77542, March 19, 1990) O. RIGHT TO THE SPEEDY DISPOSITION OF CASES All persons shall have the right to a speedy disposition of their cases before all judicial, quasijudicial, or administrative bodies. (PHIL. CONST., art. III, § 16) Concept The right to speedy disposition of cases is a relative and flexible concept. To determine whether or not a person's right to speedy disposition of cases is violated, there are four factors to consider. The four (4) factors (1) the length of the delay; (2) the reason for the delay; (3) the respondent's assertion of the right; and (4) prejudice to the respondent are to be considered together, not in isolation. The interplay of these factors determine whether the POLITICAL LAW delay was inordinate. (Baya v. Sandiganbayan, G.R. Nos. 204978-83, July 6, 2020) In evaluating criminal cases invoking the right to speedy disposition of cases, a case is deemed to have commenced from the filing of the formal complaint and the subsequent conduct of the preliminary investigation. (Republic v. Sandiganbayan, G.R. No. 231144, Feb. 19, 2020) A mere mathematical reckoning of the time involved, therefore, would not be sufficient. In the application of the constitutional guarantee of the right to speedy disposition of cases, particular regard must also be taken of the facts and circumstances peculiar to each case. (Binay v. Sandiganbayan, G.R. 120681, Oct. 1, 1999) Waiver The person must invoke his or her constitutional right to speedy disposition of cases in a timely manner and failure to do so even when he or she has already suffered or will suffer the consequences of delay constitutes a valid waiver of that right. (Baya v. Sandiganbayan, G.R. Nos. 204978-83, July 6, 2020) Remedy The remedy for violation of the right to a speedy disposition of a case is dismissal obtained through mandamus. (Lumanlaw v. Hon. Peralta, G.R. No. 164953, Feb. 13, 2006) Speedy Trial v. Speedy Disposition of Cases SPEEDY DISPOSITION SPEEDY TRIAL (Sec. 16) (Sec. 14) Only applies to the Covers all phases of trial phase of judicial, quasi-judicial criminal cases and administrative proceedings Application From the time the Complaint was filed on January 18, 2005, until the Resolution was finally approved by the Ombudsman on June 23, 2008, it took the prosecution three (3) and a half years to conclude the preliminary investigation. The multiple respondents and numerous documents involved made the case more complex and difficult to resolve. Verily, there were 10 respondents charged in the Complaint before the Office of the Page 253 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Ombudsman and the documents involved, consisting of certifications, affidavits of completion, disbursement slips signed by each accused, would require verification. The investigating officer needed to evaluate whether each accused impleaded is probably guilty of the charges. While it took 10 years from the filing of the Complaint until the Information was filed before the Sandiganbayan, the Sandiganbayan failed to take into account that there was a pending petition for certiorari filed before the Supreme Court. Thus, the delay was inevitable. It was only after the resolution of the petition for certiorari that the information was ordered to be filed. Furthermore, it must be stressed that it was also the respondent who filed a motion before the Sandiganbayan to suspend the proceedings pending the resolution of the petition for certiorari. Furthermore, the respondent is deemed to have waived his right. In the span of 3 years of preliminary investigation, he never raised this contention and instead, he allowed the investigation to drag on. Even if the approval of the Resolution took a protracted time of almost 2 years, the respondent still did not raise the issue. Finally, after the Information was filed before the Sandiganbayan, it took one and a half years before the respondent brought it up. In fact, it was only after the Supreme Co r denial of the Motion for Reconsideration that the respondent decided to question the preliminary investigation. Thus, there is no violation of the re ponden right to speedy disposition of cases. (Republic v. Sandiganbayan, G.R. No. 231144, Feb. 19, 2020) The fact finding investigation of the Ombudsman lasted nearly 5 years and 5 months. It is clear that the Ombudsman had taken an unusually long period just to investigate the criminal complaint and to determine whether cases be filed against the respondents. It is incumbent for the State to prove that the delay was reasonable which it failed. At no time should the progress and success of the preliminary investigation of a criminal case be made dependent upon the ratification of a treaty by the Senate that would provide to the prosecutorial arm of the State, already powerful and overwhelming in terms of its resources, an undue advantage unavailable at the time of the investigation. To allow the delay under those terms would definitely violate fair play and nullify due process of law. The guarantee of speedy POLITICAL LAW disposition of cases under Section 16 of Article III applies to all cases pending before all judicial, quasi-judicial or administrative bodies. Thus, the fact-finding investigation should not be deemed separate from the preliminary investigation conducted by the Ombudsman if the aggregate time spent for both constitutes inordinate and oppressive delay in the disposition of the case. (People v. Sandiganbayan, G.R. Nos. 188165 & 189063, Dec. 11, 2013) P. RIGHT AGAINST EXCESSIVE FINES AND CRUEL, DEGRADING, AND INHUMAN PUNISHMENTS (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. (2) The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law. (PHIL. CONST., art. III, § 19) Cr el and n al, as these words are found in the Constitution, do not have the same meaning as clearl e ce i e found in Article 5 of the Revised Penal Code. The fact that the punishment authorized by the statute is severe does not make it cruel and unusual. Thus, to be cr el and n al or e ce i e within the meaning of the constitution, the penalty must be flagrantly disproportionate to the offense no matter under what circumstances the offense may be committed; but to be clearl e ce i e under Article 5 of the Revised Penal Code, it need only be disproportionate to the circumstances of the offense and of the offender. It has been held that to come under the constitutional ban on excessive and inhuman punishment, the punishment must be flagran l and plainly oppre i e, holl disproportionate to the nature of the offense as to shock the moral sense of the comm ni . (People v. Estoista, G.R. No. L-5793, Aug. 27, 1953) Page 254 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 Cruel and Inhuman Involves torture or lingering suffering (e.g., being drawn and quartered). Degrading It exposes a person to public humiliation (e.g., being tarred and feathered, then paraded throughout town). Excessive Fine When under any circumstance, the fine is disproportionate to the offense. Guides for Determining Whether a Punishment is C and U a : 1. It 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. Note: It must serve a penal purpose more effectively than a less severe punishment would. (Brennan concurring in Furman v. Georgia, 408 U.S. 238, 1972) R.A. 9346 prohibited the imposition of the death penalty. Only by an Act of Congress can it be reborn. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Anti-Hazing Law The Anti Hazing Law does not violate the prohibition on cruel and unusual punishment. The prohibition contemplates "extreme corporeal or psychological p ni hmen . Penalties like fines or imprisonment may be cruel, degrading, or inhuman only when they are "flagrantly and plainly oppressive and wholly disproportionate to the nature of the nature of the offense as to shock the moral sense of the community." However, if the penalty has a legitimate purpose, then the punishment is proportionate, and the constitutional prohibition is not violated. The Anti-Hazing Law seeks to punish the conspiracy of silence and secrecy, tantamount to impunity, that would otherwise shroud the crimes committed. Hence, the penalty has a legitimate purpose, and the constitutional prohibition is not violated. (Fuertes v. Senate of the Philippines, G.R. No. 208162, Jan. 07, 2020) DEATH PENALTY Death penalty was abolished because: It inflicts traumatic pain not just on the convict but also on his family, even if the penalty is not carried out. There was no convincing evidence that it is effective as a deterrent of serious crime. Penology favors reformative rather than vindictive penalties. Life is too precious a gift to be placed at the discretion of a human judge. The law itself, by imposing so many safeguards before such is carried out, manifests a reluctance to impose it. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Legislature may re-impose it, subject to the following conditions: 1. That Congress defines what is meant by heinous crimes; 2. That Congress specify and penalize by death, only those crimes that qualify as heinous in accordance with the definition set in heinous crimes law or death penalty law; and 3. That Congress, in enacting this death penalty bill, be singularly motivated by compelling reasons involving heinous crime . (People v. Echegaray, G.R. No. 117472, Feb. 7, 1997) Heinous Crimes Heinous crimes are those which are grievous, odious, and hateful; and by reason of their manifest wickedness, viciousness, atrocity, and perversity, are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized, and ordered society. (People v. Echegaray, G.R. No. 117472, Feb. 7, 1997) Instances When Death Penalty Shall Not Be Imposed: 1. Guilty person is 70 years old and above; 2. Guilty person is below 18 years old; and 3. Where upon appeal or automatic review of the case by the SC, the required majority vote is Page 255 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 not obtained for the imposition of the death penalty. (REVISED PENAL CODE, art. 47) The duty of a judge when an accused pleads guilty to a capital offense is to look into the evidence to see if death is the proper penalty. (People v. Vinuya, G.R. No. 125925, Jan. 28, 1999) Q. NON-IMPRISONMENT FOR DEBTS No person shall be imprisoned for debt or nonpayment of a poll tax. (PHIL. CONST., art. 3, § 20) Debt 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. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Imprisonment for Fraudulent Debt 1. The fraudulent debt constitutes a crime (e.g. estafa); and 2. The debtor has been duly convicted. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) BP 22 The gravamen of the offense punished by BP 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment. It is not the non-payment of an obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his debt. The thrust of the law is to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. (Lozano v. Martinez, G.R. No. L-63419, Dec. 18, 1986) Subsidiary Imprisonment 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. (Alejo v. Judge Inserto, A.M. No. 1098 CFI, May 31, 1976) Poll Tax It is a capitation tax imposed on all persons of a certain age. At present it is the tax one pays for his or her residence certificate which generally serves as a personal identification instrument. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) R. RIGHT AGAINST DOUBLE JEOPARDY No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. (PHIL. CONST., art. 3, § 21) Kinds of Jeopardy Same Offense No person shall be twice put in jeopardy of punishment for the same offen e. Conviction, acquittal, or dismissal of the case without the express consent of the accused will bar a subsequent prosecution. Same Act When an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same ac . Only conviction or acquittal not dismissal without the express consent of the accused will bar a subsequent prosecution. 1. REQUISITES TO RAISE THE DEFENSE OF DOUBLE JEOPARDY: a. b. c. A first jeopardy attached prior to the second; The first jeopardy has been validly terminated; and A second jeopardy is for the same offense as in the first. (Cerezo v. People, G.R. No. 185230, June 1, 2011) a. A first jeopardy attached prior to the second WHEN JEOPARDY ATTACHES WHEN JEOPARDY DOES NOT ATTACH Page 256 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 [ICAPA] 1. If information does 1. After a valid not charge any Indictment; offense. 