(1) POLITICAL LAW - 2022 UST GOLDEN NOTES [CONFIDENTIAL]
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FACULTY OF CIVIL LAW (1734) POLITICAL LAW 2022 GOLDEN NOTES FACULTY OF CIVIL LAW UNIVERSITY OF SANTO TOMAS MANILA The UST GOLDEN NOTES is the annual student-edited bar review material of the University of Santo Tomas, Faculty of Civil Law. Communications regarding the Notes should be addressed to the Academics Committee of the Team: Bar-Ops. Address: Academics Committee UST Bar Operations Faculty of Civil Law University of Santo Tomas España, Manila 1008 Tel. No: (02) 8731-4027 (02) 8406-1611 loc. 8578 Academics Committee Faculty of Civil Law University of Santo Tomas España, Manila 1008 All rights reserved by the Academics Committee of the Faculty of Civil Law of the Pontifical and Royal University of Santo Tomas, the Catholic University of the Philippines. 2022 Edition. No portion of this material may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devises or in any other form, for distribution or sale, without a written permission. A copy of this material without the corresponding code either proceeds from an illegal source or is in possession of one who has no authority to dispose the same. Released in the Philippines, 2022. Faculty of Civil Law (1734) ACADEMIC YEAR 2021-2022 CIVIL LAW STUDENT COUNCIL NATHAN RAPHAEL D.L. AGUSTIN STEPHEN FLOYD A. GOPEZ NICOLO B. BONGOLAN PATRICIA INGRID M. SEE JULIENNE CELINE G. OGAYON IVAN ARNIE C. QUIAMCO KAREN DARYL L. BRITO PRESIDENT VICE PRESIDENT INTERNAL VICE PRESIDENT EXTERNAL SECRETARY TREASURER PUBLIC RELATIONS OFFICER CHIEF-OF-STAFF UST BAR-OPS SARAH ANGELA D. EVA JUSTINE RENEE GERVACIO MA. ANDREA D. CABATU JAN YSABEL U. DE LEON PAULINNE STEPHANY G. SANTIAGO KAREN DARYL L. BRITO RALPH DOMINIC V. MARTINEZ JEDIDIAH R. PADUA SABINA MARIA H. MABUTAS JOSEPHINE GRACE W. ANG REBECCA JOY M. MALITAO JOHN FREDERICK A. NOJARA CHAIRPERSON VICE-CHAIRPERSON SECRETARY HEAD, PUBLIC RELATIONS OFFICER HEAD, FINANCE COMMITTEE HEAD, HOTEL ACCOMMODATIONS COMMITTEE HEAD, LOGISTICS COMMITTEE SENIOR MEMBER SENIOR MEMBER SENIOR MEMBER SENIOR MEMBER SENIOR MEMBER ATTY. AL CONRAD B. ESPALDON ADVISER Faculty of Civil Law (1734) ACADEMICS COMMITTEE 2022 FRANCINE BLAISE M. LOJA JOANNA NICOLE A. PAZ MARC GABRIEL A. ABELLA KIARA LOUISE T. BALIWAG DANIELLE B. BARANDA MA. CARMINA A. DIETA DAINIELE RENEE R. FAJILAGUTAN GEORJHIA CZARINAH Q. MALALUAN MARIA CRISANTA M. PALOMA MIKAELA CECILLE S. SILVERIO JERICHO SIMON H. DU SECRETARY GENERAL SECRETARY GENERAL EXECUTIVE COMMITTEE for LEGAL ETHICS EXECUTIVE COMMITTEE for CRIMINAL LAW EXECUTIVE COMMITTEE for LABOR LAW AND SOCIAL LEGISLATION EXECUTIVE COMMITTEE for CIVIL LAW EXECUTIVE COMMITTEE for REMEDIAL LAW EXECUTIVE COMMITTEE for COMMERCIAL LAW EXECUTIVE COMMITTEE for POLITICAL LAW EXECUTIVE COMMITTEE for TAXATION LAW COVER DESIGN ARTIST POLITICAL LAW COMMITTEE 2022 KATHERINE S. POLICARPIO POLITICAL LAW SUBJECT HEAD LANCE BERNADETTE F. BASA DANIE LOIS B. BAUTISTA PATRISHA LOUISE E. DUMANIL DIANNE MICAH ANGELA D. YUMANG IRISH KATE B. MARAMAG ASST. HEAD, POLITICAL LAW ASST. HEAD, CONSTITUTIONAL LAW ASST. HEAD, LAW ON PUBLIC OFFICERS AND ADMINISTRATIVE LAW ASST. HEAD, PUBLIC CORPORATIONS ASST. HEAD, PUBLIC INTERNATIONAL LAW MEMBERS RALPH REYNAN F. ACOSTA DIN EVE JAMES F. AMANTE EXEQUIEL S. BELLOSILLO RYLE NICOLE Q. CUSTODIO JAN YSABEL U. DE LEON KAREN LOUISE R. FLORECE AXL V. FRANCISCO HAILORD N. LAVARIAS JOSE MARI M. LEE SARAH MAY D. MEDALLE PRISCILLA LEE V. MORALES DANICA ELLA C. NAGORITE PAULA ANDREA F. PEÑAFLOR ROI VINCENT C. PEREZ MARIA LOURDES R. PRINCIPE ZOE YSABEL L. SULIT ATTY. AL CONRAD B. ESPALDON ATTY. VICTORIA V. LOANZON ADVISERS Faculty of Civil Law (1734) TAXATION LAW COMMITTEE 2022 ALEXANDER J. CAIRO TAXATION LAW SUBJECT HEAD PAULINNE STEPHANY G. SANTIAGO ASST. HEAD, GENERAL PRINCIPLES OF TAXATION MEMBERS FRANCES MICKAELLA NOREEN M. CHAVEZ LESLEY YSABEL B. SUMAGPANG ATTY. KENNETH GLENN L. MANUEL ADVISER Faculty of Civil Law (1734) OUR DEEPEST APPRECIATION TO OUR MENTORS AND INSPIRATION Justice Amy Lazaro-Javier Atty. Rafaelito M. Garayblas † Justice Oswaldo D. Agcaoili Atty. Kristjan Vicente T. Gargantiel Judge Charito M. Sawali Atty. Allan B. Gepty Judge Rigor R. Pascual Atty. Rene B. Gorospe Dean Lope E. Feble Atty. Victoria V. Loanzon Dean Antonio G.M. La Viña Atty. Anicia C. Marquez Chairman Sheriff M. Abas Atty. Edwin R. Sandoval Atty. Carlo L. Cruz Atty. Ismael L. Sarangaya, Jr. Atty. Enrique V. Dela Cruz Atty. Mauricio C. Ulep Atty. Al Conrad B. Espaldon For being our guideposts in understanding the intricate sphere of Political Law. – Academics Committee 2022 Faculty of Civil Law (1734) OUR DEEPEST APPRECIATION TO OUR MENTORS AND INSPIRATION Justice Japar B. Dimaampao Atty. Abelardo T. Domondon Atty. Noel M. Ortega Atty. Virginia Jeannie P. Lim Atty. Prudence Angelita A. Kasala Atty. Benedicta Du-Baladad Atty. Rizalina V. Lumbera Atty. Lean Jeff M. Magsombol Atty. Kenneth Glenn L. Manuel Atty. Clarice Angeline V. Questin For being our guideposts in understanding the intricate sphere of Taxation Law. – Academics Committee 2022 DISCLAIMER THE RISK OF USE OF THIS BAR REVIEW MATERIAL SHALL BE BORNE BY THE USER TABLE OF CONTENTS I. BASIC CONCEPTS UNDER THE 1987 CONSTITUTION ...................................................................................................... 1 A. DECLARATION OF PRINCIPLES AND STATE POLICIES .......................................................................................................... 1 B. NATIONAL TERRITORY ......................................................................................................................................................................... 5 C. SEPARATION OF POWERS ................................................................................................................................................................... 8 D. CHECKS AND BALANCES ................................................................................................................................................................... 10 E. STATE IMMUNITY ................................................................................................................................................................................. 11 F. DELEGATION OF POWERS ................................................................................................................................................................ 16 G. FUNDAMENTAL POWERS OF THE STATE ................................................................................................................................. 19 II. GENERAL PRINCIPLES OF TAXATION ...............................................................................................................................27 A. DEFINITION, CHARACTERISTICS AND PURPOSE OF TAXATION ................................................................................... 27 B. POWER OF TAXATION AS DISTINGUISHED FROM POLICE POWER AND EMINENT DOMAIN ......................... 29 C. SCOPE AND LIMITATIONS OF TAXATION.................................................................................................................................. 31 1. INHERENT AND CONSTITUTIONAL LIMITATIONS OF TAXATION ............................................................ 31 2. TERRITORIALITY PRINCIPLE AND SITUS OF TAXATION .............................................................................. 55 D. REQUISITES OF A VALID TAX.......................................................................................................................................................... 57 E. TAX AS DISTINGUISHED FROM OTHER FORMS OF EXACTIONS..................................................................................... 57 F. KINDS OF TAXES .................................................................................................................................................................................... 60 G. DOCTRINES IN TAXATION ................................................................................................................................................................ 62 1. LIFEBLOOD THEORY ..................................................................................................................................................... 62 2. CONSTRUCTION AND INTERPRETATION OF TAX LAWS, RULES, AND REGULATIONS ................... 62 3. PROSPECTIVITY OF TAX LAWS................................................................................................................................. 63 4. IMPRESCRIPTIBILITY OF TAXES .............................................................................................................................. 65 5. DOUBLE TAXATION ....................................................................................................................................................... 65 6. EXEMPTION FROM TAXATION ................................................................................................................................. 67 7. ESCAPE FROM TAXATION ........................................................................................................................................... 72 8. EQUITABLE RECOUPMENT ........................................................................................................................................ 75 9. PROHIBITION ON COMPENSATION AND SET-OFF........................................................................................... 76 III. LEGISLATIVE DEPARTMENT ..............................................................................................................................................77 A. LEGISLATIVE POWER ......................................................................................................................................................................... 77 1. SCOPE AND LIMITATIONS ......................................................................................................................................... 77 2. PRINCIPLE OF NON-DELEGABILITY; EXCEPTIONS.......................................................................................... 79 B. HOUSES OF CONGRESS; COMPOSITIONS AND QUALIFICATIONS .................................................................................. 80 1. SENATE ............................................................................................................................................................................... 80 2. HOUSE OF REPRESENTATIVES ................................................................................................................................. 82 a. DISTRICT REPRESENTATIVES AND QUESTIONS OF APPORTIONMENT.......................................... 83 b. PARTY-LIST SYSTEM .............................................................................................................................................. 84 C. LEGISLATIVE PRIVILEGES, INHIBITIONS, AND QUALIFICATIONS ................................................................................ 88 D.QUORUM AND VOTING MAJORITIES ............................................................................................................................................ 91 E. DISCIPLINE OF MEMBERS................................................................................................................................................................. 93 F. PROCESS OF LAW-MAKING .............................................................................................................................................................. 94 G. APPROPRIATION AND RE-ALIGNMENT..................................................................................................................................... 97 H. LEGISLATIVE INQUIRIES AND OVERSIGHT FUNCTIONS................................................................................................... 98 I. POWER OF IMPEACHMENT.............................................................................................................................................................103 J. ELECTORAL TRIBUNALS AND THE COMMISSION ON APPOINTMENTS .................................................................... 105 1. POWERS AND JURISDICTION ..................................................................................................................................105 K. INITIATIVE AND REFERENDUM ..................................................................................................................................................110 IV. EXECUTIVE DEPARTMENT............................................................................................................................................... 112 A. QUALIFICATIONS, ELECTION, AND TERM OF THE PRESIDENT AND VICE-PRESIDENT .................................. 112 B. PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS .................................................................................................... 112 C. POWERS OF THE PRESIDENT .......................................................................................................................................................118 1. GENERAL EXECUTIVE AND ADMINISTRATIVE POWERS............................................................................118 2. POWER OF APPOINTMENT ......................................................................................................................................119 a. IN GENERAL.............................................................................................................................................................119 b. CONFIRMATION AND BY-PASSED APPOINTMENTS...............................................................................120 c. MIDNIGHT AND AD-INTERIM APPOINTMENTS........................................................................................121 d. POWER OF REMOVAL ..........................................................................................................................................123 D. POWER OF CONTROL AND SUPERVISION ..............................................................................................................................124 1. DOCTRINE OF QUALIFIED POLITICAL AGENCY .............................................................................................124 2. EXECUTIVE DEPARTMENTS AND OFFICES .......................................................................................................125 3. LOCAL GOVERNMENT UNITS ..................................................................................................................................125 E. EMERGENCY POWERS ......................................................................................................................................................................125 F. MILITARY POWERS ............................................................................................................................................................................126 1. CALLING OUT POWERS ..............................................................................................................................................126 2. DECLARATION OF MARTIAL LAW AND SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS; EXTENSION ....................................................................................................................................127 G. EXECUTIVE CLEMENCY ...................................................................................................................................................................131 1. FORMS AND LIMITATIONS .......................................................................................................................................131 H. DIPLOMATIC POWER .......................................................................................................................................................................134 I. POWERS RELATIVE TO APPROPRIATION MEASURES ....................................................................................................... 136 J. RULES OF SUCCESSION .....................................................................................................................................................................137 V. JUDICIAL DEPARTMENT .................................................................................................................................................... 139 A. JUDICIAL POWER ................................................................................................................................................................................139 B. JUDICIAL REVIEW ..............................................................................................................................................................................139 1. REQUISITES.....................................................................................................................................................................140 2. POLITICAL QUESTION DOCTRINE.........................................................................................................................143 3. MOOT QUESTIONS .......................................................................................................................................................144 4. OPERATIVE FACT DOCTRINE..................................................................................................................................144 C. JUDICIAL INDEPENDENCE AND FISCAL AUTONOMY ........................................................................................................145 D. APPOINTMENTS TO THE JUDICIARY ........................................................................................................................................147 1. QUALIFICATIONS..........................................................................................................................................................147 2. JUDICIAL AND BAR COUNCIL (JBC) (COMPOSITION AND POWERS) .....................................................149 E. THE SUPREME COURT (COMPOSITION, POWERS, AND FUNCTIONS) ....................................................................... 149 VI. CONSTITUTIONAL COMMISSIONS ................................................................................................................................. 152 A. COMMON PROVISIONS .................................................................................................................................................................... 152 B. POWERS, FUNCTIONS, AND JURISDICTION ........................................................................................................................... 153 C. COMPOSITION AND QUALIFICATIONS OF MEMBERS ...................................................................................................... 156 D. PROHIBITED OFFICES & INTERESTS ...................................................................................................................................... 159 E. JUDICIAL REVIEW OF FINAL ORDERS, RESOLUTIONS AND DECISIONS OF CONSTITUTIONAL COMMISSIONS .......................................................................................................................................................................................... 160 VII. BILL OF RIGHTS ................................................................................................................................................................. 162 A. DUE PROCESS ...................................................................................................................................................................................... 162 1. PROCEDURAL AND SUBSTANTIVE ....................................................................................................................... 163 2. VOID-FOR-VAGUENESS ............................................................................................................................................. 167 3. JUDICIAL AND ADMINISTRATIVE DUE PROCESS........................................................................................... 168 B. EQUAL PROTECTION ........................................................................................................................................................................ 170 1. REQUISITES FOR VALID CLASSIFICATION ....................................................................................................... 170 2. TESTS TO DETERMINE THE REASONABLENESS OF A CLASSIFICATION ............................................ 172 C. ARRESTS, SEARCHES AND SEIZURES ....................................................................................................................................... 173 1. REQUISITES OF A VALID WARRANT ................................................................................................................... 173 2. WARRANTLESS ARRESTS AND DETENTION ................................................................................................... 178 3. WARRANTLESS SEARCHES ..................................................................................................................................... 180 4. EXCLUSIONARY RULE ................................................................................................................................................ 185 D. PRIVACY OF COMMUNICATION AND CORRESPONDENCE............................................................................................. 185 1. PRIVATE AND PUBLIC COMMUNICATIONS ...................................................................................................... 186 2. INTRUSION, WHEN ALLOWED............................................................................................................................... 189 3. EXCLUSIONARY RULE ................................................................................................................................................ 191 E. FREEDOM OF SPEECH AND EXPRESSION ............................................................................................................................... 192 1. PRIOR RESTRAINT AND SUBSEQUENT PUNISHMENT ................................................................................ 195 2. CONTENT-BASED AND CONTENT-NEUTRAL REGULATIONS .................................................................. 198 3. FACIAL CHALLENGES AND OVERBREADTH DOCTRINE............................................................................. 199 4. TESTS TO DETERMINE THE VALIDITY OF GOVERNMENTAL REGULATION ..................................... 200 5. STATE REGULATION OF DIFFERENT TYPES OF MASS MEDIA ................................................................ 201 6. UNPROTECTED SPEECH ........................................................................................................................................... 202 F. FREEDOM OF RELIGION.................................................................................................................................................................. 204 1. NON-ESTABLISHMENT AND FREE EXERCISE CLAUSES ............................................................................. 206 2. BENEVOLENT NEUTRALITY AND CONSCIENTIOUS OBJECTORS ........................................................... 209 3. TESTS TO DETERMINE THE VALIDITY OF GOVERNMENTAL REGULATION ..................................... 211 G. LIBERTY OF ABODE AND RIGHT TO TRAVEL ....................................................................................................................... 212 1. SCOPE AND LIMITATIONS ....................................................................................................................................... 212 2. WATCH-LIST AND HOLD DEPARTURE ORDERS ............................................................................................ 213 H. RIGHT TO INFORMATION .............................................................................................................................................................. 215 1. SCOPE AND LIMITATIONS ....................................................................................................................................... 215 I. EMINENT DOMAIN ............................................................................................................................................................................. 218 1. CONCEPT ......................................................................................................................................................................... 218 2. JUST COMPENSATION ................................................................................................................................................ 219 3. EXPROPRIATION BY LOCAL GOVERNMENT UNITS ...................................................................................... 221 J. RIGHT TO ASSOCIATION .................................................................................................................................................................. 223 1. SCOPE AND LIMITATIONS ....................................................................................................................................... 223 K. NON-IMPAIRMENT OF CONTRACTS ......................................................................................................................................... 224 1. CONCEPT AND LIMITATIONS ................................................................................................................................. 224 L. FREE ACCESS TO COURTS AND ADEQUATE LEGAL ASSISTANCE................................................................................ 225 M. RIGHTS UNDER CUSTODIAL INVESTIGATION .....................................................................................................................226 1. MEANING OF CUSTODIAL INVESTIGATION ......................................................................................................226 2.RIGHTS OF A PERSON UNDER CUSTODIAL INVESTIGATION .....................................................................226 3. REQUISITES OF A VALID WAIVER .........................................................................................................................228 4. EXCLUSIONARY DOCTRINE......................................................................................................................................229 N. RIGHTS OF THE ACCUSED ..............................................................................................................................................................230 1. CRIMINAL DUE PROCESS ..........................................................................................................................................230 2. BAIL ....................................................................................................................................................................................230 3. PRESUMPTION OF INNOCENCE .............................................................................................................................233 4. RIGHT TO COUNSEL ....................................................................................................................................................234 5. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION .........................................235 6. RIGHT TO SPEEDY, IMPARTIAL, AND PUBLIC TRIAL ...................................................................................236 7. RIGHT TO CONFRONTATION ..................................................................................................................................236 8. RIGHT TO COMPULSORY PROCESS .......................................................................................................................236 9. TRIAL IN ABSENTIA ....................................................................................................................................................236 O. RIGHT TO SPEEDY TRIAL AND SPEEDY DISPOSITION OF CASES ................................................................................ 237 P. RIGHT AGAINST SELF-INCRIMINATION ..................................................................................................................................240 1. EXTENT OF THE RIGHT .............................................................................................................................................240 2. IMMUNITY STATUTES ................................................................................................................................................241 Q. RIGHT AGAINST DOUBLE JEOPARDY........................................................................................................................................242 1. REQUISITES AND LIMITATIONS ............................................................................................................................243 R. RIGHT AGAINST INVOLUNTARY SERVITUDE .......................................................................................................................246 S. RIGHT AGAINST EXCESSIVE FINES, AND CRUEL AND INHUMAN PUNISHMENTS............................................... 247 T. NON-IMPRISONMENT FOR DEBTS .............................................................................................................................................248 U. EX POST FACTO LAW AND BILL OF ATTAINDER .................................................................................................................248 V. WRITS OF HABEAS CORPUS, KALIKASAN, HABEAS DATA, AND AMPARO .................................................................. 250 VIII. CITIZENSHIP ..................................................................................................................................................................... 258 A. WHO ARE FILIPINO CITIZENS ......................................................................................................................................................258 B. MODES OF ACQUIRING CITIZENSHIP........................................................................................................................................259 C. LOSS AND RE-ACQUISITION OF PHILIPPINE CITIZENSHIP ............................................................................................ 260 D. DUAL CITIZENSHIP AND DUAL ALLEGIANCE .......................................................................................................................262 IX. LAW ON PUBLIC OFFICERS .............................................................................................................................................. 263 A. GENERAL PRINCIPLES .....................................................................................................................................................................263 B. KINDS OF APPOINTMENT .............................................................................................................................................................266 C. DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS ..................................................................................................273 D. POWERS AND DUTIES OF PUBLIC OFFICERS ........................................................................................................................276 E. DE FACTO VS DE JURE OFFICERS ................................................................................................................................................278 F. THE CIVIL SERVICE ............................................................................................................................................................................280 G. ACCOUNTABILITY OF PUBLIC OFFICERS ...............................................................................................................................288 1. DISCPLINE .......................................................................................................................................................................288 a. GROUNDS ...................................................................................................................................................................288 b. JURISDICTION ..........................................................................................................................................................290 c. DISMISSAL. PREVENTIVE SUSPENSION, REINSTATEMENT AND BACK SALARIES ...................293 d. CONDONATION DOCTRINE ............................................................................................................................... 295 2. IMPEACHMENT............................................................................................................................................................. 296 3. THE OMBUDSMAN....................................................................................................................................................... 300 a. FUNCTIONS .............................................................................................................................................................. 300 b. JUDICIAL REVIEW IN ADMINISTRATIVE PROCEEDINGS ..................................................................... 305 c. JUDICIAL REVIEW IN PENAL PROCEEDINGS ............................................................................................. 305 4. THE SANDIGANBAYAN .............................................................................................................................................. 306 X. ADMINISTRATIVE LAW ...................................................................................................................................................... 311 A. GENERAL PRINCIPLES..................................................................................................................................................................... 311 B. POWERS OF ADMINISTRATIVE AGENCIES ............................................................................................................................ 312 1. QUASI-LEGISLATIVE (RULE-MAKING) POWER .............................................................................................. 315 a. KINDS OF ADMINISTRATIVE RULES AND REGULATIONS ................................................................... 317 b. REQUISITES FOR VALIDITY .............................................................................................................................. 318 2. QUASI-JUDICIAL POWER .......................................................................................................................................... 320 a. ADMINISTRATIVE DUE PROCESS ................................................................................................................... 322 b. ADMINISTRATIVE APPEAL AND REVIEW .................................................................................................. 324 c. ADMINISTRATIVE RES JUDICATA ................................................................................................................... 325 3. FACT-FINDING, INVESTIGATIVE, LICENSING, AND RATE-FIXING POWERS ...................................... 325 C. DOCTRINES OF PRIMARY JURISDICTION AND EXHAUSTION OF ADMINISTRATIVE REMEDIES................. 328 XI. ELECTION LAW .................................................................................................................................................................... 336 A. SUFFRAGE ............................................................................................................................................................................................. 336 1. QUALIFICATION AND DISQUALIFICATION OF VOTERS.............................................................................. 337 2. REGISTRATION AND DEACTIVATION ................................................................................................................. 338 3. INCLUSION AND EXCLUSION PROCEEDINGS .................................................................................................. 340 4. LOCAL AND OVERSEAS ABSENTEE VOTING .................................................................................................... 342 5. DETAINEE VOTING...................................................................................................................................................... 342 B. CANDIDACY .......................................................................................................................................................................................... 345 1. QUALIFICATIONS AND DISQUALIFICATIONS OF CANDIDATES .............................................................. 345 2. FILING OF CERTIFICATES OF CANDIDACY ....................................................................................................... 348 a. EFFECT OF FILING................................................................................................................................................. 348 b. SUBSTITUTION AND WITHDRAWAL OF CANDIDATES ........................................................................ 349 c. NUISANCE CANDIDATES .................................................................................................................................... 351 d. DUTIES OF THE COMELEC ................................................................................................................................ 351 C. CAMPAIGN ............................................................................................................................................................................................. 352 1. PREMATURE CAMPAIGNING .................................................................................................................................. 352 2. PROHIBITED CONTRIBUTIONS.............................................................................................................................. 352 3. LAWFUL AND PROHIBITED ELECTION PROPAGANDA ............................................................................... 353 4. LIMITATIONS ON EXPENSES .................................................................................................................................. 354 5. STATEMENT OF CONTRIBUTIONS AND EXPENDITURES .......................................................................... 354 D. REMEDIES AND JURSIDICTION ................................................................................................................................................... 354 1. PETITION NOT TO GIVE DUE COURSE OR CANCEL A CERTIFICATE OF CANDIDACY .................... 354 2. PETITION FOR DISQUALIFICATION..................................................................................................................... 355 3. FAILURE OF ELECTION VS. ANNULMENT OF ELECTION RESULTS ....................................................... 357 4. PRE-PROCLAMATION CONTROVERSY ............................................................................................................... 359 5. ELECTION PROTEST ................................................................................................................................................... 361 6. QUO WARRANTO ......................................................................................................................................................... 364 XII. LOCAL GOVERNMENTS .................................................................................................................................................... 366 A. PRINCIPLES OF LOCAL AUTONOMY ..........................................................................................................................................366 B. AUTONOMOUS REGIONS AND THEIR RELATION TO THE NATIONAL GOVERNMENT ..................................... 368 C. LOCAL GOVERNMENT UNITS ........................................................................................................................................................370 1. POWERS............................................................................................................................................................................372 a. POLICE POWER (GENERAL WELFARE CLAUSE) ......................................................................................372 b. EMINENT DOMAIN ................................................................................................................................................379 c. TAXING POWER ......................................................................................................................................................384 d. CLOSURE AND OPENING OF ROADS ..............................................................................................................389 e. LEGISLATIVE POWER ...........................................................................................................................................390 i. REQUISITES FOR VALID ORDINANCE .......................................................................................................393 ii. LOCAL INITIATIVE AND REFERENDUM..................................................................................................395 f. CORPORATE POWERS .........................................................................................................................................397 g. ULTRA VIRES ACTS................................................................................................................................................397 2. LIABILITY OF LOCAL GOVERNMENT UNITS .....................................................................................................399 3. SETTLEMENT OF BOUNDARY DISPUTES ...........................................................................................................402 4. VACANCIES AND SUCCESSION ................................................................................................................................404 5. RECALL .............................................................................................................................................................................409 6. TERM LIMITS..................................................................................................................................................................411 D. LOCAL TAXATION ..............................................................................................................................................................................413 1. FUNDAMENTAL PRINCIPLES OF LOCAL AND REAL PROPERTY TAXATION ......................................413 2. COMMON LIMITATIONS ON THE TAXING POWERS OF LOCAL GOVERNMENT UNITS ..................415 3. REQUIREMENTS FOR A VALID TAX ORDINANCE ...........................................................................................418 4. PROCEDURE FOR APPROVAL AND EFFECTIVITY OF TAX ORDINANCES ............................................419 5. EXEMPTIONS FROM REAL PROPERTY TAX ......................................................................................................419 XIII. NATIONAL ECONOMY AND PATRIMONY .................................................................................................................. 427 A. REGALIAN DOCTRINE ......................................................................................................................................................................427 B. EXPLORATION, DEVELOPMENT, AND UTILIZATION OF NATURAL RESOURCES ................................................ 429 C. FRANCHISES, AUTHORITY, AND CERTIFICATES FOR PUBLIC UTILITIES ................................................................ 431 D. ACQUISITION, OWNERSHIP AND TRANSFER OF PUBLIC AND PRIVATE LANDS ................................................. 432 E. PRACTICE OF PROFESSIONS .........................................................................................................................................................434 F. ORGANIZATION AND REGULATION OF CORPORATIONS, PRIVATE AND PUBLIC ............................................... 436 G. MONOPOLIES, RESTRAINT OF TRADE, AND UNFAIR COMPETITION ........................................................................ 436 XIV. SOCIAL JUSTICE AND HUMAN RIGHTS ....................................................................................................................... 438 A. CONCEPT OF SOCIAL JUSTICE ......................................................................................................................................................438 B. ECONOMIC, SOCIAL, AND CULTURAL RIGHTS ......................................................................................................................439 C. COMMISSION ON HUMAN RIGHTS .............................................................................................................................................440 XV. AMENDMENTS OR REVISIONS OF THE CONSTITUTION......................................................................................... 444 A. PROCEDURE TO AMEND OR REVISE THE CONSTITUTION............................................................................................. 445 XVI. EDUCATION, SCIENCE, TECHNOLOGY, ARTS, CULTURE AND SPORTS .............................................................. 447 A. ACADEMIC FREEDOM .......................................................................................................................................................................447 B. CONSTITUTIONAL TAX EXEMPTIONS FOR CERTAIN EDUCATIONAL INSTITUTIONS ...................................... 449 XVII. PUBLIC INTERNATIONAL LAW ................................................................................................................................... 451 A. CONCEPTS ............................................................................................................................................................................................. 451 B. RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW ........................................................................ 452 C. SOURCES OF OBLIGATIONS IN INTERNATIONAL LAW.................................................................................................... 455 D. SUBJECTS ............................................................................................................................................................................................... 459 1. STATES ............................................................................................................................................................................. 461 2. INTERNATIONAL ORGANIZATIONS (IOs) ......................................................................................................... 469 3. INDIVIDUALS ................................................................................................................................................................. 470 E. REQUISITES OF STATEHOOD ....................................................................................................................................................... 471 F. JURISDICTION OF STATES .............................................................................................................................................................. 471 1. BASIS OF JURISDICTION .......................................................................................................................................... 472 a. TERRITORIALITY PRINCIPLE ........................................................................................................................... 472 b. NATIONALITY PRINCIPLE AND STATELESSNESS................................................................................... 473 c. PROTECTIVE PRINCIPLE .................................................................................................................................... 473 d. UNIVERSALITY PRINCIPLE ............................................................................................................................... 474 e. PASSIVE PERSONALITY PRINCIPLE .............................................................................................................. 474 2. EXEMPTIONS FROM JURISDICTION ..................................................................................................................... 474 a. STATE IMMUNITY FROM SUIT........................................................................................................................ 474 b. ACT OF STATE DOCTRINE ................................................................................................................................. 475 c. DIPLOMATIC IMMUNITY .................................................................................................................................... 475 d. INTERNATIONAL ORGANIZATIONS AND ITS OFFICERS ...................................................................... 481 F. GENERAL PRINCIPLES OF TREATY LAW ................................................................................................................................ 482 G. DOCTRINE OF STATE RESPONSIBILITY .................................................................................................................................. 491 H. REFUGEES ............................................................................................................................................................................................. 494 I. EXTRADITION ...................................................................................................................................................................................... 495 J. BASIC PRINCIPLES OF INTERNATIONAL HUMAN RIGHTS LAW .................................................................................. 498 K. BASIC PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW ................................................................................ 502 L. LAW OF THE SEA ................................................................................................................................................................................ 510 1. BASELINES ...................................................................................................................................................................... 510 2. ARCHIPELAGIC STATES ............................................................................................................................................ 510 3. INTERNAL WATERS.................................................................................................................................................... 513 4. TERRITORIAL SEA ....................................................................................................................................................... 514 5. CONTIGUOUS ZONE .................................................................................................................................................... 517 6. EXCLUSIVE ECONOMIC ZONE ................................................................................................................................. 518 7. CONTINENTAL SHELF AND EXTENDED CONTINENTAL SHELF ............................................................. 520 8. INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA ......................................................................... 525 M. BASIC PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW ........................................................................... 529 1. PRECAUTIONARY PRINCIPLE................................................................................................................................. 530 This page is intentionally left blank. Basic Concepts under the 1987 Constitution NOTE: The Philippines does not renounce defensive war because its duty is to defend its citizens. Under the Constitution, the prime duty of the government is to serve and protect the people. (Secs. 2 and 4, Art. II, 1987 Constitution) I. BASIC CONCEPTS UNDER THE 1987 CONSTITUTION Voting requirements to declare the existence of a state of war A. DECLARATION OF PRINCIPLES AND STATE POLICIES 1. 2. 3. Republican State (1996 BAR) The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. (Sec. 1, Art. II, 1987 Constitution) Independent Foreign Policy and a nuclear-free Philippines The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination. (Sec. 7, Art. II, 1987 Constitution) A state wherein all government authority emanates from the people and is exercised by representatives chosen by the people. (Dissenting Opinion of Justice Puno, Tolentino v. COMELEC, G.R. No. 148334, 21 Jan. 2004) The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory. (Sec. 8, Art. II, 1987 Constitution) Manifestations of Republicanism (La-R-A-Bi-L S) 1. 2. 3. 4. 5. 6. 2/3 vote of both Houses In joint session Voting separately (Sec. 23 (1), Art. VI, 1987 Constitution) Ours is a government of Laws and not of men. Rule of Majority (Plurality in elections) Accountability of public officials Bill of Rights Legislature cannot pass irrepealable laws Separation of powers NOTE: This pertains to use of nuclear weapons and not nuclear source of energy. All existing treaties or international agreements which have not been ratified shall not be renewed or extended without the concurrence of at least twothirds of all the Members of the Senate. (Sec. 4, Art. XVIII, 1987 Constitution) Compatibility of Constitutional Authoritarianism with a Republican State Constitutional authoritarianism is compatible with a republican state if the Constitution upon which the executive bases his assumption of power is a legitimate expression of the people’s will and if the executive who assumes power received his office through a valid election by the people. (Bernas, 2009) After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning military bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. (Sec. 25, Art. XVIII, 1987 Constitution) State Policy on War The State renounces war as an instrument of national policy. (Sec. 2, Art. II, 1987 Constitution) 1 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law basic and applied scientific research. (Sec. 11, Art. XIV, 1987 Constitution) Policies of the State on the following: 1. The symbols of statehood – Flag of the Philippines. (Sec. 1, Art. XVI, 1987 Constitution) Encouragement of widest participation of private groups, local governments, and organizations in the generation and utilization of science and technology. (Sec. 12, Art. XIV, 1987 Constitution) Name of the country, National Anthem, and National Seal. (Sec. 2, Art. XVI, 1987 Constitution) 2. 3. 4. 5. 6. Constitutional provision on transparency in matters of public concern (2000 BAR) Cultural minorities – Recognition and Promotion of Rights of Indigenous Cultural Communities. (Sec. 22, Art. II, 1987 Constitution) (1994, 1996 BAR) The 1987 Constitution provides for a policy of transparency in matters of public interest: (D-I-R-SALN-A) Protection of Ancestral Lands of Indigenous Communities. (Sec. 5, Art. XII, 1987 Constitution) Application of Principles of Agrarian Reform and Stewardship to Indigenous Communities and Landless Farmers. (Sec. 6, Art. XIII, 1987 Constitution) Preservation and Development of the Culture, Traditions, and Institutions of Indigenous Communities. (Sec. 17, Art. XIV, 1987 Constitution) Science and technology – Priority to Education, Science and Technology, Arts, Culture, and Sports. (Sec. 17, Art. II, 1987 Constitution) (1992, 1994 Bar) 1. Policy of full public Disclosure of government transactions. (Sec. 28, Art. II, 1987 Constitution) 2. Right to Information on matters of public concern. (Sec. 7, Art. III, 1987 Constitution) 3. Access to the Records and books of account of the Congress. (Sec. 20, Art. VI, 1987 Constitution) 4. Submission of Statement of Assets, Liabilities, and Net worth (SALN). (Sec. 17, Art. XI, 1987 Constitution) 5. Access to information on foreign loans obtained or guaranteed by the government. (Sec. 21, Art. XII, 1987 Constitution) Development of national talents consisting of Filipino scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled workers and craftsmen. (Sec. 14, Art. XII, 1987 Constitution) NOTE: These provisions on public disclosures are intended to enhance the role of the citizenry in governmental decision-making as well as in checking abuse in government. (Valmonte v. Belmonte, G.R. No. 74930, 13 Feb. 1989) Mandate on educational institutions. (Sec. 3, Art. XIV, 1987 Constitution) Right of Parents to Rear their Children Priority to research and development, invention, innovation of science and technology. (Sec. 10, Art. XIV, 1987 Constitution) The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. (Sec. 12, Art. II, 1987 Constitution) Incentives, tax deductions, and scholarships to encourage private participation in programs of Q: Three cities in Metro Manila passed ordinances that impose curfew on minors in UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 2 Basic Concepts under the 1987 Constitution Doctrine of Incorporation vs. Doctrine of Transformation their respective jurisdictions. Petitioners argue that the Curfew Ordinances are unconstitutional because they deprive parents of their natural and primary right in rearing the youth without substantive due process. Is the petitioners’ contention proper? DOCTRINE OF DOCTRINE OF INCORPORATION TRANSFORMATION As to Definition Generally accepted principles of International Law form part of the law of the land; no legislative action is required to make them applicable in a country. A: NO. While parents have the primary role in childrearing, it should be stressed that when actions concerning the child have a relation to the public welfare or the well-being of the child. It should be emphasized that the Curfew Ordinances apply only when the minors are not— whether actually or constructively— accompanied by their parents. This serves as an explicit recognition of the State's deference to the primary nature of parental authority and the importance of parents' role in child-rearing. Parents are effectively given unfettered authority over their children's conduct during curfew hours when they are able to supervise them. Thus, in all actuality, the only aspect of parenting that the Curfew Ordinances affects is the parents' prerogative to allow minors to remain in public places without parental accompaniment during the curfew hours. (SPARK, Et. al. vs. Quezon City, G.R. No. 225442, 08 Aug. 2017) Rules of international law are not per se binding upon the State but must first be embodied in legislation enacted by the lawmaking body and so transformed into municipal law. Constitutional provisions which ensure civilian supremacy Incorporation Clause The Philippines adopts the generally accepted principles of international law as part of the law of the land. (Sec. 2, Art. II, 1987 Constitution) (See discussion under Public International Law) 1. By the installation of the President, the highest civilian authority, as the commander-in-chief of all the armed forces of the Philippines. (Sec. 18, Art. VII, 1987 Constitution) 2. Through the requirement that members of the AFP swear to uphold and defend the Constitution, which is the fundamental law of a civil government. (Sec. 5(1), Art. XVI, 1987 Constitution) NOTE: By civilian supremacy, it is meant that civilian authority is, at all times, supreme over the military. (2003, 2006, 2009 BAR) Mandatory rendition of military services to defend the State One cannot avoid compulsory military service by invoking one’s religious convictions or by saying that he has a sick father and several brothers and sisters to support. Accordingly, the duty of government to defend the State cannot be performed except through an army. To leave the organization of an army to the will of the citizens would be to make this duty to the Government excusable should there be no sufficient men who volunteer to enlist therein. The right of the Government to require compulsory military service 3 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. (Sec. 28 (3), Art. VI, 1987 Constitution) is a consequence of its duty to defend the State and is reciprocal with its duty to defend the life, liberty, and property of the citizen. (People v. De Sosa, G.R. No. L-45892-93, 13 July 1938) 2. No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, 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. (Sec. 29(2), Art. VI, 1987 Constitution) (1992, 1997 BAR) 3. 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. (Sec. 3 (3), Art. XIV, 1987 Constitution) 4. 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.” (Sec. 4(2), Art. XIV, 1987 Constitution) Separation of Church and State Provisions of the Constitution that support the Principle of Separation of Church and State: 1. 2. 3. 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. (Sec. 5, Art. III, 1987 Constitution) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sections as may be provided by law, except the religious sector. (Sec. 5(2), Art. VI, 1987 Constitution) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their platform or program of government; and accredit citizens' arms of the Commission on Elections. Religious denominations and sects shall not be registered. (Sec. 2(5), Art. IX-CI, 1987 Constitution) Theories on the Separation of Church and State 1. Separation Standard - May take the form of either (a) strict separation, or (b) the tamer version of strict neutrality, or what Justice Carpio refers to as the second theory of governmental neutrality. 2. Benevolent Neutrality Approach (2016 BAR) – The “wall of separation” is meant to protect the church from the State. It believes that with respect to governmental actions, XPNs to the principle are the following provisions of the Constitution: 1. Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 4 Basic Concepts under the 1987 Constitution accommodation of religion may be allowed, not to promote the government’s favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. (Estrada v. Escritor, A.M. No. P-02-1651, 22 June 2006) Kinds of accommodation that result from free exercise claim NOTE: In the Philippine context, the Court categorically ruled that, “the Filipino people, in adopting the Constitution, manifested their adherence to the benevolent neutrality approach that requires accommodations in interpreting the religion clauses.” (Estrada v. Escritor, A.M. No. P-021651, 22 June 2006) 1. Mandatory – Those which are found to be constitutionally compelled, i.e. required by the Free Exercise Clause; 2. Permissive – Those which are discretionary or legislative, i.e. not required by the Free Exercise Clause; and Prohibited – Those which are prohibited by the religion clauses. 3. NOTE: Based on the foregoing, and after holding that the Philippine Constitution upholds the Benevolent Neutrality Doctrine which allows for accommodation, the Court laid down the rule that in dealing with cases involving purely conduct based on religious belief, it shall adopt the StrictCompelling State interest test because it is most in line with the benevolent neutralityaccommodation. (Estrada v Escritor, A.M. P-02-1651, 22 June 2006) Conscientious Objector Approach Everyone has the right to freedom of thought, conscience, and religion. This right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance. (Art.18, Universal Declaration of Human Rights) What the law prohibits is the use of public money or property for the sole purpose of benefiting or supporting any church. The prohibition contemplates a scenario where the appropriation is primarily intended for the furtherance of a particular church. It does not inhibit the use of public property for religious purposes when the religious character of such use is merely incidental to a temporary use which is available indiscriminately to the public in general. (Re: Letter of Tony Q. Valenciano, Holding of Religious Rituals at the Hall of Justice Building in Quezon City, A.M. No. 10-4-19-SC, 7 Mar. 2017) 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 religious freedom of health providers, whether public or private, should be accorded primacy. A conscientious objector should be exempt from compliance with the mandates of the RH Law. If they would be compelled to act contrary to their 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, 08 Apr. 2014) B. NATIONAL TERRITORY Composition of the Philippine Territory The national territory comprises: 1. The Philippine archipelago, with all the islands and waters embraced therein; and 2. 5 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law 3. All other territories over which the Philippines has sovereignty or jurisdiction, consisting of: a. b. The second sentence of Article I of the 1987 Constitution provides, “The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines”, is an affirmation of the archipelagic doctrine. (Cruz, 2014) Its terrestrial, fluvial and aerial domains Including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. NOTE: The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (Art. I, 1987 Constitution) Q: A bill was introduced in the House of Representatives in order to faithfully implement the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) to which the Philippines is a signatory. Congressman Pat Rio Tek questioned the constitutionality of the bill on the ground that the provisions of UNCLOS are violative of the provisions of the Constitution defining the Philippine internal waters and territorial sea. Do you agree or not with the said objection? Explain. (2015 BAR) Q: William, a private American citizen and frequent visitor to the Philippines, was inside the U.S. Embassy when he got into a heated argument with a private Filipino citizen. Then, in front of many shocked witnesses, he killed the person he was arguing with. The police came and brought him to the nearest police station. Upon reaching the station, the police investigator, in halting English, informed William of his Miranda rights, and assigned him an independent local counsel. William protested his arrest. He argued that since the incident took place inside the U.S. Embassy, Philippine courts have no jurisdiction because the U.S. embassy grounds are not part of Philippine territory; thus, technically, no crime under Philippine law was committed. Is William correct? (2009 BAR) A: NO. UNCLOS III has nothing to do with the acquisition or loss of territory. It is a multilateral treaty regulating, among others, sea-use rights over maritime zones, exclusive economic zone, and continental shelves that UNCLOS III delimits. UNCLOS does not define the internal and territorial waters of states but merely “prescribes the waterland ratio, length, and contour of baselines of archipelagic States like the Philippines”. Whether referred to as Philippine internal waters or as archipelagic waters under UNCLOS, the Philippines exercises sovereignty over the body of water lying landward of the baselines, including the air space over it and the submarine areas underneath. (Magallona v. Ermita, G.R. No. 187167, 16 Aug. 2011) A: NO. William is not correct. The premises occupied by the United States Embassy do not constitute territory of the United States but of the Philippines. Crimes committed within them are subject to the territorial jurisdiction of the Philippines. Since William has no diplomatic immunity, the Philippines can prosecute him if it acquires custody over him. (UPLC Suggested Answers) Archipelagic Doctrine The term “archipelagic doctrine of national territory” means that the islands and waters of the Philippine Archipelago are unified in sovereignty, together with “all the territories over which the Philippines has sovereignty or jurisdiction.” UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 6 Basic Concepts under the 1987 Constitution Maritime Zones under UNCLOS (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: i. the establishment and use of artificial islands, installations and structures; ii. marine scientific research; iii. the protection and preservation of the marine environment; Q: What are the rights of the Philippines within the following areas: (a) Contiguous zone; and (b) Exclusive economic zone? (2019 BAR) AREA RIGHTS OF THE PHILIPPINES As to Territorial Sea It is included in the national territory of the Philippines. 12 nautical miles from The Philippines may exercise its baseline sovereignty within its territorial sea. As to Contiguous zone (2019 BAR) (c) other rights and duties provided for in this Convention. (Art. 56 of UNCLOS) As to the Extended Continental Shelf The coastal State exercises control over the continental Up to 350 shelf sovereign rights for the nautical miles purpose of exploring it and from baseline exploiting its natural resources (Art. 77 (1), UNCLOS) As to High Seas Not included in the exclusive economic No State may validly purport to zone, the subject any part of the high seas territorial sea to its sovereignty. (Art. 89 of or in the UNCLOS) internal waters of a The high seas are open to all State, or in States, whether coastal or landlocked. (Art. 87 of UNCLOS) the archipelagic waters of an archipelagic State. The coastal State may exercise the control necessary to: Up to 24 nautical miles from the outer edge of territorial sea a. prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; b. punish infringement of the above laws and regulations committed within its territory or territorial sea. (Art. 33 of UNCLOS) As to Exclusive Economic Zone (2019 BAR) The coastal State has: Up to 200 nautical miles from baseline (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non- living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; NOTE: See extensive discussion under Law of the Sea, Public International Law – page 511. 7 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law the law encroaches on the exclusive constitutional power of the Supreme Court. (Estipona v. Lobrigo, G.R. No. 226679, 15 Aug. 2017) C. SEPARATION OF POWERS Exceptions of plea bargaining in drug cases Doctrine of Separation of Powers 1. Legislation belongs to the Congress, implementation to the executive, and settlement of legal controversies and adjudication of rights to the judiciary. Each department has exclusive cognizance of and is supreme in matters falling within its own constitutionally allocated sphere. Each is therefore prevented from invading the domain of the others. 2. Q: A group of losing litigants, in a case decided by the SC, filed a complaint before the Ombudsman charging the Justices with knowingly and deliberately rendering an unjust decision in utter violation of the penal laws of the land. Can the Ombudsman validly take cognizance of the case? Purposes of Separation of Powers 1. 2. 3. 4. Secure action; Forestall over-action; Prevent despotism; and Obtain efficiency. (Nachura, 2014) A: NO. Pursuant to the principle of separation of powers, the correctness of the decisions of the SC as final arbiter of all justifiable disputes is conclusive upon all other departments of the government; the Ombudsman has no power to review the decisions of the SC by entertaining a complaint against the Justices of the SC for knowingly rendering an unjust decision. (In re: Laureta, G.R. No. L-68635, 14 May 1987) Powers vested in the three branches of government EXECUTIVE LEGISLATIVE JUDICIARY Application/ Implementation Making of laws Interpretation of laws of laws (Power of the (Power of the purse) (Power of sword) judicial review) Q: May the RTC or any court prohibit a committee of the Senate like the Blue Ribbon Committee from requiring a person to appear before it when it is conducting investigation in aid of legislation? Plea bargaining in drug cases Plea bargaining operates as a means to implement an existing right by 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. (Estipona v. Lobrigo, G.R. No. 226679, 15 Aug. 2017) A: NO. The RTC or any court may not do so because that would be violative of the principle of separation of powers. The principle essentially means that legislation belongs to Congress, execution to the Executive and settlement of legal controversies to the Judiciary. Each is prevented from invading the domain of the others. (Senate Blue Ribbon Committee v. Majaducon, G.R. No. 136760, 29 July 2003) The power to promulgate rules of pleading, practice and procedure is exclusive domain of the Judicial department and no longer shared with the Executive and Legislative departments. The adoption of the plea-bargaining framework in Drug Cases under Section 23 of R.A. No. 9165, or the Comprehensive Dangerous Drugs Act of 2002 is unconstitutional for the inclusion of the provision in UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Imposable penalty is life imprisonment or life imprisonment to death. Sale, Trading, etc. of Dangerous Drugs involving other kinds of dangerous drugs, except shabu and marijuana. (Sec. 5, R.A. No. 9165, or the Comprehensive Dangerous Drugs Act of 2002) Q: Pres. Benigno Aquino III signed E.O. No. 1 establishing the Philippine Truth Commission, a 8 Basic Concepts under the 1987 Constitution held that the Supreme Court could not interfere with the suspension of a Congressman for disorderly behaviour, because the House of Representatives is the judge of what constitutes disorderly behaviour. The assault of a fellow Senator constitutes disorderly behaviour. However, under Sec. 1, Art. VIII of the 1987 Constitution, the Supreme Court may inquire whether or not the decision to expel Amog is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction. special body to investigate reported cases of graft and corruption allegedly committed during the Arroyo administration. Is E.O. No. 1 constitutional? A: NO. The President has no power to create a public office. It is not shared by Congress with the President, until and unless Congress enacts legislation that delegates a part of the power to the President, or any other officer or agency. It is a settled rule that the President’s power of control can only mean the power of an officer to alter, modify, or set aside what a subordinate officer had done in the performance of his duties, and to substitute the judgment of the former for that of the latter. As such, the creation by the President of a public office like the Truth Commission, without either a provision of the Constitution or a proper law enacted by Congress authorizing such creation, is not an act that the power of control includes. (Biraogo v. The Philippine Truth Commission, G.R. No. 192935, 07 Dec. 2010, Bersamin, J. separate opinion) Q: Joey Tribbiani was convicted of Estafa. When his case reached the Supreme Court, some Justices proposed to alter the penalties provided for under RPC on the basis of the ratio of P1.00 to P100.00, believing that it is not fair to apply the range of penalties, which was based on the value of money in 1932, to crimes committed at present. However, other justices opposed the said proposal for it amounts to judicial legislation. Is the opposition correct? A: YES. The opposition is correct because the Court cannot modify the said range of penalties because that would constitute judicial legislation. What the legislature's perceived failure in amending the penalties provided for in the said crimes cannot be remedied through this Court's decisions, as that would be encroaching upon the power of another branch of the government. Q: Amog was elected Congressman. Before the end of her first year in office, she inflicted physical injuries on a colleague, Camille Gonzales, in the course of a heated debate. Charges were filed in court against her as well as in the House Ethics Committee. Later, the HoR, dividing along party lines, voted to expel her. Claiming that her expulsion was railroaded and tainted by bribery, she filed a petition seeking a declaration by the SC that the House gravely abused its discretion and violated the Constitution. She prayed that her expulsion be annulled and that she should be restored by the Speaker to her position as Congressman. Is Amog’s petition before the Supreme Court justiciable? Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not usurp legislative powers by judicial legislation and that in the course of such application or construction, it should not make or supervise legislation, or under the guise of interpretation, modify, revise, amend, distort, remodel, or rewrite the law, or give the law a construction which is repugnant to its terms. Succinctly put, the Court should shy away from encroaching upon the primary function of a coequal branch of the Government; otherwise, this would lead to an inexcusable breach of the doctrine of separation of powers by means of judicial legislation. (Corpuz v. People, G.R. No. 180016, 29 Apr. 2014) A: NO. The petition is not justiciable because as stated by the Supreme Court in the case of Alejandrino v. Quezon, et al. (G.R. No. 22041, 11 Sept. 1924), it could not compel the Senate to reinstate a Senator who assaulted another Senator and was suspended for disorderly behaviour, because it could not compel a separate and co-equal department to take any particular action. In Osmeña v. Pendatun (G.R. No. L-17144, 28 Oct. 1960), it was 9 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law Executive check on the other two branches Principle of Blending of Powers Refers to an instance when powers are not confined exclusively within one department but are assigned to or shared by several departments. EXECUTIVE CHECK Legislative Judiciary Through its power of pardon, it may set aside the judgment of the judiciary. Examples of the Blending of Powers 1. Power of appointment which can be exercised by each department and be rightfully exercised by each department over its own administrative personnel; 2. General Appropriations Law – President prepares the budget which serves as the basis of the bill adopted by Congress; 3. 4. Through its veto power Legislative check on the other two branches LEGISLATIVE CHECK Executive Amnesty granted by the President requires the concurrence of the majority of all the members of the Congress; and Power of the COMELEC to deputize lawenforcement agencies and instrumentalities of the government for the purpose of ensuring free, orderly, honest, peaceful and credible elections in accordance with the power granted to it by the Constitution to enforce and administer all laws and regulations relative the conduct of elections. (Sec. 2(1), Art. IX-C, 1987 Constitution; Concurring and Dissenting Opinion of Justice Puno, Macalintal v. COMELEC, G.R. No. 157013, 10 July 2003) Principle of Checks and Balances Allows one department to resist encroachments upon its prerogatives or to rectify mistakes or excesses committed by the other departments. (Cruz, 2014) Override veto of President 2. Reject certain appointments made by the president 3. Revoke the proclamation of martial law or suspension of the privilege of the writ of habeas corpus 1. Revoke or amend the decisions by either: a. Enacting a new law. b. Amending the old law, giving it certain definition and interpretation different from the old 2. Impeachment of SC members 3. Define, prescribe, apportion jurisdiction of lower courts: the the 4. Impeachment 5. Determine the salaries of the president or vice president 6. 10 Judiciary 1. D. CHECKS AND BALANCES UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Also, by power of appointment – power to appoint members of the Judiciary. Concur to or reject treaties the president may enter into a. b. c. Prescribe the qualifications of lower court judges; Impeachment Determination of salaries of judges. Basic Concepts under the 1987 Constitution Judicial check on the other two branches appropriations bill, it has flouted the prescribed procedure of presentment. It may declare (through the SC as the final arbiter) the acts of both the legislature and executive as unconstitutional or invalid so long as there is grave abuse of discretion amounting to lack or excess of jurisdiction. Test to determine whether a given power has been validly exercised by a particular department: 4. Impaired public accountability - insofar as it has diluted the effectiveness of congressional oversight by giving legislators a stake in the affairs of budget execution, an aspect of governance which they may be called to monitor and scrutinize. 5. Subverted genuine local autonomy - insofar as it has authorized legislators, who are national officers, to intervene in affairs of purely local nature, despite the existence of capable local institutions. 6. Transgressed the principle of nondelegability - insofar as it has conferred to the President the power to appropriate funds intended by law for energy-related purposes only to other purposes he may deem fit as well as other public funds under the broad classification of "priority infrastructure development projects." (Belgica v. Ochoa, G.R. No. 208566, 19 Nov. 2013) GR: Whether the power has been constitutionally conferred upon the department claiming its exercise. XPN: Doctrine of Necessary Implication (2010 BAR) Exercise of the power may be justified in the absence of an express conferment because the grant of express power carried with it all other powers that may be reasonably inferred from it. (Cruz, 2014) Q: An appropriations law granting the legislators lump-sum funds in which they have full discretion on what project it would fund and how much the project would cost, was passed. Is such law unconstitutional? E. STATE IMMUNITY A: YES. 1. It violated the principle of separation of powers - Insofar as it has allowed legislators to wield, in varying gradations, non-oversight, post-enactment authority in vital areas of budget execution. 2. 3. Doctrine of State Immunity The State may not be sued without its consent. (Sec. 3, Art. XVI, 1987 Constitution) GR: All states are sovereign equals and cannot assert jurisdiction over one another, consonant with the public international law principle of par in parem non habet imperium. A contrary disposition would "unduly vex the peace of nations." (Arigo v. Swift, G.R. No. 206510, 16 Sept. 2014) It violated the principle of non-delegability of legislative power - insofar as it has conferred unto legislators the power of appropriation by giving them personal, discretionary funds from which they are able to fund specific projects which they themselves determine. The head of State, who is deemed the personification of the State, is inviolable, and thus, enjoys immunity from suit. (JUSMAG Philippines v. NLRC, G.R. No. 108813, 15 Dec. 1994) Denied the President’s power to veto items insofar as it has created a system of budgeting wherein items are not textualized into the 11 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law Warships and other public vessels of another state operated for non-commercial purposes Likewise, public officials may not be sued for acts done in the performance of their official functions or within the scope of their authority. (DOH v. Phil. Pharmawealth, Inc., G.R. No. 182358, 20 Feb. 2013) Immune from jurisdiction because they are the “floating territory” of the flag State. NOTE: The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, the suit may be regarded as against the state itself although it has not been formally impleaded. (Garcia v. Chief of Staff, G.R. No. L-20213, 31 Jan. 1966) GR: Crew members are immune from local jurisdiction when on shore duty. XPN: When they violate local laws while on furlough or off duty. (Nachura, 2014) XPN: A State may be sued if it gives consent, whether express or implied. Forms of Consent 1. Express consent Q: The USS Guardian of the US Navy ran aground on an area near the Tubbataha Reefs, a marine habitat of which entry and certain human activities are prevented and afforded protection by Philippine laws and UNCLOS. Bishop Arigo of Palawan filed a petition for the issuance of Writ of Kalikasan and impleaded US officials in their capacity as commanding officers of the US Navy. He argues that there is a waiver of immunity from suit found in the Visiting Forces Agreement (VFA) between the US and the Philippines, and invoke federal statutes in the US under which agencies of the US have statutorily waived their immunity to any action. Is he correct? a. General law i. Act No. 3083 and CA 327 as amended by Secs. 49-50, PD 1445 – Money claims arising from contracts which could serve as a basis of civil action between private parties to be first filed with COA before a suit may be filed in court. The COA must act upon the claim within 60 days. Rejection of the claim authorizes the claimant to elevate the matter to the Supreme Court on certiorari. ii. Art. 2180, NCC – Tort committed by special agent; A: NO. The VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines to promote “common security interests” between the aforementioned countries. The invocation of US federal tort laws and even common law is thus improper considering that it is the VFA which governs disputes involving US military ships and crew navigating Philippine waters in pursuance of the objectives of the agreement. However, the waiver of State immunity under the VFA pertains only to criminal jurisdiction and applicable only to US personnel under VFA and not to special civil actions such as the present petition for issuance of a Writ of Kalikasan. The principle of State immunity therefore bars the exercise of jurisdiction by this Court over the persons of the US Officials. (Arigo v. Swift, G.R. No. 206510, 16 Sept. 2014) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES iii. Art. 2189, NCC – LGUs liable for injuries or death caused by defective condition of roads or public works under their control (City of Manila v. Teotico, et al., G.R. No. L-23052, 29 Jan. 1968); iv. Sec. 22(2), RA 7160, LGC of 1991 – LGUs have power to sue and be sued; and v. Sec. 24 of LGC – LGUs and their officials are not exempt from liability for death or injury or damage to property. NOTE: The express consent of the State to be sued must be embodied in a duly enacted statute and may not be given by a mere counsel of the government. (Republic v. Purisima, G.R. No. L-36084, 31 Aug. 1977) 12 Basic Concepts under the 1987 Constitution 2. Implied consent Q: Kilusang Magbubukid ng Pilipinas (KMP) members clashed with the anti-riot squad which resulted to 13 deaths and several casualties. Thereafter, President Corazon C. Aquino issued A.O. No. 11 creating the Citizens’ Mendiola Commission to conduct the investigation about the incident. The commission recommended compensating the victims. The petitioners (Caylao group) together with the military personnel involved in the Mendiola incident instituted an action against the Republic of the Philippines before the trial court. Respondent Judge Sandoval dismissed the complaint on the ground of state immunity from suit. Petitioners argued that the State has impliedly waived its immunity from suit with the recommendation of the Commission to indemnify the heirs and victims of the Mendiola incident by the government and by the public addresses made by then President Aquino in the aftermath of the killings. Is the argument meritorious? a. When the State commences litigation, it becomes vulnerable to counterclaim. (Froilan v. Pan Oriental Shipping, G.R. No. L-6060, 30 Sept. 1954) Q: In a property dispute, the Attorney General of the United States and the defendant-intervenor Republic of the Philippines each filed an answer alleging by way of affirmative defense that the lower court had no jurisdiction over the claim since the action in that regard constituted a suit against the United Sates to which it had not given its consent. Did the Republic of the Philippines by its intervention waive its right of immunity from suit? A: NO. The Republic of the Philippines did not waive its immunity from suit. It intervened in the case merely to unite with the defendant Attorney General of the United States in resisting plaintiff’s claims, and for that reason asked no affirmative relief. This is not a case where the state takes the initiative against a private party by filing a complaint in intervention, thereby surrendering its privileged position and coming down to the level of the defendant, but one where the state, as one of the defendants, merely resisted a claim against it precisely on the ground among others, of its privileged position, which exempts it from suit. (Lim v. Brownell, G.R. No. L-8587, 24 Mar. 1960) A: NO. The actions of President Aquino cannot be deemed as a waiver of State immunity. Whatever acts or utterances that then President Aquino may have done or said, the same are not tantamount to the State having waived its immunity from suit. The President's act of joining the marchers, days after the incident, does not mean that there was an admission by the State of any liability. Moreover, petitioners rely on President Aquino's speech promising that the government would address the grievances of the rallyists. By this alone, it cannot be inferred that the State has admitted any liability, much less can it be inferred that it has consented to the suit. (Republic v. Sandoval, G.R. No. 84607, 19 Mar. 1993) b. b. When State enters into a business contract. (Municipality of San Fernando v. Firme, G.R. No. L-52179, 08 Apr. 1991) Capacities of the State in entering into contracts Special law i. By virtue of PD 1620, the grant of immunity to IRRI is clear and unequivocal, and an express waiver by its Director General is the only way by which it may relinquish or abandon this immunity. (Callado, v. IRRI, G.R. No. 106483, 22 May 1995) 1. In jure gestionis – By right of economic or business relations; commercial, or proprietary acts. MAY BE SUED. (US v. Guinto, G.R. No. 76607, 26 Feb. 1990) NOTE: The State may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. Consequently, the 13 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law 2. restrictive application of State immunity is proper only in such case. (Restrictive Theory of State Immunity from suit) by P.D. No. 741, has made the same a government instrumentality, and thus immune from suit. Is the dismissal proper? In jure imperii – By right of sovereign power and in the exercise of sovereign functions. No implied consent. (US v. Ruiz, G.R. No. L-35645, 22 May 1985) A: NO. The PNR is not immune from suit. It did not remove itself from the operation of Arts. 1732 to 1766 of the Civil Code on common carriers. Not all government entities, whether corporate or noncorporate, are immune from suits. Immunity from suit is determined by the character of the objects for which the entity is organized. When the government enters into a commercial business, it abandons its sovereign capacity and is to be treated like any other corporation. In this case, the State divested itself of its sovereign capacity when it organized the PNR which is no different from its predecessors, the Manila Railroad Company. (Spouses Malong v. PNRC, G.R. No. L-49930, 07 Aug. 1985) NOTE: In exercising the power of eminent domain, the State exercises a power jure imperii. Yet, it has been held that where property has been taken without the payment of just compensation, the defense of immunity from suit cannot be set up in an action for payment by the owner. (Republic v. Sandiganbayan, G.R. No. 90478, 21 Nov. 1991) Q: Do all contracts entered into by the government operate as a waiver of its nonsuability? Unincorporated government agency performing governmental function vs. one performing proprietary functions A: NO. Distinction must still be made between one which is executed in the exercise of its sovereign function and another which is done in its proprietary capacity. A State may be said to have descended to the level of an individual and can be deemed to have actually given its consent to be sued only when it enters into business contracts. It does not apply where the contract relates to the exercise of its sovereign functions. (Department of Agriculture v. NLRC G.R. No. 104269, 11 Nov. 1993) UNINCORPORATED UNINCORPORATED GOVERNMENT GOVERNMENT AGENCY AGENCY PERFORMING PERFORMING GOVERNMENTAL PROPRIETARY FUNCTIONS FUNCTIONS As to Definition Immunity has not been upheld in its favor (Air Immunity has been Transportation Office v. upheld in its favor. Sps. David, G.R. No. 159402, 23 Feb. 2011) When suit is considered as suit against the State 1. 2. 3. The Republic is sued by name; The suit is against an unincorporated government agency performing propriety functions; and The suit is on its face against a government officer but the case is such that ultimate liability will belong to the government. (Republic v. Sandoval, G.R. No. 84607, 19 Mar. 1993) Q: E.A. Ramirez filed before the RTC a Complaint for Breach of Contract with Damages against PTRI and a number of its employees. E.A. Ramirez alleged that PTRI acted in bad faith in terminating their Contract of Work. PTRI et al. filed a Motion to Dismiss, invoking the privilege of state immunity from suit. They asserted that PTRI is an agency of the Department of Science and Technology (DOST) and thus cannot be sued without the consent of the State. PTRI alleged that the immunity extended to the impleaded employees of PTRI since they were sued while Q: Spouses Sison sued the Philippine National Railways for damages for the death of their son who fell from an overloaded train belonging to the PNR. The trial court dismissed the suit on the ground that the charter of the PNR, as amended UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 14 Basic Concepts under the 1987 Constitution manifested unequivocally its consent to be subjected to suit with respect to disputes arising from the subject contract. (Philippine Textile Research Institute, et al. v. Court of Appeals and E.A. Ramirez Construction, Inc. G.R. No. 223319, 09 Oct. 2019, J. Caguioa) they were performing official or governmental functions. Is PTRI et al., correct? A: NO. It is not disputed that PTRI is an unincorporated national government agency. Hence, being an unincorporated government agency that exercises a governmental function, the PTRI enjoys immunity from suit. Further, its employees acting in their official capacity likewise enjoy this immunity from suit, as public officials may not be sued for acts done in the performance of their official functions or within the scope of their authority. However, the rule on State immunity from suit is not absolute. The State may be sued with its consent, which may be given either expressly or impliedly. Suability vs. Liability vs. Execution SUABILITY LIABILITY EXECUTION As to Basis Depends on Depends on Depends on the applicable the the consent of law and the appropriation the State to be of funds by the established sued Congress facts As a Consequence of Another The circumA judgment stance that a The State can against the State is suable never be held State cannot does not liable if it is be necessarily automatically not suable. mean that it is executed. liable. Express consent may be made through a general law or a special law. As held in Department of Agriculture v. National Labor Relations Commission, "the general law waiving the immunity of the state from suit is found in Act No. 3083, where the Philippine government consents and submits to be sued upon any money claim involving liability arising from contract, express or implied, which could serve as a basis of civil action between private parties. In this case, PTRI is being sued upon a claim involving liability arising from a contract. Hence, the general law on the waiver of immunity from suit finds application. NOTE: It is one thing to consent to being sued, another to admit liability, thus the phrase, “waiver of immunity by the State does not mean a concession of its liability.” By consenting to be sued, a state simply waives its immunity from suit. It does not thereby concede its liability. (Merritt v. Government of the Philippine Islands, G.R. No. L-11154, 21 Mar. 1916) There is implied consent when the State enters into a contract. In this situation, the government is deemed to have descended to the level of the other contracting party and to have divested itself of its sovereign immunity. However, not all contracts entered into by the government operate as a waiver of its non-suability; distinction must still be made between one which is executed in the exercise of its sovereign functions and another which is done in its proprietary capacity. Where liability is ascertained judicially, the state is at liberty to determine for itself whether to satisfy judgment or not. (Municipality of Hagonoy, Bulacan v. Dumdum, Jr., G.R. No. 168289; 22 Mar. 2010) Rule on the liabilities of the following: Here, not only did PTRI descend to the level of a contracting party by entering into the subject contract, under the subject contract itself, which contemplated a situation wherein legal action may arise from the execution of the agreement and incorporating provisions on the procedures to be undertaken in settling legal disputes, PTRI also 1. 15 Public officers – By their acts without or in excess of jurisdiction: any injury caused by him is his own personal liability and cannot be imputed to the State. UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law 2. 3. Garnishment of government funds Government agencies – Establish whether or not the State, as principal which may ultimately be held liable, has given its consent. GR: Whether the money is deposited by way of general or special deposit, they remain government funds and are not subject to garnishment. Government – Doctrine of State immunity is available. XPN: Where a law or ordinance has been enacted appropriating a specific amount to pay a valid government obligation, then the money can be garnished. Instances when a public officer may be sued without the State’s consent (Co-Re-Pa-Ju-Vi) 1. 2. 3. 4. 5. To Compel him to do an act required by law; To Restrain him from enforcing an act claimed to be unconstitutional; To compel Payment of damages from an already appropriated assurance fund or to refund tax over-payments from a fund already available for the purpose; To secure a Judgment that the officer impleaded may satisfy the judgment by himself without the State having to do a positive act to assist him; or Where the government itself has Violated its own laws because the doctrine of State immunity cannot be used to perpetrate an injustice. NOTE: Funds belonging to government corporations, which can sue and be sued and are deposited with a bank, can be garnished. (PNB v. Pabalan, G.R. No. L-33112, 15 June 1978) If the local legislative authority refuses to enact a law appropriating the money judgment rendered by the court, the winning party may file a petition for mandamus to compel the legislative authority to enact a law. (Municipality of Makati v. CA, G.R. Nos. 89898-99, 01 Oct. 1990) The government cannot be made to pay interest in money judgments against it, except in the following instances: (Em-Er-Go) GR: The true test in determining whether a suit against a public officer is a suit against the State is that, if a public officer or agency is sued and made liable, the State will have to perform an affirmative act of appropriating the needed amount to satisfy the judgment. If the State will have to do so, then, it is a suit against the State. 1. 2. 3. F. DELEGATION OF POWERS XPNs: 1. The public official is charged in his official capacity for acts that are unlawful and injurious to the rights of others. Public officials are not exempt, in their personal capacity, from liability arising from acts committed in bad faith; or 2. Principle of Non-Delegability GR: What has been delegated cannot be delegated. It is based upon the ethical principle that such delegated power constitutes not only as a right, but also as a duty to be performed by the delegate through the instrumentality of his own judgment and not through the intervening mind of another. A further delegation of such power, unless permitted by the sovereign power, would constitute a negation The public official is clearly being sued not in his official capacity but in his personal capacity, although the acts complained of may have been committed while he occupied a public position. (Lansang v. CA, G.R. No. 102667, 23 Feb. 2000) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Exercise of the power of Eminent domain Erroneous collection of taxes Where Government agrees to pay interest pursuant to law 16 Basic Concepts under the 1987 Constitution NOTE: The Congress, through a law, may authorize the President to exercise such emergency powers necessary and proper to carry out a national policy. (ibid.) of this duty in violation of the trust reposed in the delegate. (Cruz, 2014) XPNS: This specific provision of the Constitution was applied in the Bayanihan to Heal as One Act, wherein former President Rodrigo Duterte was given temporary emergency measures to respond to the crisis brought by the COVID-19 pandemic. (Sec.4, R.A. No. 11469, Bayanihan to Heal as One Act) 1. Delegations to the People at large; a. R.A. 6735 – The Initiative and Referendum Act as authorized by the constitutional mandate for the creation of a system of legislation by initiative and referendum Tariff Powers b. A plebiscite is required in the creation, division, merger, abolition of province, city, municipality, or barangay or the substantial alteration of its boundary. 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. (Sec. 28 (2), Art. VI, 1987 Constitution) NOTE: These are more of reservations of power by the people than delegations considering the fact that the people are repositories of all governmental powers. 2. 3. 4. 5. Emergency powers of the President; Tariff powers of the President; Delegation to local governments; and Delegation to administrative bodies of the power of subordinate legislation. (Cruz, 2014) Local Governments Pursuant to the State policy on local autonomy, the fundamental powers of the State were delegated to local governments, subject to restrictions imposed by Congress. The general law in this regard is the Local Government Code (LGC). Emergency Powers For the delegation of emergency powers to the President to be valid, the following requisites must concur: (N-A-Li-Res) 1. 2. 3. The purpose for which the foregoing powers have been delegated is to enable local authorities to attend to local concerns in an effective and meaningful manner, instead of relying too much on the national government, whose attention would otherwise be diffuse over a multitude of local concerns. (Gorospe, 2016) It is done during war or National emergency It must Allow the President to exercise such powers which are necessary and proper to carry out a declared national policy. Such exercise must be for a Limited period only. Administrative Legislation NOTE: If the Congress does not expressly take back the power by means of a Resolution, the same shall cease upon its next Adjournment. 4. Agencies and Subordinate Administrative agencies are clothed with rulemaking powers. The only requirement is that the regulation must be germane to the objects and purposes of the law. (People v. Jolliffe, G.R. No. L9553, 13 May 1959) Such exercise must be subject to Restrictions prescribed by the Congress. (Sec. 23 (2), Art. VI, 1987 Constitution) 17 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law A. NO. The Court holds that, contrary to petitioners’ contention, the K to 12 Law was validly enacted. First, petitioner’s claim of lack of prior consultations is belied by the nationwide regional consultations conducted by DepEd pursuant to DepEd Memorandum Nos. 38 and 98, series of 2011. Tests for Valid Delegation 1. Completeness Test – The law must be complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate. Second, the enrolled bill doctrine applies in this case. Under the enrolled bill doctrine, the signing of a bill by the Speaker of the House and the Senate President and the certification of the Secretaries of both Houses of Congress that it was passed is conclusive not only as to its provisions but also as to its due enactment. 