2. Before a (People v. Judge Competent court; Consulta, G.R. No. L-41251, March 31, 3. After 1976) Arraignment; 4. When a valid Plea 2. If, upon pleading guilty, the accused has been entered; presents evidence and of complete self5. When the accused defense, and the has been court thereafter Acquitted or acquits him without convicted, or the entering a new plea case dismissed or of not guilty for otherwise accused. There is terminated without no valid plea here. his express (People v. consent. Balisacan, G.R. No. (Cerezo v. People, L-26376, Aug. 31, G.R. No. 185230, 1966) June 1, 2011) 3. If the information for an offense cognizable by the RTC is filed with the MTC. There is no jurisdiction here. (People v. Ibasan, Sr., G.R. No. L61652, June 22, 1984) 4. If a complaint filed for preliminary investigation is dismissed. (People v. Daco, G.R. No. L-17210, Nov. 30, 1962) Judgement Must be Rendered by a Court of Competent Jurisdiction The MeTC took cognizance of the Information for reckless imprudence resulting in parricide while the criminal case for parricide was still pending before the RTC. We held that once jurisdiction is acquired by the court in which the Information is filed, it is there retained. Therefore, as the offense of reckless imprudence resulting in parricide was included in the charge for intentional parricide POLITICAL LAW pending before the RTC, the MeTC clearly had no jurisdiction over the criminal case filed before it, the RTC having retained jurisdiction over the offense to the exclusion of all other courts. The requisite for jeopardy to attach that the judgment be rendered by a court of competent jurisdiction is therefore absent. A decision rendered without jurisdiction is not a decision in contemplation of law and can never become executory. Hence, the remand of the case to the RTC for trial would not amount to double jeopardy. (People v. Honrales, G.R. Nos. 182651 & 182657, Aug. 25, 2010) The RTC issued its September 5, 2006 order in defiance of the TRO issued by the CA. The records show that the CA had issued a TRO on April 19, 2006, which should have prohibited the RTC from further proceeding on the case. But the RTC, instead, continued with the presentation of the prosecution evidence and issued the assailed September 5, 2006 order. Under this circumstance, the RTC September 5, 2006 order was actually without force and effect and would not serve as basis for the petitioners to claim that their right against double jeopardy had been violated. The RTC, clearly, acted with grave abuse of discretion in issuing its September 5, 2006 order in view of the earlier TRO issued by the CA. (Villalon v. Chan, G.R. No. 196508, Sept. 24, 2014) The RTC clearly exceeded its jurisdiction when it entertained the joint Motion for Reconsideration with respect to the accused-respondents who were at large. Being at large, accused-respondents have not regained their standing in court. Once an accused jumps bail or flees to a foreign country, or escapes from prison or confinement, he loses his standing in court; and unless he surrenders or submits to the jurisdiction of the court, he is deemed to have waived any right to seek relief from the court. Thus, accused-respondents were not placed in double jeopardy because, from the very beginning, the lower tribunal had acted without jurisdiction. Verily, any ruling issued without jurisdiction is, in legal contemplation, necessarily null and void and does not exist. In criminal cases, it cannot be the source of an acquittal. (People v. De Grano, G.R. No. 167710, June 5, 2009) b. The first jeopardy has been validly terminated Page 257 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 1. Acquittal; 2. Conviction; or 3. Dismissal without the express consent of the accused a. Dismissal based on violation of the right to a speedy trial amounts to an acquittal b. Dismissal based on demurrer to evidence is a dismissal on the merits c. Dismissal on motion of the prosecution, subsequent to a motion for reinvestigation filed by the accused d. Discharge of an accused to be a state witness. This amounts to an acquittal e. Dismissal on the merits If the first dismissal was based on the merits, there should be no second prosecution. If the first dismissal was not based on the merits and was erroneous, one should look at whether the dismissal was with the consent of the accused. If not, there should be no second prosecution. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) c. A second jeopardy is for the same offense as in the first Same Offense 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. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) 4. The situation is different when one act violates two different statutes or two different provisions of a statute. The rule in such a case is that if the one act results in two different offenses, prosecution under one is a bar to prosecution under the other. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2011). Same Evidence Test Whether the evidence needed in one case will support a conviction in the other. (U.S. v. Tan Oco, G.R. No. 11338, Aug. 15, 1916) POLITICAL LAW However, this applies only in a more general sense, hence it is the test laid down under Section 9 of Rule 117 of the Revised Rules of Criminal Procedure that should apply. This states that one offense must necessarily be included in the other, i.e., whether one offense is identical with the other or whether one offense necessarily includes or is necessarily included in the other. Identity of offenses does not require one-to-one correspondence between the facts and law involved in the two charges. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Supervening Facts A conviction for an offense will not bar a prosecution for an offense which necessarily includes the offense charged in the former information where: 1. The graver offense developed due to a supervening fact arising from the same act or omission constituting the former charge. 2. The facts constituting the graver offense became known or were discovered only after the filing of the former information. 3. The plea of guilty to the lesser offense was made without the consent of the prosecutor and the offended party. (ROC, Rule 117, § 7) If the facts could have been discovered by the prosecution but were not discovered because of the pro ec ion incompetence, it would not be considered a supervening event. Quasi Offense Once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under Article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and cannot be split into different crimes and Page 258 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW prosecutions. To do so would be a violation of the mantle of protection afforded by the Double Jeopardy Clause. (Ivler v. San Pedro, G.R. No. 172716, Nov. 17, 2010) Appeals Any party may appeal from a judgment or final order, unless the accused will be placed in double jeopardy. (ROC, Rule 122, § 1) Continuous Crimes Pe i ioner acts of allegedly preventing Ms. Magsigay from appearing and testifying in a preliminary investigation proceeding and offering in evidence a false affidavit were clearly motivated by a single criminal impulse in order to realize only one criminal objective, which is to obstruct or impede the preliminary investigation proceeding in I.S. Case No. 04-1238. Thus, applying the principle of delito continuado (continuous crime), petitioner should only be charged with one (1) count of violation of PD 1829 which may be filed either in Jagna, Bohol where Ms. Magsigay was allegedly prevented from appearing and testifying in I.S. Case No. 04-1238, or in Tagbilaran City, Bohol where petitioner allegedly presented a false affidavit in the same case. However, since he was already charged and in fact, convicted in a Judgment dated July 3, 2007 in the MTCCTagbilaran, the case in MCTC-Jagna should be dismissed as the events that transpired in Jagna, Bohol should only be deemed as a partial execution of pe i ioner single criminal design. Consequently, the criminal case in MCTC-Jagna must be dismissed; otherwise, petitioner will be unduly exposed to double jeopardy, which the Court cannot countenance. (Navaja v. De Castro G.R. No. 180969, Sept. 11, 2017) General Rule: The prosecution may not appeal an acquittal, and an acquittal is immediately final. (ROC, Rule 120, § 7) 2. LIMITATIONS a. Motions for Reconsideration and Appeals Motions for Reconsideration At any time before a judgment of conviction becomes final, the court may, upon motion of the accused or at its own instance, but with the consent of the accused, grant a new trial or reconsideration. (ROC, Rule 121, § 1) From the phraseology of the rule, it is evident that a motion for new trial or a motion for reconsideration applies when the judgment is one of conviction; and it is the accused, not the prosecution which avails of the same. (Riano, Criminal Procedure, 583, 2014) Exception: The prosecution may appeal an order of dismissal when: 1. The dismissal is on motion or with the express consent of the accused. (ROC, Rule 117, § 7) a. Exception to the Exception: If motion is based on violation of the right to a speedy trial or on a demurrer to evidence. (People v. Velasco, G.R. No. 140633, Feb. 4, 2002) 2. The dismissal does not amount to an acquittal or dismissal on the merits. (People v. Salico, G.R. No. L-1567, Oct. 13, 1949) 3. The question to be passed upon is purely legal. (People v. Desalisa, L-15516, Dec.17, 1966) 4. The dismissal violates the right of due process of the prosecution. (People v. Sandiganbayan et. al., G.R. No. 164577, July 5, 2010) 5. The dismissal or acquittal was made with grave abuse of discretion. (People v. Sandiganbayan et. al., G.R. No. 164577, July 5, 2010) Although, as a rule, dismissal of a criminal case may be used to abate an administrative case based on the same facts, the same does not hold true if it were the other way around, that is, the dismissal of the administrative case is being invoked to abate the criminal case. However, if the two actions are based on the same facts and evidence, such as in this case, dismissal in administrative case may be used to negate criminal liability. (People v. Sandiganbayan et. al., G.R. No. 164577, July 5, 2010). Effect of an acc appeal of his conviction 1. Waiver of right to double jeopardy Page 259 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 2. The appellate court may place a penalty higher than that of the original conviction. (Trono v. United States, 199 U.S. 521, 26 S.C.T. 121, 50 L. Ed. 2920, 1905) An appeal in a criminal case opens the entire case for review on any question including one not raised by the parties. When an accused appeals from the sentence of the trial court, he waives the constitutional safeguard against double jeopardy and throws the whole case open to the review of the appellate court, which is then called upon to render such judgment as law and justice dictate, whether favorable or unfavorable to the appellant. (People v. Torres, G.R. No. 189850, Sept. 22, 2014) Res Judicata Res judicata is a doctrine of civil law and thus has no bearing on criminal proceedings. Res judicata applies only when there is a final judgment on the merits of a case; it cannot be availed of in an interlocutory order even if the order is not appealed. Even if the argument is expanded to contemplate double jeopardy, double jeopardy will not apply because it requires that the accused has been convicted or acquitted or that the case against the accused has been dismissed or terminated without his express consent. (People v. Escobar, G.R. No. 214300, July 26, 2017) b. Dismissal with Consent of Accused General Rule: Equivalent to a waiver of the defense of double jeopardy. Exception: When motion is based on Provisional Dismissal - A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. (ROC, Rule 117, § 8). The provisional dismissal of offenses punishable by imprisonment not exceeding 6 years or a fine of any amount, or both, shall become permanent 1 year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than 6 years, their provisional dismissal shall become permanent 2 years after issuance of the order without the case having been revived. POLITICAL LAW A motion of the accused for a provisional dismissal of a case is an express consent to such provisional dismissal. If a criminal case is provisionally dismissed with the express consent of the accused, the case may be revived only within the periods provided in the new rule. On the other hand, if a criminal case is provisionally dismissed without the express consent of the accused or over his objection, the new rule would not apply. The case may be revived or refiled even beyond the prescribed periods subject to the right of the accused to oppose the same on the ground of double jeopardy or that such revival or refiling is barred by the statute of limitations. (People v. Panfilo Lacson, G.R. 149453, Oct. 7, 2003) c. Cybercrime Prevention Act Section 7 of RA 10175 which provides for prosecution under both the Revised Penal Code and the Cybercrime Prevention Act was assailed as unconstitutional for violating the rule on double jeopardy. The provision was declared unconstitutional as to Section 4(c)(4) on Libel and Section 4(c)(2) on Child Pornography. However, with respect to the other prohibited acts, the Court left the determination of the correct application of Section 7 to actual cases. In relation to Section 4(c)(4) on Libel, the Court said that if the published material on print, said to be libelous, is again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact one and the same offense. Charging the offender under both laws would be a blatant violation of the proscription against double jeopardy. As to Section 4(c)(2) on Child Pornography, the Court said that Section 4(c)(2) merely expands the ACPA scope so as to include identical activities in cyberspace. As previously discussed, ACPA definition of child pornography in fact already covers the use of elec ronic, mechanical, digital, optical, magnetic or any other mean . Thus, charging the offender under both Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the constitutional prohibition against double jeopardy. Page 260 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) S. RIGHT AGAINST INVOLUNTARY SERVITUDE (1) No person shall be detained solely by reason of his political beliefs and aspirations. (2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted. (PHIL. CONST., art. 3, § 18) Involuntary Servitude Every condition of enforced or compulsory service of one to another no matter under what form such servitude may be disguised. (Rubi v. Provincial Board, G.R. No. L-14078, March 7, 1919) Political Prisoners A state cannot hold poli ical pri oner . (Bernas, The 1987 Constitution: A Comprehensive Reviewer, 152, 2011) Exceptions: 1. Punishment for a crime. 