2. Sufficiency Standard Test – The law must fix a standard, the limits of which are sufficiently determinate or determinable, to which the delegate must conform in the performance of his functions. NOTE: For subordinate legislation to be valid, the Administrative Code of 1987 requires the filing of rules adopted by the administrative agencies with the UP Law Center, in addition to compliance with completeness test and sufficient standard test. (Quezon City PTCA Federation. Inc. v. DepEd, G.R. No. 188720, 23 Feb. 2016) Third, there is no undue delegation of legislative power in the enactment of the K to 12 Law. In determining whether or not a statute constitutes an undue delegation of legislative power, the Court has adopted two tests: the completeness test and the sufficient standard test. Clearly, under the two tests, the K to 12 Law, read and appreciated in its entirety, is complete in all essential terms and conditions and contains sufficient parameters on the power delegated to the DepEd, CHED, and TESDA. The fact that the K to 12 Law did not have any provision on labor does not make said law incomplete. Q: The Kindergarten Education Act institutionalized kindergarten education, which is one (1) year of preparatory education for children at least five years old, as part of basic education, and is made mandatory and compulsory for entrance to Grade 1. On the other hand, to be at par with international standards and in line with the country’s commitment in EFA 2015, the Philippine Congress, on 15 May 2013, passed the K to 12 Law. One of its salient features is expansion of basic education from ten (10) years to thirteen (13) years, encompassing “at least one (1) year of kindergarten education, six (6) years of elementary education, and six (6) years of secondary education. The purpose of permissible delegation to administrative agencies is for the latter to “implement the broad policies laid down in a statute by ‘filling in’ the details which the Congress may not have the opportunity or competence to provide.” With proliferation of specialized activities and their attendant peculiar problems, the legislature has found it necessary to entrust to administrative agencies, who are supposed to be experts in the particular fields assigned to them, the authority to provide direct and efficacious solutions to these problems. Secondary education includes four (4) years of junior high school and two (2) years of senior high school education.” Claiming that the K to 12 Basic Education Program violates various constitutional provisions, petitions were filed before the Court praying that the Kindergarten Education Act, K to 12 Law, K to 12 IRR, DO No. 31, Joint Guidelines, and CMO No. 20, be declared unconstitutional. This is effected by the promulgation of supplementary regulations, such as the K to 12 ITT jointly issued by the DepEd, CHED and TESDA and the Joint Guidelines issued in coordination with DOLE, to address in detail labor and management rights relevant to implementation of the K to 12 Law. (Council of Teachers and Staff of Colleges and Universities of the Philippines v. Secretary of Are the petitioners correct? UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 18 Basic Concepts under the 1987 Constitution Education, G.R. Nos. 216930, 217451, 217725, 218045, 218098, 218123 & 218465, 09 Oct. 2018, J. Caguioa) 1. 2. 3. 4. Requisites for a valid exercise of police power G. FUNDAMENTAL POWERS OF THE STATE The following are the powers of the state: 1. 2. 3. Public health; Public morals; Public safety; and Public welfare 1. Lawful subject – The interests of the public generally, as distinguished from those of a particular class, require the exercise of the police power; and 2. Lawful means – The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. (National Development Company and New Agrix, Inc. v. Philippine Veterans Bank, G.R. Nos. 84132-33, 10 Dec. 1990) fundamental/inherent Police Power Power of Eminent Domain Power of Taxation 1. POLICE POWER Police power is the power of the state to promote public welfare by restraining and regulating the use of liberty and property. It is the most pervasive, the least limitable, and the most demanding of the three fundamental powers of the State. Q: President Rodrigo Duterte issued Proclamation No. 475 formally declaring a state of calamity in Boracay and ordering its closure for six (6) months. Due to this, Boracay residents Mark Anthony Zabal and Thiting Jacosalem filed the present petition alleging that they would suffer grave and irreparable damage as their livelihood depends on the tourist activities therein. They attacked the order on the ground that it is an invalid exercise of legislative powers. Is the order invalid? As an inherent attribute of sovereignty which virtually extends to all public needs, police power grants a wide panoply of instruments through which the State, as parens patriae, gives effect to a host of its regulatory powers. The power to “regulate” means the power to protect, foster, promote, preserve, and control, with due regard for the interests, first and foremost, of the public, then of the utility of its patrons. (Gerochi v. Department of Energy, G. R. 159796, 17 July 2007) A: NO. That the assailed governmental measure in this case is within the scope of police power cannot be disputed. Verily, the statutes from which the said measure draws authority and the constitutional provisions which serve as its framework are primarily concerned with the environment and health, safety, and well-being of the people, the promotion and securing of which are clearly legitimate objectives of governmental efforts and regulations. The only question now is whether the temporary closure of Boracay as a tourist destination for six months is reasonably necessary under the circumstances? The answer is in the affirmative. The state, in order to promote general welfare, may interfere with personal liberty, with property, and with business and occupations. Persons may be subjected to all kinds of restraint and burdens in order to secure the general comfort, health and prosperity of the state and to this fundamental aim of our Government, the rights of the individual are subordinated. (Ortigas and Co., Limited Partnership v. Feati Bank and Trust Co, G.R. No. L-24670, 14 Dec. 1979) Generally, police power extends to all the great public needs. Its particular aspects, however, are the following: Tourist arrivals in the island were clearly far more than Boracay could handle. Certainly, the closure of Boracay, albeit temporarily, gave the island its much 19 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law Q: Are the rates to be charged by utilities like MERALCO subject to State regulation? needed breather, and likewise afforded the government the necessary leeway in its rehabilitation program. Note that apart from review, evaluation and amendment of relevant policies, the bulk of the rehabilitation activities involved inspection, testing, demolition, relocation, and construction. These works could not have easily been done with tourists present. The rehabilitation works in the first place were not simple, superficial or mere cosmetic but rather quite complicated, major, and permanent in character as they were intended to serve as long-term solutions to the problem. (Zabal v. Duterte, G.R. No. 238467, 12 Feb. 2019) A: YES. The regulation of rates to be charged by public utilities is founded upon the police powers of the State, and statutes prescribing rules for the control and regulation of public utilities are a valid exercise thereof. When private property is used for a public purpose and is affected with public interest, it ceases to be juris privati only and becomes subject to regulation. The regulation is to promote the common good. As long as use of the property is continued, the same is subject to public regulation. (Republic v. Manila Electric Company, G.R. No. 141314, 15 Nov. 2002) Q: The City of Manila enacted Ordinance No. 7774 entitled, “An Ordinance Prohibiting ShortTime Admission, Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments in the City of Manila.” The City of Manila asserts that the subject establishments "have gained notoriety as venue of ‘prostitution, adultery and fornications’ in Manila since they ‘provide the necessary atmosphere for clandestine entry, presence and exit and thus became the ‘ideal haven for prostitutes and thrill-seekers. The purpose of the ordinance is to prohibit motel and inn operators from offering short-time admission, as well as pro-rated or “wash-up” rates for abbreviated stays. Is the ordinance a valid exercise of police power? NOTE: Mall owners and operators cannot be validly compelled to provide free parking to their customers because requiring them to provide free parking space to their customers is beyond the scope of police powers. It unreasonably restricts the right to use property for business purposes and amounts to confiscation of property. (OSG v. Ayala Land, Inc., 600 SCRA 617, 18 Sept. 2009) (2014 BAR) Requisites for the valid exercise of police power by the delegate: (Ex-Mu-Terri) 1. 2. 3. A: NO. A reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded. It must also be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. In the present case, there is less intrusive measures which can be employed such as curbing out the prostitution and drug use through active police force. The ordinance has a lawful purpose but does not have the lawful means hence, unconstitutional. (White Light Corporation vs. City of Manila, G.R. No. 122846, 20 Jan. 2009) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Express grant by law; Must not be contrary to law; and GR: Within Territorial limits of LGUs. XPN: When exercised to protect water supply. (Wilson v. City of Mountain Lake Terraces, 417 P.2d 632, 18 Aug. 1966) The courts cannot interfere with the exercise of Police Power If the legislature decides to act, the choice of measures or remedies lies within its exclusive discretion, as long as the requisites for a valid exercise of police power have been complied with. (Cruz, 2007) Q: Can MMDA exercise police power? A: NO. The MMDA cannot exercise police powers since its powers are limited to the formulation, coordination, regulation, implementation, 20 Basic Concepts under the 1987 Constitution preparation, management, monitoring, setting of policies, installing a system, and administration. Nothing in R.A. No. 7924 granted the MMDA police power, let alone legislative power (MMDA v. Trackworks, G.R. No. 179554, 16 Dec. 2009) dedicated to public use, or even property already devoted to religious worship. (Barlin v. Ramirez, G.R. No. L-2832, 24 Nov. 1906 As to Question of Necessity Judicial question (The courts can determine whether there is Political question genuine necessity for its exercise, as well as the value of the property) 2. EMINENT DOMAIN Power of Eminent Domain Eminent domain is the right or power of a sovereign state to appropriate private property to uses to promote public welfare. It is an indispensable attribute of sovereignty; a power grounded in the primary duty of government to serve the common need and advance the general welfare. The power of eminent domain is inseparable in sovereignty being essential to the existence of the State and inherent in government. (NTC vs. Oroville Dev’t Corp., G.R. No. 223366, 01 Aug. 2017) Requisites for a valid taking (Pri-Mo-L-Pr-U) 1. 2. Conditions for the exercise of the Power of Eminent Domain: (T-U-C-O) 1. 2. 3. 4. 3. Taking of private property; For public Use; Just Compensation; and Observance of due process. 4. 5. NOTE: There must be a valid offer to buy the property and refusal of said offer. Power of expropriation as exercised by Congress vs. Power of expropriation as exercised by delegates The expropriator must enter a Private property; Entry must be for more than a Momentary period; Entry must be under warrant or color of Legal authority; Property must be devoted to public use or otherwise informally appropriated or injuriously affected; and Utilization of property must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property. (Republic v. De Castellvi, G.R. No. L-20620, 15 Aug. 1974) Nature of property taken GR: All private property capable of ownership, including services, can be taken. POWER OF POWER OF EXPROPRIATION AS EXPROPRIATION AS EXERCISED BY EXERCISED BY CONGRESS DELEGATES As to Scope The power is pervasive and all-encompassing; It can only be broad as It can reach every form the enabling law and of property which may the conferring be needed by the State authorities want it to for public use. In fact, it be. can reach even private property already XPNs: (Mo-Cho) 1. Money; and 2. Choses in action - personal right not reduced in possession but recoverable by a suit at law such as right to receive, demand or recover debt, demand or damages on a cause of action ex contractu or for a tort or omission of duty. NOTE: A chose in action is a property right in something intangible, or which is not in one’s possession but enforceable through legal or court 21 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law expropriation of a piece of land in Taguig, alleging that the National Historical Institute declared said land as a national historical landmark, because it was the site of the birth of Felix Manalo, the founder of Iglesia ni Cristo. The Republic filed an action to expropriate the land. Petitioners argued that the expropriation was not for a public purpose. Is their argument correct? action e.g. cash, a right of action in tort or breach of contract, an entitlement to cash refund, checks, money, salaries, insurance claims. Requisites before an LGU can exercise Eminent Domain : (O-Pu-J-O) 1. 2. 3. 4. 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; A: NO. Public use should not be restricted to the traditional uses. It has been held that places invested with unusual historical interest is a public use for which the power of eminent domain may be authorized. 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. Indeed, that only a few would actually benefit from the expropriation of property does not necessarily diminish the essence and character of public use. (Manosca v. CA, G.R. No. 106440, 29 Jan. 1996) The power of eminent domain is exercised for Public use, purpose or welfare, or for the benefit of the poor and the landless; There is payment of Just compensation; and 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. (City of Manila v. Roces-Prieto, G.R. No. 221366, 08 July 2019) Expansive concept of “Public Use” Public use does not necessarily mean “use by the public at large.” Whatever may be beneficially employed for the general welfare satisfies the requirement. Moreover, that only few people benefit from the expropriation does not diminish its public-use character because the notion of public use now includes the broader notion of indirect public benefit or advantage. (Manosca v. CA, G.R. No. 106440, 29 Jan. 1996) Just Compensation It is the full and fair equivalent of the property taken from the private owner (owner’s loss) by the expropriator. It is usually the fair market value (FMV) of the property and must include consequential damages (damages to the other interest of the owner attributed to the expropriation) minus consequential benefits (increase in the value of other interests attributed to new use of the former property). Concept of Vicarious Benefit This abandons the traditional concept that number of actual beneficiaries determines public purpose. Public use now includes the broader notion of indirect public advantage, i.e., conversion of a slum area into a model housing community, urban land reform and housing. There is a vicarious advantage to the society. (Filstream International Incorporated v. CA, G.R. No. 125218, 23 Jan. 1998) JUST COMPENSATION = FMV + consequential DAMAGES - consequential BENEFITS NOTE: To be just, the compensation must be paid on time. (2009 BAR) Q: The Republic, through the Office of the Solicitor-General, instituted a complaint for UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 22 Basic Concepts under the 1987 Constitution unjustly profiting from its deliberate acts of denying due process of law to the owners. As a measure of simple justice and ordinary fairness to them, therefore, reckoning just compensation on the value at the time the owners commenced these inverse condemnation proceedings is entirely warranted. Fair Market Value The price that may be agreed upon by parties who are willing but are not compelled to enter into a contract of sale. (City of Manila v. Estrada, G.R. No. 7749, 09 Sept. 1913) Period to determine just compensation GR: Just compensation must be reckoned from the time of taking or filing of the complaint, whichever came first. (NTC vs. Oroville Dev’t. Corp, G.R. No. 223366, 01 Aug. 2017) 2. XPN: At the time the inverse condemnations proceedings were instituted. Illustrations: 1. In the case of NPC vs. Macabangkit Sangkay (G.R. No. 165828, 24 Aug. 2011), NAPOCOR, in the 1970s, undertook the construction of several underground tunnels to be used in diverting the water flow from the Agus River to the hydroelectric plants. On November 21, 1997, respondents therein sued NAPOCOR for recovery of property and damages, alleging that they belatedly discovered that one of the underground tunnels of NPC traversed their land. In that case, the Court adjudged that the value of the property at the time the property owners initiated inverse condemnation proceedings should be considered for purposes of just compensation for the following reasons, viz: In the case of National Power Corporation v. Spouses Saludares, (G.R. No. 189127, 02 Apr. 2012), respondents therein filed a complaint for the payment of just compensation against NAPOCOR, averring that it had entered and occupied their property by erecting hightension transmission lines and failed to reasonably compensate them for the intrusion. For its part, NAPOCOR countered that it had already paid just compensation for the establishment of the transmission lines by virtue of its compliance with the final and executory decision in National Power Corporation v. Pereyras. In ruling that the reckoning value of just compensation is that prevailing at the time of the filing of the inverse condemnation proceedings, the Court declared: To reiterate, NAPOCOR should have instituted eminent domain proceedings before it occupied respondent spouses' property. Because it failed to comply with this duty, respondent spouses were constrained to file the instant Complaint for just compensation before the trial court. From the 1970s until the present, they were deprived of just compensation, while NAPOCOR continuously burdened their property with its transmission lines. This Court cannot allow petitioner to profit from its failure to comply with the mandate of the law. We therefore rule that, to adequately compensate respondent spouses from the decades of burden on their property, NAPOCOR should be made to pay the value of the property at the time of the filing of the instant Complaint when respondent spouses made a judicial demand for just compensation. Compensation that is reckoned on the market value prevailing at the time either when NPC entered or when it completed the tunnel, as NPC submits, would not be just, for it would compound the gross unfairness already caused to the owners by NPC's entering without the intention of formally expropriating the land, and without the prior knowledge and consent of the Heirs of Macabangkit. NPC's entry denied elementary due process of law to the owners since then until the owners commenced the inverse condemnation proceedings. The Court is more concerned with the necessity to prevent NPC from 23 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law NOTE: Inverse condemnation has the objective to recover the value of property taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency. (NPC vs. Heirs of Makabangkit Sangkay, G.R. No. 165828, 24 Aug. 2011). decrease in value of the remaining property, it can hardly be considered as consequential damages that may be awarded to respondents. (Republic v. Sps. Salvador, G.R. No. 205428, 07 June 2017) Consequential Benefits Where the expropriator takes only part of a parcel of land and the remainder, as a result of the expropriation, is placed in a better location (such as fronting a street where it used to be an interior lot), the owner will enjoy consequential benefits which should be deducted from the consequential damages. (Cruz, 2015) Consequential Damages Consist of injuries directly caused on the residue of the private property taken by reason of expropriation. Where, for example, the expropriator takes only part of a parcel of land, leaving the remainder with an odd shape or area as to be virtually unusable, the owner can claim consequential damages. (Cruz and Cruz, 2015) Form of payment GR: Compensation has to be paid in money. Q: Spouses Salvador owns a land where a onestorey building is erected. The said land is subject to expropriation wherein the DPWH shall construct the NLEX extension exiting McArthur Highway. DPWH paid the spouses amounting to P685,000 which was the fair market value of the land and building. RTC issued a Writ of Possession in favor of the Republic but ordered the Republic to pay an additional amount corresponding to the capital gains tax paid by the spouses. The Republic, represented by DPWH contested the decision of the RTC adding the capital gains tax as consequential damages on the part of the Spouse Salvador. Is the decision of the RTC correct? XPN: In cases involving CARP, compensation may be in bonds or stocks, for it has been held as a nontraditional exercise of the power of eminent domain. It is not an ordinary expropriation where only a specific property of relatively limited area is sought to be taken by the State from its owner for a specific and perhaps local purpose. It is rather a revolutionary kind of expropriation. (Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. No. 78742, 17 July 1989) NOTE: The owner is entitled to the payment of interest from the time of taking until just compensation is actually paid to him. The expropriator has to reimburse the taxes paid by the owner from the time of the taking until the transfer of title (which can only be done after the actual payment of just compensation), during which he did not enjoy any beneficial use of his property. (The City of Manila v. Roxas, G.R. No. 39671, 29 June 1934; Cruz, 2015) A: NO. Just compensation is defined as the full and fair equivalent of the property sought to be expropriated. The measure is not the taker’s gain but the owner’s loss. The compensation, to be just, must be fair not only to the owner but also to the taker. Consequential damages are only awarded if as a result of the expropriation, the remaining property of the owner suffers from an impairment or decrease in value. In this case, no evidence was submitted to prove any impairment or decrease in value of the subject property as a result of the expropriation. More significantly, given that the payment of capital gains tax on the transfer· of the subject property has no effect on the increase or UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES From 01 July 2013 onwards and until full payment, the interest rate to be used in computing for just compensation shall be 6% per annum pursuant to Bangko Sentral ng Pilipinas Circular No. 799, series of 2013. (Land Bank of the Philippines v. Hababag, G.R. No. 172352, 16 Sept. 2015) 24 Basic Concepts under the 1987 Constitution expansion and improvement of the Lahug Airport. The RTC rendered judgment in favor of the Government and ordered the latter to pay the landowners the fair market value of the land. The landowners received the payment. The right to recover cannot be defeated by statutory prescription The right to recover just compensation is enshrined in no less than our Bill of Rights, which states in clear and categorical language that “private property shall not be taken for public use without just compensation”. This constitutional mandate cannot be defeated by statutory prescription. (NPC v. Sps. Saludares, G.R. No. 189127, 25 Apr. 2012) (2014 BAR) Thereafter, the lot was transferred and registered in the name of the Government. The projected improvement and expansion plan of the old Lahug Airport, however, was not pursued. Thus, the landowners initiated a complaint for the recovery of possession and reconveyance of ownership of the lands based on the compromised agreement they entered into with the ATO. Do the former owners have the right to redeem the property? Determination Role of the Judiciary The final determination of just compensation is a judicial function. The Regional Trial Court, sitting as Special Agrarian Court has the original and exclusive jurisdiction over such and not appellate. (Land Bank vs. Eugenio Dalauta, G.R. No. 190004, 08 Aug. 2017). A: YES. It is well settled that the taking of private property by the Government’s power of eminent domain is subject to two mandatory requirements: (1) that it is for a particular public purpose; and (2) that just compensation be paid to the property owner. Effect of Delay GR: Non-payment of just compensation by the government does not entitle private owners to recover possession of the property because expropriation is an in rem proceeding and not an ordinary sale. It only entitles them to demand payment of the fair market value of the property. These requirements partake of the nature of implied conditions that should be complied with to enable the condemnation or to keep the property expropriated. More particularly, with respect to the element of public use, the expropriator should commit to use the property pursuant to the purpose stated in the petition for expropriation filed, failing which, it should file another petition for the new purpose. If not, it is then incumbent upon the expropriator to return the said property to its private owner, if the latter desires to reacquire the same. Accordingly, the private property owner would be denied due process of law, and the judgment would violate the property owner’s right to justice, fairness, and equity. (MIAA and Air Transportation Office v. Lozada, G.R. No. 176625, 25 Feb. 2010) XPNs: 1. When there is a deliberate refusal to pay just compensation; and 2. When the government fails to pay compensation within 5 years from the finality of the judgment in the expropriation proceedings. This is in connection with the principle that the government cannot keep the property and dishonor the judgment. (Republic v. Lim, G.R. No. 161656, 29 June 2005) Abandonment of intended use and right of repurchase NOTE: The expropriator who has taken possession of the property subject of expropriation is obliged to pay reasonable compensation to the landowner for the period of such possession although the Q: Several parcels of lands located in Lahug, Cebu City were the subject of expropriation proceedings filed by the Government for the 25 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law proceedings had been discontinued on the ground that the public purpose for the expropriation had meanwhile ceased. (Republic v. Heirs of Borbon, G.R. No. 165354, 12 Jan. 2015) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 26 General Principles of Taxation such as rest in the discretion of the authority which exercises it. (Tio v. Videogram Regulatory Board, G.R. No. L-75697, 18 June 1987) II. GENERAL PRINCIPLES OF TAXATION 3. Plenary – as it is complete. Under the National Internal Revenue Code (NIRC), the Bureau of Internal Revenue (BIR) may avail of certain remedies to ensure the collection of taxes. 4. Supreme – insofar as the selection of the subject of taxation is concerned. It cannot be interpreted to mean that it is superior to the other inherent powers of the government. (Dimaampao, 2021) A. DEFINITION, CHARACTERISTICS AND PURPOSE OF TAXATION DEFINITION Taxation is the power by which the sovereign, through its law-making body, raises revenue to defray the necessary expenses of government. It is merely a way of apportioning the costs of government among those who, in some measure, are privileged to enjoy its benefits and must bear its burdens. (Aban, 2001) Characteristics of Tax (P2-E-R-L4) 1. It is a mode by which governments make exactions for revenue in order to support their existence and carry out their legitimate objectives. Taxation may refer to either or both the power to tax or the act or process by which the taxing power is exercised. (Vitug, 2006) Under Sec. 28 (1), Art. VI of the 1987 Constitution, the rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. 2. Generally Payable in money – unless the law prescribes another form or kind of payment (i.e., backpay certificates under Sec. 2, R.A. No. 304, as amended) Moreover, a tax is a pecuniary burden. (Ingles, 2021) 3. Enforced contribution – taxes are obligations created by law (Vera v. Fernandez, G.R. No. L31364, 30 Mar. 1979) 4. Paid at Regular periods or intervals 5. Levied on persons, property or exercise of a right or privilege 6. Levied by the State having jurisdiction over the subject to be taxed 7. Levied by the legislature – such power is exclusively vested in the legislature except where the 1987 Constitution provides otherwise. NOTE: The elements of taxation are: (E-G-S) 1. 2. 3. Proportionate in character – taxes are based on one’s ability to pay. It is an Enforced proportional contribution from persons and properties; It is levied for the support of the Government; and It is imposed by the State by virtue of its Sovereignty. (PCGG v. Cojuangco, G.R. No. 147062-64, 14 Dec. 2001) CHARACTERISTICS OF TAXATION Characteristics of Taxation (C-U-P-S) 1. 2. Comprehensive – as it covers persons, businesses, activities, professions, rights and privileges. Unlimited – the power to impose taxes is one so unlimited in force and so searching in extent, that courts scarcely venture to declare that it is subject to any restrictions whatever, except 27 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law threatened industry which is affected with public interest, like the oil industry. (Caltex Philippines, Inc. v. COA, G.R. No. 92585, 08 May 1992) Under Sec. 28 (2), Art. VI of the 1987 Constitution, 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 and imposts within the framework of the national development program of the Government. Taxation also has a regulatory purpose as in the case of taxes levied on excises or privileges like those imposed on tobacco and alcoholic products, or amusement places like night clubs, cabarets, cockpits, among others. (Aban, 2001) Likewise, Sec. 5, Art. X of the 1987 Constitution provides that each local government unit shall have the power to create its own resources of revenues and to levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees and charges shall accrue exclusively to the local governments. 8. NOTE: The power of taxation is sometimes called the power to destroy. Therefore, it should be exercised with caution to minimize injury to the proprietary rights of a taxpayer. (Philippine Health Care Providers, Inc. v. CIR, G.R. No. 167330, 18 Sept. 2009) Levied for a public purpose – taxes are exacted only for a public purpose. They cannot be used for purely private purposes or for the exclusive benefit of private persons. It is the purpose which determines the public character of the tax law, not the number of persons benefited. (Dimaampao, 2021) NOTE: In the case of Lutz v. Araneta, G.R. No. L-7859, 22 Dec. 1955, the Supreme Court upheld the validity of the Sugar Adjustment Act, which imposed a tax on milled sugar since the purpose of the law was to strengthen an industry that is so undeniably vital to the economy – the sugar industry. (Aban, 2001) PURPOSE 1. Primary or revenue purpose – to raise funds or property to enable the State to promote the general welfare and protection of the people. c. Reduction of social inequality – a progressive system of taxation prevents the undue concentration of wealth in the hands of few individuals. Progressivity is based on the principle that those who are able to pay more should shoulder the bigger portion of the tax burden. d. Encourage economic growth – the grant of incentives or exemptions encourage investment in our local industries and thereby promoting economic growth. e. Protectionism – tariffs and customs duties are imposed upon imported goods and articles to further protect important sectors of the economy or local industries. 2. Secondary or non-revenue purposes (P-R2-E-P) a. b. Promotion of general welfare – taxation may be used as an implement of police power to promote the general welfare of the people. However, if the purpose is primarily revenue, or if revenue is, at least, one of the real and substantial purposes, then the exaction is properly called a tax. (Planters Products, Inc. v. Fertiphil Corporation, G.R. No. 166066, 14 Mar. 2008) Regulation of activities/industries – Taxes may also be imposed for a regulatory purpose as, for instance, in the rehabilitation and stabilization of a UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES NOTE: To tax is two-fold. It is both inherent and legislative in nature. 28 General Principles of Taxation B. POWER OF TAXATION AS DISTINGUISHED FROM POLICE POWER AND EMINENT DOMAIN TAXATION POLICE POWER EMINENT DOMAIN As to Authority Who Exercises the Power Government subdivision or its political Government subdivision or its political Government or public service companies and public utilities welfare To facilitate the taking of private property for public purpose. As to Purpose To raise revenue in support of the Government; regulation is merely incidental. To promote general through regulations. As to Persons Affected Upon the community or class of individuals. Upon the community or class of individuals. On an individual as the owner of a particular property. As to Amount of Monetary Imposition No ceiling limitations. except inherent Limited to the cost of regulation, issuance of license, or surveillance. No imposition; the owner is paid just compensation for his property. As to Benefits Received NO DIRECT BENEFIT Protection of a secured organized society, benefits received from the government. NO DIRECT BENEFIT Maintenance of healthy economic standard of society, intangible altruistic feeling that he has contributed to the general welfare. DIRECT BENEFIT The person receives compensation. just As to Non-Impairment of Contracts Tax laws generally do not impair contracts unless the government is party to a contract granting exemption for a consideration. Contracts may be impaired. Contracts may be impaired. As to Transfer of Property Rights Taxes paid become part of public funds. No transfer but only restraint on its exercise. Expropriated private property becomes property of the State. As to Scope All persons, property and excises. All persons, property and excises. 29 Private property upon payment of just compensation. UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law G.R No. 159796, 17 July 2007) Q: Ordinance No. SP-2095 of the Quezon City government imposes a Socialized Housing Tax (SHT) equivalent to 0.5% on the assessed value of land in excess of Php100,000. The SHT will be used as one of the sources of funds for urban development and housing program. Can Quezon City impose such tax? The fees in the ordinance are not impositions on the building or structure itself; rather, they are impositions on the activity subject of government regulation, such as the installation and construction of the structures. It is primarily regulatory in nature, and not primarily revenue-raising. While the fees may contribute to the revenues of the municipality, this effect is merely incidental. Thus, the fees imposed in the said ordinance are not taxes. (Smart Communications, Inc., v. Municipality of Malvar, Batangas, G.R. No. 204429, 18 Feb. 2014) A: YES. Cities are allowed to exercise such powers and discharge such functions and responsibilities as are necessary, appropriate, or incidental to efficient and effective provision of the basic services and facilities which include, among others, programs and projects for low-cost housing and other mass dwellings. The collections made accrue to its socialized housing programs and projects. The tax is not a pure exercise of taxing power or merely to raise revenue; it is levied with a regulatory purpose. The levy is primarily in the exercise of the police power for the general welfare of the entire city. (Ferrer, Jr. vs. Bautista, G.R. No. 210551, 30 June 2015) Q: Revenue laws R.A. 6260 and P.D. 276 were enacted to establish the Coconut Investment Fund and Coconut Consumers Stabilization Fund (coco-levy funds). These funds shall be owned by the coconut farmers in their private capacities under the Coconut Industry Code. In 2000, E.O. 313 was issued creating the Coconut Trust Fund and designating the UCPB as the trustee bank. This aimed to provide financial assistance to the coconut farmers, to the coconut industry, and to other agriculture-related programs. UCPB suggested that the coco-levy funds are closely similar to the SSS funds, which have been declared not to be public funds but properties of the SSS members and held merely in trust by the government. Are the coco-levy funds in the nature of taxes and thus, can only be used for public purpose? Q: Galaxia Telecommunications Company constructed a telecommunications tower for the purpose of receiving and transmitting cellular communications. Meanwhile, the municipal authorities passed an ordinance entitled “An Ordinance Regulating the Establishment of Special Projects” which imposed fees to regulate activities particularly related to the construction and maintenance of various structures, certain construction activities of the identified special projects, which includes “cell sites” or telecommunications towers. Is the imposition of the fee an exercise of the power of taxation? A: YES. The coco-levy funds were raised pursuant to law to support a proper governmental purpose. They were raised with the use of the police and taxing powers of the State for the benefit of the coconut industry and its farmers in general. A: NO. The designation given by the municipal authorities does not decide whether the imposition is properly a license tax or a license fee. The determining factors are the purpose and effect of the imposition as may be apparent from the provisions of the ordinance. If the generating of revenue is the primary purpose and regulation is merely incidental, the imposition is a tax; but if regulation is the primary purpose, the fact that revenue is incidentally raised does not make the imposition a tax. (Gerochi v. Department of Energy, UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Unlike ordinary revenue laws, R.A. No. 6260 and P.D. 276 did not raise money to boost the government’s general funds but to provide means for the rehabilitation and stabilization of a threatened industry, the coconut industry, which is so affected with public interest as to be within the police power of the State. The subject laws are akin to the imposed sugar liens. It cannot be likened to SSS Law which collects premium contributions that 30 General Principles of Taxation honoring the elderly is an integral part of this law. As to its nature and effects, the 20% discount is a regulation affecting the ability of private establishments to price their products and services relative to a special class of individuals, senior citizens, for which the Constitution affords preferential concern. (Manila Memorial Park v. DSWD, G.R. No. 175356, 03 Dec. 2013) are not taxes and not for public purpose. The SSS members pay contributions in exchange for insurance protection and benefits like loans, medical or health services, and retirement package. (Pambansang Koalisyon ng mga Samahang Magsasaka at Manggagawa sa Niyugan v. Executive Secretary, G.R. Nos. 147036-37, 10 Apr. 2012) Q: R.A. 9257 took effect, amending R.A. 7432, which provides that the 20% senior citizen discount may be claimed as a tax deduction from gross income, gross sales, or gross receipts. Petitioners challenge its constitutionality and pray that the tax credit treatment of the 20% discount be reinstated. They posit that the resolution of this case lies in the determination of whether the legally mandated 20% senior citizen discount is an exercise of police power or eminent domain. If it is police power, no just compensation is warranted. But if it is eminent domain, the tax deduction scheme is unconstitutional because it is not a peso for peso reimbursement of the 20% discount given to senior citizens. Thus, it constitutes taking of private property without payment of just compensation. Is the tax deduction scheme an exercise of police power or the power of eminent domain? C. SCOPE AND LIMITATIONS OF TAXATION 1. INHERENT AND CONSTITUTIONAL LIMITATIONS OF TAXATION Inherent Limitations: (P-I-T-I-E) 1. 2. 3. 4. 5. Public Purpose; Inherently Legislative; Territorial; International Comity; and Exemption of government entities, agencies and instrumentalities. Constitutional Limitations A: POLICE POWER. The 20% discount given to senior citizens is a valid exercise of police power. Thus, even if the current law, through its tax deduction scheme (which abandoned the tax credit scheme under the previous law), does not provide for a peso for peso reimbursement of the 20% discount given by private establishments, no constitutional infirmity obtains because, being a valid exercise of police power, payment of just compensation is not warranted. 1. Provisions directly affecting taxation The 20% discount is intended to improve the welfare of senior citizens who, at their age, are less likely to be gainfully employed, more prone to illnesses and other disabilities, and thus, in need of subsidy in purchasing basic commodities. The discount serves to honor senior citizens who presumably spent the productive years of their lives on contributing to the development and progress of the nation. This distinct cultural Filipino practice of 31 a. Prohibition against imprisonment for non-payment of poll tax (Sec. 20, Art. III, 1987 Constitution) b. Uniformity and equality of taxation (Sec. 28(1), Art. VI, 1987 Constitution) c. Grant by Congress of authority to the President to impose tariff rates (Sec. 28(2), Art. VI, 1987 Constitution) d. Prohibition against taxation of religious, charitable entities, and educational entities (Sec. 28(3), Art. VI, 1987 Constitution) e. Prohibition against taxation of non-stock, UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law non-profit educational institutions (Sec. 4(3), Art. XIV, 1987 Constitution) INHERENT LIMITATIONS f. Majority vote of Congress for grant of tax exemption (Sec. 28(4), Art. VI, 1987 Constitution) While the power of taxation is inherent to a State, such power is still subject to limitations. If there were no limitations imposed on the power, then the State would be dangerous, rampant in wielding such power. (Ingles, 2021) g. Prohibition on use of tax levied for special purpose (Sec. 29(3), Art. VI, 1987 Constitution) PUBLIC PURPOSE h. President’s veto power on appropriation, revenue, tariff bills (Sec. 27 (2), Art. VI, 1987 Constitution) i. Non-impairment of jurisdiction of the Supreme Court (Sec. 30, Art. VI, 1987 Constitution) j. Grant of power to the LGUs to create its own sources of revenue (Sec. 5, Art. X, 1987 Constitution) k. Origin of Revenue and Tariff Bills (Sec. 24, Art. VI, 1987 Constitution) l. No appropriation or use of public money for religious purposes (Sec. 29(2), Art. VI, 1987 Constitution) Taxes are exacted only for a public purpose. They cannot be used for purely private purposes or for the exclusive benefit of private persons. The reason for this is simple. The power to tax exists for the general welfare; hence, implicit in its power is the limitation that it should be used only for a public purpose. It would be robbery for the State to tax its citizens and use the funds generated for a private purpose. (Planters Products, Inc., v. Fertiphil Corporation, G.R. No. 166006, 14 Mar. 2008) Tax is Considered for Public Purpose if: 1. 2. 2. 3. Provisions indirectly affecting taxation a. Equal protection (Sec. 1, Art. III, 1987 Constitution) c. Religious freedom (Sec. 5, Art. III, 1987 Constitution) d. Non-impairment contracts (Sec. Constitution) e. Determination when Enacted Tax Law is for Public Purpose Due process (Sec. 1, Art. III, 1987 Constitution) b. of 10, It is for the welfare of the nation and/or for the greater portion of the population; It affects the area as a community rather than as individuals; and It is designed to support the services of the government for some of its recognized objects. Determination lies in the Congress. However, this will not prevent the court from questioning the propriety of such statute on the ground that the law enacted is not for a public purpose; but once it is settled that the law is for a public purpose, the court may no longer inquire into the wisdom, expediency, or necessity of such tax measure. (Dimaampao, 2021) obligations of Art. III, 1987 NOTE: If the tax measure is not for public purpose, the act amounts to confiscation of property. Freedom of the press (Sec. 4, Art. III, 1987 Constitution) Principles Relative to Public Purpose 1. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 32 Inequalities resulting from the singling out of one particular class for taxation or General Principles of Taxation Niyugan v. Executive Secretary, G.R. Nos. 147036-37, 10 Apr. 2012) exemption infringe no constitutional limitation because the legislature is free to select the subjects of taxation. Q: Lutz assailed the constitutionality of Secs. 2 and 3 of C.A. 567, which provided for an increase of the existing tax on the manufacture of sugar. Lutz alleged such tax as unconstitutional and void for not being levied for a public purpose but for the aid and support of the sugar industry exclusively. Is the tax law increasing the existing tax on the manufacture of sugar valid? NOTE: The legislature is not required to adopt a policy of “all or none” for the Congress has the power to select the object of taxation. (Lutz v. Araneta, G.R. No. L-7859, 22 Dec. 1955) 2. As the State has the power to determine the subjects of taxation, it is also free to select those who will be exempt from taxation. (Gomez v. Palomar, G.R. No. L-23645, 29 Oct. 1968) 3. The only benefit to which the taxpayer is constitutionally entitled is that derived from his enjoyment of the privileges of living in an organized society, established and safeguarded by the devotion of taxes to public purposes. (Gomez v. Palomar, G.R. No. L-23645, 29 Oct. 1968) 4. Public purpose may legally exist even if the motive which impelled the legislature to impose the tax was to favor one industry over another. (Tio v. Videogram Regulatory Board, G.R. No. 75697, 19 June 1987) 5. Public purpose is continually expanding. Areas formerly left to private initiative now lose their boundaries and may be undertaken by the government if it is to meet the increasing social challenges of the times. 6. The public purpose of the tax law must exist at the time of its enactment. (Pascual v. Secretary of Public Works, G.R. No. L-10405, 29 Dec. 1960) A: YES. The protection and promotion of the sugar industry is a matter of public concern. The legislature may determine within reasonable bounds what is necessary for its protection and expedient for its promotion. Legislative discretion must be allowed full play, subject only to the test of reasonableness. If objective and methods alike are constitutionally valid, there is no reason why the State may not levy taxes to raise funds for their prosecution and attainment. Taxation may be made to implement the State’s police power. (Lutz v. Araneta, G.R. No. L-7859, 22 Dec. 1955) INHERENTLY LEGISLATIVE Only the legislature has the full discretion as to the persons, property, occupation or business to be taxed, provided these are all within the State’s territorial jurisdiction. It can also fully determine the amount or rate of tax, the kind of tax to be imposed and method of collection. (1 Cooley 176184) GR: The power to tax is exclusively vested in the legislative body, being inherent in nature. Hence, it may not be delegated. (Delegata potestas non potest delegari) Non-Delegable Legislative Powers Q: Are subsequent laws, which convert a public fund to private properties, valid? 1. 2. A: NO. Taxes could be exacted only for a public purpose; they cannot be declared private properties of individuals although such individuals fall within a distinct group of persons. (Pambansang Koalisyon ng mga Samahang Magsasaka at Manggagagawa sa 3. 4. 5. 33 Selection of subject to be taxed Determination of purposes for which taxes shall be levied Fixing of the rate/amount of taxation Situs of tax Kind of tax UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law 3. Rationale: These powers cannot be delegated without infringing upon the theory of separation of powers. (Pepsi-Cola Bottling Company of the Phil. v. Municipality of Tanauan, G.R. No. L-31156, 27 Feb. 1976) XPNs: 1. Delegation to local government – the LGUs have the power to create their own sources of revenue and to levy taxes, fees, and charges. (Sec. 5, Art. X, 1987 Constitution) NOTE: Technically, this does not amount to a delegation of the power to tax because the questions which should be determined by Congress are already answered by Congress before the tax law leaves Congress. NOTE: The constitutional provision does not change the doctrine that municipal corporations do not possess inherent powers of taxation; what it does is to confer municipal corporations a general power to levy taxes and otherwise create sources of revenue. They no longer have to wait for a statutory grant of these powers. The power of the legislative authority relative to the fiscal powers of local governments has been reduced to the authority to impose limitations on municipal powers. Thus, in interpreting statutory provisions on municipal fiscal powers, doubts will be resolved in favor of municipal corporations. (Quezon City v. ABS-CBN Broadcasting Corporation, G.R. No. 162015, 06 Mar. 2006) 2. Q: The Court promulgated a decision declaring the phrase “internal revenue” appearing in Sec. 284 of R.A. 7160 (Local Government Code) unconstitutional and deleted the same. The Office of the Solicitor-General (OSG), however, contends that the provisions of the LGC are not contrary to Sec. 6, Art. X of the Constitution. Is the OSG’s contention correct? A: NO. Sec. 6, Art. X of the 1987 Constitution textually commands the allocation to the LGUs of their just share in the national taxes. Sec. 6 embodies three mandates: (1) the LGUs shall have a just share in the national taxes; (2) the just share shall be determined by law; and (3) the just share shall be automatically released to the LGUs. Delegation to the president – the authority of the President to fix tariff rates, import or export quotas, tonnage and wharfage dues or other duties and imposts. (Sec. 28(2), Art. VI, 1987 Constitution) Congress has exceeded its constitutional boundary by limiting to the National Internal Revenue Taxes the base from which to compute the just share of the LGUs. Although the power of Congress to make laws is plenary in nature, congressional lawmaking remains subject to the limitations stated in the 1987 Constitution. Thus, the phrase “national internal revenue taxes” engrafted in Sec. 284 is undoubtedly more restrictive than the term national taxes written in Sec. 6. (Congressman Mandanas v. Executive Secretary Ochoa, Jr., G.R. No. 199802/208488, 10 Apr. 2019) NOTE: When Congress tasks the President or his/her alter egos to impose safeguard measures under the delineated conditions, the President or the alter egos may be properly deemed as agents of Congress to perform an act that inherently belongs as a matter of right to the legislature. It is basic agency law that the agent may not act beyond the specifically delegated powers or disregard the restrictions imposed by the principal. (Southern Cross Cement Corporation v. Cement Manufacturers Association of the Phil., G.R. No. 158540, 03 Aug 2005) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Delegation to administrative agencies – when the delegation relates merely to administrative implementation that may call for some degree of discretionary powers under sufficient standards expressed by law or implied from the policy and purpose of the act. (Cervantes v. Auditor General, G.R. No. L-4043, 26 May 1952; Maceda v. Macaraig, G.R. No. 88291, 08 June 1993) 34 General Principles of Taxation complex were actually divisible contracts which each had different stages, with each stage having different tax implication. (CIR v. Marubeni, G.R. No. 137377, 18 Dec. 2001) TERRITORIAL Taxation may be exercised only within the territorial jurisdiction of the taxing authority. (61 Am. Jur. 88) Within its territorial jurisdiction, the taxing authority may determine the “place of taxation” or “tax situs.” (2013 BAR) Q: XYZ Air, a 100% foreign-owned airline company based and registered in Netherlands, is engaged in the international airline business and is a member signatory of the International Air Transport Association. Its commercial airplanes neither operate within the Philippine territory nor as its service passengers embarking from Philippine airports. Nevertheless, XYZ Air is able to sell its airplane tickets in the Philippines through ABC Agency, its general agent in the Philippines. As XYZ Air’s ticket sales, sold through ABC Agency for the year 2013, amounted to P5,000,000, the BIR assessed XYZ Air deficiency income taxes on the ground that the income from the said sales constituted income derived from sources within the Philippines. GR: The taxing power of a country is limited to persons and property within and subject to its jurisdiction. Rationale: 1. Taxation is an act of sovereignty which could only be exercised within a country’s territorial limits. 2. This is based on the theory that taxes are paid for the protection and services provided by the taxing authority which could not be provided outside the territorial boundaries of the taxing State. Aggrieved, XYZ Air filed a protest, arguing that, as a non-resident foreign corporation, it should only be taxed for income derived from sources within the Philippines. However, since it only derived income from serviced passengers outside the Philippine territory, the situs of the income from its ticket sales should be considered outside the Philippines. Hence, no income tax should be imposed on the same. XPNs: 1. Where tax laws operate outside territorial jurisdiction (e.g., taxation of resident citizens on their incomes derived abroad) 2. Where tax laws do not operate within the territorial jurisdiction of the State a. When exempted by treaty obligations; or b. When exempted by international comity. Is XYZ Air’s protest meritorious? Explain. (2019 BAR) Principles Relative to Territorial Jurisdiction 1. As the State can exercise its power to tax within its territorial jurisdiction, it can tax sales within foreign military zones as these military zones are not considered foreign territory. (Reagan v. CIR, G.R. No. L-26379, 27 Dec. 1969) 2. The State can tax a transaction if the substantial elements of the contract are situated in the Philippines. (Manila Electric Company v. Yatco, G.R. No. 45697, 01 Nov. 1939) 3. Turnkey contracts relating to the installation of a wharf complex and an ammonia storage A: NO. Under the law, an international air carrier with no landing rights in the Philippines is a resident foreign corporation if its local sales agent sells and issues tickets in its behalf. An offline international carrier selling package tickets in the Philippines through a local general sales agent, is considered a resident foreign corporation doing business in the Philippines. As such, it is taxable on income derived from sources within the Philippines and not on Gross Philippines Billings subject to any applicable tax treaty. (Air Canada v. CIR, G.R. No. 169507, 11 Jan. 2016) 35 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law 3. INTERNATIONAL COMITY It refers to the respect accorded by nations to each other because they are sovereign equals. Thus, the property or income of a foreign state may not be the subject of taxation by another State. Principles Relative to International Comity Under international comity, a state must recognize the generally-accepted tenets of international law, among which are the principles of sovereign equality among states and of their freedom from suit without their consent, that limits that authority of a government to effectively impose taxes in a sovereign state and its instrumentalities, as well as in its property held and activities undertaken in that capacity. (2009 BAR) 1. The obligation to comply with a tax treaty must take precedence over an administrative issuance. An administrative issuance such as a Revenue Memorandum Order (RMO) should not operate to divest entitlement to a relief granted by a tax treaty. (Ingles, 2021) 2. However, tax exemptions based on international agreements are still subject to the rule “laws granting exemption are construed strictly against the taxpayer”. (Sea-Land Services, Inc. v. Court of Appeals, G.R. No. 122605, 30 Apr. 2001) 3. An Exchange of Notes is considered an executive agreement binding on states. Hence, an Exchange of Notes between the Philippines and Japan which states that the Philippine Government will assume taxes initially to be paid by Japanese firms should be respected. (Mitsubishi Corporation-Manila Branch v. CIR, G.R. No. 175772, 05 June 2017) Note: Tax treaties are entered into to minimize the harshness of international double taxation. (Ingles, 2021) Tax treaties are entered into "to reconcile the national fiscal legislations of the contracting parties and, in turn, help the taxpayer avoid simultaneous taxations in two different jurisdictions." [They] are entered into to minimize, if not eliminate, the harshness of international juridical double taxation, which is why they are also known as double tax treaty or double tax agreements. (Air Canada v. Commissioner of Internal Revenue, G.R. No. 169507, 11 Jan. 2016) Q: ABCD Corporation (ABCD) is a domestic corporation with individual and corporate shareholders who are residents of the United States. For the 2nd quarter of 1983, these U.S.based individual and corporate stockholders received cash dividends from the corporation. The corresponding withholding tax on dividend income – 30% for individual and 35% for corporate non-resident stockholders – was deducted at source and remitted to the BIR. International Comity as a Limitation on the Power to Tax The Constitution expressly adopted the generally accepted principles of international law as part of the law of the land. (Sec. 2, Art. II, 1987 Constitution) Rationale: 1. Par in parem non habet imperium. As between equals, there is no sovereign. (Doctrine of Sovereign Equality) 2. The concept that when a foreign sovereign enters the territorial jurisdiction of another, it does not subject itself to the jurisdiction of the other. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES The rule of international law that a foreign government may not be sued without its consent so that it is useless to impose a tax which could not be collected. On May 15, 1984, ABCD filed with the Commissioner of Internal Revenue a formal claim for refund, alleging that under the RP-US Tax Treaty, the deduction withheld at source as tax on dividends earned was fixed at 25% of said income. Thus, ABCD asserted that it overpaid the withholding tax due on the cash dividends given to its non-resident stockholders in the U.S. 36 General Principles of Taxation The Commissioner denied the claim. Principle of Pacta Sunt Servanda in Taxation On January 17, 1985, ABCD filed a petition with the Court of Tax Appeals (CTA) reiterating its demand for refund. Observance of any treaty obligation binding upon the government of the Philippines is anchored on the constitutional provision that the Philippines “adopts the generally accepted principles of international law as part of the law of the land. (Sec. 2, Art. II, 1987 Constitution) Is the contention of ABCD Corporation correct? Why or why not? (2009 BAR) A: YES. The provision of a treaty must take precedence over and above the provisions of the local taxing statute consonant with the principle of international comity. Tax treaties are accepted limitations to the power of taxation. Thus, the CTA should apply the treaty provision so that the claim for refund representing the difference between the amount actually withheld and paid to the BIR and the amount due and payable under the treaty should be granted. (Hawaiian-Philippine Company v. CIR, CTA Case No. 3887, 31 May 1988) Pacta sunt servanda is a fundamental international law principle that requires agreeing parties to comply with their treaty obligations in good faith. Hence, the application of the provisions of the NIRC must be subject to the provisions of tax treaties entered into by the Philippines with foreign countries. (Air Canada vs. CIR, G.R. No. 169507, 11 Jan. 2016) Q: In 2011, the Commissioner of the U.S. Internal Revenue Service (IRS) requested in writing the Commissioner of Internal Revenue to get the information from a bank in the Philippines, regarding the deposits of a U.S. Citizen residing in the Philippines, who is under examination by the officials of the US IRS, pursuant to the USPhilippine Tax Treaty and other existing laws. Should the BIR Commissioner agree to obtain such information from the bank and provide the same to the IRS? Explain your answer. (2012 BAR) GR: The government is exempt from tax. EXEMPTION FROM TAXATION OF GOVERNMENT ENTITIES Rationale: Otherwise, we would be “taking money from one pocket and putting it in another.” (Board of Assessment Appeals of Laguna v. CTA, G.R. No. L18125, 31 May 1963) XPN: When it chooses to tax itself. Nothing prevents Congress from decreeing that even instrumentalities or agencies of the government performing government functions may be subject to tax. Where it is done precisely to fulfill a constitutional mandate and national policy, no one can doubt its wisdom. (MCIAA v. Marcos, G.R. No. 120082, 11 Sept. 1996) A: YES. The Commissioner should agree to the request pursuant to the principle of international comity. The Commissioner of the Internal Revenue has the authority to inquire into bank deposit accounts and related information held by financial institutions of a specific taxpayer subject of a request for the supply of tax information from a foreign tax authority pursuant to an international convention or agreement to which the Philippines is a signatory or party of. (Sec 3, R.A. No. 10021 or Exchange of Information on Tax Matters Act) Since sovereignty is absolute and taxation is an act of high sovereignty, the State, if so minded, could tax itself, including its political subdivisions. (Maceda v. Macaraig, G.R. No. 88291, 08 June 1993) National Government is Exempt from Local Taxation If the taxing authority is the LGU, R.A. No. 7160 expressly prohibits LGUs from levying tax on the National Government, its agencies and instrumentalities and other LGUs. 37 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law “SEC. 133. Common Limitations on the Taxing Powers of Local Government Units. — Unless otherwise provided herein, the exercise of the taxing powers of provinces, cities, municipalities, and barangays shall not extend to the levy of the following: xxx In MIAA v. CA, G.R. No. 155650, 20 July 2006, MIAA's Airport Lands and Buildings are exempt from real estate tax imposed by local governments. Being an instrumentality of the national government, it is exempt from local taxation. Also, the real properties of MIAA are owned by the Republic of the Philippines and thus exempt from real estate tax. (o) Taxes, fees or charges of any kind on the National Government, its agencies and instrumentalities and local government units.” Note: However, while government instrumentalities are exempt from real property taxes, government-owned or controlled corporations are not exempt from real property taxes. (MIAA v. CA, G.R. No. 155650, 20 July 2006) Q: PAGCOR is a duly created government instrumentality by virtue of PD No. 1869. Under its Charter, no form of tax or charge shall attach in any way to the earnings of PAGCOR, except a Franchise Tax of 5% of the gross revenue or earnings derived from its operation under this Franchise. Further, such tax shall be in lieu of all kinds of taxes, levies, fees, or assessments of any kind. The CIR issued an assessment against PAGCOR for deficiency income tax, among others, on the ground that PAGCOR is no longer exempt from the payment of income taxes because its income tax exemption has been effectively withdrawn by the amendments to the 1997 NIRC introduced by RA No. 9337. Is the contention of CIR correct? Agency of the Government It refers to any of the various units of the government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein. Taxability of Agencies of Government 1. Performing governmental functions – tax exempt unless expressly taxed 2. Performing proprietary functions – subject to tax unless expressly exempted A: NO. PAGCOR's income from gaming operations is subject only to 5% franchise tax under PD No. 1869, as amended, while its income from other related services is subject to corporate income tax pursuant to PD No. 1869, as amended, in relation to RA No. 9337. In PAGCOR v. BIR, the Court En Banc clarified that RA No. 9337 did not repeal the tax privilege granted to PAGCOR under PD No. 1869, with respect to its income from gaming operations. What RA No. 9337 withdrew was PAGCOR's exemption from corporate income tax on its income derived from other related services, previously granted under Section 27 (C) of RA No. 8424. (PAGCOR v. CIR, G.R. No. 210689-90, 210704 & 210725 22 Nov. 2017, J. Caguioa) Instrumentality of the Government It refers to any agency of national government, not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually through charter. An instrumentality is neither a stock or a non-stock corporation and it performs governmental or public functions. (Philippine Fisheries Development Authority v. CA, G.R. No. 169836, 31 July 2007) Q: Is PEZA a government instrumentality or a GOCC? Is it exempt from real property taxation? Taxability of Instrumentalities of Government A: PEZA is an instrumentality of the government. It is not integrated within the department framework but is an agency attached to the Department of A government instrumentality falls under Sec. 133(o) of the LGC, which states: UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 38 General Principles of Taxation instrumentality which is deemed exempt. Trade and Industry. PEZA is also vested with special functions or jurisdiction by law. Congress created the PEZA to operate, administer, manage, and develop special economic zones in the Philippines. Although a body corporate vested with some corporate powers, the PEZA is not a GOCC that is taxable for real property taxes because it was not organized as a stock or non-stock corporation. Note: The Light Rail Transit Authority (LRTA) is also exempt as it is a government instrumentality vested with corporate powers. (LRTA v. Quezon City, G.R. No. 221626, 09 Oct. 2019) Government-Owned Corporation (GOCC) Being an instrumentality of the national government, it cannot be taxed by LGUs. (City of Lapu-Lapu v. PEZA, G.R. No. 184203, 26 Nov. 2014) and -Controlled It refers to any agency: Q: Philippine National Railways (PNR) operates the rail transport of passengers and goods by providing train stations and freight customer facilities from Tutuban, Manila to the Bicol Province. As the operator of the railroad transit, PNR administers the land, improvements and equipment within the main station in Tutuban, Manila. Invoking Sec. 193 of the LGC expressly withdrawing the tax exemption privileges of government-owned and controlled corporations, the City Government of Manila issued Final Notices in the amount of P624,000,000 for the taxable years 2006 to 2010. On the other hand, PNR, seeking refuge under the principle that the government cannot tax itself, insisted that the PNR lands and buildings are owned by the Republic. 1. organized as a stock or non-stock corporation; 2. vested with functions relating to public needs whether governmental or proprietary in nature; and 3. owned by the Government directly or through its instrumentalities either wholly, or, where applicable as in the case of stock corporations, to the extent of at least fifty-one (51) percent of its capital stock. NOTE: Government instrumentality may include a GOCC and there may be “instrumentality” that does not qualify as GOCC. Taxability of GOCCs GOCCs perform proprietary functions. Hence, they are subject to taxation. Is the PNR exempt from real property tax? Explain your answer. (2016 BAR) GOCC are taxable entities, and they are not exempt from BIR assessment and collection, unless their charter or the law creating them provides otherwise. (2017 BAR) A: YES. The properties of PNR are properties of public dominion owned by the Republic of the Philippines, which are exempt from real property tax. (Sec. 234, LGC) NOTE: Upon enactment of the LGC, any exemption from real property tax given to all persons, whether natural or juridical, including all GOCCs, were withdrawn. (Ingles, 2021) In MIAA v. CA, G.R. No. 155650, 20 July 2006, the Supreme Court held that MIAA is a government instrumentality and is not a government-owned and controlled corporation, therefore the real properties owned by MIAA are not subject to real estate tax, except when MIAA leases its real property to private entities. In the said case, PNR was cited as an example of such government However, certain corporations have been granted exemption under Sec. 27(c) of R.A. 8424 (Tax Reform Act of 1997) as amended by R.A. 9337 (Value Added Tax Reform Law), and further amended by CREATE Act which took effect on 01 July 2005, to wit: 39 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law 1. 2. 3. 4. 5. (Dimaampao, 2021) Government Service Insurance System (GSIS); Social Security System (SSS); Philippine Health Insurance Corporation (PhilHealth); and Local Water Districts (LWDs). Home Development Mutual Fund Pursuant to the social justice policy, this prohibition reflects the tender regard of the law for the millions of our impoverished masses who cannot afford even the nominal cost of a poll tax like the basic community tax certificate. (Cruz, 2015) NOTE: Philippine Charity Sweepstakes Office (PCSO) was removed by TRAIN and replaced by LWDs. UNIFORMITY AND EQUALITY OF TAXATION The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. (Sec. 28(1), Art. VI, 1987 Constitution) R.A. No. 9337 deleted Philippine Amusement and Gaming Corporation (PAGCOR) from the list of exempt GOCCs. (PAGCOR v. BIR, G.R. No. 215427, 10 Dec. 2014) Q: Explain the following concepts in taxation: a. Uniformity, b. Equitability, and c. Equality. CONSTITUTIONAL LIMITATIONS Taxation, being inherent in sovereignty, need not be clothed with any constitutional authority for it to be exercised by the sovereign state. Instead, constitutional provisions are meant and intended more to regulate and define, rather than to grant, the power emanating therefrom. A: a. Uniformity – It means that all taxable articles or kinds of property of the same class shall be taxed at the same rate. A tax is considered uniform when it operates with the same force and effect in every place where the subject is found. (Churchill v. Concepcion, G.R. No. 115722, 22 Sept. 1916) PROVISIONS DIRECTLY AFFECTING TAXATION PROHIBITION AGAINST IMPRISONMENT FOR NON-PAYMENT OF POLL TAX Different articles may be taxed at different amounts provided that the rate is uniform on the same class everywhere, with all people at all times. Accordingly, singling out one particular class for taxation purposes does not infringe the requirement of uniformity. BASIS: No person shall be imprisoned for debt or non-payment of a poll tax. (Sec. 20, Art. III, 1987 Constitution) A poll tax is one levied on persons who are residents within the territory of the taxing authority without regard to their property, business, or occupation. Thus, only the basic community tax under the LGC could qualify as a poll tax, and the non-payment of other (additional) taxes imposed, not being in the nature of poll taxes, may validly be subjected by law to imprisonment. (Vitug, 2006) b. Equitability – Taxation is said to be equitable when its burden falls on those better able to pay. c. Valid and Reasonable Classification In other words, while a person may not be imprisoned for non-payment of a cedula or poll tax, he may be imprisoned for non-payment of other kinds of taxes where the law so expressly provides. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Equality – It is accomplished when the burden of the tax falls equally and impartially upon all the persons and property subject to it. Uniformity does not call for perfect uniformity or perfect equality. Reasonable classifications do not 40 General Principles of Taxation Constitution. While singling out a class for taxation purposes will not infringe upon this constitutional limitation (Shell v. Vano, G.R. No. L-6093, 24 Feb. 1954), singling out a taxpayer from a class will no doubt transgress the constitutional limitation. (Ormoc Sugar Co. Inc., v. Treasurer of Ormoc City, G.R. No. L-23794, 17 Feb. 1968) Treating doctors and lawyers as a different class of professionals will not comply with the requirements of a reasonable, hence valid classification, because the classification is not based upon substantial distinction which makes real differences. The classification does not comply with the requirement that it should be germane to the purpose of the law either. (PepsiCola Bottling Co., Inc. v. City of Butuan, G.R. No. L22814, 28 Aug. 1968) violate uniformity and equality of taxation. (Sison v. Ancheta, G.R. No. L-59431, 25 July 1984) However, the classification must be valid and reasonable, according to the rules of equal protection. If the classification is unreasonable, then the rule on uniformity will be violated. (Pepsi-Cola Bottling v. City of Butuan, G.R. No. L022814, 28 Aug. 1968) The Constitution is also not violated when a certain tax is not imposed in other jurisdictions, for the Constitution does not require that the taxes for the same purpose should be imposed in different territorial subdivisions at the same time. (Villanueva v. City of Iloilo, G.R. No. L-26521, 28 Dec. 1968) Q: Heeding the pronouncement of the President that the worsening traffic condition in the metropolis was a sign of economic progress, the Congress enacted R.A. No. 10701, also known as An Act Imposing a Transport Tax on the Purchase of Private Vehicles. For classification to be valid, the following requisites must concur: (B-A-G-S) 1. 2. 3. 4. It must apply Both to present and future conditions; It must apply to All members of the same class; It must be Germane to the purposes of the law; and It must be based on Substantial distinctions. (Ormoc Sugar Company, Inc. v. The Treasurer of Ormoc City, G.R. No. L-23794, 17 Feb. 1968) Under R.A. No. 10701, buyers of private vehicles are required to pay a transport tax equivalent to 5% of the total purchase price per vehicle purchased. R.A. No. 10701 provides that the Land Transportation Office (LTO) shall not accept for registration any new vehicles without proof of payment of the 5% transport tax. R.A. No. 10701 further provides that existing owners of private vehicles shall be required to pay a tax equivalent to 5% of the current fair market value of every vehicle registered with the LTO. However, R.A. No. 10701 exempts owners of public utility vehicles and the Government from the coverage of the 5% transport tax. Q: A law was passed exempting doctors and lawyers from the operation of the value-added tax. Other professionals complained and filed a suit questioning the law for being discriminatory and violative of the equal protection clause of the Constitution since complainants were not given the same exemption. Is the suit meritorious or not? Reason briefly. (2004 BAR) A group of private vehicle owners sued on the ground that the law is unconstitutional for contravening the Equal Protection Clause of the Constitution. A: YES. The VAT is designed for economic efficiency. Hence, should be neutral to those who belong to the same class. Professionals are a class of taxpayers by themselves who, in compliance with the rule of equality of taxation, must be treated alike for tax purposes. Exempting lawyers and doctors from a burden to which other professionals are subjected will make the law discriminatory and violative of the equal protection clause of the Rule on the constitutionality and validity of R.A. No. 10701. (2017 BAR) A: R.A. NO. 10701 IS VALID AND CONSTITUTIONAL. A levy of tax is not 41 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law unconstitutional because it is not intrinsically equal and uniform in its operation. The uniformity rule does not prohibit classification for purposes of taxation. (British American Tobacco v. Camacho, G.R. No. 163583, 15 Apr. 2009) to the achievement of the end purpose of the law, are not categorized further. Instead, they are similarly treated both in privileges granted and obligations required. (Tiu v. CA, G.R. No. 127410, 20 Jan. 1999) Uniformity in taxation, like the kindred concept of equal protection, merely requires that all subjects or objects of taxation, similarly situated, are to be treated alike both in privileges and liabilities. Uniformity does not forfend classification as long as: (1) the standards that are used therefor are substantial and not arbitrary; (2) the categorization is germane to achieve the legislative purpose; (3) the law applies, all things being equal, to both present and future conditions; and (4) the classification applies equally well to all those belonging to the same class. (Rufino R. Tan v. Del Rosario, Jr., G.R. No. 109289, 03 Oct. 1994) All of the foregoing requirements of a valid classification having been met and those which are singled out are a class in themselves, there is no violation of the “Equal Protection Clause” of the Constitution. Q: Does the 20% Sales Discount for Senior Citizens and Persons with Disabilities violates the constitutional right of equal protection clause? A: NO. The equal protection clause is not infringed by legislation which applies only to those falling within a specified class. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from another. (Southern Luzon Drug Corporation v. DSWD, G.R. No. 199669, 25 Apr. 2017) Progressive Taxation Taxation is progressive when tax rate increases as the income of the taxpayer increases. It is based on the principle that those who are able to pay more should shoulder the bigger portion of the tax burden. Q: An Executive Order was issued pursuant to law granting tax and duty incentives only to businesses and residents within the “secured area” of the Subic Economic Special Zone, and denying said incentives to those who live within the Zone but outside such “secured area”. Is the constitutional right of equal protection of the law violated by the Executive Order? Explain. (2000 BAR) Q: Does the Constitution prohibit regressive taxes? A: NO. The Constitution does not really prohibit the imposition of regressive taxes. What it simply provides is that Congress shall evolve a progressive system of taxation. A: NO. Equal protection of the law clause is subject to reasonable classification. Classification, to be valid, must (1) rest on substantial distinctions, (2) be germane to the purpose of the law, (3) not be limited to existing conditions only, (4) apply equally to all members of the same class. Meaning of “Evolve” as Used in the Constitution The constitutional provision has been interpreted to mean simply that "direct taxes are to be preferred and as much as possible, indirect taxes should be minimized.” The mandate of Congress is not to prescribe but to evolve a progressive tax system. This is a mere directive upon Congress, not a justiciable right or a legally enforceable one. We cannot avoid regressive taxes but only minimize them. (Tolentino v. Secretary of Finance, G.R. No. 115455, 30 Oct. 1995) There are substantial differences between big investors being enticed to the “secured area” and the business operators outside in accord with the equal protection clause that does not require territorial uniformity of laws. The classification applies equally to all the resident individuals and businesses within the “secured area". The residents, being in like circumstances to contributing directly UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 42 General Principles of Taxation 2. Note: VAT is admittedly regressive because it is imposed on persons regardless of income. However, it is still valid as the Constitution’s mandate is simply to evolve a progressive system of taxation. In any case, the VAT system minimizes the regressive effects by providing zero-rated transactions. (Abakada Guro Party List v. Ermita, G.R. No. 168056, 15 Sept. 2005) GRANT BY CONGRESS OF AUTHORITY TO THE PRESIDENT TO IMPOSE TARIFF RATES Assuming there is a conflict between the specific limitation in the Constitution and the general executive power of control and supervision, the former prevails in the specific instance of safeguard measures such as tariffs and imposts and would thus serve to qualify the general grant to the President of the power to exercise control and supervision over his/her subalterns. (Southern Cross Cement Corporation v. Cement Manufacturers Association of the Phil., G.R. No. 158540, 03 Aug. 2005) 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. (Sec. 28(2), Art. VI, 1987 Constitution) Flexible Tariff Clause 3. This clause provides the authority given to the President to adjust tariff rates under Sec. 1608 of R.A. No. 10863, known as Customs Modernization and Tariff Act (CMTA) of 2016. Within the framework of national development program. PROHIBITION AGAINST TAXATION OF RELIGIOUS, CHARITABLE ENTITIES, AND EDUCATIONAL ENTITIES Requisites on the Authority of the President in Imposing Tax 1. Subject to Congressional limits and restrictions – the authorization to the President can be exercised only within the specified limits set in the law and is further subject to limitations and restrictions which Congress may impose. Consequently, if Congress specifies that the tariff rates should not exceed a given amount, the President cannot impose a tariff rate that exceeds such amount. Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. (Sec. 28(3), Art. VI, 1987 Constitution) Delegated by Congress through a law – the authorization granted to the President must be embodied in a law. Hence, the justification cannot be supplied simply by inherent executive powers. Q: What is the coverage of tax exemption? It is Congress which authorizes the President to impose tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts. Thus, the authority cannot come from the Finance Department, the National Economic Development Authority, or the World Trade Organization, no matter how insistent or persistent these bodies may be. (Southern Cross Cement Corporation v. Cement Manufacturers Association of the Phil., G.R. No. 158540, 03 Aug. 2005) A: The exemption only applies to real property tax. (Lladoc v. CIR, G.R. No. L-19201, 16 June 1965) Accordingly, a conveyance of such exempt property can be subject to transfer taxes. Properties Exempt under the Constitution from the Payment of Property Taxes: 1. 2. 43 Charitable institutions; Churches and parsonages or convents UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law 3. 4. 5. Rules on Taxation of Non-Stock Corporations for Charitable and Religious Purposes appurtenant thereto; Mosques; Non-profit cemeteries; and All lands, buildings, and improvements actually, directly and exclusively used for religious, charitable or educational purposes shall be exempt from taxation. (Sec. 28(3), Art. VI, 1987 Constitution) 1. For purposes of income taxation a. Meaning of “Charitable” as Used in the Constitution It is not restricted to relief of the poor or sick. The test whether an enterprise is charitable or not is whether it exists to carry out a purpose recognized in law as charitable or whether it is maintained for gain, profit, or private advantage. (Lung Center of the Philippines v. Quezon City, G.R. No. 144104, 29 June 2004) However, the income of whatever kind and character from any of their properties, real or personal, or from any of their activities for profit regardless of the disposition made of such income, shall be subject to tax. (Sec. 30, NIRC) NOTE: An organization may be considered as non-profit if it does not distribute any part of its income to stockholders or members. (CIR v. St. Luke’s Medical Center, Inc., G.R. No. 195909, 26 Sept. 2012) In addition, an organization must meet the substantive test of charity. Charity is essentially a gift to an indefinite number of persons which lessens the burden of government. In other words, charitable institutions provide for free goods and services to the public which would otherwise fall on the shoulders of government. (CIR v. St. Luke’s Medical Center, Inc., G.R. No. 195909, 26 Sept. 2012) b. Meaning of “Actual, Direct and Exclusive Use of the Property” as Used in the Constitution Donations received by religious, charitable, and educational institutions are considered as income but not taxable income as they are items of exclusion. (Sec. 32(B)(3), NIRC) On the part of the donor, such donations are deductible expense provided that no part of the income of which inures to the benefit of any private stockholder or individual in an amount not exceeding 10% in case of individual, and 5% in case of a corporation, of the taxpayer’s taxable income derived from trade or business or profession. (Sec. 34 (H), NIRC) It is the direct, immediate, and actual application of the property itself to the purposes for which the charitable institution is organized. “Exclusive” is defined as possessed and enjoyed to the exclusion of others; debarred from participation or enjoyment; and “exclusively” is defined, “in a manner to exclude; as enjoying a privilege exclusively.” If real property is used for one or more commercial purposes, it is not exclusively used for the exempted purposes but is subject to taxation. NOTE: Donations to accredited nongovernment organizations, i.e., organized and operated exclusively for scientific, research, educational, character-building and youth and sports development, health, social welfare, cultural or charitable purposes, or a combination thereof, are NOTE: It is the actual use of the property and not the use of the income from the real property that is determinative of whether the property is used for tax-exempt purposes. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES The income of non-stock corporation or association organized and operated exclusively for religious and charitable purposes, no part of which inures to the benefit of any member, organizer, officer, or any specific person, shall be exempt from tax. (Sec. 30(E), NIRC) 44 General Principles of Taxation Under the 1987 Constitution, it must be proved that the properties are actually, directly, and exclusively used for the purpose of the institution for the exemption to be granted. (Sababan, 2008) deductible in full. (Sec. 34(H)(2)(c), NIRC) 2. For purposes of estate tax Donations in favor of charitable institutions are generally not subject to tax; Provided, however, that not more than 30% of the said bequests, devises, legacies, or transfers shall be used by such institutions for administration purposes. (Sec. 87(D), NIRC) 3. Tax-Exempt Corporations and Organizations For purposes of donor’s tax Donations in favor of charitable and religious institutions are generally exempt from tax; Provided, however, that not more than 30% of the said donations shall be used by such institutions for administration purposes. (Sec. 101, NIRC) A. Labor, agricultural or horticultural organization not organized principally for profit; B. Mutual savings bank not having a capital stock represented by shares, and cooperative bank without capital stock organized and operated for mutual purposes and without profit; A beneficiary society, order or association, operating for the exclusive benefit of the members such as a fraternal organization operating under the lodge system, or mutual aid association or a non-stock corporation organized by employees providing for the payment of life, sickness, accident, or other benefits exclusively to the members of such society, order, or association, or nonstock corporation or their dependents; C. Summary of Rules on Exemption CRITERIA SEC. 28(3), ART. VI, 1987 CONSTITUTION Coverage of constitutional provision Covers real property tax only; the income of whatever kind and nature from any of their properties, real or personal, or from any of their activities for profit regardless of the disposition made of such income shall be subject to tax Requisite to avail of this exemption Property must be “actually, directly, and exclusively used” by religious, charitable, and educational institutions Test for the grant of this exemption Use of the property for such purposes, not the ownership thereof NOTE: The doctrine of exemption by incidental purpose is no longer applicable. Such doctrine is only applicable to cases where the cause of action arose under the 1935 Constitution. 45 D. Cemetery company owned and operated exclusively for the benefit of its members; E. Non-stock corporation or association organized and operated exclusively for religious, charitable, scientific, athletic, or cultural purposes, or for the rehabilitation of veterans, no part of its net income or asset belongs to or inures to the benefit of any member, organizer, officer or any specific person; F. Business league, chamber of commerce, or board of trade, not organized for profit and no part of the net income of which inures to the benefit of any private stock-holder, or individual; G. Civic league or organization not organized for profit but operated exclusively for the promotion of social welfare; H. Government educational institution; UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law I. J. while Sec. 4(3), Art. XIV applies solely to non-stock, non-profit educational institutions. Farmers' or other mutual typhoon or fire insurance company, mutual ditch or irrigation company, mutual or cooperative telephone company, or like organization of a purely local character, the income of which consists solely of assessments, dues, and fees collected from members for the sole purpose of meeting its expenses; and Hence, in this case, we should apply its literal interpretation – “solely” – in consonance with the principle of strictissimi juris. The word “exclusively” indicates that the provision is mandatory. (Dimaampao, 2021) Sec. 4(3), Art. XIV and Sec. 28(3), Art. VI of the 1987 Constitution Distinguished Farmers', fruit growers', or like association organized and operated as a sales agent for the purpose of marketing the products of its members and turning back to them the proceeds of sales, less the necessary selling expenses on the basis of the quantity of produce finished by them. (Sec. 30, NIRC; RMO No. 038-19) SEC. 4(3), ART. XIV SEC. 28(3), ART. VI As to Grantee NOTE: However, the income of whatever kind and character of the foregoing organizations from any of their properties, real or personal, or from any of their activities conducted for profit regardless of the disposition made of such income, shall be subject to tax. (Sec. 30, NIRC) Non-stock, non-profit educational institution PROHIBITION AGAINST TAXATION OF NONSTOCK, NON-PROFIT EDUCATIONAL INSTITUTIONS 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 As to Tax Exemption Granted All taxes and duties All revenues and assets of non-stock, non-profit educational institutions used actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties. (Sec. 4(3), Art. XIV, 1987 Constitution) Real property tax Meaning of “Actually, Directly, and Exclusively Used” The tax exemption granted by the Constitution to non-stock, non-profit educational institutions is conditioned only on the actual, direct, and exclusive use of their assets, revenues, and income for educational purposes. A plain reading of the 1987 Constitution would show that Sec. 4(3), Art. XIV does not require that the revenues and income must have also been sourced from educational activities or activities related to the purposes of an educational institution. The phrase “all revenues” is unqualified by any reference to the source of revenues. The use of the term “actually, directly, and exclusively used” referring to religious institutions cannot be applied to this article. The provision of Sec. 28(3), Art. VI of the 1987 Constitution applies to charitable, religious, and educational institutions; NOTE: The test to determine exemption is the use of both the revenues and assets. Hence, when the revenues are actually, directly and exclusively used for educational purposes, the non-stock, non-profit educational institution shall be exempt from Subject to conditions prescribed by law, all grants, endowments, donations, or contributions used actually, directly, and exclusively for educational purposes shall be exempt from tax. (Sec. 4(4), Art. XIV, 1987 Constitution) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 46 General Principles of Taxation purposes. The test of exemption from taxation is the use of the property for purposes mentioned in the Constitution. The leased portion of the building may be subject to real property tax since such lease is for commercial purposes, thereby, it removes the asset from the property tax exemption granted under the Constitution. (CIR vs. De La Salle University, Inc., G.R. No. 196596, 09 Nov. 2016) income tax, VAT, and local business tax. The revenues do not need to come from educational activities, as long as it used for educational purposes. (La Sallian Educational Innovators Foundation v. CIR, G.R. No. 202792, 27 Feb. 2019) And when the assets are actually, directly, and exclusively used for educational purposes, the nonstock, non-profit educational institution shall be exempt from real property tax. (CIR vs. De La Salle University, Inc., G.R. No. 196596, 09 Nov. 2016) B. NO. The income earned is not subject to income tax provided that the revenues are used actually, directly, and exclusively for educational purposes as provided under Sec. 4(3), Art. XIV of the 1987 Constitution. The requisites for availing the tax exemption under Sec. 4(3), Art. XIV are as follows: (1) the taxpayer falls under the classification nonstock, non-profit educational institution; and (2) the income it seeks to be exempted from taxation is used actually, directly and exclusively for educational purposes; thus, so long as the requisites are met, the revenues are exempt from tax. (CIR vs. De La Salle University, Inc., G.R. Nos. 196596, 198841 and 198941, 09 Nov. 2016) Income from cafeterias, canteens and bookstores located within the school premises are also exempt if they are owned and operated by the educational institution. (RMC 76-2003) Q: San Juan University is a non-stock, non-profit educational institution. It owns a piece of land in Caloocan City on which its three 3-storey school building stood. Two of the buildings are devoted to classrooms, laboratories, a canteen, a bookstore, and administrative offices. The third building is reserved as dormitory for student athletes who are granted scholarships for a given academic year. In 2017, San Juan University earned income from tuition fees and from leasing a portion of its premises to various concessionaires of food, books, and school supplies. MAJORITY VOTE OF CONGRESS FOR GRANT OF TAX EXEMPTION No law granting any tax exemption shall be passed without the concurrence of a majority of all the members of Congress. (Sec. 28(4), Art. VI, 1987 Constitution) A. Can the City Treasurer of Caloocan City collect real property taxes on the land and building of San Juan University? Explain your answer. The inherent power of the State to impose taxes carries with it the power to grant tax exemptions. B. Is the income earned by San Juan University for the year 2017 subject to income tax? Explain your answer. (2017 BAR) Granting of Exemptions Exemptions may be created: 1. By the Constitution; or 2. By statute, subject to limitations as the Constitution may provide. A: A. YES. The City Treasurer can collect real property taxes but on the leased portion. Sec. 4(3), Art. XIV of the 1987 Constitution provides that a non-stock, non-profit educational institution shall be exempt from taxes and duties only if the same are used actually, directly, and exclusively for educational Required Vote for Grant of Tax Exemption In granting tax exemptions, the absolute majority vote of all the members of Congress is required. 47 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law promotion of the sugar industry were in the nature of taxes and no implied trust was created for the benefit of sugar industries. Thus, the revenues derived therefrom are to be treated as a special fund to be administered for the purpose intended. No part thereof may be used for the exclusive benefit of any private person or entity but for the benefit of the entire sugar industry. Once the purpose is achieved, the balance, if any remaining, is to be transferred to the general funds of the government. (Vitug, 2006) (Sec. 28(4), Art. VI, 1987 Constitution) It means at least 50% plus 1 of all the members voting separately. NOTE: Hence, an exemption granted by a Presidential Proclamation and not by law is invalid. (John Hay Peoples Alternative Coalition v. Lim, G.R. No. 119775, 24 Oct. 2003) Tax amnesties, tax condonations, and tax refunds are in the nature of tax exemptions. Such being the case, a law granting tax amnesties, tax condonations, and tax refunds requires the vote of an absolute majority of the members of the Congress. LINE-ITEM VETO The President shall have the power to veto any particular item or items in an appropriation, revenue or tariff bill but the veto shall not affect the item or items which he does not object. (Sec. 27(2), Art. VI, 1987 Constitution) A tax amnesty, being a general pardon or intentional overlooking by the State of its authority to impose penalties otherwise guilty of evasion or violation of a revenue or tax law, partakes of an absolute forgiveness or waiver by the Government of its right to collect what otherwise would be due it, and in this sense, prejudicial thereto, particularly to give tax evaders, who wish to relent and are willing to reform a chance to do so and thereby become part of the new society with a clean slate. (Republic v. IAC, G.R. No. L-69344, 26 Apr. 1991) The item or items vetoed shall be returned to the Lower House of Congress together with the objections of the President. If after a reconsideration 2/3 of all the members of such House shall agree to pass the bill, it shall be sent, together with the objection, 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 a law. (Dimaampao, 2021) Required Vote for Withdrawal of such Grant of Tax Exemption NOTE: The veto power on particular items only applies to appropriation, revenue and tariff bills. Bills other than appropriation, revenue and tariff bills can only be vetoed by the President as a whole. A relative majority or plurality of votes is sufficient, that is, majority of a quorum. PROHIBITION ON USE OF TAX LEVIED FOR SPECIAL PURPOSE NON-IMPAIRMENT OF JURISDICTION OF THE SUPREME COURT All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the government. (Sec. 29(3), Art. VI, 1987 Constitution) The Supreme Court shall have the power to review, revise, reverse, modify, or affirm on appeal on certiorari as the laws or the Rules of Court may provide, final judgments or orders of lower courts in all cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (Sec. 5(2)(b), Art. VIII, 1987 Constitution) NOTE: In Gaston v. Republic Planters Bank, G.R. No. L-77194, 15 Mar. 1988, the Court ruled that the “stabilization fees” collected by the State for the UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES These jurisdictions are concurrent with the 48 General Principles of Taxation municipality within the Metropolitan Manila Area. (Sec. 277, LGC) Regional Trial Court (RTC). Thus, the petition should generally be filed with the RTC following the hierarchy of courts. However, questions on tax laws are usually filed directly with the Supreme Court as these are impressed with paramount public interest. Q: May Congress, under the 1987 Constitution, abolish the power to tax of local governments? (2003 BAR) A: NO. The Congress cannot abolish the local government’s power to tax as it cannot abrogate what is expressly granted by the fundamental law. The only authority conferred to Congress is to provide the guidelines and limitations on the local government’s exercise of the power to tax. NOTE: Sec. 30, Art. VI of the 1987 Constitution provides that “no law shall be passed increasing the appellate jurisdiction of the Supreme Court without its advice and concurrence.” The courts cannot inquire into the wisdom of a taxing act, except when there is an allegation of any violation of constitutional limitations or restrictions. The Local Government’s Power to Tax as the Most Effective Instrument to Raise the Needed Revenues The right of LGUs to collect taxes due must always be upheld to avoid severe tax erosion. This consideration is consistent with the State policy to guarantee the autonomy of the local government and the objective of the LGC that they enjoy genuine and meaningful local autonomy to empower them to achieve their fullest development as self-reliant communities and make them effective partners in the attainment of national goals. (Dimaampao, 2021) GRANT OF POWER TO THE LGUS TO CREATE ITS OWN SOURCES OF REVENUE Each LGU shall have the power to create its own sources of revenues and to levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments. (Sec. 5, Art. X, 1987 Constitution) NOTE: The power of local government units is subject to limitations as Congress may provide, i.e., the Local Government Code. (Ingles, 2021) Justification in the Delegation of Legislative Taxing Power to Local Governments Delegation of legislative taxing power to local governments is justified by the necessary implication that the power to create political corporations for purposes of local self-government carries with it the power to confer on such local government agencies the authority to tax. Q: In 2018, City X amended its Revenue Code to include a new provision imposing a tax on every sale of merchandise by a wholesaler based on the total selling price of the goods, inclusive of value-added taxes (VAT). ABC Corp., a wholesaler operating within the city, challenged the new provision based on the following contentions: (1) The new provision is a form of prohibited double taxation because it essentially amounts to City X imposing VAT which was already being levied by the national government; and (2) since the tax being imposed is akin to VAT, it is beyond the power of City X to levy the same. Local government units may, through ordinances duly approved, grant tax exemptions, incentives or reliefs under such terms and conditions as they may deem necessary. (Sec. 192, LGC) Condonation or Reduction of Tax by the President of the Philippines The President may, when public interest so requires, condone, or reduce the real property tax and interest for any year in any province or city or a Rule on ABC Corp.’s second contention. (2019 BAR) 49 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law A: On the theory that, elected as they are from the districts, the members of the House of Representatives can be expected to be more sensitive to the local needs and problems. A: ABC CORP. IS INCORRECT. Under the LGC, LGUs are empowered to enact ordinances that will aid in their revenue generation, which is in consonance with the principle of fiscal autonomy of LGUs. Although the tax to be imposed is akin to VAT, the LGU may nevertheless impose such local business tax. Q: R.A. 9337 is a consolidation of three legislative bills namely, H.B. Nos. 3555 and 3705, and S.B. No. 1950. Because of the conflicting provisions of the proposed bills, the Senate agreed to the request of the House of Representatives for a committee conference. The Conference Committee on the Disagreeing Provisions of House Bill recommended the approval of its report, which the Senate and the House of the Representatives did. ALTERNATIVE ANSWER: ABC CORP. IS INCORRECT. Under Section 133(i) of the LGC, cities may not impose percentage or value-added tax (VAT) on sales, barters or exchanges or similar transactions on goods or services “except as otherwise provided herein”. As an exception to the said rule, Section 143(b) of the LGC allows the imposition of taxes on wholesalers, distributors, or dealers in any article of commerce of whatever kind or nature for municipalities. Moreover, Section 151 of the LGC provides that cities may impose whatever the municipality is imposing. Thus, City X may levy the said tax. 1. Does R.A. 9337 violate Sec. 24, Art. VI of the Constitution on exclusive origination of revenue bills? 2. Does R.A. 9337 violate Sec. 26(2), Art. VI of the Constitution on the “NoAmendment Rule”? ORIGIN OF REVENUE AND TARIFF BILLS A: 1. NO. It was H.B. Nos. 3555 and 3705 that initiated the move for amending provisions of the NIRC dealing mainly with the VAT. Upon transmittal of said House bills to the Senate, the Senate came out with S.B. No. 1950 proposing amendments not only to NIRC provisions on the VAT but also amendments to NIRC provisions on other kinds of taxes. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments. (Sec. 24, Art VI, 1987 Constitution) What is required to originate in the House of Representatives is not the law but the revenue bill which must “originate exclusively” in the lower house. The bill may undergo such extensive changes that the result may be a rewriting of the whole. The Senate may not only concur with amendments but also propose amendments. To deny the Senate's power not only to “concur with amendments” but also to “propose amendments” would be to violate the coequality of legislative power of the two houses of Congress and in fact make the House superior to the Senate. (Tolentino v. Secretary of Finance, G.R. No. 115873, 25 Aug. 1994) Since there is no question that the revenue bill exclusively originated in the House of Representatives, the Senate was acting within its Constitutional power to introduce amendments to the House bill when it included provisions in S.B. No. 1950 amending corporate income taxes, percentage, excise and franchise taxes. Verily, Sec. 24, Art. VI of the Constitution does not contain any prohibition or limitation on the extent of the amendments that may be introduced by the Senate to the House revenue bill. The Senate can propose amendments and in fact, the amendments made are germane to the purpose of the house bills, which is to raise revenues for the government. The sections introduced by the Senate are germane to the Q: Why must appropriation, revenue, or tariff bills originate from the House of Representatives? UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 50 General Principles of Taxation subject matter and purposes of the house bills, which is to supplement our country’s fiscal deficit, among others. Thus, the Senate acted within its power to propose those amendments. 2. PROVISIONS INDIRECTLY AFFECTING TAXATION DUE PROCESS NO. The “no-amendment rule” refers only to the procedure to be followed by each house of Congress with regard to bills initiated in each of said respective houses, before said bill is transmitted to the other house for its concurrence or amendment. Verily, to construe said provision in a way as to proscribe any further changes to a bill after one house has voted on it would lead to absurdity as this would mean that the other house of Congress would be deprived of its Constitutional power to amend or introduce changes to said bill. Thus, Sec. 26(2), Art. VI of the Constitution cannot be taken to mean that the introduction by the Bicameral Conference Committee of amendments and modifications to disagreeing provisions in bills that have been acted upon by both houses of Congress is prohibited. (ABAKADA Guro v. Executive Secretary, G.R. Nos. 168056, 168207, 168461, 168463 and 168730, 01 Sept. 2005) No person shall be deprived of life, liberty, or property without due process of law. (Sec. 1, Art. III, 1987 Constitution) Requirements of Due Process in Taxation Tax laws and their enforcement must comply with substantive and procedural due process. (Ingles, 2021) Substantive Due Process The law must be: 1. Reasonable; and 2. For a public purpose. (Ingles, 2021) Procedural Due Process 1. 2. NO APPROPRIATION OR USE OF PUBLIC MONEY FOR RELIGIOUS PURPOSES There must be no arbitrariness in the assessment and collection; The prescribed rules must be followed before assessment and collection. (Ingles, 2021) Q: When is deprivation of life, liberty, and property by the government done in compliance with due process? 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. (Sec. 29(2), Art. VI, 1987 Constitution) A: If the act is done: 1. Under authority of a law that is valid, or the Constitution itself (Substantive Due Process); and 2. After compliance with fair and reasonable methods of procedure prescribed by law. (Procedural Due Process) This is in consonance with the inviolable principle of separation of the Church and State. (Sec. 6, Art. II, 1987 Constitution) Q: When may violation of due process be invoked by the taxpayer? A: The due process clause may be invoked where a taxing statute is so arbitrary that it finds no support in the Constitution, as where it can be shown to 51 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law reimbursements. RC files suit to declare the ordinance void on the ground that it is a class legislation. Will a suit prosper? (2004 BAR) amount to a confiscation of property. (Reyes v. Almanzor, G.R. Nos. L-49839-46, 26 Apr. 1991) EQUAL PROTECTION A: NO. The remission or condonation of taxes due and payable to the exclusion of taxes already collected does not constitute unfair discrimination. Each set of taxes is a class by itself and the law would be open to attack as class legislation only if all taxpayers belonging to one class were not treated alike. (Juan Luna Subdivision, Inc., v. Sarmiento, G.R. L-3538, 28 May 1952) No person shall be denied the equal protection of the laws. (Sec. 1, Art. III, 1987 Constitution) Definition It means that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and, in the liabilities, imposed. (1 Cooley 824-825; Sison Jr. v. Ancheta, G.R. No. 59431, 25 July 1984) Q: The municipality of San Isidro passed an ordinance imposing a tax on installation managers. At that time, there was only one installation manager in the municipality; thus, only he would be liable for the tax. Q: What is the “rational basis” test? Explain briefly. (2010 BAR) Is the law constitutional? (2013 BAR) A: The rational basis test is applied to gauge the constitutionality of an assailed law in the face of an equal protection challenge. It has been held that “in areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Under the rational basis test, it is sufficient that the legislative classification is rationally related to achieving some legitimate State interest. (British American Tobacco v. Camacho and Parayno, GR No. 163583, 15 Apr. 2009) A: YES. It complies with the requisites of equal protection. It is not limited to existing conditions only, as future installation managers will be subject to the tax. (Shell v. Vaño, G.R. No. L-6093, 24 Feb. 1954) Q: The City Council of Ormoc enacted Ordinance No. 4, Series of 1964 taxing the production and exportation of only centrifugal sugar. At the time of the enactment, Ormoc Sugar Co. was the only sugar central in Ormoc. Petitioner alleged that said Ordinance is unconstitutional for being violative of the equal protection clause. Is the Ordinance valid? Q: RC is a law-abiding citizen who pays his real estate taxes promptly. Due to a series of typhoons and adverse economic conditions, an ordinance is passed by MM City granting a 50% discount for payment of unpaid real estate taxes for the preceding year and the condonation of all penalties on fines resulting from the late payment. Arguing that the ordinance rewards delinquent taxpayers and discriminates against prompt ones, RC demands that he be refunded an amount equivalent to ½ of the real taxes he paid. The municipal attorney rendered an opinion that RC cannot be reimbursed because the ordinance did not provide for such UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES A: NO. Equal protection clause applies only to persons or things identically situated and does not bar a reasonable classification of the subject of legislation. The classification, to be reasonable, should be in terms applicable to future conditions as well. The taxing ordinance should not be singular and exclusive as to exclude any substantially established sugar central, of the same class as Ormoc Sugar Co., from the coverage of the tax. (Ormoc Sugar Industry v. City Treasurer of Ormoc City, G.R. No. L-23794, 17 Feb. 1968) 52 General Principles of Taxation religious information. RELIGIOUS FREEDOM Any restraints of such right can only be justified like other restraints of freedom of expression on the grounds that there is 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, 30 Apr. 1957) 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. (Sec. 5, Art. III, 1987 Constitution) Q: Is VAT registration restrictive of religious and press freedom? Q: Is the real property tax exemption of religious organizations violative of the nonestablishment clause? A: NO. The VAT registration fee, although fixed in amount, is not imposed for the exercise of a privilege but only for defraying part of the cost of registration. (Tolentino v. Secretary of Finance, G.R. No. 115873, 25 Aug. 1994) A: NO. Neither the purpose nor the effect of the exemption is the advancement or the inhibition of religion; and it constitutes neither personal sponsorship of, nor hostility to religion. (Walz v. Tax Commission, 397 US 664) NON-IMPAIRMENT CLAUSE NOTE: Under Sec. 30 of the NIRC, income of religious organizations from activities conducted for profit or from any of their property, regardless of disposition of such income is subject to income tax. (Ingles, 2021) No law impairing the obligation of contracts shall be passed. (Sec. 10, Art. III, 1987 Constitution) Q: Is the imposition of fixed license fee a prior restraint on the freedom of the press and religious freedom? When the law changes the terms of the contract by: Instances when there is Impairment of the Obligations of Contract 1. 2. 3. A: YES. As a license fee is fixed in the amount and unrelated to the receipts of the taxpayer, the license fee, when applied to a religious sect, is actually being imposed as a condition for the exercise of the sect’s right under the Constitution. (Tolentino v. Secretary of Finance, G.R. No. 115873, 25 Aug. 1994) Making new conditions; Changing conditions in the contract; or Dispenses with the conditions expressed therein. Contractual Tax Exemptions Contractual tax exemptions are: 1. Those entered into by the taxing authority; 2. Those lawfully entered under enabling laws; and 3. Wherein the government acts in its private capacity and sheds its cloak of authority and immunity. (Manila Electric Co. v. Province of Laguna, G.R. No. 131359, 05 May 1999) Q: Is a municipal license tax on the sale of bibles and religious articles by a non-stock, non-profit missionary organization at minimal profits valid? A: NO. Such imposition of license tax constitutes curtailment of religious freedom and worship which is guaranteed by the Constitution. Examples of contractual tax exemptions which are protected by the non-impairment clause are government bonds or debentures and perfected mining concession granted by the Spanish NOTE: The constitutional guarantee of the free exercise and enjoyment of religious profession and worship carries with it the right to disseminate 53 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law Q: Congress enacted R.A. No. 7716, or otherwise known as the Expanded Value-Added Tax Law, which seeks to widen the tax base of the existing VAT system and enhance its administration. Government. (Casanovas v. Hord, G.R. No. 3473, 22 Mar. 1907) Rationale for the Non-impairment Clause in relation to Contractual Tax Exemption Thereafter, petitions for the declaration of unconstitutionality were filed before the Supreme Court. One of the contentions of the petitioners is that the application of such law to existing contracts of sale of real properties by installment or on deferred payment basis would result in substantial increases in the monthly amortizations to be paid due to the 10% VAT. Hence, R.A. 7716 violates the non-impairment clause of contracts. When the State grants an exemption on the basis of a contract, consideration is presumed to be paid to the State and the public is supposed to receive the whole equivalent thereof. NOTE: This applies only where one party is the government and the other party is a private person. Rules regarding Non-impairment of Obligation and Contract with respect to the Grant of Tax Exemptions 1. Is the contention tenable? A: NO. R.A. No. 7716 does not violate the nonimpairment clause. The contention that the imposition of the VAT on the sales and leases of real estate by virtue of contracts entered into prior to the effectivity of the law would violate the constitutional provision that “No law impairing the obligation of contracts shall be passed” is without legal basis. Unilaterally granted by law If the grant of the exemption is merely a spontaneous concession by the legislature, such exemption may be revoked. NOTE: A license conferring a tax exemption can be revoked at any time since it does not confer an absolute right, even if these were granted as inducement to invest in the country. (Republic v. Caguioa, G.R. No. 168584, 15 Oct. 2007) 2. The parties to a contract cannot 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. Franchise If it is without payment of any consideration or the assumption of any new burden by the grantee, it is a mere gratuity and exemption may be revoked. 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, 25 Aug. 1994) NOTE: A franchise is likewise subject to amendment, alteration, or repeal by Congress when the public interest so requires. (Cagayan Electric Power and Light Co., Inc. v. CIR, G.R. No. L-60126, 25 Sept. 1985) 3. Q: X Corporation was the recipient in 1990 of two tax exemptions both from Congress, one law exempting the company’s bond issues from taxes and the other exempting the company from taxes in the operation of its public utilities. The two laws extending the tax exemptions were revoked by Congress before their expiry dates. Were the revocations constitutional? Bilaterally agreed upon However, if the tax exemption constitutes a binding contract and for valuable consideration, the government cannot unilaterally revoke the tax exemption. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 54 General Principles of Taxation taxing authority may determine the “place of taxation” or “tax situs.” (2013 BAR) (1997 BAR) A: YES. The exempting statutes are both granted unilaterally by Congress in the exercise of taxing powers. Since taxation is the rule and tax exemption, the exception, any tax exemptions unilaterally granted can be withdrawn at the pleasure of the taxing authority without violating the Constitution. (Mactan Cebu International Airport Authority v. Marcos, G.R. No. 120082, 11 Sept. 1996) SITUS OF TAXATION It is the place or authority that has the right to impose and collect taxes. (Commissioner of Internal Revenue v. Marubeni Corporation, G.R. No. 137377, 18 Dec. 2001) Factors to Determine the Situs of Taxation: (Re-Ci-N-S2) FREEDOM OF THE PRESS 1. 2. 3. 4. 5. BASIS: 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. (Sec. 4, Art. III, 1987 Constitution) Residence of the taxpayer, Citizenship of the taxpayer, Nature of the tax, Subject matter of the tax, and Source of income. RULES OBSERVED IN FIXING TAX SITUS Q: Is R.A. No. 7716 unconstitutional for it violates the freedom of the press under Art. III, Sec. 4 of the Constitution by imposing VAT on the gross receipts of newspapers from advertisements and on their acquisition of paper, ink and services for publication? 1. Poll/Capitation/Community tax Taxed upon the residence of taxpayer, regardless of the source of income or location of property of the taxpayer. A: NO. Even with due recognition of its high estate and its importance in a democratic society, however, the press is not immune from general regulation by the State. It has been held that the publisher of a newspaper has no immunity from the application of general laws. He has no special privilege to invade the rights and liberty of others. He must answer for libel. He may be punished for contempt of court. Like others, he must pay equitable and nondiscriminatory taxes on his business. (Tolentino v. Secretary of Finance, G.R. No. 115873, 25 Aug. 1994) 2. Property tax a. Real property Taxed upon the location of the property (lex rei sitae/lex situs), regardless of whether the owner is a resident or a non-resident. Rationale: 2. TERRITORIALITY PRINCIPLE AND SITUS OF TAXATION TERRITORIALITY PRINCIPLE Taxation may be exercised only within the territorial jurisdiction of the taxing authority. (61 Am. Jur. 88) Within its territorial jurisdiction, the 55 i. The taxing authority has control because of the stationary and fixed character of the property; and ii. The place where the real property is situated gives protection to the real property. Hence, the property or its owner should support the government of that place. UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law b. Application of the Doctrine of Mobilia Sequuntur Personam not Mandatory in all Cases Personal property i. ii. Tangible personal property – taxed upon the location of the property. Such doctrine has been decreed as a mere "fiction of law having its origin in considerations of general convenience and public policy and cannot be applied to limit or control the right of the State to tax property within its jurisdiction," and must "yield to established fact of legal ownership, actual presence and control elsewhere, and cannot be applied if to do so would result in inescapable and patent injustice." (Wells Fargo Bank and Union Trust v. Collector, G.R. No. L-46720, 28 June 1940) Intangible personal property GR: Taxed upon the domicile of the owner, wherever it is actually kept or located, pursuant to the principle of the mobilia sequntur personam, i.e., movable follows the person/owner. XPNs: 1. When the property has acquired a business situs in another jurisdiction, such that it has definite location there, accompanied by some degree of permanency; or 2. 3. Excise tax Excise taxes are taxes imposed on the exercise of a right or privilege or performance of an act. (Dimaampao, 2021) When an express provision of the statute provides for another rule. a. NOTE: Under Sec. 104 of the NIRC, in case of donor’s and estate tax, the following properties are considered as situated, thus taxed, in the Philippines and the residence of their owners are immaterial, except where the foreign country grants exemption or does not impose taxes on intangible properties to Filipino citizens: a. b. c. Tax Situs of Income Tax Franchise which must be exercised in the Philippines; Shares, obligations, or bonds issued by any corporation sociedad anonima organized or constituted in the Philippines in accordance with its laws; Shares, obligations, or bonds by any foreign corporation 85% of its business is located in the Philippines; Shares or rights in any partnership, business or industry established in the Philippines. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES CLASS OF TAXPAYER SOURCES OF INCOME Resident Citizen (RC) Within and without the Philippines Non-Resident Citizen (NRC) Within Domestic Corporation (DC) Within and without the Philippines Resident Foreign Corporation (RFC) Within Non-Resident Foreign Corporation (NRFC) Within NOTE: The source of an income is the property, activity or service that produces the income. For the source of income to be considered as coming from the Philippines, it is sufficient that the income is derived from activity within the Philippines. (Commissioner v. British Overseas Airways Corp., G.R. Nos. L-65773-74, 30 Apr. 1987) d. Shares, obligations, or bonds issued by any foreign corporation if such shares, obligations or bonds have acquired a business situs in the Philippines; and e. Income tax 56 General Principles of Taxation b. income; or Donor’s Tax and Estate Tax 4. Reduce the Philippine income tax rate. Tax Situs of Donor’s Tax and Estate Tax KIND OF DONOR SOURCE Resident or Citizen of the Philippines Properties within and without the Philippines D. REQUISITES OF A VALID TAX Q: Enumerate the requisites of a valid tax. Properties within the Philippines Non-Resident, Non-Citizen of the Philippines c. A: The requisites of a valid tax are: (Uni-JIP) 1. 2. 3. NOTE: Intangible personal property is subject to the rule of reciprocity. (Ingles, 2018) 4. Value-Added Tax Taxed upon the place where the transaction is made. If the transaction is made (perfected and consummated) outside of the Philippines, we can no longer tax such transaction. (Dimaampao, 2021) It should be for a Public purpose; It should be Uniform; The person or property being taxed should be within the Jurisdiction of the taxing authority; and The tax must not impinge on the Inherent and constitutional limitations on the power of taxation. E. TAX AS DISTINGUISHED FROM OTHER FORMS OF EXACTIONS NOTE: Situs of taxation of excise tax is the place where the privilege is exercised. In case of a franchise, which is a right or privileges granted to it by the government, the situs of taxation is the place where the franchise holder exercises its franchise regardless of the place where its services or products are delivered. Thus, in a franchise of electric power distribution, the franchisee is liable within the jurisdiction it exercises its privilege. (City of Iriga v. Camarines Sur III Electric Cooperative, G.R. No. 192945, 05 Sept. 2012) TARIFF OR CUSTOMS DUTIES TARIFF OR CUSTOMS DUTIES TAX Coverage An all-embracing term to include various kinds of enforced contributions imposed upon persons for the attainment of public purpose REMEDIES AVAILABLE AGAINST MULTIPLICITY OF SITUS Tax laws and treaties with other States may: Only a kind of tax; limited coverage Object 1. Exempt foreign nationals from local taxation and local nationals from foreign taxation under the principle of reciprocity; Persons, property, privilege, or transactions Goods imported exported 2. Credit foreign taxes paid from local taxes due; 3. Allow foreign taxes as deduction from gross 57 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW or Political Law TOLL TAX TAX Amount TOLL Generally, amount is unlimited Definition An enforced proportional contribution from persons and property for public purpose A consideration paid for the use of a road, bridge or the like, of a public nature Demand proprietorship Imposed on persons, properties, rights or transactions of Amount is limited to the cost and maintenance of public improvement Non-payment does not make the business illegal Normally paid after the start of business; post-activity imposition For the use of another’s property Imposing Authority May only be imposed by the State under its sovereignty authority May be imposed by private individuals or entities, as an attribute of ownership Q: A municipality, BB, has an ordinance which requires that all stores, restaurants, and other establishments selling liquor should pay a fixed annual fee of P20,000. Subsequently, the municipal board proposed an ordinance imposing a sales tax equivalent to 5% of the amount paid for the purchase or consumption of liquor in stores, restaurants, and other establishments. The municipal mayor, CC, refused to sign the ordinance on the ground that it would constitute double taxation. Is the refusal of the mayor justified? Reason briefly. (2004 BAR) LICENSE FEE LICENSE FEE Purpose Imposed revenue to raise For regulation control and Basis Collected under the power of taxation Collected under police power UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Normally paid before the commencement of the business; preactivity imposition Building fees are not taxes or impositions upon property, but regulatory fees imposed by a city for the activity of building or repairing a structure. Hence, a foundation which is exempt from taxes cannot claim that it is exempt from the payment of building fees, as these are not taxes in the first place. (Angeles University Foundation v. City of Angeles, G.R. No. 189999, 27 June 2012) Fees paid by the public to toll way operators for the use of toll ways are not taxes. These are exactions which end up as earnings of toll way operators, not the government. (Diaz v. Secretary of Finance, G.R. No. 193007, 19 July 2011) TAX Non-payment makes the business illegal Time of Payment Purpose For the support of the government Imposed on the exercise of a right or privilege, such as the commencement of a business or profession Effect of Non-Payment Amount Generally, the amount is unlimited Limited to the necessary expenses of regulation and control Subject Basis Demand of sovereignty LICENSE FEE 58 General Principles of Taxation A: NO. The refusal of the mayor is not justified. The impositions are of different nature and character. The fixed annual fee is in the nature of a license fee imposed through the exercise of police power while the 5% tax on purchase or consumption is a local tax imposed through the exercise of taxing powers. Both a license fee and a tax may be imposed on the same business or occupation, or for selling the same article and this is not in violation of the rule against double taxation. (Campania General de Tabacos de Filipinos v. City of Manila, G.R. No. L-16619, 29 June 1963) The purpose of special levies or assessments is to finance the improvement of particular properties, with the benefits of the improvement accruing or inuring to the owners thereof who, after all, pay the assessment. (Republic v. Bacolod-Murla Milling Co., G.R. No. L-19824, 09 July 1966) DEBT TAX Basis Obligation created by law SPECIAL ASSESSMENT TAX SPECIAL ASSESSMENT Not assignable An enforced proportional contribution from owners of lands especially those who are peculiarly benefited by public improvements Generally payable in money; in exceptional instances, it may be satisfied in kind Not subject to set-off Levied on land only May result in imprisonment Not a personal liability of the person assessed No interest unless there shall be assessed and collected on any unpaid amount of tax (deficiency interest or delinquency interest). May only be imposed by the local government Contribution to the cost of public improvement No interest shall be due unless it has been expressly stipulated in writing. (Art. 1956, Civil Code) Interest Rate to be Imposed Interest is fixed at the rate of double the legal interest rate for loans, or forbearance of any money in the absence of Scope Regular exaction No imprisonment except when debt arises from crime Interest Stipulation Requirement Purpose For the support of the government Subject to set-off Effect of Non-Payment Imposing Authority May be imposed by national or local government Payable in kind or in money Set-off Person Liable A personal liability of the taxpayer Assignable Mode of Payment Subject Imposed on persons, property rights, or transactions Obligation based on contract, express or implied Assignability Nature An enforced proportional contribution from persons and property for public purpose DEBT Exceptional as to time and locality 59 Interest depends upon the written stipulation of the parties. UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law an express stipulation as set by the BSP from the date prescribed for payment until the amount is fully paid. Dec. 2005) If no written stipulation, as to the rate, legal rate of interest shall be imposed. Q: Distinguish a direct from an indirect tax. Give examples. (1994, 2000, 2001, 2006 BAR) A: Direct taxes are demanded from the very person who, as intended, should pay the tax which he cannot shift to another; while indirect taxes are demanded in the first instance from one person with the expectation that he can shift the burden to someone else, not as a tax but as a part of the purchase price. (Maceda v. Macaraig, Jr., G.R. No. 88291, 08 June 1993) Prescription Governed by the special prescriptive periods provided for in the NIRC Governed by the ordinary periods of prescription F. KINDS OF TAXES Direct taxes are taxes wherein either the incidence (or liability for the payment of the tax) as well as the impact or burden of the tax falls on the same person. Indirect taxes, on the other hand, are taxes wherein the incidence of or the liability of payment of the tax falls on one person but the burden thereof can be shifted or passed on to another person. AS TO OBJECT 1. 2. 3. Personal/poll or capitation tax – a fixed amount imposed upon all persons, or upon all persons of a certain class or residents within a specified territory, without regard to their property or occupation. (e.g., community tax) Income tax, estate tax, and donor's tax are considered as direct taxes. On the other hand, value-added tax, excise tax, other percentage taxes, and documentary stamp tax are indirect taxes. Property tax – tax imposed on property, whether real or personal, in proportion either to its value, or in accordance with some other reasonable method of apportionment. (e.g., real property tax) NOTE: The liability for payment of the indirect taxes lies only with the seller of the goods or services, not in the buyer thereof. Thus, one cannot invoke one’s exemption privilege to avoid the passing on or the shifting of the VAT to him by the manufacturers or suppliers of the goods. Hence, it is important to determine if the tax exemption granted specifically includes the indirect tax; otherwise, it is presumed that the tax exemption embraces only those taxes for which the buyer is directly liable. (CIR v. PLDT, G.R. No. 140230, 15 Dec. 2005) Privilege/excise tax – a charge upon the performance of an act, the enjoyment of a privilege, or the engaging in an occupation. An excise tax is a tax that does not fall as property tax. (e.g., income tax, estate tax, donor’s tax, VAT) NOTE: This is different from the excise tax under the NIRC which is a business tax imposed on items such as cigars, cigarettes, wines, liquors, frameworks, mineral products, among others. In case of withholding taxes, the incidence and burden of taxation fall on the same entity, the statutory taxpayer. The burden of taxation is not shifted to the withholding agent who merely collects, by withholding, the tax due from income payments to entities arising from certain transactions and remits the same to the government. Due to this difference, the deficiency VAT and excise tax cannot be “deemed” as withholding taxes merely because they constitute AS TO BURDEN OR INCIDENCE Based on the possibility of shifting the incidence of taxation, taxes may be classified into: 1. 2. Direct taxes, and Indirect taxes. (CIR v. PLDT, G.R. No. 140230, 15 UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 60 General Principles of Taxation indirect taxes. (Asia International Auctioneers, Inc. v. CIR, G.R. No. 179115, 26 Sept. 2012) In indirect taxation, a distinction is made between the liability for the tax and burden of the tax. For instance, the seller who is liable for the VAT (i.e., has the incidence of taxation) may shift or pass on the amount of VAT it paid on goods, properties, or services to the buyer, who has the burden of taxation. In such a case, what is transferred is not the seller's liability but merely the burden of the VAT. (Diaz v. The Secretary of Finance, G.R. No. 193007, 19 July 2011) 2. Ad valorem – tax based on the value of the property with respect to which the tax is assessed. It requires the intervention of assessors or appraisers to estimate the value of such property before the amount due can be determined. (e.g., real estate tax, income tax, donor’s tax and estate tax) 3. Mixed – a choice between ad valorem and/or specific depending on the condition attached. AS TO PURPOSES Where the burden of the tax is shifted to the purchaser, the amount passed on to it is no longer a tax but becomes an added cost on the goods purchased, which constitutes a part of the purchase price. The proper party to question or seek a refund of an indirect tax is the statutory taxpayer, the person on whom the tax is imposed by law and who paid the same even if he shifts the burden thereof to another. (Silkair v. CIR, G.R. No. 166482, 25 Jan. 2012) 1. General/fiscal or revenue – tax imposed solely for the general purpose of the government. (e.g., income tax and donor’s tax) 2. Special/regulatory or sumptuary – tax levied for specific purpose, i.e., to achieve some social or economic ends. (e.g., tariff and certain duties on imports) AS TO SCOPE OR AUTHORITY TO IMPOSE 1. National tax – tax levied by the National Government. (e.g., income tax, estate tax, donor’s tax, VAT, other percentage taxes and documentary stamp taxes) 2. Local or municipal – tax levied by a local government. (e.g., real estate tax and community tax) Impact and Incidence of Taxation Distinguished IMPACT OF TAXATION INCIDENCE OF TAXATION It refers to the statutory liability to pay the tax; it falls on the person originally assessed with a particular tax It is the economic cost of tax; it is also known as burden of taxation It is the imposition of tax (liability) It is the payment of tax (burden) It is on the seller upon whom the tax has been imposed It is on the final consumer, the place at which the tax comes to rest AS TO GRADUATION AS TO TAX RATES 1. Specific – tax of a fixed amount imposed by the head or number, or by some standard of weight or measurement. (e.g., excise tax on cigar, cigarettes and liquors) 61 1. Progressive – a tax rate which increases as the tax base or bracket increases. (e.g., income tax, estate tax and donor’s tax) 2. Regressive – the tax rate decreases as the tax base or bracket increases. 3. Proportionate – a tax of a fixed percentage of amounts of the base, which can be the value of the property, or amount of gross receipts, among others. (e.g., VAT and other percentage taxes) UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law A: It expresses the underlying basis of taxation which is governmental necessity. For indeed, without taxation, a government can neither exist nor endure. G. DOCTRINES IN TAXATION 1. LIFEBLOOD THEORY Considering that taxes are the lifeblood of the government, and in Holmes’ memorable metaphor, the price we pay for civilization, tax laws must be faithfully and strictly implemented. (CIR v. Acosta, G.R. No. 154068, 3 Aug. 2007) Taxes should be collected promptly. No court shall have the authority to grant an injunction to restrain the collection of any internal revenue tax, fee or charge imposed by the NIRC. (Angeles City v. Angeles Electric Cooperation, G.R. No. 166134, 29 June 2010) Taxes are the lifeblood of the State, through which the government and its agencies continue to operate and with which the State effects its functions for the welfare of its constituents. (CIR v. CTA, G.R. No. 106611, 21 July 1994) Taxes are what we pay for a civilized society. Without taxes, the State would be paralyzed. (CIR v. Algue, G.R. No. L-28896, 17 Feb. 1988) 2. CONSTRUCTION AND INTERPRETATION OF TAX LAWS, RULES, AND REGULATIONS NOTE: However, even with the lifeblood theory, the power of taxation must still be exercised reasonably and in accordance with the law and prescribed procedure. (CIR v. Algue, G.R. No. L-28896, 17 Feb. 1988) TAX LAWS GR: Tax statutes must be construed strictly against the government and liberally in favor of the taxpayer. (MCIAA v. Marcos, G.R. No. 120082, 11 Sept. 1996) The imposition of a tax cannot be presumed. Manifestations of Lifeblood Theory (C-A-R-D-I) 1. Taxes could not be the subject of Compensation and set-off, subject to certain exceptions 2. Imposition even in the constitutional grant Absence 3. State’s Right to select objects and subjects of taxation 4. A valid tax may result in Destruction of property 5. No Injunction to enjoin collection of taxes except for a period of 60 days upon application to the CTA as an incident of its appellate jurisdiction Rationale: Taxes are burdens on the taxpayer and should not be unduly imposed or presumed beyond what the statutes expressly and clearly import. (CIR v. The Philippine American Accident Insurance, Inc., G.R. No. 141658, 18 Mar. 2005) of XPN: The statute imposes a tax clearly, expressly, and unambiguously. XPN to XPN: The rule that, in case of doubt of legislative intent, the doubt must be liberally construed in favor of taxpayer does not extend to cases involving the issue of the validity of the tax law itself which, in every case, is presumed valid. TAX EXEMPTIONS AND EXCLUSIONS Q: Discuss the meaning and the implications of the statement: “Taxes are the lifeblood of the government and their prompt and certain availability is an imperious need”. (1991 BAR) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES GR: Statutes granting tax exemptions are construed in strictissimi juris against the taxpayers and liberally in favor of the taxing authority. (MCIAA v. Marcos, G.R. No. 120082, 11 Sept. 1996) 62 General Principles of Taxation 167274-75, 21 July 2008) Tax exclusions (removal of otherwise taxable items from the reach of taxation) are likewise strictly construed against the taxpayer. (Smart Communications, Inc. v. City of Davao, G.R. No. 155491, 16 Sept. 2008) TAX RULES AND REGULATIONS The construction placed by the office charged with implementing and enforcing the provisions of a Code should be given controlling weight unless such interpretation is clearly erroneous. NOTE: Tax refunds are in the nature of tax exemptions which are construed in strictissimi juris against the taxpayer and liberally in favor of the government. (Kepco Philippines Corporation v. CIR, G.R. No. 179961, 31 Jan. 2011) It is axiomatic that a rule or regulation must bear upon, and be consistent with, the provisions of the enabling statute if such rule or regulation is to be valid. In case of conflict between a statute and an administrative order, the former must prevail. To be valid, an administrative rule or regulation must conform, not contradict, the provisions of the enabling law. An implementing rule or regulation cannot modify, expand, or subtract from the law it is intended to implement. Any rule that is not consistent with the statute itself is null and void. (Fort Bonifacio Development Corporation v. CIR, G.R. No. 175707, 19 Nov. 2014) It is a basic precept of statutory construction that the express mention of one person, thing, act, or consequence excludes all others as expressed in the familiar maxim expressio unius est exclusio alterius. Thus, the omission or removal of PAGCOR from exemption from the payment of corporate income tax is to require it to pay corporate income tax. (PAGCOR v. BIR, G.R. No. 172087, 15 Mar. 2011) XPNs: (P-E-A) 1. If the grantee of the exemption is a Political subdivision or instrumentality, the rigid rule of construction does not apply because the practical effect of the exemption is merely to reduce the amount of money that has to be handled by the government in the course of its operations. (MCIAA v. Marcos, G.R. No. 120082, 11 Sept. 1996) Admittedly the government is not estopped from collecting taxes legally due because of mistakes or errors of its agents. But like other principles of law, this admits of exceptions in the interest of justice and fair play, as where injustice will result to the taxpayer. (CIR v. CA, G.R. No. 117982, 06 Feb. 1997) NOTE: It is a recognized principle that the rule on strict interpretation does not apply in the case of exemptions in favor of a government political subdivision or instrumentality. In the case of property owned by the state or a city or other public corporations, the express exemption should not be construed with the same degree of strictness that applies to exemptions contrary to the policy of the state, since as to such property "exemption is the rule and taxation the exception”. (Maceda v. Macaraig, G.R. No. 88291, 31 May 1991) In criminal cases, statutes of limitations are acts of grace, a surrendering by the sovereign of its right to prosecute. They receive strict construction in favor of the Government and limitations in such cases will not be presumed in the absence of clear legislation. (Lim v. CA, G.R. Nos. 48134-37, 18 Oct. 1990) 2. Erroneous payment of the tax, or 3. Absence of law for the government’s exaction. (CIR v. Fortune Tobacco Corporation, G.R. Nos. PENAL PROVISIONS OF TAX LAWS 3. PROSPECTIVITY OF TAX LAWS Tax laws, including rules and regulations operate prospectively unless otherwise legislatively intended by express terms or by necessary implication. (Gulf Air Company, Philippine Branch v. CIR, G.R. No. 182045, 19 Sept. 2012) GR: Tax laws must be applied prospectively. 63 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law 2. XPN: If the law expressly provides for retroactive application. Ex Post Facto Law as Applied in Taxation The prohibition against ex post facto laws applies only to criminal matters and not to laws which are civil in nature. NOTE: Retroactive application of revenue laws may be allowed if it will not amount to denial of due process. There is violation of due process when the tax law imposes harsh and oppressive tax. (Dimaampao, 2021) NOTE: When it comes to civil penalties like fines and forfeiture (except interest), tax laws may be applied retroactively unless it produces harsh and oppressive consequences which violate the taxpayer’s constitutional rights regarding equity and due process. But criminal penalties arising from tax violations may not be given retroactive effect. Q: In 1997, Mrs. Rocosta filed an amended return which showed an overpayment of income tax for her 1996 income report. She now claims a refund of taxes withheld on her 1996 income as provided for in the 1997 NIRC. Should the 1997 tax reform retroactively apply? Revenue statutes are substantive laws and in no sense must their application be equated with that of remedial laws. (CIR v. Acosta, G.R. No. 154068, 03 Aug. 2007) A: NO. Tax laws are prospective in operation, unless the language of the statute clearly provides otherwise. At the time Mrs. Rocosta filed her amended return, the 1997 NIRC was not yet in effect. Hence, she has no reason at that time to think that the filing of an amended return would constitute the written claim for refund required by applicable law. (CIR v. Acosta, G.R. No. 154068, 03 Aug. 2007) BIR Rules and Regulations that Revoke, Modify, or Reverse a Ruling or Circular GR: Those BIR Rules and Regulations shall not be given retroactive application if the revocation, modification, or reversal will be prejudicial to the taxpayers. Q: Due to uncertainty as to whether a new tax law is applicable to printing companies, DEF Printers submitted a legal query to the BIR on that issue. The BIR issued a ruling that printing companies are not covered by the new law. Relying on this ruling, DEF Printers did not pay said tax. Subsequently, however, the BIR reversed the ruling and issued a new one stating that the tax covers printing companies. Could the BIR now assess DEF Printers for back taxes corresponding to the years before the new ruling? Reason briefly. (2004 BAR) XPNs: (MO-M-B-E) 1. It may be given retroactive effect even if such would be prejudicial to the taxpayer in the following cases: a. Where the taxpayer deliberately Misstates or Omits material facts from his return, or any document required of him by the BIR; b. Where the facts subsequently gathered by the BIR are Materially different from the facts on which the ruling is based; or c. A: NO. The reversal of the ruling shall not be given a retroactive application, if said reversal will be prejudicial to the taxpayer. Therefore, the BIR cannot assess DEF Printers for back taxes because it would be violative of the principle of non- Where the taxpayer acted in Bad faith. (Sec. 246, NIRC) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES If the revocation is due to the fact that the regulation is Erroneous or contrary to law, such revocation shall have retroactive operation as to affect past transactions, because a wrong construction of the law cannot give rise to a vested right that can be invoked by a taxpayer. 64 General Principles of Taxation retroactivity of rulings and doing so would result to grave injustice to the taxpayer who relied on the first ruling in good faith. (Sec. 246, NIRC; Commissioner v. Burroughs, Ltd., G.R. No. L-66653, 19 June 1986) There are two kinds of double taxation: 1. Direct double taxation, and 2. Indirect double taxation. The retroactive application of the BIR regulation that is prejudicial to the taxpayer is a violation of due process. When there is a clash between the Lifeblood Doctrine and due process, the latter prevails. (Commissioner v. CIR, G.R. No. 117982, 06 Feb. 1997) Elements of Direct Double Taxation: DIRECT (STRICT SENSE) 1. The same property is taxed Twice when it should be taxed only once; and 2. Both taxes are imposed: (Ju-P2-A-C-S) a. b. c. d. e. 4. IMPRESCRIPTIBILITY OF TAXES GR: Taxes are imprescriptible by reason that it is the lifeblood of the government. XPN: Tax laws may provide for statute of limitations. In particular, the NIRC and LGC provide for the prescriptive periods for assessment and collection. f. within the same Jurisdiction; for the same Purpose; during the same taxing Period; by the same taxing Authority; the taxes must be of the same kind or Character; and on the same Subject matter. (City of Manila v. Coca Cola Bottlers Philippines, G.R. No. 181845, 04 Aug. 2009) All the elements must be present in order to apply double taxation in its strict sense. Tax laws provide for statute of limitations in the collection of taxes for the purpose of safeguarding taxpayers from any unreasonable examination, investigation or assessment. (CIR v. B.F. Goodrich Phils., G.R. No. 104171, 24 Feb. 1999) Rationale: It constitutes double taxation in the objectionable or prohibited sense since it violates the equal protection clause of the Constitution. NOTE: Although the NIRC provides for the limitation in the assessment and collection of taxes imposed, such prescriptive period will only be applicable to those taxes that were returnable. The prescriptive period shall start from the time the taxpayer files the tax return and declares his liability. (Collector of Internal Revenue v. Bisaya Land Transportation Co., Inc., G.R. Nos. L-12100 and L11812, 29 May 1959) NOTE: Imposition of a penalty and a tax on one taxpayer does not amount to double taxation. (Republic Bank v. CTA, G.R. No. 62554, 02 Sept. 1992) INDIRECT (BROAD SENSE) It is a permissible double taxation wherein some elements of direct double taxation are absent. Tax Treaties as relief from Double Taxation 5. DOUBLE TAXATION The purpose is to reconcile the national fiscal legislation of the contracting parties in order to help the taxpayer avoid simultaneous taxation in two different jurisdictions (e.g., international double taxation). This is to encourage the free flow of goods and services and the movement of capital, technology, and persons between countries, conditions deemed vital in creating robust and There is no constitutional prohibition against double taxation in the Philippines. It is something not favored, but is permissible, provided some other constitutional requirement is not thereby violated, such as the requirement that taxes must be uniform. (Villanueva v. City of Iloilo, G.R. No. L26521, 28 Dec. 1968) 65 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law Q: Differentiate between double taxation in the strict sense and in a broad sense and give an example of each. (2015 BAR) dynamic economies. Tax Treaties vs. Revenue Memorandum Order A: Double taxation in the strict sense pertains to the direct double taxation. This means that the taxpayer is taxed twice by the same taxing authority, within the same taxing jurisdiction, for the same property and same purpose. An example is the imposition of final withholding tax on cash dividend and requiring the taxpayer to declare this tax-paid income in his tax returns. Q: The CTA denied the claim for a refund of the Petitioner on the ground that the application for a tax treaty relief was not filed with International Tax Affairs Division prior to its availment of the preferential rate of ten percent (10%) under the RP-Germany Tax Treaty provision, and thus violated the fifteen (15) day period mandated under Sec. III(2) of Revenue Memorandum Order (RMO) No. 1-2000. Petitioner invoked that it has met all the conditions under Art. 10 of the RP-Germany Tax Treaty, the CTA erred in denying its claim solely on the basis of RMO No. 1-2000. On the other hand, double taxation in the broad sense pertains to indirect double taxation. This extends to all cases in which there is a burden of two or more impositions. It is the double taxation other than those covered by direct double taxation. (CIR v. Solidbank Corp., G.R. No. 148191, 25, Nov. 2003) An example is subjecting the interest income of banks on their deposits with other banks to the 5% Gross Receipts Tax (GRT) despite of the same income having been subjected to 20% Final Withholding Tax (FWT). The GRT is a tax on the privilege of engaging in business, while the FWT is a tax on the privilege of earning income. (CIR v. Bank of Commerce, G.R. No. 149636, 08 June 2005) Does failure to strictly comply with RMO No. 12000 will deprive persons or corporations of the benefit of a tax treaty? A: NO. Tax treaties are entered into to minimize, if not eliminate the harshness of international juridical double taxation, which is why they are also known as double tax treaty or double tax agreements. The time-honored international Principle of pacta sunt servanda demands the performance in good faith of treaty obligations on the part of the states that enter into the agreement. Thus, laws and issuances must ensure that the reliefs granted under tax treaties are accorded to the parties entitled thereto. The BIR must not impose additional requirements that would negate the availment of the reliefs provided for under international agreements. More so, when the RPGermany Tax Treaty does not provide for any prerequisite for the availment of the benefits under said agreement. Bearing in mind the rationale of tax treaties, the period of application for the availment of tax treaty relief as required by RMO No. 1-2000 should not operate to divest entitlement to the relief as it would constitute a violation of the duty required by good faith in complying with a tax treaty. In sum, the obligation to comply with a tax treaty must take precedence over the objective of RMO No. 1-2000. (Deutsche Bank vs. CIR, G.R. No. 188550, 19 Aug. 2013) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Q: In 2018, City X amended its Revenue Code to include a new provision imposing a tax on every sale of merchandise by a wholesaler based on the total selling price of the goods, inclusive of value-added taxes (VAT). ABC Corp., a wholesaler operating within the city, challenged the new provision based on the following contentions: (1) The new provision is a form of prohibited double taxation because it essentially amounts to City X imposing VAT which was already being levied by the national government; and (2) Since the tax being imposed is akin to VAT, it is beyond the power of City X to levy the same. Rule on ABC Corp.’s first contention. (2019 BAR) A: ABC CORP. IS INCORRECT. Under the NIRC, direct double taxation exists only when two taxes are imposed on the same: (1) subject matter, (2) purpose, (3) by the same taxing authority, (4) 66 General Principles of Taxation within the same jurisdiction, (5) during the same taxing period, and (6) the taxes of the same kind of nature. In this case, the taxing authorities are different. Hence, the tax imposed by the LGU is not a form of direct double taxation. income or capital. In some cases, an exclusive right to tax is conferred on one of the contracting states. However, for other items of income or capital, both states are given the right to tax, although the amount of tax that may be imposed by the state of source is limited; and Q: KM Corporation, doing business in the City of Kalookan, has been a distributor and retailer of clothing and household materials. It has been paying the City of Kalookan local taxes based on Secs. 15 (Tax on Wholesalers, Distributors or Dealers) and 17 (Tax on Retailers) of the Revenue Code of Kalookan City (Code). Subsequently, the Sangguniang Panglungsod enacted an ordinance amending the Code by inserting Sec. 21 which imposes a tax on “Businesses Subject to Excise, Value-Added and Percentage Taxes under the NIRC,” at the rate of 50% of 1% per annum on the gross sales and receipts on persons “who sell goods and services in the course of trade or business.” KM Corporation paid the taxes due under Sec. 21 under protest, claiming that (a) local government units could not impose a tax on businesses already taxed under the NIRC and (b) this would amount to double taxation, since its business was already taxed under Secs. 15 and 17 of the Code. 2. The second method applies whenever the state of source is given a full or limited right to tax together with the state of residence. In this case, the treaties make it incumbent upon the state of residence to allow relief in order to avoid double taxation. There are two methods of relief: a. Exemption method – the income or capital which is taxable in the state of source or situs is exempted in the state of residence, although in some instances it may be taken into account in determining the rate of tax applicable to the taxpayer's remaining income or capital; and b. Credit method – although the income or capital which is taxed in the state of source is still taxable in the state of residence, the tax paid in the former is credited against the tax levied in the latter. NOTE: The basic difference between the two methods is that in the exemption method, the focus is on the income or capital itself, whereas the credit method focuses upon the tax. (CIR v. S.C. Johnson and Son, Inc., G.R. No. 127105, 25 June 1999) Does this amount to double taxation? (2018 BAR) A: YES. The three taxes are all in the nature of local business taxes on wholesalers, retailers and service providers which are imposed by the same taxing authority on the same subject matter for the same tax period; hence, the elements of double taxation are present. (Nursery Care Corp. v. Acebedo, G.R. No. 180651, 30 July 2014) 6. EXEMPTION FROM TAXATION It is the grant of immunity, express or implied, to particular persons or corporations, from a tax upon property or an excise tax which persons or corporations generally within the same taxing districts are obliged to pay. TAX TREATY AS A MODE IN ELIMINATING DOUBLE TAXATION NOTE: It is the legislature, unless limited by a provision of the state constitution, which has full power to exempt any person, corporation, or class of property from taxation; its power to exempt being as broad as its power to tax. Other than Congress, the Constitution may itself provide for specific tax exemptions, or local governments may In order to eliminate double taxation, a tax treaty may resort to two methods of relief: 1. The first method sets out the respective rights to tax of the state of source or situs and of the state of residence with regard to certain classes of 67 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law 9. pass ordinances on exemption only from local taxes. (John Hay Peoples Alternative Coalition et al. v. Lim et. al., G. R. No. 119775, 24 Oct. 2003) NOTE: Taxation is the rule and exemption is the exception. (FELS Energy Inc. v. Province of Batangas, G.R. No. 168557, 16 Feb. 2007) The burden of proof rests upon the party claiming exemption to prove that it is, in fact, covered by the exemption so claimed. As a rule, tax exemptions are construed strongly against the claimant. Exemptions must be shown to exist clearly and categorically and supported by clear legal provision. (PAGCOR v. BIR, G.R. No. 172087, 15 Mar. 2011) 10. Strictly construed against the taxpayer. 11. Implies a waiver on the part of the government of its right to collect what otherwise would be due. 12. Exemptions are not presumed. The burden is upon the claimant to establish right to exemption beyond reasonable doubt. However, the strict interpretation does not apply in the case of exemptions running to the benefit of the government itself or its agencies. Principles governing Tax Exemptions 1. Personal in nature and covers only taxes for which the grantee is directly liable. It cannot be transferred or assigned by the person to whom it is given without the consent of the State. Tax exemptions are highly disfavored in law. 2. Tax exemptions are personal and nontransferable. 3. He who claims an exemption must justify that the legislature intended to exempt him by words too plain to be mistaken. He must convincingly prove that he is exempted. NOTE: Since the power to tax includes the power to exempt thereof which is essentially a legislative prerogative, it follows that a municipal mayor who is an executive officer may not unilaterally withdraw such an expression of a policy thru the enactment of a tax. (Philippine Petroleum Corporation v. Municipality of Pililla, G.R. No. 90776, 03 June 1991) 4. It must be strictly construed against the taxpayer. Not all Refunds are in the Nature of a Tax Exemption NOTE: Deductions for income tax purposes partake of the nature of tax exemptions, hence, they are also strictly construed against the taxpayer. A tax refund may only be considered as a tax exemption when it is based either on a taxexemption statute or a tax-refund statute. Tax refunds or tax credits are not founded principally on legislative grace, but on the legal principle of quasi-contracts against a person’s unjust enrichment at the expense of another. 5. Constitutional grants of tax exemptions are self-executing. 6. Tax exemption is generally revocable, unless founded on contracts which are protected by the non-impairment clause. 7. In order to be irrevocable, the tax exemption must be founded on a contract or granted by the Constitution. 8. The congressional power to grant an exemption necessarily carries with it the consequent power to revoke the same. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES NOTE: The erroneous payment of tax as a basis for a claim of refund may be considered as a case of solutio indebiti, which the government is not exempt from its application and has the duty to refund without any unreasonable delay what it has erroneously collected. 68 General Principles of Taxation NOTE: Contractual tax exemptions may not be unilaterally so revoked by the taxing authority without thereby violating the non-impairment clause of the Constitution. (Vitug, 2000) KINDS OF TAX EXEMPTION As to Basis 1. Constitutional – immunities from taxation which originate from the Constitution. 2. Statutory – those which emanate from legislation. 3. Contractual – agreed to by the taxing authority in contracts lawfully entered into by them under enabling laws. 4. Implied – when particular persons, properties or excises are deemed exempt as they fall outside the scope of the taxing provision. Nevertheless, since taxation is the rule and exemption therefrom is the exception, the exemption may thus be withdrawn at the pleasure of the taxing authority. The only exception to this rule is where the exemption was granted to private parties based on material consideration of a mutual nature, which then becomes contractual and is thus covered by the non-impairment clause of the Constitution. (MCIAA v. Marcos, G.R. No. 120082, 11 Sept. 1996) Q: Pursuant to Sec. 11 of the “Host Agreement” between the United Nations and the Philippine government, it was provided that the World Health Organization (WHO), “its assets, income and other properties shall be: (a) exempt from all direct and indirect taxes.” Precision Construction Corporation (PCC) was hired to construct the WHO Medical Center in Manila. Upon completion of the building, the BIR assessed a 12% VAT on the gross receipts of PCC derived from the construction of the WHO building. The BIR contends that the 12% VAT is not a direct nor an indirect tax on the WHO but a tax that is primarily due from the contractor and is therefore not covered by the Host Agreement. The WHO argues that the VAT is deemed an indirect tax as PCC can shift the tax burden to it. Is the BIR correct? Explain. (2016 BAR) NOTE: The law looks with disfavor on tax exemptions and he who would seek to be thus privileged must justify it by words too plain to be mistaken and too categorical to be misinterpreted. (Western Minolco Corp. v. CIR, G.R. No. L-61632, 16 Aug. 1983) 5. Treaty 6. Licensing ordinance As to Extent 1. 2. Total – connotes absolute immunity Partial – one where a collection of a part of the tax is dispensed with As to Object 1. 2. A: NO. Since the WHO, the contractee, is exempt from direct and indirect taxes pursuant to an international agreement where the Philippines is a signatory, the exemption from direct taxes should mean that the entity or person exempt is the contractor itself because the manifest intention of the government is to exempt the contractor so that no tax may be shifted to the contractee. (CIR v. John Gotamco & Sons, Inc., G.R. No. L-31092, 27 Feb. 1987) The immunity of WHO from indirect taxes extends to the contractor by treating the sale of service as effectively zero-rated when the law provided that – “services rendered to persons or Personal – granted directly in favor of certain persons Impersonal – granted directly in favor of a certain class of property These exemptions must not be confused with tax exemptions granted under franchises which are not contracts within the purview of the nonimpairment clause of the constitution. (Cagayan Electric Co. v. Commissioner, G.R. No. L-601026, 25 Sept. 1985) 69 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law pursuant to the exemption granted under Section 16 of PD No. 972 or the “Coal Development Act of 1976”. However, after RA No. 9337 took effect, NPC started to withhold a tax of 5% representing the final withholding VAT on SMC's coal billings on the belief that the sale of coal by SMC was no longer exempt from VAT. It was argued that the provision which grants tax exemption to SMC under Section 109 (e) of the NIRC of 1997 was withdrawn by the legislature when RA No. 9337 was passed deleting the "sale or importation of coal and natural gas, in whatever form or state" from the list of transactions exempt from VAT. Does SMC’s sale of coal remain exempt from VAT notwithstanding R.A. 9337? entities whose exemption under special laws or international agreements to which the Philippines is a signatory effectively subjects the supply to such service to zero percent rate”. (Sec. 108(B)(3), NIRC) Accordingly, the BIR is wrong in assessing the 12% VAT from the contractor PCC. NOTE: For indirect taxes, the tax exemption of the buyer (or whoever the burden of tax falls to) does not exempt him from the payment of indirect taxes because such person is not the one statutorily liable for the payment of the tax in the first place. (Philippine Acetylene Co., Inc. v. CIR, G.R. No. L19707, 17 Aug. 1967) The exception is when the buyer (or whoever the burden of tax falls to) is specifically exempted from payment of indirect taxes. (CIR v. John Gotamco & Sons, Inc., G.R. No. L-31092, 27 Feb. 1987) A: YES. SMC is exempt from the payment of VAT on the sale of coal produced under its COC, because Section 16 (a) of PD No. 972, a special law, grants SMC exemption from all national taxes except income tax. Rationale or Grounds for Exemption The inherent power of the State to impose taxes naturally carries with it the power to grant tax exemptions. SMC's claim for VAT exemption is anchored not on the paragraph deleted by RA No. 9337 from the list of VAT exempt transactions under Section 109 of the NIRC of 1997, as amended, but on the tax incentives granted to operators of COCs executed pursuant to PD No. 972. The Court agrees with the CTA that the tax exemption provided under Section 16 of PD No. 972 was not revoked, withdrawn or repealed — expressly or impliedly — by Congress with the enactment of RA No. 9337. (CIR v. Semirara Mining Corporation, G.R. No. 202922, 19 Jun. 2017, J. Caguioa) The rationale or grounds for tax exemption are the same as the non-revenue/special or regulatory purposes of taxation: 1. Sumptuary or regulatory purpose – to promote the general welfare and to protect the health, safety, or morals of inhabitants; 2. Tax exemptions implement the state’s police power; and 3. Compensatory purpose – to implement the social justice provisions of the Constitution through the progressive system of taxation, which would result to equal distribution of wealth etc. (Domondon, 2009) Q: The BTC Power Corporation (BTC) entered in a Build-Operate-Transfer (BOT) agreement with National Power Corporation (NPC), a taxexempt entity as provided by its Charter under a special law. The BOT Agreement provided that NPC shall be responsible for the payment of all taxes imposed on the power station except income and permit fees. Later on, the City Treasurer demanded payment of business taxes and penalties. BTC contended that NPC should be liable for such taxes and penalties, as provided for in their BOT agreement. NPC, however, contends that it’s a tax-exempt entity. NOTE: There is no tax exemption based solely on the ground of equity. (Davao Gulf v. CIR, G.R. No. 117359, 23 July 1998) Q: SMC, a coal mining operator, has been selling coal to NPC for years without paying VAT UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 70 General Principles of Taxation 4. Is NPC correct? A: NO. The 1991 LGC repealed NPC’s exemption from all taxes under its Charter. It removed the blanket exclusion of government instrumentalities from local taxation as it expressed a general repeal of all statutes granting exemptions from local taxes. Considered as the most revolutionary piece of legislation on local autonomy, the LGC effectively deals with the fiscal constraints faced by LGUs. It widens the tax base of LGUs to include taxes which were prohibited by previous laws. (Batangas Power Corporation v. Batangas City, G.R. No. 152675, 28 Apr. 2004) NOTE: Withdrawal of tax exemption is not to be construed as prohibiting future grants of tax exemptions. (Domondon, 2009) The erroneous application and enforcement of the law by public officers do not preclude subsequent correct application of the statute, and the government is never estopped by the mistake or error on the part of its agents. (Philippine Basketball Association v. CA, G.R. No. 119122, 08 Aug. 2000) Revocation of Tax Exemption Since taxation is the rule and exemption is the exception, the exemption may thus be withdrawn at the pleasure of the taxing authority. (Mactan Cebu International Airport Authority v. Marcos, G.R. No. 120082, 11 Sept. 1996) Q: BCDA was the owner of four (4) real properties in BGC collectively referred to as the "Expanded Big Delta Lots”. It entered into a contract to sell with the NET GROUP. The total purchase price was P2,032,749,327.96. NET GROUP deducted the amount of Php101,637,466.40 as CWT and issued to BCDA the corresponding certificates of creditable tax withheld at source. BCDA then wrote the BIR for refund of the amount but to no avail. BCDA claimed that it was exempt from all taxes and fees arising from or in relation to the sale, as provided under its charter, R.A No. 7227, as amended by RA 7917. Is BCDA exempt from Creditable Withholding Tax (CWT) on the sale of its BGC properties? By granting exemptions, the State does not forever waive the exercise of its sovereign prerogative. Thus, in withdrawing the exemption of the press (media) from VAT, the law merely subjects the same to the same tax burden to which other businesses have long ago been subject. It is not discriminatory as the exemptions are granted for a purpose, in some cases, to encourage agricultural production and, in other cases, for the personal benefit of the end-user rather than for profit. (Tolentino v. Secretary of Finance, G.R. No. 115455, 30 Oct. 1995) A: YES. Insofar as the sale of the "Expanded Big Delta Lots" is concerned, R.A. No. 7227 as amended by R.A. No. 7917 specifically exempts BCDA from taxes. R.A. No. 7227, as amended is a special law. The NIRC, being a general law, is not deemed to have amended or superseded the special law in the absence of an express repeal thereof in the NIRC itself. Sec. 8 of R.A. No. 7227, as amended by R.A. No. 7917, specifically governs BCDA's disposition of the properties enumerated therein and their sale proceeds. The law exempts these sale proceeds from all kinds of fees and taxes as the same law has Restrictions on Revocation of Tax Exemptions 1. Non-impairment clause 2. A municipal franchise once granted as a contract cannot be altered or amended except by actual consent of the parties concerned. 3. Adherence to form (e.g., if the exemption is granted by the Constitution, its revocation may be affected through constitutional amendment only) Where the tax exemption grant is in the form of a special law and not by a general law, even if the terms of the general act are broad enough to include the codes in the general law, unless there is manifest intent to repeal or alter the special law. (CIR v. CA, G.R. No. 95022, 23 Mar. 1992) 71 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law sanctioned by law. This method should be used by the taxpayer in good faith and at arm’s length. (CIR v. The Estate of Benigno Toda Jr., G.R. No. 30554, 28 Feb. 2004) already appropriated them for specific purposes and for designated beneficiaries. It is settled that between a general law and a special law, the latter prevails. For a special law reveals the legislative intent more clearly than a general law does. Verily, the special law should be deemed an exception to the general law. (CIR v. BCDA, G.R. No. 217898, 15 Jan. 2020) Q: Mr. Pascual’s income from leasing his property reaches the maximum rate of tax under the law. He donated ½ of his said property to a non-stock, non-profit educational institution whose income and assets are actually, directly, and exclusively used for educational purposes, and therefore qualified for tax exemption under Sec. 4(3), Art. XIV, of the Constitution and Sec. 3(h) of the NIRC. Having thus transferred a portion of his said asset, Mr. Pascual succeeded in paying a lesser tax on the rental income derived from his property. Is there tax avoidance or tax evasion? Explain. (2000 BAR) Q: Differentiate Tax Exemption from Tax Assumption. A: A tax exemption is a grant of immunity from payment of tax, while an assumption of tax liability does not provide immunity from payment of tax as it merely allows the shifting of the burden of taxation to another entity. (BIR Ruling No. ITAD 0232017) A: THERE IS TAX AVOIDANCE. Mr. Pascual has exploited a legally permissive alternative method to reduce his income by transferring part of his rental income to a tax-exempt entity through a donation of ½ of the income producing property. The donation is likewise exempt from donor’s tax. The donation is the legal means employed to transfer the incidence of income tax on the rental income. 7. ESCAPE FROM TAXATION SHIFTING OF TAX BURDEN Shifting is the transfer of the burden of tax by the original payer or the one on whom the tax was assessed or imposed to another or someone else without violating the law. Q: Maria Suerte, a Filipino citizen, purchased a lot in Makati City in 1980 at a price of P1 million. Said property has been leased to MAS Corporation, a domestic corporation engaged in manufacturing paper products, owned 99% by Maria Suerte. In October 2007, EIP Corporation, a real estate developer, expressed its desire to buy the Makati property at its fair market value of P300 million, payable as follows: (a) P60 million down payment; and (b) balance, payable equally in twenty four (24) monthly consecutive instalments. Upon the advice of a tax lawyer, Maria Suerte exchanged her Makati property for shares of stocks of MAS Corporation. A BIR ruling, confirming the tax-free exchange of property for shares of stock, was secured from the BIR National Office and a Certificate Authorizing Registration was issued by the Revenue District Officer (RDO) where the property was located. Subsequently, she sold Examples of taxes when shifting may apply are VAT, percentage tax, excise tax on excisable articles. NOTE: Only indirect taxes may be shifted. In case of direct taxes, the shifting of burden can only be made by contractual provision. Determination of Direct or Indirect Tax Refer to previous discussion on “Kinds of Taxes – As to burden or incidence.” – page 60) TAX AVOIDANCE A scheme where the taxpayer uses legally permissible alternative method of assessing taxable property or income, in order to avoid or reduce tax liability. It is a tax saving device within the means UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 72 General Principles of Taxation Tax Avoidance and Tax Evasion Distinguished her entire stockholdings in MAS Corporation to EIP Corporation for P300 million. In view of the tax advice, Maria Suerte paid only the capital gains tax of P44,850,000 (P299 million x 15%), instead of the corporate income tax of P89,700,000 (30% on P299 million gain from sale of real property). After evaluating the capital gains tax payment, the RDO wrote a letter to Maria Suerte, stating that she committed tax evasion. TAX AVOIDANCE Validity Legal and not subject to criminal penalty Minimization taxes A: NO. The exchange of the real estate property for the shares of stocks is considered as a legitimate tax avoidance scheme. (Sec. 40(C)(2)(b), NIRC) The sale of the shares of stocks of domestic corporation, which is a capital asset, is subject to a final tax of 15% on the net capital gains realized. (Sec. 24(C), NIRC) Tax evasion is a scheme where the taxpayer uses illegal or fraudulent means to defeat or lessen payment of a tax. It is a scheme used outside of those lawful means and when availed of, it usually subjects the taxpayer to further or additional civil or criminal liabilities. (CIR v. The Estate of Benigno Toda Jr., G.R. No. 30554, 28 Feb. 2004) Accompanying State of mind, which is “evil”, in “bad faith”, “willful”, or “deliberate and not accidental”; and 3. End to be achieved, i.e., payment of less than that known by the taxpayer to be legally due, or non-payment of tax when it is shown that the tax is due. (CIR v. Estate of Benigno Toda, G.R. No. 147188, 14 Sept. 2004) Almost always results in absence of tax payment 1. Failure of taxpayer to declare for taxation purposes his true and actual income derived from business for two (2) consecutive years. (Republic v. Gonzales, G.R. No. L-17744, 30 Apr. 1965) 2. Substantial under-declaration of income in the income tax return for four (4) consecutive years coupled by intentional overstatement of deductions. (Perez v. CTA, G.R. No. L10507, 30 May 1958) Q: HSBC transferred the assets of its Merchant Acquiring Business in the Philippines to GPAP Phils., Inc. The CIR issued a Final Assessment Notice (FAN) against HSBC for deficiency Income Tax on the sale of "Goodwill" of its Merchant Acquiring Business (MAB). HSBC filed its Administrative Protest. CIR issued a Final Decision on Disputed Assessment (FDDA). HSBC, thus, filed the present Petition for Review with the CTA Division. In its Answer, CIR claimed that the Deed of Assignment did not pertain to a sale of shares but to a sale or transfer of business or "Goodwill," which is subject to ordinary income tax and not capital gains tax. CTA Division granted HSBC’s petition and cancelled the FDDA and FAN. The CTA Division found that, contrary to CIR's assertion, the evidence bears that the transaction in question is a sale or transfer of capital asset, and not a sale of an ordinary asset which the CTA En Banc affirmed. Is the act of the Elements in determining Tax Evasion: (U-S-E) 2. of Evidence that may be Used to Prove Tax Evasion TAX EVASION OR TAX DODGING Course of action or failure of action is Unlawful; Illegal and subject to criminal penalty Effect Is the contention of the RDO tenable? Explain. 1. TAX EVASION 73 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law then subject the income to only 6% individual capital gains tax and not the 35% (presently 20/25% under CREATE) corporate income tax. (CIR v. The Estate of Benigno Toda Jr., G.R. No. 147188, 14 Sept. 2004) respondent one that falls as tax evasion? A: NO. A taxpayer has the legal right to decrease the amount of what otherwise would be his taxes or altogether avoid them by means which the law permits. This is called tax avoidance. It is the use of legal means to reduce tax liability. However, this method should be used by the taxpayer in good faith and at arm’s length. Q: Lucky V Corporation (Lucky) owns a 10storey building in a 2,000 square meter lot in the City of Makati. It sold the lot and building to Rainier for P80M. One month after, Rainier sold the lot and building to Healthy Smoke Company (HSC) for P200M. Lucky filed its annual tax return and declared its gain from the sale of the lot and building in the amount of P750,000. In this case, when HSBC transferred the assets of its MAB in the Philippines to GPAP-Phils., Inc. in exchange for shares, pursuant to the tax-free exchange provision under Section 40(C)(2) of the 1997 NIRC, as amended, and subsequently sold such shares to GPAP-Singapore and paid the corresponding CGT in accordance with Section 27(D)(2) of the same Code, it simply availed of tax saving devices within the means sanctioned by law. Further, this methodology was adopted by HSBC not merely to reduce taxes but also for a legitimate business purpose — i.e., the restructuring of the MAB to achieve more efficiency and economies of scale. Consequently, what was employed to minimize taxes was a tax avoidance scheme. (CIR v Co, et al. G.R., 241424 09 Dec. 2020, J. Caguioa) An investigation conducted by the BIR revealed that two months prior to the sale of the properties to Rainier, Lucky received P40M from HSC and not from Rainier. Said amount of P40M was debited by HSC and reflected in its trial balance as “other inv. – Lucky Bldg.” The month after, another P40M was reflected in HSC’s trial balance as “other inv. – Lucky Bldg.” The BIR concluded that there is tax evasion since the real buyer of the properties of Lucky is HSC and not Rainier. It issued an assessment for deficiency income tax in the amount of P79M against Lucky. Lucky argues that it resorted to tax avoidance or a tax saving device, which is allowed by the NIRC and BIR Rules since it paid the correct taxes based on its sale to Rainier. On the other hand, Rainier and HSC also paid the prescribed taxes arising from the sale by Rainier to HSC. Is the BIR correct in assessing taxes on Lucky? Explain. (2016 BAR) Q: CIC, thru its authorized representative BT, sold a 16-storey commercial building to RA for 100M who then sold it on the same day to RMI for 200M. These two transactions were evidenced by two separate Deeds of Absolute Sale notarized on the same day by the same notary public. For the sale of the property to RMI, RA paid a capital gains tax in the amount of P10M. Is the scheme perpetuated a case of tax evasion or tax avoidance? Q: YES. The sale of the property of Lucky to Rainier and consequently the sale by Rainier to HSC being prompted more on the mitigation of tax liabilities than for legitimate business purposes, therefore, constitutes tax evasion. The real buyer from Lucky is HSC as evidenced by the direct receipt of payments by the former from the latter where the latter recorded “other inv. – Lucky Bldg.” The scheme of resorting to a two-step transaction in selling the property to the ultimate buyer in order to escape paying higher taxes is considered as outside of those lawful means allowed in mitigating tax liabilities which makes Lucky criminally and A: IT IS A TAX EVASION SCHEME. The scheme resorted to by CIC in making it appear that there were two sales of the subject properties, i.e., from CIC to RA, and then from RA to RMI cannot be considered a legitimate tax planning, which is one way of tax avoidance. Such scheme is tainted with fraud. In the case, it is obvious that the objective of the sale to RA was to reduce the amount of tax to be paid especially that the transfer from him to RMI would UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 74 General Principles of Taxation civilly liable. Hence, the BIR is correct in assessing taxes on Lucky. (CIR v. The Estate of Benigno Toda Jr., G.R. No. 147188, 14 Sept. 2004) she should know that their ITRs should be filed and should have made sure that their ITRs were filed. She cannot just leave entirely to her husband the filing of her ITR. Petitioner also testified that she does not know how much her tax obligations was, nor did she bother to inquire or determine the facts surrounding the filing of her ITR. Such neglect or omission as aptly found by the former second division is tantamount to “deliberate ignorance or conscious avoidance.” Further, such noncompliance with the BIR’s notices clearly shows petitioner’s intent not to file her ITR. (People v. Kintanar, CTA E.B. Criminal Case No. 006, 03 Dec. 2010) Will Blindness Doctrine A taxpayer can no longer raise the defense that the errors on their tax returns are not their responsibility or that it is the fault of the accountants they hired. (Ingles, 2021) The only thing that needs to be proven is that the taxpayer was aware of his obligation to file the tax return, but he nevertheless voluntarily, knowingly, and intentionally failed to file the required returns. (People v. Kintanar, CTA E.B. Criminal Case No. 006, 03 Dec. 2010) 8. EQUITABLE RECOUPMENT It is a principle which allows a taxpayer, whose claim for refund has been barred due to prescription, to recover said tax by setting off the prescribed refund against a tax that may be due and collectible from him. Under this doctrine, the taxpayer is allowed to credit such refund to his existing tax liability. Q: Gloria Kintanar was charged of violation of Art. 255 of the NIRC for failure to make or file her ITRs. Kintanar claimed that entrusted the duty of filing the said returns to her husband who filed their ITRs, through their hired accountant. Is Gloria Kintanar guilty of tax evasion? NOTE: Equitable recoupment is allowed only in common-law countries, not in the Philippines. A: YES. The Supreme Court, in its resolution, affirmed the conviction of a taxpayer for tax evasion due to non-filing of income tax returns (ITR). The accused Gloria Kintanar was not able to satisfactorily convince the court that she did not deliberately and willfully neglect to file her ITR, considering that she entrusted the filing to her husband who caused the filing through an accountant. The court believed that the accused was not relieved from her criminal liability. As principal, she must assume responsibility over the acts of her accountant. (Sec. 51(f), NIRC) Q: True or False. The Doctrine of Equitable Recoupment allows a taxpayer whose claim for refund has prescribed to offset tax liabilities with his claim of overpayment. A: TRUE. The Doctrine of Equitable Recoupment arose from common law allowing offsetting of a prescribed claim for refund against a tax liability arising from the same transaction on which an overpayment is made, and underpayment is due. The doctrine finds no application to cases where the taxes involved are totally unrelated, and although it seems equitable, it is not allowed in our jurisdiction. (CIR v. UST, G.R. No. L-11274, 28 Nov. 1958) The Doctrine on Willful Blindness simply means that an individual or corporation can no longer say that the errors on their tax returns are not their responsibility or that it is the fault of the accountant they hired. Hence, the natural presumption is that the petitioner knows what her tax obligations under the law are. As a businesswoman, she should have taken ordinary care of her tax duties and obligations and 75 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law concurrent amounts. In the case of the taxpayer’s claim against the government, the government must have appropriated the amount thereto. (Domingo v. Garlitos, G.R. No. L-18994, 29 June 1963) 9. PROHIBITION ON COMPENSATION AND SETOFF Compensation or set-off shall take place when two persons, in their own right, are creditors and debtors of each other. (Art. 1278, Civil Code) Offsetting can be allowed only if the determination of the taxpayer’s liability is intertwined with the resolution of the claim for tax refund of erroneously or illegally collected taxes under Sec. 229 of the NIRC. However, it will not be allowed if the period to assess deficiency taxes in the excess of the amount claimed for refund had already prescribed. (CIR v. Toledo Power Company, G.R. No. 196415, 02 Dec. 2015) Rules governing Compensation or Set-off as Applied in Taxation GR: No set-off is admissible against the demands for taxes levied for general or local governmental purposes. Taxes cannot be subject to compensation because the government and the taxpayer are not creditors and debtors of each other. (Philex Mining Corporation v. CIR, G.R. No. 125704, 28 Aug. 1998; CIR v. Toledo Power Company, G.R. No. 196415, 02 Dec. 2015) Q: Can an assessment for a local tax be the subject of set-off or compensation against a final judgment for a sum of money obtained by a taxpayer against the local government that made the assessment? (2005 BAR) NOTE: The prevalent rule in our jurisdiction disfavors set-off or legal compensation of tax obligations for the following reasons: 1. Taxes are of a distinct kind, essence, and nature, and these impositions cannot be so classed in merely the same category as ordinary obligations; 2. The applicable laws and principles governing each are peculiar, not necessarily common to each; and 3. A: NO. Taxes and debts are of different nature and character. Taxes cannot be subject to compensation for the simple reason that the government and the taxpayers are not creditors and debtors of each other, debts are due to the government in its corporate capacity, while taxes are due to the government in its sovereign capacity. (South African Airways v. CIR, G.R. No. 180356, 16 Feb. 2010) NOTE: It is only when the local tax assessment and the final judgment are both overdue, demandable, and fully liquidated that set-off or compensation may be allowed. (Domingo v. Garlitos, G.R. No. L18994, 09 June 1963) Public policy is better subserved if the integrity and independence of taxes be maintained under the Lifeblood Doctrine. The collection of a tax cannot await the results of a lawsuit against the government. (Republic v. Mambulao Lumber Company, G.R. No. L-177725, 28 Feb. 1962; Francia v. IAC, G.R. No. L-67649, 28 June 1988; Caltex Philippines, Inc. v. Commission on Audit, G.R. No. 92585, 08 May 1992) XPN: Where both the claims of the government and the taxpayer against each other have already become due, demandable, and fully liquidated, compensation takes place by operation of law and both obligations are extinguished to their UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 76 Legislative Department right of the people peaceably to assemble and petition the government for redress of grievances. (Sec. 4, Art. III, 1987 Constitution) III. LEGISLATIVE DEPARTMENT 2. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. (Sec. 5, Art. III, 1987 Constitution) 3. No law impairing the obligation of contracts shall be passed. (Sec. 10, Art. III, 1987 Constitution) 4. No ex post facto law or bill of attainder shall be enacted (Sec. 22, Art. III, 1987 Constitution) 5. No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. (Sec. 29 (1), Art. VI, 1987 Constitution) 6. 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, 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 leposarium. (Sec. 29 (2), Art. VI, 1987 Constitution) 7. All appropriation, revenue, or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills, shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments. (Sec. 24, Art. VI, 1987 Constitution) 8. The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. (Sec. 25(1), Art. VI, 1987 Constitution) 9. No provision or enactment shall be embraced in the general appropriations bill unless it A. LEGISLATIVE POWER Legislative Power (P-E-A-RL) The power or competence to Propose, Enact, Amend, or Repeal Laws. It is vested in the Congress which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. (Sec. 1, Art. VI, 1987 Constitution) Legislative powers of Congress 1. 2. 3. 4. 5. General plenary power (Sec. 1, Art. VI, 1987 Constitution) Specific power of appropriation Taxation and expropriation Legislative investigation Question hour 1. SCOPE AND LIMITATIONS The following may exercise legislative power (Co-Lo-R) 1. 2. 3. Congress; Regional/Local Government Units; and The People through initiative Referendum. (2002 BAR) and Doctrine of Shifting Majority For each House of Congress to pass a bill, only the votes of the majority of those present in the session, there being a quorum, is required. (Avelino v. Cuenco, G.R. No. L-2821, 04 Mar. 1949) Limitations on the Legislative Powers of Congress 1. No law shall be passed abridging freedom of speech, of expression, or of the press, or the 77 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law 15. The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. (Sec. 28(1), Art. VI, 1987 Constitution) relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates. (Sec. 25 (2), Art. VI, 1987 Constitution) 16. 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. (Sec. 28(2), Art. VI, 1987 Constitution) 10. The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies. (Sec. 25 (3), Art. VI, 1987 Constitution) 11. A special appropriations bill shall specify the purpose for which it is intended and shall be supported by funds actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposed therein. (Sec. 25 (4), Art. VI, 1987 Constitution) 17. No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress. (Sec. 28(4), Art. VI, 1987 Constitution) 12. 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. (Sec. 25(5), Art. VI, 1987 Constitution) 18. No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. (Sec. 29(1), Art. VI, 1987 Constitution) 19. No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this constitution without its advice and concurrence. (Sec. 30, Art. VI, 1987 Constitution) 20. No law granting a title of royalty or nobility shall be enacted. (Sec. 31, Art. VI, 1987 Constitution) 13. Discretionary funds appropriated for particular officials shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law. (Sec. 25(6), Art. VI, 1987 Constitution) XPN: See Delegation of Legislative Powers. Substantive limitations 14. If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until the general appropriations bill is passed by the Congress. (Sec. 25(7), Art. VI, 1987 Constitution) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 1. 78 Express: a. Bill of Rights (Art. III, 1987 Constitution) b. On Appropriations (Secs. 25 and 29 (1&2), Art. VI, 1987 Constitution) c. On Taxation (Secs. 28 and 29(3), Art. VI, 1987 Constitution) d. On Constitutional appellate jurisdiction of SC (Sec. 30, Art. VI, 1987 Constitution) e. No law granting a title of royalty or nobility shall be enacted. (Sec. 31, Art. VI, 1987 Constitution) Legislative Department f. 2. 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. (Sec. 29(2), Art. VI, 1987 Constitution) Implied: a. Prohibition against irrepealable laws the passage 2. PRINCIPLE OF NON-DELEGABILITY; EXCEPTIONS GR: What has been delegated cannot be delegated. It is based upon the ethical principle that such delegated power constitutes not only as a right, but also as a duty to be performed by the delegate through the instrumentality of his own judgment and not through the intervening mind of another. A further delegation of such power, unless permitted by the sovereign power, would constitute a negation of this duty in violation of the trust reposed in the delegate. (Cruz, 2014) of NOTE: Irrepealable laws deprive succeeding legislatures of the complete freedom in crafting laws appropriate to the operative milieu. The act of one legislature is not binding upon and does not tie the hands of future legislatures. (The City of Davao v. GSIS, G.R. No. 127383. 18 Aug. 2005) b. XPNS: Non-delegation of powers 1. Delegations to the People at large; XPNs to Non-Delegation Doctrine: i. Delegation to the President (Sec. 23(2) and Sec. 28(2), Art. VI, 1987 Constitution ii. Delegation to the people (Sec 32, Art. VI, 1987 Constitution a. R.A. No. 6735 – The Initiative Referendum Act as authorized by constitutional mandate for the creation system of legislation by initiative referendum. b. A plebiscite is required in the creation, division, merger, abolition of province, city, municipality, or barangay or the substantial alteration of its boundary. (Sec. 10, R.A. No. 7160) Procedural limitations 1. Every bill passed by Congress shall embrace only one subject which shall be expressed in its title. (Sec. 26(1), Art. VI, 1987 Constitution) 2. Three (3) readings on separate days; printed copies of the bill in its final form to be distributed to its members 3 days before its passage, except when the President certifies to its immediate enactment to meet a public calamity or emergency; upon its last reading, no amendment shall be allowed, and the vote thereon shall be taken immediately, and the yeas and nays entered into the Journal. (Sec. 26(2), Art. VI, 1987 Constitution) 3. and the of a and NOTE: These are more of reservations of power by the people than delegations considering the fact that the people are repositories of all governmental powers. 2. 3. 4. 5. Emergency powers of the President; Tariff powers of the President; Delegation to local governments; and Delegation to Administrative bodies of the power of subordinate legislation. (Cruz, 2014) Non-legislative powers Appropriation bills, revenue bills, tariff bills, bills authorizing the increase of public debt, bills of local application and private bills shall originate exclusively in the House of Representatives. (Sec. 24, Art. VI, 1987 Constitution) 1. Power to declare the existence of state of war (Sec. 23(1), Art. VI, 1987 Constitution) NOTE: Under Sec. 23(2), Art. VI, 1987 Constitution, Congress may grant the President 79 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law emergency powers subject to the following conditions: (Wa-Li-Re-N) a. b. c. d. 2. 3. 4. effective, but it is not, in substance, the sole criterion for validity and effectivity. Ultimately, a treaty must conform to the Constitution and statutes. (Pangilinan v. Cayetano, G.R. Nos. 238875, 239483, 240954, 16 Mar. 2021) There is a War or other national emergency; The grant of emergency powers must be for a Limited period; The grant of emergency powers is subject to such Restrictions as Congress may prescribe; and The emergency powers must be exercised to carry out a National policy declared by Congress. 6. 7. Power to act as Board of Canvassers in election of President (Sec. 10, Art. VII, 1987 Constitution) 9. Power relative to natural resources. (Sec. 2, Art. XII, 1987 Constitution) a. b. c. Power to call a special election for President and Vice-President (Sec. 10, Art. VII, 1987 Constitution) Election of officers Promulgate internal rules Disciplinary powers B. HOUSES OF CONGRESS; COMPOSITIONS AND QUALIFICATIONS Power to judge President’s physical fitness to discharge the functions of the Presidency (Sec. 11, Art. VII, 1987 Constitution) Composition of Congress The Philippine Congress is bicameral in nature, composed of: 1. Senate 2. House of Representatives a. District representatives b. Party-list representatives 1. SENATE Power to revoke or extend suspension of the privilege of the writ of habeas corpus or declaration of martial law (Sec. 18, Art. VII, 1987 Constitution) Composition, Qualifications, and Term of Office of Members of Congress Power to concur in Presidential amnesties. Concurrence of majority of all the members of Congress (Sec. 19, Art. VII, 1987 Constitution) SENATE HOUSE OF REPRESENTATIVES As to Composition GR: Not more than 250 members Power to concur in treaties or international agreements; concurrence of at least 2/3 of all the members of the Senate (Sec. 21, Art. VII, 1987 Constitution) 24 Senators (Sec. 2, Art. XPN: Unless otherwise VI, 1987 Constitution) fixed by law. (Sec. 5(1), Art. VI, 1987 Constitution) NOTE: Senate concurrence is the formal act that renders a treaty or international agreement UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Power to confirm certain appointments/ nominations made by the President (Secs. 9 and 16, Art. VII, 1987 Constitution) 10. Power of internal organization (Sec. 16, Art. VI, 1987 Constitution) NOTE: When allegations regarding the health of the President are merely based on what one perceived from the news articles, have been characterized by the Supreme Court as hearsay evidence, twice removed, and are thus without any probative value, unless offered for a purpose other than proving the truth of the matter asserted. (De Leon v. President Duterte, G.R. No. 252118. 8 May 2020) 5. 8. 80 Legislative Department NOTE: 20% of the total number of representatives shall be party-list representatives. (Sec. 5(2), Art. VI, 1987 Constitution) As to the effect of Voluntary Renunciation 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. (Sec. 4 and 7, Art. VI, 1987 Constitution) As to Qualifications (1993, 1999 BAR) NOTE: The list of qualifications of Members of Congress provided under the Constitution is exclusive. 1. Natural-born citizen of the Philippines; 2. At least 25 years of age on the day of election 1. Natural-born citizen of the Philippines; 2. At least 35 years of age; 3. Able to read and write; 4. A registered voter; 5. Resident of the Philippines for not less than 2 years immediately preceding the day of election. (Sec. 3, Art. VI, 1987 Constitution) Domicile Requirement In Imelda Romualdez-Marcos v. COMELEC, (G.R. No. 119976, 18 Sept. 1995) the Court upheld the qualification of Mrs. Imelda Romualdez-Marcos (IRM) despite her own declaration in her certificate of candidacy that she had resided in the district for only seven (7) months for the following reasons: XPN: Youth sector nominees must be at least 25 years of age but not more than 30 years of age on the day of election. (Sec. 9(2), R.A. No. 7941) 3. Able to read and write; 4. Except the party-list representatives, a registered voter in the district in which he shall be elected; 5. Resident thereof for a period of not less than 1 year immediately preceding the day of the election. (Sec. 6, Art. VI, 1987 Constitution) A minor follows the domicile of his parents; Tacloban became IRM’s domicile of origin by operation of law when her father brought the family to Leyte; 2. Domicile of origin is lost only when: a. b. c. As to Term of office (2001 BAR) 3. 6 years (Sec. 4, Art. VI, 3 years (Sec. 7, Art. VI, 1987 1987 Constitution) Constitution) Note: Senators have a term of office of six years on a staggered basis - each set of twelve senators end their term three years apart. there is actual removal or change of domicile a bona fide intention of abandoning the former residence and establishing a new one acts which correspond with the purpose The wife does not automatically gain the husband’s domicile because the term “residence” in Civil Law does not mean the same thing in Political Law; when IRM married Marcos in 1954, she kept her domicile of origin and merely gained a new home, not a domicilium necessarium (necessary domicile); and NOTE: Domicile requires the fact of presence coupled with the intention to remain (animus manendi) or intention to return when absent (animus revertendi) As to Term Limit Not more than consecutive terms 1. 2 Not more than 3 consecutive terms (ibid.) 4. 81 Even assuming that she gained a new domicile after her marriage and acquired the right to UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law choose a new one only after her husband dies, her acts following her return to the country clearly indicates that she chose Tacloban, her domicile of origin, as her domicile of choice. (Imelda Romualdez-Marcos v. COMELEC, G.R. No. 119976, 18 Sept. 1995) preceeding election. Name in the ballot Elected personally, by name. One who has been declared by competent authority as insane or incompetent; or Does not lose seat 2. One who has been sentenced by final judgment for: (SIR-18-M) a. Subversion; b. Insurrection; c. Rebellion; d. Any offense for which he has been sentenced to a penalty of more than 18 months; or e. A crime involving Moral turpitude. 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. Effect of defeat in the election A district representative is not prevented from A party-list running again as a representative cannot district sit if he ran and lost in representative if he the previous election. lost in the previous election. Effect of change in party affiliation within months prior to election A change in affiliation A change in affiliation within 6 months prior within months prior to election prohibits to election does not the party-list prevent a district representative from representative from listing as running under his representative under new party. his new party or organization. 2. HOUSE OF REPRESENTATIVES Composition of the HoR (2002, 2007 BAR) DISTRICT PARTY-LIST REPRESENTATIVE REPRESENTATIVE As to who will vote Elected nationally (those garnering at least 2% of all votes cast for the party-list system are entitled to 1 seat, which is increased according to proportional representation, but is in no way to exceed 3 seats per organization.) Residency requirement Must be a resident of his legislative district No special residency for at least 1 year requirement. immediately UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Loses his seat; in which case he will be substituted by another qualified person in the party or organization based on the list submitted to the COMELEC. As to vacancy XPN: When the offender has been given plenary or pardon or granted amnesty. (Sec. 12, B.P. 881) Elected by the constituents of his respective district. Voted upon by party or organization. Effect of change in party affiliation during incumbency Grounds for Disqualification of Members of Congress 1. the 82 Legislative Department Manner of Reapportionment a. DISTRICT REPRESENTATIVES AND QUESTIONS OF APPORTIONMENT Reapportionment is the realignment or change in legislative districts brought about by changes in population and mandated by the constitutional requirement of equality of representation. (Bagabuyo v. COMELEC, G.R. No. 176970, 08 Dec. 2008) District Representatives Those who are elected from legislative districts apportioned among the provinces, cities and the Metropolitan Manila area. (Sec. 5(1), Art. VI, 1987 Constitution) Reapportionment may be made through a special law. The Constitution does not preclude the Congress from increasing its membership by passing a law other than a general reapportionment law. To hold that reapportionment can only be made through a general apportionment law, with a review of all the legislative districts allotted to each local government unit nationwide, would create an inequitable situation where a new city or province created by Congress will be denied legislative representation for an indeterminate period of time. Thus, a law converting a municipality into a highlyurbanized city automatically creates a new legislative district and, consequently, increases the membership of the HoR. (Mariano, Jr. v. COMELEC, G.R. No. 118577, 07 Mar. 1995) Apportionment of Legislative Districts Legislative districts are apportioned in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio. (Sec. 5(1), Art. VI, 1987 Constitution) Legislative apportionment is the determination of the number of representatives which a State, country, or other subdivision may send to a legislative body. 