2. Personal military or civil service in the interest of national defense. 3. In naval enlistment, a person who enlists in a merchant ship may be compelled to remain in service until the end of the voyage. 4. Posse Comitatus (every able-bodied person is ultimately responsible for keeping peace) for the apprehension of criminals. 5. Return to work order issued by the DOLE Secretary or the President. 6. Minors under patria potestas are obliged to obey their parents. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 152, 2011) POLITICAL LAW 1. Makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2. Aggravates the crime or makes it greater than when it was committed. 3. Changes the punishment and inflicts a greater punishment than that which the law annexed to the crime when it was committed. 4. 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. Assumes to regulate civil rights and remedies but in effect imposes a penalty or deprivation of a right, which when done was lawful. 6. 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. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) The prohibition on ex post facto laws only applies to retrospective penal laws. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) When Laws are Penal 1. When it prescribes a criminal penalty imposable in a criminal trial. 2. If it prescribes a burden equivalent to a criminal penalty (e.g. disqualification from the practice of a profession) even in administrative proceedings. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) T. EX POST FACTO LAWS AND BILLS OF ATTAINDER Characteristics of an Ex Post Facto Law: 1. Refers to criminal matters 2. Retrospective 3. Causes prejudicial to the accused (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) No ex post facto law or bill of attainder shall be enacted. (PHIL. CONST., art. 3, § 22) Instances when the prohibition on ex-post facto laws is inapplicable: 1. EX POST FACTO LAW 1. Extradition treaty - As the Court of Appeals correctly concluded, the Treaty is neither a piece of criminal legislation nor a criminal Page 261 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 procedural statute. "It merely provides for the extradition of persons wanted for prosecution of an offense or a crime which offense or crime was already committed or consummated at the time the treaty was ratified." (Wright v. CA, G.R. No. 113213, Aug. 15, 1994) 2. Probation Law and its amendments Presidential Decree No. 1990, like the Probation Law that it amends, is not penal in character. It may not be considered as an ex post facto law. (Fajardo v. CA, G.R. No. 128508, Feb. 1, 1999) 3. Change of court jurisdiction - R.A 7975, which amended P.D. 1606 as regards the Sandiganbayan's jurisdiction, its mode of appeal and other procedural matters, has been declared by the Court as not a penal law, but clearly a procedural statute, i.e. one which prescribes rules of procedure by which courts applying laws of all kinds can properly administer justice. Not being a penal law, the retroactive application of R.A. 8249 cannot be challenged as unconstitutional. On the removal of the intermediate review of facts, the Supreme Court still has the power of review to determine if he presumption of innocence has been convincing overcome. (Lacson v. Executive Secretary, G.R. No. 128096, Jan. 20, 1999) 4. House rental law - The petitioner's contention that BP 877 is an ex post facto law must also be rejected. It is not penal in nature and the mere fact that it contains penal provisions does not make it so. At any rate, she is not being prosecuted under the said penal provisions. (Juarez v. CA, G.R. No. 93474, Oct. 7, 1992) 5. Preventive suspension pendente lite Section 13 of Republic Act 3019, as among the crimes subjecting the public officer charged therewith with suspension from office pending action in court, is not a penal provision which violates the constitutional prohibition against the enactment of ex post facto law. The RPC clearly states that suspension from the employment or public office during the trial or in order to institute proceedings shall not be considered as penalty. It is not a penalty because it is not imposed as a result of judicial proceedings. In POLITICAL LAW fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension (Bayot v. Sandiganbayan, G.R. Nos. L-61776 to No. L-61861, March 23, 1984) IRR of RA 10951; Class-A Light Weapons There is no retroactive application mandated in the Rules Implementing RA 10951. On the contrary, firearm licenses to possess Class-A light weapons issued before the passage of RA 10591 are still recognized both under RA 10591 and its Implementing Rules. If the IRR were indeed in the nature of an ex post facto law, then private individuals who possess Class-A light weapons under the old law must be expressly punished under the new law because the new law only allows them to own and possess small arms. Yet, as expressly provided in the law, existing license holders of Class-A light weapons may renew their licenses under the new law and Implementing Rules. Therefore, the IRR of RA No. 10591 is not an ex post facto law. (Acosta v. Ochoa, G.R. Nos. 211559, 211567, 212570 & 215634, Oct. 15, 2019) 2. BILL OF ATTAINDER A bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. (Cummings v. Missouri, 4 Wall 277, 323 US, 1867) The constitutional ban against bills of attainder serves to implement the principle of separation of powers by confining legislatures to rule-making and thereby forestalling legislative usurpation of the judicial function. (People v. Ferrer, G.R. Nos. L32613-14, Dec. 27, 1972) Elements (LINaW) 1. There must be a Law 2. The law Imposes a penal burden 3. On a Named individual or easily ascertainable members of a group 4. The penal burden is imposed directly by the law Without judicial trial. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Page 262 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 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. (Cummings v. Missouri, 4 Wall 277, 323 US, 1867) For a law to be considered a bill of attainder, it must contain all the following: a specification of certain individuals or a group of individuals, the imposition of a punishment, penal or otherwise, and the lack of judicial trial. (Fuertes v. Senate of the Philippines, G.R. No. 208162, Jan. 07, 2020) Anti-Hazing Law The Anti-Hazing Law is not a bill of attainder. There is no lack of judicial trial. The mere filing of an Information against the accused is not a finding of guilt. The accused is not being charged merely because he/she is a member of a fraternity/sorority, but because he/she is allegedly a principal in the hazing that led to the ic im death. These are matters for the trial court to decide. The prosecution must still prove the offense. (Fuertes v. Senate of the Philippines, G.R. No. 208162, Jan. 07, 2020) J. PRIVILEGE OF THE WRIT OF HABEAS CORPUS The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it. (PHIL. CONST., art. 3, § 15) Privilege of the Writ of Habeas Corpus The right to have an immediate determination of the legality of the deprivation of physical liberty. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Writ of Habeas Corpus A writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his caption and detention, to do, submit to, and receive whatever the court or judge awarding the writ shall consider in the behalf. (Sombong v. CA, G.R. No. 111876, Jan. 31, 1996) POLITICAL LAW To What Habeas Corpus Extends Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. (ROC, Rule 102, Sec. 1) Habeas corpus is the proper remedy for a person deprived of liberty due to mistaken identity. In such cases, the person is not under any lawful process and is continuously being illegally detained. (In the Matter of the Petition for Habeas Corpus of Datukan Malang Salibo, G.R. No. 197597, April 8, 2015). Purpose of the Writ The primary purpose of the writ is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. (Agcaoili v. Hon. Farinas, G.R. No. 232395, July 3, 2018) What is Suspended: The Privilege, Not The Writ The writ is never suspended. It always issues as a matter of course. What is suspended is the privilege of the writ, i.e., once the officer making the return shows to the court that the person detained is being detained for an offense covered by the suspension, the court may not inquire further. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) Remedy Becomes Moot When Restraint Becomes Legal The arrest warrants against the accused were issued by the court that has jurisdiction over the offense charged. Since the restraint on the accused has become legal, the remedy of habeas corpus has already become moot and academic. The "great writ of liberty" of habeas corpus "was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom." Habeas corpus is an extraordinary, summary, and equitable writ, consistent with the law's "zealous regard for personal liberty." Its primary purpose is o inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any Page 263 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 restraint which will preclude freedom of action is sufficient." The restraint of liberty need not be confined to any offense so as to entitle a person to the writ. Habeas corpus may be availed of as a post-conviction remedy or when there is an alleged violation of the liberty of abode. (Osorio v Navera, G. R. No. 223272, February 26, 2018) When Writ Not Allowed or Discharge Authorized The writ shall not be allowed if it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order. If the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment. (ROC, Rule 102, Sec. 4) Process An application for a writ of habeas corpus may be made through a petition filed before the: 1. Supreme Court or any of its members; 2. Court of Appeals, or any of its members in instances authorized by law; or 3. Regional Trial Court or any of its presiding judges. The court or judge grants the writ and requires the officer or person having custody of the person allegedly restraining of liberty to file a return of the writ. A hearing on the return of the writ is then conducted. The return of the writ may be heard by a court apart from that which issued the writ. Should the court issuing the writ designate a lower court to which the writ is made returnable, the lower court shall proceed to decide the petition of habeas corpus. By virtue of the designation, the lower court acquires the power and authority to determine the merits of the petition for habeas corpus. Therefore, the decision on the petition is a decision appealable to POLITICAL LAW the court that has appellate jurisdiction over decisions of the lower court. (In the Matter of the Petition for Habeas Corpus of Datukan Malang Salibo, G.R. No. 197597, April 8, 2015) National Bilibid Inmates; Standing The inmates' allegations of suddenly being transferred from the National Bilibid Prisons in Muntinlupa City to the National Bureau of Corrections in Manila City for the purpose of conducting an inspection on their living quarters, if proven, are sufficient to