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. (Bagabuyo v. COMELEC, G.R. No. 176970, 08 Dec. 2008) NOTE: The Constitution does not require a plebiscite for the creation of a new legislative district by a legislative reapportionment. It is required only for the creation of new local government units. (Bagabuyo v. COMELEC, 2008, G.R. No. 176970, 08 Dec. 2008) (2015 BAR) Each city with a population of at least 250,000 shall have at least one representative. Each province, irrespective of the number of inhabitants, shall have at least one representative. (Sec. 5(3), Art. VI, 1987 Constitution) Gerrymandering (2014 BAR) While Sec. 5(3) of Art. VI requires a city to have a minimum population of 250,000 to be entitled to one representative, it does not have to increase its population by another 250,000 to be entitled to an additional district. (Senator Aquino III v. COMELEC, G.R. No. 189793, 07 Apr. 2010) Formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party. It is not allowed because Sec. 5(3), Art. VI, of the Constitution provides that each district shall comprise, as far as practicable, contiguous, compact and adjacent territory. (Bernas, ibid.) NOTE: When one of the municipalities of a congressional district is converted to a city that is large enough to entitle it to one legislative district, the incidental effect is the splitting of district into two. The incidental arising of a new district in this manner need not be preceded by a census. (Tobias v. Abalos, G.R. No. L-114783, 08 Dec. 1994) Q: Congress enacted a law creating the legislative district of Malolos based on a certification of the demographic projection from the National Statistics Office (NSO) stating that by 2010, Malolos is expected to reach the population of 250,000, hence entitling it to one legislative district. Is the law valid? 83 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law administration is not divided along territorial lines. Its territory remains whole and intact. Thus, Sec. 10, Art. X of the Constitution does not come into play. A: NO. Congress cannot establish a new legislative district based on a projected population of the NSO to meet the population requirement of the Constitution in the reapportionment of legislative districts. No plebiscite is required for the apportionment or reapportionment of legislative districts. A legislative district is not a political subdivision through which functions of government are carried out. It can more appropriately be described as a representative unit that merely delineates the areas occupied by the people who will choose a representative in their national affairs. A plebiscite is required only for the creation, division, merger, or abolition of local government units. (Bagabuyo v. COMELEC, G.R. No. 176970, 08 Dec. 2008) Q: Congress enacted a law reapportioning the composition of the Province of Camarines Sur and created legislative districts thereon. Frankie challenged the law because it runs afoul to the constitutional requirement that there must be at least a population of 250,000 to create a legislative district. COMELEC argued that the mentioned requirement does not apply to provinces. Is the 250,000-population standard an indispensable requirement for the creation of a legislative district in provinces? b. PARTY-LIST SYSTEM Party-list System A: NO. Sec. 5(3), Art. VI of the 1987 Constitution which requires 250,000 minimum population apply only for a city to be entitled to a representative but not for a province. A mechanism of proportional representation in the election of representatives to the HoR from national, regional and sectoral parties or organizations or coalitions thereof registered with the COMELEC. (Sec. 3(a), R.A. No. 7941) The provision draws a plain and clear distinction between the entitlement of a city to a district, on one hand, and the entitlement of a province to a district on the other. For while a province is entitled to at least a representative, with nothing mentioned about population, a city must first meet a population minimum of 250,000 in order to be similarly entitled. (Aquino III v. COMELEC, G.R. No. 189793, 07 Apr. 2010) NOTE: Party-list representatives shall constitute 20% of the total number of representatives in the HoR including those under the party list. (Sec. 5(2), Art. VI, 1987 Constitution) (2007 BAR) Purpose of the Party-list System To make the marginalized and the underrepresented not merely passive recipients of the State’s benevolence, but active participants in the mainstream of representative democracy. (Ang Bagong Bayani v. COMELEC, G.R. No. 147589, 26 June 2001) Q: Congress passed a law providing for the apportionment of a new legislative district in CDO City. COMELEC subsequently issued a resolution implementing said law. Jovi now assails the resolution, contending that rules for the conduct of a plebiscite must first be laid down, in compliance with the requirements under the Constitution. According to Jovi, the apportionment is a conversion and division of CDO City, falling under Sec. 10 Art. X of the Constitution, which provides for the rule on creation, division, merger, and abolition of LGUs. Decide. To democratize political power by giving political parties that cannot win in legislative district elections a chance to win seats in the HoR. (Atong Paglaum, Inc. v. COMELEC, G.R. 203766, 02 Apr. 2013) A: There is no need for a plebiscite. CDO City politically remains a single unit and its UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 84 Legislative Department National and regional parties or organizations are different from sectoral parties or organizations. National and regional parties or organizations need not be organized along sectoral lines and need not represent any particular sector. (Atong Paglaum, Inc. v. COMELEC, ibid.) Different Parties under the Party-list System No votes cast in favor of political party, organization or coalition shall be valid except for those registered under the party-list system. (Sec. 7, Art. IX-C, 1987 Constitution) (Pol-Nat-Re-Se2-Coal) 1. 2. National party – Its constituency is spread over the geographical territory of at least a majority of the regions. 3. Regional party – Its constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region. 4. Sectoral party – Refers to an organized group of citizens belonging to any of the following sectors: labor, peasant, fisherfolk, urban poor, indigenous, cultural communities, elderly, handicapped, women, youth, veterans, overseas workers and professionals, whose principal advocacy pertains to the special interest and concerns of their sectors. 5. 6. National and Regional parties need not represent the “marginalized and underrepresented” sectors Political party – Refers to an organized group of citizens advocating ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidate for public office. To require all national and regional parties under the party-list system to represent the “marginalized and underrepresented” is to deprive and exclude, by judicial fiat, ideology-based and cause-oriented parties from the party-list system. To exclude them from the party-list system is to prevent them from joining the parliamentary struggle, leaving as their only option armed struggle. To exclude them from the party-list system is, apart from being obviously senseless, patently contrary to the clear intent and express wording of the 1987 Constitution and R.A. No. 7941. (Atong Paglaum v. COMELEC, ibid.) NOTE: Major political parties cannot participate in the party-list elections since they neither lack “welldefined political constituencies” nor represent “marginalized and underrepresented” sectors. (Atong Paglaum v. COMELEC, ibid.) However, the participation of major political parties may be through their sectoral wings, a majority of whose members are “marginalized and underrepresented” or lacking in “well-defined political constituencies.” (Atong Paglaum v. COMELEC, ibid.) Sectoral Organization – Refers to a group of citizens who share similar physical attributes or characteristics, employment, interest or concerns. Nomination of Party-list Representatives Coalition – Refers to an aggregation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes. (Sec. 3, R.A. No. 7941) Each registered party, organization or coalition shall submit to the COMELEC not later than 45 days before the election a list of names, not less than five (5), from which party-list representative shall be chosen in case it obtains the required number of votes. (Sec. 8, R.A. No. 7941) Composition of the Party-list System 1. National parties or organizations 2. Regional parties or organizations; and 3. Sectoral parties or organizations. 85 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law Limitations 1. 2. 3. 4. 6. A person may be nominated in one (1) list only. Only persons who have given their consent in writing may be named in the list. The list shall not include: a. any candidate for any elective office; or b. a person who has lost his bid for elective office in the immediately preceding election; No change shall be allowed after the list shall have been submitted to the COMELEC. XPN: Change may be allowed in cases where: a. nominee dies; b. withdraws in writing his nomination; or c. becomes incapacitated NOTE: Any youth representative who attains the age of 30 during his term shall be allowed to continue in office until the expiration of his term. Disclosure of Names of Party-List Nominees The COMELEC has a constitutional duty to disclose and release the names of the nominees of the partylist groups, in accordance with Sec. 7, Art. III of the 1987 Constitution on the right of the people to information on matters of public concern as complemented by the policy of full disclosure and transparency in Government. (Bantay RA 7941 v. COMELEC, G.R. No. 177271, G.R. No. 177314, 04 May 2007) NOTE: Incumbent sectoral representatives in the HoR who are nominated in the party-list system shall not be considered resigned. NOTE: It is the party-list organization that is voted for, not their candidates. However, it is the party-list representatives who are seated or elected into office, not their parties or organizations. (Abayon v. HRET, G.R. No. 189466, 11 Feb. 2010) Effect of Failure to Submit a List of Nominees Failure to submit the list of five (5) nominees before the election warrants the cancellation of the party’s registration. (Cocofed-Philippines Coconut Producers Federation, Inc. v. COMELEC, G.R. No. 207026, 06 Aug. 2013) Effect of the change in affiliation of any Party-list Representative Qualifications of a Party-list Nominee (Nat-Re390-25) 1. 2. 3. 4. 5. Any elected party-list representative who changes his party-list group or sectoral affiliation during his term of office shall forfeit his seat. (Amores v. HRET, G.R. No. 189600, 29 June 201) Natural- born citizen of the Philippines; Registered voter; Resident of the Philippines for at least 1 year immediately preceding the day of the election; Able to Read and write; Bona fide member of the party or organization which he seeks to represent for at least 90 days preceding election day; and NOTE: If he changes his political party or sectoral affiliation within 6 months before an election, he shall not be eligible for nomination as party-list representative under his new party or organization. (Amores v. HRET, Ibid.) Vacancy in the seat reserved for Party-list Representatives NOTE: In the case of sectoral parties, to be a bona fide party-list nominee, one must either belong to the sector represented, or have a track record of advocacy for such sector. (Atong Paglaum v. COMELEC, ibid.) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES At least 25 years of age on the day of the election. (For youth sector nominees, he must be at least 25 years and not more than 30 years of age) It shall be automatically occupied by the next representative from the list of nominees in the order submitted by the same party to the COMELEC and such representative shall serve for the 86 Legislative Department Guidelines in the allocation of seats for Party-list Representatives under Sec. 11 of RA 7941 (2014 BAR) unexpired term. If the list is exhausted, the party, organization, or coalition concerned shall submit additional nominees. (Sec. 16, R.A. No. 7941) Formula mandated by the Constitution in determining the number of Party-list Representatives 1. The number of seats available to party-list representatives is based on the ratio of party-list representatives to the total number of representatives. Accordingly, we compute the number of seats available to party-list representatives from the number of legislative districts. 2. 3. 4. . × 0.20 = Number of seats available The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. The parties, organizations, and coalitions receiving at least 2% of the total votes cast for the party-list system shall be entitled to one guaranteed seat each. Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be entitled to additional seats in proportion to their total number of votes until all the additional seats are allocated. Each party, organization, or coalition shall be entitled to not more than 3 seats. NOTE: In computing the additional seats, the guaranteed seats shall no longer be included because they have already been allocated at one seat each to every two-percenter. Thus, the remaining available seats for allocation as “additional seats” are the maximum seats reserved under the party-list system less the guaranteed seats. Fractional seats are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of fractional seats. (BANAT v. COMELEC, G.R. No. 179271, 21 Apr. 2009) Simpler formula: No. of seats available to legislative districts divided by 4 Number of seats available to legislative districts 4 2% threshold as regards the allocation of additional seats is not valid anymore The above formula allows the corresponding increase in the number of seats available for partylist representatives whenever a legislative district is created by law. The Court struck down the 2% threshold only in relation to the distribution of the additional seats as found in the second clause of Sec. 11(b) of R.A. No. 7941. The 2% threshold presents an unwarranted obstacle to the full implementation of Sec. 5(2), Art. VI of the Constitution and prevents the attainment of the “broadest possible representation of party, sectoral or group interests in the House of Representatives.” (BANAT v. COMELEC, G.R. No. 179271, 21 Apr. 2009) After prescribing the ratio of the number of partylist representatives to the total number of representatives, the Constitution left the manner of allocating the seats available to party-list representatives to the wisdom of the legislature. (BANAT v. COMELEC, G.R. No. 179271, 21 Apr. 2009) NOTE: The 2% threshold is constitutional only insofar as the determination of the guaranteed seat is concerned. 87 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law Refusal and/or Cancellation of Registration failure to qualify for a party-list seat in two preceding elections for the constituency in which it has registered. (PGBI v. COMELEC, G.R. No. 190529, 29 Apr. 2010) The COMELEC may, motu proprio or upon a verified complaint of any interested party, refuse or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition or any of the following grounds: 1. 2. C. LEGISLATIVE PRIVILEGES, INHIBITIONS, AND QUALIFICATIONS It is a religious sect or denomination, organization or association organized for religious purposes; Legislative Privileges/Parliamentary Immunities It advocates violence or unlawful means to seek its goals; 3. It is a foreign party or organization; 4. It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members, or indirectly through third parties, for partisan election purposes; 5. It violates or fails to comply with laws, rules or regulations relating to elections 6. It declares untruthful statements in its petition; 7. It has ceased to exist for at least one (1) year; 8. It fails to participate in the last two (2) preceding elections; 9. It fails to obtain at least 2% of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered (Sec. 6, R.A. No. 7941) 1. Immunity from Arrest This grants the legislators the privilege from arrest while Congress is “in session”, whether regular or special, with respect to offenses that are punishable by imprisonment for not more than 6 years. (Sec. 11, Art. VI, 1987 Constitution) This applies regardless of whether or not he is attending the session. (People v. Jalosjos, G.R. Nos. 132875-76, 03 Feb. 2000) NOTE: Session covers the entire period from its initial convening until its final adjournment. 2. Legislative Privilege Speech No member shall be questioned or held liable in any forum other than his respective Congressional body for any debate or speech in Congress or in any committee thereof. (Sec. 11, Art. VI, 1987 Constitution; Pobre v. Sen. Santiago, A.C. No. 7399, 25 Aug. 2009) Purpose of Parliamentary Immunities It is not for the benefit of the officials; rather, it is to protect and support the rights of the people by ensuring that their representatives are doing their jobs according to the dictates of their conscience and to ensure the attendance of Congressman. (Pobre v. Sen. Santiago, A.C. No. 7399, 25 Aug. 2009) The Banat Ruling NOTE: Section 6(8) of RA 7941 provides for two separate grounds for delisting. These grounds cannot be mixed or combined to support delisting. Requirements for the privilege of speech and debate to operate The disqualification for failure to garner 2% partylist votes in two preceding elections should now be understood, in light of the Banat ruling, to mean UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 1. 88 Remarks or comments are made while in session; and Legislative Department 2. Must be made in connection with the discharge of official duties (Cruz, 2014) A: NO. The remarks of Sen. Trillanes fall outside the privilege of speech or debate under Sec. 11, Art. VI of the 1987 Constitution. The statements were clearly not part of any speech delivered in the Senate or any of its committees. They were not also spoken during any debate. It cannot likewise be successfully contended that they were made in the official discharge or performance of Sen. Trillanes’ duties as a Senator, as the remarks were not part of or integral to the legislative process. 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. Coverage of speech or debate It 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 it is in session. It further includes bills introduced in Congress, whether the same is in session or not, and 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, 03 Aug. 1966) A lawmaker may well be able to discharge his duties and legislate without having to communicate with the press. A lawmaker’s participation in media interviews is not a legislative act, but is “political in nature,” outside of the ambit of the immunity conferred under the Speech or Debate Clause in the 1987 Constitution. The privilege arises not because of the statement made by a lawmaker, but because it is uttered in furtherance of legislation. (Sen. Antonio Trillanes vs. Hon. Evangeline CastilloMarigomen, G.R. No. 223451, 14 Mar. 2018) Limitations on Legislative Privilege 1. 2. Protection is only against the forum other than the Congress itself. Thus, for defamatory remarks, which are otherwise privileged, a member may be sanctioned by either the Senate or the HoR, as the case may be. The “speech or debate” must be made in performance of their duties as members of Congress. Purpose of legislative privilege The purpose of the privilege is to ensure the effective discharge of functions of Congress. The privilege may be abused but it is said that such is not so damaging or detrimental as compared to the denial or withdrawal of such privilege. (Pobre v. Sen. Defensor-Santiago, A.C. No. 7399, 25 Aug. 2009) Q: The Senate Committee on Accountability of Public Officials and Investigation conducted an investigation, in aid of legislation, regarding the alleged P1.601 billion overpricing of the new 11storey Makati City Hall II Parking Building. During media interviews in the Senate, particularly during gaps and breaks in the plenary hearings, Sen. Trillanes expressed his opinion that Antonio Tiu appears to be a “front” or “nominee” or is acting as a “dummy” of the actual and beneficial owner of the Hacienda Binay. As such, Tiu filed a complaint for damages against Sen. Trillanes. Consequently, Sen. Trillanes asked for the dismissal of the case claiming he enjoys parliamentary immunity. Is Sen. Trillanes correct? Congress “in recess” If the recess was called for in between a regular or special session, the Congress is still considered in session. But if the recess was the 30-day compulsory recess, Congress is not in session. (Sec. 15, Art. VI, 1987 Constitution) 89 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law Senate and the House of Representatives approving such increase. (Sec. 10, Art. VI, 1987 Constitution) Prohibitions attached to a legislator during his term INCOMPATIBLE OFFICE Particular inhibitions attached to the respective offices of Senators and Representatives FORBIDDEN OFFICE 2nd sentence of Sec. 13, Art. VI Senator or any member of HoR Cannot be appointed to any office which have been created, or the emoluments thereof increased May not hold any during the term for other office or which he was elected employment in the Government, during NOTE: After such his term without term, and even if he is forfeiting his seat re-elected, the disqualification no longer applies and he may therefore be appointed to the office Automatically forfeits seat upon the member’s assumption of such other office 1st sentence of Sec. 13, Art.VI XPN: holds other office in ex-officio capacity Purpose: to prevent him from owing loyalty to another branch of government, to the detriment of the independence of legislature and the doctrine of separation of powers. (Cruz, 2014) More of an inhibition 1. Personally appearing as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial or other administrative bodies is prohibited. (Sec. 14, Art. VI, 1987 Constitution) (2004 BAR) NOTE: Since the practice of law covers a wide range of legislative activities (Cayetano v. Monsod, G.R. No. 100113, 03 Sept. 1991) the Senator or member of HoR is allowed to engage in other aspects of the law practice such as the giving of legal advice to clients, negotiating contracts on behalf of clients which necessitates legal knowledge, preparation of documents and similar others. (Pineda, 2009) 2. Even if he is willing to forfeit his seat, he may not be appointed to said office Upon assumption of office, all members of the Senate and HoR shall make a full disclosure of their financial and business interests. They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors. (Sec. 12, Art. VI, 1987 Constitution) (2004, 2010 BAR) Disqualifications attached to Senators and Representatives and their applications Purpose: to prevent trafficking in public office. DISQUALIFICATION Incompatible Office More of prohibition a Forbidden Office Rule on increase in salaries of members of Congress Increase in the salaries shall take effect after the expiration of the full term of all the members of the UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 90 WHEN APPLICABLE During his term If he does so, he forfeits his seat. (Sec. 13(1), Art. VI, 1987 Constitution) If the office was created or the emoluments thereof increased during the term for which he was elected. (Sec. 13(2), Art. VI, 1987 Constitution) Legislative Department Cannot personally appear as counsel before any court of justice, electoral tribunal, quasi-judicial and administrative bodies. (2004 BAR) Cannot be financially interested, directly or indirectly, in any contract with or in any franchise, or special privilege granted by the Government. (2004 BAR) Cannot intervene in any matter before any office of the government for his pecuniary benefit or where he may be called upon to act on account of his office. (2004 BAR) Effect if there is no quorum Each House may adjourn from day to day and may compel the attendance of absent members in such manner and under such penalties as each House may provide. (Sec. 16(2), Art. VI, 1987 Constitution) During his term of office. (Sec. 14, Art. VI, 1987 Constitution) NOTE: The members of the Congress cannot compel absent members to attend sessions if the reason for the absence is a legitimate one. The confinement of a Congressman charged with a non-bailable offense is certainly authorized by law and has constitutional foundations. (People v. Jalosjos, G.R. No. 132875-76, 03 Feb. 2000) During his term of office. (Sec. 14, Art. VI, 1987 Constitution) Instances when the Constitution requires that the yeas and nays of the Members be taken every time a House has to vote During his term of office (Sec. 14, Art. VI, 1987 Constitution) 1. 2. 3. Upon the last and third readings of a bill (Sec. 26(2), Art. VI, 1987 Constitution) At the request of 1/5 of the members present (Sec. 16(4), Art. VI, 1987 Constitution); and In repassing a bill over the veto of the President. (Sec. 27, Art. VI, 1987 Constitution) Voting Separately vs. Voting Jointly D.QUORUM AND VOTING MAJORITIES SEPARATELY The required amount of votes must be obtained in each House. i.e. if 2/3 vote is required with the Houses voting separately, 2/3 of the Senators must vote for it AND 2/3 of the Reprsentatives must vote for in favor of the act for it to be approved. Quorum Under the Constitution, the quorum is the majority of each house. This number enables a body to transact its business and gives such body the power to pass a law or ordinance or any valid act that is binding. NOTE: In computing quorum, members who are outside the country and, thus, outside of each House’s jurisdiction are not included. The basis for determining the existence of a quorum in the Senate shall be the total number of Senators who are within the coercive jurisdiction of the Senate. (Avelino v. Cuenco, G.R. No. L-2821, 04 Mar. 1949) 91 JOINTLY The vote requirement is determined based on the total number of the Members of the Congress (Senators and Representatives combined) UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law Instances when Congress is Voting Separately and Voting Jointly SEPARATE (V-I-P-A-S) 1. Confirming nomination of Vice-President (Sec. 9, Art. VII, 1987 Constitution) JOINT (H-M) Instances when Congress votes other than majority INSTANCES WHEN CONGRESS VOTES To suspend or expel a member in accordance with its rules and proceedings 1. When revoking or extending the proclamation suspending the privilege of writ of Habeas corpus (Sec. 18, 3. Choosing the President Art. VII, 1987 Constitution) in case of a tie (Sec. 4, Art. VII, 1987 Constitution) 2. When revoking or extending 4. Proposing the declaration Constitutional of Martial law Amendments (Sec. 1, (Sec. 18, Art. Art. XVII, 1987 VII, 1987 Constitution) Constitution) 2. Determining President’s Inability to discharge the powers and duties of his office (Sec. 11, Art. VII, 1987 Constitution) To enter the Yeas and Nays in the Journal To declare the existence of a state of war NUMBER OF VOTES REQUIRED 2/3 of all its members (Sec. 16(3), Art.VI, 1987 Constitution) 1/5 of the members present (Sec. 16(4), Art. VI, 1987 Constitution) 2/3 of both houses in joint session voting separately (Sec. 4, Art. VII, 1987 Constitution) Non-intervention of courts in the implementation of the internal rules of Congress 5. Declaring the existence of a State of war in joint session (Sec. 23, Art. VI, 1987 Constitution) As part of their inherent power, Congress can determine their own rules. Hence, the courts cannot intervene in the implementation of these rules insofar as they affect the members of Congress. (Osmeña v. Pendatun G.R. No L-17144, 28 Oct. 1960) Instances when Congress votes by majority Elected officers of Congress INSTANCES WHEN CONGRESS VOTES Elect the Senate President or House of Representatives Speaker Commission on Appointments ruling Passing a law granting any tax exemption NUMBER OF VOTES REQUIRED Majority vote of all its respective members (Sec. 16(1), Art. VI, 1987 Constitution) Majority vote of all the members (Sec. 18, Art. VI, 1987 Constitution) Majority of all the members of Congress (Sec. 28(4), Art. VI, 1987 Constitution) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 1. 2. 3. Senate President Speaker of the House Such officers as deemed by each house to be necessary (Sec. 16(1), Art. VI, 1987 Constitution) Vote required in election of officers Majority vote of all its respective members. (Sec. 16(1), Art. VI, 1987 Constitution) 92 Legislative Department by limitations imposed by organic law.” (Cruz, 2014) Regular session of Congress 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 sees fit, until 30 days before the opening of the next regular session, excluding Saturdays, Sundays, and legal holidays. (Sec. 15, Art. VI, 1987 Constitution) (1996 BAR) Mandatory recess The 30-day period prescribed before the opening of the next regular session, excluding Saturdays, Sundays, and legal holidays. This is the minimum period of recess and may be lengthened by the Congress in its discretion. It may, however, be called in special session at any time by the President. (Sec. 15, Art. VI, 1987 Constitution) Instances when there are special sessions 1. 2. Due to vacancies in the offices of the President and Vice President at 10 o’clock a.m. on the third day after the vacancies; (Sec. 10, Art. VII, 1987 Constitution) 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. (Sec. 16(5), Art. VI, 1987 Constitution) To decide on the disability of the President because a majority of all the members of the cabinet have “disputed” his assertion that he is able to discharge the powers and duties of his office; (Sec. 11, Art. VII, 1987 Constitution) 3. To revoke or extend the Presidential Proclamation of Martial Law or suspension of the privilege of the writ of habeas corpus; (Sec. 18, Art. VII, 1987 Constitution) 4. Called by the President at any time when Congress is not in session; (Sec. 15, Art. VI, 1987 Constitution) 5. To declare the existence of a state of war in a joint session, by vote of 2/3 of both Houses; (Sec. 23(1), Art. VI, 1987 Constitution) 6. When the Congress acts as the Board of Canvassers for the Presidential and VicePresidential elections; and (Sec. 4, Art. VII, 1987 Constitution) 7. Rule on Adjournment NOTE: The phrase “any other place” as here used refers not to the building but to the political unit where the two Houses may be sitting. Hence, if both Houses are sitting in the same building in the City of Manila, either of them may sit in another building in the same city without getting the consent of the other. (Cruz and Cruz, Philippine Political Law, p. 250) Adjournment sine die An interval between the session of one Congress and that of another. When a committee adjourns sine die, it adjourns without appointing a day on which to meet or assemble again. (Tabucanon, 2018) E. DISCIPLINE OF MEMBERS During impeachment proceedings. (Sec. 3(4 and 6), Art. XI, 1987 Constitution) Disciplinary power of Congress Each house may punish its members for disorderly behavior and, with concurrence of 2/3 of all its members, suspend, for not more than 60 days, or expel a member. (Sec. 16(3), Art. VI, 1987 Constitution) (1993, 2002 BAR) In a special session, the Congress may consider “general legislation or only such subjects as the President may designate”. In a regular session, “the power of the Congress is not circumscribed except 93 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law Determination of disorderly behavior F. PROCESS OF LAW-MAKING The House of Representatives is the judge of what constitutes disorderly behavior. The courts will not assume jurisdiction in any case which will amount to an interference by the judicial department with the legislature. (Osmeña v. Pendatun, G.R. No. L17144, 28 Oct. 1960) Rules regarding the passage of bills [32-A-V-E] 1. NOTE: Members of Congress may also be suspended by the Sandiganbayan or by the Office of the Ombudsman. The suspension in the Constitution is different from the suspension prescribed in R.A. No. 3019 (Anti-Graft and Corrupt Practices Act). The latter is not a penalty but a preliminary preventive measure and is not imposed upon the petitioner for misbehavior as a member of Congress. (Santiago v. Sandiganbayan, G.R. No. 128055, 18 Apr. 2001) 2. 3. 4. 5. XPN: The certification of the President, due to the necessity of its immediate enactment to meet a public calamity or emergency, dispenses with the reading on separate days and the printing of the bill in the final form before its final approval. (Sec. 26(2) Art. VI, 1987 Constitution; Tolentino v. Secretary of Finance, G.R. No. 115455, 30 Oct. 1995) Preventive suspension is not a penalty (2015 BAR) A court-ordered preventive suspension is a preventive measure that is different and distinct from the suspension ordered by the HoR for disorderly behavior which is a penalty. Such Houseimposed sanction is intended to enforce discipline among its members. (Paredes, Jr. v. Sandiganbayan, G.R. No. 118364, 08 Aug. 1995) Instances when a bill becomes a law (1991, 1993, 1996 BAR) (AS-O-Fa-Bi) 1. 2. NOTE: The suspension under the Anti-Graft Law is mandatory. It is imposed not as a penalty but as a precautionary measure to prevent the accused public officer from frustrating his prosecution. It is incidental to the criminal proceedings before the court. 3. 4. The House-imposed sanction on the other hand, is a penalty for disorderly behavior. Thus, the order of suspension in the Anti-Graft Law is distinct from the power of the Congress under the Constitution to discipline its own ranks. (De Venecia Jr., v. Sandiganbayan, G.R. No. 130240, 05 Feb. 2002) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES No bill passed by either House shall become a law unless it has passed 3 readings on separate days. Printed copies of the bill in its final form should be distributed to the Members 3 days before its passage Upon the last reading of a bill, no Amendment thereto shall be allowed. The Vote on the bill shall be taken immediately after the last reading of a bill. The yeas and the nays shall be Entered in the Journal. Approved and Signed by the President Presidential veto Overridden by 2/3 vote of all members of both Houses Failure of the President to veto the bill and to return it with his objections to the House where it originated, within 30 days after the date of receipt A Bill calling a special election for President and Vice-President under Sec. 10. Art. VII becomes a law upon its approval on the third reading and final reading. One bill-one subject rule Every bill passed by the Congress shall embrace only one subject. The subject shall be expressed in the title of the bill. This rule is mandatory. (Sec. 26(1), Art. VI, 1987 Constitution) 94 Legislative Department The purposes of such rule are: 1. To prevent hodgepodge or log-rolling legislation; 2. To prevent surprise or fraud upon the legislature; and 3. To fairly apprise the people of the subjects of legislation. (Cruz, 2014; Central Capiz v. Ramirez, G.R. No. L-16197, 12 Mar. 1920) XPN: If a bill is certified as urgent by the President as to the necessity of its immediate enactment to meet a public calamity or emergency, the 3 readings can be held on the same day (Sec. 26(2), Art. VI, 1987 Constitution) Determination of the sufficiency of the title To prevent hasty and improvident legislation and afford the legislators time to study and deliberate the measures. Reasons for the “three readings on separate days” rule It suffices that the title should serve the purpose of the constitutional demand that it informs the legislators, the persons interested in the subject of the bill and the public, of the nature, scope and consequences of the proposed law and its operation thus, prevent surprise or fraud upon the legislators. (Bernas, 2009) The two-fold purpose: 1. To inform the legislators of the matters they shall vote on; and 2. To give them notice that a measure is in progress through the enactment process. (Abas Kida, v. Senate, G.R. No. 196271, 18 Oct. 2011) Test: Whether or not it is misleading; either in referring to or indicating one subject where another or different one is really embraced in the act, or in omitting any expression or indication of the real subject or scope of the act. (Lidasan v. COMELEC, G.R. No. L-28089, 25 Oct. 1967) Q: Is the supermajority vote requirement under R.A. 9054, the second Organic Act of ARMM which reset the regular elections for the ARMM regional officials to the second Monday of September 2001 unconstitutional by giving it a character of an irrepealable law? Number of readings before becoming a law (1996 BAR) NUMBER OF READING First Reading Second Reading Third Reading A: YES. The supermajority (2/3) voting requirement required under Sec. 1, Art. XVII of R.A. No. 9054 (second Organic Act of ARMM) must be struck down for giving said law the character of an irrepealable law by requiring more than what the Constitution demands. WHAT IS DONE Only the title of the bill is read, then it is passed to the proper committee for study The entire text is read, and debates and amendments are held. Only the title is read, and votes are taken immediately thereafter. Sec. 16(2), Art. VI of the Constitution provides that a “majority of each House shall constitute a quorum to do business.” In other words, if majority of the members of the House of Representatives or the Senate are present, these bodies have the quorum needed to conduct business and hold session. Within a quorum, a vote of majority is generally sufficient to enact laws or approve acts. NOTE: Each bill must pass 3 readings each in both Houses. In other words, there must be a total of 6 readings. In contrast, Sec. 1, Art. XVII of R.A. No. 9054 requires a vote of no less than 2/3 of the Members of the House of Representatives and of the Senate, voting separately, in order to effectively amend R.A. No. 9054. Clearly, this requirement is higher than what GR: Each reading shall be held on separate days and printed copies thereof in its final form shall be distributed to its Members, 3 days before its passage. 95 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law Scope of the Powers of the Committee (Ad-A-RN) the Constitution requires for the passage of bills and served to restrain the plenary powers of Congress to amend, revise or repeal the laws it had passed. 1. 2. 3. 4. While a supermajority is not a total ban against repeal, it is a limitation in excess of what the Constitution requires on the passage of bills and is constitutionally obnoxious because it significantly constricts the future legislators’ room for action and flexibility. (Abas Kida v. Senate, G.R. No. 196271, 18 Oct. 2011) Reconcile or harmonize disagreeing provisions The changes introduced by the Bicameral Conference Committee are meant only to reconcile and harmonize the disagreeing provisions for it does not inject any idea or intent that is wholly foreign to the subject embraced by the original provisions. NOTE: Every legislative body may modify or abolish the acts passed by itself or its predecessors. The legislature cannot bind a future legislature to a particular mode of repeal. It cannot declare in advance the intent of subsequent legislatures or the effect of subsequent legislation upon existing statutes. (Abas Kida v. Senate, ibid.) To reconcile or harmonize disagreeing provisions, the Bicameral Conference Committee may then: (AN-C) The Bicameral Conference Committee 1. 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. 2. 3. The “conference committee,” consisting of members nominated from both Houses, is an extraconstitutional 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. (Bernas, 2009) Adopt the specific provisions of either the House bill or Senate bill; Decide that Neither provisions in the House bill or the provisions in the Senate bill would be carried into the final form of the bill; and/or Try to arrive at a Compromise between the disagreeing provisions. Thus, the changes made by the Bicameral Conference Committee in the versions passed by the Senate and the House of the Representatives regarding the VAT Law such as the inclusion of the stand-by authority of the President, the omission of the no pass-on provision included in both Senate and House versions, and the inclusion of provisions on other kinds of taxes and VAT only found in the Senate bill are valid. (Escudero v. Purisima, G.R. No. 168463, 01 Sept. 2005; ABAKADA v. Ermita, GR 168056, 01 Sept. 2005) Extent of the Power of the Committee The conferees are not limited to reconciling the differences in the bill but may introduce new provisions germane to the subject matter or may report out an entirely new bill on the subject. (Tolentino v. Sec. of Finance, G.R. No, 115455, 30 Oct. 1995 citing The Philippine Judges Association v. Prado, G.R. No. 105371, 11 Nov. 1993) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Adopt the bill entirely Amend or revise Reconcile the House and Senate Bills Propose entirely New provisions not found in either the Senate or House bills Rule on Presentment Every bill passed by Congress must be presented to the President for approval or veto. In the absence of presentment to the President, no bill passed by Congress can become a law. (Abakada Guro Partylist v Purisima, G.R. No. 166715, 14 Aug. 2008) 96 Legislative Department appropriations of money" and not only "general provisions" which provide for parameters of appropriation. (Belgica v. Ochoa, Jr, ibid.) Rule on Presidential Veto GR: If the President disapproves a bill enacted by Congress, he should veto the entire bill. He is not allowed to veto separate items of a bill. (Sec. 27(1), Art. VI, 1987 Constitution) Instances of Pocket Veto 1. 2. XPN: Item-veto is allowed in case of Appropriation, Revenue, and Tariff bills (Sec. 27(2), Art. VI, 1987 Constitution) (1991, 2010 BAR) When the President fails to act on a bill; and When the reason he does not return the bill to the Congress is that Congress is not in session. (Sec.7, Art. 1, U.S. Constitution) XPNs to the XPN: Pocket Veto is NOT applicable in the Philippines 1. Doctrine of inappropriate provisions – A provision that is constitutionally inappropriate for an appropriation bill may be singled out for veto even if it is not an appropriation or revenue item. (Gonzales v. Macaraig, G.R. No. 87636, 19 Nov. 1990) Inaction by the President for 30 days never produces a veto even if Congress is in recess. The President must still act to veto the bill and communicate his veto to Congress without need of returning the vetoed bill with his veto message. Otherwise, the bill shall become a law as if he had signed it. (Sec. 27(1), Art. VI, 1987 Constitution) 2. Executive impoundment – Refusal of the President to spend funds already allocated by Congress for specific purpose. It is the failure to spend or obligate budget authority of any type. (Philconsa v. Enriquez, G.R. No. 113105, 19 Aug. 1994) Rider A provision in a bill which does not relate to a particular appropriation stated in the bill. Since it is an invalid provision under Sec. 25(2), Art. VI of the 1987 Constitution, the President may veto it as an item. Appropriation Item or Line-item Congressional override An indivisible sum of money dedicated to a stated purpose. It is indivisible because the amount cannot be divided for any purpose other than the specific purpose stated in the item. It is an item, which, in itself, is a specific appropriation of money, not some general provision of law, which happens to be put into an appropriation bill. (Gonzales v. Macaraig, G.R. No. 87636, 19 Nov. 1990) If, after reconsideration, 2/3 of all members of such House agree to pass the bill, it shall be sent to the other House by which it shall likewise be reconsidered and if approved by 2/3 of all members of that House, it shall become a law without the need of presidential approval. An item of appropriation must be an item characterized by singular correspondence – meaning an allocation of a specified singular amount for a specified singular purpose, otherwise known as a "line-item." (Belgica v. Ochoa, Jr., G.R. No. 208566, 19 Nov. 2013) G. APPROPRIATION AND RE-ALIGNMENT Definition of Appropriation Appropriation means to allot, assign, set apart or apply to a particular use or purpose. An appropriation in the sense of the Constitution means the setting apart a portion of public funds for NOTE: For the President to exercise his item-veto power, it is necessary that there exists a proper "item" which may be the object of the veto. The appropriations bill must contain "specific 97 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law a purpose. (Belgica vs Ochoa, G.R. No. 208566, 19 Nov. 2013) H. LEGISLATIVE INQUIRIES AND OVERSIGHT FUNCTIONS The power of the purse belongs to Congress, subject only to the veto power of the President. The President may propose the budget, but still the final say on the matter of appropriations is lodged in the Congress. Legislative Legislation XPN: Appropriations Law may authorize the following officials to augment any item for their offices from savings in other items of their appropriations: President; Senate President; Speaker of the House; Chief Justice; Heads of Constitutional Commission (Sec. 24(5), Art. VI, 1987 Constitution) NOTE: If the stated purpose of the investigation is to determine the existence of violations of the law, the investigation is no longer “in aid of legislation” but “in aid of prosecution.” This violates the principle of separation of powers and is beyond the scope of Congressional powers. (Bengzon vs Senate Blue Ribbon Committee, G.R. No. 89914, 20 Nov. 1991) Requisites for Transfer of Appropriation to be Legally Effected There must be savings in the programmed appropriation of the transferring agency; and There must be an existing item, project or activity with an appropriation in the receiving agency to which the savings will be transferred. (Sanchez VS COA, G.R. No. 127545, 23 Apr. 2008) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES of Indefinite. The field of legislation is very wide, and because of such, the field of inquiry is also very broad and may cover administrative, social, economic, political inquiries, discipline of members etc. The matters which may be a proper subject of legislation and those which may be a proper subject of investigation are one. Suffice it to say that it is “intrinsic” in and co-extensive with legislative power. (Arnault v. Nazareno, G.R. No. L-3820, 18 July 1950) GR: Transfer of items of appropriations cannot be inserted as provisions in appropriation laws. 2. Aid Matters that can be the subject of inquiries in aid of legislation NOTE: Public funds may only be appropriated by law. (Sec. 29(1), Art VI, 1987 Constitution) 1. in The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in, or affected by, such inquiries shall be respected. (Sec. 21, Art. VI, 1987 Constitution) The power of appropriation carries with it the power to specify the project or activity to be funded under the appropriation law. It can be as detailed and as broad as Congress wants it to be. (Philippine Constitution Association vs Hon. Salvador Enriquez, G.R. No. 113105, 19 Aug. 1994) 1. 2. 3. 4. 5. Inquiries/Inquiries Limitations on legislative investigation 98 1. The persons appearing in or affected by such legislative inquiries shall be respected. 2. The Rules of procedures to be followed in such inquiries shall be published for the guidance of those who will be summoned. This must be strictly followed so that the inquiries are confined only to the legislative purpose and to avoid abuses. Legislative Department haste with which the Senate approved their Committee Report? Can said persons invoke their basic right to counsel? NOTE: It is incumbent upon the Senate, HOR, or any of its respective committee 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. Publication of said rules in the internet cannot be considered as compliance with this constitutional requirement. (Neri vs Senate, G.R. No. 180643, 04 Sept. 2008) 3. The investigation must be in aid of legislation. 4. Congress may not summon the President as witness or investigate the latter in view of the doctrine of separation of powers except in impeachment cases. (Senate vs Ermita, G.R. No. 169777, 20 Apr. 2006) A: NO. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The wide latitude given to Congress with respect to these legislative inquiries has long been settled, otherwise, Section 21, Article VI of the 1987 Constitution would be rendered pointless. The right to be assisted by counsel can only be invoked by a person under custodial investigation suspected for the commission of a crime, and therefore attaches only during such custodial investigation. (Philcomsat Holdings Corp. vs. Senate, G.R. No. 180308, 19 June 2012) Q: Sen. Rodolfo Diaz accused the Vice Chairman of the Standard Chartered Bank (SCB) of violating the Securities Regulation Code for selling unregistered foreign securities. This has led the Senate to conduct investigation in aid of legislation. SCB refused to attend the investigation proceedings claiming criminal and civil cases involving the same issues were pending in courts. Decide. NOTE: It is the President’s prerogative under the power of Executive Privilege, whether to divulge or not the information, which he deems confidential or prudent in the public interest. (Senate vs Ermita, ibid.) 5. 6. Congress may no longer punish the witness in contempt after its final adjournment. The basis of the power to impose such penalty is the right to self-preservation. And such right is enforceable only during the existence of the legislature. (Lopez v. Delos Reyes, G.R. No. L34361, 05 Nov. 1930) A: The mere filing of a criminal or 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. Thus, the Vice Chairman of SCB is not correct in refusing to attend the investigation proceeding on the ground that criminal and civil cases involving the same issues are pending in courts. (Standard Chartered Bank v. Senate, G.R. No. 167173, 27 Dec. 2007) Inquiry must be related to and furtherance of legislative task. Congress may no longer inquire into the same justiciable controversy already before the court. (Bengzon v. Senate Blue Ribbon Committee, G.R. No. 89914, 20 Nov. 1991) Q: Senator Miriam Defensor Santiago introduced Proposed Senate Resolution (PSR) No. 455 directing the conduct of an inquiry, in aid of legislation, on the anomalous losses incurred by POTC, PHILCOMSAT and PHC and the mismanagement committed by their respective board of directors. Can the persons involved in the legislative inquiry question the Distinction between the cases Standard Chartered Bank v. Senate and Bengzon v. Senate Blue Ribbon Committee In Bengzon, the Court declared that the issue to be investigated was one over which jurisdiction had already been acquired by the Sandiganbayan, and to allow the Senate Blue Ribbon Committee to 99 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law investigate the matter would create the possibility of conflicting judgments; and that the inquiry into the same justiciable controversy would be an encroachment on the exclusive domain of judicial jurisdiction that had set in much earlier. Q: In the exercise of its power to investigate in aid of legislation, can Congress cite a person in contempt and detain him indefinitely? A: NO. The Court finds that the period of imprisonment under the inherent power of contempt by the Senate during inquiries in aid of legislation should only last until the termination of the legislative inquiry under which the said power is invoked or when Congress adjourns sine die. If Congress decides to extend the period of imprisonment for the contempt committed by a witness beyond the duration of the legislative inquiry or after it has already adjourned, then it may file a criminal case under the existing statute or enact a new law to increase the definite period of imprisonment. There are a number of cases already pending in various courts and administrative bodies involving Standard Chartered Bank, relative to the alleged sale of unregistered foreign securities. There is a resemblance between this case and Bengzon. However, the similarity ends there. Central to the Court’s ruling in Bengzon – that the Senate Blue Ribbon Committee was without any constitutional mooring to conduct the legislative investigation – was the Court’s determination that the intended inquiry was not in aid of legislation. The Court found that the speech of Senator Enrile, which sought such investigation, contained no suggestion of any contemplated legislation; it merely called upon the Senate to look into possible violations of Sec. 5, RA No. 3019. Thus, the Court held that the requested probe failed to comply with a fundamental requirement of Sec. 21, Art. VI. The legislative inquiry of the Senate terminates on two instances: First, upon the approval or disapproval of the Committee Report. Evidently, the Committee Report is the culmination of the legislative inquiry. Its approval or disapproval signifies the end of such legislative inquiry and it is now up to the Senate whether or not to act upon the said Committee Report in the succeeding order of business. At that point, the power of contempt simultaneously ceases and the detained witness should be released. As the legislative inquiry ends, the basis for the detention of the recalcitrant witness likewise ends. Unfortunately for SCB, this distinguishing factual milieu in Bengzon does not obtain in the instant case. The unmistakable objective of the investigation exposes the error in SCB’s allegation that the inquiry, as initiated in a privilege speech by the very same Senator Enrile, was simply “to denounce the illegal practice committed by a foreign bank in selling unregistered foreign securities.” This fallacy is made more glaring when we consider that, at the conclusion of his privilege speech, Senator urged the Senate “to immediately conduct an inquiry, in aid of legislation, so as to prevent the occurrence of a similar fraudulent activity in the future.” (Standard Chartered Bank v. Senate, G.R. No. 167173, 27 Dec. 2007) Second, the legislative inquiry of the Senate also terminates upon the expiration of one (1) Congress. As stated in Neri, all pending matters and proceedings, such as unpassed bills and even legislative investigations, of the Senate are considered terminated upon the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished matters, not in the same status, but as if presented for the first time. Again, while the Senate is a continuing institution, its proceedings are terminated upon the expiration of that Congress at the final adjournment of its last session. Hence, as the legislative inquiry ends upon that expiration, the imprisonment of the detained witnesses likewise Contempt powers of Congress Even if the Constitution only provides that Congress may punish its members for disorderly behavior or expel the same, it is not an exclusion of power to hold other persons in contempt. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 100 Legislative Department ends. (Balag vs. Senate, G.R. No. 234608, 03 July 2018) be conducted in executive session. (Sec. 22, Art. VI, 1987 Constitution) Q: Can Congress issue a subpoena to compel attendance of Justices of the Court of Appeals in its investigation in-aid of legislation, and cite them in contempt should they refuse to appear? Question hour vs. Legislative investigation QUESTION HOUR (SEC. 22, ART. VI) A: NO. Congressional powers cannot be used to deprive the Supreme Court of its Constitutional duty to supervise judges of lower courts in the performance of their official duties. The fact remains that the CA Justices are non-impeachable officers. As such, authority over them primarily belongs to the Supreme Court and to no other. The principle of separation of powers also serves as one of the basic postulates for exempting the Justices, officials and employees of the Judiciary and for excluding the Judiciary's privileged and confidential documents and information from any compulsory processes which very well includes the Congress' power of inquiry in aid of legislation. Such exemption has been jurisprudentially referred to as judicial privilege as implied from the exercise of judicial power expressly vested in one Supreme Court and lower courts created by law. (Agcaoli v. Farinas, GR No. 232395, 03 July 2017) LEGISLATIVE INVESTIGATION (SEC. 21, ART. VI) As to persons who may appear Only a department head Any person As to who conducts the investigation Entire body Committees/Entire Body As to subject matter Matters related to the department only Any matter for the purpose of legislation As to attendance/compliance Discretionary Compulsory/mandatory Oversight Power of Congress Embraces all activities undertaken by Congress to enhance its understanding of and influence over the implementation of legislation it has enacted. It concerns post-enactment measures undertaken by Congress. (ABAKADA Guro Party List vs Purisima, G.R. No. 166715, 14 Aug. 2008 citing the opinion of J. Puno in Macalintal v. COMELEC, G.R. No. 157013, July 10, 2003) Legislative Contempt vis-à-vis Pardoning Power of the President Legislative contempt is a limitation on the President’s power to pardon by virtue of the doctrine of separation of powers. Question Hour Scope of the Power of Oversight of Congress Where the heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the HoR at least 3 days before their scheduled appearance. Interpellations shall not be limited to written questions, but it may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall 1. 2. 3. 4. 5. 101 Monitor bureaucratic compliance with program objectives; Determine whether agencies are properly administered; Eliminate executive waste and dishonesty; Prevent executive usurpation of legislative authority; and Assess executive conformity with the congressional perception of public interest. (ABAKADA Guro Party List vs Purisima, G.R. No. 166715, 14 Aug. 2008) UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law 3. Bases of Oversight Power of Congress: 3-I’s (Intrinsic, Integral, Inherent) 1. 2. 3. Intrinsic in the grant of legislative power itself; Integral to the system of checks and balances; and Inherent in a democratic system of government. Legislative Supervision — most encompassing form; connotes a continuing and informed awareness on the part of congressional committee regarding executive operations in a given administrative area. It allows Congress to scrutinize the exercise of delegated law-making authority, and permits Congress to retain part of that delegated authority through its veto power. (Abakada Guro Partylist v. Purisima, ibid.) Categories of Congressional Oversight Functions Legislative Veto 1. Scrutiny — to determine economy and efficiency of the operation of government activities. a. Congress retains a “right” or “power” to approve or disapprove any regulation enacted by administrative body before it takes effect. It is in the form of an inward-turning delegation designed to attach a congressional leash to an agency to which Congress has by law initially delegated broad powers. (ABAKADA Guro Party-list v. Purisima, ibid.) Congress may request information and report from the other branches of government and give recommendations or pass resolutions for consideration of the agency involved through: Legislative Veto violates the Doctrine of Separation of Powers, thus, unconstitutional i. Power of appropriation and budget hearing (Sec. 22, Art. VII, 1987 Constitution) ii. Question Hour (Sec. 22, Art. VI, 1987 Constitution) iii. Power of Confirmation (Sec. 18, Art. VI, 1987 Constitution) In exercising discretion to approve or disapprove the IRR based on a determination of whether or not it conformed to the law, Congress arrogated judicial power unto itself, a power exclusively vested in the Supreme Court by the Constitution. Thus, violating the doctrine of separation of powers. NOTE: Legislative scrutiny does not end in budget hearings. Congress can ask the heads of departments to appear before and be heard by either the House on any matter pertaining to their department. From the moment the law becomes effective, any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law violates the principle of separation of powers and is thus unconstitutional. (ABAKADA Guro Party-list v. Purisima, Ibid.) Likewise, Congress exercises legislative scrutiny thru its power of confirmation to find out whether the nominee possesses the necessary qualifications, integrity and probity required of all public servants. (Abakada Guro Partylist v. Purisima, G.R. No. 166715, 14 Aug. 2008) 2. Senate is not allowed to continue the conduct of legislative inquiry without a duly published rules of procedure The phrase “duly published rules of procedure” requires the Senate of every Congress to publish its rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before it or after it. (Garcillano v. HoR Committee on Public Information, G.R. No. 170338, 23 Dec. 2008) Congressional Investigation — involves a more intense digging of facts through inquiries in aid of legislation. (Sec. 21, Art. VI, 1987 Constitution) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 102 Legislative Department a term of 6 years each. Thus, the term of 12 Senators expires every 3 years, leaving less than a majority of Senators to continue into the next Congress since the Rules of Procedure must be republished by the Senate after every expiry of the term of the 12 Senators. (Garcillano v. HoR Committee on Public Information, G.R. No. 170338, 23 Dec. 2008) Invalidity of Publication in the Internet The Electronic Commerce Act of 2000 merely recognizes the admissibility in evidence of electronic data messages and/or documents. It does not make the internet a medium for publishing laws, rules and regulations. (Garcillano v. HoR Committee on Public Information, ibid.) Publication of the internal rules of Congress Senate as an Institution is continuing (2014 BAR) The Constitution does not require publication of the internal rules of the House or Senate. Since rules of the House or Senate affect only their members, such rules need not be published, unless such rules expressly provide for their publication before the rules can take effect. (Pimentel v. Senate Committee of the Whole, G.R. No. 187714, 08 Mar. 2011) There is no debate that the Senate as an institution is "continuing", as it is not dissolved as an entity with each national election or change in the composition of its members. However, in the conduct of its day-to-day business the Senate of each Congress acts separately and independently of the Senate of the Congress before it. Q: During a hearing of the Senate Committee of the Whole, some proposed amendments to the Rules of the Ethics Committee that would constitute the Rules of the Senate Committee of the Whole were adopted. Senator Chi raised as an issue the need to publish the proposed amended Rules of the Senate Committee of the Whole, as directed by the amended Rules itself. However, the Senate Committee of the Whole proceeded without publication of the amended Rules. Is the publication of the Rules of the Senate Committee of the Whole required for their effectivity? Undeniably, all pending matters and proceedings, i.e. unpassed bills and even legislative investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished matters, not in the same status, but as if presented for the first time. The logic and practicality of such a rule is readily apparent considering that the Senate of the succeeding Congress (which will typically have a different composition as that of the previous Congress) should not be bound by the acts and deliberations of the Senate of which they had no part. (Neri v. Senate Committee, GR. No. 180643, 04 Sept. 2008) A: YES. The Rules must be published before the Rules can take effect. Thus, even if publication is not required under the Constitution, publication of the Rules of the Senate Committee of the Whole is required because the Rules expressly mandate their publication. To comply with due process requirements, the Senate must follow its own internal rules if the rights of its own members are affected. (Pimentel v. Senate Committee of the Whole, ibid.) I. POWER OF IMPEACHMENT Impeachable Officers (2019 BAR) (Pre-Vi-M2-O) 1. 2. 3. 4. President; Vice-President; Members of the Supreme Court; Members of the Constitutional Commissions; and 5. the Ombudsman. (Sec. 2, Art. XI, 1987 Constitution) Senate is no longer a continuing legislative body The present Senate under the 1987 Constitution is no longer a continuing legislative body. It has 24 members, 12 of whom are elected every 3 years for 103 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law Justice of the Supreme Court shall preside but shall not vote, otherwise the Senate President shall preside in all other cases of impeachment. (Sec. 3 (6), Art. XI, 1987 Constitution) Steps in the impeachment process (2012, 2019 BAR) Constitution provides that the House of Representatives shall have the exclusive power to initiate all cases of impeachment. (Sec. 3 (1), Art XI, 1987 Constitution) b. 1. Initiating impeachment cases a. NOTE: The power to impeach is essentially a nonlegislative prerogative and can be exercised by Congress only within the limits of the authority conferred upon it by the Constitution. (Gutierrez v. House of Representatives Committee on Justice, G.R. No. 193459, 15 Feb. 2011) Verified complaint filed by any member of the House of Representatives or any citizen upon resolution of endorsement by any member thereof; NOTE: If the verified complaint is filed by at least 1/3 of all its members of the House of Representatives, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (Sec. 3 (4), Art. XI, 1987 Constitution) b. c. d. e. f. g. The Senate has the sole power to try and decide all cases of impeachment (Sec. 3 (6), Art. XI, 1987 Constitution). Hence, judgment in an impeachment proceeding is normally not subject to judicial review. Inclusion in the order of business within 10 session days; Referred to the proper committee within 3 session days from its inclusion; The committee, after hearing, and by majority vote of all its members, shall submit its report to the House of Representatives together with the corresponding resolution; Placing on calendar the Committee resolution within 10 days from submission; Discussion on the floor of the report; and A vote of at least 1/3 of all the members of the House of Representatives shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the committee or override its contrary resolution. (Sec. 3 (2-3), Art. XI, 1987 Constitution) XPN: Courts may annul the proceedings if there is a showing of a grave abuse of discretion or noncompliance with the procedural requirements of the Constitution. Power of the HoR to determine the sufficiency of form and substance of an impeachment complaint It is an exponent of the express constitutional grant of rulemaking powers of the HoR. In the discharge of that power and in the exercise of its discretion, the House has formulated determinable standards as to form and substance of an impeachment complaint. Furthermore, the impeachment rules are clear in echoing the constitutional requirements in providing that there must be a “verified complaint or resolution” and that the substance requirement is met if there is “a recital of facts constituting the offense charged and determinative of the jurisdiction of the committee.” (Gutierrez v. House of Representatives Committee on Justice, ibid.) 2. Impeachment Proceedings a. The Senators take an oath or affirmation; and NOTE: When the President of the Philippines shall be impeached, the Chief UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES A decision of conviction must be concurred in by at least 2/3 of all the members of Senate. 104 Legislative Department 2. Limitations imposed by the Constitution upon the initiation of impeachment proceedings: E1 (exclusive power, 1-year bar rule) 1. 2. The House of Representatives shall have the exclusive power to initiate all cases of impeachment; and Not more than one impeachment proceeding shall be initiated against the same official within a period of one year (One-year bar rule). NOTE: Congress may look into separate complaints against an impeachable officer and consider the inclusion of matters raised therein, in the adoption of the Articles of Impeachment. (Gutierrez v. The House of Representatives Committee on Justice, supra.) NOTE: An impeachment case is the legal controversy that must be decided by the Senate while an impeachment proceeding is one that is initiated in the House of Representatives. A proceeding is initiated or begins when a verified complaint is filed and referred to the Committee on Justice for action. The one-year bar rule applies when there are two or more filings of impeachment complaint against the same impeachable officer within a one-year period. (Francisco v. House of Representatives, et. al., G.R. No. 160261, 10 Nov. 2003) J. ELECTORAL TRIBUNALS AND THE COMMISSION ON APPOINTMENTS ELECTORAL TRIBUNAL Composition of the Electoral Tribunal 1. The power to impeach is essentially a nonlegislative prerogative and can be exercised by Congress only within the limits of the authority conferred upon it by the Constitution (Francisco v. House of Representatives, ibid). It is, by its nature, a sui generis politico-legal process. (Gonzales III v. Office of the President, G.R. No. 196231, 28 Jan. 2014) 2. 3 Supreme Court Justices designated by the Chief Justice; 6 members of the Senate or the House of Representatives, as the case may be, chosen on the basis of proportional representation from the political parties and from those registered under the party-list system represented therein. (1987 Constitution, Art. VI, Sec. 17) NOTE: The senior Justice in the Electoral Tribunal shall be its Chairman. NOTE: The limitation refers to the element of time, and not the number of complaints. The impeachable officer should defend himself in only one impeachment proceeding, so that he will not be precluded from performing his official functions and duties. Similarly, Congress should run only one impeachment proceeding so as not to leave it with little time to attend to its main work of law-making. (Gutierrez v. The House of Representatives Committee on Justice, supra.) 1. POWERS AND JURISDICTION Jurisdiction of the Electoral Tribunals Each electoral tribunal shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective members (Sec. 17, Art.VI, 1987 Constitution). This includes determining the validity or invalidity of a proclamation declaring a particular candidate as the winner. Each ET is also vested with rule-making Purpose of the one-year bar rule 1. To allow the legislature to do its principal task of legislation. (Gutierrez v. The House of Representatives Committee on Justice, supra., citing the Separate Opinion of J. Azcuna in Francisco vs HRET, supra.) To prevent undue or too frequent harassment; and 105 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law HoR, HRET has authority to pass upon election contests relating to his qualifications. (Abayon v. HRET, G.R. No. 189466, 11 Feb., 2010) power. (Lazatin v. HRET, G.R. No. L-84297, 08 Dec. 1988) NOTE: It is independent of the Houses of Congress and its decisions may be reviewed by the Supreme Court only upon showing of grave abuse of discretion. Q: Liwayway Vinzons-Chato renewed her bid in the May 2010 elections as the representative of the 2nd Legislative District of Camarines Norte but was eventually defeated by Elmer Panote. Aggrieved, Chato filed an electoral protest before the HRET assailing the results in all the 160 clustered precincts in 4 municipalities. Chato designated forty (40) pilot clustered precincts, in which revision of ballots shall be conducted. After the initial revisions of the designated clustered precincts, Chato moved for the revision of ballots in all of the protested clustered precincts. The motion was initially denied, but a resolution was eventually issued by the HRET directing the continuation of the revision of ballots in the remaining seventy-five percent (75%) protested clustered precincts, or a total of 120 precincts. Such was opposed by Panote, ascribing grave abuse of discretion on the part of HRET. Is the opposition of Panote correct? Election contests Adversarial proceedings by which matters involving the title or claim to an elective office are settled, made before or after proclamation of the winner, regardless of whether or not the contestant is claiming the office in dispute. The purpose of an election contest is to determine the candidate lawfully elected to the office. There are two actions that may be filed: election protests and quo warranto proceedings. (Avila, 2010) When the winning candidate is considered as member of the Senate or HoR Once he has: (P-O-A) 1. 2. been Proclaimed taken his Oath; and A: NO. The Constitution mandates that the HRET "shall be the sole judge of all contests relating to the election, returns and qualifications" of its members. By employing the word "sole", the Constitution is emphatic that the jurisdiction of the HRET in the adjudication of election contests involving its members is intended to be its own full, complete and unimpaired. There can be no challenge, therefore, to such exclusive control absent any clear showing, as in this case, of arbitrary and improvident use by the Tribunal of its power that constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated error, manifestly constituting such grave abuse of discretion that there has to be a remedy therefor. (Liwayway Vinzons-Chato v. HRET, G. R. No. 199149, 22 Jan. 2013) NOTE: The oath must be made: a. b. 3. Before the Senate President or Speaker of the House, as the case may be; and In open session. (Reyes v. COMELEC, G.R. No. 207264, 25 June 2013) Assumed office NOTE: Once a winning candidate has been proclaimed, taken his oath, and assumed office as Member of the House of Representatives (or of the Senate), the COMELEC’s jurisdiction over the election contest relating to his election, returns and qualifications ends, and the HRET’s (or SET’s) own jurisdiction begins. (Vinzons-Chato v. COMELEC, G.R. No. 172131, 02 Apr. 2007) Q: Wigberto and Angelina and Alvin were contenders for the position of Member of the House of Representatives for the 4th District of Quezon Province on the May 13, 2013 National Elections. Wigberto filed before the COMELEC two separate petitions: to cancel Alvin’s CoC and By analogy with the cases of district representatives, once the party or organization of the party-list nominee becomes a member of the UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 106 Legislative Department arguing that COMELEC has lost jurisdiction over the case and it is the HRET that has jurisdiction as she is already declared a winner. Is Gemma’s contention tenable? to declare him as a nuisance candidate. The COMELEC cancelled Alvin’s CoC but did not declare him to be a nuisance candidate. Despite the cancellation of Alvin’s CoC due to his material misrepresentations therein, his name was not deleted from the ballot. Subsequently, Angelina was proclaimed as the winning candidate. It appears that Wigberto had filed with the COMELEC a Petition to Annul the Proclamation of Angelina and while such petition was pending, Wigberto initiated the instant certiorari case against the COMELEC En Banc Resolution declaring Alvin not a nuisance candidate. Is the petition tenable? A: NO. Gemma cannot be considered a Member of the House of Representatives because, primarily, she has not yet assumed office. The jurisdiction of the HRET begins only after the candidate is considered a Member of the House of Representatives, as stated in Sec. 17, Art. VI of the 1987 Constitution. To be considered a Member of the House of Representatives, there must be a concurrence of the following requisites: (1) a valid proclamation, (2) a proper oath, and (3) assumption of office. A: NO. The petition must fail. Section 17, Article VI of the 1987 Philippine Constitution provides that the HRET is the sole judge of all contests relating to the election, returns, and qualifications of its respective members. Case law states that the proclamation of a congressional candidate following the election divests the COMELEC of jurisdiction over disputes relating to the election, returns, and qualifications of the proclaimed representative in favor of the HRET. Considering that Angelina had already been proclaimed as Member of the House of Representatives for the 4th District of Quezon Province on May 16, 2013, as she has in fact taken her oath and assumed office past noon time of June 30, 2013, the Court is now without jurisdiction to resolve the case at bar. As they stand, the issues concerning the conduct of the canvass and the resulting proclamation of Angelina as herein discussed are matters which fall under the scope of the terms election and return and hence, properly fall under the HRET’s sole jurisdiction. (Wigberto Tañada, Jr. vs. COMELEC, G.R. Nos. 207199-200, 22 Oct. 2013) The term of office of a Member of the House of Representatives begins only “at noon on the thirtieth day of June next following their election.” Thus, until such time, the COMELEC retains jurisdiction. Consequently, before there is a valid or official taking of the oath it must be made (1) before the Speaker of the House of Representatives, and (2) in open session. Here, although she made the oath before Speaker Belmonte, there is no indication that it was made during plenary or in open session and, thus, it remains unclear whether the required oath of office was indeed complied with. (Reyes v. COMELEC, G.R. No. 207264, 25 June 2013) Q: Imelda ran for HoR. A disqualification case was filed against her on account of her residence. The case was not resolved before the election. Imelda won the election. However, she was not proclaimed. Imelda now questions the COMELEC’s jurisdiction over the case. Does the COMELEC have jurisdiction over the case? Q: Gemma ran for Congresswoman of Muntinlupa in the May 2013 elections. However, before the elections, the COMELEC cancelled her CoC after hearing a complaint filed against her. Later, she was declared winner as Congresswoman of Muntinlupa. The decision said she took her oath already and had not assumed her office as Congresswoman. Subsequently, COMELEC issued a certificate of finality on its earlier resolution cancelling Gemma’s COC. Gemma comes before the Court A: YES. The COMELEC retains jurisdiction. Since Imelda has not yet been proclaimed, she is not yet a member of the HoR. HRET’s jurisdiction as the sole judge of all contests relating to elections, etc. of members of Congress begins only after a candidate has become a member of the HoR. (RomualdezMarcos v. COMELEC, G.R. No. 119976, 18 Sept. 1995) Q: Ating Koop party-list expelled its first nominee/representative Lico for refusing to 107 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law the Speaker of the House of Representatives. However, the Court ruled on her qualifications since she was not yet a member of the House of Representatives: petitioner Reyes had yet to assume office, the term of which would officially start at noon of 30 June 2013, when she filed a Petition for Certiorari dated 7 June 2013 assailing the Resolutions ordering the cancellation of her Certificate of Candidacy. In the present case, all three requirements of proclamation, oath of office, and assumption of office were satisfied. honor the term-sharing agreement. A petition was filed with the COMELEC which sought his removal from being Ating Koop’s representative. COMELEC 2nd Division expelled Lico. COMELEC En Banc, however, dismissed the petition on the ground that it had no jurisdiction to expel Lico from the HoR, considering that his expulsion from Ating Koop affected his qualifications as member of the House, and therefore it was the HRET that had jurisdiction over the Petition. Notwithstanding, COMELEC En Banc still affirmed the validity of Lico’s expulsion from Ating Koop. Is COMELEC En Banc’s decision correct? Moreover, in Reyes, the COMELEC En Banc Resolution disqualifying petitioner on grounds of lack of Filipino citizenship and residency had become final and executory when petitioner elevated it to this Court. Therefore, there was no longer any pending case on the qualifications of petitioner Reyes to speak of. Here, the question of whether petitioner Lico remains a member of the House of Representatives in view of his expulsion from Ating Koop is a subsisting issue. Finally, in Reyes, We found the question of jurisdiction of the HRET to be a non-issue, since the recourse of the petitioner to the Court appeared to be a mere attempt to prevent the COMELEC from implementing a final and executory judgment. In this case, the question on the validity of petitioner Lico's expulsion from Ating Koop is a genuine issue that falls within the jurisdiction of the HRET, as it unmistakably affects his qualifications as party-list representative. (Lico v COMELEC, G.R. No. 205505, 29 Sept. 2015) A: NO. While the COMELEC correctly dismissed the Petition to expel petitioner Lico from the House of Representatives for being beyond its jurisdiction, it nevertheless proceeded to rule upon the validity of his expulsion from Ating Koop – a matter beyond its purview. Without legal basis, however, is the action of the COMELEC in upholding the validity of the expulsion of petitioner Lico from Ating Koop, despite its own ruling that the HRET has jurisdiction over the disqualification issue. These findings already touch upon the qualification requiring a party-list nominee to be a bona fide member of the party-list group sought to be represented. The petition for Lico's expulsion from the House of Representatives is anchored on his expulsion from Ating Koop, which necessarily affects his title as member of Congress. A party-list nominee must have been, among others, a bona fide member of the party or organization for at least ninety (90) days preceding the day of the election. Needless to say, bona fide membership in the party-list group is a continuing qualification x x x. Under Section 17, Article VI of the Constitution, the HRET is the sole judge of all contests when it comes to qualifications of the members of the House of Representatives. Consequently, the COMELEC failed to recognize that the issue on the validity of petitioner Lico's expulsion from Ating Koop is integral to the issue of his qualifications to sit in Congress. Valid Grounds or Just Causes for Termination of Membership to the Tribunal Members of the Electoral Tribunal enjoy the security of tenure. However, they may be terminated for a just cause such as: 1. 2. 3. Our ruling here must be distinguished from Regina Ongsiako Reyes v. Commission on Elections. In Reyes, the petitioner was proclaimed winner of the 13 May 2013 Elections, and took her oath of office before UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 4. 108 Expiration of Congressional term of office; Death or permanent disability; Resignation from the political party he represents in the tribunal; Formal affiliation with another political party; and Legislative Department 5. Removal from office for other valid reasons. (Bondoc v. Pineda, G.R. No. 97710, Sept. 26, 1991) COMMISSION ON APPOINTMENTS Composition Appointments NOTE: Unlike the Commission on Appointments, the Electoral Tribunal shall meet in accordance with their rules, regardless of whether Congress is in session or not. 1. 2. 3. Q: Can the Senators-members of the Senate Electoral Tribunal be disqualified because an election contest is filed against them? of the Commission on Senate President as ex-officio chairman 12 Senators 12 members of the HoR (Sec.18, Art. VI, 1987 Constitution) Functions of the Commission on Appointments The commission shall confirm or approve nominations made by the President of certain public officers named by the Constitution or by law. (Sec. 16, Art. VII, 1987 Constitution) A: NO. The Supreme Court held that it cannot order the disqualification of the Senators-members of the Electoral Tribunal simply because they were themselves respondents in the electoral protest, considering the specific mandate of the Constitution and inasmuch as all the elected Senators were actually named as respondents. (Abbas v. SET, G.R. No. 83767, 22 Oct. 1988) Presidential appointments subject to confirmation by the Commission (Ex-A-CC-O-CoJu-Co) 1. Decisions of Electoral Tribunals are not appealable 2. Sec. 17, Art. VI, 1987 Constitution provides that the SET/HRET is the sole judge of all contests. Hence, from its decision, there is no appeal. Appeal is not a constitutional right but merely a statutory right. 3. 4. Remedy from an Adverse Decision of the Electoral Tribunal Heads of the Executive departments; XPN: Vice-President who is appointed to the post Ambassadors, other public ministers, or consuls; Officers of the AFP from the rank of Colonel or naval Captain; and Other Officers whose appointments are vested in him by the Constitution: a. Chairman and members of 3 Constitutional Commissions; b. Regular members of the Judicial and Bar Council; c. Members of the Regional Consultative Council. A special civil action for certiorari under Rule 65 of the Rules of Court may be filed. This is based on grave abuse of discretion amounting to lack or excess of jurisdiction. This shall be filed before the Supreme Court. NOTE: The enumeration is exclusive. NOTE: Under the doctrine of primary administrative jurisdiction, prior recourse to the House is necessary before the petitioners may bring the case to the Supreme Court. (Pimentel vs. House of Representative Electoral Tribunal, G.R. No. 141489, 29 Nov. 2002) Composition Appointments 1. 2. 3. 109 of the Commission on Senate President as ex-officio chairman; 12 Senators; and 12 members of the HoR. (Sec. 18, Art. VI, 1987 Constitution) UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law 3. Guidelines in the Meetings of the Commission 1. 2. The Commission shall meet only while Congress is in session, at the call of its Chairman or a majority of all its members. Since the Commission is also an independent constitutional body, its rules of procedure are also outside the scope of congressional powers as well as that of the judiciary. (Bondoc v. Pineda, G.R. No. 97710, 26 Sept. 1991) NOTE: Sec. 3 (b) of RA 6735 provides for: Appointments made by the President while the Congress is not in session Ad interim appointments are those made by the president while the congress is NOT in session. It shall be terminated by the disapproval of the appointment by the CA or the adjournment of the Congress without the CA acting on the appointment. Initiative It is the power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose. (Sec. 3(a), R.A. No. 6735, The Initiative and Referendum Act) Initiative on Statutes – Refers to a petition to enact a national legislation; and UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES b. Direct Initiative – The people themselves filed the petition with the COMELEC and not with Congress. Also, while the law provides subtitles for National Initiative and Referendum and for Local Initiative and Referendum, no subtitle is provided for initiative on the Constitution. This means that the main thrust of the law is initiative and referendum on national and local laws. If RA 6735 were intended to fully provide for the implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle, considering that in the order of things, the primacy of interest, or hierarchy of values, the right of the people to directly propose amendments to the Constitution is far more important than the initiative on national and local laws. (Defensor-Santiago v. COMELEC, G.R. No. 127325, 19 Mar. 1997). Kinds of Initiative under the Initiative and Referendum Act (RA 6735): (Co-Sta-Loc) 2. Indirect Initiative – Exercise of initiative by the people through a proposition sent to Congress or the local legislative body for action; and Under the said law, initiative on the Constitution is confined only to proposals to amend. The people are not accorded the power to "directly propose, enact, approve, or reject, in whole or in part, the Constitution" through the system of initiative. They can only do so with respect to "laws, ordinances, or resolutions." Secondly, the Act does not provide for the contents of a petition for initiative on the Constitution. The use of the clause "proposed laws sought to be enacted, approved or rejected, amended or repealed" denotes that RA 6735 excludes initiative on the amendments of the Constitution. K. INITIATIVE AND REFERENDUM Initiative on the Constitution – Refers to a petition proposing amendments to the Constitution; a. RA 6735 is INADEQUATE in covering the system of initiative on amendments to the Constitution (2014 BAR) NOTE: The Electoral Tribunals and the Commission on Appointments shall be constituted within 30 days after the Senate and the HoR shall have been organized with the election of the Senate President and the Speaker of the House. (Matibag v Benipayo, G.R. No. 149036, 02, Apr. 2002) 1. Initiative on Local Legislation – Refers to a petition proposing to enact a regional, provincial, municipal, city, or barangay law, resolution or ordinance (Sec. 3 (a), R.A. No. 6735) 110 Legislative Department Referendum It is the power of the electorate to approve or reject legislation through an election called for that purpose. (Sec. 3(c), R.A. No. 6735) Kinds of Referendum 1. Referendum on Statutes - Refers to a petition to approve or reject a law, or part thereof, passed by Congress. 2. Referendum on Local Law – Refers to a petition to approve or reject a law, resolution or ordinance enacted by regional assemblies and local legislative bodies. (Sec. 3 (c), RA 6735) Initiative vs. Referendum (2000 Bar) INITIATIVE REFERENDUM Extent 1. 2. Propose amendments to the Constitution; and Propose and enact legislation. Approve or reject legislation NOTE: The following are the limitations on initiative or referendum: 1. No petition embracing more than one (1) subject shall be submitted to the electorate; and 2. Statutes involving emergency measures, the enactment of which are specifically vested in Congress by the Constitution, cannot be subject to referendum until 90 days after their effectivity. (Sec. 10, RA 6735) 111 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Executive Department Term of office of the Vice-President (VP) IV. EXECUTIVE DEPARTMENT 1. The Vice President shall have a term of 6 years which shall begin at noon on the 30th day of June next following the day of the election and shall end at noon of the same date, 6 years thereafter; and 2. The Vice-President cannot serve for more than 2 successive terms. The President is both the head of State and head of government; hence, executive power is exclusively vested on him. (Sec. 1, Art. VII, 1987 Constitution) A. QUALIFICATIONS, ELECTION, AND TERM OF THE PRESIDENT AND VICE-PRESIDENT NOTE: The Vice-President may be removed from office in the same manner as the President. (Sec. 3, Art. VII, 1987 Constitution) Qualifications of the President and the VicePresident (VP) (Nat-Re2-40-10) 1. 2. 3. 4. 5. B. PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS Natural-born citizen of the Philippines; A Registered voter; Able to Read and write; At least forty (40) years of age on the day of the election; and A resident of the Philippines for at least ten (10) years immediately preceding such election. (Sec. 2, Art. VII, 1987 Constitution) Privileges of the President and Vice-President PRESIDENT 1. Official residence; 1. Salary is determined by law and shall not to be decreased 2. Salary is during his tenure determined by (1987 Constitution, law and shall not Art. VII, Sec. 6); and to be decreased during his 2. If appointed to a tenure; (1987 Cabinet post, no need Constitution, Art. for Commission on VII, Sec. 6) and Appointments’ confirmation. 3. Immunity from (Sec. 3, Art. VII, 1987 suit for official Constitution) acts. NOTE: The enumeration is exclusive. Election of the President and Vice-President The President and the Vice-President shall be elected by direct vote of the people. (Sec. 4, Art. VII, 1987 Constitution) Term of office of the President 1. 2. 3. The President a shall have a term of 6 years which shall begin at noon on the 30th day of June next following the day of the election and shall end at noon of the same date, 6 years thereafter. The President shall not be eligible for any reelection. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time. (Sec. 4, Art. VII, 1987 Constitution) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES VICE-PRESIDENT Reason for prohibition against the change of their salary It is meant to prevent the legislature from “weakening their fortitude by appealing to their avarice or corrupting their integrity by operating on the necessities. (Sec. 6, Art VII, 1987 Constitution) 112 Political Law (Estrada v. Desierto, G.R. Nos. 146710-15, 02 March 2001) Doctrine of Executive Immunity The President is immune from suit or from being brought to court during the period of his incumbency and tenure. When a non-sitting President is not immune from suit for acts committed during his tenure Reason: Assures that the President is free to exercise his Presidential duties and responsibilities without any hindrance or distraction. A non-sitting President does not enjoy immunity from suit, even though the acts were done during her tenure. The intent of the framers of the Constitution is clear that the immunity of the president from suit is concurrent only with his tenure and not his term. (Rodriguez v. GMA, G.R. Nos. 191805 & 193160, 15 Nov. 2011) GR: The privilege of immunity can only be invoked by the President by virtue of the office, not by any other person on behalf of the President. (De Lima vs Duterte, G.R. No. 227635, 15 Oct. 2019) When a former President cannot be impleaded Rules on Executive Immunity A. 1. The President is immune from suit during his tenure. (In re: Bermudez, G.R. No. 76180, 24 Oct. 1986) 2. An impeachment complaint may be filed against him during his tenure. (Art. XI, 1987 Constitution) 3. The President may not be prevented from instituting suit. (Soliven v. Makasiar, G.R. No. 82585, 14 Nov. 1988) 4. 5. Impleading the former President as an unwilling copetitioner, for an act she made in the performance of the functions of her office, is contrary to the public policy against embroiling the President in suits, “to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office holder’s time, also demands undivided attention. (Resident Marine Mammals v. Reyes, G.R. No. 180771, 21 Apr. 2015) Rules on immunity during tenure: Purpose of Presidential Immunity: There is nothing in our laws that would prevent the President from waiving the privilege. He may shed the protection afforded by the privilege. (Soliven v. Makasiar, ibid.) Heads of departments cannot invoke the President’s immunity. (Gloria v. CA, G.R. No. 119903, 15 Aug. 2000) B. Rule on immunity after tenure: Once out of office, even before the end of the 6year term, immunity for non-official acts is lost. Immunity cannot be claimed to shield a nonsitting President from prosecution for alleged criminal acts done while sitting in office. 1. Separation of powers – viewed as demanding the executive’s independence from the judiciary, so that the President should not be subject to the judiciary’s whim. (Almonte, v. Vasquez, G.R. No. 95367, 23 May 1995) 2. Public convenience – The grant is to assure the exercise of presidential duties and functions free from any hindrance or distraction, considering that the presidency is a job that, aside from requiring all of the officeholders’ time, demands undivided attention. (Soliven v. Makasiar, G.R. No. 82585, 14 Nov. 1988) NOTE: The immunity of the President from suit is personal to the President. It may be invoked only by the President and not by any other person. Such privilege pertains to the President by the virtue of the office and may be invoked only by the holder of 113 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Executive Department Constitution necessarily impairs the operation of the Government. However, this does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the people, but he may be removed from office only in the mode provided by law and that is by impeachment. (De Lima vs. Duterte, G.R. No. 227635, 15 Oct. 2019) that office; and not by any other person in his behalf. (Soliven v. Makasiar, ibid.) Q: Sen. de Lima delivered a privilege speech on the floor of the Senate calling a stop to the alleged extrajudicial killings committed in the course of the crackdown on drugs, and urging her colleagues in the Senate to conduct investigations of the alleged victims. Principle of Command Responsibility In response, President Duterte issued a number of public statements against Sen. De Lima, including denunciations of her corruption and immorality. The statements prompted her to initiate a petition for the issuance of a writ of habeas data against President Duterte. May the incumbent President be haled to court even for the limited purpose under the Rules on the Writ of Habeas Data? It is “an omission mode of individual criminal liability,” whereby the superior is made responsible for crimes committed by his subordinates for failing to prevent or punish the perpetrators (as opposed to crimes he ordered). (Rubrico v. GMA, G.R. No. 183871, 18 Feb. 2010) Elements of Command Responsibility 1. A: NO. Sen. De Lima argues that the rationale for Presidential immunity does not apply in her case because the proceedings for the writ of habeas data do not involve the determination of administrative, civil, or criminal liabilities. Again, we remind that immunity does not hinge on the nature of the suit. In short, presidential immunity is not intended to immunize the President from liability or accountability. 2. 3. The rationale for the grant of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance of distraction, considering that being the Chief Executive of the Government is a job that aside from requiring all the office-holder's time, also demands undivided attention Application of the Doctrine of Command Responsibility in Amparo Proceedings It should, at most, be only to determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance and harassments complained of, so as to enable the Court to devise remedial measures that may be appropriate under the premises to protect rights covered by the writ of amparo. (Rubrico v. GMA, G.R. No. 183871, 18 Feb. 2010) Further, a suit will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance, or distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES The existence of a superior-subordinate relationship between the accused as superior and the perpetrator of the crime as his subordinate; The superior knew or had reason to know that the crime was about to be or had been committed; The superior failed to take the necessary and reasonable measures to prevent the criminal acts or punish the perpetrators thereof. (Rodriguez v. GMA, G.R. Nos. 191805 & 193160, 15 Nov. 2011) 114 Political Law President may be held liable for extrajudicial killings and enforced disappearances as Commander-in-Chief Invocation of the Privilege It must be invoked in relation to specific categories of information and not to categories of persons. The President may be held accountable under the principle of command responsibility. Being the commander-in-chief of all armed forces, he necessarily possesses control over the military that qualifies him as a superior within the purview of the command responsibility doctrine. NOTE: A claim of the executive privilege may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. (Senate v. Ermita, G.R. No. 169777, 20 Apr. 2006) On the issue of knowledge, it must be pointed out that although international tribunals apply a strict standard of knowledge, i.e. actual knowledge, the same may nonetheless be established through circumstantial evidence. In the Philippines, a more liberal view is adopted, and superiors may be charged with constructive knowledge. (In the Matter of the Petition for the Writ of Amparo and Habeas Data in favor of Noriel H. Rodriguez v. Gloria Macapagal - Arroyo, G.R. No. 191805 & G.R. No. 193160, 15 Nov. 2011) Consequently, in case where the privilege is invoked through executive orders (EOs) prohibiting executive officials from participating in legislative inquiries, the Court held that “to the extent that investigations in aid of legislation are generally conducted in public, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern.” (Senate v. Ermita, ibid.) Knowledge of the commission of irregularities, crimes or offenses is presumed when: 1. 2. 3. Persons who can Invoke Executive Privilege The acts are widespread within the government official’s area of jurisdiction; The acts have been repeatedly or regularly committed within his area of responsibility; or Members of his immediate staff or office personnel are involved. As to the issue of failure to prevent or punish, it is important to note that as the commander-in-chief of the armed forces, the President has the power to effectively command, control and discipline the military. (Rodriguez v. GMA, G.R. Nos. 191805 & 193160, 15 Nov. 2011) 1. President - Being an extraordinary power, the privilege must be wielded only by the highest official in the executive department. Thus, the President may not authorize her subordinates to exercise such power. 2. Executive Secretary - upon proper authorization from the President- must state that the authority is “By order of the President,” which means he personally consulted with the President. Requirement if an official is summoned by Congress on a matter which in his own judgment might be covered by executive privilege Presidential Privilege It is the power of the President and high-level executive branch officers to withhold certain types of information from Congress, the courts, and ultimately the public. (2009, 2010, and 2015 BAR) He must be afforded reasonable time to inform the President or the Executive Secretary of the possible need for invoking the privilege, in order to provide the same with fair opportunity to consider whether the matter indeed calls for a claim of executive 115 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Executive Department Limitation on Executive Privilege privilege. If, after the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress is no longer bound to respect the failure of the official to appear before Congress and may then opt to avail of the necessary legal means to compel his appearance. (Senate v. Ermita, supra.) Claim of executive privilege is subject to balancing against other interest. Simply put, confidentiality in executive privilege is not absolutely protected by the Constitution. Neither the doctrine of separation of powers nor the need for confidentiality of highlevel communications can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. (Neri v. Senate, G.R. No. 180643, 25 Mar. 2008) Requirements in Invoking the Privilege 1. 2. There must be a formal claim of the privilege; and The claim has specific designation and description of the documents within its scope and with the precise and certain reasons for preserving their confidentiality. Kinds of Executive Privilege 1. Reason: Without this specificity, it is impossible for a court to analyze the claim short of disclosure of the very thing sought to be protected. NOTE: The suspect involved need not be so notorious as to be a threat to national security for the privilege to apply in any given instance. Otherwise, the privilege would be inapplicable in all but the most high-profile cases, in which case not only would this be contrary to longstanding practice, it would also be highly prejudicial to law enforcement efforts in general. NOTE: Congress, however, must not require the Executive to state the reasons for the claim with such particularity as to compel disclosure of the information, which the privilege is meant to protect (Senate v. Ermita, supra.). Scope of Executive Privilege 1. 2. 3. Informer’s Privilege – privilege of the government not to disclose the identity of a person or persons who furnish information on violations of law to offices charged with the enforcement of that law. Conversations and correspondences to enable the President and those who assist him to freely “explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately”; 2. State Secret Privilege - Information is of such nature that its disclosure would subvert crucial military or diplomatic objectives. 3. Generic Privilege - Internal deliberations involving the process of governmental decisions and policies. It likewise covers military, diplomatic and other national security matters which, in the interest of national security, should not be divulged; 4. Presidential Communications Privilege – decision-making of the President. It includes information between intergovernment agencies prior to the conclusion of treaties and executive agreements, discussions in closed-door Cabinet meetings, and matters affecting national security and public order. 5. Deliberative Process Privilege – decisionmaking of executive officials (advisory opinions, recommendations). (In Re: Sealed Case No. 96-3124, 17 June 1997). 6. Diplomatic negotiations privilege UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 116 Political Law test is that an advisor must be in “operational proximity” with the President; and Test to determine the validity of a claim of privilege 3. Whether the requested information falls within one of the traditional privileges and whether that privilege should be honored in a given procedural setting. (Senate v. Ermita, G.R. No. 169777, 20 Apr. 2006) Presidential Communications Deliberative Process Privilege Privilege vs. Presumed Privilege Status of Presidential Communications PRESIDENTIAL DELIBERATIVE COMMUNICATIONS PROCESS PRIVILEGE PRIVILEGE Scope of the privilege Includes advisory Pertains to opinions, communications, recommendations documents or other and deliberations materials that reflect comprising part of presidential decisiona process by which making and deliberations governmental that the President decisions and believes should remain policies are confidential formulated To whom applicable Applies to Applies to decisiondecision-making of making of the President executive officials Foundation Rooted in the constitutional principle of Rooted in common separation of powers and law privileges the President’s unique constitutional role. The presumption is based on the President’s generalized interest in confidentiality. It can be overcome only by mere showing of public need by the branch seeking access to conversations. Matters involving diplomatic negotiations are covered by executive privilege. However, such privilege is only presumptive. Recognizing a type of information as privileged does not mean that it will be considered privileged in all instances. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally privileged status. (AKBAYAN v. Aquino, G.R. No. 170516, 16 July 2008). Prohibitions attached to the President, VicePresident, Cabinet Members, and their deputies or assistants, unless otherwise provided in the Constitution (1996, 1998, 2002, 2004 BAR) 1. Presidential Communications Privilege 2. Shall not receive any other emolument from the government or any other source (Sec. 6, Art. VII, 1987 Constitution); NOTE: Emolument refers to any compensation received for services rendered or from possession of an office. Elements: 1. The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere by an appropriate investigating authority. (Neri v. Senate, ibid.) The protected communication must relate to a “quintessential and non-delegable presidential power”; 2. The communication must be authored or “solicited and received” by a close advisor of the President or the President himself. The judicial Shall not hold any other office or employment during their tenure unless: a. 117 Otherwise provided in the Constitution (e.g. VP can be appointed as a Cabinet Member without the need of confirmation UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Executive Department Specific powers of the President by Commission on Appointments; Sec. of Justice sits in the Judicial and Bar Council) b. 1. The positions are ex-officio and they do not receive any salary or other emoluments therefore (e.g. Sec. of Finance as head of the Monetary Board); 3. Shall not practice, directly or indirectly, any other profession during their tenure; 4. Shall not participate in any business; 5. Shall not be financially interested in any contract with, or in any franchise, or special privilege granted by the Government, including GOCCs; 6. Shall avoid conflict of interest in conduct of office; and 7. Shall avoid nepotism. (Sec. 13, Art. VII, 1987 Constitution) 2. 3. 4. Pardoning power (Sec. 19, Art. VII, 1987 Constitution) 5. Borrowing power (Sec. 20, Art. VII, 1987 Constitution) 6. Diplomatic/Treaty-making power (Sec. 21, Art. VII, 1987 Constitution) 7. Budgetary power (Sec. 22, Art. VII, 1987 Constitution) 8. Informing power (Sec. 23, Art. VII, 1987 Constitution) 9. Veto power (Sec. 27, Art. VI, 1987 Constitution) 10. Power of general supervision over local governments (Sec. 4, Art. X, 1987 Constitution) 11. Power to call special session (Sec. 15, Art. VI, 1987 Constitution) C. POWERS OF THE PRESIDENT 1. GENERAL EXECUTIVE AND ADMINISTRATIVE POWERS General Executive Power Administrative Powers This is the power vested in the President of the Philippines. (Sec. 1, Art. VII, 1987 Constitution) Power concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. To this end, he can issue administrative orders, rules and regulations. (Ople v. Torres, G.R. No. 127685, 23 July 1998) Faithful Execution Clause or “Take-Care” Clause The power to take care that the laws be faithfully executed. (Sec. 17, Constitution, Art. VII) The law he is supposed to enforce includes the Constitution, statutes, judicial decisions, administrative rules and regulations and municipal ordinances, as well as treaties entered into by the government. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Appointing power (Sec. 16, Art. VII, 1987 Constitution) Power of control over all executive departments, bureaus and offices (Sec. 17, Art. VII, 1987 Constitution) Commander-in-Chief powers (Ca-Ma-Ha) a. Calling-out power; b. Power to place the Philippines under Martial law; and c. Power to suspend the privilege of the writ of Habeas corpus. (Sec. 18, Art. VII, 1987 Constitution) Power of administrative reorganization The President has the power to reorganize the offices and agencies in the executive department in line with his constitutionally granted power of control over executive offices and by virtue of a previous delegation of the legislative power to 118 Political Law complied with, the President can withdraw the nomination and appointment. (Lacson v. Romero, G.R. No. L-3081, 14 Oct. 1949) reorganize executive offices under existing statutes. (Banda v. Ermita, G.R. No. 166620, 20 Apr. 2010) 2. POWER OF APPOINTMENT Non-Justiciability of Appointments a. IN GENERAL Appointment is a political question. So long as the appointee satisfies the minimum requirements prescribed by law for the position, the appointment may not be subject to judicial review. The selection of an individual who is to exercise the functions of a given office. It may be made verbally but it is usually done in writing through what is called the commission. Appointments made solely by the President NOTE: The appointing power of the President is executive in nature. While Congress and the Constitution in certain cases may prescribe the qualifications for particular offices, the determination of who among those who are qualified will be appointed is the President’s prerogative. (Pimentel v. Ermita, G.R. No. 164978, 13 Oct. 2005) 1. 2. 3. 4. Elements in Making a Valid, Complete, and Effective Presidential Appointment: (A-T-V-Acc) 1. 2. 3. 4. Those vested by the Constitution on the President alone; Those whose appointments are not otherwise provided by law; Those whom he may be authorized by law to appoint; and Those other officers lower in rank whose appointment is vested by law in the President alone. (Sec. 16, Art. VII, 1987 Constitution) Appointments made by an Acting President Authority to appoint and evidence of the exercise of the authority; Transmittal of the appointment paper signed by the President and evidence of the transmittal; A Vacant position at the time of appointment; and Receipt of the appointment paper and Acceptance of the appointment by the appointee who possesses all the qualifications and none of the disqualifications Appointments extended by an Acting President shall remain effective, unless revoked by the elected President, within 90 days from his assumption or re-assumption of office. (Sec. 15, Art. VII, 1987 Constitution) Designation The imposition of additional duties on a person already in the public service. It is considered only as an acting or temporary appointment, which does not confer security of tenure on the person named. It is said that appointment is essentially executive while designation is legislative in nature. (Binamira v. Garrucho, G.R. No. 92008, 30 July 1990) NOTE: The possession of the original appointment paper is not indispensable to authorize an appointee to assume office. If it were indispensable, then a loss of the original appointment paper, which could be brought about by negligence, accident, fraud, fire, or theft, corresponds to a loss of the office. However, in case of loss of the original appointment paper, the appointment must be evidenced by a certified true copy issued by the proper office, in this case the Malacañang Records Office. NOTE: The President has the power to 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. Temporary designation cannot exceed one year. NOTE: At any time, before all four steps have been 119 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Executive Department Presidential appointments that need prior recommendation or nomination by the Judicial and Bar Council b. CONFIRMATION AND BY-PASSED APPOINTMENTS CONFIRMATION OF APPOINTMENTS 1. Members of the Supreme Court and all lower courts; and Ombudsman and his 5 deputies. (Sec. 9, Art. VIII, 1987 Constitution) 2. Appointments where confirmation of Commission on Appointments is required (Ex-A-CoCa-O) Limitations on the Power of Appointment 1. 1. The spouse and relatives by consanguinity or affinity within the 4th civil degree of the President shall not, during his tenure, be appointed as: a. b. c. d. e. Heads of Executive departments (Cabinet Secretaries) XPN: Vice-president may be appointed as a member of the Cabinet and such appointment requires no confirmation. (Sec. 3(2), Art. VII, 1987 Constitution) Members of the Constitutional Commissions; Office of the Ombudsman; Secretaries; Undersecretaries; and Chairmen or heads of bureaus or offices, including GOCCs and their subsidiaries. (Sec. 13, Art. VII, 1987 Constitution) 2. Ambassadors, other public ministers and consuls– Those connected with the diplomatic and consular services of the country. 3. Officers of AFP from the rank of Colonel or naval Captain NOTE: PNP of equivalent ranks and the Philippine Coast Guard is not included. NOTE: If the spouse, etc., was already in any of the above offices at the time before his/her spouse became President, he/she may continue in office. What is prohibited is appointment and reappointment, not continuation in office. They can also be appointed to the judiciary and as ambassadors and consuls. (Bernas, 2009) 4. Other officers of the government whose appointments are vested in the President in the Constitution (Sec. 16, Art. VII, 1987 Constitution) such as: a. 2. Midnight Appointments GR: Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments. b. Chairmen and members of the CSC, COMELEC and COA (Constitutional Commissions) (Sec. 1(2), Art. IX-B, C, D, 1987 Constitution) Regular members of the JBC (Sec. 8(2), Art. VIII, 1987 Constitution) NOTE: The enumeration is exclusive. It cannot be expanded by ordinary legislation; to do so would mean legislative constitutional amendment. (Calderon v. Carale, G.R. No. 91636, 23 April 1992) XPN: Temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. (Sec. 15, Art. VII, 1987 Constitution) Appointing procedure for those that need Commission’s confirmation 1. 2. 3. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES the 120 Nomination by the President Confirmation by the CA Issuance of commission Political Law 4. for its appropriate action in the next plenary session. (Sec. 25, The New Rules of the Commission on Appointments) Acceptance by the appointee (Lacson vs Romero, G.R. No. L-3081, 14 Oct. 1949) Appointments where confirmation of the Commission on Appointments is NOT required: Under this rule, nominees can only be bypassed three times; after which, the CA should vote on the approval or rejection of the nominee. 1. All other officers of the Government whose appointments are not otherwise provided for by law; 2. Those whom the President may be authorized by law to appoint; and 3. Officers lower in rank whose appointments the Congress may by law vest in the President alone. (Manalo v. Sistoza, G.R. No. 107369, 11 Aug. 1999) c. MIDNIGHT AND AD-INTERIM APPOINTMENTS MIDNIGHT APPOINTMENT GR: Midnight Appointments are prohibited. The purpose of the prohibition on midnight appointments is to prevent a President, whose term is about to end, from preempting his successor by appointing his own people to sensitive positions. (Velicaria-Garafil v. Office of the President, G.R. No. 203372, 16 June 2015) Procedure for those that do not need the Commission’s confirmation 1. Appointment; and 2. Acceptance XPN: The President may appoint to fill vacancies in the Supreme Court even during appointment ban, as he is mandated to fill such vacancy within 90 days from the occurrence. For the lower courts, the President shall issue the appointments within ninety days from the submission of the list. (De Castro vs JBC, G.R. No. 191002, 17 March 2010) BY-PASSED APPOINTMENT A by-passed appointment is one that has not been finally acted upon on the merits by the Commission on Appointments at the close of the session of the Congress. (Matibag v. Benipayo, G.R. No. 149036, 02 Apr. 2002) Q: The President appointed Kimberly as the Acting Secretary of Justice. After a couple of days, the President designated her as the Acting Solicitor General in a concurrent capacity. Julie contested the appointment of Kimberly on the ground that the appointment violated Sec. 13, Art. VII of the Constitution which expressly prohibits the President, Vice-President, the Members of the Cabinet, and their deputies or assistants from holding any other office or employment during their tenure unless otherwise provided in the Constitution. On the other hand, Kimberly claims that according to Sec. 7, par. (2), Art. IX-B of the Constitution, her appointment to such positions is outside the coverage of the prohibition under Sec. 13 of Art. VII as it falls into one of the exceptions as being allowed by law or by the primary functions of her position. Does the designation of Kimberly as the Acting Secretary of Justice, concurrently Limitation as to the number of times the Commission on Appointments can review the Presidents re-appointment of By-passed Appointee A nomination or appointment which has been bypassed three (3) times shall be reported out by the standing committee concerned to the commission for its appropriate action in the next plenary session, provided that no member shall be allowed to invoke the suspension of the consideration of the appointment in this regard. (Sec. 25, The New Rules of the Commission on Appointments) Three Strike Rule A nomination or appointment which has been bypassed 3 times shall be reported out by the standing committee concerned to the commission 121 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Executive Department with his position as Acting Solicitor General, violate the constitutional prohibition against dual or multiple offices for the Members of the Cabinet and their deputies and assistants? appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. (Matibag v. Benipayo, G.R. No. 149036, 02 April 2002) A: YES. There is violation of the Constitution in case an Acting Secretary of Justice is designated as Acting Solicitor General because while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Sec. 7, Art. IX-B is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Sec. 13, Art. VII is meant to be the exception applicable only to the President, the VicePresident, and Members of the Cabinet, their deputies and assistants. Appointments made by the President while the Congress is not in session Ad interim appointments are those made by the president while the congress is NOT in session. It shall be terminated by the disapproval of the appointment by the CA or the adjournment of the Congress without the CA acting on the appointment. (Matibag v. Benipayo, G.R. No. 149036, 02 Apr. 2002) NOTE: The ET and the CA shall be constituted within 30 days after the Senate and the HoR shall have been organized with the election of the Senate President and the Speaker of the House. (Matibag v. Benipayo, ibid.) Purpose of Ad Interim Appointment The phrase "unless otherwise provided in this Constitution" must be given a literal interpretation to refer only to those instances cited in the Constitution itself, to wit: a. The Vice-President being appointed as a member of the Cabinet under Sec. 3, par. (2), Art. VII; or acting as President in those instances provided under Sec. 7, pars. (2) and (3), Art. VII; and b. The Secretary of Justice being exofficio member of the Judicial and Bar Council by virtue of Sec. 8(1), Art. VIII. (Funa v. Agra, G.R. No. 191644, 19 Feb. 2013) Ad interim appointments are intended to prevent a hiatus in the discharge of official duties. Obviously, the public office would be immobilized to the prejudice of the people if the President had to wait for Congress and the Commission of Appointments to reconvene before he could fill a vacancy occurring during the recess. (Guevara v. Inocentes, G.R. No. L-25577, 15 March 1966) Nature of Ad Interim Appointment Ad interim appointments are permanent appointments. It is permanent because it takes effect immediately and can no longer be withdrawn by the President once the appointee qualified into office. The fact that it is subject to confirmation by the CA does not alter its permanent character. (Matibag v. Benipayo, ibid.) (2019 BAR) Sec. 13, Art. VII undoubtedly proscribes the Acting Secretary of Justice as being concurrently designated as Acting Solicitor General; therefore, he could not validly hold any other office or employment during his tenure as the Acting Solicitor General, because the Constitution has not otherwise so provided. (Funa v. Agra, ibid.) AD-INTERIM APPOINTMENT Power of the President to make appointments during the recess of Congress, but such UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 122 Political Law Ad interim Appointment vs. Appointment in an Acting Capacity 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. 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. (Pimentel v. Ermita, G.R. No. 164978, 13 Oct. 2005) APPOINTMENT IN AN ACTING CAPACITY When made Made at any time there is vacancy, i.e., Made during the recess whether Congress is of Congress in session or not As to confirmation of the Commission AD INTERIM APPOINTMENT Requires confirmation of the Commission NOTE: Acting appointments cannot exceed one year. (Sec. 17(3), E.O. 292) Does not require confirmation of the Commission d. POWER OF REMOVAL Nature Permanent in nature Power of Removal Temporary in nature As to security of tenure Appointee enjoys Appointee does not security of tenure enjoy security of tenure Permanent Appointment Appointment vs. GR: From the express power of appointment, the President derives the implied power of removal. XPN: Not all officials appointed by the President are also removable by him since the Constitution prescribes certain methods for the separation from the public service of such officers. (e.g., those that can only be removed by impeachment) Temporary PERMANENT TEMPORARY APPOINTMENT APPOINTMENT As to persons appointed Extended to persons Given to persons possessing the without such requisite eligibility eligibility; As to acts of the appointee Revocable at will without the necessity of just cause or a valid Not revocable at will investigation; appointing power has full discretion to change NOTE: The President is without any power to remove elected local officials since the power is exclusively provided in the last paragraph of Section 60 of the Local Government Code. Source of the President’s Power of Removal: 1. It is implied from his power to appoint. 2. It is implied from the constitutional provision vesting the executive power in the President. 3. It may be implied from his function to take care that laws be properly executed; for without it, his orders for law enforcement might not be effectively carried out. (See further discussion under Law on Public Officers – page 266) President may appoint Acting Secretaries without the consent of the Commission while the Congress is in session 4. It may be implied from the President’s control over the administrative departments, bureaus, and offices of the government. Without the power to remove, it would not be always 123 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Executive Department XPNs to the Alter Ego doctrine possible for the President to exercise his power of control. 1. 2. D. POWER OF CONTROL AND SUPERVISION The President shall have control of all executive departments, bureaus and offices. (Sec. 17, Art. VII, 1987 Constitution) NOTE: It would appear though that doctrine of qualified political agency would not be applicable to acts of cabinet secretaries done in their capacity as ex-officio board directors of a GOCC of which they become a member not by appointment of the President but by authority of law. (See: Trade and Investment Development Corporation of the Philippines v. Manalang-Demigillo, G.R. Nos. 168613 & 185571, 05 Mar. 2013) Power of Control The power of an officer to alter or modify or nullify or to set aside what a subordinate has done in the performance of his duties and to substitute one’s own judgment for that of a subordinate. Essence of the Alter Ego doctrine Such "executive control" is not absolute. The definition of the structure of the executive branch of government, and the corresponding degrees of administrative control and supervision is not the exclusive preserve of the executive. It may be effectively limited by the Constitution, by law, or by judicial decisions. (Moran v. Office of the President, G.R. No. 192957, 29 Sept. 2014) Since the President is a busy man, he is not expected to exercise the totality of his power of control all the time. He is not expected to exercise all his powers in person. He is expected to delegate some of them to men of his confidence, particularly to members of his Cabinet. NOTE: Applying this doctrine, the power of the President to reorganize the National Government may be validly delegated to his Cabinet Members exercising control over a particular executive department. (DENR v. DENR Region XII Employees, G.R. No. 149724, 19 Aug. 2003) NOTE: The President’s power over GOCCs comes from statute, not from the Constitution, hence, it may be taken away by statute. NOTE: Such control is exercisable by the President only over the acts of his subordinates and not necessarily over the subordinate himself. (AngAngco v. Castillo, G.R. No. L-17169, 30 Nov. 1963) The doctrine of qualified political agency declares that, save in matters on which the Constitution or the circumstances require the President to act personally, executive and administrative functions are exercised through executive departments headed by cabinet secretaries, whose acts are presumptively the acts of the President unless disapproved by the latter. There can be no question that the act of the secretary is the act of the President, unless repudiated by the latter. (Hontiveros-Baraquel v. Toll Regulatory Board, G.R. No. 181293, 23 Feb. 2015) 1. DOCTRINE OF QUALIFIED POLITICAL AGENCY “Doctrine of Qualified Political Agency” or “Alter Ego Principle” (2014, 2015 BAR) The acts of the secretaries of the Executive departments performed and promulgated in the regular course of business are presumptively the acts of the Chief Executive. (Villena v. Sec. of the Interior, G.R. No. L-46570, 21 Apr. 1939) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 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. executive clemency NOTE: As a rule, an aggrieved party need not appeal to the Office of the President the decision of a 124 Political Law corporations. (Dadole v. COA, G.R. No. 125350, 03 Dec. 2002) cabinet secretary and may file a petition for certiorari directly with the court assailing the act of the said secretary. His acts are presumed to be of the President’s unless disapproved or reprobated by him. (Manubay v. Garilao, G.R. No. 140717, 16 April 2009) Control vs. Supervision CONTROL SUPERVISION Nature The supervisor or superintendent merely sees to it that An officer in control the rules are lays down the rules in followed, but he the doing of an act. himself does not lay down such rules. 2. EXECUTIVE DEPARTMENTS AND OFFICES Department Heads may exercise power of control on behalf of the President including the power to reverse the judgment of an inferior officer. For instance, the Sec. of Justice may reverse the judgment of a prosecutor and direct him to withdraw information already filed. One, who disagrees, however, may appeal to the Office of the President in order to exhaust administrative remedies prior filing to the court. As to discretion of the officer If the rules are not followed, the officer in control may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself. Also, the Executive Secretary when acting “by authority of the President” may reverse the decision of another department secretary. (LacsonMagallanes v. Paño, G.R. No. L-27811, 17 Nov. 1967) 3. LOCAL GOVERNMENT UNITS Power of General Supervision The supervisor does not have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done but only to conform to the prescribed rules. (Drilon v. Lim, G.R. No. 112497, 04 Aug. 1994) The power of a superior officer to ensure that the laws are faithfully executed by subordinates. NOTE: The power of supervision does not include the power of control; but the power of control necessarily includes the power of supervision. The power of the President over LGUs is only of general supervision. Thus, he can only interfere in the affairs and activities of a LGU if he finds that the latter acted contrary to law. E. EMERGENCY POWERS 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 its next adjournment. (Sec. 23(2), Art. VI, 1987 Constitution) The President or any of his alter egos cannot interfere in local affairs as long as the concerned LGU acts within the parameters of the law and the Constitution. Any directive, therefore, by the President or any of his alter egos seeking to alter the wisdom of a law-conforming judgment on local affairs of a LGU is a patent nullity, because it violates the principle of local autonomy, as well as the doctrine of separation of powers of the executive and the legislative departments in governing municipal 125 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Executive Department Conditions for the vesture of emergency powers in the President: 1. 2. 3. 4. F. MILITARY POWERS There must be war or national emergency; The delegation must be for a limited period only; The delegation must be subject to such restrictions as the Congress may prescribe; and The emergency powers must be exercised to carry out a national policy declared by Congress. Scope of the President’s Commander-in-Chief Powers Absolute authority over the persons and actions of the members of the armed forces. The President as Commander-in-Chief can prevent the Army General from appearing in a legislative investigation and, if disobeyed, can subject him to court martial. (Gudani v. Senga, G.R. No. 170165, 15 Aug. 2006) NOTE: Conferment of emergency powers on the President is not mandatory on the Congress. In 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 interest. (Sec. 17, Art. VII, 1987 Constitution) 1. CALLING OUT POWERS Call the armed forces to prevent or suppress lawless violence, invasion, or rebellion. The only criterion for the exercise of this power is that whenever it becomes necessary. While the President alone can declare a state of national emergency, he may not invoke his provision to authorize him during the emergency “to temporarily take over or direct the operation of any privately owned utility or business affected with public interest without authority from Congress... without legislation, he has no power to take over privately-owned public utility or business affected with public interest. In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article XII in the absence of an emergency powers act passed by Congress.” (David v. GMA, G.R. No. 171409, 03 May 2006) The Constitution does not require the President to declare a state of rebellion to exercise her calling out power. Sec. 18, Art. VII grants the President, as Commander-in-Chief a “sequence” of “graduated powers.” (Sanlakas v. Executive Secretary, G.R. No. 159085, 03 Feb. 2004) (2015 BAR) Calling Out Power does not need Congressional Authority There is no need for congressional authority to exercise the calling out power of the President since such power to call out the armed forces to prevent or suppress lawless violence springs from the power vested in the President under Section 18, Article VII of the Constitution. As in the case where the President did not proclaim a national emergency but only a state of emergency in 3 places in Mindanao and she did not act pursuant to any law enacted by Congress that authorized her to exercise extraordinary powers. (Ampatuan v. Hon. Puno, G.R. No. 190259, 07 June 2011) NOTE: The declaration of a state of emergency is merely a description of a situation which authorizes her to call out the Armed Forces to help the police maintain law and order. It gives no new power to her, nor to the police. Certainly, it does not authorize warrantless arrests or control of media. (David v. GMA, G.R. No. 171409, 03 May 2006) (2015 BAR) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 126 Political Law NOTE: Once revoked by Congress, the President cannot set aside the revocation. 2. DECLARATION OF MARTIAL LAW AND SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS; EXTENSION Limitations on the Declaration of Martial Law DECLARATION OF MARTIAL LAW 1. Nature of Martial Law 2. Martial law is a joint power of the President and the Congress. Thus: (60-48-24-jointly) 1. 2. 3. 4. 3. The President’s proclamation or suspension is temporary, good for only 60 days; He must, within 48 hours of the proclamation or suspension, report on the reason for his action in person or in writing to Congress; Both houses of Congress, if not in session must jointly convene within 24 hours of the proclamation or suspension for the purpose of reviewing its validity; and The Congress, voting jointly, may revoke or affirm the President’s proclamation or suspension, allow their limited effectivity to lapse, or extend the same if Congress deems warranted. NOTE: Civilians cannot be tried by military courts if the civil courts are open and functioning. (Open Court Doctrine) (Olaguer v. Military Commission No. 34, G.R. No. L-54558, 22 May 1987). Guidelines in the Declaration of Martial Law (IR-PS-60-48-jointly-30) 1. 2. 3. 4. 5. 6. It does not suspend the operation of the Constitution; It does not supplant the functioning of the civil courts or legislative assemblies; It does not authorize conferment of jurisdiction over civilians where civil courts are able to function; 4. It does not automatically suspend the privilege of the writ of habeas corpus; and (Sec. 18(4), Art. VII, 1987 Constitution) 5. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. (Sec. 13, Art. III, 1987 Constitution) NOTE: When martial law is declared, no new powers are given to the President; no extension of arbitrary authority is recognized; no civil rights of individuals are suspended. The relation of the citizens to their State is unchanged. The Supreme Court cannot rule upon the correctness of the President’s actions but only upon its arbitrariness. (Cruz, 2014) There must be an Invasion or Rebellion, and Public Safety requires the proclamation of martial law all over the Philippines or any part thereof. Duration: Not more than 60 days following which it shall be automatically lifted unless extended by Congress. Duty of the President to report to Congress: within 48 hours personally or in writing. Authority of Congress to affirm or revoke or allow the lapse or extend the effectivity of proclamation: by majority vote of all its members voting jointly. Judicial Review application: The present constitution recognizes the authority of citizens to question the factual basis for the declaration of martial law, vesting the SC with the authority to decide on the case within 30 days of its filing. Ways to Lift the Proclamation of Martial Law 1. 2. 3. 4. Lifting by the President himself Revocation by Congress Nullification by the SC By operation of law after 60 days Q: In light of recent attacks in Marawi City by the Maute group and other terrorist organizations, President Duterte declared a state of martial law and suspended the privilege of the writ of habeas corpus in the whole of Mindanao, invoking as factual basis a written report 127 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Executive Department pointing out that for decades, Mindanao has been plagued with rebellion and lawless violence which only escalated and worsened with the passing of time and the strategic location of Marawi City and its crucial role in Mindanao and the Philippines as a whole. Is the factual basis for the proclamation enough, and therefore constitutional? privilege of the writ of habeas corpus. (Lagman v. Medialdea, G.R. No. 231658, 04 July 2017). A: YES. The President deduced from the facts available to him that there was an armed public uprising, the culpable purpose of which was to remove from the allegiance to the Philippine Government a portion of its territory and to deprive the Chief Executive of any of his powers and prerogative, leading the President to believe that there was probable cause that the crime of rebellion was and is being committed and that public safety requires the imposition of martial law and suspension of the privilege of the writ of habeas corpus. A: NO. Congress is not constitutionally mandated to convene in joint session except to vote jointly to revoke the President's declaration or suspension. By the language of Article VII, Section 18 of the 1987 Constitution, the Congress is only required to vote jointly to revoke the President's proclamation of martial law and/or suspension of the privilege of the writ of habeas corpus. If Congress does not want to revoke or lift the declaration of martial law, then there is no need for them to meet in joint session. It is worthy to stress that the provision does not actually refer to a "joint session.” The requirement of voting jointly explicitly applies only to the situation when the Congress revokes the President's proclamation of martial law. (Padilla v. Congress, G.R. No. 231671, 25 July 2017) Q: Does Congress have the mandatory duty to convene and meet in joint session upon the President's proclamation of martial law or the suspension of the privilege of the writ of habeas corpus? Section 18, Article VII of the Constitution itself sets the parameters 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, namely (1) actual invasion or rebellion, and (2) public safety requires the exercise of such power. Without the concurrence of the two conditions, the President's declaration of martial law and/or suspension of the privilege of the writ of habeas corpus must be struck down. Role of the Supreme Court in inquiring into the factual bases of the President’s Declaration Martial Law The power of the Court to review the sufficiency of the factual basis under Sec. 18, Art VII of the Constitution is independent of the actions taken by Congress. 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 its power to review. (Lagman v. Medialdea, G.R. No. 231658, 04 July 2017) A review of the aforesaid facts similarly leads the Court to conclude that the President, in issuing Proclamation No. 216, had sufficient factual bases tending to show that actual rebellion exists. The President's conclusion, that there was an armed public uprising, the culpable purpose of which was the removal from the allegiance of the Philippine Government a portion of its territory and the deprivation of the President from performing his powers and prerogatives, was reached after a tactical consideration of the facts. In fine, the President satisfactorily discharged his burden of proof. After all, what the President needs to satisfy is only the standard of probable cause for a valid declaration of martial law and suspension of the UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES JUDICIAL POWER TO REVIEW Court may strike down the presidential proclamation in an appropriate proceeding filed by 128 CONGRESSIONAL POWER TO REVOKE Congress may revoke the proclamation/suspensio n, which revocation shall not be set aside by the President. Political Law any citizen on the ground of lack of sufficient factual basis. Court considers only the information and data available to the President prior to or at the time of the declaration; it is not allowed to undertake an independent investigation beyond the pleadings. Does not look into the absolute correctness of the factual basis. Review power is passive – only initiated by the filing of a petition “in an appropriate proceeding” by a citizen. NOTE: What is permitted to be suspended by the President is not the writ itself but its privilege. Requisites for the suspension of the privilege of the writ of habeas corpus May take into consideration not only data available prior to, but likewise events supervening the declaration. 1. 2. There must be an invasion or rebellion; and Public safety requires the suspension NOTE: The invasion and rebellion must be actual and not merely imminent. Limitations on the Suspension of the Privilege of Writ of Habeas Corpus Could probe deeper and further; it can delve into the accuracy of the facts presented before it. Review mechanism is automatic in the sense that it may be activated by Congress itself at any time after the proclamation of suspension was made. 1. 2. Role of the Supreme Court in reviewing the factual bases of the promulgation of the suspension of the privilege of the writ of habeas corpus Power of Judicial Review vis-à-vis Military Powers of the President Although the Constitution reserves to the Supreme Court the power to review the sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress to exercise its own review powers, which is automatic rather than initiated. Only when Congress defaults in its express duty to defend the Constitution through such review should the Supreme Court step in as its final rampart. The constitutional validity of the President’s proclamation of martial law or suspension of the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court. (Fortun v. GMA, G.R. No. 190293, 20 Mar. 2012) 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. SUSPENSION OF THE WRIT OF HABEAS CORPUS Writ of Habeas Corpus vs. Privilege of the Writ WRIT OF HABEAS CORPUS An order from the court commanding a detaining officer to inform the court if he has the person in custody, and what his basis is in detaining that person. Applies only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion; and Anyone arrested or detained during suspension must be charged within 3 days. Otherwise, he should be released. PRIVILEGE OF THE WRIT That portion of the writ requiring the detaining officer to show cause why he should not be tested. CALLING OUT Most benign and involves 129 SUSPENSION OF THE PRIVILEGE Character Involve curtailment MARTIAL LAW Involve curtailment UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Executive Department ordinary police action and suppression of civil rights and individual freedom suspension of the privilege of the writ of HC. There is no constitutional edict that ML should be confined only in the particular place where the armed public uprising actually transpired. 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. (Lagman v Medialdea, G.R. No. 231658, 04 July 2017) and suppression of civil rights and individual freedom When may the President resort to this power? Whenever it Only when Only when becomes there is there is actual necessary to actual invasion, invasion, prevent or rebellion, and rebellion, suppress public safety lawless violence, and public requires it. invasion, or safety requires it. rebellion. Limitation President must 1. Time limit act within 1. Time limit of 60 days; permissi-ble of 60 days; constitutio-nal 2. Review bounda-ries or 2. Review and and possible in a manner not possible revocation constituting revocation by by grave abuse of Congress; Congress; discretion. Review and Review and possible possible But generally, nullifica-tion nullificapresident has by the SC tion by the full discretion SC Limitations on the Military Powers: 1. 2. 3. 4. 5. 6. Subject to judicial review? YES. Limited YES. Limited to the Actual use to to the determinawhich President determination of puts the armed tion of whether the forced NOT whether the President subject to President had had sufficient sufficient judicial review factual factual basis. basis. 7. 8. Territorial Coverage of Martial Law or the Suspension of the Privilege of the Writ of Habeas Corpus The 1987 Constitution grants to the President, as Commander-in-Chief, the discretion to determine the territorial coverage or application of ML or the UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 130 He may call out the armed forces when it becomes necessary to prevent or suppress lawless violence, invasion or rebellion only. The grounds for the suspension of the privilege of the writ of habeas corpus and the proclamation of martial law are now limited only to invasion or rebellion, when the public safety requires it. The duration of such suspension or proclamation shall not exceed 60 days, following which it shall be automatically lifted. Within 48 hours after such suspension or proclamation, the President shall personally or in writing report his action to the Congress. If not in session, Congress must convene within 24 hours without need of a call. The Congress may then, by a majority vote of all its members voting jointly, revoke his action. The revocation may not be set aside by the President. By the same vote and in the same manner, the Congress may, upon initiative of the President, extend his suspension or proclamation for a period to be determined by the Congress if the invasion or rebellion shall continue and the public safety requires the extension. The action of the President and the Congress shall be subject to review by the Supreme Court which shall have the authority to determine the sufficiency of the factual basis of such action. This matter is no longer considered a political question and may be raised in an appropriate proceeding by any citizen. Moreover, the Supreme Court must decide the challenge within 30 days from the time it is filed. (Sec. 18, Art. VII, 1987 Constitution) Political Law As to effect: a. Plenary pardon– Extinguishes all the penalties imposed upon the offender, including accessory disabilities. b. Partial pardon– Does not extinguish all the penalties; partially extinguishes criminal liability. (RPC, Art. 94(1)). G. EXECUTIVE CLEMENCY As an executive function, the grant of clemency is discretionary, and may not be controlled by the legislature as to limit the effects of the President’s pardon, or to exclude from its scope any class of offenders. Also, the Courts may not inquire into the wisdom or reasonableness of any pardon granted by the President, or have it reversed, save only when it contravenes its limitations. It includes both criminal and administrative cases. (Cruz, 2014) NOTE: A judicial pronouncement that a convict who was granted a pardon subject to the condition that he should not again violate any penal law is not necessary before he can be declared to have violated the condition of her pardon (Torres v. Gonzales, G.R. No. L-76872, 23 July 1987) 1. FORMS AND LIMITATIONS Q: Mateo was convicted of Homicide but was later on granted conditional pardon by the president. When Mateo was filling up his personal data sheet for employment in public office, he did not disclose the existence of a prior criminal conviction for homicide. Can Mateo be employed as a public employee? FORMS OF EXECUTIVE CLEMENCY Pardon An act of grace, which exempts the individual on whom it is bestowed from punishment, which the law inflicts for a crime he has committed. As a consequence, pardon granted after conviction frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. But unless expressly grounded on the person’s innocence (which is rare), it cannot bring back lost reputation for honesty, integrity and fair dealing. (Monsanto v. Factoran, G.R. No. 78239, 09 Feb. 1989) A: NO. The pardon granted to Mateo is one of Conditional Pardon, the pardon did not expressly remit the accessory penalty of Homicide which is perpetual absolute disqualification from holding public office or employment (Mateo v. Executive Secretary, G.R. No. 177875, 08 Aug. 2016). Effects of the grant of pardon Purpose of pardon 1. Frees the individual from all the penalties and legal disabilities imposed upon him by the sentence, and To relieve the harshness of the law or correcting mistakes in the administration of justice. The power of executive clemency is a non-delegable power and must be exercised by the President personally. NOTE: RPC, Article 36. Pardon; its effect: A pardon shall in no case exempt the culprit from the payment of the civil indemnity Kinds of pardon 2. As to presence of condition: a. Absolute pardon– One extended without any conditions; totally extinguishes criminal liability. (Art. 89(4), RPC) b. Conditional pardon – One under which the convict is required to comply with certain requirements. Restores to him all his civil and political rights. NOTE: A pardon does not automatically restore the right to hold public office, or the right of suffrage. Such rights must be expressly restored by the terms of the pardon. (Art. 36, RPC) 131 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Executive Department and fines. Commutation is a pardon in form but not in substance, because it does not affect his guilt; it merely reduces the penalty for reasons of public interest rather than for the sole benefit of the offender. (ibid.) Options of the convict when granted pardon 1. Conditional Pardon– The offender has the right to reject it since he may feel that the condition imposed is more onerous than the penalty sought to be remitted. 2. Absolute Pardon– The offender has no option at all and must accept it whether he likes it or not. Judicial power to pass upon the Validity of the Actions of the President in granting Executive Clemency What it is deciding is whether or not the President has the power to commute the penalty of the said clerk of court. As stated in Daza v. Singson (G.R. No. 86344, 21 Dec. 1989), it is within the scope of judicial power to pass upon the validity of the actions of the other departments of the Government. NOTE: In this sense, an absolute pardon is similar to commutation, which is also not subject to acceptance by the offender. Pardon does not ipso facto restore former office and his rights and privileges Remission of fines and forfeitures Pardon does not ipso facto restore a convicted felon neither to his former public office nor to his rights and privileges, which were necessarily relinquished or forfeited by reason of the conviction although such pardon undoubtedly restores his eligibility to that office (Monsanto v. Factoran, G.R. No. 78239, 9 Feb. 1989). Merely prevents the collection of fines or the confiscation of forfeited property. It cannot have the effect of returning property which has been vested in third parties or money already in the public treasury. (Bernas, 2009) NOTE: The power of the President to remit fines and forfeitures may not be limited by any act of Congress. But a statute may validly authorize other officers, such as department heads or bureau chiefs, to remit administrative fines and forfeitures. (ibid.) The pardoning power of the President cannot be limited by legislative action. It is a presidential prerogative, which may not be interfered with by Congress or the Court, except when it exceeds the limits provided by the Constitution. Articles 36 and 41 of the RPC should thus be construed in a way that will give full effect to the executive clemency instead of indulging in an overly strict interpretation that may serve to impair or diminish the import of the pardon which emanated from the Office of the President, and duly signed by the Chief Executive herself. (Risos-Vidal v. Estrada, G.R. No. 206666, 21 Jan. 2015) Probation A disposition under which a defendant after conviction and sentence is released subject to conditions imposed by the court and to the supervision of a probation officer. NOTE: It is not a right granted to a convicted offender; it is a special privilege granted by the State to a penitent qualified offender, who does not possess the disqualifications under P.D. No. 968, as amended. Likewise, the Probation Law is not a penal law for it to be liberally construed to favor the accused. (Maruhom v. People, G.R. No. 206513, 20 Oct. 2015) Reprieve The postponement of sentence to a date certain or stay of execution. (People v Vera, G.R. No. L-45685, 16 Nov. 1937) Commutation The reduction or mitigation of the penalty, from death penalty to life imprisonment, remittances, UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 132 Political Law Probation vs. Pardon concurrence by a majority of all the members of Congress. (Cruz, 2014) PROBATION PARDON Nature Judicial in nature Executive in nature When applicable May be granted after Requires conviction actual service of by final judgment. sentence. Requisites of amnesty 1. 2. Parole Concurrence of a majority of all the members of Congress (1987 Constitution, Art. VII, Sec. 19); and A previous admission of guilt (Vera v. People, G.R. No. L-18184, 31 Jan. 1963) Effects of the grant of amnesty Release from imprisonment but without full restoration of liberty, as a parolee is still in the custody of the law although not in confinement. (Nachura, 2014) The total extinguishment of the criminal liability and of the penalty and all its effects. Amnesty reaches back to the past and erases whatever shade of guilt there was. In the eyes of the law, a person granted amnesty is considered a new-born child. (People v. Patriarca, G.R. No. 135457, 29 Sept. 2000) Parole vs. Pardon PAROLE PARDON Effect Release of a convict Release of convict from imprisonment from conviction. and is not a restoration of his liberty. Nature Sentence is condoned, subject to In custody of the law reinstatement in case but no longer under of violation of the confinement. condition that may have been attached to the pardon. NOTE: However, amnesty does not excuse the accused from paying the civil indemnity. It subsists notwithstanding service of sentence, or for any reason the sentence is not served by pardon, amnesty or commutation of sentence. (Monsanto v. Factoran, G.R. No. 78239, 09 Feb. 1989) Amnesty vs. Pardon AMNESTY PARDON Nature of the offense Addressed to Political offenses Amnesty Addressed to Ordinary offenses As to whom granted Act of grace, concurred by the legislature, usually extended to groups of persons who committed political offenses, which puts into oblivion the offense itself. (Nachura, 2014) Granted to a class of persons Granted to individuals As to concurrence of Congress This is usually addressed to crimes against the sovereignty of the State, to political offences, for forgiveness being deemed more expedient for the public welfare than prosecution and punishment. This is usually generally addressed to classes or even communities of persons either after conviction or before a charge is filed. Under the Constitution, this may be granted by the President only with the Requires concurrence of majority of all members of Congress Does not concurrence Congress require of Nature of the act Private act which must be pleaded and proved 133 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Executive Department Public act which the court may take judicial notice of Amnesty 1. Looks forward and relieves the offender of the consequence of the offense (Abolishes / Forgives the offense) 2. 3. 4. When granted 5. May be granted before or after conviction Only granted conviction by judgment after final 6. Must be accepted NOTE: The right to the benefits of amnesty, once established by the evidence presented either by the complainant or prosecution, or by the defense, cannot be waived, because it is of public interest that a person who is regarded by the Amnesty Proclamation which has the force of a law, not only as innocent, for he stands in the eyes of the law as if he had never committed any punishable offense. (Barrioquinto v. Fernandez, G.R. No. L-1278, 21 Jan. 1949) Pardon Sources of the President’s Diplomatic Powers 1. 2. Revives Commutations Remission of Fines and Forfeitures REQUIREMENT by final by final by final by final UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES The Constitution The status of sovereignty and independence Scope of the Foreign Relations Powers of the President (N-ARC-DP-Reco) 1. Conviction judgment Conviction judgment Conviction judgment Conviction judgment Cannot restore Public offices forfeited. H. DIPLOMATIC POWER Executive Clemencies; Requirement: EXECUTIVE CLEMENCY Can be granted only after conviction by Final judgment; XPN: Amnesty Cannot be granted in cases of civil or legislative Contempt; Cannot absolve convict of Civil Liability; Cannot be granted in cases of Impeachment; and (Sec. 19, Art. VII, 1987 Constitution) Cannot be granted for violations of Election laws without favorable recommendations of the COMELEC; and NOTE: The reason for the limitation is that the COMELEC is an independent body. As to acceptance Need not be accepted of LIMITATIONS ON EXECUTIVE CLEMENCY (2015 BAR) (Can-F, Cannot-CLIEP) As to perspective Looks backward and puts to oblivion the offense itself. (Stands before the law as if there is no offense committed) Concurrence Congress Negotiate treaties and other international agreements. However, such treaty or international agreement requires the concurrence of the Senate, (Sec. 21, Art. VII) which may opt to do the following: a. b. c. 134 Approve with 2/3 majority; Disapprove outright; or Approve conditionally, with suggested amendments which if re-negotiated and the Senate’s suggestions are incorporated, the Political Law 4. treaty will go into effect without need of further Senate approval. NOTE: In case of a treaty or international agreement, the president, or those acting under their authority, negotiates its terms. The Senate may either agree or disagree to the entirety of the treaty or international agreement. It cannot refine or modify the terms. (Pangilinan v. Cayetano, G.R. Nos. 238875, 239483, 240954, 16 Mar. 2021) NOTE: With the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. (Sec. 20, Art. VII, 1987 Constitution) 5. Executive Agreement (2015 BAR) An executive agreement is a “treaty” within the meaning of that word in international law and constitutes enforceable domestic law. (Nicolas v. Romulo, G.R. No. 175888, 11 Feb. 2009) Executive agreements do not require legislative concurrence. (Bayan Muna v. Romulo, G.R. No. 159618, 01 Feb. 2011) Requisites of Executive Agreement under the Vienna Convention 1. 2. 3. d. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, such decision is within the competence of the President alone. (Pimentel v. Exec. Sec., G.R. No. 158088, 06 July 2005) Appoint ambassadors, other public ministers, and consuls. 3. Receive ambassadors and other public ministers accredited to the Philippines. Deport aliens a. This power is vested in the President by virtue of his office, subject only to restrictions as may be provided by legislation as regards to the grounds for deportation. (Sec. 69, Revised Administrative Code) b. In the absence of any legislative restriction to authority, the President may still exercise this power. c. The power to deport aliens is limited by the requirements of due process, which entitles the alien to a full and fair hearing. NOTE: Summary deportation shall be observed in cases where the charge against the alien is overstaying or expiration of his passport. (Board of Commissioners v. Jong Keun Park, G.R. No. 159835, 21 Jan. 2010) The agreement must be between states; It must be written; and It must be governed by international law. (China National Machinery and Equipment Corporation v. Sta. Maria, G.R. No. 185572, 07 Feb. 2012) 2. Contract and guarantee foreign loans on behalf of RP. (Sec. 20, Art. VII, 1987 Constitution) (1994, 1999 BAR) An alien has the right to apply for bail provided certain standard for the grant is necessarily met (Government of Hong Kong v. Olalia, G.R. No. 153675, 19 Apr. 2007) NOTE: The adjudication of facts upon which the deportation is predicated devolved on the President whose decision is final and executory (Tan Tong v. Deportation Board, G.R. No. L-7680, 30 Apr. 1955) 135 6. Decide that a diplomatic officer who has become Persona non grata be recalled. 7. Recognize governments recognition. and withdraw UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Executive Department 2. I. POWERS RELATIVE TO APPROPRIATION MEASURES Emergency Powers 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. (Sec. 23(2), Art. VI, 1987 Constitution) The President shall submit to the Congress within 30 days from the opening of every regular session, as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures. (Sec. 22, Art. VII, 1987 Constitution) Reason: There may be occasions wherein the President would be in a better position to respond in a timely manner to emergencies and fast changing developments that are critical to the welfare, safety, or security of the nation. Subject to restrictions prescribed by Congress. Reason: The President is in the best position to determine the needs of the government and propose the corresponding appropriations therefor on the basis of existing or expected sources of revenue. NOTE: The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. (Sec. 25(1), Art. VI, 1987 Constitution) Residual Powers of the President Delegated Powers of the President Those “unstated powers” of the President which are implicit in and correlative to the paramount duty residing in that office to safeguard and protect general welfare. (E.O. No. 292) Congress can delegate the following powers to the President: GR: Exists only when there are plainly ambiguous statements in the Constitution. 1. Tariff Powers Although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact with what is traditionally considered as within the scope of ‘executive power.’ Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated. (Marcos v. Manglapus, G.R. No. 88211, 27 Oct. 1989) 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. (Sec. 28(2), Art. VI, 1987 Constitution) Veto Powers of the President Reason: The necessity, not to say expediency, of giving the chief executive the authority to act immediately on certain matters affecting the national economy lest delay result in hardship to the people. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES The President may disapprove or veto a measure upon any ground sufficient for him, as where he considers it unconstitutional or merely inefficacious or unwise. 136 Political Law In every case, he should, in returning the measure to the House of origin, indicate his objections thereto in what is known as a “veto message” so that the same can be studied by the members for possible overriding of his veto. Two-thirds of each House will be sufficient to invalidate the veto and convert the bill into law over the President’s objections. (Sec. 27(1), Art. VI, 1987 Constitution) or become permanently disabled. Congress shall by law provide for the manner in which one who is to act as President shall be selected until a President or a VicePresident shall have qualified, in case of death, permanent disability or inability of the officials. GR: The President must approve entirely or disapprove in toto. XPN: Line or Item Veto Applies to appropriation, revenue and tariff bills, any particular item or items of which may be disapproved without affecting the item or items to which he does not object. (Sec. 27(2), Art. VI, 1987 Constitution) Rules to be applied if the vacancy occurs during the incumbency of the President CAUSE OF VACANCY In case of : (D-P-R-R) a. Death; b. Permanent Disability; c. Removal from office; or d. Resignation of the President J. RULES OF SUCCESSION Rules to be applied if there is vacancy before the term of the President. (Sec. 7, Art. VII, 1987 Constitution) CAUSE OF VACANCY In case of death or permanent disability of the President-elect. In case of failure to elect the President (i.e. Presidential elections have not been held or noncompletion of the canvass of the Presidential elections) In case no President and Vice-President shall have been chosen and qualified, or where both shall have died have been chosen and qualified. CONSEQUENCE In case of : a. Death; b. Permanent Disability; c. Removal from office; or d. Resignation of both the President and the Vice-President The Vice-President elect shall become President. The Vice-President shall act as the President until the President shall have been chosen and qualified. CONSEQUENCE The Vice President shall become the President to serve the unexpired term. The Senate President, or in case of his inability, the Speaker of the HoR, shall act as President until the President or Vice President shall have ben elected and qualified. Rules and procedure to be followed if a vacancy occurs in the offices of the President and VicePresident. (Sec. 10, Art. VII, 1987 Constitution) The Senate President, or in case of his inability, the Speaker of the HoR shall act as President until a President or a Vice-President shall 3. 137 At 10:00 A.M. of the third day after said vacancy occurs – Congress shall convene in accordance with its rules without need of call. UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Executive Department 4. Within 7 days — Congress shall enact a law calling for a special election to elect a President and a Vice President. 5. Said special election shall be held — Not earlier than forty-five (45) days nor later than sixty (60) days from the time of such call. 6. The bill calling such special election — Shall be deemed certified under Sec. 26, par. 2, Art. VI of the Constitution and shall become law upon its approval on third reading by Congress. 7. Appropriations for said special election — Shall be charged against any current appropriations and shall be exempt from the requirements of, Sec. 25, par. 4, Art. VI of the Constitution. 8. The convening of Congress and the special election — cannot be suspended or postponed 9. No special election shall be called — If the vacancy occurs within eighteen (18) months before the date of the next presidential elections. NOTE: The President can reassume power and duties of his office once he transmits to the Senate President and to the Speaker of the HoR his written declaration that no inability exists. (Sec. 11(3), Art. VII, 1987 Constitution) Instances when there is presidential inability to discharge powers and duties of his office (Sec. 11, Art. VII, 1987 Constitution) INSTANCE When the President transmits to the Senate President and to the Speaker of the HoR his written declaration that he is unable to discharge the powers and duties of his office. When a majority of all the members of the Cabinet transmit to the Senate President and to the Speaker of the HoR their written declaration that the President is unable to discharge the powers and duties of his office. CONSEQUENCE The powers and duties of his office shall be discharged by the VicePresident as Acting President. The VicePresident shall immediately assume the powers and duties of the office as Acting President. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 138 Judicial Department advice and concurrence. Therefore, Sec. 14(2) of the Ombudsman Act is similarly unconstitutional and invalid. (Carpio-Morales v. Court of Appeals, G.R. No. 217126-27, 10 Nov. 2015) V. JUDICIAL DEPARTMENT It is the duty of the courts of justice to settle actual controversies involving rights, which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Sec. 1(2), Art. VIII, 1987 Constitution) B. JUDICIAL REVIEW The power of the SC to determine the constitutionality of a law, treaty, ordinance, presidential issuance, and other governmental acts. NOTE: When the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over other departments; it does not in reality nullify or invalidate an act of the legislature, but 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. This is in truth all that is involved in what is termed as ‘Judicial Supremacy’, which properly is the power of judicial review under the Constitution. (Angara v. The Electoral Commission, G.R. No. L-45081, 15 July 1936) A. JUDICIAL POWER Body vested with judicial power It is vested in one Supreme Court and such lower courts as may be established by law. (Sec. 1, Art. VIII, 1987 Constitution) Judicial Power Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. (Sec. 1(2), Art. VIII, 1987 Constitution) Scope of Judicial Review The courts have the power to pass upon the validity and the constitutionality of laws enacted by the legislature, and other bodies of the government. (Nachura, 2006) Functions of judicial review (C-L-S) Q: Paragraph 2 of Sec. 14 of the Ombudsman Act (R.A. No. 6770) provides: “No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court, on pure question of law.” Decide on the constitutionality of this provision. 1. 2. 3. A: Sec. 14 (2) of the Ombudsman Act is unconstitutional. This provision limits the remedy against “decision or findings” of the Ombudsman to a Rule 45 appeal. This is similar to Sec. 27(4) of R.A. No. 6770 which attempts to effectively increase the Supreme Court’s appellate jurisdiction without its 139 Checking – Invalidating a law or executive act that is found to be contrary to the Constitution. Legitimizing – Upholding the validity of the law that results from a mere dismissal of a case challenging the validity of the law. 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. (Dumlao v. COMELEC, G.R. No. L-52245, 22 Jan. 1980) UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law A: NO. There is no actual case or controversy. The Court cannot speculate on the constitutionality or unconstitutionality of a bill that Congress may or may not pass. It cannot rule on mere speculations or issues that are not ripe for judicial determination. Filing of bills is within the legislative power of Congress and is "not subject to judicial restraint" (In the Matter of Save the Supreme Court v. Abolition of JDF, UDK-15143, 21 Jan. 2015) NOTE: The power of judicial review in impeachment proceedings includes the power of review over justiciable issues in impeachment proceedings. (Francisco v. HoR, G.R. No. 160261, 10 Nov. 2003) 1. REQUISITES (A-Lo-E-Mota) 1. 2. 3. 4. LOCUS STANDI Actual case or controversy Locus Standi The question of constitutionality must be raised at the Earliest opportunity The question of constitutionality must be the lis Mota of the case One who has sustained or is in immediate danger of sustaining an injury as a result of the act complained of. (People v. Vera, G.R. No. 45685, 16 Nov. 1937) To have standing, one must show that: (I-T-R) ACTUAL CASE OR CONTROVERSY 1. It involves a conflict of legal rights, assertion of opposite legal claims susceptible of legal resolution. 2. Controversy 3. It must be one that is appropriate for judicial determination. It must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree that is conclusive in character. Legal personality GR: If there is no actual or potential injury, complainant has no legal personality to raise constitutional questions. The case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence. XPN: If the importance. question is of transcendental Principle of Transcendental Importance is determined by: (C-D-O) Q: Angelo Raphael petitions the SC to nullify House Bill No. 4738 which abolishes the Judicial Development Fund (JDF) and replaces it with the Judiciary Support Fund (JSF). The funds from JSF shall be remitted to the national treasury and Congress shall determine how the funds will be used; unlike the JDF, the spending of which is exclusively determined by the SC. Rolly argues that House Bill No. 4738 infringes SC’s fiscal autonomy. Is the petition meritorious? UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES He has suffered some actual or threatened Injury as a result of the allegedly illegal conduct of the government; The injury is fairly Traceable to the challenged action; and The injury is likely to be Redressed by a favorable action. (Francisco, Jr. & Hizon v. Toll Regulatory Board, G.R. Nos. 166910, 19 Oct. 2010) 1. 2. 3. 140 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; The lack of any Other party with a more direct and specific interest in raising the questions being raised. (Francisco, et al., v. House of Representatives. Ibid.) Judicial Department Locus Standi in cases involving Taxes NOTE: “An interest in the execution of the laws” and the “constitutional right to due process” considering the “transcendental and paramount importance not only to the public but also to the Bench and the Bar, and should be resolved for the guidance of all.” (Garcillano v. HoR, G.R. No. 170338, 10 Dec. 2008) A taxpayer need not be a party to the contract to challenge its validity. If taxes are involved, people have a right to question contracts entered into by the government. Further, the issues raised in the petition do not refer to the wisdom but to the legality of the acts complained of. Thus, we find the instant controversy within the ambit of judicial review. Besides, even if the issues were political in nature, it would still come within our powers of review under the expanded jurisdiction conferred upon us by Section 1, Article VIII of the 1987 Constitution, which includes the authority to determine whether grave abuse of discretion amounting to excess or lack of jurisdiction has been committed by any branch or instrumentality of the government. (Mamba v. Lara, G.R. No. 165109, 14 Dec. 2009) The proceeding involves the assertion of a public right. (Francisco Jr. v. HoR, G.R. No. 160261, 10 Nov. 2003) Requirements for an ordinary citizen to raise a constitutional question: 1. 2. 3. He has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; The injury is fairly traceable to the challenged action; and A favorable action will likely redress the injury. (Francisco v. Fernando, G.R. No. 166501, 16 Nov. 1006) Locus Standi in Environmental Cases In our jurisdiction, locus standi in environmental cases has been given a more liberalized approach. Recently, the Court passed the landmark Rules of Procedure for Environmental Cases, which allow for a “citizen suit,” and permit any Filipino citizen, as steward of nature, to file an action before our courts for violations of our environmental laws. Thus, the need to give the Resident Marine Mammals legal standing has been eliminated by our Rules and it is worth noting here that the Stewards are joined as real parties in the Petition and not just in representation of the named cetacean species. (Resident Marine Mammals v. Reyes, G.R. No. 180771, 21 Apr. 2015) Rule on Taxpayer as Proper Party An ordinary taxpayer, or a group of taxpayers, can raise the question of the validity of an appropriation law. “The transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside technicalities of procedure.” (Araneta v. Dinglasan, G.R. No. L-2044, 26 Aug. 1949) Requirements for a Taxpayer’s suit to prosper: 1. 2. Public funds derived from taxation are disbursed by a political subdivision or instrumentality and in doing so, a law is violated or some irregularity is committed; and The petitioner is directly affected by the alleged act. The filing of a petition for the issuance of a Writ of Kalikasan does not require that a petitioner be directly affected by an environmental disaster. The rule clearly allows juridical persons to file the petition on behalf of persons whose constitutional right to a balanced and healthful ecology is violated or threatened with violation. (West Tower v. First Philippine, G.R. No. 194239, 16 June 2015) NOTE: The Supreme Court “retains discretion whether or not to allow a taxpayer’s suit.” (The Province of North Cotabato v. The Government of the Republic of the Philippines Peace Panel on Ancestral Domain, ibid.) 141 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law In Civil cases – It may be brought anytime if the resolution of the constitutional issue is inevitable in resolving the main issue. Locus Standi in questioning election laws Voters may be considered as proper parties with respect to the implementation of election laws provided that “there must be a showing of obvious interest in the validity of the election law in question.” (David v. Arroyo, G.R. No. 171396, 03 May 2006) In every case, when the jurisdiction of the lower court is in question except when there is estoppel. (Tijam v. Sibonghanoy, G.R. No. L-21450, 15 Apr. 1968) Locus Standi for members of the IBP THE QUESTION OF CONSTITUTIONALITY IS THE LIS MOTA OF THE CASE Although it may be granted standing to assert the right of its members, “the mere invocation by the Integrated Bar of the Philippines, or any member of the legal profession, of the duty to preserve the rule of law does not suffice to clothe it with legal standing.” (The Province of North Cotabato v. The Government of the Republic of the Philippines Peace Panel on Ancestral Domain, Ibid) Lis mota means "the cause of the suit or action." Given the presumed validity of an executive act, the petitioner who claims otherwise has the burden of showing first that the case cannot be resolved unless the constitutional question he raised is determined by the Court. (General v. Urro, G.R. No. 191560, 29 Mar. 2011) Rule on Intervenors as Proper Party As long as there are other bases which courts can use for decision, constitutionality of the law will not be touched, thus, courts should refrain from resolving any constitutional issue "unless the constitutional question is the lis mota of the case." Intervenors may be given legal standing upon showing of facts that satisfy the requirements of the law authorizing intervention, such as a legal interest in the matter in litigation, or in the success of either of the parties. (The Province of North Cotabato v. The Government of the Republic of the Philippines Peace Panel on Ancestral Domain, Ibid.). Reason why courts will as much as possible avoid the decision of a constitutional question This can be traced to the Doctrine of Separation of Powers which enjoins upon each department a proper respect for the acts of the other department. Every law has in its favor the presumption of validity. Unless and until a specific provision of the law is declared invalid and unconstitutional, the same is valid and binding for all intents and purposes. (SEC v. Interport Resources Corporation, G.R. No. 135808, 06 Oct. 2008) THE QUESTION OF CONSTITUTIONALITY MUST BE RAISED AT THE EARLIEST OPPORTUNITY Constitutional question must be raised at the earliest possible opportunity. GR: It must be raised in the pleadings. XPNS: NOTE: Courts indulge the presumption of constitutionality and go by the maxim that “to doubt is to sustain.” In Criminal cases – It may be brought at any stage of the proceedings according to the discretion of the judge (trial or appeal) because no one shall be brought within the terms of the law who are not clearly within them and the act shall not be punished when the law does not clearly punish them. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Limitations of Judicial Review The following are the “Seven Pillars” of limitations to the power of judicial review: (Demetria v. Alba, G.R. No. 71977, 27 Feb. 1987) 142 Judicial Department 1. 2. 3. 4. political question. It constitutes another limitation on such power of the judiciary. (Francisco v. House of Representatives, G.R. No. 160261, 10 Nov. 2003) The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding, declining because to decide such questions “is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. The Court will not “anticipate a question of constitutional law in advance of the necessity of deciding it.” The Court will not “formulate a rule of constitutional law broader than is required by the precise facts as to which it is to be applied.” The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. Justiciable questions vs. Political questions JUSTICIABLE QUESTIONS Definition Imply a given right legally demandable and enforceable, an act or omission violative of such right, and a remedy granted and sanctioned by law for said breach of right. NOTE: If a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. 5. 6. 7. POLITICAL QUESTIONS The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided. Questions which involve the policy or the wisdom of the law or act, or the morality or efficacy of the same. Generally it cannot be inquired by the courts. Further, these are questions which under the Constitution: a. are decided by the people in their sovereign capacity; and b. where full discretionary authority has been delegated by the Constitution either to the executive or legislative department. Effect of the expanded definition of judicial power on the political question doctrine (1995, 1997, 2004 BAR) The 1987 Constitution expands the concept of judicial review. Under the expanded definition, the Court cannot agree that the issue involved is a political question beyond the jurisdiction of the court to review. When the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the limitations respected is justiciable—the problem being one of legality or validity, not its wisdom. Moreover, the jurisdiction to delimit constitutional boundaries has been given to the SC. When political questions are involved, the Constitution limits the delimitation as to whether or not there has been a grave abuse of 2. POLITICAL QUESTION DOCTRINE These are questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. (Tañada v. Cuenco, G.R. No. L-10520, 28 Feb. 1957) NOTE: The doctrine that the power of judicial review cannot be exercised when the issue is a 143 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law dismissal of the petition. Courts generally decline jurisdiction over such case or dismiss it on the ground of mootness. This is because the judgment will not serve any useful purpose or have any practical legal effect because, in the nature of things, it cannot be enforced. (Cervantes v. Aquino III, G.R. No. 210805, 11 May 2021) discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. (Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, 15 Aug. 2000) 3. MOOT QUESTIONS A case becomes moot and academic when, by virtue of supervening events, the conflicting issue that may be resolved by the court ceases to exist. There is no longer any justiciable controversy that may be resolved by the court. This court refuses to render advisory opinions and resolve issues that would provide no practical use or value. This court generally “declines jurisdiction over such case or dismiss it on the ground of “mootness.” (Republic of the Philippines vs. Moldex Realty, Inc. et al. G.R. No. 171041, 10 Feb. 2016) 4. OPERATIVE FACT DOCTRINE GR: An unconstitutional law produces no effects. XPN: Operative fact doctrine - while the unconstitutional law remains unconstitutional, but the effects of the unconstitutional law, prior to its judicial declaration of nullity, may be left undisturbed as a matter of equity and fair play. (League of Cities v. COMELEC, G.R. No. 176951, 18 Nov. 2008) GR: The judiciary cannot resolve moot cases and should dismiss it on the ground of mootness. NOTE: The invocation of this doctrine is an admission that the law is unconstitutional. XPNS: 1. There is grave violation of the Constitution; 2. The exceptional character of the situation and the paramount public interest is involved; 3. When the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and 4. The case is capable of repetition yet evading review. (David v Arroyo, G.R. No. 171396, 03 May 2006) Application of the Doctrine of Operative Fact Q. Does a supervening termination of a BuildOperate-Transfer Agreement makes an instant petition which seeks to nullify the same moot and academic? A. YES. In the case at bar, there is no dispute that the action for certiorari and prohibition filed by petitioners has been mooted by the termination of the BOT Agreement of private respondents. A case or issue is considered moot and academic when it ceases to present a justiciable controversy by virtue of supervening events, so that an adjudication of the case or a declaration on the issue would be of no practical value or use. In such instance, there is no actual substantial relief which a petitioner would be entitled to, and which would be negated by the UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 1. In the higher interest of justice, equity and fairness, the doctrine applies to acts and consequences that resulted from the reliance not only on a law or executive act which is quasi-legislative in nature but also on decisions or orders of the executive branch which were later nullified. (Araullo v. Aquino, G.R. No.209287, 01 July 2014) 2. It does not apply when there is no reliance by the public in good faith upon the invalid law. 3. The doctrine does not apply when no inequity or injustice would arise. (Municipality of Tupi v. Faustino, G.R. No. 231896, 20 Aug. 2019) Doctrine of Partial Unconstitutionality In deference to the doctrine of separation of powers, courts hesitate to declare a law totally unconstitutional and, as long as it is possible, will salvage the valid portions thereof in order to give effect to the legislative will. 144 Judicial Department Requisites for a valid declaration of partial unconstitutionality: 1. The legislature is willing to retain the valid portions even if the rest of the statute is declared illegal; and Example: The clause, “or for three (3) months for every year of the unexpired term, whichever is less” in the 5th paragraph of Section 10 of R.A. No. 8042, which was reinstated in Section 7 of R.A. No. 10022 was declared unconstitutional. (Serrano v. Gallant Maritime Services, Inc., G.R. No. 167614, 24 Mar. 2009; Sameer Overseas Placement Agency, Inc. v. Cabiles, G.R. No. 170139, 05 Aug. 2014) 2. That the valid portions can independently as a separate statute. stand 4. The appellate jurisdiction of the SC may not be increased by law without its advice and concurrence. (Sec. 30, Art. VI, 1987 Constitution) 5. Appointees to the judiciary are now nominated by the JBC and no longer subject to confirmation by the Commission on Appointments. (Sec. 9, Art. VIII, 1987 Constitution) 6. The SC has administrative supervision over all inferior courts and personnel. (Sec. 6, Art. VIII, 1987 Constitution) 7. The SC has exclusive power to discipline judges/justices of inferior courts. (Sec. 11, Art. VIII, 1987 Constitution) 8. The members of the judiciary enjoy security of tenure, which cannot be undermined by a law reorganizing the judiciary. (Sec. 2(2), Art. VIII, 1987 Constitution) 9. The members of the judiciary may not be designated to any agency performing quasijudicial or administrative functions. (Sec. 12, Art. VIII, 1987 Constitution) C. JUDICIAL INDEPENDENCE AND FISCAL AUTONOMY Constitutional safeguards that guarantee the independence of the judiciary 1. The SC is a constitutional body. It cannot be abolished nor may its membership or the manner of its meetings be changed by mere legislation. (Sec. 4(1), Art. VIII, 1987 Constitution) 10. The salaries of judges may not be reduced during their continuance in office; the judiciary enjoys fiscal autonomy. (Sec. 3, Art. VIII, 1987 Constitution) 2. Members of the SC may not be removed except by impeachment. (Sec. 2, Art. XI, 1987 Constitution) 11. The SC alone may initiate the promulgation of the Rules of Court. (Sec. 5(5), Art. VIII, 1987 Constitution) 3. The SC may not be deprived of its minimum original and appellate jurisdiction as prescribed in Article VIII, Section 5, of the Constitution. (Sec. 2, Art. VIII, 1987 Constitution) 12. The SC alone may order temporary detail of judges. (Sec. 5(3), Art. VIII, 1987 Constitution) 13. The SC can appoint all officials and employees of the Judiciary. (Sec. 5(6), Art. VIII, 1987 Constitution) NOTE: The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts (all courts below the SC). 145 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law Judicial Privilege Privilege or DPP) (Deliberative against an impeachable officer could not be doubted. The same is not a ground for inhibition provided that their appearance is with the prior consent of the Supreme Court en Banc and they faithfully observe the parameters that the Court set for the purpose. (Republic vs. Sereno G.R. No. 237428, 11 May 2018) Process The privilege against disclosure of information or communications that formed the process of judicial decisions. This applies to confidential matters, which refer to information not yet publicized by the Court like (1) raffle of cases, (2) actions taken in each case in the Court’s agenda, and (3) deliberations of the Members in court sessions on case matters pending before it. Requisites for a document to be protected by DPP It must be shown that the document is both: This privilege, however, is not exclusive to the Judiciary and it extends to the other branches of government due to our adherence to the principle of separation of powers. (In Re: Production of Court Records and Documents and the Attendance of Court Officials and Employees as Witnesses under the Subpoenas of Feb. 10 2012 and the Various Letters of Impeachment Prosecution Panel dated Jan. 19 and 25, 2012, 14 Feb. 2012) Purpose of Judicial Privilege To prevent the ‘chilling’ of deliberative communications. It insulates the Judiciary from an improper intrusion into the functions of the judicial branch and shields judges, justices, and court officials and employees from public scrutiny or the pressure of public opinion that would impair their 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 Feb. 10, 2012 and the Various Letters of Impeachment Prosecution Panel dated Jan. 19 and 25, 2012, 14 Feb. 2012) Pre-decisional – If they were made in the attempt to reach a final decision; and 2. Deliberative – If it reflects the give-and-take of the consultative process such as the disclosure of the information would discourage open discussion within the agency. (In Re: Production of Court Records and Documents and the Attendance of Court Officials and Employees as Witnesses under the Subpoenas of Feb. 10, 2012 and the Various Letters of Impeachment Prosecution Panel dated Jan. 19 and 25, 2012, 14 Feb. 2012) NOTE: Court records which are pre-decisional and deliberative in nature are thus protected and cannot be the subject of subpoena if judicial privilege is to be preserved. (ibid.) NOTE: Members of the Court may not be compelled to testify in the impeachment proceedings against the Chief Justice or other Members of the Court about information acquired in the performance of their official adjudicatory functions and duties; otherwise, their disclosure of confidential matters learned in their official capacity violates judicial privilege as it pertains to the exercise of the constitutional mandate of adjudication. (ibid.) Q: Does the participation of Associate Justices in the hearings of the House Committee on Justice determining probable cause for the impeachment of an impeachable officer make them disqualified to hear a petition for quo warranto against said officer? XPN: If the only intent is for them to identify or certify the genuineness of documents within their control that are not confidential and privileged, their presence in the Impeachment Court may be permitted. (ibid.) A: NO. Their appearance thereat is in deference to the House of Representatives whose constitutional duty to investigate the impeachment complaint filed UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 1. 146 Judicial Department judiciary in the performance of their judicial functions or expose them to revenge for adverse decisions. (RE: Request for Copies of the SALN and Personal Data Sheet or Curriculum Vitae of the Justices of the Supreme Court and Officers and Employees of the Judiciary, A.M. No. 09-8-6-SC, 13 June 2012) Waiver of privilege This privilege, incidentally, belongs to the Judiciary and is for the SC (as the representative and entity speaking for the Judiciary), and not for the individual justice, judge, or court official or employees to waive. Thus, every proposed waiver must be referred to the SC for its consideration and approval. (ibid.) D. APPOINTMENTS TO THE JUDICIARY Constitutional guarantee of fiscal autonomy Fiscal autonomy contemplates a guarantee of full flexibility to allocate and utilize resources with the wisdom and dispatch that the needs require. (Bengzon v. Drilon, G.R. No. 103524, 15 Apr. 1992) A Member of the Judiciary must be a person of proven competence, integrity, probity and independence. (Sec. 7(3), Art. VIII, 1987 Constitution) It recognizes the power and authority to deny, 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 it in the course of the discharge of its functions. Kinds of Philippine Courts 1. 2. Q: The Court received two letters requesting for copies of Statement of Assets, Liabilities, and Net worth (SALN) and the Personal Data Sheet (PDS) or the Curriculum Vitae (CV) of its justices for the year 2008 for the purposes of updating their database of information on government officials. Other requests for copies of SALN and other personal documents of the Justices of the Court, Court of Appeals (CA), and Sandiganbayan (SB) were filed. Can the Court allow the release of copies of SALN and other personal documents of the incumbent Justices? 3. Supreme Court (SC) Lower Collegiate Courts a. Court of Appeals (CA) b. Court of Tax Appeals(CTA) c. Sandiganbayan (Sps. Consing v. CA, G.R. No. 78272, 29 Aug. 1989) Lower Courts a. Regional Trial Courts (RTC) b. Municipal Trial Courts, Metropolitan Trial Courts, Municipal Trial Court in Cities (MTCC), Municipal Circuit Trial Courts (MCTC) 1. QUALIFICATIONS Members of the Supreme Court (Nat-40-15-CIPI) 1. Natural-born citizen of the Philippines; 2. At least forty (40) years of age; 3. Must have been for fifteen years (15) or more, a judge of a lower court or engaged in the practice of law in the Philippines; 4. Has proven competence, integrity, probity, and independence. (C-I-P-I) (Sec. 7, Art. VIII, 1987 Constitution) A: The Court may deny request for certified copies of Statements of Assets, Liabilities and Net Worth (SALNs) of all incumbent justices of the SC and Court of Tax Appeals if it is lacking sufficient basis. It should not be forgotten that invoking one’s constitutional right to information must not set aside the need to preserve the integrity and independence of the judiciary. It must be invoked if under the circumstances it would not result in endangering, diminishing or destroying the independence and security of the members of the 147 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law submitted by the JBC, President Aquino should have appointed the 16th Sandiganbayan Associate Justice from the nominees in the shortlist for the 16th Sandiganbayan Associate Justice, the 17th Sandiganbayan Associate Justice from the nominees in the shortlist for the 17th Sandiganbayan Associate Justice, and so on and so forth. By totally overlooking the nominees for the 16th Sandiganbayan Associate Justice and appointing respondents Musngi and Econg, who were both nominees for the 21st Sandiganbayan Associate Justice, as the 16th and 18th Sandiganbayan Associate Justices, respectively, President Aquino violated the Art. VIII, Sect. 9 of the 1987 Constitution, which requires the President to appoint from a list of at least three nominees submitted by the JBC for every vacancy. Are the petitioners correct? Members of the Court of Appeals (Nat-40-15CIPI) 1. Natural-born citizen of the Philippines; 2. At least forty (40) years of age; 3. Must have been for fifteen years (15) or more, a judge of a lower court or engaged in the practice of law in the Philippines; 4. Has proven competence, integrity, probity, and independence. Members of the Regional Trial Courts: (Nat-3510-CIPI) 1. Natural-born citizen of the Philippines; 2. At least 35 years of age; 3. For at least 10 years, has been engaged in the practice of law in the Philippines or has held public office in the Philippines requiring admission to the practice of law as an indispensable requisite; 4. Has proven competence, integrity, probity, and independence. (Sec 15, B.P. 129) A: NO. Nomination by the JBC shall be a qualification for appointment to the Judiciary, but this only means that the President cannot appoint an individual who is not nominated by the JBC. It should be stressed that the power to recommend of the JBC cannot be used to restrict or limit the President's power to appoint as the latter's prerogative to choose someone whom he/she considers worth appointing to the vacancy in the Judiciary is still paramount. As long as in the end, the President appoints someone nominated by the JBC, the appointment is valid. This does not violate Article VIII, Section 9 of the 1987 Constitution. To meet the minimum requirement under said constitutional provision of three nominees per vacancy, there should at least be 18 nominees from the JBC for the six vacancies for Sandiganbayan Associate Justice; but the minimum requirement was even exceeded herein because the JBC submitted for the President's consideration a total of 37 qualified nominees. (Aguinaldo v. Aquino, G.R. No. 224302, 29 Nov. 2016) Members of the Metropolitan, Municipal, and Municipal Circuit Courts (Nat-30-5P-CIPI) 1. Natural-born citizen of the Philippines; 2. At least 30 years of age; 3. For at least 5 years, has been engaged in the practice of law in the Philippines, or has held Public office in the Philippines requiring admission to the practice of law as an indispensable requisite. 4. Has proven competence, integrity, probity, and independence. (Sec. 25, B.P. 129) NOTE: For both lower collegiate courts and lower courts, Congress may prescribe other qualifications. (Secs. 7(1) and (2), Art. VIII, 1987 Constitution) Q: By virtue of Republic Act No. 10660, two new divisions of the Sandiganbayan were created with three members each, and there were six simultaneous vacancies for Associate Justice of said collegiate court. The JBC then submitted six separate shortlists for the vacancies for the 16th to the 21st Sandiganbayan Associate Justices. Petitioners assert that President Aquino's power to appoint is limited to each shortlist UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 148 Judicial Department POWERS AND FUNCTIONS OF THE JBC (2000 BAR) 2. JUDICIAL AND BAR COUNCIL (JBC) (COMPOSITION AND POWERS) The principal function of the JBC is to recommend appointees to the judiciary. It may, however, exercise such functions as the SC may assign to it. (Sec. 8(5), Art. VIII, 1987 Constitution) COMPOSITION OF THE JBC Ex-officio members 1. Chief Justice, as ex-officio chairman 2. Secretary of Justice, as an ex-officio member 3. Representative of Congress, as an ex-officio member NOTE: The duty of the JBC to submit a list of nominees before the start of the President’s mandatory 90-day period to appoint is ministerial, but its selection of the candidates whose names will be in the list to be submitted to the President lies within the discretion of the JBC. (De Castro v. JBC, G.R. No. 191002, 17 Mar. 2010) Regular members 1. Representative of the Integrated Bar 2. A Professor of law 3. A Retired member of the SC 4. Private sector representative E. THE SUPREME COURT (COMPOSITION, POWERS, AND FUNCTIONS) NOTE: The regular members of the JBC shall be appointed by the President for a term of four years with the consent of the Commission on Appointments. (Sec. 8(2), Art. VIII, 1987 Constitution) COMPOSITION OF THE SUPREME COURT JBC does not fall within the scope of a tribunal, board, or officer exercising judicial or quasi-judicial functions. However, since the formulation of guidelines and criteria is necessary and incidental to the exercise of the JBC’s constitutional mandate, a determination must be made on whether the JBC has acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing and enforcing the said policy. (Villanueva v. JBC, G.R. No. 211833, 07 Apr. 2015) 1. 2. Chief Justice 14 Associate Justices Divisions of the SC It may sit en banc or in its discretion, in divisions of three, five, or seven members. (Sec. 4(1), Art. VIII, 1987 Constitution) Qualifications for appointments to the SC Only one representative of Congress in the JBC 1. Natural born citizen of the Philippines; 2. At least 40 years of age; and 3. A judge of a lower court or engaged in the practice of law in the Philippines for 15 years or more. (Sec. 7(1), Art. VIII, 1987 Constitution) The word “Congress” used in Sec. 8(1); Art. VIII is used in its generic sense. Only a singular representative may be allowed to sit in the JBC from either the Senate or HoR. The seven-member composition of the JBC serves a practical purpose, that is, to provide a solution should there be a stalemate in voting. (Chavez v. Judicial and Bar Council, G.R. No. 202242, 17 July 2012) The members of the judiciary are appointed by the President of the Philippines from among a list of at least three (3) nominees prepared by the Judicial and Bar Council (JBC) for every vacancy. NOTE: The appointment shall need no confirmation from the Commission on Appointments. (Sec. 9, Art. VIII, 1987 Constitution) 149 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law each other as these remedies are distinct as to jurisdiction, grounds, applicable rules pertaining to initiation, filing and dismissal, and limitations. (Republic v. Sereno, G.R. No. 237428, 11 May 2018) Rules on vacancies in the Judiciary 1. 2. Vacancies in the SC should be filled within 90 days from the occurrence of the vacancy. (Sec. 4(1), Art. VIII, 1987 Constitution) Vacancies in lower courts should be filled within 90 days from submission to the President of the JBC list. POWERS AND FUNCTIONS OF THE SUPREME COURT En Banc Decisions; Cases that should be heard by the SC en banc (T-Ru-P-Di-Pre-J-E) Tenure of the members of the SC and judges (1993, 1996, 2000 BAR) 1. Members of the SC and judges of lower courts can hold office during good behavior until: 2. 1. 2. 3. The age of 70 years old; or They become incapacitated to discharge their duties. In the case of Supreme Court Justices, by way of impeachment 3. 4. Q: May the Supreme Court assume jurisdiction and give due course to a petition for quo warranto against an impeachable officer and against whom an impeachment complaint has already been filed with the House of Representatives? 5. 6. 7. A: YES. The language of Section 2, Article XI of the Constitution does not foreclose a quo warranto action against impeachable officers. The provision reads: Cases that may be heard by division Other cases or matters may be heard in division, and decided or resolved with the concurrence of a majority of the members who actually took part in the deliberations on the issues and voted thereon, but in no case without the concurrence of at least three such members. (Sec. 4(3), Art. VIII, 1987 Constitution) The Members of the Supreme Court may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. While both impeachment and quo warranto may result in the ouster of the public official, the two proceedings materially differ. Thus, they are not mutually exclusive remedies and may proceed simultaneously. At its most basic, impeachment proceedings are political in nature, while an action for quo warranto is judicial or a proceeding traditionally lodged in the courts. Aside from the difference in their origin and nature, quo warranto and impeachment may proceed independently of UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES All cases involving the constitutionality of a Treaty, international or executive agreement, or law; All cases which under the Rules of Court may be required to be heard en banc; All cases involving the constitutionality, application or operation of Presidential decrees, proclamations, orders, instructions, ordinances, and other regulations; Cases heard by a Division when the required majority in the division is not obtained; Cases where the SC modifies or reverses a doctrine or principle of law Previously laid either en banc or in division; Administrative cases involving the discipline or dismissal of Judges of lower courts; Election contests for president or vicepresident. Scope of the Procedural Rule-making Power (1991, 2000, 2008, 2009, 2013, 2014, 2015 BAR) 1. 2. 3. 4. 5. 150 The protection and enforcement of constitutional rights Pleadings, practice and procedure in all courts Admission to the practice of law The Integrated Bar Legal assistance to the underprivileged Judicial Department Limitations on its Rule-making Power 1. 2. 3. 3. It should provide a simplified and inexpensive procedure for the speedy disposition of cases. It should be uniform for all courts of the same grade. It should not diminish, increase, or modify substantive rights. 4. 5. Requirements for the decisions of the SC (ConCert-C-R) 1. 2. 3. 4. Request for Transfer of cases from one court, administrative area or judicial region to another and/or transfer of venue of cases to avoid miscarriage of justice as provided for in Section 5(4), Article VIII of the Constitution, Amendment, modification and/or revocation of Administrative Orders and Circulars issued by the Supreme Court. Matters for Policy determination. Original and Appellate Jurisdiction of the Supreme Court (1994, 1995, 1996, 2000, 2004, 2006 BAR) The Conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the Court. A Certification to this effect signed by the Chief Justice shall be issued. A Copy thereof shall be attached to the record of the case and served upon the parties. Any Member who took no part, or dissented, or abstained from a decision or resolution, must state the Reason thereof. (Sec. 13, Art. VIII, 1987 Constitution) The Supreme Court has the power to review, revise, reverse, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: 1. 2. NOTE: No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. (Sec. 13, Art. VIII, 1987 Constitution) 3. 4. 