clothe the party with standing to file an application for a writ of habeas corpus, provided that they invoke a violation of a fundamental right granted to all citizens, regardless of whether they are incarcerated or not. However, mere allegation of a violation of one's constitutional right is not enough. The violation of constitutional right must be sufficient to void the entire proceedings. (In the Matter of the Petition for Writ of Habeas Corpus/Data v. De Lima, G.R. Nos. 215585 & 215768, Sept. 8, 2020). Suspension of the Privilege of the Writ of Habeas Corpus The President may suspend the privilege for a period not exceeding 60 days. The grounds for the suspension of the privilege are: 1. Actual invasion or actual rebellion; and 2. When the public safety requires the suspension The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. (PHIL. CONST., art. 7, § 18) Inapplicability of the Writ of Habeas Corpus 1. To question the conditions of confinement 2. Once charges have been filed in court Limitations to the Writ of Habeas Corpus DOES NOT EXTEND EXTENDS TO TO Page 264 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 All cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled to it. It is essential to inquire into all manner of involuntary restraint and to relieve a person from it if such restraint is illegal. Questions of conditions of confinement; but only to the fact and duration of confinement. It is not a means for the redress of grievances or to seek injunctive relief or damages. (In re: Major Aquino, G.R. 174994, Aug. 31, 2007) WRIT OF AMPARO A remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. (Sec. of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008) The Writ of Amparo does not cover threats to property. To be entitled to a Writ of Amparo, petitioners must prove that their rights to life, liberty, and security are being violated or threatened by an unlawful act or omission. The intrusion into their farm was merely a violation of property rights. (Pador v. Arcayan, G.R. No. 18346, March 12, 2013) Examples of Property Rights Not Covered: Right to be restituted of personal belongings. It is already subsumed under the general rubric of property rights which are no longer protected by the writ of amparo. (Roxas v. Arroyo, G.R. No. 189155, Sept. 7, 2010) Merely seeking protection of property rights, like land in possession of the petitioners. (Castillo v. Cruz, G.R. No. 182165, Nov. 25, 2009) Violent incidents purely property-related such as acts of terrorism in relation to a disputed land (Tapuz v. Hon. Judge del Rosario, G.R. No. 182484, June 17, 2008) POLITICAL LAW Two-fold Burden for Public Authorities The burden for the public authorities to discharge in these situations, under the Rule on the Writ of Amparo, is two-fold. 1. The first is to ensure that all efforts at disclosure and investigation are undertaken under pain of indirect contempt from this Court when governmental efforts are less than what the individual situations require. 2. The second is to address the disappearance, so that the life of the victim is preserved and his or her liberty and security restored. (Razon v. Tagitis, G.R. No. 182498, Dec. 3, 2009) The remedy of the writ of amparo provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings. (Razon v. Tagitis, G.R. No. 182498, Dec. 3, 2009) The framers of the Amparo Rule never intended Section 5(c) to be complete in every detail in stating the threatened or actual violation of a ic im rights. As in any other initiatory pleading, the pleader must of course state the ultimate facts constituting the cause of action, omitting the evidentiary details. In an Amparo petition, however, this requirement must be read in light of the nature and purpose of the proceeding, which addresses a situation of uncertainty; the petitioner may not be able to describe with certainty how the victim exactly disappeared, or who actually acted to kidnap, abduct or arrest him or her, or where the victim is detained, because these information may purposely be hidden or covered up by those who caused the disappearance. Section 5(e) merely requires that the Amparo petitioner (the respondent in the present case) allege he actions and recourses taken to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omi ion. (Razon v. Tagitis, G.R. No. 182498, Dec. 3, 2009) Page 265 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 Indispensable Element of G Participation The petitioner in an amparo case has the burden of proving by substantial evidence the indispensable element of government participation. (Spouses Martin and Santiago v. Tulfo, G.R. No. 205039, Oct. 21, 2015) Coverage The writ shall cover (1) extralegal killings and (2) enforced disappearances or threats thereof. (The Rule on Writ of Amparo, A.M. No. 07-9-12-SC, Sec. 1) Extralegal Killings Extralegal killings are killings committed without due process of law, i.e., without legal safeguards or judicial proceedings. (Mison v. Gallegos, G.R. No. 210759, June 23, 2015) POLITICAL LAW The remedy of the writ of amparo may be available even to convicted national inmates, as long as the alleged abduction was made for the purpose of placing the national inmate outside the protection of the law. However, considering that the Secretary of Justice has the authority to determine the movement of national inmates between penal facilities, there is no compelling reason to grant the writ of amparo in situations where there is an urgent need to remove the national inmates from their place of confinement and to transfer them to another detention facility. (In the Matter of the Petition for Writ of Habeas Corpus/Data v. De Lima, G.R. Nos. 215585 & 215768, Sept. 8, 2020). - end of topic - Enforced Disappearance Enforced disappearances are attended by the following characteristics: 1. An arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government. 2. The refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law. (Mison v. Gallegos, G.R. No. 210759, June 23, 2015) Elements of an Enforced Disappearance 1. That there be an arrest, detention, abduction or any form of deprivation of liberty; 2. That it be carried out by, or with the authorization, support or acquiescence of, the State or a political organization; 3. That it be followed by the State or political organi a ion refusal to acknowledge or give information on the fate or whereabouts of the person subject of the amparo petition; and 4. That the intention for such refusal is to remove the subject person from the protection of the law for a prolonged period of time. (Section 3(g) R.A. No. 9851; Mison v. Gallegos, G.R. No. 210759, June 23, 2015) National Bilibid Inmates Page 266 of 568 LAW ON PUBLIC OFFICERS Political Law ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 X. LAW ON PUBLIC OFFICERS A. GENERAL PRINCIPLES TOPIC OUTLINE UNDER THE SYLLABUS: C. Modes and kinds of appointment Public Office The right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the appointing power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. (Fernandez v. Santo Tomas, GR No. 116418, 7 March 1995) D. Eligibility and qualification requirements Office X. LAW ON PUBLIC OFFICERS A. General principles B. Modes of acquiring title to public office E. Disabilities and inhibitions of public officers F. Powers and Duties of Public Officers G. Rights of Public Officers H. Liabilities of Public officers 1. Preventive Suspension and back salaries 2. Illegal dismissal, reinstatement, and back salaries I. Immunity of Public Officers J. Distinguish: de facto vs. de jure officers K. Termination of official relation L. The Civil Service 1. Scope 2. Appointments to the Civil Service 3. Personnel Actions M. Accountability of public officers 1. Types of Accountability a. Administrative b. Criminal 2. The Ombudsman and the Office of the Special Prosecutor 3. The Sandiganbayan N. Term Limits refers, within the framework of governmental organization, to any major functional unit of a department or bureau including regional offices (e.g. Office of the Secretary). It may also refer to any position held or occupied by individual persons, whose functions are defined by law or regulation (e.g. Secretary). [Section 2(9), Introductory Provisions, Administrative Code of 1987] Public Office Not a Property Right It is not a property right but a protected right. It cannot be taken from its incumbent without due process. It is property in the broad sense since the right to hold office includes everything of pecuniary value to its possessor. The right to public office is protected by the right to security of tenure, which is guaranteed by the Constitution. A public office is personal to the public officer and is not transmissible to his heirs upon his death. No heir may be allowed to continue holding his office in his place. (Segovia v. Noel, 47 Phil. 543, 1925) Public office is not a property. It is, however, well settled x x x that a public office is not property within the sense of the constitutional guaranties of due process of law, public trust or agency. x x x The basic idea of the government x x x is that of a popular representative government, the officers being mere agents and not rulers of the people, one where no one man or set of men has a proprietary or contractual right to an office, but where every officer accepts office pursuant to the provisions of the law and holds the office as a trust for the people he represents. (Montesclaros v. COMELEC, GR No. 152295, 2002) Public Office Not a Contract The right of an incumbent of an office does depend on any contract in the sense of arrangement or bargain between him and public. Generally speaking, the nature of not an the the Page 268 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 relation of a public officer to the public is inconsistent with either a property or a contract right. (De Leon, The Law on Public Officers and Election Law, 6-7, 2011) How created: 1. By the Constitution (e.g. Office of the President) 2. By valid statutory enactments (e.g. Office of the Insurance Commissioner) 3. By authority of the law (e.g. the Davide Commission, Philippine Truth Commission) Elements of Public Office: (LSCIP) 1. Created by Law or by authority of law; 2. Possesses a delegation of portion of Sovereign powers of government, for benefit of the public; 3. Powers conferred and duties imposed defined by Constitution, legislature, or by its authority; 4. Duties performed Independently and only controlled by law unless placed under general control of superior office or body; 5. Permanent or continuous. (State v. Taylor, 144 N.W. 2d. 289,1966; Javier v. Sandiganbayan, G.R. No.147026-27, 2009) Sovereign Functions. The functions of Veterans Federation of the Philippines enshrined in Section 4 of Rep. Act No. 2640 should most certainly fall within the category of sovereign functions. The protection of the interests of war veterans is not only meant to promote social justice, but is also intended to reward patriotism. All of the functions in Section 4 concern the well-being of war veterans, our countrymen who risked their lives and lost their limbs in fighting for and defending our nation. It would be injustice of catastrophic proportions to say that it is beyond sovereignty's power to reward the people who defended her. (Veterans Federation of the Philippines v. Reyes, GR No. 155027, 2006) A salary is a usual but not a necessary criterion for determining the nature of the position. It is not conclusive. The salary is a mere incident and forms no part of the office. Where a salary or fees is annexed, the office is provided for it is a naked or honorary office, and is supposed to be accepted merely for the public good. Hence, the office of the [National Centennial Commission] Chair may be characterized as an honorary office, as opposed to a lucrative office or an office of profit, i.e., one to which salary, compensation or fees are attached. But it is a public office, nonetheless. (Laurel v. Desierto, G.R. No. 145368, 2002) POLITICAL LAW Public Officer v. Employee, Definitions Public Officer A person whose duties, not being clerical in nature, involves the exercise of discretion in the performance of the functions of the government when used with reference to a person having authority to do a particular act or perform a particular function in the exercise of government power, officer includes any government employee, agent, or body having authority to do so the act or exercise that function. (Executive Order No. 292, 1987 Administrative Code) Public Officer, Criminal Law context Any person, by direct supervision of the law, popular election, or appointment by competent authority, shall take part in the performance of public functions in the RP or shall perform in said government or for any of its branches public duties as an employee, agent, or subordinate official, of any rank or class is deemed a public officer. Temporary performance of public function is sufficient to constitute a person a public official. (Art. 203, Revised Penal Code) Includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service (non-career or career), receiving compensation, even nominal, from the government. (RA 3019, Anti-Graft and Corrupt Practices Act) Includes elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service, including military and police personnel, whether or not they receive compensation, regardless of amount. (RA, 6713, Code of Conduct and Ethical Standards of Public Officers) Officer means any person holding any public office in the govt. of the RP by virtue of an appointment, election, or contract (executed bet. private person and government. (R.A. 7080, Office of the Ombudsman) Employee A person in the service of government or any of its agencies, divisions, subdivisions, or instrumentalities. (Executive Order No. 292, 1987 Administrative Code) Page 269 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 Public Officer v. Employee, Distinguished An officer is distinguishable from a mere employee in the sense that: 1. Position has greater importance, dignity and independence 2. Required to take an official oath, and to give an official bond; 3. Greater liability to account for misfeasance or nonfeasance in office; 4. Tenure of office is usually different from that of an ordinary employee 5. Public officer must be invested by law with a por ion S a e o ereign , and a hori ed o exercise functions either of an executive, legislative, or judicial character (De Leon, The Law on Public Officers and Election Law, 15, 2011) Public officer v. Clerk, Distinguished An officer, as distinguished from the clerk, refers to a person whose duties, not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government. (Section 2, Executive Order No. 292, 1987 Administrative Code) B. MODES OF ACQUIRING TITLE TO PUBLIC OFFICE retaining Sec. 66) of the Omnibus Election Code through Sec. 14 of RA 9006, elective officials are not deemed resigned (but appointive officials are) upon the filing of a certificate of candidacy. (Fariñas v. Executive Secretary, G.R. Nos. 147387 & 152161, 2003) Designation The mere imposition of new or additional duties upon an officer to be performed by him in a special manner. It presupposes that the officer is already in the service by virtue of an earlier appointment, performing other functions. The implication is that he/she shall hold office only in a temporary capacity and may be replaced at will by the appointing authority. It does not confer security of tenure on the person designated. (Tapispisan v. CA, G.R. No.120082, June 8, 2005) Commission A written authority from a competent source given to the officer as his/her warrant for the exercise of the powers and duties of the office to which he is commissioned. It is the written evidence of the appointment, but not the appointment itself. (De Leon, The Law on Public Officers and Election Law, 81, 2011) Appointment vs. Designation APPOINTMENT DESIGNATION Election Elective officials occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. (Fariñas v. Executive Secretary, G.R. Nos. 147387 & 152161, 2003) Executive, Irrevocable Legislative, revocable Appointment Appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. (Fariñas v. Executive Secretary, G.R. Nos. 147387 & 152161, 2003) Results NOTE: Since the classification justifying Section 14 of Rep. Act No. 9006 (Fair Election Act), i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed. Thus, with the repeal of Sec. 67 (but As to nature As to Effect Selection of an Mere imposition by law individual who is to of additional duties on exercise the functions an incumbent official of a given office in security Does not result of tenure security of tenure when completed Can be subject of a protest before the CSC in Cannot be subject of a protest before the CSC As to Effectivity connoted permanency implies temporariness Page 270 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 Nature of Appointments It is essentially a discretionary power and cannot be delegated, it must be performed by the officer upon whom it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. (Luego v. Civil Service Commission, G.R. No. 69137, August 5, 1986) Appointments (In case of Presidential appointments, this confirmation applies only to numbers 1 to 5 in the list of Officers that the President shall appoint (see below)) 3. Issuance of the commission or the written authority from a competent source given to the officer as his warrant for the exercise of the powers and duties of the office to which he is commissioned. 4. Acceptance by the appointee 5. Oath and assumption (De Leon, The Law on Public Officers and Election Law, 78-81, 2011) Limits to Discretion Hence, although, the terms of the law creating the authority confer upon the officer general discretionary power without qualification, his authority is not deemed to be an unlimited one. The e erci e of he officer di cre ion i ill limited, by legal construction, to the evident purposes of the act, and to what is known as a sound and legal discretion, excluding all arbitrary, capricious, inquisitorial and oppressive proceedings. (De Leon, The Law on Public Officers and Election Law, 139, 2011) Ad interim appointments are made while Congress is NOT in session or during its recess, whether such recess is voluntary (before adjournment) or compulsory (when Congress adjourns). The appointment shall cease to be effective upon rejection by the COA, or if not acted upon, at the adjournment of the next session of Congress, whether regular or special. (De Leon, The Law on Public Officers and Election Law, 7376, 2011) Requisites for a Valid appointment The following elements should always concur in the making of a valid (which should be understood as both complete and effective) appointment: (1) Authority to appoint and evidence of the exercise of the authority; (2) Transmittal of the appointment paper and evidence of the transmittal; (3) Vacant position at the time of appointment; and (4) Receipt of the appointment paper and acceptance of the appointment by the appointee who possesses all the qualifications and none of the disqualifications. The concurrence of all these elements should always apply, regardless of when the appointment is made, whether outside, just before, or during the appointment ban. These steps in the appointment process should always concur and operate as a single process. There is no valid appointment if the process lacks even one step. (Velicaria-Garafil v. OP, GR No. 203372, 2015) Steps in a regular appointment (NCIAO) 1. Nomination by President 2. Confirmation by Commission on It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-passed appointees. Justice Roberto Concepcion, Jr. lucidly explained in his concurring opinion in Guevara vs. Inocentes why by-passed ad interim appointees could be extended new appointments, thus: "In short, an ad interim appointment ceases to be effective upon disapproval by the Commission, because the incumbent can not continue holding office over the positive objection of the Commission. It ceases, also, upon "the next adjournment of the Congress," simply because the President may then issue new appointments not because of implied disapproval of the Commission deduced from its inaction during the session of Congress, for, under the Constitution, the Commission may affect adversely the interim appointments only by action, never by omission. If the adjournment of Congress were an implied disapproval of ad interim appointments made prior thereto, then the President could no longer appoint those so by-passed by the Commission. But, the fact is that the President may reappoint them, thus clearly indicating that the reason for said termination of the ad interim appointments is not the disapproval thereof allegedly inferred from said omission of the Commission, but the circumstance that upon said adjournment of the Congress, the President is free to make ad interim appointments Page 271 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 or reappointments." [Matibag v. Benipayo, G.R. No. 149036, 2002] Temporary or acting appointments are those which last until a permanent appointment is issued. The Commission on Appointments cannot confirm their appointments because confirmation presupposes a valid nomination or ad-interim appointment. Thus, the appointee has no personality to bring a quo warranto proceeding because he is not entitled to office. (De Leon, The Law on Public Officers and Election Law, 76, 2011) The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap measure intended to fill an office for a limited time until the appointment of a permanent occupant to the office. 16 In case of vacancy in an office occupied by an alter ego of the President, such as the office of a department secretary, the President must necessarily appoint an alter ego of her choice as acting secretary before the permanent appointee of her choice could assume office. Congress, through a law, cannot impose on the President the obligation to appoint automatically the undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds a position of great trust and confidence. Congress, in the guise of prescribing qualifications to an office, cannot impose on the President who her alter ego should be. The office of a department secretary may become vacant while Congress is in session. Since a department secretary is the alter ego of the President, the acting appointee to the office must necessarily have the President's confidence. Thus, by the very nature of the office of a department secretary, the President must appoint in an acting capacity a person of her choice even while Congress is in session. That person may or may not be the permanent appointee, but practical reasons may make it expedient that the acting appointee will also be the permanent appointee. The law expressly allows the President to make such acting appointment. Section 17, Chapter 5, Title I, Book III of EO 292 states that "[t]he President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch." Thus, the President may even appoint in an acting capacity a person not yet in the government service, as long as the President deems that person competent. [Pimentel, Jr. v. Ermita, G.R. No. 164978, 2005] Steps in an ad-interim appointment (AIAC) 1. 2. 3. 4. Appointment by the appointing authority Issuance of the commission Acceptance by the appointee Confirmation by the CA Steps for appointments that do not require confirmation: (AIA) 1. Appointment by the appointing authority 2. Issuance of the commission 3. Acceptance by the appointee Absolute Appointment v. Conditional Appointment It is long settled in the law that where the power of appointment is absolute, and the appointee has been determined upon, no further consent or approval is necessary, and the formal evidence of the appointment, the commission, may issue at once. However, where the assent or confirmation of some other officer or body is required, the commission can issue or the appointment may be complete only when such assent or confirmation is obtained. In either case, the appointment becomes complete when the last act required of the appointing power is performed. Until the process is completed, the appointee can claim no vested right in the office nor invoke security of tenure. (Corpuz v. CA, G.R. No. 123989, 1998) Where the power of appointment is absolute and the appointee has been determined upon, no further consent or approval is necessary and the formal evidence of the appointment, the commission, may issue at once. The appointment is deemed complete once the last act required of the appointing authority has been complied with. A written memorial that can render title to public office indubitable is required. This written memorial is known as the commission. For purposes of appointments to the judiciary, therefore, the date the commission has been signed by the President is the date of the appointment. Such date will determine the seniority of the members of the Court of Appeals in connection with Section 3, Chapter I of BP 129, as amended by RA 8246. In other words, the earlier the date of the commission of an appointee, the more senior he is over the other subsequent appointees. (Re: Seniority among the four most recent appointments to the position of Associate Justices of the Court of Appeals, A.M. 10-4-22-SC, 2010) Page 272 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 C. MODES AND KINDS OF APPOINTMENTS General Rule: Acceptance of appointment is not necessary for the completion or validity of appointment. Exception: Acceptance is necessary to possession of office, and to enable appointee to the enjoyment and responsibility of an office. General Rule: An appointment to an office, once made and complete, is not subject to reconsideration or revocation. Exception: An officer is removable at the will of the appointing power. Forms of Acceptance 1. Express done verbally or in writing. 