5. Administrative Supervision Over Lower Courts The Supreme Court exercises administrative supervision over all lower courts. (Sec. 6, Art. VIII, 1987 Constitution) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. All cases in which the jurisdiction of any lower court is in issue. All criminal cases in which the penalty imposed is reclusion perpetua or higher. All cases in which only an error or question of law is involved. (Sec. 5(2), Art. VIII, 1987 Constitution) NOTE: The appellate jurisdiction of the Court cannot be reduced by Congress except with the advice and consent of the Supreme Court The SC is assisted by the Court Administrator and the Deputy Court Administrators in exercising the administrative function. Matters to be attended by the Court En Banc: (DiDe-T-A-P) 1. 2. Disciplinary Matters involving justices and judges of all lower courts and lower court personnel. Designation of Judges. 151 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Constitutional Commissions 6. VI. CONSTITUTIONAL COMMISSIONS NOTE: When an ad interim appointment is not confirmed (as it was by-passed or that there was no ample time for Commission on Appointments to pass upon the same), another ad interim appointment may be extended to the appointee without violating the Constitution. (Matibag v. Benipayo, G.R. No. 149036, 02 Apr. 2002) A. COMMON PROVISIONS Independent Constitutional Commissions: 1. 2. 3. Civil Service Commission (CSC) Commission on Elections (COMELEC) Commission on Audit (CoA) NOTE: The CSC, COMELEC, and COA are equally preeminent in their respective spheres. Neither one may claim dominance over the others. In case of conflicting rulings, it is the judiciary, which interprets the meaning of the law and ascertains which view shall prevail. (CSC v. Pobre, G.R. No. 160508, 15 Sept. 2004) NOTE: Functions are executive in nature, but are not under the jurisdiction of the Philippine President. Guarantees of Independence provided for by the Constitution to the 3 Commissions 1. They are constitutionally-created; may not be abolished by statute of its judicial functions. (Sec. 1, Art. IX-A, 1987 Constitution) 2. Each is conferred certain powers and functions which cannot be reduced by statute. (Art. IX-B, C, and D, 1987 Constitution) 3. Each is expressly described as independent. (Sec. 1, Art. IX-A, 1987 Constitution) 4. Chairmen and members are given long terms of office for seven (7) years. (Sec. 1(2), Art. IXB, C, and D, 1987 Constitution) 5. 7. Salaries of chairmen and members are relatively high and may not be decreased during continuance in office. (Sec. 17, Art. XVIII, 1987 Constitution; Sec. 3, Art. IX-A, 1987 Constitution) 8. Commissions enjoy fiscal autonomy. (Sec. 5, Art. IX-A, 1987 Constitution) 9. Each commission may promulgate its own procedural rules, provided they do not diminish, increase, or modify substantive rights [though subject to disapproval by the Supreme Court]. (Sec. 7, Art. IX-A, 1987 Constitution) 10. Chairmen and members are subject to certain disqualifications and inhibitions calculated to strengthen their integrity. (Sec. 2, Art. IX-A, 1987 Constitution) 11. Commissions may appoint their own officials and employees in accordance with Civil Service Law. (Sec. 4, Art. IX-A, 1987 Constitution) 12. The Commissions follow the rotational scheme or staggered appointments and terms of office. NOTE: The Supreme Court held that the “no report, no release” policy may not be validly enforced against offices vested with fiscal autonomy, without violating Sec. 5, Art. IX-A. The “automatic release” of approved annual appropriations to a Constitutional Commission vested with fiscal autonomy should Chairmen and members cannot be removed except by impeachment. (Sec. 2, Art. IX, 1987 Constitution) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Chairmen and members may not be reappointed or appointed in an acting capacity. (Sec. 1(2), Art. IX-B, C and D, 1987 Constitution) 152 Political Law NOTE: The members of the Constitutional Commissions have staggered terms: thus be construed to mean that no condition to fund releases may be imposed. (CSC v. DBM, G.R. No. 158791, 22 July 2005) 1. Salary Salaries may be increased by a statute but may not be decreased during incumbent’s term of office. (Cruz, 2014) 2. NOTE: The decrease is prohibited to prevent the legislature from exerting pressure upon the Commissions by “operating on their necessities.” Salaries may be increased, as a realistic recognition of the need that may arise to adjust the compensation to any increase in the cost of living. (ibid.) B. POWERS, FUNCTIONS, AND JURISDICTION Decision-making process in these Commissions 1. The CSC, COMELEC, and CoA shall decide matter or cases by a majority vote of all the members within sixty (60) days from submission. (Sec. 7 Art. IX-A) Term Seven years without reappointment. a. b. NOTE: 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. (Sec. 1(2), Art. IX-C, 1987 Constitution) (1997, 2005 BAR) c. NOTE: Once the Chairman or Commissioner shall have served the full term of seven years, then he can no longer be reappointed to either the position of Chairman or Commissioner. The obvious intent of the framers is to prevent the president from "dominating" the Commission by allowing him to appoint an additional or two more commissioners. (Funa v. Villar, G.R. No. 192791, 24 Apr. 2012) 2. COMELEC may sit en banc or in 2 divisions. Election cases, including pre-proclamation controversies are decided in division, with motions for reconsideration filed with the COMELEC en banc. The SC has held that a majority decision decided by a division of the COMELEC is a valid decision. NOTE: Pursuant to COMELEC Rules of Procedure, when the COMELEC en banc is equally divided in an opinion and cannot have the required majority, rehearing shall be done. If rehearing is originally commenced in the Commission and no majority decision is reached, rehearing shall be dismissed. In appealed cases, the judgment or order appealed from shall stand affirmed and the petition or motion on all incidental matters shall be denied. (Mamerto Sevilla v. COMELEC, G.R. No. 202833, 19 Mar. 2013) Requisites for the effective operation of the rotational scheme of terms of constitutional bodies 1. To minimize the opportunity of the President to appoint during his own term more than one member or group of members in the Constitutional Commissions; and To ensure continuity of the body and its policies. (ibid.) The original members of the Commission shall begin their terms on a common date; Any vacancy occurring before the expiration of the term shall be filled only for the balance of such term. (Republic v. Imperial, G.R. No. L8684, 31 Mar. 1995) 2. As collegial bodies, each Commission must act as one, and no one member can decide a case for the entire commission. 3. Any decision, order or ruling of each Commission may be brought to the SC on certiorari by the aggrieved party within thirty (30) days from receipt of a copy thereof. 153 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Constitutional Commissions service, to strengthen the merit and rewards system, and to adopt measures to promote morale, efficiency and integrity in the civil service. Section 12 of Administrative Code of 1987 enumerates the powers and functions of the CSC. Sec. 11 thereof states that CSC has the power to hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments, and review decisions and actions of its offices and of the agencies attached to it. Further, Section 28, Rule XIV of the Omnibus Civil Service Rules and Regulations specifically confers upon the CSC the authority to take cognizance over any irregularities or anomalies connected with the examinations. Hence, CSC acted within its jurisdiction. (Capablanca v. Civil Service Commission, G.R. No. 179370, 19 Nov. 2009) NOTE: When the Court reviews a decision of the COMELEC, it exercises extraordinary jurisdiction thus, the proceeding is limited to issues involving grave abuse of discretion resulting in lack or excess of jurisdiction and not factual findings of the Commission. (Aratuc v. COMELEC, G.R. No. L-4970509, 08 Feb. 1979) The appropriate remedy to invalidate disputed COMELEC resolutions (i.e. final orders, rulings and decisions of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers) is certiorari under Rule 65 of the Rules of Court. (Loong v. COMELEC, G.R. No. 93986, 22 Dec. 1992) JURISDICTION OF EACH CONSTITUTIONAL COMMISSION COMMISSION ON ELECTION CIVIL SERVICE COMMISSION Cases that fall under the Jurisdiction of COMELEC by Division Scope of the Civil Service (1999, 2003 Bar) The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. (Sec. 2(1), Art. IX-B, 1987 Constitution) Election cases should be heard and decided by a division. If a division dismisses a case for failure of counsel to appear, the MR may be heard by the division. NOTE: According to the case of Balajonda v. COMELEC, the COMELEC can order immediate execution of its own judgments. (Balajonda v COMELEC, G.R. No. 166032, 28 Feb. 2005) Q: Capablanca, acquired a permanent status as Police Officer 1 after taking the required examinations including the Career Service Professional Examination-Computer Assisted Test (CSP-CAT) given by the Civil Service, However, it was found out that the person in the picture pasted in the Picture Seat Plan as well as the signature therein when he took the exam is different from the person whose picture and signature is attached in the Personal Data Sheet. CSC conducted preliminary investigation. Capablanca’s counsel moved to dismiss arguing that the administrative discipline over police officers falls under the jurisdiction of the PNP and/or NAPOLCOM. Does CSC have jurisdiction and disciplinary authority over a member of the PNP? Cases that fall under the jurisdiction of COMELEC EN BANC Motion for Reconsideration of decisions may be decided by COMELEC en Banc. It may also directly assume jurisdiction over a petition to correct manifest errors in the tallying of results by Board of Canvassers. NOTE: Any decision, order or ruling of the COMELEC in the exercise of its quasi-judicial functions may be brought to the SC on certiorari under Rules 64 and 65 of the Revised Rules of Court within 30 days from receipt of a copy thereof. A: YES. The CSC, as the central personnel agency of the Government, is mandated to establish a career UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 154 Political Law These decisions or rulings refer to the decision or final order of the COMELEC en banc and not of any division thereof. NOTE: Hence, even in the case of regional or provincial or city offices, it does make a difference whether the COMELEC will treat it as a preproclamation controversy or as a contest. (Bernas, 2009) Acts that fall under the COMELEC’s power to supervise or regulate COMMISSION ON AUDIT 1. 2. The enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information. Grants, special privileges or concessions granted by the government or any subdivision, agency or instrumentality thereof, including any GOCC or its subsidiary. (Sec. 4, Art. IX-C, 1987 Constitution) The COA cannot be divested of its power to examine and audit government agencies. No law shall be passed exempting any entity of the Government or its subsidiary in any guise, or any investment of public funds, from the jurisdiction of the Commission on Audit. (Sec. 3, ART. IX-D, 1987 Constitution) Instances when COMELEC can exercise its constitutional powers and functions 1. 2. The mere fact that private auditors may audit government agencies does not divest the COA of its power to examine and audit the same government agencies. (Development Bank of the Philippines v. COA, G.R. No. 88435, 16 Jan. 2002) During election period – 90 days before the day of the election and 30 days thereafter. In special cases, COMELEC can fix a period. Applies not only to elections but also to plebiscites and referenda. Audit jurisdiction of the COA on privatized, formerly government-owned banks Jurisdiction of the COMELEC Before the Proclamation vs. its Jurisdiction After Proclamation Since the PNB is no longer owned by the Government, the COA no longer has jurisdiction to audit it as an institution. Under Sec. 2(2), Art. IX-D of the Constitution, it is a GOCC and their subsidiaries which are subject to audit by the COA. However, in accordance with Sec. 2(1), Art. IX-D, the COA can audit the PNB with respect to its accounts because the Government still has equity in it. (Philippine Airlines v. COA, G.R. No. 91890, 09 June 1995) JURISDICTION OVER CONTESTS (AFTER PROCLAMATION) Due process implications JURISDICTION OVER PRE-PROCLAMATION CONTROVERSY COMELEC’s jurisdiction is administrative or quasijudicial and is governed by the less stringent requirements of administrative due process (although the SC has insisted that questions on “qualifications” should be decided only after a fullblown hearing). Extent of COA’s audit jurisdiction over Manila Economic and Cultural Office (MECO) COMELEC’s jurisdiction is judicial and is governed by the requirements of judicial process. MECO is a sui generis private entity and not a GOCC or government instrumentality. The Government entrusted with the facilitation of unofficial relations with the people in Taiwan without jeopardizing the country’s faithful commitment to the One China policy of the PROC. However, despite its nongovernmental character, the MECO handles government funds in the form of the "verification fees" it collects on behalf of the DOLE and the 155 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Constitutional Commissions "consular fees" it collects under Section 2(6) of EO No. 15, s. 2001. Hence, accounts of the MECO pertaining to its collection of such "verification fees" and "consular fees" should be audited by the COA. (Funa v. MECO and COA, G.R. No. 193462, 04 Feb. 2014) it, even with its consent, by the President of the Philippines. (Brillantes, Jr. v. Yorac, G.R. No. 93867. 18 Dec. 1990) Qualifications 1. 2. C. COMPOSITION AND QUALIFICATIONS OF MEMBERS 3. 4. CIVIL SERVICE COMMISSION (CSC) NOTE: Majority of the members, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (Sec. 1(1), Art. IX-C, 1987 Constitution) (See discussion under Law on Public Officers – page 280) COMMISSION ON ELECTIONS (COMELEC) Constitutional powers and functions of the COMELEC (1991, 1996, 2001 BAR) (En-Ex-Dec-Dep-R-F-Cong-Pres-S) Composition of the COMELEC 1. 2. Chairman Six (6) Commissioners 1. Term Seven years without reappointment. Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. Note: COMELEC may order the correction of manifest errors in the tabulation or tallying results during the canvassing and petitions for this purpose may be filed directly with the Commission even after the proclamation of the winning candidates. NOTE: If the appointment was ad interim, a subsequent renewal of the appointment does not violate the prohibition on reappointments because no previous appointment was confirmed by the Commission on Appointments. The total term of both appointments must not exceed the 7-year limit. (Matibag v. Benipayo, G.R. No. 149036, 02 Apr. 2002) 2. Exercise: a. The Constitution expressly describes all the Constitutional Commissions as independent. Although essentially executive in nature, they are not under the control of the President of the Philippines in the discharge of their respective functions. Each of these Commissions conducts its own proceedings under the applicable laws and its own rules and in the exercise of its own discretion. b. The choice of a temporary chairman in the absence of the regular chairman comes under that discretion. That discretion cannot be exercised for UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Natural-born citizen; At least 35 years old at the time of appointment; College degree holder; and Not a candidate in any election immediately preceding the appointment. 156 Exclusive original jurisdiction over all contests relating to the election, returns and qualifications of all elective: i. Regional ii. Provincial iii. City officials Exclusive appellate jurisdiction over all contests involving: i. Elective municipal officials decided by trial courts of general jurisdiction. ii. Elective barangay officials decided by courts of limited jurisdiction. Political Law c. 3. the Constitution but by the OEC which was eventually amended by Sec. 43 of RA 9369. Thus, the DOJ now conducts preliminary investigation of election offenses concurrently with the COMELEC and no longer as mere deputies. (Jose Miguel T. Arroyo v. DOJ, et al., G.R. No. 199082, 18 Sept. 2012) Contempt powers i. COMELEC can exercise this power only in relation to its adjudicatory or quasi-judicial functions. It cannot exercise this in connection with its purely executive or ministerial functions. ii. If it is a pre-proclamation controversy, the COMELEC exercises quasijudicial/administrative powers. iii. Its jurisdiction over contests (after proclamation), is in exercise of its judicial functions. NOTE: The COMELEC may issue writs of certiorari, prohibition, and mandamus in exercise of its appellate functions. 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. 7. Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies. 8. Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision. 9. Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall. NOTE: Questions involving the right to vote fall within the jurisdiction of ordinary courts. 4. 5. 6. COMMISSION ON AUDIT (COA) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the government, including the AFP, for the exclusive purpose of ensuring free, orderly, honest, peaceful and credible elections. Composition of the COA 1. 2. Chairman Two (2) Commissioners Term Registration of political parties, organizations, or coalitions and accreditation of citizens’ arms of the COMELEC. Seven years without reappointment Qualifications File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. 1. 2. 3. NOTE: The grant of exclusive power to investigate and prosecute cases of election offenses to the COMELEC was not by virtue of 4. 157 Natural-born citizen; At least 35 years old at the time of appointment; Certified Public Accountant with not less than ten years of auditing experience, or member of the Philippine Bar who has been engaged in the practice of law; and Not a candidate in any election immediately preceding the appointment. UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Constitutional Commissions for reconsideration, insisting that the previous Letter was only the first motion for reconsideration directed against the 2008 COA Decision but was again denied by the LSS-ALS. NOTE: At no time shall all Members of the Commission belong to the same profession. (Sec. 1(1), Art. IX-D, 1987 Constitution) Powers and duties of COA 1. (1) Is the Petition for Review considered a first motion for reconsideration? Examine, audit and settle all accounts pertaining to revenue and receipts of, and expenditures or uses of funds and property owned or held in trust or pertaining to government. 2. Keep general accounts of government and preserve vouchers and supporting papers. 3. Authority to define the scope of its audit and examination, establish techniques and methods required therein. (2) Is Isabela severally and solidarily liable for the erroneously computed liquidated damages? A: (1) YES. Respondents correctly treated the Petition for Review as a motion for reconsideration. While Isabela properly filed a motion for reconsideration with the COA- NGAO of its Decision dated March 28, 2001, such motion was resolved by the COA-CP on automatic review, following Section 6, Rule V of the 1997 COA Rules, in relation to Sections 12 and 13 of Rule XI. Unquestionably, the 2002 COA Decision was rendered by the COACP. It is therefore of no moment that the Petition for Review was denominated as such given that a "petition for review" under Rule V of the 1997 COA Rules is appropriate only for final decisions or orders issued by the Director. Thus, by filing the Petition for Review with the COA-CP the very same body that rendered the 2002 COA Decision - Collado was actually seeking a reconsideration of the 2002 COA Decision. In this regard, in the 2008 COA Decision, the COA-CP was correct in treating the Petition for Review as a first motion for reconsideration. NOTE: The power of the Commission to define the scope of its audit and to promulgate auditing rules and regulations and the power to disallow unnecessary expenditures is exclusive but its power to examine and audit is not exclusive. (Development Bank of the Philippines v. Commission on Audit, G.R. No. 88435, 16 Jan. 2002) 4. Promulgate accounting and auditing rules and regulations, including those for prevention and disallowance. (Sec. 2, Art. IX-D, 1987 Constitution) Q: Petitioner Isabela was found severally and solidarily liable with several others for erroneously computing liquidated damages arising from the construction of the Philippine Science High School (PSHS)-Mindanao Campus Building Complex. The Notices of Disallowance were eventually upheld by the COACP in a COA Decision 2002 Decision and later affirmed in the 2008 COA Decision. Isabela filed a petition for Review of the 2002 decision and in the 2008 COA Decision, the COA-CP, treating the Petition for Review as a motion for reconsideration of the 2002 COA Decision, affirmed the 2002 COA Decision with finality. Isabela, in another Letter dated March 17, 2010, disputed the finding of the LSS-ALS that she had filed a second motion UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES (2) NO. A public officer shall not be civilly liable for acts done In the performance of his official duties, unless there is a clear showing of bad faith, malice or gross negligence. The civil liability under Sections 38 and 39 of the Administrative Code of 1987, including the treatment of their liability as solidary under Section 43, arises only upon a showing that the approving or certifying officers performed their official duties with bad faith, malice or gross negligence. While an error was made in the computation of liquidated damages, nothing in the records would support the conclusion that such an error amounted to bad faith, malice, or even gross negligence, consequently making Collado liable under Sections 38 and 39, Chapter 9, Book I of the 158 Political Law guidelines declaring that PICCI is covered by E.O. No. 80 or that it falls under the jurisdiction of the DBM. Administrative Code of 1987. No ill will or selfinterest may be attributed to Isabela in her erroneous computation of liquidated damages. The disallowance resulted from failure to deduct the correct amount of liquidated damages from progress billings paid to the contractor, C. Roxas, Inc. Nothing in the records would indicate that Collado received any portion of, or benefited from, the disallowed amounts. Neither is the disallowance made on the basis of a finding that the disbursement was utterly without legal basis, but rather, for only a mistaken understanding of the IRR of P.D. 1594 and the provisions of the contract between PSHS and .C. Roxas, Inc. The foregoing circumstances may be taken as indications of Isabela's good faith. The fiscal autonomy of the BSP accentuates its role as the country's independent central authority. The MB then is granted the authority to adopt an annual budget for and authorize such expenditures by the BSP as are in the interest of its effective administration and operations in accordance with the applicable laws and regulations. Since the MB adopts an annual budget for the BSP and, as a matter of course, the PICCI, it is incongruous, if not absurd, to place the BSP under the jurisdiction of the DBM and subject its budget to the DBM's review and approval. (Renato B. Padilla and Maria Louisa PerezPadilla v. Commission on Audit, G.R. No. 244815. 02 Feb. 2021) Given the foregoing, it would be improper, if not totally unjust, to make Isabela solidarily liable with the contractor for the disallowed amount. The government is not without remedy, however, as deficiency, liquidated damages may still be recovered from the payee-contractor, .C. Roxas, Inc. as the right of the State, through the COA, to recover public funds that have been established to be irregularly and illegally disbursed does not prescribe. Petitioner Isabela is excused from solidary liability to return the total amount of the under-deducted liquidated damages. The Commission on Audit is hereby directed to institute the necessary claims against N.C. Roxas, Inc. (Emerita Collado v. Hon Reynaldo Villar, G.R. No. 193143, December 01, 2020, J. Caguioa) D. PROHIBITED OFFICES & INTERESTS No member of a Constitutional Commission shall, during his tenure: Q: The Philippine International Convention Center, Inc. issued Performance Based Bonuses to its employees. COA then issued an Audit Observation Memorandum stating that it did not comply with Executive Order (E.O.) No. 80 which subjects it to the authority of the Department of Budget and Management (DBM). Is the contention of the COA correct? A: NO. The PICCI is not covered by E.O. No. 80. The PBB is a top-up bonus given to the employees based on their performance and contributions to the accomplishment of the overall targets and commitments of the department or government agency to which they belong. There is no existing law, implementing rules and regulations, or 159 1. Hold any other office or employment 2. Engage in the practice of any profession 3. Engage in the active management and control of any business which in any way may be affected by the function of his office 4. Be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies or instrumentalities, including GOCCs or their subsidiaries. (Sec. 2, Art. IX-A, 1987 Constitution) (1998, 2015 Bar) 5. No officer or employee of the civil service shall be removed or suspended except for cause provided by law. (Sec. 2(3), Art. XI-B, 1987 Constitution) 6. No officer or employee in the civil service shall engage, directly or indirectly, in any UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Constitutional Commissions electioneering or partisan political activity. (Sec. 2(4), Art. XI-B, 1987 Constitution) 7. 8. 9. E. JUDICIAL REVIEW OF FINAL ORDERS, RESOLUTIONS AND DECISIONS OF CONSTITUTIONAL COMMISSIONS No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government or any Government-owned or controlled corporation or in any of their subsidiaries. (Sec. 6, Art. IX-B, 1987 Constitution) RENDERED IN THE EXERCISE OF QUASIJUDICIAL FUNCTION SC’s jurisdiction Commissions No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. (Sec. 7(1), Art. XI-B, 1987 Constitution) Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency, or instrumentality thereof, including Government-owned or controlled corporations or their subsidiaries. (Sec. 7(2), Art. XI-B, 1987 Constitution) 10. No elective or appointive public officer or employee shall receive additional, double, or indirect compensationm unless specifically authorized by law, nor accept without the consent of Congress, any present, emolument, office, or title of any kind from any foreign government. (Sec. 8, Art. XI-B, 1987 Constitution) Purpose 1. 2. To compel the chairmen and members of the Constitutional Commissions to devote their full attention to the discharge of their duties; and To remove from them any temptation to take advantage of their official positions for selfish purposes. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES over decisions of the 1. COA: Judgments or final orders of the Commission on Audit may be brought by an aggrieved party to the Supreme Court on certiorari under Rule 65. Only when COA acts without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, may the SC entertain a petition for certiorari under Rule 65. 2. CSC: Administrative Circular 1-95538, which took effect on June 1, 1995, provides that final resolutions of the CSC shall be appealable by certiorari to the CA within 15 days from receipt of a copy thereof. From the decision of the CA, the party adversely affected thereby shall file a petition for review on certiorari under Rule 45 of the Rules of Court. 3. COMELEC: Only decisions of COMELEC en banc may be brought to the Court by certiorari since Art. IX-C provides that motions for reconsideration of decisions shall be decided by the Commission en banc. (Reyes v. Mindoro, G.R. No. 108886, May 5, 1995) Procedural requisite before certiorari to the Supreme Court may be availed of Sec. 1 of Rule 65 provides that certiorari may be resorted to when there is no other plain or speedy and adequate remedy. But reconsideration is a speedy and adequate remedy. Hence, a case may be brought to the Supreme Court only after reconsideration. 160 Political Law Rule on appeals 1. Decisions, orders or rulings of the COMELEC/COA may be brought on certiorari to the SC under Rule 65. 2. Decisions, orders or rulings of the CSC should be appealed to the CA under Rule 43. RENDERED IN THE EXERCISE OF ADMINISTRATIVE FUNCTION Power of the CSC to Hear and Decide Administrative Cases Under the Administrative Code of 1987, the CSC has the power to hear and decide administrative cases instituted before it directly or on appeal, including contested appointments. The CSC has the jurisdiction on personnel actions, covered by the civil service It is the intent of the Civil Service Law, in requiring the establishment of a grievance procedure, that decisions of lower officials (in cases involving personnel actions) be appealed to the agency head, then to the CSC. The RTC does not have jurisdiction over personnel actions. (Olanda v. Bugayong, G.R. No. 140917, 10 Oct. 2003) Certiorari jurisdiction of the SC over these Commissions Proceedings are limited to issues involving grave abuse of discretion resulting in lack or excess of jurisdiction and do not ordinarily empower the Court to review the factual findings of the Commissions. (Aratuc v. COMELEC, G.R. No. L-4970509, 08 Feb. 1979) Decisions rendered in proceedings or actions recognized by the Commissions in the exercise of adjudicatory and quasi-judicial power are limited but not to purely executive powers. Hence, questions based from award of a contract for construction of voting booths can be brought before the trial court. (Ambil v. Comelec, G.R. No. 143398, 05 Oct. 2000). 161 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights Rights (CHR) ensures the protection of human rights as guaranteed by the Bill of Rights. VII. BILL OF RIGHTS A. DUE PROCESS It is a set of prescriptions setting forth the fundamental civil and political rights of the individual, and imposing limitations on the powers of government as a means of securing the enjoyment of those rights. Due Process Clause (1992, 1999, 2007, 2009 BAR) The Bill of Rights governs the relationship between the individual and the State. Its concern is not the relation between private individuals. What it does is to declare some forbidden zones in the private sphere inaccessible to any power holder. (People v. Marti, G.R. No. 81561, 18 Jan. 1991) 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. (Sec. 2, Art. III, 1987 Constitution) Due process is a guaranty against any arbitrariness on the part of the government, whether committed by the legislature, the executive, or the judiciary. Any government act that militates against the ordinary norms of justice or fair play is considered an infraction of the great guaranty of due process; and this is true whether the denial involves violation merely of the procedure prescribed by the law or affects the validity of the law itself. (Cruz, 2015) Privacy and Autonomy The Bill of Rights cannot be invoked against private individuals. In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked. The equal protection erects no shield against private conduct, however discriminatory or wrongful. (Yrasuegui v. PAL, G.R. No. 168081, 17 Oct. 2008) NOTE: Due process of law has two aspects: substantive and procedural. In order that a particular act may not be impugned as violative of the due process clause, there must be compliance with both the substantive and the procedural requirements thereof. (Alliance for the Family Foundation v. Garin, G.R. No. 217872, 24 Aug. 2016) NOTE: However, where the husband invoked his right to privacy of communication and correspondence against a private individual, his wife, who had forcibly taken from his cabinet documents and private correspondence, and presented as evidence against him, the Supreme Court held these papers are inadmissible in evidence, upholding the husband’s right to privacy. (Zulueta v. CA, G.R. No. 107383, 20 Feb. 1996) CONCEPT OF RIGHTS TO LIFE, LIBERTY, AND PROPERTY Right to Life Relation to Human Rights The right to life is not merely a right to the preservation of life but also to the security of the limbs and organs of the human body against any unlawful harm. The Philippine Bill of Rights “establishes the relationship of the individual to the State and defines the rights of the individual by limiting the lawful powers of the State.” (Smith, 1945) This constitutional guarantee includes the right of an individual to pursue a lawful calling or occupation; to express, write or even paint his ideas for as long as he does not unlawfully transgress the rights of others; to exercise his freedom of choice— The Universal Declaration of Human Rights (UDHR) inspired a number of Constitutions of different States. In the Philippines, Articles III and XIII of the Constitution safeguard the rights of the people within the State. While the Commission on Human UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 162 Political Law whether this is in the area of politics, religion, marriage, philosophy and employment, or even in the planning of his family; and in general, to do and perform any lawful act or activity which, in his judgment, will make his life worth living. (Suarez, 2016) The right to life commences upon “conception, that is, upon fertilization. Hence, the obligation upon the State to “equally protect the life of the mother and the life of the unborn from conception” and “to prevent the Legislature from enacting a measure legalizing abortion.” (Sec. 12, Art. II, 1987 Constitution; Imbong v. Ochoa, G.R. No. 204819, 08 Apr. 2014) Secure the individual from the arbitrary exercise of powers of the government, unrestrained by the established principles of private rights and distributive justice. 3. Protect property from confiscation by legislative enactments from seizure, forfeiture, and destruction without a trial and conviction by the ordinary modes of judicial procedures. (Suarez, 2016) Substantive Due Process Procedural Due Process 1. PROCEDURAL AND SUBSTANTIVE PROCEDURAL DUE SUBSTANTIVE PROCESS DUE PROCESS Purpose Serves as a restriction on Serves as a actions of judicial and restriction on the quasi-judicial agencies of government’s law the government. and rule-making powers. Requisites 1. Impartial court or 1. The interests of tribunal clothed with the public in judicial power to hear general, as and determine the distinguished matters before it. from those of a particular class, 2. Jurisdiction properly require the acquired over the person intervention of of the defendant and the state. over the property which is the subject matter of 2. The means the proceeding. employed are reasonably 3. Opportunity to be heard. necessary for the accomplishment Judgment rendered upon of the purpose lawful hearing and based and not unduly on evidence adduced. Right to Property It refers to things which are susceptible of appropriation, and which are already possessed and found in the possession of man. (Suarez, 2016) Due Process means: 4. 2. 1. 2. It is not only the right of a citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the engagement of all his faculties; to be free to use them in all lawful ways. (Allegeyer v. Louisiana, 165 U.S. 578, 06 Jan. 1897) 2. 3. Prevent undue encroachment against the life, liberty, and property of individuals. Kinds of Due Process Right to Liberty 1. 1. There shall be a law prescribed in harmony with the general powers of the legislature; It shall be reasonable in its operation; It shall be enforced according to the regular methods of procedure prescribed; and It shall be applicable alike to all citizens of the State or to all of the class. (People v. Cayat, G.R. No. L-45987, 05 May 1939) Purpose The due process clause is a guaranty against any kind of abuse and arbitrariness, by anyone in any of the branches of government. More specifically, the purpose of the due process clause is to: 163 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights Secretary Pangandanan denied del Rosario's motion in the order. Del Rosario filed a notice of appeal before the Office of the President (OP). Through then Deputy Executive Secretary for Legal Affairs Manuel B. Gaite, the OP rendered the decision dismissing the appeal for lack of merit. oppressive upon individuals PROCEDURAL DUE PROCESS Procedural due process is the aspect of due process which serves as a restriction on actions of judicial and quasi-judicial agencies of the government. It refers to the method and manner by which a law is enforced. Was del Rosario denied due process when the order of Secretary Pangandanan was "erroneously sent to another address”? The Fundamental Elements of Procedural Due Process (N-O-J) 1. 2. 3. A: NO. The essence of procedural due process is embodied in the basic requirement of notice and a real opportunity to be heard. Notice (to be meaningful, must be as to time and place); Opportunity to be heard; and Court/tribunal must have Jurisdiction. In administrative proceedings, such as in the case at bar, procedural due process simply means the opportunity to explain one's side or the opportunity to seek a reconsideration of the action or ruling complained of. "To be heard" does not mean only verbal arguments in court; one may be heard also thru pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process. Q: Del Rosario filed an application for exemption with the Department of Agrarian Reform, seeking to exempt Lot Nos. 854 and 855 from the Comprehensive Agrarian Reform Program (CARP) coverage. The Secretary of Agrarian Reform Roberto M. Pagdanganan (Secretary Pagdanganan) issued an order granting the application for exemption but later on, he issued another order revoking it. When del Rosario filed her motion for reconsideration assailing Secretary Pangandanan's order, she was able to completely and exhaustively present her arguments. The denial of her motion was on the basis of the merits of her arguments and any other evidence she was able to present. She was given a fair and reasonable opportunity to present her side; hence, there was no deprivation of due process. (Espiritu v. del Rosario, G.R. No. 204964, 15 Oct. 2014) The order revoking the grant earlier given to Del Rosario was not sent to Asperilla's address in Cubao, Quezon City, which was her address on record. Del Rosario alleged that she only came to know of the order when the Provincial Agrarian Reform Officer of Pampanga handed her a copy of the order. She then filed her motion for reconsideration of the order. Q: When Administrative Officer II Mag-abo encashed the salaries of the Bukidnon State University (BSU) employees, such was stolen from him on his way back to BSU. The Commission on Audit (COA) Legal Adjudication Office and COA Commission Proper both held that Mag-abo will be liable for the money stolen. On its motion for reconsideration, COA Proper held that Mag-abo is solidarily liable with Barroso for the stolen amount. Acting on del Rosario's motion for reconsideration, Secretary Pagdanganan found that the certifications issued by the Housing and Land Use Regulatory Board classified the landholdings as agricultural before June 15, 1988. Based on the ocular inspections conducted by the Center for Land Use Policy, Planning and Implementation (CLUPPI), the land remained agricultural and was planted with sugar cane and corn. Accordingly, UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 164 Political Law Barroso was surprised considering he was never a party to the case. He was constrained to limit the discussion in his motion for reconsideration to the issue of due process. Can Barroso be held solidarily liable with Mag-Abo? There is no law or rule which imposes a legal duty on petitioner to furnish respondent with a copy of the investigation report. A respondent in an administrative case is not entitled to be informed of the findings and recommendations of any investigating committee created to inquire into charges filed against him. She is entitled only to the administrative decision based on substantial evidence made of record, and a reasonable opportunity to meet the charges and the evidence presented against her during the hearings of the investigation committee. (Pefianco v. Moral, G.R. No. 132248, 19 Jan. 2000) A: NO. Barroso never had the opportunity to thoroughly argue the merits of his case precisely because he was not properly informed of what he was supposed to argue against (i.e., the accusations and statements against him in Mag-abo's submissions). Thus, Barroso was constrained to limit the discussion in his motion for reconsideration to the issue of due process. Surely, this cannot be considered the opportunity to be heard within the concept of administrative due process. Q: Cadet 1CL Cudia was a member of Siklab Diwa Class of 2014 of the PMA. Prof. Berong issued a Delinquency Report (DR) against Cadet 1CL Cudia because he was late for two minutes in his class. Cudia reasoned out that: “I came directly from OR432 Class. We were dismissed a bit late by our instructor Sir.” The mere filing of a motion for reconsideration does not cure due process defects, especially if the said motion was filed precisely to raise the issue of violation of the right to due process and the lack of opportunity to be heard on the merits. (Barroso v. COA, G.R. No. 253253, 27 Apr. 2021) The Company Tactical Officer (CTO) of Cadet 1CL Cudia penalized him with demerits. Cudia addressed his Request for Reconsideration to his Senior Tactical Officer (STO), but the STO sustained the penalty. The CTO reported him to the PMA Honors Committee (HC) for violation of the Honor Code. When the members of the HC casted their votes through secret balloting, the result was 8-1 in favor of a guilty verdict. After further deliberation, the Presiding Officer announced the 9-0 guilty verdict. Cudia contested the dismissal as being violative of his right to due process. Due process in Extradition Proceedings (See Extradition Section under Public International Law for discussion – page 496) Q: A complaint was filed against respondent Camille Gonzales, who was then the Chief Librarian of the Catalog Division of the National Library, due to dishonesty, grave misconduct and conduct prejudicial to the best interest of service. The DECS investigating committee was created to inquire into the charges against Gonzales. Was the dismissal of Cudia a denial of his right to due process? Is she entitled to be informed of the findings and recommendations of the investigating committee? A: NO. 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; that the proceedings may be summary; that crossexamination is not an essential part of the investigation or hearing; and that the required proof in a student disciplinary action, which is an administrative case, is neither proof beyond A: NO. It must be stressed that the disputed investigation report is an internal communication between the DECS Secretary and the Investigation Committee, and it is not generally intended for the perusal of respondent or any other person for that matter, except the DECS Secretary. 165 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights The owners and operators concerned were given three months to wind up their operations, or to transfer to any place outside the ErmitaMalate area, or to convert their businesses to other kinds of business. Does the ordinance violate the due process clause? 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. It is not required that procedural due process be afforded at every stage of developing disciplinary action. What is required is that an adequate hearing be held before the final act of dismissal. (Cudia v. Superintendent of the PMA, G.R. No. 211362, 24 Feb. 2015) A: YES. These lawful establishments may only be regulated. They cannot be prohibited from carrying on their business. This is a sweeping exercise of police power, which amounts to interference into personal and private rights which the court will not countenance. There is a clear invasion of personal or property rights, personal in the case of those individuals desiring of owning, operating, and patronizing those motels and property in terms of investments made and the salaries to be paid to those who are employed therein. SUBSTANTIVE DUE PROCESS It requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property. If the City of Manila desired to put an end to prostitution, fornication, and other social ills, it can instead impose reasonable regulations such as daily inspections of the establishments for any violation of the conditions of their licenses or permits, it may exercise its authority to suspend or revoke their licenses for these violations; and it may even impose increased license fees. (City of Manila v. Laguio, Jr., G.R. No. 118127, 12 Apr. 2005) If a law is invoked to take away one’s life, liberty or property, the more specific concern of substantive due process is not to find out whether said law is being enforced in accordance with procedural formalities but whether the said law is a proper exercise of legislative power. NOTE: Publication of laws is part of substantive due process. It is a rule of law that before a person may be bound by law, he must be officially and specifically informed of its contents. For the publication requirement, “laws” refer to all statutes, including those of local application and private laws. This does not cover internal regulations issued by administrative agencies, which are governed by the Local Government Code. Publication must be full, or there is none at all. (Tañada v. Tuvera, G.R. No. L63915, 29 Dec. 1986) Constitutional vs. Statutory Due Process Q: The City of Manila enacted Ordinance 7783. It prohibits the establishment or operation of businesses that provide “certain forms of amusement, entertainment, services and facilities where women are used as tools in entertainment, and which tend to disturb the community and adversely affect its social and moral welfare.” UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 166 CONSTITUTIONAL DUE PROCESS STATUTORY DUE PROCESS Protects the individual from the government and assures him of his rights in criminal, civil or administrative proceedings. While found in the Labor Code and Implementing Rules, it protects employees from being unjustly terminated without just cause after notice and hearing. (Agabon v. NLRC, G.R. No. 158693, 17 Nov. 2004) Political Law In accordance with the standards of due process, any court at any particular time, will be well guided, instead of being merely confined strictly to a precise definition which may or may not apply in every case. The relativity of due process requires a reasonable degree of flexibility in applying procedural due process. Thus, not all situations calling for procedural safeguards call for the same kind of procedure. NOTE: The Bill of rights is not meant to be invoked against acts of private individuals like employers. Private actions, no matter how egregious, cannot violate constitutional due process. Effect when Due Process is not observed The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted from their jurisdiction. The violation of a party's right to due process raises a serious jurisdictional issue which cannot be glossed over or disregarded at will. A determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action must be considered in determining the application of the rules of procedure. (Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 19 June 1961) Where the denial of the fundamental right to due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction. This rule is equally true in quasi-judicial and administrative proceedings, for the constitutional guarantee that no man shall be deprived of life, liberty, or property without due process is unqualified by the type of proceedings (whether judicial or administrative) where he stands to lose the same. (Garcia v. Molina and Velasco, G.R. Nos. 157383 and 174137, 10 Aug. 2010) To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards for the same kind of procedure. (Morrisey v. Brewer, 408 U.S. 471, 29 June 1972) Effect of Waiver or Estoppel 2. VOID-FOR-VAGUENESS Due process is satisfied when the parties are afforded a fair and reasonable opportunity to explain their respective sides of the controversy. A law is vague when it lacks comprehensive standards that men of common intelligence must necessarily guess at its common meaning and differ as to its application. Thus, when the party seeking due process was in fact given several opportunities to be heard and air his side, but it is by his own fault or choice he squanders these chances, then his cry for due process must fail. In such instance, the statute is repugnant to the Constitution because: 1. Relativity of Due Process Relativity of due process arises when the definition of due process has been left to the best judgment of our judiciary considering the peculiarity and the circumstances of each case. 2. It violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and It leaves law enforcers an unbridled discretion in carrying out its provisions. (People v. de la Piedra, G.R. No. 128777, 25 Jan. 2001) The Supreme Court held that the doctrine can only be invoked against that species of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction. In a litany of cases that have been decided in this jurisdiction, the common requirement to be able to conform to due process is fair play, respect for justice and respect for the better rights of others. 167 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights (Estrada v. Sandiganbayan, G.R. No. 148560, 19 Nov. 2001) (SPARK, Et. al. v. Quezon City, G.R. No. 225442, 08 Aug. 2017) NOTE: As a rule, 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 as to its application. (People v. dela Piedra, G.R. No. 121777, 24 Jan 2001) 3. JUDICIAL AND ADMINISTRATIVE DUE PROCESS JUDICIAL DUE PROCESS Whether in civil or criminal judicial proceedings, due process requires that there be: Q: Navotas City, City of Manila, and Quezon City started to strictly implement their respective curfew ordinances on minors through police operations. Petitioners argue that the Curfew Ordinances are unconstitutional because they result in arbitrary and discriminatory enforcement as there are no clear provisions or detailed standards on how law enforcers should apprehend and properly determine the age of the alleged curfew violators, and thus, fall under the void for vagueness doctrine. Is the petitioners’ contention proper? A: NO. The void for vagueness doctrine is premised on due process considerations, which are absent from this particular claim. Petitioners fail to point out any ambiguous standard in any of the provisions of the Curfew Ordinances, but rather, lament the lack of detail on how the age of a suspected minor would be determined. The mechanisms related to the implementation of the Curfew Ordinances are, however, matters of policy that are best left for the political branches of government to resolve. Verily, the objective of curbing unbridled enforcement is not the sole consideration in a void for vagueness analysis; rather, petitioners must show that this perceived danger of unbridled enforcement stems from an ambiguous provision in the law that allows enforcement authorities to second-guess if a particular conduct is prohibited or not prohibited. Besides, petitioners are mistaken in claiming that there are no sufficient standards to identify suspected curfew violators. While it is true that the Curfew Ordinances do not explicitly state these parameters, law enforcement agents are still bound to follow the prescribed measures found in statutory law when implementing ordinances. Specifically, RA 9344, as amended which provides the mechanisms for the determination of age. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 1. An impartial and disinterested court clothed by law with authority to hear and determine the matter before it; NOTE: The test of impartiality is whether the judge’s intervention tends to prevent the proper presentation of the case or the ascertainment of the truth. 2. Jurisdiction lawfully acquired over the defendant or the property which is the subject matter of the proceeding; 3. Notice and opportunity to be heard be given to the defendant; and 4. Judgment to be rendered after lawful hearing, clearly explained as to the factual and legal bases. (Sec. 14, Art. VII, 1987 Constitution) ADMINISTRATIVE DUE PROCESS (See discussion under Administrative Administrative Due Process) Law, Judicial vs. Administrative Due Process JUDICIAL DUE PROCESS ADMINISTRATIVE DUE PROCESS Essence Opportunity to explain one’s A day in court. side. Means Usually through seeking a Submission of reconsideration of the pleadings and ruling or the action taken, or oral arguments appeal to a superior authority. 168 Political Law but an undesirable alien as well. Is the Summary Deportation Order valid? Notice and Hearing Required when the Both are administrative body is essential: exercising quasi-judicial function. (PhilCom-Sat v. 1. Notice Alcuaz, G.R. No. 84818, Dec. 2. Hearing 18, 1989) A: NO. Sec. 37(c) of C.A. 613, as amended, provides that no alien shall be deported without being informed of the specific grounds for deportation or without being given a hearing under rules of procedure to be prescribed by the Commissioner of Immigration. NOTE: See further discussion of Administrative Due Process under Administrative Law – page 322. Under par. 4 and 5 of Office Memorandum Order No. 34, an alien cannot be deported unless he is given a chance to be heard in a full deportation hearing, with the right to adduce evidence in his behalf. Due process in academic and disciplinary proceedings Parties are bound by the rules governing academic requirements and standards of behavior prescribed by the educational institutions. Resort to courts is available to parties. (Vivares v. St. Theresa’s College, G.R. No. 202666, 29 Sept. 2014) The respondent was not afforded any hearing at all. The BOC simply concluded that the respondent committed insurance fraud and illegal activities in Palawan without any evidence. The respondent was not afforded a chance to refute the charges. He cannot, thus, be arrested and deported without due process of law as required by the Bill of Rights of the Constitution. (Domingo v. Scheer, G.R. No. 154745, 29 Jan. 2004) Due Process in Deportation Proceedings 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. Thus, the provisions of the Rules of Court of the Philippines particularly on criminal procedure are applicable to deportation proceedings. (Lao Gi v. CA, G.R. No. 81789, 29 Dec. 1989) Instances when hearings are not necessary: 1. 2. 3. 4. 5. Q: Scheer, a German, was granted permanent resident status in the country. In a letter, Vice Consul Hippelein informed the Philippine Ambassador to Germany that the respondent had police records and financial liabilities in Germany. The Board of Commissioners (BOC) thereafter issued a Summary Deportation Order. It relied on the correspondence from the German Vice Consul on its speculation that it was unlikely that the German Embassy will issue a new passport to the respondent; on the warrant of arrest issued by the District Court of Germany against the respondent for insurance fraud; and on the alleged illegal activities of the respondent in Palawan. The BOC concluded that the respondent was not only an undocumented 6. 7. 8. When administrative agencies are exercising their quasi-legislative functions; Abatement of nuisance per se; Granting by courts of provisional remedies; Cases of preventive suspension; Removal of temporary employees in the government service; Issuance of warrants of distraint and/or levy by the BIR Commissioner; Cancellation of the passport of a person charged with a crime; and Suspension of a bank’s operations by the Monetary Board upon a prima facie finding of liquidity problems in such bank. Q: Ordinance 6537 of the City of Manila makes it unlawful for non- Filipino citizens to be employed or to be engaged in any kind of trade, business or occupation within the City of Manila, without securing an employment permit from the Mayor of Manila. Is the ordinance unconstitutional? 169 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights Q: Are aliens entitled to the protection of equal protection clause? A: YES. The ordinance is unconstitutional. While it is true that the Philippines as a State is not obliged to admit aliens within its territory, once an alien is admitted, he cannot be deprived of life without due process of law. This guarantee includes the means of livelihood. The ordinance amounts to a denial of the basic right of the people of the Philippines to engage in the means of livelihood. (Mayor Villegas v. Hiu Ching Tsai Pao Hao, G.R. No. L-29646, 10 Nov. 1978) A: GR: It applies to all persons, both citizens and aliens. The Constitution places the civil rights of aliens on equal footing with those of the citizens. XPN: Statutes may validly limit exclusively to citizens the enjoyment of rights or privileges connected with public domain, the public works, or the natural resources of the State. B. EQUAL PROTECTION NOTE: The rights and interests of the State in these things are not simply political but also proprietary in nature and so citizens may lawfully be given preference over aliens in their use or enjoyment. Concept of Equal Protection of Laws All persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. It guarantees equality, not identity of rights. It does not forbid discrimination as to persons and things that are different. What it forbids are distinctions based on impermissible criteria unrelated to a proper legislative purpose, or class or discriminatory legislation, which discriminates against some and favors others when both are similarly situated. Rationale for allowing, in exceptional cases, valid classification based on citizenship Aliens do not naturally possess the sympathetic consideration and regard for customers with whom they come in daily contact, nor the patriotic desire to help bolster the nation’s economy, except insofar as it enhances their profit, nor the loyalty and allegiance which the national owes to the land. These limitations on the qualifications of aliens have been shown on many occasions and instances, especially in times of crisis and emergency. (Ichong v. Hernandez, G.R. No. L-7995, 31 May 1957) NOTE: Classification has been defined as the grouping of persons or things similar to each other in certain particulars and different from all others in these same particulars. (International Harvester Co. v. Missouri, 234 U.S. 199, 08 June 1914) 1. REQUISITES FOR VALID CLASSIFICATION Q: EO 1 was issued by Pres. Aquino to investigate reported cases of graft and corruption of the Arroyo administration. Is such action valid? The classification must (S-G-Ex-A) 1. 2. 3. 4. A: NO. It must be borne in mind that the Arroyo administration is but just a member of a class, that is, a class of past administrations. It is not a class of its own. Not to include past administrations similarly situated constitutes arbitrariness which the equal protection clause cannot sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle for vindictiveness and selective retribution. (Biraogo v. Philippine Truth Commission of 2010, G.R. No. 192935, 07 Dec. 2010) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Rest on Substantial distinctions; Be Germane to the purpose of the law; Not be limited to Existing conditions only; and Apply equally to all members of the same class. (People v. Cayat, GR. No. L-45987, 05 May 1939) Q: Rosalie Garcia filed a case against her husband, Jesus Garcia, for violation of R.A. No. 9262. The RTC then issued a Temporary Protection Order. Jesus argues that R.A. No. 9262 violates the guarantee of equal protection because the remedies against personal violence that it provides may be invoked only by the wives or women partners but not by the 170 Political Law belong to the public or private sector. After all, the freedom to believe is intrinsic in every individual and the protective robe that guarantees its free exercise is not taken off even if one acquires employment in the government. (Imbong v. Ochoa, G.R. No. 204819, 08 Apr. 2014) husbands or male partners even if the latter could possibly be victims of violence by their women partners. Does R.A. No. 9262 (VAWC) violate the equal the protection clause of the Constitution? A: NO. R.A. No. 9262 rests on substantial distinction. There is an unequal power relationship between women and men and the fact that women are more likely than men to be victims of violence and the widespread gender bias and prejudice against women all make for real differences justifying the classification under the law. The classification is germane to the purpose of the law. The distinction between men and women is germane to the purpose of R.A. No. 9262, which is to address violence committed against women and children. Q: The New Central Bank Act created two categories of employees: (1) Bangko Sentral ng Pilipinas officers who are exempt from the Salary Standardization Law (SSL) and (2) rankand-file employees with salary grade 19 and below who are not exempt from the SSL. Subsequent to the enactment of the Act, the charters of the Land Bank of the Philippines and all other Government Financial Institutions (GFIs) were amended exempting all their personnel, including the rank-and-file employees, from the coverage of the SSL. BSP Employees Association filed a petition to prohibit the BSP from implementing the provision of the Act for they were illegally discriminated against when they were placed within the coverage of the SSL. Was there a violation of the equal protection clause of the Constitution? There is likewise no merit to the contention that R.A. No. 9262 singles out the husband or father as the culprit. As defined above, VAWC may likewise be committed "against a woman with whom the person has or had a sexual or dating relationship." Clearly, the use of the gender-neutral word "person" who has or had a sexual or dating relationship with the woman encompasses even lesbian relationships. Moreover, while the law provides that the offender be related or connected to the victim by marriage, former marriage, or a sexual or dating relationship, it does not preclude the application of the principle of conspiracy under the Revised Penal Code. (Garcia v. Drilon, G.R. No. 179267, 25 June 2013) A: YES. In the field of equal protection, the guarantee that “no person shall be denied the equal protection of the laws” includes the prohibition against enacting laws that allow invidious discrimination, directly or indirectly. If a law has the effect of denying the equal protection of the law, or permits such denial, it is unconstitutional. It is against this standard that the disparate treatment of the BSP rank-and-file from the other Government Financial Institutions (GFI) cannot stand judicial scrutiny. For, as regards the exemption from the coverage of the SSL, there exists no substantial distinction so as to differentiate the BSP rank-andfile from the other rank-and-file of other GFIs. The challenged provision of the New Central Bank Act was facially neutral insofar as it did not differentiate between the rank-and-file employees of the BSP and the rank-and-file employees of other GFIs, and yet its effects, when taken in light of the exemption of the latter employees from the SSL, were discriminatory. (Central Bank Employees Q: Sec. 5.23 of the Reproductive Health Law-IRR provides that skilled health professional such as provincial, city or municipal health officers, chiefs of hospital, head nurses, supervising midwives cannot be considered as conscientious objectors. Is this provision unconstitutional? A: YES. This is discriminatory and violative of the equal protection clause. The conscientious objection clause should be equally protective of the religious belief of public health officers. There is no perceptible distinction why they should not be considered exempt from the mandates of the law. The protection accorded to other conscientious objectors should equally apply to all medical practitioners without distinction whether they 171 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights Association, Inc., v. BSP, G.R. No. 148208, 15 Dec. 2004) 3. 2. TESTS TO DETERMINE THE REASONABLENESS OF A CLASSIFICATION Levels of Scrutiny (2015 Bar) 1. 2. Rational Basis Test (Differential review) – The traditional test, which requires "only that government must not impose differences in treatment except upon some reasonable differentiation fairly related to the object of regulation." Simply put, it merely demands that the classification in the statute reasonably relates to the legislative purpose. (Garcia v. Drilon, G.R. No. 179267, 25 June 2013) Rational Basis Test vs. Strict Scrutiny Strict Scrutiny Test – This 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. (White Light Corporation v. City of Manila, G.R. No. 122846, 20 Jan. 2009) It is applied when the challenged statute either: a. Classifies on the basis of an inherently suspect characteristic; or b. Infringes fundamental constitutional rights; that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. The presumption of constitutionality is reversed; that is, such legislation is assumed to be unconstitutional until the government demonstrates otherwise. (Central Bank Employees Association Inc. v. BSP, G.R. No. 148208, 15 Dec. 2004) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Intermediate Scrutiny Test –It requires that the classification (means) must serve an important governmental objective (ends) and is substantially related to the achievement of such objective. A classification based on sex is the best-established example of an intermediate level of review. (Garcia v. Drilon, G.R. No. 179267, 25 June 2013) 172 RATIONAL BASIS TEST STRICT SCRUTINY Applies to legislative classifications in general, such as those pertaining to economic or social legislation, which do not affect fundamental rights of suspect classes; or is not based on gender or illegitimacy. Applies to legislative classifications affecting fundamental rights or suspect classes. Legislative purpose must be legitimate. Legislative purpose must be compelling. Classification must be rationally related to the legislative purpose. (Central Bank Employees Association Inc. v. BSP, G.R. No. 148208, 15 Dec. 2004) Classification must be necessary and narrowly tailored to achieve the legislative purpose. (Central Bank Employees Association Inc. v. BSP, Ibid) Political Law personally known to is supported by them. substantial evidence. Basis of determination The determination of probable cause depends to a large He merely determines extent upon the the probability, not the finding or opinion of certainty of guilt of the the judge who accused and, in so doing, conducted the he need not conduct a required examination new hearing. of the applicant and the witnesses. C. ARRESTS, SEARCHES AND SEIZURES Constitutional requirements of a valid search warrant or warrant of arrest (P-J-E-P) 1. It must be issued upon determination of Probable cause; 2. The probable cause must be determined by the Judge himself and not by the applicant or any other person; 3. In the determination of probable cause, the judge must Examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and 1. REQUISITES OF A VALID WARRANT Search warrant The warrant issued must Particularly describe the place to be searched and persons and things to be seized. (HPS Software and Communication Corporation and Yap v. PLDT, G.R. Nos. 170217 and 170694, 10 Dec. 2012) 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. (Sec. 1, Rule 126, ROC) NOTE: The right against unreasonable searches and seizures is personal and may be invoked only by the person entitled to it. Therefore, one who is not the owner or lessee of the premises searched, or who is not an officer of a corporation whose papers are seized, cannot challenge the validity of the search or seizure. (Stonehill v. Diokno, G.R. No. L-19550, 19 June 1967) A search may be conducted by law enforcers only on the strength of a search warrant validly issued by a judge. Articles which are the product of unreasonable searches and seizures are inadmissible as evidence. Search warrants to be valid must particularly describe the place to be searched and the persons or things to be seized. (People v. Aruta, G.R. No. 120915, 03 Apr. 1998) Search Warrant vs. Warrant of Arrest The right to be secure from unreasonable search may, like every right, be waived, and such waiver may be made either expressly or impliedly. (People v. Malasugui, G.R. No. L-44335, 30 July 1936) 4. SEARCH WARRANT WARRANT OF ARREST As to authority to examine The judge must It is not necessary that personally examine in the judge should the form of searching personally examine the questions and complainant and his answers, in writing witnesses; the judge and under oath, the would simply complainant and the personally review the witnesses he may initial determination of produce on facts the prosecutor to see if it Arrest Warrant A warrant of arrest is issued by a judge after he had determined the existence of a probable cause for the arrest of the accused, and to subsequently place the accused in immediate custody so as not to frustrate the ends of justice. In other words, a warrant is issued once the judge had determined that the accused might have indeed committed the crime, is 173 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights 3. not falsely charged therewith, and deserves to undergo the tribulations, expenses, and anxiety of a public trial. (Viudez II v. CA, G.R. No. 152889, 05 June 2009) NOTE: It is not necessary that the person named in the search warrant be the owner of the things seized. Ownership is of no consequence. What is relevant is that the property is connected to an offense. General Warrants These are warrants of broad and general characterization or sweeping descriptions which will authorize police officers to undertake a fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to an offense. (People v. Modesto Tee, G.R. Nos. 140546-47, 20 Jan. 2003). Seized items in violation of Art. 201 of the RPC, such as immoral doctrines, obscene publications, and indecent shows, can be destroyed even if the accused was acquitted. P.D. 969 or An Act amending Art. 201 mandates the forfeiture and destruction of pornographic materials involved in the violation of Article 201 of the RPC even if the accused was acquitted. (Nogales v. People, G.R. No. 191080, 21 Nov. 2011) General warrant is not allowed. It must be issued pursuant to a specific offense. (Stonehill v. Diokno, G.R. No. L-19550, 19 June 1967) Nature of Search Warrant Proceedings Purpose of Particularity of Description in Search Warrants 1. Readily identify the properties to be seized and thus prevent the peace officers from seizing the wrong items; and 2. Leave peace officers with no discretion regarding the articles to be seized and thus prevent unreasonable searches and seizures. (Bache and Co. v. Ruiz, G.R. No. L-32409, 27 Feb. 1971) Neither a criminal action nor a commencement of a prosecution. It is solely for the possession of personal property. (United Laboratories, Inc. v. Isip, G.R. No. 163858, 28 June 2005) Probable Cause It requires facts and circumstances that would lead a reasonably prudent man to believe that an offense has been committed and that the objects sought in connection with that offense are in the place to be searched. (HPS Software and Communications Corp. v. PLDT, G.R. Nos. 170217 and 170694, 10 Dec. 2012) Particularity of Description for a Search Warrant is complied with when: 1. 2. 3. Property used or intended to be used as means for the commission of an offense. Such facts and circumstances antecedent to the issuance of a warrant that in themselves are sufficient to induce a cautious man to rely on them and act in pursuance thereof. The description therein is as specific as the circumstances will ordinarily allow; The description expresses a conclusion of fact, not of law, by which the warrant officer may be guided in making the search and seizure; or The things described are limited to those which bear direct relation to the offense for which the warrant is being issued. NOTE: The evidence necessary to establish probable cause is based only on the likelihood, or probability, of guilt. (Estrada v. Office of the Ombudsman, G.R. Nos. 212140–41, 21 Jan. 2015) Properties Subject to Seizure: 1. 2. Thus, probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a Property subject of the offense; Stolen or embezzled property and other proceeds or fruits of the offense; or UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 174 Political Law preliminary investigation because such investigation is merely preliminary and does not finally adjudicate rights and obligations of parties. (Estrada v. Office of the Ombudsman, G.R. Nos. 212140–41, 21 Jan. 2015) conducted a preliminary examination to PO1 Geverola. Judge Balagot, then, issued Search Warrant after finding a probable cause for such issuance. Thereafter, the aforementioned search warrant was served against petitioner. Q: LPG Dealers Association and Total Gaz LPG Dealers Association filed a lettercomplaint before the NBI-IRO, requesting assistance in the surveillance, investigation, apprehension and prosecution of respondents for alleged illegal trading of LPG products and/or underfilling, possession and/or sale of underfilled LPG products. The NBI-IRO - through its agent De Jamil and undercover NBI asset Antonio conducted surveillance and test-buy operations and thereafter they filed two Applications for Search Warrant to conduct a search of the Magsingal LPG refilling plant. Can the personal knowledge of the witnesses of the commission of the illegal trading and underfilling of LPG products be a basis for determining probable cause in search warrant applications? Gabiosa filed a Motion to Quash Search Warrant and Suppression of Evidence claiming that the issuance of the search warrant is grossly violative of his fundamental constitutional and human right. The RTC denied the Motion to Quash Search Warrant and Suppression of Evidence. Gabiosa filed a Petition for Certiorari with the CA, alleging that the RTC gravely abused its discretion in denying his motion to quash. The CA granted Gabiosa's Petition for Certiorari. Is the CA correct? A: NO. A warrant that justifies the intrusion, to be valid, must satisfy the following requirements: (1) it must be issued upon "probable cause"; (2) probable cause must be determined personally by the judge; (3) such judge must examine under oath or affirmation the complainant and the witnesses he may produce; and (4) the warrant must particularly describe the place to be searched and the persons or things to be seized. A: YES. 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 judge, in determining probable cause, is to consider the totality of the circumstances made known to him and not by a fixed and rigid formula, and must employ a flexible, totality of the circumstances standard. Facts discovered during surveillance - on the basis of information and evidence provided by petitioners - constitute personal knowledge which could form the basis for the issuance of a search warrant. (Petron LPG Dealers Association v. Ang, G.R. No. 199371, 03 Feb. 2016) At the heart of these requisites, however, is that the intrusion on a citizen's privacy — whether it be in his own person or in his house — must be based on probable cause determined personally by the judge. In other words, the magistrate authorizing the State-sanctioned intrusion must therefore himself or he rself be personally satisfied that there is probable cause to disturb the person's privacy. The purpose of the examination is to satisfy the judge that probable cause exists. Hence, it is immaterial in the grander scheme of things whether the judge examined the complainant only, or the witness only, and not both the complainant and the witness/es. The primordial consideration here is that the judge is convinced that there is probable cause to disturb the individual’s privacy. (People v. Gabiosa, G.R. No. 248395, 29 Jan. 2020, J. Caguioa) Q: Police Superintendent Ajero applied for the issuance of a search warrant against Roberto Gabiosa, Sr. before the Executive Judge Balagot. In support of his application, P/Supt. Ajero attached the Affidavit of his witness, Police Officer 1 Rodolfo M. Geverola. On the basis of the above-quoted Affidavit, Judge Balagot 175 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights The passenger jeepney arrived; the police officers flagged it down. The officers approached the jeepney and saw Mr. S. They asked him if he was the owner of the blue sack in front of him, which he answered in the affirmative. Said officers then requested for him to open it. Upon complying, they saw 4 bricks of suspected dried marijuana leaves. Mr. S was arrested. The laboratory examination later revealed that it was indeed marijuana, a dangerous drug. Mr. S was then charged with a violation of Section 5 of R.A. 9165. Was there a valid warrantless search of a moving vehicle? Personal knowledge 1. 2. The person to be arrested must execute an overt act indicating that he had just committed, is actually committing, or is attempting to commit a crime; and Such overt act is done in the presence or within the view of the arresting officer. NOTE: Initial hearsay information or tips from confidential informants could very well serve as basis for the issuance of a search warrant, if followed up personally by the recipient and validated. Looking at the records, it is clear that Padilla and his companions were able to personally verify the tip of their informant. The evidence on record clearly shows that the applicant and witnesses were able to verify the information obtained from their confidential source. The evidence likewise shows that there was probable cause for the issuance of a search warrant. Thus, the requirement of personal knowledge of the applicant and witnesses was clearly satisfied in this case. (Microsoft Corp. v. Farajallah, G.R. No. 205800, 10 Sept. 2014) A: NO. Peace officers in warrantless search and seizure of moving vehicles, are limited to routine checks where the examination of the vehicle is limited to visual inspection.” Extensive search of a vehicle is permissible only when "the officers made it upon probable cause.” In this case, the singular circumstance that engendered probable cause on the part of the police officers was the information received through the RPSB Hotline from an anonymous person. This does not suffice to create probable cause that enables the authorities to conduct an extensive and intrusive search without a search warrant. Mere “reliable information” will not satisfy the “personal knowledge” requirement In situations involving warrantless searches and seizures, "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. (People of the Philippines v. Jerry Sapla, G.R. No. 244045, 16 June 2020, J. Caguioa) The long-standing rule in this jurisdiction, applied with a great degree of consistency, is that “reliable information” alone is not sufficient to justify a warrantless arrest under Section 5(a), Rule 113. The rule requires, in addition, that the accused perform some overt act that would indicate that he “has committed, is actually committing, or is attempting to commit an offense.” (People v. Tudtud, G.R. No. 144037, 26 Sept. 2003) Searching questions Q: An officer on duty received a call from a concerned citizen, who informed them that one male individual would be transpiring marijuana from Kalinga into Isabela. Their hotline received a text message, stating that the subject male person was wearing a collared white shirt with green stripes, red ball cap, and was carrying a blue sack on board a passenger jeepney, with plate number AYA 270 bound for Roxas, Isabela. A joint checkpoint was organized. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Examination by the investigating judge of the complainant and the latter’s witnesses in writing and under oath or affirmation, to determine whether there is a reasonable ground to believe that an offense has been committed and whether the accused is probably guilty thereof so that a warrant of arrest may be issued, and he may be held liable for trial. (Sec.5, Rule 126, ROC) 176 Political Law Extent of Personal Examination before issuing an Arrest Warrant Q: Nenita and Julienne were graduating high school students at St. Theresa’s College (STC), Cebu City. While changing into their swimsuits for a beach party they were about to attend, Julia and Julienne, along with several others, took digital pictures of themselves clad only in their undergarments. These pictures were then uploaded by Angela on her Facebook profile. Personal determination, as stated in the constitution, does not mean that judges are obliged to conduct the personal examination of the complainant and his witnesses themselves, such interpretation would unduly laden them with preliminary examinations and investigations of criminal complaints rather than concentrating on hearing and deciding on cases filed before them. What is being emphasized by the provision is the exclusive and personal responsibility of the issuing judge to satisfy himself as to the existence of probable cause, he/she cannot just rely on the certification of the prosecutor alone but rather because the records sustain the issuance of the warrant of arrest. (Borlongan v. Peña, G.R. No. 143591, 05 May 2010) Back at the school, Escudero, a computer teacher at STC’s high school department, learned from her students that some seniors at STC posted pictures online, depicting themselves from the waist up, dressed only in brassieres. Escudero reported the matter and, through one of her student’s Facebook page, showed the photos to Tigol, STC’s Discipline-inCharge, for appropriate action. Were unlawful means used by STC in gathering information about the photo? A police officer cannot amplify or modify what has been set out in the warrant A: NO. Even assuming that the photos in issue are visible only to the sanctioned students’ Facebook friends, respondent STC can hardly be taken to task for the perceived privacy invasion since it was the minors’ Facebook friends who showed the pictures to Tigol. Respondents were mere recipients of what were posted. They did not resort to any unlawful means of gathering the information as it was voluntarily given to them by persons who had legitimate access to the said posts. Clearly, the fault, if any, lies with the friends of the minors. Curiously enough, however, neither the minors nor their parents imputed any violation of privacy against the students who showed the images to Escudero. (Vivares v. St. Theresa’s College, G.R. No. 202666, 29 Sept. 2014) Such a change is proscribed by the Constitution which requires a search warrant to particularly describe the place to be searched; otherwise, it would open the door to abuse of the search process, and grant to officers executing the search that discretion which the Constitution has precisely removed from them. The particularization of the description of the place to be searched may properly be done only by the judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search. It is neither fair nor licit to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searched —although not that specified in the warrant — is exactly what they had in view when they applied for the warrant and had demarcated in their supporting evidence. What is material in determining the validity of a search is the place stated in the warrant itself, not what applicants had in their thoughts, or had represented in the proofs they submitted to the court issuing the warrant. (People v. CA, 291 SCRA 400, 26 June 1998) Q: PNP constituted a team to implement a search warrant issued by the Judge to search Edmund Bulauitan's residence. Before going to the target residence, the search team first went to the house of the Barangay Chairman, who in turn, assigned Kagawad Jerry (Kgd. Jerry) and Kagawad Herald (Kgd. Herald) as search witnesses. Upon arriving at Bulauitan's residence, the search team was met by Bulauitan's two (2) children and housekeeper, who informed them that Bulauitan was not 177 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights the purview of the exclusionary rule of the 1987 Constitution. (Bulauitan v. People, G.R. No. 218891, 19 Sept. 2016) home. This notwithstanding, the search team explained to the children and housekeeper the reason for their presence, prompting the latter to allow them inside the house and conduct the search. SPO2 Baccay then proceeded to Bulauitan's room and there, discovered three (3) heat-sealed plastic sachets containing white crystalline substance which was later on confirmed as shabu. Time of Making Arrest An arrest may be made on any day and at any time of the day or night. (Sec. 6, Rule 113, ROC) Thus, in a case where a respondent judge was accused for grave abuse of authority for the issuance of warrant of arrest on a Friday to ensure complainant’s incarceration for two days, the Supreme Court stated that the said judge cannot be held liable because nowhere in the Rules or in our jurisprudence can we find that a warrant of arrest issued on a Friday is prohibited. (Colorado v. Agapito, A.M. No. MTJ-06-1658, 03 July 2007) Based on the testimonies, it was discovered that: (a) Bulauitan was not in his residence when the search was conducted; (b) his daughter, Maria, was not able to witness SPO2 Baccay's search of Bulauitan's room as PO3 Tagal kept her in the living room and even instructed her to leave the house to contact her parents; and (c) Kgd. Jerry and Kgd. Herald neither witnessed the search as they remained outside Bulauitan's residence. The RTC finds Balauitan guilty and was affirmed by the CA. Should the SC uphold the decision? 2. WARRANTLESS ARRESTS AND DETENTION WARRANTLESS ARRESTS A: NO. Sec. 8, Rule 126 - Search of house, room, or premises to be made in presence of two witnesses provides that a search under the strength of a warrant is required to be witnessed by the lawful occupant of the premises sought to be searched. It must be stressed that it is only upon their absence that their presence may be replaced by two (2) persons of sufficient age and discretion residing in the same locality. An arrest can be made by a peace officer or a private person without a warrant in the following instances: In this case, a judicious perusal of the records reveals that the policemen involved in the search of Bulauitan's residence — as shown in their own testimonies—did not conduct the search in accordance with Section 8, Rule 126 of the Revised Rules of Criminal Procedure. Worse, the search team even instructed Maria to contact her father via telephone, which she could only do by leaving their residence and going to the house of a certain Dr. Romeo Bago (Dr. Bago) to use the telephone therein. It was only after her return to their residence that SPO2 Baccay announced that they have allegedly found shabu in Bulauitan's room. The search conducted therein by the search team fell way below the standard mandated by Section 8, Rule 126 of the Revised Rules of Criminal Procedure, and thus deemed unreasonable within UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 1. “In flagrante delicto” arrest: when (a) the person to be arrested must execute an overt act indicating he has just committed, is actually committing, or is attempting to commit a crime; and (b) such overt act is done in the presence or within the view of the arresting officer. (Valdez v. People, G.R. No. 170180, 23 Nov. 2007) 2. “Hot pursuit” arrest: when (a) an offense has just been committed; and (b), 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. (Pestilos v Generoso, G.R. No. 182601, 10 Nov. 2014) NOTE: That a crime was in fact committed does not automatically bring the case under “hot pursuit” arrests”. There must be “probable cause” and there must be “immediacy” in the time frame from the commission of the crime. (Verdiano v. People, G.R. No. 200370, 07 June 2017) 178 Political Law The existence of “probable cause” is the “objectifier” or the determinant on how the arresting officer shall proceed on the facts and circumstances, within his personal knowledge, for purposes of determining whether the person to be arrested has committed the crime. The “probable cause” for arresting officers is distinct from the “probable cause” for public prosecutors and judges. (Pestilos v. Generoso, G.R. No. 182601, 10 Nov. 2014) the legality of the search. (Alcaraz v. People, G.R. No. 199042, 17 Nov. 2014) DETENTION Detention is defined as the actual confinement of a person in an enclosure, or in any manner detaining and depriving him of his liberty. (People v. Gungon, G.R. No. 119574, 19 Mar. 1998) A person is detained when he is in confinement or there is a restraint in his person. (Reyes, 2017) 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. Classes of Arbitrary Detention (A-Del2) 1. 2. NOTE: Should an arrest be made not in accordance with the above rules, or otherwise put, if the arrest is not lawfully warranted, such apprehension will be declared illegal, and the arresting officers may be prosecuted for the crime of Arbitrary Detention under Art. 124 of the RPC, which penalizes any public officer or employee who, without legal grounds, detains a person. This is in addition to such other crimes or offenses that may be committed in the course of the illegal apprehension and detention. (Art. 124, RPC) 3. Arbitrary detention by detaining a person without legal ground; (Art. 124, RPC) Delay in the delivery of detained persons to the proper judicial authorities - committed by failure of the public officer to deliver the detained person to the proper judicial authorities within 12, 18 or 36 hours; or (Art. 125, RPC) Delaying release of prisoners despite the judicial or executive order to do so. (Art. 126, RPC) The detention of a person is without legal ground when: 1. In cases falling under paragraphs (1) and (2) justifying warrantless arrests, the person arrested without a warrant shall be delivered to the nearest police station for the conduct of inquest proceedings. When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, inquest by the public prosecutor will follow instead of a regular preliminary investigation. (Sec. 7, Rule 112, ROC) 2. 3. When the offended party was arrested without a warrant of arrest; When the said offended party was arrested and his arrest and detention does not fall under any of the circumstances of a valid warrantless arrest; or When he is not suffering from violent insanity or any other ailment which requires compulsory confinement. (Reyes, 2017) Waiver of Unlawful Arrests and Illegal Searches NOTE: Even if a public officer has the legal duty to detain a person, the public officer must be able to show the existence of legal grounds for the detention. Without these legal grounds, the public officer is deemed to have acted in a private capacity and is considered a private individual. The public officer becomes liable for kidnapping and serious illegal detention punishable by reclusion perpetua, A waiver of an illegal arrest, however, is not a waiver of an illegal search. Records have established that both the arrest and the search were made without a warrant. 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 179 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights not with arbitrary detention punished with significantly lower penalties. (Pascasio Duropan v. People, G.R. No. 230825, 10 June 2020) 4. 5. 6. Effects of Illegal Detention Any public officer or employee who without legal grounds, detains a person, shall suffer a penalty of imprisonment. (Art. 124, RPC) NOTE: Consent to a search is not to be lightly inferred but shown by clear and convincing evidence. Consent must also be voluntary in order to validate an otherwise illegal search; that is, the consent must be unequivocal, specific, intelligently given, and uncontaminated by any duress or coercion. (Caballes v CA, G.R. No. 136292, 15, Jan. 2002) (2015 BAR) Illegal detention When a private individual makes an arrest without complying with the requisites under Article 125, he shall be guilty of illegal detention under Articles 267 or 268. (Reyes, 2017) Customs search; Searches of vessels and aircraft for violation of immigration and drug laws; 9. Searches of buildings and premises to enforce fire. Sanitary, and building regulations; and 10. Exigent and emergency circumstances. (People v. De Gracia, G.R. Nos. 102009-19, 06 July 1994) 7. 8. The arresting officer is duty-bound to release a detained person if the maximum hours for detention provided under Article 125 of the RPC has already expired. Failure to cause the release may result in an offense. (Albior v. Auguis, A.M. No. P-011472, 26 June 2002) NOTE: The illegality of the detention is not cured by the subsequent filing of information in court because a violation had already been committed before the information was filed. (Reyes, 2017) Plain View Doctrine (2012 BAR) Under the plain view doctrine, objects falling in the "plain view" of an officer, who has a right to be in the position to have that view, are subject to seizure and may be presented as evidence. 3. WARRANTLESS SEARCHES (2000, 2009, 2015 BAR) 1. 2. Requisites to apply Plain View Doctrine: (J-I-A) Visual search is made of moving vehicles at checkpoints; Search is an incident to a valid arrest; 1. NOTE: An officer making an arrest may take from the person: a. Any money or property found upon his person which was used in the commission of the offense b. Was the fruit thereof c. Which might furnish the prisoner with the means of committing violence or escaping d. Which might be used as evidence in the trial of the case 3. 2. 3. The law enforcement officer in search of the evidence has a valid Justification for an intrusion or is in a position from which he can view a particular area; The discovery of the evidence in plain view is Inadvertent; and It is immediately Apparent to the officer that the item he observes may be evidence of a crime, contraband, or otherwise subject to seizure. The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. In the course of such lawful intrusion, he came inadvertently across a piece of evidence Search of passengers made in airports; UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES When things seized are within plain view of a searching party (Plain View Doctrine); Stop and frisk (Terry search); When there is a valid express waiver made voluntarily and intelligently. 180 Political Law genuine reason must exist in light of a police officer’s experience and surrounding conditions to warrant the belief that the person detained has weapons concealed. (Malacat v. CA, G.R. No. 123595, 12 Dec. 1997) incriminating the accused. The object must be open to eye and hand, and its discovery inadvertent. (Fajardo v. People, G.R. No. 190889, 10 Jan. 2011) NOTE: Plain View Doctrine cannot be applied where there was no evidence in plain view of law enforcers serving the search warrant. (United Laboratories, Inc. v. Isip, G.R. No. 163858, 28 June 2005) NOTE: "Stop and frisk" searches (sometimes referred to as Terry searches) are necessary for law enforcement. That is, law enforcers should be given the legal arsenal to prevent the commission of offenses. However, this should be balanced with the need to protect the privacy of citizens in accordance with Sec. 2, Art. III of the 1987 Constitution. Q: Kwino, a drug pusher was entrapped in a buy bust operation. He led the police officers to the house of Carlo Ray, his supposed associate and his house was searched. A cardboard box with bricks of marijuana inside was found in her residence. However, Carlo Ray’s warrantless arrest was declared illegal by the court. It follows that the search of his person and home and the subsequent seizure of the marked bills and marijuana cannot be deemed legal as an incident to her arrest. Was the marijuana in the cardboard box in plain view during the search, making the warrantless seizure valid and acceptable in evidence? The balance lies in the concept of "suspiciousness" present in the situation where the police officer finds himself or herself in. This may be undoubtedly based on the experience of the police officer. Experienced police officers have personal experience dealing with criminals and criminal behavior. Hence, they should have the ability to discern — based on facts that they themselves observe — whether an individual is acting in a suspicious manner. Clearly, a basic criterion would be that the police officer, with his or her personal knowledge, must observe the facts leading to the suspicion of an illicit act. A: NO. The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and hand and its discovery inadvertent. In Manalili v. CA, the police officers were initially informed about a place frequented by people abusing drugs. When they arrived, one of the police officers saw a man with "reddish eyes and who was walking in a swaying manner.” The suspicion increased when the man avoided the police officers. These observations led the police officers to conclude that the man was high on drugs. These were sufficient facts observed by the police officers "to stop the petitioner and investigate." It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty arises when the object is inside a closed container. 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. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. (People v. Doria, G.R. No. 125299, 22 Jan. 1999) In People v. Solayao, police officers noticed a man who appeared drunk. This man was also "wearing a camouflage uniform or a jungle suit." Upon seeing the police, the man fled. His flight added to the suspicion. After stopping him, the police officers found an unlicensed homemade firearm in his possession. Under the circumstances, the government agents could not possibly have procured a search warrant first. This was also considered a valid search. Stop-and-frisk search (2009, 2012 BAR) Limited protective search of outer clothing for weapons. Probable cause is not required but a 181 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights of a crime that would allow what jurisprudence refers to as a "stop and frisk" action. Checkpoints Searches conducted in checkpoints are lawful, provided the checkpoint complies with the following requisites: (Pro-S-Vi) 1. 2. 3. In one case, the police officers asked the petitioner to get out of the vehicle not because he has committed a crime, but because of their intention to invite him to the police station so he could rest before he resumes driving. But instead of a tactful invitation, the apprehending officers, in an act indicative of overstepping of their duties, dragged the petitioner out of the vehicle and, in the process of subduing him, pointed a gun and punched him on the face. The establishment of checkpoint must be Pronounced; It must be Stationary, not roaming; and The search must be limited to Visual search and must not be an intrusive search. NOTE: Not all searches and seizures are prohibited. Between the inherent right of the State to protect its existence and promote public welfare and an individual’s right against warrantless search which is however reasonably conducted, the former should prevail. The policemen claimed that they did that to subdue the fifty-five-year-old petitioner. It was ruled that the actions of the police officers were done in excess of their authority granted under R.A. 4136. (Sydeco v. People, G.R. No. 202692, 12 Nov. 2014) A checkpoint is akin to a stop-and-frisk situation whose object is either to determine the identity of suspicious individuals or to maintain the status quo momentarily while the police officers seek to obtain more information. (Valmonte v. De Villa, G.R. No. 83988, 29 Sept. 1989) Q: Star was a lady frisker whose duty is to frisk departing passengers, employees, and crew and check for weapons, bombs, prohibited drugs, contraband goods, and explosives. When she frisked Rochelle, a boarding passenger, she felt something hard on Rochelle’s abdominal area which was later found to be three packs of shabu. Can Rochelle invoke a violation of the search and seizure clause? Motorists and their vehicles passing through checkpoints may also be stopped and extensively searched A: NO. Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nation’s airport. (People v. Johnson, G.R. No. 138881, 18 Dec. 2000) While, as a rule, motorists and their vehicles passing through checkpoints may only be subjected to a routine inspection, vehicles may be stopped and extensively searched when there is probable cause which justifies a reasonable belief among those at the checkpoints that either the motorist is a law offender or the contents of the vehicle are or have been instruments of some offense. (People v. Vinecario, G.R. No. 141137, 20 Jan. 2004) Checkpoint rules under LTO Code (R.A. No. 4136) Q: Luz was flagged down by PO3 Alteza for driving a motorcycle without a helmet. Alteza invited Luz to their sub-station and while issuing a citation ticket for violation of municipal ordinance, Alteza was alerted by the latter’s uneasy movement and asked him to put out the contents of the pocket of his jacket. It was revealed that Luz was in possession of There is nothing in R.A. No. 4136 that authorized checkpoint-manning policemen to order a driver and his companions to get out of the vehicle for a vehicle and body search. It bears to emphasize that there was no reasonable suspicion of the occurrence UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 182 Political Law police officers ransacked the locked cabinet inside the room where they found a firearm and ammunition. Are the warrantless search and seizure of the firearm and ammunition justified as an incident to a lawful arrest? prohibited drugs. Can the roadside questioning of a motorist detained pursuant to a routine traffic stop be considered a formal arrest? A: NO. The time he was waiting for Alteza to write his citation ticket may be characterized as waiting time. Luz could not be said to have been under arrest. There was no intention on the part of Alteza to arrest him, deprive him of his liberty, or take him into custody. In fact, Alteza himself testified that it was only for the sake of convenience that they were waiting at the sub-station. (Luz v. People of the Philippines, G.R. No. 197788, 29 Feb. 2012) A: NO. The scope of the warrantless search is not without limitations. 