2. Implied - without formal acceptance, the appointee enters upon the exercise of the duties and functions of an office. (De Leon, The Law on Public Officers and Election Law, 65, 2011) Kinds of Appointment under the Civil Service Law 1. Permanent appointments - issued to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of the laws, rules, and standards promulgated in pursuance thereof. 2. Temporary appointments - issued in the absence of any eligibles, when necessary to public interest, in order to fill a vacancy with a person who meets all the requirements for the position to which he/she is being appointed, except the appropriate civil service eligibility. Appointment in an acting capacity is merely temporary, one which is good only until another appointment is made to take its place Temporary appointments shall not exceed 12 months. The appointee may be replaced sooner if a qualified civil service eligible becomes available. Where a temporary appointee acquires civil service eligibility during his tenure as such, his temporary appointment does not thereby automatically become permanent. What is required is a new appointment. Temporary appointment given to a POLITICAL LAW non-civil service eligible is without a definite tenure and is dependent upon the pleasure of the appointing power. Acquisition of civil service eligibility during tenure of a temporary appointee does not necessarily translate to permanent appointment. A new appointment which is permanent is necessary. (Province of Camarines Sur v. CA, G.R. No. 104639, 1995) Power of President to make temporary appointment: The President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch, appointment to which is vested in him by law, when: 1. The officer regularly appointed to the office is unable to perform his duties by reason of illness, absence or any other cause; or 2. there exists a vacancy Instances of Temporary Appointment 1. appointee does not possess civil service eligibility 2. appointment by the President in an executive office during the absence or incapacity of the incumbent 3. designation as officer in charge 4. appointment held at the pleasure of the appointing power 3. Regular Appointment made by the President while Congress is in session and becomes effective after the nomination is confirmed by the Commission on Appointments. 4. Provisional appointment - A person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment. 5. Ad Interim Appointment it is made while Congress is not in session, before confirmation by the CA; it is immediately effective, and ceases to be valid if disapproved or by-passed Page 273 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 by the CA or until the next adjournment of the Congress. 6. Midnight Appointment made by the President or acting president within 2 months immediately before the next presidential elections and up to the end of his term, whether or not it is confirmed by the Commission. after a complete appointment is tantamount to removal. (De Leon, The Law on Public Officers and Election Law, 68-69, 2011) Officers that the President Shall Appoint: (EMA2C- JC2AR-NL2) Nepotism The ord rela i e and member of he famil referred to are those related within the third degree either of consanguinity or affinity. Since a public office is a public trust, created for the benefit and in the interest of the people, appointments thereto should be based solely on merit and fitness uninfluenced by any personal or filial consideration. (De Leon, The Law on Public Officers and Election Law, 46, 417, 2011) 1. The Constitution prohibits the president from appointing his close relatives (within the 4th civil degree by consanguinity or affinity to the president or his spouse) to high positions in government during his tenure. No relative of the President, within the 4th civil degree, shall be appointed to/as: a. Constitutional Commissions b. The Office of the Ombudsman c. Secretary of a Department d. Undersecretary of a Department e. Chairman or Head of Bureaus of Offices f. Any GOCC g. Any GOCC subsidiary 2. Under the Civil Service Decree, all appointments in the national, provincial, city, and municipal governments or in any branch or instrumentality, including GOCCs, made in favor of the appointing or recommending authority, or of the chief of the bureau of the office, or of persons exercising immediate supervision over him, are prohibited. As used in he Ci il Ser ice La , he erm rela i e and members of the family referred to those within the 3rd degree of consanguinity or affinity. (De Leon, The Law on Public Officers and Election Law, 46, 2011) 1. 2. 3. 4. 5. 6. 7. 8. Heads of Executive departments Ambassadors Other public Ministers and consuls Officers of the Armed forces from the ranks of colonel or naval captain Other officers whose appointment are vested in him in the Constitution a. Regular members of the Judicial and Bar Council b. The Chairman and Commissioners of the Civil Service Commission c. The Chairman and Commissioners of the COMELEC d. The Chairman and Commissioners of the Commission on Audit e. Members of the Regional Consultative Commission (De Leon, The Law on Public Officers and Election Law, 71, 2011) Officers whose appointments are Not otherwise provided for by law Officers whom the president may be authorized by Law to appoint Officers Lower in rank whose appointments the Congress, by law, vested in the President (PHIL. CONST., art. VII, § 16) Constitutional Limitations on the Presidential Power to Appoint: 1. Nepotism (see discussion and exceptions below) 2. Midnight appointments 3. Those relating to an Acting President (PHIL. CONST., art. VII, §§ 13-15) The constitutional limitations refer to appointments in the executive and not the judicial branch of government. (De Castro v. JBC, G.R. No.191002, 2010) Revocability of Appointment General Rule: Appointment to an office once made and completed, is not subject to reconsideration or revocation because revocation Exception: Where the appointment is temporary. (Ong v. Office of the President, GR No 184219, January 30, 2012) Exceptions: (CTAP) 1. 2. 3. 4. Persons employed in Confidential capacity Teachers Physicians Members of AFP (De Leon, The Law on Public Officers and Election Law, 47, 2011) The restriction shall not be applicable to any Page 274 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 member who, after his or her appointment to any position in an office or bureau, contracts marriage with someone in the same office or bureau. In this event, the employment or retention therein of both husband and wife may be allowed. (De Leon, The Law on Public Officers and Election Law, 46, 2011) The mere issuance of appointment in favor of a relative within the third degree of consanguinity or affinity is sufficient to constitute nepotism. Also, even if the case is one of falsification of public document, the requirement of disclosure of relationship to the appointing power in the local government units simply aims to ensure strict enforcement of the prohibition against nepotism. (Galeos v. People, G.R. No. 174730-37, 2011) The rule on nepotism also applies to designations made in favor of a relative of the authority making a designation. A designation accomplishes the same purpose as appointment. (Laurel v. Civil Service Commission, G.R. No. 71562, 1991) Vacancy There is a vacancy when an office is empty and without a legally qualified incumbent appointed or elected to it with a lawful right to exercise its powers and perform its duties. There can be no appointment to a non-vacant position. (De Leon, The Law on Public Officers and Election Law, 104, 2011) CAUSES: (I RACED PAR2C) 1. Impeachment 2. Removal from office or resignation of the incumbent 3. Abandonment 4. Conviction of a crime 5. Expiration of term 6. Death 7. Permanent disability 8. Acceptance of incompatible office 9. Reaching the age limit 10. Recall 11. Creation of a new office 12. Failure of person to accept For appointments not needing confirmation, removal may be by President or officer designated by law. If the appointment is permanent, removal is allowed only for cause. Principles of Vacancy 1. A person no matter how qualified cannot be appointed to an office which is not vacant (Costin v Quimbo, GR No 32271, January 27, 1983) Such appointment is considered null and void ab initio. (General Manager, PPA v. Monserate, G.R. No. 129616, Apr. 17, 2002) 2. One who is legally dismissed from office is, by fiction of law, deemed not to have vacated his office (Fernandez v Cuneta, GR No 14392, May 30, 1960) D. ELIGIBILITY AND QUALIFICATION REQUIREMENTS Eligibility The state of being legally fit to be chosen. It is of a continuing nature and must exist both at the commencement and during the occupancy of an office. (De Leon, The Law on Public Officers and Election Law, 19, 2011) Eligible Under the Admin Code, it is used to refer to a person who obtains a passing grade in a civil service examination and whose name is entered in the register of eligibles from which appointments must be made. (ADMIN CODE, Book V, Title 1-a, Sec.5, Par. (8)) Nature of right to hold Public Office The right to hold public office is not a natural right. It exists only because and by virtue of some law expressly or impliedly creating and conferring it. The qualifications which relate to an office must be complied with by persons seeking that office. An election or appointment to office of a person who is ineligible or unqualified gives him no right to hold the office. (De Leon, The Law on Public Officers and Election Law, 20-21, 2011) Qualifications Acts which a person is required to do before entering upon position. Means two things: 1. Endowments, qualities, or attributes that make an individual eligible for public office 2. Acts, which a person, before entering upon the performance of his duties, is by law required to do, such as taking, subscribing, and filing of an official oath, and giving an official bond (De Leon, The Law on Public Officers and Election Law, 20, 2011) Subject to constitutional limitations, Congress may determine the eligibility and qualifications of Page 275 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 officers and provide for the methods of filling offices. Two Meanings of Qualifications WHEN REFERRING WHEN USED IN THE TO THE ACT OF SENSE OF ENETRING INTO ENDOWMENTS, THE QUALITIES OR PERFORMANCE OF ATTRIBUTES THE FUNCTIONS OF A PUBLIC OFFICE The individual must possess the qualifications at the time of appointment or election and continuously for as long as the official relationship continues. Note: Property qualifications may not be imposed for the exercise of the right to run for public office. Loss of any of the qualifications during incumbency will be a ground for termination. Failure of an officer to perform an act required by law could affec he officer i le to the office. Note: Prolonged failure or refusal to take the office could result in forfeiture of office. An oath of office taken before one who has no authority to administer oath is no oath at all. Once proclaimed and duly sworn in office, a public officer is entitled to assume office and to exercise the functions thereof. The pendency of an election protest is not sufficient basis to enjoin him from assuming office. The qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but d ring he officer en ire en re. Once any of the required qualifications is lost, his title may be reasonably challenged. Formal Qualifications: (CAP CARES) 1. Citizenship 2. Age 3. Political affiliation 4. Civil service examination 5. Ability to read and write 6. Residence 7. Education 8. Suffrage Only accountable public officers or those who are entrusted with the collection and custody of public money, and public ministerial officers whose actions may affect the rights and interests of individuals are required to give an official bond. Improper notarization is not among the grounds for disqualification as stated under the OEC and LGC. Apart from the qualifications provided for in the Constitution, the power to prescribe additional qualifications for elective office and grounds for disqualification therefrom, consistent with the constitutional provisions, is vested in Congress. (Amora v. COMELEC, G.R. No. 19228, 2011) An officer who misrepresented his or her qualification, e.g. educational attainment and eligibility for government service, is guilty of plain and simple dishonesty as it refers to the act of intentionally making a false statement on any material fact in securing one appointment. (Momongan v. Sumayo, A.M. No. P-10-2767, 2011) All public officers and employees shall take an oath or affirmation to uphold and defend the Constitution. (PHIL. CONST., art. IX-B, § 4) Limits on L Qualifications: a Power to Prescribe 1. The legislature may not reduce or increase the qualifications prescribed in an exclusive manner by the Constitution. 2. The legislature may prescribe only general qualifications. 3. The qualifications must be relevant to the office for which they are prescribed. Holding more than one office There is no constitutionally protected right to hold incompatible offices. The manifest purposes of a restriction on multiple holdings are to prevent offices of public trust from accumulating in a single person, and to prevent individuals from deriving, Page 276 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 directly or indirectly, any pecuniary benefit by virtue of their dual position-holding. Members of the House of Representatives 1. A natural-born citizen of the Philippines 2. On the day of the election, is at least 25 years of age 3. Able to read and write 4. Except the party-list representatives, a registered voter in the district in which he shall be elected; and 5. A resident thereof for a period of not less than 1 year immediately preceding the day of the election. Members of the SC and lower collegiate court 1. A natural-born citizen of the Philippines 2. A Member of the SC must be at least 40 years of age; and 3. Must have been for 15 years or more, a judge of a lower court or engaged in the practice of law in the Philippines. 4. A member of the judiciary must be a person of proven competence, integrity, probity and independence. Chairman and the Commissioners of the CSC 1. Natural-born citizens of the Philippines and 2. At the time of their appointment, at least 35 years of age 3. With proven capacity for public administration; and 4. Must not have been candidates for any elective position in the elections immediately preceding their appointment. Where a person is prohibited from holding two offices at the same time, his appointment or election to a second office may operate to vacate the first or he may be ineligible for the second. A person who accepts and qualifies for a second and incompatible office is deemed to vacate, or by implication, to resign from the first office. The same rule obtains where the holding of more than one position is prohibited by constitutional or statutory provision although the second position is compatible with the first. (De Leon, The Law on Public Officers and Election Law, 44, 2011) In the absence of constitutional inhibition, Congress has the same right to provide disqualifications that it has to provide qualifications for office. (De Leon, The Law on Public Officers and Election Law, 23, 2011) Those Prescribed by the Constitution POSITION QUALIFICATION President and Vice President 1. A natural-born citizen of the Philippines 2. A registered voter 3. Able to read and write 4. At least 40 years of age on the day of the election; and 5. A resident of the Philippines for at least 10 years immediately preceding such election. Senators 1. Philippines 2. On the day of the election, is at least 35 years of age 3. Able to read and write 4. A registered voter; and 5. A resident of the Philippines for not less than 2 years immediately preceding the day of the election. Page 277 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 Chairman and the Commissioners of the COMELEC 1. Natural-born citizens of the Philippines and 2. At the time of their appointment, at least 35 years of age 3. Holders of a college degree; and 4. Must not have been candidates for any elective positions in the immediately preceding elections 5. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least 10 years. Chairman and the Commissioners of the COA 1. A natural-born citizens of the Philippines 2. At the time of their appointment, at least 35 years of age 3. Certified Public Accountants with not less than 10 years of auditing experience, or members of the Philippine Bar who have been engaged in the practice of law for at least 10 years; and 4. Must not have been candidates for any elective position in the elections immediately preceding their appointment 5. At no time shall all Members of the Commission belong to the same profession. Chairman and Members 1. Natural-born citizens of the Philippines; and of the Commission on Human Rights 2. A majority of whom shall be members of the Bar. 3. The term of office and other qualifications and disabilities of the Members of the Commission shall be provided by law. 1. Natural-born citizens of the Philippines; and 2. At the time of appointment, at least 40 years old, of recognized probity and independence, and members of the Philippine Bar Ombudsman and 3. Must not have been his/her Deputies candidates for any elective office in the immediately preceding elections 4. Ombudsman must have, for 10 years and more, been a judge or engaged in the practice of law in the Philippines (De Leon, The Law on Public Officers and Election Law, 35-37, 2011) E. DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS Disqualification It is the presence of circumstances and qualities which makes an individual ineligible from holding a public office. Lack of disqualifications is itself a qualification. Disqualifications: (IM RIPE C2ORN LG) 1. 2. 3. 4. 5. 6. 7. 8. Mental or physical Incapacity Misconduct or crime Removal or suspension from office Impeachment Previous tenure of office Being an Elective official Consecutive terms Having been a Candidate for any elective position 9. Holding more than One office 10. Relationship with the appointing power Page 278 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 11. Office Newly created or the emoluments of which have been increased 12. Grounds under the Local Government Code (De Leon, The Law on Public Officers and Election Law, 40-49, 2011) 2. General Rule: Appointive and elective officials cannot hold multiple employment or office during their tenure. Exception: Appointive officials may hold other office when allowed by law or by the primary functions of their positions. (PHIL. CONST., art. XIB, § 7) Exception to holding multiple offices: 3. 1. Those provided for under the Constitution, such as: a. President as head of NEDA (PHIL. CONST., art. XII, § 9) b. VP may be appointed as Cabinet Member (PHIL. CONST., art. VII, § 3) c. VP as Acting President (PHIL. CONST., art. VII, § 7) d. In and ex-officio capacity (CLU v. Exec. Sec., G.R. No. 83896, 1991); and 2. Posts occupied by Executive officials specified in Section 13, Article VII without additional compensation in ex officio capacities as provided by law and as required by the primary f nc ion of he official office . (Funa v. Agra, G.R. No. 191644, 2013) General Disqualifications Constitution: under under 5. 6. the 1. No candidate who lost in an election shall, within one year after such election, be appointed to any office in Government. (PHIL. CONST., art. IX-B, § 6) 2. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. (PHIL. CONST., art. IX-B, § 7 (1)) 3. Unless otherwise provided by law or by the primary functions of his position, no appointive official shall hold any other position in Government. (PHIL. CONST., art. IX-B, § 7 (2)) Special Disqualifications Constitution: 4. the 1. The President, Vice-president, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise 7. 8. provided in the Constitution, hold any other office or employment during their tenure. (PHIL. CONST., art. VIII, § 13) No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term, without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increase during the term for which he was elected. (PHIL. CONST., art. VI, § 13) The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasijudicial or administrative functions. (PHIL. CONST., art. VIII, § 12) No Member of a Constitutional Commission shall, during his tenure, hold any other office or employment. (PHIL. CONST., art. IX-A, § 2) The same disqualification applies to the Ombudsman and his deputies. (PHIL. CONST., art. XI, § 8) The Ombudsman and his Deputies shall not be qualified to run for any office in the election immediately succeeding their cessation from office. (PHIL. CONST., art. XI, § 11) Members of Constitutional Commissions, the Ombudsman and his deputies must not have been Candidates for any elective position in the elections immediately preceding their appointment. (PHIL. CONST., art. IX-B, IX-C, IX-D, § 1; art. XI, § 8) Members of the Constitutional Commissions, the Ombudsman and his deputies are appointed to a term of seven (7) years, without reappointment. (PHIL. CONST., art. IX-B, § 1 (2); art. IX-C, § 1 (2); art. IX-D, §. 1 (2); art. IX, § 11) The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including governmentowned or controlled corporations (PHIL. CONST., art. VII, § 13, art. VII) P.D. 807, Sec. 49 prohibits the appointment of a Senator or Congressman to any office which may Page 279 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 have been created or emoluments thereof increased during the term for which he was elected. When the Constitution has attached a disqualification to the holding of any office, Congress cannot remove it under the power to prescribe qualifications as to such offices as it may create. The Constitution imposes limitations on the right of certain officials to hold more than one office at the same time. 1. The President, Vice President, Members of the Cabinet, their deputies or assistants shall not, unless otherwise provided in the Constitution, hold any other office or employment during their tenure. 2. A Senator or Member of the House of Representatives may not hold any office or employment in the Government, or any subdivision, agency, or instrumentality, including GOCCS or their subsidiaries, during his term (not tenure) without forfeiting his seat. 3. The members of the Supreme Court and of other courts established bylaw shall not be designated to any agency performing quasijudicial or administrative functions. 4. A member of the Constitutional Commission shall not, during his tenure, hold any other office or employment. 5. During their tenure, the Ombudsman and his deputies are subject to the same disqualifications and prohibitions as provided for members Constitutional Commissions. of the 6. Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the government or any subdivision, agency, or instrumentality, including GOCCs or their subsidiaries. 7. No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the government including GOCCs or any of their subsidiaries. 8. The Constitution prohibits the President from appointing his close relatives to high positions in the government. Thus: "The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure, be appointed as members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus of offices, including governmentowned or -controlled corporations and their subsidiaries. 9. Under the Civil Service Decree, all appointments in the national, provincial, city, and municipal governments or in any branch or instrumentality thereof, including government-owned or controlled corporations, made in a favor or a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of persons exercising immediate supervision over him, are prohibited. As used in the law, the word "relative" and members of the family referred to are those related within the third degree either of consanguinity or of affinity. The restriction shall not be applicable to the case of a member of any family who, after his or her appointment to any position in an office or bureau, contracts marriage with someone in the same office or bureau, in which event the employment or retention therein of both husband and wife may be allowed. 10. The following are exempted from the operation of the rules on nepotism: 1) persons employed in a confidential capacity; 2) teachers; 3) physicians; and 4) members of the Armed Forces of the Philippines. Spoils System and Political Lame Ducks SPOILS SYSTEM No elective official shall be eligible for appointment of designation in any capacity to any public office or position during his tenure (PHIL. CONST. art. IX-B, §7) The disqualification subsists only during the tenure in office of the elective official. He may be POLITICAL LAME DUCKS No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government of any government-owned or controlled corporations or in any of its subsidiaries. (PHIL. CONST., art. IX-B, §6) Page 280 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 appointed provided he forfeits his seat. Examples of exceptions: 1. The Vice President may be appointed as a cabinet member. 