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 purpose of the exception 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. In this case, search was made in the locked cabinet which cannot be said to have been within Kel's immediate control. Thus, the search exceeded the bounds of what may be considered as an incident to a lawful arrest. (Valeroso v. CA, G.R. No. 164815, 03 Sept. 2009) Q: A search was conducted on March 3, 1986. During which the Philippines has no Constitution. The Constabulary raiding team searched the house of Elizabeth Dimaano by virtue of a search warrant and thereafter seized some items not included in the warrant. Dimaano questioned the search for being violative of the Constitution. Can she invoke her right against unreasonable searches and seizures during the interregnum? Q: A buy-bust operation was conducted in DM’s store. Police Officer CA Tandoc posed as a buyer and bought marijuana from DM. After the exchange of marked money and marijuana, Tandoc arrested DM without a warrant. The other police officer searched the store and seized a plastic container containing six marijuana stocks. Thereafter, DM was charged with selling marijuana. Is the warrantless seizure of marijuana legal? A: YES. The Bill of Rights under the 1973 Constitution was not operative during the interregnum. Be that as it may, under Art. 17(1) of the International Covenant on Civil and Political Rights, the revolutionary government had the duty to insure that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence. Art. 17(2) provides that no one shall be arbitrarily deprived of his property. Although the signatories to the Declaration did not intend it as a legally binding document, being only a declaration, the Court has interpreted the Declaration as part of the generally accepted principles of international law and binding on the state. The revolutionary government did not repudiate the Covenant or the Declaration during the interregnum. It was also obligated under international law to observe the rights of individuals under the Declaration. (Republic v. Sandiganbayan, G.R. No. 104768, 21 July 2003) A: YES. The search being an incident to a lawful arrest, it needed no warrant for its validity. The accused having been caught in flagrante delicto, the arresting officers were duty bound to apprehend her immediately. The warrantless search and seizure, as an incident to a lawful arrest, may extend to include the premises under the immediate control of the accused. The accused may not successfully invoke the right against a warrantless search, even as regards the plastic container with dried marijuana leaves found on the table in his store. (People v. Salazar, G.R. No. 98060, 27 Jan. 1997) Q: Sgt. Victorino Noceja and Sgt. Alex de Castro, while on a routine patrol in Pagsanjan, Laguna, spotted a passenger jeep unusually covered with "kakawati" leaves. Suspecting that the jeep was Q: While sleeping in his room, Kel was arrested by virtue of a warrant of arrest and he was dragged out of the room. Thereafter, some 183 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights contents of his jacket’s pocket. It turned out, the rider has in his possession two plastic sachets of suspected shabu. The RTC convicted him of illegal possession of dangerous drugs since he had been lawfully arrested for a traffic violation and then subjected to a valid search, which led to the discovery on his person of two plastic sachets of shabu. On appeal, the CA affirmed the RTC’s Decision. loaded with smuggled goods, the two police officers flagged down the vehicle driven by Rudy. The police officers then checked the cargo and they discovered bundles of 3.08 mm aluminum/galvanized conductor wires exclusively owned by National Power Corporation (NPC). Police officers took Rudy into custody and seized the conductor wires. Was Rudy’s right against unreasonable searches and seizures violated when the police officers searched his vehicle and seized the wires found therein without a search warrant? In his appeal to the SC, the rider claims that there was no lawful search and seizure, because there was no lawful arrest since he was not even issued a citation ticket or charged with violation of the city ordinance. Even assuming that there was a valid arrest, he claims that he had never consented to the search conducted upon him. Should the rider-appellant’s contention be upheld? A: YES. When a vehicle is stopped and subjected to an extensive search, such a warrantless search would be constitutionally permissible only if the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender, or they will find the instrumentality or evidence pertaining to a crime in the vehicle to be searched. A: YES. There was no valid arrest of appellant. When he was flagged down for committing a traffic violation, he was not, ipso facto and solely for this reason, arrested. However, the fact that the vehicle looked suspicious simply because it is not common for such to be covered with kakawati leaves does not constitute "probable cause" as would justify the conduct of a search without a warrant. Furthermore, the police authorities did not claim to have received any confidential report or tipped information that Rudy was carrying stolen cable wires in his vehicle which could otherwise have sustained their suspicion. Arrest is the taking of a person into custody in order that he or she may be bound to answer for the commission of an offense. It is effected by an actual restraint of the person to be arrested or by that person’s voluntary submission to the custody of the one making the arrest. Neither the application of actual force, manual touching of the body, or physical restraint, nor a formal declaration of arrest, is required. It is enough that there be an intention on the part of one of the parties to arrest the other, and that there be an intent on the part of the other to submit, under the belief and impression that submission is necessary. It cannot likewise be said that the cable wires found in Rudy's vehicle were in plain view, making its warrantless seizure valid. The cable wires were not exposed to sight because they were placed in sacks and covered with leaves. The articles were neither transparent nor immediately apparent to the police authorities. (Caballes v. CA, G.R. No. 136292, 15 Jan. 2002) At the time that he was waiting for the police officer to write his citation ticket, appellant could not be said to have been under arrest. There was no intention on the part of the former to arrest him, deprive him of his liberty, or take him into custody. Prior to the issuance of the ticket, the period during which appellant was at the police station may be characterized merely as waiting time. In fact, as found by the trial court, the only reason they went to the police sub-station was that appellant had Q: A police officer flagged down a rider for driving without a helmet. The police officer invited the rider to come inside their sub-station located near the area. While issuing a citation ticket for violation of a municipal ordinance, the police officer noticed that the accused was uneasy and kept on reaching something from his jacket. He then asked the rider to take out the UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 184 Political Law grave misconduct and have him dismissed from service. Is the OCA correct? been flagged down almost in front of that place. Hence, it was only for the sake of convenience that they were waiting there. There was no intention to take him into custody. It also appears that, according to City Ordinance No. 98-012, which was violated by appellant, the failure to wear a helmet while riding a motorcycle is penalized by a fine only. Under the Rules of Court, a warrant of arrest need not be issued if the information or charge was filed for an offense penalized by a fine only. It may be stated as a corollary that neither can a warrantless arrest be made for such an offense. A: NO. The exclusionary rule in Section 3 (2), Article III of the 1987 Constitution is not only limited to evidence directly obtained in violation of the right against unreasonable searches and seizures and the privacy of communication or correspondence. So long as the evidence sought to be presented is fairly traceable to the illegal search or seizure or the intrusion into privacy, then the same must be excluded. Here, Guico’s positive result for drug use may not be used against him as it is a fruit of the poisonous tree, the tree being the shabu illegally seized from him. Hence, he shall be absolved of any administrative liability. (OCA v. Guico, Jr., A.M. No. P12-3049, 29 June 2021) There being no valid arrest, the warrantless search that resulted from it was likewise illegal. (Rodel Luz v. People, G. R. No. 197788, 29 Feb. 2012) 4. EXCLUSIONARY RULE D. PRIVACY OF COMMUNICATION AND CORRESPONDENCE Effects of Unreasonable Searches and Seizures Any evidence obtained in violation of the right against unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding. (Sec. 3 (2), Art. III, 1987 Constitution) The right to privacy is 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. To simply put, it is the right to be let alone. (Sps Hing v. Choachuy, G.R. No. 179736, 26 June 2013) NOTE: If the illegally seized object is a subject of litigation, it will remain in custodia legis until the case is terminated. GR: Right to privacy is inviolable. (Sec. 3 (1), Art. III, 1987 Constitution) Q: Police officers responded to a shooting incident involving an alias “Apaw.” When they went to Apaw’s residence they saw Guico rode his motorcycle out of the surrounded area and despite being accosted by the police, just sped on. The police chased and eventually caught Guico. A packet of what turned out to be shabu was found in his possession. Guico tested positive for drug use and was charged with illegal possession of dangerous drugs. The RTC convicted him of the crime but the CA acquitted him, holding that the shabu seized from him was inadmissible in evidence as he was apprehended and searched without a warrant for either intrusion. Despite Guico’s acquittal occasioned by the inadmissibility of evidence against him, OCA wanted to hold him liable for XPNs: 1. By lawful order of the court; and 2. Public safety or public order as prescribed by law. NOTE: Any evidence in violation of this right or the right against unreasonable searches and seizures shall be inadmissible for any purpose in any proceedings. Three Strands of the Right to Privacy 1. 185 Locational or Situational Privacy – Privacy felt in physical space, such as that which may be violated by trespass and unwarranted search and seizure. UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights 2. 3. Forms of Correspondence covered: Informational Privacy – Defined as the right of individuals to control information about themselves. 1. 2. 3. 4. 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, 29 Sept. 2014) 1. PRIVATE AND PUBLIC COMMUNICATIONS Anti-Wire Tapping Act (R.A. No. 4200) CONCEPT OF COMMUNICATIONS, CORRESPONDENCE A special law prohibiting and penalizing secret recording of conversations either through wiretapping or tape recorders. It provides penalties for specific violations of private communication. Communication Communication is an essential outcome protected speech. Communication exists when: of 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 act’s claims or opposing them with criticism or requests for justification. (Diocese of Bacolod v COMELEC, G.R. No. 205728, 21 Jan. 2015) It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a Dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise described. (Sec. 1, R.A. No. 4200) Prohibited Acts under R.A. No. 4200 (2009 BAR) (Tap-Pos-Replay-Co-Trans) 1. To Tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described by any person, not being authorized by all the parties to any private communication or spoken word; 2. To knowingly Possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; 3. To Replay the same for any other person or persons; Information and Communication System This refers to a system of generating, sending, receiving, storing, or otherwise processing electronic data messages or electronic documents and includes the computer system or other similar devices by or in which data are recorded or stored. (Sec. 1, Rule 2, Electronic Rules on Evidence) Correspondence It is a communication by means of letters; or it may refer to the letters which pass between those who have friendly or business relations. (Reyes, 2017) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Letters; Messages; Telephone calls; Telegrams and the like. 186 Political Law 4. To Communicate the contents thereof, either verbally or in writing; or prohibited acts under R.A. No. 4200. (Ramirez v. CA, G.R. No. 93833, 28 Sept. 1995) 5. To furnish Transcriptions thereof, whether complete or partial, to any other person. Q: A has a telephone line with an extension. One day, A was talking to B over the telephone. A conspired with his friend C, who was at the end of the extension line listening to A's telephone conversation with B in order to overhear and tape-record the conversation wherein B confidentially admitted that with evident premeditation, he (B) killed D for having cheated him in their business partnership. Exceptions under the Anti-Wire Tapping Law Under Sec. 3 of R.A. No. 4200, a peace officer, who is authorized by a written order of the Court, may execute any of the acts declared to be unlawful in Sec. 1 and Sec. 2 of the said law in cases involving the crimes of: 1. 2. 3. 4. 5. 6. 7. 8. B was not aware that the telephone conversation was being tape-recorded. Treason; Espionage; Provoking war and disloyalty in case of war; Piracy and mutiny in the high seas; Rebellion (conspiracy and proposal and inciting to commit included); Sedition (conspiracy, inciting included) Kidnapping; and Violations of C.A. 616 (punishing espionage and other offenses against national security). In the criminal case against B for murder, is the tape-recorded conversation containing his admission admissible in evidence? A: NO. R.A. No. 4200 expressly makes such tape recordings inadmissible in evidence. The relevant provisions of R.A No. 4200 are as follows: Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a Dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise described. Q: Is the use of telephone extension a violation of R.A. 4200 (Anti-Wiretapping Law)? A: NO. The use of a telephone extension for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200 because a telephone extension devise was neither among those "devices or arrangements" enumerated therein. (Ramirez v. CA, G.R. No. 93833, 28 Sept. 1995) Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, or meaning of the same or any part thereof, or any information therein contained, obtained, or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. (Salcedo- Ortanez v. CA, G.R. No. 110662, 4 Aug. 1994) NOTE: Anti-Wiretapping Act only protects letters, messages, telephone calls, telegrams and the like. The substance of the conversation need not be specifically alleged in the information. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under the Anti-Wiretapping Act. NOTE: R.A. 4200 makes the tape-recording of a telephone conversation done without the authorization of all the parties to the conversation, inadmissible in evidence. In addition, the taping of the conversation violated the guarantee of privacy The law does not distinguish between a party to the private communication or a third person. Hence, both a party and a third person could be held liable under R.A. No. 4200 if they commit any of the 187 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights of communications enunciated in Section 3, Article III of the Constitution. The accused objects to the admission of the videotape recording on the ground that it was taken without his knowledge or consent, in violation of his right to privacy and the AntiWire Tapping law. Resolve the objection with reasons. (2010 BAR) Q: Ester S. Garcia, in a confrontation with Socorro Ramirez, allegedly vexed, insulted, and humiliated Ramirez in a "hostile and furious mood" and in a manner offensive to Ramirez’s dignity and personality. Ramirez then filed a civil case for damages against Garcia. In support of her claim, Ramirez produced a verbatim transcript of the event. The transcript on which the civil case was based was culled from a tape recording of the confrontation. A: OVERRULED. What the law prohibits is the overhearing, intercepting, and recording of private communications. Since the exchange of heated words was not private, its videotape recording is not prohibited (Navarro v. CA, G.R. No. 121087, 26 Aug. 1999) Q: Are letters of a husband’s paramour kept inside the husband’s drawer, presented by the wife in the proceeding for legal separation, admissible in evidence? As a result of Ramirez’s recording of the event, Garcia filed a criminal case for violation of R.A. No. 4200, alleging that the act of secretly taping the confrontation was illegal. Ramirez contends that the facts charged do not constitute an offense. Was there a violation of R.A. No. 4200? A: NO. 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: YES. The law is unambiguous in seeking to penalize even those privy to the private communications. Where the law makes no distinctions, one does not distinguish. 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. (Zulueta v. CA, G.R. No. 107383, Feb. 20, 1996) The nature of the conversations is immaterial to a violation of the statute. The substance of the same need not be specifically alleged in the information. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Sec. 1 of R.A. No. 4200. Q: Is a regulation mandating the opening of mail or correspondence of prisoners or detainees violative of the constitutional right to privacy? A: NO. The curtailment of certain rights is necessary to accommodate institutional needs and objectives of prison facilities, primarily internal security. However, if the letters are marked confidential communication between the detainees and their lawyers, the detention officials should not read the letters but only open the envelopes for inspection in the presence of the detainees. The phrase private communication in Sec. 1 of R.A. No. 4200 is broad enough to include verbal or nonverbal, written or expressive communications of meanings or thoughts which are likely to include the emotionally charged exchange between petitioner and private respondent, in the privacy of the latter's office. (Ramirez v. CA, G.R. No. 93833, 28 Sept. 1995) Q: In a criminal prosecution for murder, the prosecution presented, as witness, an employee of the Manila Hotel who produced in court a videotape recording showing the heated exchange between the accused and the victim that took place at the lobby of the hotel barely 30 minutes before the killing. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES A law is not needed before an executive officer may intrude into the rights of privacy of a detainee or a prisoner. By the very fact of their detention, they have diminished expectations of privacy rights. (Alejano v. Cabuay, G.R. No. 160792, 25 Aug. 2005) 188 Political Law the officer must not read them but only inspect them in the presence of detainees. A law is not needed before an executive officer may intrude into the rights of privacy of a detainee or a prisoner. By the very fact of their detention, they have diminished expectations of privacy rights. (Alejano v. Cabuay, G.R. No. 160792, 25 Aug. 2005) 2. INTRUSION, WHEN ALLOWED The Right to Privacy is not absolute 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. Q: The CSC Chairperson Karina ConstantinoDavid received a letter-complaint which said that an employee of the CSC was a lawyer of an accused government employee having a pending case in the said agency. Acting on the matter, she ordered the backing up of all files in the computers found in the Public Assistance and Liaison Division (PALD) of which Briccio Pollo was the Officer-in-Charge. Drafts of legal pleadings were found in Pollo’s computer. Thereafter, he was charged with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of R.A. No. 6713. On his part, Pollo attacks the backing up of his files as it was done without his knowledge and consent, thus infringing on his constitutional right to privacy. Is he correct? Succinctly put, the right of privacy cannot be invoked to 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. (Ayer Productions Pty. Ltd. v. Capulong, G.R. No. 82380, 29 Apr. 1988) NOTE: Probable cause in Sec. 2, Art. III of the 1987 Constitution should be followed for the court to allow intrusion. Particularity of description is needed for written correspondence, but if the intrusion is done through wiretaps and the like, there is no need to describe the content. However, identity of the person or persons whose communication is to be intercepted, and the offense or offenses sought to be prevented, and the period of the authorization given should be specified. A: NO. Public employers have an interest in ensuring that their agencies operate in an effective and efficient manner, and the work of these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other workrelated misfeasance of its employees. Indeed, in many cases, public employees are entrusted with tremendous responsibility, and the consequences of their misconduct or incompetence to both the agency and the public interest can be severe. In contrast to law enforcement officials, therefore, public employers are not enforcers of the criminal law; instead, public employers have a direct and overriding interest in ensuring that the work of the agency is conducted in a proper and efficient manner. A regulation mandating the opening of mail or correspondence of detainees is not violative of the constitutional Right to Privacy There is no longer a distinction between an inmate and a detainee with regard to the reasonable expectation of privacy inside his cell. The curtailment of certain rights is necessary to accommodate institutional needs and objectives of prison facilities, primarily internal security. As long as the letters are not confidential communication between the detainee and his lawyer the detention officials may read them. A probable cause requirement for searches of the type at issue here would impose intolerable burdens on public employers. The delay in correcting the employee misconduct caused by the need for probable cause rather than reasonable But if the letters are marked confidential communication between detainee and the lawyer, 189 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights suspicion will be translated into tangible and often irreparable damage to the agency's work, and ultimately to the public interest. This, however, does not mean that any Facebook user automatically has a protected expectation of privacy in all of his or her Facebook activities. Besides, Pollo failed to prove that he had an actual (subjective) expectation of privacy either in his office or government-issued computer which contained his personal files. He did not allege that he had a separate enclosed office which he did not share with anyone, or that his office was always locked and not open to other employees or visitors. Neither did he allege that he used passwords or adopted any means to prevent other employees from accessing his computer files. (Pollo v. Constantino-David, G.R. No. 181881, 18 Oct. 2011) Before one can have an expectation of privacy in his or her OSN activity, it is first necessary that said user, in this case the children of petitioners, manifest the intention to keep certain posts private, through the employment of measures to prevent access thereto or to limit its visibility. And this intention can materialize in cyberspace through the utilization of the OSN’s privacy tools. In other words, utilization of these privacy tools is the manifestation, in cyber world, of the user’s invocation of his or her right to informational privacy. The Cybercrime Law does not regard as crime private communications of sexual character between consenting adults 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 photo’s 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, 29 Sept. 2014) The deliberations of the Bicameral Committee of Congress on Sec.4(c)(i) of the law show a lack of intent to penalize a private showing between and among two private persons although that may be a form of obscenity to some. The understanding of those who drew up the cybercrime law is that the element of “engaging in a business” is necessary to constitute the crime of illegal cybersex. The Act actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and consideration. This includes interactive prostitution and pornography, e.g., by webcam. (Disini v. Secretary of Justice, G.R. No. 203335, 11 Feb. 2014) Right to Privacy in Social Media To address concerns about privacy, but without defeating its purpose, Facebook was armed with different privacy tools designed to regulate the accessibility of a user’s profile as well as information uploaded by the user. It is through the availability of said privacy tools that many Online Social Network (OSN) users are said to have a subjective expectation that only those to whom they grant access to their profile will view the information they post or upload thereto. 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 person’s expectation of privacy depends on a two-part test: 1. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 190 Whether, by his conduct, the individual has exhibited an expectation of privacy; and Political Law 2. and the printing of the contents of a tape” of an alleged wiretapped conversation involving the President about fixing votes in 2004 national elections. Can the DOJ Secretary use the AntiWiretapping act as a regulatory measure to prohibit the media from publishing the contents of the CD? This expectation is one that society recognizes as reasonable. (Ople v. Torres, G.R. No. 127685, 23 July 1998) Customs, community norms, and practices may, therefore, limit or extend an individual’s “reasonable expectation of privacy.” Hence, the reasonableness of a person’s expectation of privacy must be determined on a case-to-case basis since it depends on the factual circumstances surrounding the case. (Ople v. Torres, G.R. No. 127685, 23 July 1998) A: NO. The Court ruled that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. Q: Sps. Hing were owner of a parcel of land and Aldo Inc. constructed an auto-repair shop building on the adjacent lot. Aldo filed a case for injunction and damages claiming that the Sps. Hing were constructing a fence without valid permit and that the construction would destroy their building. The case was dismissed for failure of Aldo to substantiate its allegations. Aldo Inc. then installed two cameras on their building facing the property of the Sps. Hing. The spouses contend that the installation of the cameras was an invasion of their privacy. Is there a limitation on the installation of surveillance cameras? In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjusting whether to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. By all means, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. (Chavez v. Gonzales, G.R. No. 168338, 15 Feb. 2008) A: YES. In this day and age, video surveillance cameras are installed practically everywhere for the protection and safety of everyone. The installation of these cameras, however, should not cover places where there is reasonable expectation of privacy, unless the consent of the individual, whose right to privacy would be affected, was obtained. Nor should these cameras be used to pry into the privacy of another’s residence or business office as it would be no different from eavesdropping, which is a crime under RA No. 4200 or the Anti-Wiretapping Law. (Sps. Hing v. Choachuy, G.R. No. 179736, 26 June 2013) 3. EXCLUSIONARY RULE Exclusionary rule (“The Fruit of the Poisonous Tree Doctrine”) This rule prohibits the issuance of general warrants that encourage law enforcers to go on fishing expeditions. Evidence obtained through unlawful seizures should be excluded as evidence because it is "the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures." It ensures that the fundamental rights to one’s person, houses, papers, and effects are not lightly infringed upon and are upheld. (People v. Romana, G.R. No. 200334, 30 July 2014) Q: DOJ Secretary Raul Gonzales warned that reporters who had copies of the compact disc (CD) and those broadcasting or publishing its contents could be held liable under the AntiWiretapping Act. Secretary Gonzales also ordered the NBI to go after media organizations “found to have caused the spread, the playing 191 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights Concept of Freedom of Speech and Expression GR: Any evidence obtained in violation of the Constitution shall be inadmissible for any purpose in any proceeding. (Sec. 3 (2), Art. III, 1987 Constitution) The right to freedom of expression applies to the entire continuum of speech from utterances made to conduct enacted, and even to inaction itself as a symbolic manner of communication. (The Diocese of Bacolod v. COMELEC, G.R. No. 205728, 21 Jan. 2015) XPNS: 1. 2. 3. In the absence of any governmental interference, the protection guaranteed by the Constitution cannot be invoked against the State; (People v. Marti, G.R. No. 81561, 18 Jan. 1991) It may be used in judicial or administrative action that may be filed against the erring officer; or (Cruz and Cruz, 2015) There is an express or implied waiver. Scope of protected freedom of expression under the Constitution 1. 2. 3. 4. 5. 6. NOTE: If the accused did not raise the issue of admissibility against him before arraignment, such omission constituted a waiver of protection. (People v. Exala, G.R. No. 76005, 23 Apr. 1993) Four aspects of freedom of speech and press: (Ce-Sub-A-C) Q: Can the exclusionary rule be applied as against private individuals who violate the right to privacy? A: YES. Although generally, the Bill of Rights can only be invoked against violations of the government, the Court has recognized an instance where it may also be applied as against a private individual. Letters of a husband’s paramour kept inside the husband’s drawer, presented by the wife in the proceeding for legal separation, is not admissible in evidence The reason is that marriage does not divest one of his/her right to privacy of communication. (Zulueta v. CA, G.R. No. 107383, 20 Feb. 1996) 1. Freedom from Censorship or prior restraint – see discussion on prior restraint. 2. Freedom from Subsequent punishment to publication – see discussion on subsequent punishment. 3. Freedom of Access to information regarding matters of public interest – Official papers, reports and documents, unless held confidential and secret by competent authority in the public interest, are public records. As such, they are open and subject to regulation, to the scrutiny of the inquiring reporter or editor. Information obtained confidentially may be printed without specification of the source; and that source is closed to official inquiry, unless the revelation is deemed by the courts, or by a House or committee of the Congress, to be vital to the security of the State. 4. Freedom of Circulation – Refers to the unhampered distribution of newspapers and other media among customers and among the general public. It may be interfered with in E. FREEDOM OF SPEECH AND EXPRESSION No law shall be passed abridging the freedom of speech, of expression, or of the press, or of the right of the people peaceably to assemble and petition the government for redress of grievances. (Sec. 4, Art. III, 1987 Constitution) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Freedom of speech; Freedom of the press; Right of assembly and to petition the government for redress of grievances; Right to form associations or societies not contrary to law; Freedom of religion; and Right to access to information on matters of public concern. 192 Political Law 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. (Diocese of Bacolod v COMELEC, G.R. No. 205728, 21 Jan. 2015) several ways. The most important of these is censorship. Other ways include requiring a permit or license for the distribution of media and penalizing dissemination of copies made without it, and requiring the payment of a fee or tax, imposed either on the publisher or on the distributor, with the intent to limit or restrict circulation. These modes of interfering with the freedom to circulate have been constantly stricken down as unreasonable limitations on press freedom. (Chavez v. Gonzales G.R. No. 168338, 15 Feb. 2008) (2014 BAR) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. (Eastern Broadcasting Corporation v. Dans, G.R. No. L-59329, 19 July 1985) Purposes of Free Speech Doctrines NOTE: There need not be total suppression; even restriction of circulation constitutes censorship. The Constitution provides that “sovereignty resides in the people” who manifest it regularly through their suffrages and, more frequently and generally, by the assertion of their freedom of expression. This sovereignty would be negated if they were denied the opportunity to participate in the shaping of public affairs through the arbitrary imposition upon them of the ban of silence. (Cruz, 2015) Political Speech Political speech is one of the most important expressions protected by the fundamental law and have to be protected at all costs for the sake of democracy. (GMA Network v. COMELEC, G.R. No. 205357, 02 Sept. 2014) Balance Between Unbridled Expression and Liberty Political speech is motivated by the desire to be heard and understood, to move people to action. It is concerned with the sovereign right to change the contours of power whether through the election of representatives in a republican government or the revision of the basic text of the Constitution. We evaluate restrictions on freedom of expression from their effects. We protect both speech and medium because the quality of this freedom in practice will define the quality of deliberation in our democratic society. (Diocese of Bacolod v. COMELEC, G. R. No. 205728, 21 Jan. 2015) Freedom to express a person’s sentiments and belief does not grant one the license to nullify the honor and integrity of another. Any sentiment must be expressed within the proper forum and with proper regard for the right of others. (Soriano v. Laguardia, G.R. 164785, 15 Mar. 2010) Q: Social Weather Station (SWS) questions COMELEC Resolution 9674 requiring them to disclose the names of commissioners and/or payors of election surveys on the ground that it is a curtailment of free speech. Decide. Continuum of Thought, Speech, Expression, and Speech Acts A: SWS is wrong. The names of those who commission or pay for election surveys, including subscribers of survey firms, must be disclosed pursuant to Sec. 5.2(a) of the Fair Election 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. Sec. 5.2(a)’s requirement of disclosing subscribers neither curtails petitioners’ Speech is not limited to vocal communication. Conduct is treated as a form of speech sometimes referred to as ‘symbolic speech,’" such that "‘when ‘speech’ and ‘nonspeech’ 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. 193 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights of candidates and political parties to communicate their ideas, philosophies, platforms and programs of government. This is specially so in the absence of a clear-cut basis for the imposition of such a prohibitive measure. In this particular instance, what the COMELEC has done is analogous to letting a bird fly after one has clipped its wings. free speech rights nor violates the constitutional proscription against the impairment of contracts. Concededly, what are involved here are not election propaganda per se. Election surveys, on their face, do not state or allude to preferred candidates. 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. Hence, Section 5.2 of the Fair Election Act’s regulation of published surveys. It is also particularly unreasonable and whimsical to adopt the aggregate-based time limits on broadcast time when we consider that the Philippines is not only composed of so many islands. There are also a lot of languages and dialects spoken among the citizens across the country. Accordingly, for a national candidate to really reach out to as many of the electorates as possible, then it might also be necessary that he conveys his message through his advertisements in languages and dialects that the people may more readily understand and relate to. To add all of these airtimes in different dialects would greatly hamper the ability of such candidate to express himself – a form of suppression of his political speech. While it does regulate expression (i.e., petitioners’ publication of election surveys), it 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. (Social Weather Station v. COMELEC, G.R. No. 208062, 07 Apr. 2015) COMELEC itself states that “television is arguably the most cost-effective medium of dissemination. Even a slight increase in television exposure can significantly boost a candidate's popularity, name recall and electability.” If that be so, then drastically curtailing the ability of a candidate to effectively reach out to the electorate would unjustifiably curtail his freedom to speak as a means of connecting with the people. Q: COMELEC Resolution No. 9615 deviated from the previous COMELEC resolutions relative to the airtime limitations on political advertisements. It computes the airtime on an aggregate basis involving all the media of broadcast communications compared to the past where it was done on a per station basis. The result of which is the reduction of the allowable minutes within which candidates and political parties would be able to campaign through the air. Did COMELEC commit grave abuse of discretion in issuing said resolution? Finally, on this matter, it is pertinent to quote what Justice Black wrote in his concurring opinion in the landmark Pentagon Papers case: “In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.” (GMA Network v. COMELEC, G.R. No. 205357, September 2, 2014) A: YES. The assailed rule on “aggregate-based” airtime limits is unreasonable and arbitrary as it unduly restricts and constrains the ability of candidates and political parties to reach out and communicate with the people. Here, the adverted reason for imposing the “aggregate-based” airtime limits – leveling the playing field – does not constitute a compelling state interest which would justify such a substantial restriction on the freedom UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 194 Political Law 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, 15 Feb. 2008) Q: Members of the faculty of the University of the Philippines College of Law published a statement on the allegations of plagiarism and misrepresentation relative to a certain Court’s decision. Essentially, the faculty calls for the resignation of Justice Mario Pascual in the face of allegations of plagiarism in his work. Does this act of the faculty members squarely fall under the freedom of speech and expression? A: NO. The publication of a statement by the faculty of the University of the Philippines College regarding the allegations of plagiarism and misrepresentation in the Supreme Court was totally unnecessary, uncalled for and a rash act of misplaced vigilance. While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic society, there is also a general consensus that healthy criticism only goes so far. Many types of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially devastating attacks and unjust criticism can threaten the independence of the judiciary. (Re: Letter of the UP Law Faculty entitled “Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court.”, A.M. No. 10-10-4-SC, 08 Mar. 2011) Exceptions to the prohibition of prior restraint (P-F-A-D) 1. 2. 3. 4. Pornography; False or Misleading Advertisement; Advocacy of Imminent Lawless Actions; and Danger to National Security. (Soriano v. Laguardia, G.R. No. 165636, 2 Apr. 2009) Near v. Minnesota, 283 US 697 (1931) adds the following to the enumeration: 1. PRIOR RESTRAINT AND SUBSEQUENT PUNISHMENT It refers to the official government restrictions on the press or other forms of expression in advance of actual publication or dissemination. (Bernas, 2006) 1. 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; 2. The primary requirements of decency may be enforced against obscene publications; and 3. The security of community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. Provisions of the Revised Penal Code on Libel and the Provision of the Cyber Crime Law on Cyber Libel are Constitutional NOTE: There need not be total suppression. 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. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Libel is not a constitutionally protected speech and that the government has an obligation to protect private individuals from defamation. Indeed, cyber libel is actually not a new crime since Art. 353, in relation to Art. 355 of the penal code, already punishes it. In effect, Sec. 4(c)(4) merely affirms that online defamation constitutes “similar means” for committing libel. Furthermore, the United 195 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights Nations Human Rights Committee did not actually enjoin the Philippines to decriminalize libel. It simply suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of expression. Free speech is not absolute. It is subject to certain restrictions, as may be necessary and as may be provided by law. (Disini v. Secretary of Justice, G.R. No. 203335, 11 Feb. 2014) Permissible Q: Nestor posted on Facebook that Juan Dela Cruz, a married person, has an illicit affair with Maria. Dexter liked this post and commented: “Yes! This is true! What an immoral thing to do?!” This post was likewise liked by 23 people. Juan Dela Cruz filed a case for online libel against Nestor, Dexter and 23 other people who liked the post using as his basis Sec. 5 of the Cybercrime law which penalizes any person who willfully abets or aids in the commission of any of the offenses enumerated in the said law. Is this provision of the law constitutional? NOTE: In her dissenting and concurring opinion, Chief Justice Maria Lourdes Sereno posits that the ponencia correctly holds that libel is not a constitutionally protected conduct. It is also correct in holding that, generally, penal statutes cannot be invalidated on the ground that they produce a “chilling effect,” since by their very nature, they are intended to have an in terrorem effect (benign chilling effect) to prevent a repetition of the offense and to deter criminality. The “chilling effect” is therefore equated with and justified by the intended in terrorem effect of penal provisions. A: NO. Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of internet users because of its obvious chilling effect on the freedom of expression, especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out, formal crimes such as libel are not punishable unless consummated. In the absence of legislation tracing the interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand scrutiny. (Disini v. Secretary of Justice, G.R. No. 203335, 11 Feb 2014) Thus, when Congress enacts a penal law affecting free speech and accordingly imposes a penalty that is so discouraging that it effectively creates an “invidious chilling effect,” thus impeding the exercise of speech and expression altogether, then there is a ground to invalidate the law. In this instance, it will be seen that the penalty provided has gone beyond the in terrorem effect needed to deter crimes and has thus reached the point of encroachment upon a preferred constitutional right. Freedom from subsequent punishment Two kinds of chilling effect BENIGN CHILLING EFFECT May be caused by penal statutes which are intended to have an in terrorem effect to prevent a repetition of the offense and to deter criminality. The chilling effect is equated with and justified by the intended in terrorem effect of penal provisions. A limitation on the power of the State from imposing a punishment after publication or dissemination. Without this assurance, the individual would hesitate to speak for fear that he might be held to account for his speech, or that he might be provoking the vengeance of the officials he may have criticized. (Nachura, 2014) INVIDIOUS CHILLING EFFECT May be caused by penal laws affecting free speech and accordingly imposes a penalty that is so discouraging thus impeding the exercise of speech and expression altogether. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Not Permissible This second basic prohibition of the free speech and press clause prohibits systems of subsequent punishment which have the effect of unduly curtailing expression. NOTE: Freedom from subsequent punishment is not absolute; it may be properly regulated in the 196 Political Law established facts; it is immaterial whether the opinion happens to be mistaken, as long as it might reasonably be inferred from facts. (Borjal v. CA, G.R. No. 126466, 14 Jan. 1999) interest of the public. The State may validly impose penal and/or administrative sanctions such as in the following: 1. Libel – A public and malicious imputation of a crime, vice or defect, real or imaginary or any act omission, status tending to cause dishonor, discredit or contempt of a natural or judicial person, or blacken the memory of one who is dead. (Art 353, RPC) 2. Obscenity – The determination of what is obscene is a judicial function. (Pita v. CA, G.R. No. 80806, 05 Oct. 1989) 3. Criticism of Official Conduct – In New York Times v. Sullivan, 376 US 254, March 9, 1964, the constitutional guarantee requires a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice. 4. Freedom of the Press The guaranty of freedom to speak is useless without the ability to communicate and disseminate what is said. And where there is a need to reach a large audience, the need to access the means and media for such dissemination becomes critical. This is where the press and broadcast media come along. In the ultimate analysis, when the press is silenced, or otherwise muffled in its undertaking of acting as a sounding board, the people ultimately would be the victims. (GMA Network v. COMELEC, G.R. No. 205357, 02 Sept. 2014) Q: A national daily newspaper carried an exclusive report stating that Senator Bal Bass received a house and lot located at YY Street, Makati, in consideration for his vote to cut cigarette taxes by 50%. The Senator sued the newspaper, its reporter, editor and publisher for libel, claiming the report was completely false and malicious. According to the Senator, there is no YY Street in Makati, and the tax cut was only 20%. He claimed one million pesos in damages. The defendants denied "actual malice," claiming privileged communication and absolute freedom of the press to report on public officials and matters of public concern. If there was any error, the newspaper said it would publish the correction promptly. Are the defendants liable for damages? Rights of students to free speech in school premises are not absolute – The school cannot suspend or expel a student solely on the basis of the articles he has written except when such article materially disrupts class work or involves substantial disorder or invasion of rights of others. (Miriam College Foundation v. CA, G.R. 127930, 15 Dec. 2000) Doctrine of Fair Comment GR: Every discreditable public imputation is false because every man is presumed innocent, thus, every false imputation is deemed malicious, hence, actionable. A: NO. Since Senator Bal Bass is a public person and the questioned imputation is directed against him in his public capacity, in this case actual malice means the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not. Since there is no proof that the report was published with knowledge that it is false or with reckless disregard of whether it was false or not, the defendants are not liable for damages. (Borjal v. CA, G.R. No. 126466, 14 Jan. 1999) XPN: When the discreditable imputation is directed against a public person in his public capacity, such is not necessarily actionable. NOTE: For it to be actionable, it must be shown that either there is a false allegation of fact or comment based on a false supposition. XPN to the XPN: If the comment is an expression of opinion, based on 197 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights Contained in the Columns of Mr. Amado P. Macasaet, A.M. No. 07-09-13-SC, 08 Aug. 2008) NOTE: The Borjal doctrine is not applicable in a case where the allegations against a public official were false, and no effort was exerted to verify the information before publishing his articles. 2. CONTENT-BASED AND CONTENT-NEUTRAL REGULATIONS Types of Privileged Communications 1. CONTENT-BASED CONTENT-NEUTRAL REGULATION REGULATION As to Definition Merely concerned The restriction is based with the incidents of on the subject matter of the speech, or one that the utterance or speech. merely controls the The cast of the time, place or manner, restriction determines and under wellthe test by which the defined standards. challenged act is assailed with. This answers questions such as This answers the WHEN/WHERE can question of WHAT is the speech be the content of the delivered. speech to be regulated. Absolutely Privileged – those which are not actionable even if the actor acted in bad faith e.g.: Art. VI, Sec 11, of the 1987 Constitution, which exempts a member of Congress from liability of any speech or debate in the Congress or in any Committee thereof. 2. Qualifiedly Privileged - defamatory imputations are not actionable unless found to have been made without good intention or justifiable motive. To this genre belong “private communications” and “fair and true report without any comments or remarks.” (Borjal v. CA, G.R. No. 126466, 14 Jan. 1999) As to Presumption of Unconstitutionality There is a presumption There is no of unconstitutionality presumption of which the State has to unconstitutionality. overcome. As to Presence of Chilling Effect Does not produce Produces chilling effect chilling effect As to Requisites for Validity To be valid, it must: Q: Wincy Diez penned several articles in Malaya newspaper regarding alleged bribery incidents in the Supreme Court and characterizing the justices as “thieves” and “a basket of rotten apples.” The Court En Banc required Wincy to explain why no sanction should be imposed on her for indirect contempt of court. Did the order of the Court violate freedom of the press? 1. be subjected to Strict Scrutiny approach in judicial review. A: NO. While freedom of speech, of expression and of the press are at the core of civil liberties and have to be protected at all costs for the sake of democracy, these freedoms are not absolute. For, if left unbridled, they have the tendency to be abused and can translate to licenses, which could lead to disorder and anarchy. Erika crossed the line, as hers are baseless scurrilous attacks which demonstrate nothing but an abuse of press freedom. They leave no redeeming value in furtherance of freedom of the press. They do nothing but damage the integrity of the High Court, undermine the faith and confidence of the people in the judiciary, and threaten the doctrine of judicial independence. (In Re: Allegations UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 2. pass the Clear and Present Danger Test; 3. Pass the Void-forVagueness test; and 4.be justified by a compelling interest. (Chavez v. Gonzales, G.R. 198 To be valid, it must: 1. be subjected to Intermediate Scrutiny approach in judicial review. Political Law No. 168338, 15 Feb, 2008) 3. FACIAL CHALLENGES AND OVERBREADTH DOCTRINE Q: As part of the Catholic Church’s opposition to the Reproductive Health Law, the Diocese of Bacolod put up a 6’ by 10’ feet tarpaulin with the heading “Conscience Vote”, identifying the candidates who voted for (Team Patay) or against the law (Team Buhay). The COMELEC advised the Diocese to pull down the same since it is beyond the maximum size of 2’ by 3’ feet. The Church refused, alleging that the regulation is against their freedom of expression. COMELEC argue that the tarpaulin is election propaganda as it endorsed candidates who voted against the RH Law and rejected those who voted for it. As such, it is subject to regulation by COMELEC under its constitutional mandate. Also, it avers that the regulation is content-based. Are the contentions of COMELEC proper? Facial Challenge (2015 BAR) A challenge to a statute in court, in which the plaintiff alleges that the legislation is always, and under all circumstances, unconstitutional, and therefore void. 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 “[w]hen 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 narrow specifity.” (Estrada v. Sandiganbayan, G.R. 148560, 19 Nov. 2001) A: NO. While the tarpaulin may influence the success or failure of the named candidates and political parties, this does not necessarily mean it is an election propaganda. The tarpaulin was not paid for or posted "in return for consideration" by any candidate, political party, or party-list group. Facial Challenge vs. “As-applied” Challenge 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. Content-based regulation bears a heavy presumption of invalidity, and is measured against the clear and present danger rule. Even with the clear and present danger test, COMELEC failed to justify the regulation. There is no compelling and substantial state interest endangered by the posting of the tarpaulins to justify curtailment of the right of freedom of expression. The size of the tarpaulin does not affect anyone else’s constitutional rights. (Diocese of Bacolod v. COMELEC, G.R. No. 205728, 21 Jan. 2015) 199 FACIAL CHALLENGE “AS-APPLIED” CHALLENGE 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. Considers only extant facts affecting real litigants (Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, 05 Oct. 2010) UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights Moreover, challengers to a law are not permitted to raise the rights of the third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute “on its face,” not merely “as applied for” so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. Q: Is facial challenge to a penal statute allowed? A: NO. Facial challenges are not allowed in penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. (KMU v. Ermita, G.R. No. 178554, 05 Oct. 2010) The factor that motivates court to depart from the normal adjudicatory rules is the concern with the “chilling,” deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad law’s “very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties. (Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, 05 Oct. 2010) NOTE: A litigant cannot thus successfully mount a facial challenge against a criminal statute on either vagueness or overbreadth grounds. The rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. (Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, 05 Oct. 2010) Overbreadth Doctrine (2010, 2014 BAR) 4. TESTS TO DETERMINE THE VALIDITY OF GOVERNMENTAL REGULATION The overbreadth doctrine decrees that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. (Southern Hemisphere Engagement Network, Inc. v. AntiTerrorism Council, G.R. No. 178552, 05 Oct. 2010) Clear and Present Danger Test (2014 BAR) 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. Prior restraint on speech based on its content cannot be justified by hypothetical fears, but only by showing a substantive and imminent evil that has taken the life of a reality already on ground. (Iglesia ni Cristo v. CA, G.R. No. 119673, 26 July 1996) NOTE: The application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases. The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. As formulated, 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, 03 Mar. 1919) Ordinarily, a particular litigant claim that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case-to-case basis. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES The regulation which restricts the speech content must also serve an important or substantial 200 Political Law (Gonzales v. COMELEC, G.R. No. L-27833, 18 Apr. 1969) government interest, which is unrelated to the suppression of free expression. (Chavez v. Gonzales, G.R. No. 168338, 15 Feb. 2008) Q: Can an offensive and obscene language uttered in a prime-time television broadcast which was easily accessible to the children be reasonably curtailed and validly restrained? 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. (Schenck v. United States, 249 U.S. 47, 03 Mar. 1919) A: YES. The government’s interest to protect and promote the interests and welfare of the children adequately buttresses the reasonable curtailment and valid restraint on petitioner’s prayer to continue as program host of Ang Dating Daan during the suspension period. Soriano’s offensive and obscene language uttered on primetime television broadcast, without doubt, was easily accessible to the children. (Soriano v. MTRCB, G.R. No. 165636, 29 Apr. 2009) In the U.S., the current understanding of Clear and Present Danger Doctrine was laid down in a 1969 case wherein it was held that speech is punishable only when it is directed to inciting or producing imminent lawless action, and when it is likely to incite or produce such action. (Brandenburg v. Ohio, 395 U.S. 447, 27 Feb. 1969; Defensor-Santiago, 2016) NOTE: The test can be applied with regard to the Freedom of Religion when what is involved is religious speech as this is often used in cases of freedom of expression. His statements could have exposed children to a language that is unacceptable in everyday use. As such, the welfare of children and the State’s mandate to protect and care for them, as parens patriae, constitute a substantial and compelling government interest in regulating Soriano’s utterances in TV broadcast. Dangerous Tendency Test Question: Whether the speech restrained has a rational tendency to create the danger apprehended, be it far or remote, thus government restriction would then be allowed. It is not necessary though that evil is actually created for mere tendency towards the evil is enough. NOTE: In his dissenting opinion, Justice Carpio cited Action for Children's Television v. FCC which establishes the safe harbor period to be from 10:00 in the evening to 6:00 in the morning, when the number of children in the audience is at a minimum. In effect, between the hours of 10:00 p.m. and 6:00 a.m., the broadcasting of material considered indecent is permitted. Between the hours of 6:00 a.m. and 10:00 p.m., the broadcast of any indecent material may be sanctioned. Emphasis: Nature of the circumstances under which the speech is uttered, though the speech per se may not be dangerous. Balancing of Interest Test 5. STATE REGULATION OF DIFFERENT TYPES OF MASS MEDIA Question: Which of the two conflicting interests (not involving national security crimes) demands the greater protection under the particular circumstances presented: 1. 2. Live Media Coverage of Court Proceedings The propriety of granting or denying permission to the media to broadcast, record, or photograph court proceedings involves weighing the constitutional guarantees of freedom of the press, the right of the public to information and the right to public trial, on the one hand, and on the other hand, the due process When particular conduct is regulated in the interest of public order; and The regulation results in an indirect, conditional and partial abridgement of speech. 201 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights rights of the defendant and the inherent and constitutional power of the courts to control their proceedings in order to permit the fair and impartial administration of justice. nor inflicts upon the accused inhuman physical harm or torture that is shocking to the conscience and is freedom of the press. Should live broadcast of the trial be disallowed? Collaterally, it also raises issues in the nature of media, particularly television and its role in society, and of the impact of new technologies on law. Video footage of court hearings for news purposes shall be restricted and limited to shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of official proceedings. No video shots or photographs shall be permitted during the trial proper. A: NO. The Court is now disallowing live media broadcast of the trial of “Maguindanao massacre” cases but is still allowing the filming of the proceedings for (1) the real-time transmission to specified viewing areas, and (2) documentation. While the Court recognizes the freedom of press and the right to public information, the constitutional rights of the accused provide more than ample justification to take a second look at the view that a camera that broadcasts the proceedings live on television has no place in a criminal trial because of its prejudicial effects on the rights of accused individuals. As previously held, the live coverage of judicial proceedings involved an inherent denial of due process. An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secret conclaves of long-ago. In this case that has achieved notoriety and sensational status, a greater degree of care is required to safeguard the constitutional rights of the accused. To be in the best position to weigh the conflicting testimonies of the witnesses, the judge must not be affected by any outside force or influence. Like any human being, however, a judge is not immune from the pervasive effects of media. A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with proper decorum and observe the trial process. (Secretary of Justice v. Estrada, A.M. No. 01-4-03-SC, 13 Sept. 2001) Q: In 2011, the Supreme Court promulgated a Resolution partially granting pro hac vice the request for live broadcast by television and radio of the trial court proceedings of the “Maguindanao massacre” cases, subject to specific guidelines set forth in said Resolution. Accused Andal Ampatuan, Jr. filed a Motion for Reconsideration alleging that the Resolution “deprives him of his rights to due process, equal protection, presumption of innocence, and to be shielded from degrading psychological punishment.” Ampatuan contends that the Court should accord more vigilance because the immense publicity and adverse public opinion which live media coverage can produce would affect everyone, including the judge, witnesses, and the families of all concerned parties. The OSG, however, contends that the coverage by live media neither constitutes a barbarous act UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES In a constitutional sense, public trial is not synonymous with publicized trial. The right to a public trial belongs to the accused. The accused’s right to a public trial should not be confused with the freedom of the press and the public’s right to know as a justification for allowing the live broadcast of the trial (In Re: Petition for Radio and TV Coverage of the Multiple Murder Cases against Zaldy Ampatuan, A.M. No. 10-11-5-SC, 14 June. 2011). 6. UNPROTECTED SPEECH In general, unprotected speech refers to utterances which involve no essential part of any exposition of ideas and are of such slight social value as a step of truth that any benefit that may be derived from them is clearly outweighed by the social interest in 202 Political Law This means that since they are of little to no value, there is no need to invoke any test to determine whether it should be protected by the Constitution. (Bernas, 1996) Pornography, on the other hand, refers to any representation, whether visual, audio, or written combination thereof, by electronic, mechanical, digital, optical, magnetic or any other means, of child engaged or involved in real or simulated explicit sexual activities. (Sec. 3, R.A. No. 9775 or the Anti-Child Pornography Act of 2009) Some of these unprotected speeches include: False or Misleading Advertisement 1. 2. 3. 4. 5. One of the main issues in Pharmaceutical and Health Care Association v. Duque III was whether the Department of Health went beyond its power when it included in its Revised Implementing Rules and Regulations (RIRR) of the Milk Code, a total ban on advertising breastmilk substitutes. Such ban ran afoul with the Milk Code which did not impose such ban, but merely a regulation by an Inter-Agency Committee on any advertisement featuring a milk product. The Supreme Court ultimately held that the overarching ban was unconstitutional. order and morality. (Chaplinsky v. New Hampshire, 315 U.S. 568, 08 Mar. 1942) Obscenity/pornography; False or misleading Advertisement; Advocacy of imminent lawless actions; Expression endangering national security; and Illegal or immoral activities prejudicial to the welfare of children (Soriano v. Laguardia, G.R. No. 164785, 29 Apr. 2009) Obscenity/Pornography The case of Miller v. California, established basic guidelines, to wit: (A-PO-L) a. b. c. In his separate concurring opinion in the same case, Chief Justice Puno proffered another view why the ban was indeed unconstitutional. Firstly, he established that advertisement and promotion of breastmilk substitutes properly fall within the ambit of the term commercial speech – that is, speech that proposes an economic transaction, which nonetheless is entitled to protection by the Constitution. He then referenced the four-part analysis of evaluating validity of regulations of commercial speech laid down in the U.S. case of Central Hudson Gas & Electric v. Public Service Commission: Whether the Average person, applying contemporary standards, would find that the work, taken as a whole, appeals to the prurient interest; Whether the work depicts or describes, in a Patently Offensive way, sexual conduct specifically defined by the application state law; and Whether the work, taken as a whole, Lacks serious literary, artistic, political or scientific value. 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. What remains clear is that obscenity is an issue for judicial determination and should be treated on a case-to-case basis, and on the judge’s sound discretion. 1. 2. 3. There is much difficulty in formulating a perfect definition of “obscenity” that shall apply in all cases. As such, obscenity is an issue proper for judicial determination and should be treated on a case-tocase basis and on the judge’s sound discretion, applying the test laid down in Miller (Fernando v. CA, G.R. No. 159751, 06 Dec. 2006) 4. 203 The advertisement must not be unlawful or inaccurate; The Government has a substantial interest to protect; The regulation directly advances that interest; and The regulation is not more than extensive than is necessary to protect that interest. (Pharmaceutical and Health Care Association v. Duque III, G.R. No. 173034, 09 Oct. 2007; Central Hudson Gas & Electric Corp v. Public Service Commission of N.Y., 447 US 557, 20 June 1980) UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights For the sake of determining whether commercial speech is protected, it must pass the first measure above, i.e., it the advertisement must not be unlawful or inaccurate. Otherwise, such advertisement will be unprotected speech which the Government may validly restrict or suppress. words, the Court likewise held, do not afford protection by the Constitution. (Soriano v. Laguardia, G.R. No. 165636, 29 Apr. 2009) Advocacy of Imminent Lawless Actions and Expression Endangering national security It should be exercised within the bounds of laws enacted for the promotion of social interests and the protection of other equally important individual rights such as: Limitations on freedom of expression (2014 BAR) Another form of unprotected speech includes those that advocate of imminent lawless action, and danger to national security. 1. Petitioner sought to compel respondents to allow the reopening of the former’s radio station, which was summarily closed on the grounds of national security for allegedly inciting the public to commit acts of sedition. While the case eventually became moot and was dismissed, the Supreme Court nonetheless said that in applying the Clear and Present Danger Test in broadcast media, the Government or the media industry itself must be thoughtful and intelligent in determining whether a broadcast indeed poses any threat to national security, for all forms of media are entitled to broad protection of the freedom of expression clause. This is notwithstanding the fact that broadcast media is somewhat lesser in scope than the freedom accorded to newspaper and print media. (Soriano v. Laguardia, G.R. No. 165636, 29 Apr. 2009; Eastern Broadcasting Corp. v. Dans, G.R. No. L-59329, 19 Jul. 1985) 2. 3. 4. 5. 6. 7. 8. F. FREEDOM OF RELIGION Religion in the Constitution 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. (Sec. 5, Art. III, 1987 Constitution) Illegal or immoral activities prejudicial to the welfare of children This is a relatively new addition to the list of unprotected speech in this Jurisdiction which was added in Soriano v. Laguardia. In that case, the MTRCB imposed a suspension of Petitioner’s program Ang Dating Daan wherein Petitioner, as host of the program, uttered some vulgar and indecent words. The program, it will be noted, was Rated G or for general viewership. Because of this, the Supreme Court upheld the MTRCB Suspension since at the time when the said words were uttered, children might have heard and learned such were, thus prejudicial to their general well-being. The UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Laws against obscenity, libel and slander (contrary to public policy); Right to privacy of an individual; Right of state/government to be protected from seditious attacks; Legislative immunities; Fraudulent matters; Advocacy of imminent lawless conducts; Fighting words; and Guarantee implies only the right to reach a willing audience but not the right to compel others to listen, see or read. Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. (Sec. 28(3), Art. VI, 1987 Constitution) 204 Political Law composite strength, against the individual's right to worship. (Engel v. Vitale, 370 U.S. 421, 1962) 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. (Sec. 29(2), Art. VI, 1987 Constitution) Q: What is a purely ecclesiastical affair to which the State cannot meddle? A: An ecclesiastical affair is “one that concerns doctrine, creed, or form of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of the membership, and the power of excluding from such associations those deemed not worthy of membership.” Based on this definition, an ecclesiastical affair involves the relationship between the church and its members on matters of faith, religious doctrines, worship and governance of the congregation. To be concrete, examples of this so-called ecclesiastical affairs to which the State cannot meddle are proceedings for excommunication, ordinations of religious ministers, administration of sacraments and other activities with attached religious significance. (Pastor Dionisio V. Austria v. NLRC, G.R. No. 124382, 16 Aug. 1999) Concept of Religion Religion is a profession of faith to an active power that binds and elevates man to his creator. (Aglipay v. Ruiz, G.R. No. L-45459, 13 Mar. 1937) In the context of the constitutional provision, religion also includes a rejection of religion, a refusal to believe in a hereafter or in the supremacy of a supernatural person with powers over life and death. (Cruz, 2016) Guarantees contained in Sec. 5 Art. III of the 1987 Constitution (1996, 1997, 1998, 2003, 2009, 2012 BAR) 1. 2. Q: Petitioner is a religious minister of the Seventh Day Adventist (SDA). He was dismissed because of alleged misappropriation of denominational funds, willful breach of trust, serious misconduct, gross and habitual neglect of duties and commission of an offense against the person of his employer’s duly authorized representative. He filed an illegal termination case against the SDA before the labor arbiter. The SDA filed a motion to dismiss invoking the doctrine of separation of Church and State. Should the motion be granted? Non-establishment clause; and Free exercise clause. Doctrine of Separation of Church and the State The idea is to delineate the boundaries between the two institutions and thus avoid encroachments by one against the other because of misunderstanding of the limits of their respective exclusive jurisdictions. The demarcation line calls on the entities to "render therefor unto Ceasar the things that are Ceasar’s and unto God the things that are God’s.” (Cruz and Cruz, 2015) A: NO. Where what is involved is the relationship of the church as an employer and the minister as an employee and has no relation whatsoever with the practice of faith, worship or doctrines of the church, i.e., the minister was not excommunicated or expelled from the membership of the congregation but was terminated from employment, it is a purely secular affair. Consequently, the suit may not be dismissed invoking the doctrine of separation of church and the state. (Pastor Dionisio V. Austria v. NLRC, G.R. No. 124382, 16 Aug. 1999) It is not only the State that is prohibited from interfering in purely ecclesiastical affairs; the Church is likewise barred from meddling in pure secular matters. And the reason is that a union of the Church and State "tends to destroy government and to degrade religion." It is also likely to result in a conspiracy, well-nigh irresistible because of its 205 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights A: YES. The enforcement of the 2010 CHED Memorandum is compellable by writ of mandamus. Mandamus is employed to compel the performance of a ministerial duty by a tribunal, board, officer, or person. A plain reading of the memorandum reveals the ministerial nature of the duty imposed upon HEIs. Its policy is crystal clear: a student's religious obligations take precedence over his academic responsibilities, consonant with the constitutional guarantee of free exercise and enjoyment of religious worship. Accordingly, the CHED imposed a positive duty on all HEIs to exempt students, as well as faculty members, from academic activities in case such activities interfere with their religious obligations. Clearly, under the 2010 CHED Memorandum, HEIs do not possess absolute discretion to grant or deny requests for exemption of affected students. 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. (Bernas., 2011) The non-establishment clause means that the State cannot set up a church, nor pass laws which aid religion or prefer one religion over the another, nor force nor influence a person to go or remain away from church against his will or force him to profess a belief or disbelief in any religion, etc. In Engel v. Vitale, known as the “School Prayer Case”, the recitation by the students in public school in New York of a prayer composed by the Board of Regents was held unconstitutional. (Nachura, 2015) The government is neutral Instead, the memorandum only imposes minimum standards should HEIs decide to require remedial work. (Denmark S. Valmores v. Dr. Cristina Achacoso and Dr. Giovanni Cabildo, G.R. No. 217453, 19 July 2017, J. Caguioa) While protecting all, it prefers no one, and it disparages none. All here applies both to the believer and non-believer. Freedom of religion includes freedom from religion; the right to worship includes the right not to worship. (Imbong v. Ochoa, G.R. No. 204819, 08 Apr. 2014) 1. NON-ESTABLISHMENT AND FREE EXERCISE CLAUSES Q: Denmark S. Valmores is a member of the Seventh-day Adventist Church, whose fundamental beliefs include the strict observance of the Sabbath as a sacred day. As such, he refrains from non-religious undertakings from sunset of Friday to sunset of Saturday. Prior to the instant controversy, Valmores was enrolled as a first-year student at the MSU-College of Medicine. However, in one instance, petitioner Valmores was unable to take his Histo-Pathology laboratory examination. Despite his request for exemption, no accommodation was given. As a result, Valmores received a failing grade of 5. Valmores seeks to enforce the 2010 CHED Memorandum. Notwithstanding the lapse of several months, no written or formal response was ever given by Achacoso. He then brings his cause before the Court and prayed for the issuance of a writ of mandamus against Achacoso. Will the petition prosper? UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES NON-ESTABLISHMENT CLAUSE No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof. (Sec. 5, Art. III, 1987 Constitution) The non-establishment clause means that the State cannot set up a church, nor pass laws which aid religion or prefer one religion over the another, nor force nor influence a person to go or remain away from church against his will or force him to profess a belief or disbelief in any religion, etc. In Engel v. Vitale, 370 U.S. 421, known as the “School Prayer Case”, the recitation by the students in public school in New York of a prayer composed by the Board of Regents was held unconstitutional. (Nachura, 2015) The Government is neutral While protecting all, it prefers no one, and it disparages none. All here applies both to the 206 Political Law which they could not conscientiously give to anyone or anything except God. (Ebralinag v. Division Superintendent of Schools of Cebu, G.R. No. 96770, 01 Mar. 1993) believer and non-believer. Freedom of religion includes freedom from religion; the right to worship includes the right not to worship. (Imbong v. Ochoa, G.R. No. 204819, 08 Apr. 2014) NOTE: The non-establishment clause means that the state should adopt a “position of neutrality” when it comes to religious matters. (Suarez, 2011) 3. The Court recognized that the observance of Ramadan as integral to the Islamic faith and allowed Muslim employees in the Judiciary to hold flexible office hours from 7:30 o'clock in the morning to 3:30 o'clock in the afternoon without any break during the period. (In Re: Request of Muslim Employees in the Different Courts in Iligan City, A.M. No. 02-2-10-SC, 14 Dec. 2005) 4. The Revised Administrative Code of 1987 has declared Maundy Thursday, Good Friday, and Christmas Day as regular holidays. 5. R.A. No. 9177 proclaimed the First Day of Shawwal, the tenth month of the Islamic Calendar, a national holiday for the observance of Eidul Fitr (the end of Ramadan). 6. R.A. No. 9849 declared the tenth day of Zhu/ Hijja, the twelfth month of the Islamic Calendar, a national holiday for the observance of Eidul Adha. 7. P.D. 1083 or the Code of Muslim Personal Laws of the Philippines, expressly allows a Filipino Muslim to have more than one (1) wife and exempts him from the crime of bigamy punishable under the RPC. It also allows Muslims to have divorce. Purpose of non-establishment clause: 1. 2. Protects voluntarism; and Insulation of political process from interfaith dissension. NOTE: Voluntarism, as a social value, 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. (Bernas, 2011) Accommodation Accommodations are government policies that take religion specifically into account not to promote the governments 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 persons or institutions religion. (Estrada v. Escritor, AM P-02-1651, 04 Aug. 2003) Examples of governmental accommodation 1. 2. The exemption of members of 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 affiliate with a labor organization. (Victoriano v. Elizalde Rope Workers Union, G.R. No. L-25246, 12 Sept. 1974) Constitutional provisions which express the non-establishment clause 1. The petitioners, who were members of the Jehovah's Witnesses, refused to salute the flag, sing the national anthem, and recite the patriotic pledge for it is their belief that those were acts of worship or religious devotion, 207 Art. VI, Sec. 29, “No public money/property given to religious sect or minister/religious personnel” (except for those assigned to army, penal institution, government orphanage and leprosarium). It has also been held that the aforecited constitutional provision "does not inhibit the use of public property for religious purposes when the religious character of such use is merely incidental to a temporary use UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights Exceptions to the non-establishment clause as held by jurisprudence: which is available indiscriminately to the public in general". (Re: Letter of Tony Q. Valenciano, Holding of Religious Rituals at the Hall of Justice Building in Quezon City, A.M. No. 10-4-19-SC, 07 Mar. 2017) 2. Separation of church and state is inviolable. (Sec. 6, Art. II, 1987 Constitution) 3. No religious sects can be registered as political parties. (Sec. 2(5), Art. IX(C), 1987 Constitution) 1. Government sponsorship of town fiestas, some purely religious traditions have now been considered as having acquired secular character; (Garces v. Estenzo, G.R. No. L-53487, 25 May 1981) 2. Postage stamps depicting Philippines as the venue of a significant religious event – benefit to the religious sect involved was merely incidental as the promotion of Philippines as a tourist destination was the primary objective; and (Aglipay v. Ruiz, G.R. No. L-45459, 13 Mar. 1937) 3. Exemption from zoning requirements to accommodate unique architectural features of religious buildings i.e. Mormon’s tall pointed steeple. (Martin v. Corporation of the Presiding Bishop, 434 Mass. 141, 16 May 2001) Constitutionally created exceptions to the nonestablishment clause 1. Prohibition on appropriation of public money or property for the use, benefit or support of any religion. (Sec. 29, Art. VI, 1987 Constitution) 2. Exemption from taxation of properties actually, directly and exclusively used for religious purposes. (Sec. 28 (3), Art. VI, 1987 Constitution) 3. Optional religious instruction in public elementary and high schools. (Sect. 3(3), Art. XIV, 1987 Constitution) The non-establishment clause states that the State CANNOT: NOTE: Religious instruction in public schools: a. At the option of parents/guardians expressed in writing; b. Within the regular class hours by instructors designated or approved by religious authorities of the religion to which the children belong; and c. Without additional costs to the government 4. Citizenship requirement of ownership of educational institutions, except those established by religious groups and mission boards. (Sec. 4(2), Art. XIV, 1987 Constitution) 5. Appropriation allowed where ecclesiastic is employed in armed forces, in a penal institution, or in a government-owned orphanage or leprosarium. (Sec. 29(2), Art. VI, 1987 Constitution) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 1. 2. Set up a church; Pass laws which aid one, all religions or prefer one over another; 3. Force or influence a person to go to or stay away from church against his will or force him to profess a belief or disbelief in any religion; 4. Punish a person for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance; 5. Collect tax in any amount, can be levied to support any religious activity or institution whatever they may adopt to teach or practice religion; 6. Openly or secretly participate in the affairs of any religious organization or group or vice versa. (Everson v. Board of Education, 330 U.S. 1, 10 Feb. 1947) FREE EXERCISE CLAUSE The Free Exercise Clause affords absolute protection to individual religious convictions. However, the government is able to regulate the 208 Political Law times, places, and manner of its exercise. (Cantwell v. Connecticut, 310 U.S. 296, 20 May 1940) elevating influence of religion in society; at the same time, it acknowledges that the government must pursue its secular goals. In pursuing these goals, however, it might adopt laws or actions of general applicability which inadvertently burden religious exercise. Benevolent neutrality gives room for accommodation of these religious exercises as required by the Free Exercise Clause. It allows these breaches in the wall of separation to uphold religious liberty, which after all is the integral purpose of the religion clauses. (Estrada v. Escritor, A.M. No. P-02-1651, 04 Aug. 2003) Aspects of freedom and enjoyment of religious profession and worship: 1. Right to believe, which is absolute. The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may indulge his own theories about life and death; worship any god he chooses, or none at all; embrace or reject any religion; acknowledge the divinity of God or of any being that appeals to his reverence; recognize or deny the immortality of his soul – in fact, cherish any religious conviction as he and he alone sees fit. Benevolent Neutrality/Accommodation is premised on a different view of the “wall of separation”. Unlike the Jeffersonian wall that is meant to protect the State from the Church, the wall is meant to protect the Church from the State. This view believes that some legislative acts as regards accommodation of religion may be allowed, not to promote the government’s favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. The purpose of accommodation is to remove a burden on, or facilitate the exercise of, a person’s or institution’s religion However absurd his beliefs may be to others, even if they be hostile and heretical to the majority, he has full freedom to believe as he pleases. He may not be required to prove his beliefs. He may not be punished for his inability to do so. (Iglesia ni Cristo v. CA, G.R. No. 119673, 26 July 1996) 2. It would appear that the intent of the framers of our Constitution was adopt a benevolent neutrality approach in interpreting the religious clauses in our constitution because of some provisions such as the tax exemption of church property, salary of religious officers in government institutions, and optional religious instruction. (Estrada v. Escritor, A.M. No. P-02-1651, 04 Aug. 2003) Right to act on one’s belief, which is subject to regulation. 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 the other rights guaranteed in the Constitution, it is limited and subject to the police power of the State and can be enjoyed only with proper regard to the rights of others. CONSCIENTIOUS OBJECTOR An "individual who has claimed the right to refuse to perform military service on the grounds of freedom of thought, conscience, and/or religion.” (Art. 18, International Covenant on Civil and Political Rights) 2. BENEVOLENT NEUTRALITY AND CONSCIENTIOUS OBJECTORS BENEVOLENT NEUTRALITY Requisites for one to be considered conscientious objector (Op-Re-S) Benevolent neutrality is an approach that looks further than the secular purposes of government action and examines the effect of these actions on religious exercise. Benevolent neutrality recognizes the religious nature of the Filipino people and the 1. 2. 209 a The person is Opposed to war in any form; He must show that this opposition is based upon Religious training and belief; and UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights 3. interests. (Estrada v. Escritor, A.M. No. P-02-1651, 04 Aug. 2003) And he must show that this objection is Sincere. (Clay v. United States, 403 U.S.698, 28 June 1971) Q: Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays, bisexuals, or transgendered individuals (LGBTs). Ang Ladlad applied for registration with the COMELEC to participate in the party-list elections. The COMELEC dismissed the petition on moral grounds, stating the definition of sexual orientation of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends religious beliefs based on the Bible and the Koran. Ang Ladlad argued that the denial of registration, insofar as it justified the exclusion by using religious dogma, violated the constitutional guarantees against the establishment of religion. Is this argument correct? Q: Angel, a court interpreter, is living with a man not her husband. Ben filed an administrative case against Angel as he believes that she is committing an immoral act that tarnishes the image of the court, thus she should not be allowed to remain employed therein as it might appear that the court condones that act. Angel admitted that she has been living with a man without the benefit of marriage for twenty years and that they have a son. But as a member of the religious sect known as the Jehovah’s Witnesses, the Watch Tower and Bible Tract Society, their conjugal arrangement is in conformity with their religious beliefs. In fact, after ten years of living together, she executed on July 28, 1991 a “Declaration of Pledging Faithfulness.” Should Angel’s right to religious freedom carve out an exception from the prevailing jurisprudence on illicit relations for which government employees are held administratively liable? A: YES. It was a grave violation of the nonestablishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad. Our Constitution provides in Art. III, Sec. 5 that “no law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.” At bottom, what our nonestablishment clause calls for is government neutrality in religious matters. Clearly, governmental reliance on religious justification is inconsistent with this policy of neutrality. (Ang Ladlad v. COMELEC, G.R. No. 190582, 08 Apr. 2010) A: YES. Angel’s conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental right to freedom of religion. The Court recognizes that the State’s interests must be upheld in order that freedom – including religious freedom – may be enjoyed. In the area of religious exercise as a preferred freedom, however, man stands accountable to an authority higher than the State, and so the State interest sought to be upheld must be so compelling that its violation will erode the very fabric of the State that will also protect the freedom. In the absence of showing that such State interest exists, man must be allowed to subscribe to the Infinite. NOTE: When the law speaks of immoral or, necessarily, disgraceful conduct, it pertains to public and secular morality; it refers to those conducts which are proscribed because they are detrimental to conditions upon which depend the existence and progress of human society. (Leus v. St. Scholastica’s College Westgrove, G.R. No. 187226, 28 Jan. 2015) Furthermore, our Constitution adheres to the Benevolent Neutrality approach that gives room for accommodation of religious exercises as required by the Free Exercise Clause. The benevolent neutrality doctrine allows accommodation of morality based on religion, provided it does not offend compelling state UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Q: Dychie, Rose Anne, Julie, Kimmy, Alarice and Krizelle were minor school children and member of the sect, Jehovah’s Witnesses. They were expelled from their classes by various public school authorities for refusing to salute the flag, sing the national anthem and recite the “Panatang Makabayan” required by R.A. 1265. 210 Political Law According to them, the basic assumption in their universal refusal to salute the flags of the countries in which they are found is that such a salute constitutes an act of religious devotion forbidden by God's law and that their freedom of religion is grossly violated. On the other hand, the public authorities claimed that the freedom of religious belief guaranteed by the Constitution does not mean exception from nondiscriminatory laws like the saluting of flag and the singing of the national anthem. To allow otherwise would disrupt school discipline and demoralize the teachings of civic consciousness and duties of citizenship. Is the expulsion justified? 3. TESTS TO DETERMINE THE VALIDITY OF GOVERNMENTAL REGULATION Lemon Test A test to determine whether an act of the government violates the non-establishment clause. To pass the Lemon test, a government act or policy must: 1. 2. Have a secular purpose; Not promote or favor any set of religious beliefs or religion generally; and Not get the government too closely involved (“entangled”) with religion. (Lemon v. Kurtzman, 403 U.S. 602, 28 June 1971) 3. A: NO. Religious freedom is a fundamental right of highest priority. The two-fold aspect of right to religious worship is: 1) Freedom to believe which is an absolute act within the realm of thought. 2) Freedom to act on one’s belief regulated and translated to external acts. The only limitation to religious freedom is the existence of grave and present danger to public safety, morals, health and interests where the right to prevent belongs to the State. The expulsion of the petitioners from the school is not justified. Compelling State Interest Used to determine if the interests of the State are compelling enough to justify infringement of religious freedom. It involves a three-step process: In the case at bar, the students expelled are only standing quietly during ceremonies. By observing the ceremonies quietly, it doesn’t present any danger so evil and imminent to justify their expulsion. The expulsion of the students by reason of their religious beliefs is also a violation of a citizen’s right to free education. The non-observance of the flag ceremony does not totally constitute ignorance of patriotism and civic consciousness. Love for country and admiration for national heroes, civic consciousness, and form of government are part of the school curricula. Therefore, expulsion due to religious beliefs is unjustified. (Ebralinag v. Division Superintendent of Cebu, G.R. No. 95770, 01 Mar. 1993) 211 1. Has the statute or government action created a burden on the free exercise of religion? – Courts often look into the sincerity of the religious belief, but without inquiring into the truth of the belief since the free exercise clause prohibits inquiring about its truth; 2. Is there a sufficiently compelling state interest to justify this infringement of religious liberty? – In this step, the government has to establish that its purposes are legitimate for the State and that they are compelling; and 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? – The analysis requires the State to show that the means in which it is achieving its legitimate State objective is the least intrusive means, or it has chosen a way to achieve its legitimate State end that imposes UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights as little as possible intrusion on religious beliefs. 2. G. LIBERTY OF ABODE AND RIGHT TO TRAVEL Rights guaranteed under Sec. 6 of the Bill of Rights (1991, 1996, 1998, 2012 BAR) 1. 2. NOTE: A lawful order of the court is required before the liberty of abode and of changing the same can be impaired. (Sec. 6, Art. III, 1987 Constitution) Freedom to choose and change one’s place of abode; and Freedom to travel within the country and outside. Q: Paz, was employed by the Far Eastern Employment Bureau, owned by Jocelyn. An advanced payment has already been given to Paz by the employment agency, for her to work as a maid. However, Paz wanted to transfer to another residence, which was disallowed by the employment agency. Further she was detained and her liberty was restrained. The employment agency wanted that the advance payment, which was applied to her transportation expense from the province should be paid by Paz before she could be allowed to leave. Does the employment agency have the right to restrain and detain a maid who could not return the advance payment it gave? Liberty of abode It is the right of a person to have his home or to maintain or change his home, dwelling, residence, or habitation in whatever place he has chosen, within the limits prescribed by law. (Sec. 6, Art. III, 1987 Constitution) This right, pursuant to the Constitution, may only be impaired by lawful order of the court. Unless there be important societal considerations and interests that are implicated by a person’s decision to stay anywhere, he should be given complete freedom of choice as to where he may want to dwell and set up his abode. (Genuino v. De Lima, G.R. No. 197930, 17 Apr. 2019) A: NO. An employment agency, regardless of the amount it may advance to a prospective employee or maid, has absolutely no power to curtail her freedom of movement. The fact that no physical force has been exerted to keep her in the house of the respondent does not make less real the deprivation of her personal freedom of movement, freedom to transfer from one place to another, freedom to choose one’s residence. 1. SCOPE AND LIMITATIONS The right is NOT absolute, as there may be a law that restricts the freedom, as when the person is a leper or a convict. The liberty of abode may be impaired only: 1. Upon lawful order of the court and; and 2. Within the limits prescribed by law such as public safety and security. (Sec. 6, Art. III, 1987 Constitution) Freedom may be lost due to external moral compulsion, to founded or groundless fear, to erroneous belief in the existence of an imaginary power of an impostor to cause harm if not blindly obeyed, to any other psychological element that may curtail the mental faculty of choice or the unhampered exercise of the will. Examples: 1. Persons in the danger zone areas (e.g. Mt. Pinatubo, Taal Volcano) may be relocated to safer areas and evacuation centers in case of UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES danger and emergency to save lives and property. Insane persons who roam around in Roxas Boulevard may be committed by the government to the National Mental Hospital for appropriate treatment and medical attention. If the actual effect of such psychological spell is to place a person at the mercy of another, the victim is entitled to the protection of courts of justice as much 212 Political Law as the individual who is illegally deprived of liberty by duress or physical coercion. (Caunca v Salazar, 82 Phil. 851, 01 Jan. 1949) personal abuses to female overseas workers. PASEI contends that it impairs the constitutional right to travel. Is the contention correct? Right to Travel A: NO. The deployment ban does not impair the right to travel. The right to travel is subject, among other things, to the requirements of "public safety," "as may be provided by law." Department Order No. 1 is a valid implementation of the Labor Code, in particular, its basic policy to "afford protection to labor," pursuant to the Department of Labor's rulemaking authority vested in it by the Labor Code. The petitioner assumes that it is unreasonable simply because of its impact on the right to travel, but as we have stated, the right itself is not absolute. The disputed Order is a valid qualification thereto. (Philippine Association of Service Exporters, Inc. v. Drilon, G.R. No. 81958, 30 June 1988) This refers to the right of a person to go where he pleases without interference from anyone. The limitations on the right to travel (S-S-H) 1. 2. 3. Interest of national Security; Public Safety; and Public Health. (Sec. 6, Art. III, 1987 Constitution) NOTE: It is settled that only a court may issue a hold departure order against an individual addressed to the Bureau of Immigration and Deportation. However, administrative authorities, such as passport-officers, may likewise curtail such right in the interest of national security, public safety, or public health, as may be provided by law. (Genuino v. De Lima, G.R. No.197930, 17 Apr. 2018) A member of the military cannot travel freely to other places apart from his command post. Mobility of travel is another necessary restriction on members of the military. A soldier cannot leave his/her post without the consent of the commanding officer. The commanding officer has to be aware at all times of the location of the troops under command, so as to be able to appropriately respond to any exigencies. For the same reason, commanding officers have to be able to restrict the movement or travel of their soldiers, if in their judgment, their presence at place of call of duty is necessary. Military life calls for considerable personal sacrifices during the period of conscription, wherein the higher duty is not to self but to country. (Gudani v. Senga, G.R. No. 170165, 15 Aug. 2006) DPWH may validly ban certain vehicles on expressways in consideration of constitutional provisions of right to travel. 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 are not denied the right to move from Point A to Point B along the toll way. Anyone is free to access the toll way, much as the rest of the public can. The mode by which one wishes to travel pertains to the manner of using the tollway, a subject that can be validly limited by regulation. There was no absolute right to drive; on the contrary, this privilege was heavily regulated. (Mirasol v. DPWH, G.R. No. 158793, 08 June 2006) 2. WATCH-LIST AND HOLD DEPARTURE ORDERS Q: PASEI is engaged in the recruitment of Filipino workers, male and female, for overseas employment. It challenged the validity of Department Order 1 of the Department of Labor and Employment (DOLE) because it suspends the deployment of female domestic and household workers in Iraq, Jordan and Qatar due to growing incidence of physical and Right to travel is not impaired by a hold departure order. The basic reason for the rule is that inasmuch as the jurisdiction of the courts from which orders and processes were issued does not extend beyond that of the Philippines, they would have no binding force outside of said jurisdiction. (People v Uy Tuising, 61 Phil. 404, 1935) 213 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights attendance in the preliminary investigation of the complaints. Q: Several criminal complaints were filed against former President Gloria Macapagal Arroyo (GMA) before the DOJ. In view thereof, DOJ Sec. De Lima issued Watchlist Orders (WLO) pursuant to her authority under DOJ Circular No. 41 which was issued pursuant to the rulemaking powers of the DOJ in order to keep individuals under preliminary investigation within the jurisdiction of the Philippines. Subsequently, GMA requested for the issuance of Allow Departure Orders (ADO) so that she may be able to seek medical attention abroad. Before the resolution of her application for ADO, GMA filed a petition with prayer for the issuance of a TRO seeking to annul and set aside DOJ Circular No. 41 and WLOs issued against her for being unconstitutional. A TRO was issued but GMA was prevented from leaving the country. Is DOJ Circular No. 41 unconstitutional for being a violation of the right to travel? There is no authority of law granting it the power to compel the attendance of the subjects of a preliminary investigation pursuant to its investigatory powers. Its investigatory power is simply inquisitorial and, unfortunately, not broad enough to embrace the imposition of restraint on the liberty of movement. (Genuino v. De Lima, G.R. No. 197930, 17 Apr. 2018) It is, however, important to stress that before there can even be a valid administrative issuance, there must first be a showing that the delegation of legislative power is itself valid. It is valid only if there is a law that (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard the limits of which are sufficiently determinate and determinable to which the delegate must conform in the performance of his functions. (Rodrigo v. Sandiganbayan, G.R. No. 125498, 2 July 1999) A: YES. The DOJ has no authority to issue DOJ Circular No. 41 which effectively restricts the right to travel through the issuance of WLOs and HDOs (Hold Departure Orders). There are only three considerations that may permit a restriction on the right to travel: national security, public safety or public health. Further, there must be an explicit provision of statutory law or Rules of Court providing for the impairment. Q: President Rodrigo Duterte issued Proclamation No. 475 formally declaring a state of calamity in Boracay and ordering its closure for six (6) months. On account of this, Boracay residents Mark Anthony Zabal and Thiting Jacosalem filed the present petition alleging that they would suffer grave and irreparable damage as their livelihood depends on the tourist activities therein. They attacked the order on the ground that it violates the right to travel. Are they correct? DOJ Circular No. 41 is not a law. It is not a legislative enactment, but a mere administrative issuance designed to carry out the provisions of an enabling law. DOJ is not authorized to issue WLOs and HDOs to restrict the constitutional right to travel. There is no mention of the exigencies stated in the Constitution that will justify the impairment. The provision simply grants the DOJ the power to investigate the commission of crimes and prosecute offenders. It does not carry the power to indiscriminately devise all means it deems proper in performing its functions without regard to constitutionally-protected rights. A: NO. This case does not actually involve the right to travel in its essential sense. Any bearing that Proclamation No. 475 may have on the right to travel is merely corollary to the closure of Boracay and the ban of tourists and non-residents therefrom which were necessary incidents of the island's rehabilitation. There is certainly no showing that Proclamation No. 475 deliberately meant to impair the right to travel. The questioned proclamation is clearly focused on its purpose of rehabilitating Boracay and any intention to directly restrict the DOJ cannot justify the restraint in the liberty of movement imposed by the circular on the ground that it is necessary to ensure presence and UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 214 Political Law essential to the existence and proper functioning of any democracy. (IDEALs v. PSALM, G.R. No. 192088, 09 Oct. 2012) right cannot, in any manner, be deduced from its import. The closure of Boracay was only temporary considering the categorical pronouncement that it was only for a definite period of six months. Hence, if at all, the impact of Proclamation No. 475 on the right to travel is not direct but merely consequential; and, the same is only for a reasonably short period of time or merely temporary. (Zabal v. Duterte, G.R. No. 238467, 12 Feb. 2019) Three categories of information: 1. 