2. A Congressman may sit in the Judicial and Bar Council. 3. To be eligible to hold any other office, the elected official must first resign from his office. Members of the Civil Service shall not have been candidates for any elective position in the elections immediately preceding their appointment. (PHIL. CONST., art. IX-B, §1) Except for losing candidates in barangay elections, no candidate who lost in any election shall, within 1 year after such election, be appointed to any office in the Government or any government-owned or controlled corporations or in any of their sub idiarie . (Local Government Code, §94). Power of Congress Disqualifications to Prescribe In the absence of constitutional inhibition, Congress has the same right to provide disqualifications that it has to provide qualifications for office. (De Leon, The Law on Public Officers and Election Law, 21, 2019) Restrictions 1. Congress may not add disqualifications where the Constitution has provided them in such a way as to indicate an intention that the disqualifications provided shall embrace all that are to be permitted; and 2. When the Constitution has attached a disqualification to the holding of any office, Congress cannot remove it under the power to prescribe qualifications as to such offices as it may create (De Leon, The Law on Public Officers and Election Law, 21, 2019) Congress cannot validly amend or otherwise modify the qualification standards (under the Constitution), as it cannot disregard, evade, or weaken the force of a constitutional mandate, or alter or enlarge the Constitution. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution. In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed. Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. [SJS v. DDB, GR No. 157870, 2008] Divestment When a public official is in a conflict-of-interest situation. Such official must resign from his position in any private business enterprise within 30 days from his assumption of office and/ or divest himself of his shareholdings or interest within 60 days from such assumption. (RA 6713, Office of the Ombudsman) Duration of Qualification Eligibility to an office should be construed as of a continuing nature and must exist at the commencement of the term and during occupancy of the office. The reckoning point in determining the qualifications of an appointee is the date of issuance of the appointment and not the date of its approval by the CSC or the date of resolution of the protest against it (CSC v de la Cruz, G.R. No. 158737, August 31, 2004) Persons required to take an Oath of Office under the Constitution 1. All public officers and employees 2. President, VP, or the acting President 3. All members of the AFP Oath of Office It is a qualifying requirement for a public office. Only when the public officer has satisfied this prerequisite can his right to enter into the position be considered plenary and complete. Until then, he has none at all and for as long as he has not qualified, the holdover officer is the rightful occupant. (De Leon, The Law on Public Officers Page 281 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 and Election Law, 110, 2011) Inhibitions It is a restraint upon the public officer against the doing of certain acts which may be legally done by others. Inhibitions under the Constitution 1. The President, Vice-President, Cabinet Members and their deputies and assistants shall not, during tenure, directly or indirectly practice any other profession, participate in any business or be financially interested in any contract with the Government. They shall strictly avoid conflict of interest in the conduct of their office. 2. No Senator or Member of the House may hold any other office or employment in the Government during his term without forfeiting his seat. 3. No Senator or Member of the House may personally appear as counsel before any court of justice or before the Electoral Tribunal, or quasi-judicial and other administrative bodies. 4. No Senator or Member of the House shall directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government, during his term of office 5. No Member of the Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession or in the active management or control of business which in any way may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or special privilege granted by the Government during his term of office. This inhibition applies as well to the Ombudsman and his deputies. 6. No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign. Practice of Profession 1. All governors, city and municipality mayors, are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives; 2. Sanggunian members may practice their professions, engage in any occupation, or POLITICAL LAW teach in schools, except during session hours, Sanggunian members who are also members of the Bar shall not: a. Appear as counsel before any court in any civil case wherein a local government unit or any office, agency or instrumentality of the government is the adverse party; b. appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office; c. collect any fee for their appearance in administrative proceeding involving the local government until of which he is an official; and d. use property and personnel of the Government except when the Sanggunian member concerned is defending the interest of the government 3. Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency, provided that officials concerned do not derive monetary compensation therefrom. (Section 90, Local Government Code) While, as already discussed, certain local elective officials (like governors, mayors, provincial board members and councilors) are expressly subjected to a total or partial proscription to practice their profession or engage in any occupation, no such interdiction is made on the punong barangay and the members of the sangguniang barangay. Expressio unius est exclusio alterius. Since they are excluded from any prohibition, the presumption is that they are allowed to practice their profession. And this stands to reason because they are not mandated to serve full time. In fact, the sangguniang barangay is supposed to hold regular sessions only twice a month. (Catu v. Rellosa, GR No. 5738, 2008) A civil service officer or employee whose responsibilities do not require his time to be fully at the disposal of the government can engage in the private practice of law only with the written permission of the head of the department concerned (i.e. DILG). (Section 12, Rule XVIII of the Revised Civil Service Rules) Page 282 of 568 ATENEO CENTRAL POLITICAL LAW BAR OPERATIONS 2020/21 F. POWERS AND DUTIES OF PUBLIC OFFICERS Extent of Powers or Authority 1. Expressly conferred upon him by the law under which he has been appointed or elected 2. Expressly annexed to the office by the law which created it or some other law referring to it 3. Attached to the office as an incident to it (De Leon, The Law on Public Officers and Election Law, 119, 2019) Consequence of Holding Office To hold an office means to possess or to occupy the office, or to be in possession and administration of the office, which implies nothing less than the actual discharge of the functions and duties of the office. (Funa v. Agra, G.R. No. 191644, 2013) Doctrine of necessary implication All powers necessary to the exercise of the power expressly granted are deemed impliedly granted. The fact that a particular power has not been expressly conferred does not necessarily mean that it is not possessed by the officer claiming it. (Robustum Agricultural Corporation v. Department of Agrarian Reform, G.R. No. 221484, Nov. 19, 2018) No statute can be enacted that can provide all the details involved in its application. There is always an omission that may not meet a particular situation. What is thought, at the time of enactment, to be an all-embracing legislation may be inadequate to provide for the unfolding events of the future. So-called gaps in the law develop as the law is enforced. One of the rules of statutory construction used to fill in the gap is the doctrine of necessary implication. (Chua v. CSC,GR No. 88979, 1992) Ministerial v. Discretionary Powers MINISTERIAL POWERS DISCRETIONARY POWERS When it is absolute, certain, and imperative involving merely execution of a specific duty arising from fixed and designated facts. When it requires the exercise of reason and discretion in determining how or whether the act shall be done or the course pursued. Note: The officer is expected to discharge the duty directly and not Note: The law exacting its discharge prescribes and defines the time, mode, and occasion of its performance with such certainty that nothing is left for judgement or discretion. through the intervening mind of another. It is susceptible of delegation and can be compelled by judicial action. General Rule: It cannot be delegated to another Exception: Power of the President to conclude treaties may be assigned to a treaty panel, which can negotiate the treaty on his behalf, under his instructions and subject to his approval. (De Leon, The Law on Public Officers and Election Law, 122-123, 2019) Constitutional Duties of Public Officers 1. To be accountable to the people, to serve them with utmost responsibility, integrity, loyalty, and efficiency; to act with patriotism and justice; and to lead modest lives. (PHIL. CONST., art. XI, § 1); 2. Submit a declaration under oath of assets, liabilities, and net worth upon assumption of officer and thereafter as may be required; (PHIL. CONST., art. XVIII, § 7) 3. Owe the State and Constitution allegiance at all times. (PHIL. CONST., art. XI, § 18); Duties of Public officers, In General 1. 2. 3. 4. Duty to obey the law Duty to accept and continue in office; Duty to accept burden of office; Duty as to diligence and care in the performance of official duties; 5. Duty in choice and supervision of subordinates; 6. Duty to perform official acts honestly, faithfully, and to the best of his ability; 7. Duty not to use his official power to further his own interest (De Leon, The Law on Public Officers and Election Law, 152-44, 2011) Territorial Limitation and Duration of Authority The authority of all public officers is limited and Page 283 of 568 ATENEO CENTRAL BAR OPERATIONS 2020/21 POLITICAL LAW confined to that territory over which the law, by virtue of which they claim, has sovereign force. The authority is limited in its exercise to that term during which he is by law invested with the rights and duties of the office. (De Leon, The Law on Public Officers and Election Law, 132-33, 2011) Effect when law fixes specific date for the end of a term When the law fixes a specific date for the end of the term, there is an implied prohibition against holdover (Nueno v Angeles, GR no 89, February 1, 1946) Alter Ego Principle The acts of the Secretaries of the departments, performed and promulgated in the regular course of business are, unless disapproved or reprobated by the President, presumptively the acts of the President. (Carpio v Executive Secretary, GR No 96409, February 14, 1992) Nature of Officer during Hold-Over During the period of hold-over, the public officer is a de jure officer (Bautista v Fajardo, GR No 13799, September 23, 1918) Doctrine of Qualified Political Agency All executive and administrative organizations are adjuncts of the Executive department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or in the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive (Villena v. Secretary of Interior, GR No. L-46570, 1939) Limits of the Alter Ego Doctrine There are certain powers that are reserved to the President which cannot be exercised by the Secretaries of the departments such as: 1. Declaration of Martial Law 2. Suspension of the privilege of writ of habeas corpus 3. Pardoning Power; 4. Purely discretionary powers Principle of Hold-Over In the absence of any express of implied constitutional or statutory provision to the contrary, the public officer is entitled to hold office until his successor shall have been duly chosen and shall have qualified. (Lecaroz v. Sandiganbayan, GR No 130872, March 25, 1999) Classifications of Powers and Duties As to their Nature 1. Ministerial the law exacting its discharge prescribes and defines the time, mode and occasion of its performance and requires neither judgment nor discretion. This kind of duty is susceptible of delegation. 2. Discretionary a public officer has the right to decide how and when the duty shall be performed. A public officer cannot delegate this kind of duty. (De Leon, The Law on Public Officers and Election Law, 135-36, 2011) General Rule: Mandamus will not lie for the performance of a discretio

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