2. 3. Official records; Documents and papers pertaining to official acts, transactions and decisions; and Government research data used in formulating policies. (Sec. 7, Art. III, 1987 Constitution) 1. SCOPE AND LIMITATIONS Return to One’s Country GR: The access must be for a lawful purpose and is subject to reasonable conditions by the custodian of the records. Q: Ferdinand Marcos, in his deathbed, has signified his desire to return to the Philippines to die. But President Corazon Aquino barred the return of Marcos and his family. The Marcoses invoke their right to return. Is the right to return a constitutionally protected right? XPNs: The right does not extend to the following: 1. National security matters. These include state secrets regarding military, diplomatic and other national security, and information on inter-government exchanges prior to the conclusion of treaties and executive agreements. A: NO. The right to return to one’s country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to travel. Nevertheless, the right to return may be considered as a generally accepted principle of International law, and under the Constitution, is part of the law of the land. However, it is distinct and separate from the right to travel and enjoys a different protection under the International Covenant of Civil and Political Rights. (Marcos v. Manglapus, G.R. No. 88211, 15 Sept. 1989 & 27 Oct. 1989) 2. Criminal matters relating to investigation, apprehension, and detention of criminals which the court may not inquire into prior to arrest, prosecution and detention; 3. Trade and industrial secrets and other banking transactions as protected by the Intellectual Property Code and the Secrecy of Bank Deposits Act; and 4. Other confidential information falling under the scope of the Ethical Safety Act concerning classified information. (Chavez v. PCGG, G.R. No. 130716, 9 Dec. 1998) H. RIGHT TO INFORMATION Rationale The purpose is to promote transparency in policymaking and in the operations of the government, as well as provide the people sufficient information to exercise effectively other constitutional rights. Armed with the right information, citizens can participate in public discussions leading to the formulation of government policies and their effective implementation. An informed citizenry is Q: Adolfo, filed in his capacity as a citizen and as a stakeholder in the industry involved in importing petrochemicals, filed a mandamus petition to compel the Committee on Tariff and Related Matters (CTRM) to provide him a copy of the minutes of its May 23, 2005 meeting; as well as to provide copies of all official records, 215 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights 2. List of deaths under investigation from 1 July 2016 to 30 November 2017; 3. List of Chinese and Fil-Chinese drug lords who have been neutralized; 4. List of drugs involved whether shabu, cocaine, marijuana, opioids, etc.; 5. Comparative tables on index crimes; 6. Statistics of internal cleansing within the police force; 7. Drug watchlist in the affected areas; 8. Reports and documents regarding Almora, Aparri and Soriano; 9. Pre- and post-operation reports in all the Dafio incidents; 10. Number of buy-bust incidents in San Andres Bukid from 1 July 2016 to 30 November 2017; 11. List of warrants and warrantless arrests in High Value Target police operations; and 12. List of cases under investigation under Internal Affairs Service. documents, papers and government research data used as basis for the issuance of Executive Order No. 486 which lifted the suspension of the tariff reduction schedule on petrochemicals. Wilfredo based his action on the constitutional right to information on matters of public concern and the State’s policy of full public disclosure. Will the petition prosper? A: NO. The State’s policy of full public disclosure is restricted to transactions involving public interest and is tempered by reasonable conditions prescribed by law. (Sereno v. CTRM, G.R. No. 175210, 1 Feb. 2016) Two requisites must concur before the Right to Information may be compelled by Writ of Mandamus. Firstly, the information sought must be in relation to matters of public concern or public interest. And, secondly, it must not be exempt by law from the operation of the constitutional guarantee. The OSG claimed that they cannot submit the abovementioned documents to the Court since these documents involve sensitive information that have national security implications. Is the OSG correct? The information sought by Wilfredo are classified as a closed-door Cabinet meeting by virtue of the CTRM’s composition and the nature of its mandate dealing with matters of foreign affairs, trade and policy-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. Without doubt, therefore, ensuring and promoting the free exchange of ideas among the members of CTRM tasked to give tariff recommendations to the President were truly imperative. (Sereno v. Committee on Tariff and Related Matters of the NEDA, G.R. No. 175210, 01 Feb. 2016) A: NO. The order to produce the information and documents is about the existence of the requested information and documents. This Court would like to determine for itself, through the existence of the requested information and documents, whether the conduct of operations was indeed done in the performance of official functions. Indeed, this Court is not a trier of facts, and it is not within our jurisdiction to determine questions of fact and evaluate the truthfulness of the contents. In ordering the production of the documents, the Court exercises its judicial power to protect and enforce inherent rights. Q: The Supreme Court directed the Office of the Solicitor General (OSG) to submit the following information/documents in connection with the police drug operations conducted from July 1, 2016 to November 30, 2017, to wit: Contrary to the claim of the Solicitor General, the requested information and documents do not obviously involve state secrets affecting national security. The information and documents relate to routine police operations involving violations of laws against the sale or use of illegal drugs. There is no showing that the country's territorial integrity, 1. List of persons killed in legitimate police operations from 1 July 2016 to 30 November 2017; UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 216 Political Law national sovereignty, independence, or foreign relations will be compromised or prejudiced by the release of these information and documents to this Court or even to the public. (Rappler, Inc. v. Bautista, G.R. No. 222702, 05 Apr. 2016) These information and documents do not involve rebellion, invasion, terrorism, espionage, infringement of our sovereignty or sovereign rights by foreign powers, or any military, diplomatic or state secret involving national security. It is simply ridiculous to claim that these information and documents on police operations against drug pushers and users involve national security matters so sensitive that even this Court cannot peruse these information and documents in deciding constitutional issues affecting the fundamental right to life and liberty of thousands of ordinary citizens. (Almora v. Dir. Gen. Dela Rosa, G.R. No. 234359, 03 Apr. 2018) There is a need for publication of laws to reinforce the right to information. Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark, deep secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people. (Tanada v. Tuvera, G.R. No. L-63915, 29 Dec. 1986) Publication of Laws and Regulations Publication of Regulations Publication is necessary to apprise the public of the contents of penal regulations and make the said penalties binding on the persons affected thereby. (Pesigan v. Angeles, G.R. No. L-6427, 30 Apr. 1984) Electoral Debates Q: The online news agency Rappler, Inc. sued COMELEC Chair Bautista for breach of contract (MOA) in disallowing the former to stream online the coverage of the 2016 presidential and vice-presidential debates. Does Rappler, Inc. have a cause of action against Chair Bautista? Publication is required in the following: 1. 2. A: YES. Aside from the fact that Chair Bautista clearly breached an express stipulation of the MOA allowing Rappler, Inc. to stream online the coverage of the debates, the presidential and vicepresidential debates are held primarily for the benefit of the electorate to assist the electorate in making informed choices on election day. 3. 4. Through the conduct of the national debates among presidential and vice-presidential candidates, the electorate will have the "opportunity to be informed of the candidates' qualifications and track record, platforms and programs, and their answers to significant issues of national concern." All statutes, including those of local application, and private laws; President decrees and executive orders promulgated by the President; Administrative rules and regulations if their purpose is to enforce and implement existing law; and Memorandum Circulars, if they are meant note merely to interpret but to “fill in the details” which that body is supposed to enforce. (Tanada v. Tuvera, G.R. No. L63915, 29 Dec. 1986) Publication is NOT required in the following: 1. The political nature of the national debates and the public's interest in the wide availability of the information for the voters' education certainly justify allowing the debates to be shown or streamed in other websites for wider dissemination. 2. 217 Interpretative regulations and those merely internal in nature, regulating only the personnel of the administrative agency; and Letters of instructions issued by administrative superiors concerning rules and guidelines. (ibid.) UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights 5. I. EMINENT DOMAIN 1. CONCEPT The Utilization of the property for public use must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property. (Republic v. Castellvi, G.R. No. L20620, 15 Aug. 1974) Procedure for Eminent Domain (P-P-G-O-O) Private Property shall not be taken for public use without just compensation. (Sec. 9, Art. III, 1987 Constitution) 1. 2. 3. 4. NOTE: Section 9 of Article III of the Constitution is not a conferment of the power of eminent domain upon the State, but a specification of the limitations as to its exercise. (Cruz, 2015) 5. NOTE: The offer shall specify the property sought to be acquired, the reasons for the acquisition, and the price offered. Proceeding from the principle of jus regalia, the right to eminent domain has always been considered as a fundamental state power that is inseparable from sovereignty. It is described as the State’s inherent power that need not be granted by the Constitution, and as the government’s right to appropriate, in the nature of compulsory sale to the State, private property for public use or purpose. (Republic v. Samson-Tatad, G.R. No. 187277, 27 Apr. 2013) Stages of Expropriation Proceedings 1. 2. Eminent domain is a power primarily lodged in the legislative branch of the government. Who may exercise the Power of Expropriation 1. 2. 3. 4. Congress; President of the Philippines Local legislative and administrative bodies; Public and quasi-public corporations. (Cruz, 2015) Determination of the Validity of the Expropriation- questions of the necessity and wisdom, if it could be a justiciable question, of the expropriation can only be raised before the court. Determination of Just Compensation - after the first stage, the court’s power of judicial review is limited to the determination of the appropriate just compensation, and whether the owner had been given his just compensation after the taking. Limits on Eminent Domain The power of eminent domain is not an unlimited power. The very text of the Constitution sets down two limitations on this fundamental right. Requisites of Taking in Eminent Domain (E-MU-D-U) 1. The expropriator must Enter a private property; 2. The entry must be for More than a momentary period; 3. The entry must be Under a warrant or color of legal authority; 4. The property must be Devoted to public use or otherwise informally appropriated or injuriously affected; and UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES The land must be a Private property; It must be for a Public purpose; There must be Genuine necessity; There must be a previous valid and definite Offer to buy the private property in writing; The Offer is denied or rejected. The taking must: a. be for public purpose; and b. be accompanied by a payment of just compensation to the owner. Public Use Clause The term "public use," not having been otherwise defined by the Constitution, must be considered in its general concept of meeting a public need or a 218 Political Law public exigency. For condemnation purposes, “public use” is one which confers some benefit or advantage to the public. 2. JUST COMPENSATION Just Compensation Clause It is not confined to actual use by the public. As long as public has the right to use, whether exercised by one or many members, a “public advantage” or “public benefit” accrues sufficient to constitute a public use. There will also be public use involved even if the expropriated property is not actually acquired by the government but is merely devoted to public services administered by privately-owned public communities. (Manosca v. CA, G.R. No. 106440, 29 Jan. 1996) Just compensation is defined as the fair and full equivalent of the loss. The true measure is on the owner of the property’s loss and not the taker’s gain. The determination of just compensation is a judicial prerogative that is usually aided by the appointed commissioner. (Evergreen Manufacturing Corporation v. Republic, G.R. No. 218628, 06 Sept. 2017) The power of eminent domain necessarily includes taking, wherein the owner of a property is physically disposed of the same, or his exercise of his rights therefor be otherwise impaired or prevented. As such, physical taking of private property is similar to flying government planes over a property at such a low altitude as to practically tough the trees therein which thereby intrudes the suprajacent rights of the owner. In both cases, there is a need for just compensation, although the latter case includes no physical divesture of ownership. Such taking is compensable. (US v. Causby, 328 U.S. 256, 26 May 1946) NOTE: Property already devoted to public use is still subject to expropriation, provided this is done directly by the national legislature or under a specific grant of authority to the delegate. A mere general authority may not suffice. In such a case the courts will have authority to inquire into the necessity of the expropriation and, finding none, refuse to allow it. (City of Manila v. Chinese Community, G.R. No. L-14355, 31 Oct. 1919) Judicial review of the question of necessity GR: As regards the question of necessity or wisdom of the taking, it is not usually subject to judicial review when so exercised by the Congress, it being essentially a political question and may not be interfered with by the court. (City of Manila v. Chinese Community, G.R. No. L-14355, 31 Oct. 1919) The general rule is that a taking is not compensable when it is a valid exercise of police power aimed at improving the general welfare. Where there is only general and common damage suffered by the community, the taking is not compensable since the damage is damnum absque injuria. (Cruz, 2015) XPN: But where the expropriation is exercised by a delegate only of the Congress (such as local government units), the courts may inquire into the appropriateness or wisdom of the expropriation since it now becomes a justiciable question. This view is grounded on two principles: 1. 2. However, taking is compensable when the damage produced is exclusively or exceptionally shouldered by a person within a community, such as when only one house within a community is affected by the smoke blown by the exhaust fan in a train tunnel. (Richards v. Washington Terminal, 233 U.S. 546, 04 May 1914) The power of eminent domain should be interpreted liberally in favor of the private property owner and strictly against the expropriator; and A local government unit only exercises its power to expropriate when authorized by Congress and subjected to the latter’s control and restraints. (Cruz, 2015) Award of consequential damages Consequential damages may be awarded if the remaining portion not expropriated suffers from impairment. It follows that no consequential damages may be granted when the entire property is expropriated, therefore, there are no remaining 219 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights portions left. (Republic v. Spouses Bunsay, G.R. No. 205473, 10 Dec. 2019) formula's strict application. The courts may, in the exercise of their discretion, relax the formula's application to fit the factual situations before them. (Republic of the Philippines v. Mupas, G.R. No. 181892, 08 Sept. 2015) Standard to measure the proper compensation to be paid Q: On the basis of the BIR zonal valuation and R.A. 8974, the Republic of the Philippines pays Spouses A and B P2,750 per square meter as just compensation for the expropriated property. However, spouses A and B invoke that they should be paid based on fair market value of around P8,000-P10,000. Is the claim of the spouses proper? The measure of just compensation is not the taker's gain, but the owner's loss. We have ruled that just compensation must not extend beyond the property owner's loss or injury. This is the only way for the compensation paid to be truly just, not only to the individual whose property is taken, but also to the public who shoulders the cost of expropriation. Even as undervaluation would deprive the owner of his property without due process, so too would its overvaluation unduly favor him to the prejudice of the public. (Republic of the Philippines v. Mupas, G.R. No. 181892, 08 Sept. 2015) A: YES. The determination of just compensation in eminent domain cases is a judicial function. As such, legislative enactments, as well as executive issuances, which fix or provide for the method of computing just compensation are tantamount to impermissible encroachment on judicial prerogatives. The Courts are not strictly bound to mechanically follow each of the standards enumerated in Section 5 of RA 8974 because those factors are merely recommendatory. In arriving at the full and fair equivalent of the property subject of expropriation, the courts are guided by certain standards for valuation such as those mentioned in R.A. 8974. The court will sustain the lower court's determination of just compensation even if it is higher than, or more specifically, as in this case, double the BIR zonal value as long as such determination is justified. (Republic of the Philippines represented by DPWH v. Heirs of Sps. Luis J. Dela Cruz and Imelda Reyes, G.R. No. 215988, 16 June 2021) Q: Congress enacted RA 8974 laying down guiding principles to facilitate the expropriation of private property and payment of just compensation. Is this binding on the courts? A: NO. The determination of just compensation in eminent domain cases is essentially and exclusively a judicial function. Fixing the formula with definitiveness and particularity in just compensation is not the function of the executive nor of the legislative branches, much less of the parties in this case. Any valuation for just compensation laid down in the statutes may not replace the court's own judgment as to what amount should be awarded and how this amount should be arrived at. Q: Philippine Veterans Bank (PVB) acquired the two properties originally owned by Belmonte Agro-Industrial Development Corporation (BAIDECO) through foreclosure. When PVB was placed under liquidation of the Central Bank from 1984 to 1991, the said properties were placed under the coverage of the CARP and consequently distributed to the Saguns. Later on, the Bases Conversion Development Authority (BCDA) instituted expropriation proceedings for the acquisition of lands needed for SCTEX project, two of the properties were in Legislative enactments, as well as executive issuances, providing the method of computing just compensation are treated as mere guidelines in ascertaining the amount of just compensation. When acting within the parameters set by the law itself, courts are not strictly bound to apply the formula to its minutest detail, particularly when faced with situations that do not warrant the UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 220 Political Law the name of the Saguns. After learning of the expropriation filed by BCDA, PVB filed motions to intervene in the cases asserting that it is entitled to the expropriation proceeds in either the CARP and SCTEX project. Is the contention of PVB correct? Garnishment of government expropriation cases funds in Q: Keanu Lazzer filed an action directly in court against the government seeking payment for a parcel of land which the national government utilized for a road widening project. Can the government invoke the doctrine of nonsuitability of the state? A: No, the contention is not correct. PVB’s contention that it is entitled to the proceeds in either the CARP and SCTEX expropriations runs contrary to the concepts of “taking” and “just compensation” in our jurisdiction. 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 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. Taking may be deemed to occur, for instance, at the time EPs are issued by the government. Here, it is undisputed that prior to the SCTEX expropriation initiated in 2003, PVB was already deprived of use and possession of the properties when CLOAs were awarded and TCTs were issued in favor of the Saguns in 2001. Thus, the taking of PVB’s property was by virtue of the CARP expropriation, and not the SCTEX expropriation. A: NO. When the government expropriates property for public use without paying just compensation, it cannot invoke its immunity from suit. Otherwise, the right guaranteed in Sec. 9, Art. III of the 1987 Constitution that private property shall not be taken for public use without just compensation will be rendered nugatory. (Ministerio v. CFI, G.R. No. L31635, 31 Aug. 1971) 3. EXPROPRIATION BY LOCAL GOVERNMENT UNITS Requisites The following essential requisites must concur before a local government unit can exercise the power of eminent domain: (P-O-P-O) The “taking” suffered by PVB occurred by virtue of the implementation of CARP. Thus, just compensation must be paid by the LBP by virtue of the CARP expropriation. PVB should not be entitled to just compensation beyond the loss it suffered therein. As between the two expropriation proceedings in the case at bench, PVB may recover only from the proceeding that resulted in the taking of the properties from its possession. To find that PVB is entitled to compensation from either proceeding at its choosing or worse to find that PVB can claim compensation from both proceedings would result in unjust enrichment on the part of PVB. (Philippine Veterans Bank v. Bases Conversion and Development Authority, G.R. No. 217492, 04 Oct. 2021) 1. The power of eminent domain is exercised for Public use, purpose, or welfare; An Ordinance was enacted authorizing the local chief executive, in behalf of the LGU, to exercise the power of eminent domain or pursue expropriation proceedings; There is Payment of just compensation; and 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. (City of Manila v. Prieto, G.R. No. 221366, 08 July 2019) 2. 3. 4. Additionally, before a local government unit may enter into the possession of the property sought to be expropriated, it must do the following: 1. 2. 221 file a complaint for expropriation sufficient in form and substance in the proper court; and deposit with the said court at least 15% of the property’s fair market value based on its UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights current tax declaration. (Francia v. Municipality of Meycauayan, G.R. No. 170432, 24 May 2008) Every person having an estate or interest at law or in equity in the land taken is entitled to share in the award. If a person claiming an interest in the land sought to be condemned is not made a party, he is given the right to intervene and lay claim to the compensation. (De Knecht v. CA, G.R. No. 108015, 20 May 1998) Procedure for Eminent Domain (Re-D-E-D) 1. 2. 3. 4. If the owner Rejects the offer, the LGU can then file a complaint for expropriation in the RTC; The LGU must then Deposit the amount equivalent to 15% of the fair market value of the property to be expropriated based on its current tax declaration; The LGU may then Enter the property; and The Court will Determine the amount of just compensation for the property expropriated. Q: May an LGU expropriate a property for the benefit of a specific homeowners’ association? A: NO. An LGU cannot use the power of eminent domain to expropriate a property merely for the purpose of providing a sports and recreational facility to a small group of persons such as those belonging to homeowners’ association. Ordinance “Where the taking by this State of private property is done for the benefit of a small community which seeks to have its own sports and recreational facility, notwithstanding that there is such a recreational facility only a short distance away, such taking cannot be considered to be for public use. Its expropriation is not valid.” (Masikip v. City of Pasig, G.R. No. 136349, 23 Jan. 2006) Without an ordinance for the purpose of exercising the power of eminent domain, there would be no compliance with this requisite. The Local Government Code itself requires the same. (Francia v. Municipality of Meycauayan, G.R. No. 170432, 24 May 2008) NOTE: Ordinance and Resolution are two different things. The former is a law, while the latter is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. An ordinance possesses a general and permanent character, but a resolution is temporary in nature. Therefore, a “resolution” is not enough to satisfy the ordinance requisite. (Francia v. Municipality of Meycauayan, G.R. No. 170432, 24 May 2008) Q: May an LGU expropriate a property to provide a right-of-way to a specific community? A: NO. To deprive respondents of their property instead of compelling the subdivision owner to comply with his obligation under the law is an abuse of the power of eminent domain and is patently illegal. Without doubt, expropriation cannot be justified on the basis of an unlawful purpose. Valid and Definite Offer to the Owner of the Property Public funds can be used only for a public purpose. In this proposed condemnation, government funds would be employed for the benefit of a private individual without any legal mooring. In criminal law, this would constitute malversation. (Barangay Sindalan, San Fernando, Pampanga v. CA, G.R. No. 150640, 22 Mar. 2007) As regards the owner, the term includes not only the actual owner of the property, but also all other persons owning, occupying, or claiming to own the property. In American jurisprudence, the term owner when employed in statutes relating to eminent domain to designate the persons who are to be made parties to the proceeding, refers to all those who have lawful interest in the property to be condemned, including a mortgagee, a lessee, and a vendee in possession under executory contract. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 222 Political Law sole ground that they are not members of the collective bargaining union. It is clear, therefore, that R.A. No. 3350, far from infringing the constitutional provision on freedom of association, upholds and reinforces it. It does not prohibit the members of said religious sects from affiliating with labor unions. It still leaves to said members the liberty and the power to affiliate, or not to affiliate, with labor unions. R.A. No. 3350, therefore, does not violate the constitutional provision on freedom of association. (Victoriano v. Elizalde Rope Workers Union, Inc., G.R. No. L-25246, 12 Sept. 1947) J. RIGHT TO ASSOCIATION 1. SCOPE AND LIMITATIONS Right to Association The right to association is already comprehended in due process, particularly as it protects the person’s liberty. The right to association is deemed embraced in the freedom of expression because the organization can be used as a vehicle for the expression of views that have a bearing on the public welfare. (Cruz, 2015) Q: Lolita is the Legal Researcher II of RTC Branch 100 and the president of the Sunny Homes Homeowners' Association. An administrative complaint was filed against her, alleging that her duties as president of the homeowners' association conflicted with her functions as court legal researcher. The OCA recommended that the complaint be dismissed for lack of merit. However, the OCA also recommended that Lolita be directed to relinquish her position as president of the homeowners' association in order to fully devote her time in his duties and functions as Court Legal Researcher. Can Lolita be required to relinquish her position in the homeowners’ association? NOTE: When a political party incites violence or puts forward policies that are incompatible with democracy, it falls outside the protection of the freedom of association guarantee. (Ang Ladlad v. COMELEC, G.R. No. 190582, 08 Apr. 2010) Q: Is compelling a lawyer to be a member of the Bar a violation of his constitutional freedom to associate? A: NO. Bar integration does not compel the lawyer to associate with anyone. The only compulsion to which he is subjected is the payment of annual dues. The Supreme Court, in order to further the State's legitimate interest in elevating the quality of professional legal services, may require that the cost of improving the profession in this fashion be shared by the subjects and beneficiaries of the regulatory program — the lawyers. Assuming that the questioned provision does in a sense compel a lawyer to be a member of the Integrated Bar, such compulsion is justified as an exercise of the police power of the State. (In Re: Atty. Marcial A. Edillon, A.M. No. 1928, 03 Aug. 1978) A: NO. Lolita is neither engaged in outside employment nor in any private business or profession. She is not receiving any salary from the services she renders as president of the homeowners' association. Lolita is merely exercising a civic duty as a member of the community. Her involvement in the homeowners' association should be commended rather than censured. To required Lolita to relinquish her post as president of the homeowners' association would effectively deprive her of her freedom of association guaranteed by Article III (Bill of Rights), Section 8 of the 1987 Constitution which provides that "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." (Rubio v. Basada, OCA IPI N. 15-4429-P, 06 Dec. 2017, J. Caguioa) Q: Can members of religious sects be compelled to join labor unions due to closed shop agreements with the employers? A: NO. In spite of any closed shop agreement, members of said religious sects cannot be refused employment or dismissed from their jobs on the 223 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights substantial. (Philippine Rural Electric Cooperatives Assoc. v. DILG Secretary, G.R. No. 143076, 10 June 2003) K. NON-IMPAIRMENT OF CONTRACTS Inapplicability of the provision 1. CONCEPT AND LIMITATIONS 1. In case of franchises, privileges, licenses, etc. Impairment of contracts NOTE: These are subject to amendment, alteration or repeal by Congress when the common good so requires. Any law which introduces a change into the express terms of the contract, or its legal construction, or its validity, or its discharge, or the remedy for its enforcement, impairs the contract. 2. There is neither public interest involved nor a law that supports the claim. The law impairs the obligation of contracts if: 1. It changes the terms and conditions of a legal contract either as to the time or mode of performance; or 2. It imposes new conditions or dispenses with those expressed if it authorizes for its satisfaction something different from that provided in its terms. NOTE: It can only be invoked if it is against the government or when the government intervenes in contract between the parties. (Pacific Wide Realty and Development Corp. v. Puerto Azul Land, Inc., G.R. No. 180893, 25 Nov. 2009) The non-impairment clause always yields to the police power of the state–and even to the power of taxation and eminent domain–for as long as the subject matter of the contract is imbued with paramount public interest. Into every contract is deemed written the police power of the State. Also, the police power may not be bargained away through the medium of a contract, or even that of a treaty. NOTE: Mere technical change which does not change the substance of the contract, and still leaves an efficacious remedy for enforcement does NOT impair the obligation of contracts. A valid exercise of police power is superior to the obligation of contracts. Mutuality of contracts Applicability of the provision GR: Valid contracts should be respected by the legislature and not tampered with by subsequent laws that will change the intention of the parties or modify their rights and obligations. NOTE: It is NOT absolute and is NOT to be read with literal exactness. It is restricted to contracts with respect to property or some object of value and which confer rights that may be asserted in a court of justice; it has no application to statutes relating to public subjects within the domain of the general legislative powers of the State and involving the public rights and public welfare of the entire community affected by it. NOTE: The will of the parties to a contract must prevail. A later law which enlarges, abridges, or in any manner changes the intent of the parties to the contract necessarily impairs the contract itself and cannot be given retroactive effect without violating the constitutional prohibition against impairment of contracts. (Sangalang v. IAC, G.R. No. 71169, 22 Dec. 1988) This constitutional provision is applicable ONLY if the obligation of contract is impaired by legislative act (statute, ordinance, etc.). The act need not be by a legislative office; but it should be legislative in nature. Furthermore, the impairment must be UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES XPN: Enactment of laws pursuant to the exercise of police power because public welfare prevails over 224 Political Law private rights. It is deemed embedded in every contract a reservation of the State’s exercise of police power, eminent domain and taxation, so long as it deals with a matter affecting the public welfare. (PNB v. Remigio, G.R. No. 78508, 21 Mar. 1994) L. FREE ACCESS TO COURTS AND ADEQUATE LEGAL ASSISTANCE Basis Q: While still being a GOCC, PAL entered into a Commercial Agreement and Joint Services Agreement with Kuwait Airways in 1981 establishing a joint commercial arrangement whereby the two airlines were to jointly operate the Manila-Kuwait (and vice versa) route, utilizing the planes and services of Kuwait Airways. In that Agreement, PAL may collect royalties from Kuwait Airways. Subsequently, the government lost control over PAL and became a private corporation. After 14 years, delegations from the Philippine government and Kuwait government met. The talks culminated in a Confidential Memorandum of Understanding (CMU). The CMU terminates the agreement concerning the royalties effective April 12, 1995. However, PAL insists that the agreement could only be effectively terminated on 31 October 1995, or the last day of the then current traffic period and therefore the provisions of the agreement shall continue to be enforced until such date. Can the execution of the CMU between Kuwait and Philippine Governments automatically terminate the Commercial Agreement? Free access to courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. (Sec. 11, Art. III, 1987 Constitution) (1991, 2002 BAR) Right to Free Access to Courts This right is the basis for Sec. 17, Rule 5 of the New Rules of Court allowing litigation in forma pauperis. Those protected include low paid employees, domestic servants and laborers. (Cabangis v. Almeda Lopez, G.R. No. 47685, 20 Sept. 1940) Q: The Municipal Trial Court denied Jaypee’s petition to litigate in forma pauperis on the ground that Jaypee has regular employment and sources of income thus cannot be classified as poor or pauper. Is the court’s order justified? A: NO. Litigants need not be persons so poor that they must be supported at public expense. It suffices that the plaintiff is indigent. And the difference between paupers and indigent persons is that the latter are persons who have no property or sources of income sufficient for their support aside from their own labor though self-supporting when able to work and in employment. (Acar v. Rosal, G.R. No. L21707, 18 Mar. 1967) A: NO. An act of the Philippine Government negating the commercial agreement between the two airlines would infringe the vested rights of a private individual. Since PAL was already under private ownership at the time the CMU was entered into, the Court cannot presume that any and all commitments made by the Philippine Government are unilaterally binding on the carrier even if this comes at the expense of diplomatic embarrassment. Even granting that the police power of the State may be exercised to impair the vested rights of privatelyowned airlines, the deprivation of property still requires due process of law. (Kuwait Airline Corporation v. PAL, G.R. No. 156087, 08 May 2009) Pauper A person so poor that he must be supported at public expense. Also suitor who, on account of poverty, is allowed to sue or defend without being chargeable with costs. (Black's Law Dictionary; Enaje v. Ramos, G.R. No. L-22109, 30 Jan. 1970) Q: The Good Shepherd Foundation, Inc. seeks to be exempted from paying legal fees for its indigent and underprivileged clients couching their claim on the free access clause embodied 225 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights in Sec. 11, Art. III of the Constitution. Is the contention tenable? M. RIGHTS UNDER CUSTODIAL INVESTIGATION A: NO. The Court cannot grant exemption of payment of legal fees to foundations/institutions working for indigent and underprivileged people. According to Sec. 19, Rule 141, Rules of Court, only a natural party litigant may be regarded as an indigent litigant that can be exempted from payment of legal fees. Exemption cannot be extended to the foundations even if they are working for the indigent and underprivileged people. (Re: Query of Mr. Roger C. Prioreschi Re: exemption from legal and filing fees of the Good Shepherd Foundation, Inc., A. M. No. 09-6-9-SC, 19 Aug. 2009) Also known as the “Miranda Rights.” These are the rights to which a person under custodial investigation is entitled to. At this stage, the person is not yet an accused as there is yet no case filed against him. He is merely a suspect. 1. MEANING OF CUSTODIAL INVESTIGATION Custodial investigation commences when a person is taken into custody and is singled out as a suspect in the commission of a crime under investigation and the police officers begin to ask questions on the suspect's participation therein and which tend to elicit an admission. (Ariel Lopez v. People of the Philippines, G.R. No. 212186, 29 June 2019) Q: A pauper is known to have several parcels of land but that for several years prior to the filing of the complaint in the inferior court said parcels of land had been divided and partitioned amongst his children who had since been in possession thereof and paying the taxes thereon. Is he considered indigent? May he apply for free legal assistance? 2.RIGHTS OF A PERSON UNDER CUSTODIAL INVESTIGATION The following are the rights of suspects: (2013 BAR) A: YES. R.A. No. 6034 (An Act Providing Transportation and Other Allowances for Indigent Litigants) has defined the term "indigent" to refer to a person "who has no visible means of income or whose income is insufficient for the subsistence of his family." 1. 2. 3. Even on the assumption that petitioner owns property, he may still be an indigent considering his sworn statement that he had no income. Under the standard set forth in Acar v. Rosal as well as the recent legislations heretofore adverted to, it is the income of a litigant that is the determinative factor. For, really, property may have no income. It may even be a financial burden. (Enaje v. Ramos, G.R. No. L-22109, 30 Jan. 1970) 4. 5. 6. 7. Right to remain silent; Right to competent and independent counsel, preferably of his own choice; Right to be reminded that if he cannot afford the services of counsel, he would be provided with one Right to be informed of his rights; Right against torture, force, violence, threat, intimidation or any other means which vitiate the free will; Right against secret detention places, solitary, incommunicado, or similar forms of detention; Right to have confessions or admissions obtained in violation of these rights considered inadmissible in evidence. NOTE: Looking at the historical background of the Miranda Rights, it would seem that the rights kick in the moment a person has already become the suspect, or the one singled out for investigation for possible participation in the crime under scrutiny. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 226 Political Law Critical Pre-trial Stage (People v. Ting Lan Uy, Jr., G.R. No. 157399, 17 Nov. 2005) R.A. 7438 - An Act Defining Certain Rights of Person Arrested, Detained or Under Custodial Investigation and the Duties of the Arresting, Detaining, and Investigating Officers The “Miranda Rights” are available to avoid involuntary extrajudicial confession. Even if the person consents to answer questions without the assistance of counsel, the moment he asks for a lawyer at any point in the investigation, the interrogation must cease until an attorney is present. This is a special penal law enacted pursuant to Section 12, par. 4, Art. III of the 1987 Constitution. The custodial investigation shall include the practice of issuing an invitation to a person who is under investigation in connection with an offense he is suspected to have committed. (Sec. 2, R.A. No. 7438) The purpose of providing counsel to a person under custodial investigation is to curb the police-state practice of extracting a confession that leads appellant to make self-incriminating statements. (People v. Rapeza, G.R. No. 169431, 03 Apr. 2007) NOTE: Rights during custodial investigation apply only against testimonial compulsion and not when the body of the accused is proposed to be examined (e.g. urine sample, photographs, measurements, garments, shoes) which is a purely mechanical act. Under the right against self-incrimination, the accused may not also be compelled to do certain acts which would produce evidence against him such as urine tests and providing specimen signature. During Custodial Investigation As soon as the investigation ceases to be a general inquiry unto an unsolved crime and direction is aimed upon a particular suspect, as when the suspect who has been taken into police custody and to whom the police would then direct interrogatory questions which tend to elicit incriminating statements. (2014 BAR) The constitutional safeguard is applied notwithstanding that the person is not yet arrested or under detention at the time. However, Fr. Bernas has qualified this statement by saying that jurisprudence under the 1987 Constitution has consistently held, following the stricter view, that the rights begin to be available only when the person is already in custody. (People v. Ting Lan Uy, G.R. No. 157399, 17 Nov. 2005) NOTE: The Miranda rights extend to custodial investigations conducted by neighborhood Watch Groups such as the so-called "Bantay Bayan" or those facilitated by Barangay Tanods or Chairman Hence, uncounseled extrajudicial admissions or confessions given during such investigations are inadmissible as evidence. The mantle of protection afforded by the abovequoted provision covers the period from the time a person is taken into custody for the investigation of his possible participation in the commission of a crime from the time he was singled out as a suspect in the commission of the offense although not yet in custody.” (People v. Reyes, G.R. No. 178300, 17 Mar. 2009) Any inquiry such entities make have the color of a state-related function and objective insofar as the Miranda Rights is concerned. Logically, then, any uncounseled admission or confession made before security guards or private individuals may nonetheless be admissible as evidence. (People v. Lauga, G.R. No. 186228, 18 Mar. 2010; People v. Malngan, GR. No. 170470, 26 Sept. 2006) Infraction of the rights of an accused during custodial investigation or the so-called Miranda Rights render inadmissible only the extrajudicial confession or admission made during such investigation. "The admissibility of other evidence, 227 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights provided they are relevant to the issue and is not otherwise excluded by law or rules, is not affected even if obtained or taken in the course of custodial investigation" (Ho Wai Pang v. People, G.R. No. 176229, 19 Oct. 2011) 3. REQUISITES OF A VALID WAIVER Rights that may be waived 1. 2. Totality of Circumstances Test Rights that may not be waived Out-of-court identifications such as police show-up is inadmissible if it is tainted with improper suggestions by police officers. The right of the accused to be given the Miranda warnings. The totality of circumstances test in resolving the admissibility and relying on out-of-court identification of suspects considers the following: (L-O-A-D-Len-S) 1. 2. 3. 4. 5. 6. Requisites for Valid Waiver 1. 2. 3. Level of certainty demonstrated by the witness at the identification; Opportunity of witness to view the criminal at the time of the crime; Accuracy of any prior description given by the witness; Witness' Degree attention at that time; Length of time between the crime and the identification; and Suggestiveness of the identification procedure. (Concha v. People, G.R. No. 208114, 03 Oct. 2018) During a police line-up, unless admissions or confessions are being elicited from the suspect; (Gamboa v. Cruz, G.R. No. L-56291, 27 June 1988) 2. During administrative investigations; (Sebastian, Jr. v Garchitorena, G.R. No 114028, 18 Oct. 2000) 3. Confessions made by an accused at the time he voluntarily surrendered to the police or outside the context of a formal investigation; (People v Baloloy, G.R. No 140740, 12 Apr. 2002) 4. Statements made to a private person; and (People v Tawat, G.R. No 62871, 25 May 1985) 5. Forensic investigation is not tantamount to custodial investigation, therefore Miranda rights is not applicable. (People v. Tranca, G.R. No. 110357, 17 June 1984) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Made voluntarily, knowingly and intelligently; In writing; and With the presence of counsel. (People v. Galit, G.R. No. L-51770, 20 Mar. 1985) Admissibility as evidence of confessions given to news reporters and/or media and videotaped confessions Confessions given in response to a question by news reporters, not policemen, are admissible. Where the suspect gave spontaneous answers to a televised interview by several press reporters, his answers are deemed to be voluntary and are admissible. Videotaped confessions are admissible, where it is shown that the accused unburdened his guilt willingly, openly and publicly in the presence of the newsmen. Such confessions do not form part of confessions in custodial investigations as it was not given to policemen but to media in attempt to solicit sympathy and forgiveness from the public. Unavailability of Miranda Rights 1. Right to remain silent; and Right to counsel. However, due to inherent danger of these videotaped confessions, they must be accepted with extreme caution. They should be presumed involuntary, as there may be connivance between the police and media men. (People v. Endino, G.R. No. 133026, 20 Feb. 2001) NOTE: What the Constitution bars is the compulsory disclosure of the incriminating facts or confessions. The rights under Sec. 12 are guarantees to preclude the slightest use of coercion by the State, and not to prevent the suspect from freely and 228 Political Law Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. (Sec. 3(2), Art. III, 1987 Constitution) voluntarily telling the truth. (People v. Andan, G.R. No. 116437, 03 March 1997) Q: Constancio and Berry were charged with the crime of Rape with Homicide committed against “AAA”. During the trial, Amparo, a news reporter, testified that he personally interviewed Berry. Amparo declared that during his interview, Berry revealed what happened the night “AAA” was killed. Atty. Suarez testified that during the custodial investigation he advised Berry of his constitutional rights and the consequences of his statements. Berry then executed an extrajudicial confession which was embodied in a Sinumpaang Salaysay. However, at the trial, Berry attested that the Sinumpaang Salaysay was false, and claimed that he was threatened into signing the same. Is the confession admissible? The issue of admissibility of such evidence may be waived. Objections are deemed waived if not raised during trial. (Demaisip v. CA, G.R. No. 89393, 25 Jan. 1991) NOTE: 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. Q: Mayor Tatum arrived and proceeded to the investigation room. Upon seeing the mayor, appellant Flores approached him and whispered a request to talk privately. The mayor led appellant to the office of the Chief of Police and there, Flores broke down and said "Mayor, patawarin mo ako! I will tell you the truth. I am the one who killed Villaroman." The mayor opened the door of the room to let the public and media representatives witness the confession. The mayor first asked for a lawyer to assist appellant but since no lawyer was available she ordered the proceedings photographed and videotaped. In the presence of the mayor, the police, representatives of the media and appellant's own wife and son, appellant confessed his guilt. His confession was captured on videotape and covered by the media nationwide. Did such uncounseled confession violate the suspect’s constitutional rights? A: YES. The Court believed that Berry’s confession is admissible because it was voluntary executed with the assistance of a competent and independent counsel in the person of Atty. Suarez following Section 12, Article III of the Constitution. In default of proof that Atty. Suarez was negligent in his duties, the Court held that the custodial investigation of Berry was regularly conducted. there was no ample proof to show that Berry’s narration of events to Amparo was the product of intimidation or coercion. Berry’s extrajudicial confession to Amparo, a news reporter, is deemed voluntary and is admissible in evidence as it was not made to the police authorities or to an investigating officer. (People v. Constancio, G.R. No. 206226, 04 Apr. 2016) 4. EXCLUSIONARY DOCTRINE A: NO. A confession given to the mayor may be admitted in evidence if such confession by the suspect was given to the mayor as a confidant and not as a law enforcement officer. In such a case, the uncounseled confession did not violate the suspect’s constitutional rights. What the constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights under Sec. 12 are guarantees to preclude the slightest use of coercion by the State and not to prevent the suspect from freely and voluntarily telling the truth. (People v. Andan, G.R. No. 116437, 03 Mar. 1997) Exclusionary Rule (Fruit of the Poisonous Tree Doctrine) 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. It does not necessarily follow that the property illegally seized will be returned immediately, it could remain in custodia legis. 229 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights 2. Q: Accused Antonio Lauga was charged and convicted of the crime of rape of his thirteenyear old daughter, AAA. During the proceedings, Juan Paulo Nepomuceno, a bantaybayan in the barangay, testified that the accused confessed that he had in fact raped AAA. The trial court found him guilty of the crime of rape. Lauga contends that the extrajudicial confession he made to Nepomuceno is inadmissible in evidence as it was made without assistance of counsel. Is his contention tenable? 3. 4. Right to appeal not a natural right The right to appeal is neither a natural right nor part of due process. It is a mere statutory right, but once given, denial constitutes violation of due process. A: YES. A barangay bantaybayan is considered a public officer and any extrajudicial confession made to him without the assistance of counsel is inadmissible in evidence as provided for under Sec. 12, Art. III of the Constitution. (People v. Lauga, G.R. No. 186228, 15 Mar. 2010) 2. BAIL Concept Bail is the security required by the court and given by the accused to ensure that the accused appear before the proper court at the scheduled time and place to answer the charges brought against him. It is awarded to the accused to honor the presumption of innocence until his guilt is proven beyond reasonable doubt, and to enable him to prepare his defense without being subject to punishment prior to conviction (Cortes v. Catral, A.M. No. RTJ-99-1508, 15 Dec. 1999). Its main purpose is to relieve an accused from the rigors of imprisonment until his conviction and secure his appearance at the trial (Paderanga v. CA, G.R. No. 115407, 28 Aug. 1995) N. RIGHTS OF THE ACCUSED (D-I-C-A-S-S-Wit-Do-Ba) 1. Due process; 2. Be presumed Innocent; 3. Be heard by himself and Counsel; 4. Be informed of the nature and cause of the Accusation against him; 5. A Speedy, impartial and public trial; 6. Have compulsory process to Secure the attendance of witnesses and production of evidence on his behalf ; 7. Meet the Witnesses face to face; 8. Against Double jeopardy; and 9. Bail. When available The right to bail is available from the very moment of arrest (which may be before or after the filing of formal charges in court) up to the time of conviction by final judgment (which means after appeal). No charge need be filed formally before one can file for bail, so long as one is under arrest. (Heras Teehankee v. Rovira, G.R. No. L-101, 20 Dec. 1945) 1. CRIMINAL DUE PROCESS No person shall be held to answer for a criminal offense without due process of law. (Sec. 14(1), Art. III, 1987 Constitution) Application for bail in relation to challenging the arrest Requisites of criminal due process (Heard-O-NLaw) 1. The application or admission of the accused to bail shall not bar him from challenging both the validity of his arrest or the legality of the warrant issued therefore, provided that he raises them before he enters his plea. It shall not likewise bar the accused Accused is Heard by a court of competent jurisdiction; UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Accused is proceeded against under the Orderly processes of law; Accused is given Notice and opportunity to be heard; and Judgment must be rendered after Lawful hearing. 230 Political Law Constitutional provisions connected to right to bail from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him provided the same is raised before he enters his plea. (Sec. 26, Rule 114, ROC) 1. The following are entitled to bail: 2. 1. 2. 3. Persons charged with offenses punishable by death, reclusion perpetua or life imprisonment, when evidence of guilt is not strong; Persons convicted by the trial court pending their appeal; and Persons who are members of the AFP facing a court martial. The suspension of the privilege of the writ of habeas corpus does not impair the right to bail; and Excessive bail is not required. NOTE: The amount of bail should be high enough to assure the presence of the accused when so required, but it should be no higher than is reasonably calculated to fulfill this purpose. Thus, bail acts as a reconciling mechanism to accommodate both the accused’s interest in his provisional liberty before or during the trial, and the society’s interest in assuring the accused’s presence at trial. (Enrile v. Sandiganbayan, G.R. No. 213847, 18 Aug. 2015) Q: Sen. Enrile, who was indicted for plunder in connection with the Pork Barrel Scam, applied for bail arguing among others that he is not a flight risk, and that his age and physical condition must be seriously considered. May he post bail? Instances when bail is a matter of right and a matter of discretion 1. A: YES. Enrile’s poor health justifies his admission to bail. The Court is guided by the earlier mentioned principal purpose of bail, which is to guarantee the appearance of the accused at the trial, or whenever so required by the court. The Court is further mindful of the Philippines’ responsibility in the international community arising from the national commitment under the Universal Declaration of Human Rights to make available to every person under detention such remedies which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail. This national commitment to uphold the fundamental human rights as well as value the worth and dignity of every person has authorized the grant of bail not only to those charged in criminal proceedings but also to extraditees upon a clear and convincing showing: (1) that the detainee will not be a flight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances (Enrile v. Sandiganbayan, G.R. No. 213847, 18 Aug. 2015). Bail as a matter of right a. b. c. 2. Bail as a matter of discretion a. b. 231 Before or after conviction by the Metropolitan or Municipal Trial Courts; Before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment; and (Sec. 4, Rule 114, ROC) Before final conviction by all children in conflict with the law for an offense not punishable by reclusion perpetua or life imprisonment. Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment; Regardless of the stage of the criminal prosecution, a person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is not strong; and UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights c. Scenarios where the penalty of the person applying for bail is imprisonment exceeding six years A child in conflict with the law charged with an offense punishable by death, reclusion perpetua or life imprisonment when evidence of guilt is strong. (Sec. 28, A.M. No. 02-1-18-SC or Rule on Juveniles in Conflict with the Law) 1. bail is a matter of discretion. This means that if none of the circumstances mentioned in the third paragraph of Sec. 5, Rule 114 is present, then the appellate court has the discretion to grant or deny bail. An application for bail pending appeal may be denied even if the bail-negating circumstances in the third paragraph are absent; and NOTE: The prosecution cannot adduce evidence for the denial of bail where it is a matter of right. However, where the grant of bail is discretionary, the prosecution may show proof to deny the bail. Grounds for denial of bail If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: 1. 2. 3. 4. 5. NOTE: The discretionary nature of the grant of bail pending appeal does not mean that bail should automatically be granted absent any of the circumstances mentioned in the third paragraph of Sec. 5, Rule 114 of the Rules of Court. (Leviste v. CA, G.R. No. 189122, 17 Mar. 2010) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification; That he committed the offense while under probation, parole, or conditional pardon; That the circumstances of his case indicate the probability of flight if released on bail; or That there is undue risk that he may commit another crime during the pendency of the appeal. 2. Existence of at least one of the said circumstances. The appellate court exercises a more stringent discretion, that is, to carefully ascertain whether any of the enumerated circumstances in fact exists. If it so determines, it has no other option except to deny or revoke bail pending appeal. (Jose Antonio Leviste v. CA, G.R. No. 189122, 17 Mar. 2010) Forms of Bail 1. 2. 3. 4. The appellate court may, motu proprio or on motion of any party, review the resolution of the RTC after notice to the adverse party in either case. (Sec. 5, Rule 114, ROC) Corporate Surety Property Bond Cash deposit; and Recognizance (Sec. 1, Rule 114, ROC) Amount of Bail; Guidelines 1. 2. 3. 4. 5. 6. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Absence of the circumstances enumerated in 3rd par., Sec. 5 of Rule 114. In this scenario, 232 Financial ability of the accused to give bail; Nature and circumstances of offense; Penalty for offense charged; Character and reputation of accused; Age and health of accused; Weight of evidence against the accused; Political Law upon valid complaint or information sufficient to charge him with a crime and his right to bail. (Lavides v. CA, G.R. No. 129670, 01 Feb. 2000) 7. Probability of the accused appearing in trial; 8. Forfeiture of other bonds; 9. Fact that accused was a fugitive from justice when arrested; and 10. Pendency of cases in which the accused is under bond. (A.M. No. 12-11-2-SC, 18 Mar. 2014) NOTE: It should not be taken to mean that the hearing on a petition for bail should at all times precede arraignment, because the rule is that a person deprived of his liberty by virtue of his arrest or voluntary surrender may apply for bail as soon as he is deprived of his liberty, even before a complaint or information is filed against him. (Serapio v. Sandiganbayan, G.R. No. 148468, 28 Jan. 2003) Q: Manolet was arrested for child abuse. She filed a petition for application of bail. The court granted her application with a condition that the approval of the bail bonds shall be made only after her arraignment. Is the court’s order valid? 3. PRESUMPTION OF INNOCENCE A: NO. The grant of bail should not be conditioned upon prior arraignment of the accused. A condition imposed by the judge that before an accused may be allowed to post bail, he must be arraigned first was declared unconstitutional because it violates two (2) important rights of the accused: 1. 2. Basis In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved. (Sec. 14(2), Art. III, 1987 Constitution) NOTE: It can be invoked only by an individual accused of a criminal offense; a corporate entity has no personality to invoke the same. The right not to be put on trial except upon a valid complaint or information sufficient to charge him in court; and Right to bail. Every circumstance favoring the innocence of the accused must be taken into account. The proof against him must survive the test of reason, the strongest suspicion must not be permitted to sway judgment. (People v. Austria, G.R. No. 55109, 8 Apr. 1991) In cases where bail is authorized, bail should be granted before arraignment, otherwise the accused will be precluded from filing a motion to quash which is to be done before arraignment. If the information is quashed and the case is dismissed, there would be no need for the arraignment of the accused. However, after conviction by the trial court, the presumption of innocence terminates and, accordingly, the constitutional right to bail ends. (Leviste v. CA, G.R. No. 189122, 17 Mar. 2010; Qui v. People, G.R. No. 196161, 26 Sept. 2012) To condition the grant of bail on his arraignment would be to place him in a position where he has to choose between: 1. 2. NOTE: There still exists the discretionary bail pending appeal after conviction. Filing a motion to quash and thus delay his release until his motion can be resolved because prior to its resolution, he cannot be arraigned; and Foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. Rules regarding presumption of innocence 1. These scenarios undermine the accused’s constitutional right not to be put on trial except 233 The prosecution has the burden to prove the guilt of the accused beyond reasonable doubt; (People v. Colcol., Jr., G.R. No. 94554, 19 Feb. 1993) UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights 2. The prosecution must rely on the strength of its evidence and not in the weakness of the defense; (People v. Solis, G.R. Nos. 7873233, 14 Feb. 1990) 3. Conviction of an accused must be based on the strength of the prosecution evidence and not on the weakness or absence of evidence of the defense; (People v. Mirondo, G.R. No. 210841, 14 Oct. 2015) 4. The prosecution bears the burden to overcome such presumption. If the prosecution fails to discharge this burden, the accused deserves a judgment of acquittal; and (Delarivav v. People, G.R. No. 212940, 16 Sept. 2015) 5. Generally, flight, in the absence of a credible explanation, would be a circumstance from which an inference of guilt might be established, for a truly innocent person would normally grasp the first available opportunity to defend himself and assert his innocence. It has been held, however, that non-flight may not be construed as an indication of innocence either. There is no law or dictum holding that staying put is proof of innocence, for the Court is not blind to the cunning ways of a wolf which, after a kill, may feign innocence and choose not to flee. In Cristina's case, she explained that she took flight for fear of her safety because of possible retaliation from her husband's siblings. The Court finds such reason for her choice to flee acceptable. She did not hide from the law but from those who would possibly do her harm. (People v. Samson, G.R. No. 214883, 02 Sept. 2015). 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. Here, petitioner fails to show that a logical relation between the fact proved—presence of a person during the hazing—and the ultimate fact presumed—their participation in the hazing as a principal—is lacking. Neither has it been shown how Section 14 of the Anti-Hazing Law does away with the requirement that the prosecution must prove the participation of the accused in the hazing beyond reasonable doubt. (Fuertes v. Senate, G.R. No. 208162, 07 Jan. 2020) 4. RIGHT TO COUNSEL The right to counsel proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned. The due process requirement is part of a person’s basic rights; it is not a mere formality that may be dispensed with or performed perfunctorily. (People v. Ferrer, G. R. No. 14882, 18 July 2003) If he opts to be silent where he has a right to speak, he cannot later be heard to complain that he was unduly silenced. (Stronghold Ins. Co. v. CA, G.R. No. 89020, 05 May 1992) Assistance of Counsel The right to counsel is absolute and may be invoked at all times. In an ongoing litigation, it is a right that must be exercised at every step of the way, with the lawyer faithfully keeping his client company. Unless the accused is represented by a lawyer, there is great danger that any defense presented in his behalf will be inadequate considering the legal perquisites and skills needed in the court proceedings. This would certainly be a denial of due process. (Inacay vs People, G.R. No. 223506, 28 Nov. 2016) Q: Section 14, paragraph 4 of the Anti-Hazing Law provides that an accused's presence during a hazing is prima facie evidence of his or her participation. Does this provision violate the constitutional presumption of innocence? A: NO. This Court has upheld the constitutionality of disputable presumptions in criminal laws. The constitutional presumption of innocence is not UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 234 Political Law Requisites for properly informing the accused of the nature and cause of accusation NOTE: A PAO lawyer can be considered an independent counsel within the contemplation of the Constitution considering that he is not a special counsel, public or private prosecutor, counsel of the police, or a municipal attorney whose interest is admittedly adverse of the accused-appellant. Thus, the assistance of a PAO lawyer satisfies the constitutional requirement of a competent and independent counsel for the accused. (People v. Bacor, G.R. No. 122895, 30 Apr. 1999) 1. 2. 3. 4. 5. When a defendant appears without attorney, the court must: 1. 2. 3. 4. 6. 7. Inform the defendant that it is his right to have attorney; Ask him if he desires the aid of an attorney; Assign an attorney de officio, if he desires and is unable to employ attorney; and Grant him a reasonable time if he desires to procure an attorney of his own. (People v. Holgado, G.R. No. L-2809, 22 Mar. 1950) NOTE: The purpose of an Information is to afford an accused his right to be informed of the nature and cause of the accusation against him. It is in pursuit of this purpose that the Rules of Court require that the Information allege the ultimate facts constituting the elements of the crime charged. Details that do not go into the core of the crime need not be included in the Information, but may be presented during trial. The rule that evidence must be presented to establish the existence of the elements of a crime to the point of moral certainty is only for purposes of conviction. It finds no application in the determination of whether or not an Information is sufficient to warrant the trial of an accused. (People v. Sandiganbayan, G.R. No. 160619, 09 Sept. 2015) 5. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION An accused cannot be convicted in the courts of any offense, unless it is charged in the complaint or information on which he is tried, or necessarily included therein. He has the right to be informed as to the nature of the offense with which he is charged before he is put on trial, and to convict him of an offense higher than that charged in the complaint or information on which he is tried would be an unauthorized denial of that right. (Canceran v. People, G.R. No. 206442, 01 July 2015) It is not necessary for the information to allege the date and time of the commission of the crime with exactitude unless such date and time are essential ingredients of the offenses charged. (People v. Nuyok, G.R. No. 195424, 15 June 2015) Purposes 1. 2. 3. Information must state the name of the accused; Designation given to the offense by statute; Statement of the acts or omission so complained of as constituting the offense; Name of the offended party; Approximate time and date of commission of the offense; Place where offense was committed; and Every element of the offense must be alleged in the complaint or information. Variance Doctrine To furnish the accused with such a description of the charge against him as will enable to make his defense; To avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and To inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. (U.S. v. Karelsen, G.R. No. 1376, 21 Jan. 1904) In spite of the difference between the crime that was charged and that which was eventually proved, the accused may still be convicted of whatever offense that was proved even if not specifically set out in the information provided it is necessarily included in the crime charged. (Teves v. Sandiganbayan, G.R. No. 154182, 17 Dec. 2004) 235 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights 8. RIGHT TO COMPULSORY PROCESS 6. RIGHT TO SPEEDY, IMPARTIAL, AND PUBLIC TRIAL Means to compel the attendance of witnesses and the production of documents and things needed in the prosecution or defense of a case See discussion on Right to Speedy Disposition of Cases – page 237. 7. RIGHT TO CONFRONTATION 1. 2. 3. Two-Fold Purpose 1. 2. To afford the accused an opportunity to test the testimony of a witness by crossexamination; and To allow the judge to observe the deportment of the witness. Requirements for the exercise of the right to secure attendance of witness 1. 2. NOTE: If the failure of the accused to cross-examine a witness is due to his own fault or was not due to the fault of the prosecution, the testimony of the witness should not be excluded. 3. 4. The witness is really material; The attendance of the witness was previously obtained; The witness will be available at the time desired; and No similar evidence could be obtained. NOTE: Right to cross-examine is demandable only during trials. Thus, it cannot be availed of during preliminary investigations. The affidavits of witnesses who are not presented during trial are inadmissible for being hearsay. The accused is denied the opportunity to cross-examine the witnesses. Exceptions to the right of confrontation Depositions are admissible under circumstances provided by the Rules of Court. 1. 2. 3. While the prosecution must provide the accused every opportunity to take the deposition of witnesses that are material to his defense in order to avoid charges of violating the right of the accused to compulsory process, the State itself must resort to deposition-taking sparingly if it is to guard against accusations of violating the right of the accused to meet the witnesses against him face to face. Great care must be observed in the taking and use of depositions of prosecution witnesses to the end that no conviction of an accused will rely on ex parte affidavits and deposition. (Go vs People, G.R. No. 185527, 18 July 2012) Dying declarations and all exceptions to the hearsay rule; Trial in absentia; and Child testimony. 9. TRIAL IN ABSENTIA 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. (Sec. 14(2), Art. III of the 1987 Constitution) Requisites of a Valid Trial in Absentia (A-N-U) 1. 2. 3. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Subpoena ad testificandum and subpoena duces tecum; Depositions and other modes of discovery; and Perpetuation of testimonies. 236 The accused has already been Arraigned; He has duly been Notified of the trial; and His failure to appear is Unjustifiable. (Bernardo v. People, G.R. No. 166980, 04 Apr. 2007) Political Law The presence of the accused is mandatory in the following instances 1. 2. 3. Violation The right to a speedy disposition of a case, like the right to a speedy trial, is deemed violated only when the proceedings are attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured; or even without cause or justifiable motive, a long period of time is allowed to elapse without the party having his case tried. (Roquero v. Chancellor of UP-Manila, G.R. No. 181851, 09 Mar. 2010) During arraignment and plea; During trial, for identification, unless the accused has already stipulated on his identity during the pre-trial and that he is the one who will be identified by the witnesses as the accused in the criminal case; and During promulgation of sentence, unless for a light offense. Right to Speedy Trial Promulgation of judgment in absentia is valid provided the following are present 1. 2. The term “speedy” means free from vexatious, capricious and oppressive delays. Judgment be recorded in the criminal docket; and Copy be served upon accused or counsel. In determining whether the accused's right to speedy trial was violated, the delay should be considered in view of the entirety of the proceedings. The factors to balance are the following: NOTE: Recording the decision in the criminal docket of the court satisfies the requirement of notifying the accused of the decision wherever he may be. (Estrada v. People, G.R. No. 162371, 25 Aug. 2005) a. Duration of the delay; b. Reason thereof; c. Assertion of the right or failure to assert it; and d. Prejudice caused by such delay. O. RIGHT TO SPEEDY TRIAL AND SPEEDY DISPOSITION OF CASES Mere mathematical reckoning of the time involved would not suffice as the realities of everyday life must be regarded in judicial proceedings. (Saldariega v. Panganiban, G.R. Nos. 211933 & 211960, 15 Apr. 2015) Right to Speedy Disposition of Cases This is a right that is available to all persons in all kinds of proceedings, whether criminal, civil, or administrative, unlike the right to speedy trial which is available only to an accused in a criminal case and, therefore, only the accused may invoke such. NOTE: The denial of the right to speedy trial is a ground for acquittal. The right to speedy particularly refers to criminal prosecutions which are at the trial stage while the right to speedy disposition of applies to all cases before judicial, quasi-judicial or administrative bodies trial. (Sec. 14(2), Art. III, 1987 Constitution; cases Sec. 16, Art. III, 1987 Constitution) The right to speedy disposition of cases is different from the right to speedy trial to the extent that the former applies to all cases, whether judicial, quasijudicial, or administrative cases. (Sec. 16, Art. III, 1987 Constitution); whereas, the latter applies to criminal cases only. (Sec. 14(2), Art. III, 1987 Constitution) Q: Luz Almeda, Schools Division Superintendent of the DepEd, was being charged of violation of R.A. 3019. However, the preliminary investigation proceedings took more than 11 237 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights this, Roman did not allege any irregularity in the conduct of the preliminary investigation and approval of the Resolution. Further the Republic explained that the multiple respondents and numerous documents involved made the case more complex and difficult to resolve. The investigating officer needed to evaluate whether each accused impleaded is probably guilty of the charges. long years to resolve due to the repeated indorsement of the case between the Office of the Ombudsman (Ombudsman) and the Office of the Special Prosecutor (OSP). It is attributed to the Ombudsman’s failure to realize that Almeda was not under the jurisdiction of the OSP or the Sandiganbayan. Almeda then prays for the dismissal of the case against her, claiming that there was a violation of her right to speedy trial. Is she correct? In addition, Roman contributed to the delay as he moved for an extension to file his counter-affidavit twice and filed another motion to consolidate the case with another complaint. (Republic v. Sandiganbayan and Roman, G.R. No. 231144, 19 Feb. 2020) A: YES. The right includes within its contemplation the periods before, during and after trial, such as preliminary investigations and fact-finding investigations conducted by the Office of the Ombudsman. Further, this right applies to all cases pending before all judicial, quasi-judicial or administrative bodies and not limited to the accused in criminal proceedings but extends to all parties in all cases, be it civil or administrative in nature. (Almeda v. Office of the Ombudsman (Mindanao), G.R. No. 204267, 25 July 2016) Q: Cesar Matas Cagang, provincial treasurer of Sarangani was one of the government officials alleged of graft and corruption by embezzling millions in public funds. On August 11, 2004, the Office of the Ombudsman found probable cause to charge him of Malversation of Public Funds through Falsification of Public Documents and Violation of Section 3 (e) of R.A. No. 3019. On November 17, 2011 the Ombudsman filed a case at the Sandiganbayan for violation of Section 3 (e) of R.A. No. 3019 and Malversation of Public Funds through Falsification of Public Documents against him. He filed a Motion to Quash/Dismiss on the ground that there was inordinate delay of seven (7) years in the filing of the Informations which violated his constitutional rights to due process and to speedy disposition of cases. Did the Sandiganbayan commit grave abuse of discretion on the ground of inordinate delay in denying petitioner’s Motion to Quash Dismiss? Q: Roman and several others were charged with a violation of the Anti-Graft and Corrupt Practices Act for wrongfully claiming that a mini-theater construction was already finished. Roman filed several extensions to file his counter-affidavit and asked for the consolidation of the case with another complaint. Later on, Roman filed a motion to quash the information claiming that his right to speedy disposition of cases was violated as 11 years already lapsed since the filing of the complaint before the Ombudsman. The Republic claims that they followed the procedures of the law and that the presence of several of accused made it difficult to resolve the case. Will Roman’s motion to quash prosper? A: NO. Sec. 16, Art. III of the 1987 Constitution states that "all persons shall have the right to a speedy disposition of their cases before all judicial, quasijudicial, or administrative bodies. Inordinate delay in the resolution and termination of a preliminary investigation will result in the dismissal of the case against the accused. Courts should appraise a reasonable period from the point of view of how much time a competent and independent public officer would need in relation to the complexity of a given case. Nonetheless, the accused must invoke his or her constitutional rights in a timely manner. A: NO. Citing the case of Corpuz v. Sandiganbayan, the Court ruled that the right to speedy disposition of cases is violated only when there is inordinate delay. The Republic showed that it followed the procedure leading to the resolution of the preliminary investigation. When the Complaint was filed before the Ombudsman, it required the counter-affidavits of respondents. It even granted the motions for extension filed by Roman. Despite UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 238 Political Law The failure to do so could be considered by the courts as a waiver of right. Despite the pendency of the case since 2003, Cagang only invoked his right to speedy disposition of cases when the informations were filed on November 17, 2011. Admittedly, while there was delay in filing the information, Cagang did not show that he asserted his rights during this period, choosing instead to wait until the information was filed against him with the Sandiganbayan. (Cesar Matas Cagang v. Sandiganbayan, G.R. Nos. 206438 and 206458, 31 July 2018) justice." Furthermore, the silence of the accused during such period could not be viewed as an unequivocal act of waiver of their right to speedy determination of their cases. That the accused could have filed a motion for early resolution of their cases is immaterial. The delay of more than eight years that the Provincial Prosecutor incurred is an affront to a reasonable dispensation of justice and such delay could only be perpetrated in a vexatious, capricious and oppressive manner. (People v. Macasaet, G.R. Nos. 196094, 196720 & 197324, 05 Mar. 2018, J. Caguioa) Q: In 1999, nine (9) counts of libel were filed against Emelita on account of nine interrelated newspaper articles which appeared in Makati Times where statements allegedly derogatory to the then Governor and the former Undersecretary of the Department of Interior and Local Government were written by Emelita. In 2007, more than eight (8) years after the filing, the Provincial Prosecutor dismissed without prejudice the complaints for want of jurisdiction by reason of improper venue. It was only in 2008 that the DOJ issued a Resolution finding probable cause which resulted to the filing of two separate Information for libel against Emelita. The delays were attributed to complications in the venue. Emelita filed a motion to dismiss on the ground that the filing of the Information, after the lapse of more than nine (9) years after the filing of the libel complaints, violates her constitutionally guaranteed right to speedy disposition of cases. The RTC, in denying the motion to dismiss, applied the principle of laches or implied acquiescence in construing the silence of the accused or their inaction to object to the delay and/or failure to seasonably raise the right to speedy disposition of their cases as waiver thereof. Is the RTC correct? Q: An information was filed before the Sandiganbayan, charging petitioners with violation of Section 3(e) of Republic Act No. 3019, as amended. Petitioners filed several motions, all containing an argument that there was inordinate delay in the filing of the case, and should thus be dismissed outright for being violative of their right to due process and speedy disposition of cases. Was there a violation of petitioners’ right to speedy disposition of cases? A: NO. Jurisprudence teaches us is that the right to a speedy disposition of cases is a relative and flexible concept and that the assertion of the right ultimately depends on the peculiar circumstances of the case. Moreover, the right is deemed violated only when there is inordinate delay, such that the proceedings are attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured, or when without cause or unjustifiable motive, a long period of time is allowed to elapse without the party having his case tried. The Court ruled that while it took the Special Panel more than three years to issue a Resolution, and another four months for the Ombudsman to approve it, the delay was not inordinate, but was brought about only by the nature and peculiar circumstances of the case. While there was delay, it was not vexatious, capricious, and oppressive as to constitute a violation of the petitioners' right to speedy disposition of cases. (Daep v. Sandiganbayan and People of the Philippines, G.R. No. 244649, 14 June 2021) A: NO. The issue on venue in libel cases is neither a novel nor difficult one. The more than eight years it took the Provincial Prosecutor to resolve a rather routine issue is clearly inordinate, unreasonable and unjustified. Under the circumstances, it cannot be said "that there was no more delay than is reasonably attributable to the ordinary processes of 239 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights This constitutional privilege has been defined as a protection against testimonial compulsion, but this has since been extended to any evidence “communicative in nature” acquired under circumstances of duress. (People v. Olvis, G.R. No. 71092, 30 Sept. 1987) Right to Public Trial GR: 1. Trial must be public in order to prevent possible abuses which may be committed against the accused; and 2. The attendance at the trial is open to all, irrespective of their relationship to the accused. XPN: If the evidence to be adduced is “offensive to decency or public morals,” the public may be excluded. (Sec. 21, Rule 119, Rules of Criminal Procedure) NOTE: What is prohibited is the use of physical or moral compulsion to extort communication from the witness or to otherwise elicit evidence which would not exist were it not for the actions compelled from the witness–NOT the inclusion of his body in evidence when it may be material. For instance, substance emitted from the body of the accused may be received as evidence in prosecution for acts of lasciviousness. (U.S. v. Tan Teng, 23 Phil. 145, 07 Sept. 1912). And morphine forced out of the mouth of the accused may also be used as evidence against him. (U.S. v. Ong Siu Hong, 36 Phil. 735, 03 Aug. 1917) Public Trial is not synonymous with Publicized Trial The right to a public trial belongs to the accused. The requirement of a public trial is satisfied by the opportunity of the members of the public and the press to attend the trial and to report what they have observed. The accused’s right to a public trial should not be confused with the freedom of the press and the public’s right to know as a justification for allowing the live broadcast of the trial. The tendency of a high-profile case like the subject case to generate undue publicity with its concomitant undesirable effects weighs heavily against broadcasting the trial. Moreover, the fact that the accused has legal remedies after the fact is of no moment, since the damage has been done and may be irreparable. It must be pointed out that the fundamental right to due process of the accused cannot be afforded after the fact but must be protected at the first instance. (In Re: Petition for Radio and Television Coverage of the Multiple Murder Cases against Maguindanao Governor Zaldy Ampatuan, A.M. No. 10-11-5-SC, 23 July 2012) Consequently, although accused-appellant insists that hair samples was forcibly taken from him and submitted to the NBI for forensic examination, the hair samples may be admitted in evidence against him, for what is proscribed is the use of testimonial compulsion or any evidence communicative of the nature acquired from the accused under duress. (People v. Rondero, G.R. No. 125687, 09 Dec. 1999) 1. EXTENT OF THE RIGHT The right is available in: (C-C-I-A-O) 1. 2. 3. 4. 5. P. RIGHT AGAINST SELF-INCRIMINATION Criminal cases; Civil cases; Impeachment; Administrative cases; Other legislative investigations that possess a criminal or penal aspect. It does not apply to private investigations done by private individual. (BPI v. CASA, GR. No. 149454, 28 May 2004). Basis When the privilege against self-incrimination is violated outside of court, say, by the police, then the testimony, as already noted, is not admissible under the exclusionary rule. When the privilege is violated by the court itself, that is, by the judge, the court is No person shall be compelled to be a witness against himself. (Sec. 17, Art. III, 1987 Constitution) (1990, 1992, 1998, 2006 BAR) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 240 Political Law incrimination, because by his conduct of acting out how the crime was supposedly committed, he thereby practically confesses his guilt by action which is as eloquent, if not more so, than words. (People v. Olvis, G.R. No. 71092, 30 Sept. 1987) ousted of its jurisdiction, all its proceedings are null and void, and it is as if no judgment has been rendered. (Chavez v. CA, G.R. No. L-29169, 19 Aug. 1968) Incriminating question Handwritten testimony is covered by the right against self- incrimination 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. NOTE: The privilege against self-incrimination is not self-executing or automatically operational. It must be claimed. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. Under Sec. 17, Art. III of the 1987 Constitution, “no person shall be compelled to be a witness against himself.” Since the provision prohibits compulsory testimonial incrimination, it does not matter whether the testimony is taken by oral or written. Writing is not purely a mechanical act because it requires the application of intelligence and attention. The purpose of the privilege is to avoid and prohibit thereby the repetition and recurrence of compelling a person, in a criminal or any other case, to furnish the missing evidence necessary for his conviction. (Bermudez v. Castillo, Prec. Rec. No. 714-A, 26 July 1937; Beltran v. Samson, G.R. No. 32025, 23 Sept. 1929) The privilege against self-incrimination can be claimed only when the specific question, incriminatory in character, is actually addressed to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed. (Rosete v. Lim, G.R. No. 136051, 08 June 2006) Inapplicability of the right against incrimination to juridical persons Right against Self-Incrimination of an Accused vs. Right against Self-Incrimination of a Witness ACCUSED Can refuse to take the witness stand altogether by invoking the right against selfincrimination. self- It is not available to juridical persons as “it would be a strange anomaly to hold that a state having chartered a corporation to make use of certain franchises, could not, in the exercise of sovereignty, inquire how these franchises had been employed, and whether they have been abused, and demand the production of the corporate books and papers for that purpose.” (Bataan Shipyard and Engineering Corporation v. PCG, G.R. No. 75885, 27 May 1987) ORDINARY WITNESS Cannot refuse to take the witness stand; can only refuse to answer specific questions which would incriminate him in the commission of an offense. 2. IMMUNITY STATUTES NOTE: For, in reality, the purpose of calling an accused as a witness for the People would be to incriminate him. The rule positively intends to avoid and prohibit the certainly inhuman procedure of compelling a person “to furnish the missing evidence necessary for his conviction”. (Chavez v. CA, G.R. No. L-29169, 19 Aug. 1968) 1. 2. Use Immunity Transactional Immunity (Galman v. Pamaran, G.R. Nos. 71208-09, 30 Aug. 1985) TRANSACTIONAL IMMUNITY The testimony of any person or whose possession of evidence Re-enactment of a crime A person who is made to re-enact a crime may rightfully invoke his privilege against self241 USE IMMUNITY The use of the witness compelled testimony and its fruits in any UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights necessary or convenient in determining any part of investigation conducted is immune from criminal prosecution for an offense to which such compelled testimony relates. The witness cannot be prosecuted at all. A: NO. A contract is the law between the parties. It cannot be withdrawn except by their mutual consent. In the case at bar, the Republic, through the PCGG, offered Jesus not only criminal and civil immunity but also immunity against being compelled to testify in any proceeding other than the civil and arbitration cases identified in the agreement, just so he would agree to testify. When the Republic entered in such agreement, it needs to fulfill its obligations honorably as Jesus did. The government should be fair. (Disini v. Sandiganbayan, G.R. No. 180564, 22 June 2010) manner in connection with the criminal prosecution of the witness are prohibited. (Galman v. Pamaran, G.R. Nos. 71208-09, 30 Aug. 1985) The witness can still be prosecuted, but his compelled testimony may not be used against him. Q. RIGHT AGAINST DOUBLE JEOPARDY Basis NOTE: If an accused is given some kind of immunity by the State in exchange for his testimony against his co- accused in a criminal case, he may no longer validly invoke his right against self-incrimination. 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. (Sec. 21, Art. III, 1987 Constitution) Q: The Republic of the Philippines filed a case against Westinghouse Corporation before the US District Court due to the belief that Westinghouse contract for the construction of the Bataan Nuclear Power Plant, which was brokered by HerminioDisini’s company, had been attended by anomalies. Having worked as Herminio’s executive in the latter’s company for 15 years, the Republic asked Jesus Disini to give his testimony regarding the case. Rationale To reconsider a judgment of acquittal places the accused twice in jeopardy for being punished for the crime of which he has already been absolved. There is reason for this provision of the Constitution. In criminal cases, the full power of the State is ranged against the accused. If there is no limit to attempts to prosecute the accused for the same offense after he has been acquitted, the infinite power and capacity of the State for a sustained and repeated litigation would eventually overwhelm the accused in terms of resources, stamina, and the will to fight. (Lejano v. People, G.R. Nos. 176389 and 176864, 14 Dec. 2010) An immunity agreement was entered between Jesus and the Republic which he undertook to testify for his government and provide its lawyers with information needed to prosecute the case. Said agreement gave Jesus an assurance that he shall not be compelled to give further testimonies in any proceeding other than the present matter. Jesus complied with his undertaking. But after 18 years, Sandiganbayan issued a subpoena against him, commanding him to testify and produce documents before said court in an action filed against Herminio. Can Jesus be compelled to testify before the Sandiganbayan? UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Two kinds of double jeopardy 1. 2. 242 Double jeopardy for the same offense; (1st sentence, Sec. 21, Art. III, 1987 Constitution); and Double jeopardy for the same act. (2nd sentence, Sec. 21, Art. III, 1987 Constitution); Political Law Grant of demurrer to evidence operates as an acquittal (People v. Quijada, G.R. Nos. 115008-09, 24 July 1996) The grant of a demurrer to evidence operates as an acquittal and is, thus, final and unappealable. 1. REQUISITES AND LIMITATIONS Legal jeopardy attaches only upon: (Com-Fi-A-PA-W-E-C) 1. 2. 3. 4. 5. The demurrer to evidence in criminal cases is filed after the prosecution had rested its case, and when the same is granted, it calls for an appreciation of the evidence adduced by the prosecution and its sufficiency to warrant conviction beyond reasonable doubt, resulting in a dismissal of the case on the merits, is tantamount to an acquittal of the accused. Such dismissal of a criminal case by the grant of demurrer to evidence may not be appealed, for to do so would be to place the accused in double jeopardy. The verdict being one of acquittal, the case ends there. Valid Complaint or information; Filed before a competent court; The Arraignment of the accused; To which he had Pleaded; and Defendant was previously Acquitted or convicted, or the case dismissed or otherwise terminated Without his Express Consent. (Saldariega v. Panganiban, G.R. Nos. 211933 & 211960, 15 April 2015) NOTE: Consent of the accused to the dismissal cannot be implied or presumed; it must be expressed as to have no doubt as to the accused’s conformity. (Caes v. IAC, 179 SCRA 54, 06 Nov. 1989) Exceptions to the right against double jeopardy 1. When the trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction; (Bangayan, Jr. v. Bangayan, G.R. No. 172777, and De Asis Delfin v. Bangayan, G.R. No. 172792, 19 Oct. 2011) 2. The accused was not acquitted nor was there a valid and legal dismissal or termination of the case; 3. Dismissal of the case preliminary investigation; 4. It does not apply to administrative cases; and 5. Dismissal or termination of the case was with the express consent of the accused. To substantiate a claim of double jeopardy, the following must be proven: (Fi-Va-Sa) 1. 2. 3. A First jeopardy must have attached prior to the second; The first jeopardy must have been Validly terminated; and The second jeopardy must be for the Same offense, or the second offense includes or is necessarily included in the offense charged in the first information or is an attempt to commit the same or is a frustration thereof. Related protections provided by the right against double jeopardy 1. 2. 3. was during the NOTE: When the dismissal is made at the instance of the accused, there is no double jeopardy. (People v. Quijada, G.R. Nos. 11500809, 24 July 1996) Against a second prosecution for the same offense after acquittal; Against a second prosecution for the same offense after conviction; and Against multiple punishments for the same offense. GR: Double jeopardy is not available when the case is dismissed other than on the merits or other than by acquittal or conviction upon motion of the accused personally, or through counsel, since such dismissal is regarded as with 243 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights material cannot be the subject of two separate libels. The two offenses, one, a violation of Art. 353 of the Revised Penal Code and the other a violation of Sec. 4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact one and the same offense. Online libel under Sec. 4(c)(4) is not a new crime but is one already punished under the Art. 353. Sec. 4(c)(4) merely establishes the computer system as another means of publication. Charging the offender under both laws would be a blatant violation of the proscription against double jeopardy. (Disini v. Secretary of Justice, G.R. No. 203335, 11 Feb. 2014) express consent of the accused, who is therefore deemed to have waived the right to plea double jeopardy. XPNs: a. Dismissal based on insufficiency of evidence; (Saldariega v. Panganiban, G.R. Nos. 211933 & 211960, 15 Apr. 2015) b. c. Dismissal because of denial of accused’s right to speedy trial; and (Saldariega v. Panganiban, G.R. Nos. 211933 & 211960, 15 Apr. 2015) d. Accused is discharged to be a State witness. 6. When the case was provisionally dismissed; 7. The graver offense developed due to supervening facts arising from the same act or omission constituting the former charge; Q: Jet was convicted for Reckless Imprudence Resulting in Slight Physical Injuries. Can he still be prosecuted for Reckless Imprudence Resulting in Homicide and Damage to Property arising from the same incident? A: NO. The doctrine that reckless imprudence under Art. 365 is a single quasi-offense by itself and not merely a means to commit other crimes such that conviction or acquittal of such quasi-offense bars subsequent prosecution for the same quasi-offense, regardless of its various resulting acts. NOTE: Doctrine of Supervening Event - The accused may still be prosecuted for another offense if a subsequent development changes the character of the first indictment under which he may have already been charged or convicted. (Sec. 7(2), Rule 117, ROC) 8. The facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; 9. The plea of guilty to a lesser offense was made without the consent of the prosecutor and of the offended party except as otherwise provided in Sec. 1(f) of Rule 116. Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasioffense of criminal negligence under Art. 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. Q: Hans, a writer in Q Magazine, published an article about Carlo’s illicit affairs with other women. The magazine also happened to have a website where the same article was published. Carlo then filed a libel case against Hans both under the Revised Penal Code and the Cybercrime Law. Is there a violation of the proscription against double jeopardy? 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 prosecutions. (Ivler v. Hon. Modesto-San Pedro, G.R. No. 172716, 17 Nov. 2010) A: YES. There should be no question that if the published material on print, said to be libelous, is again posted online or vice versa, that identical UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 244 Political Law convicted, they were not placed in double jeopardy. The first requirement for jeopardy to attach – that the information was valid – has not been complied with. (Herrera v. Sandiganbayan, G.R. Nos. 11966061, 13 Feb. 2009) Q: Three Informations were filed against John for two counts of murder and one count of attempted murder. At the pre-trial, it was agreed that the prosecution would present its evidence in four settings. However, the prosecution failed to present a single witness in each of those four settings. Thus, the Court dismissed the cases and directed the release of John. The Prosecutor filed a motion for reconsideration, claiming that notices to the prosecution witnesses had not been served because they constantly transferred to other places due to persistent threats to their lives as a result of these cases. The Court granted the motion and ordered the rearrest of John. After trial on the merits, the Court convicted John of the crimes charged. On appeal, John claims that he was deprived of his right to a speedy trial and was placed in double jeopardy. Is John correct? NOTE: When the first case was dismissed due to insufficiency of evidence without giving the prosecution the opportunity to present its evidence, jeopardy has not yet attached. (People v. Dumlao, G.R. No. 168918, 02 Mar. 2009) Q: After a long and protracted trial, the accused involved in the murder of then Senator Aquino were acquitted by the Sandiganbayan. After the EDSA People Power Revolution, a commission appointed by President Aquino recommended the re-opening of the Galman-Aquino murder case after finding out that the then authoritarian president Marcos ordered the Tanodbayan and Sandiganabyan to rig the trial. Marcos repudiated the findings of the very Fact Finding Board that he himself appointed to investigate the assassination of Ninoy Aquino; he totally disregarded the Board’s majority and minority findings of fact and publicly insisted that the military’s “fall guy” Rolando Galman was the killer of Ninoy Aquino; the Sandiganbayan’s decision in effect convicted Rolando Galman as Ninoy’s assassin notwithstanding that he was not on trial but the victim, and granted all 26 accused total absolution notwithstanding the Fact Finding Board declaring the soldiers’ version of Galman being Aquino’s killer a perjured story. Will the rule on double jeopardy apply? A: YES. It is incumbent upon the State and the private complainants, where applicable, to exert reasonable efforts to prosecute the case, especially in cases where the accused is incarcerated. The delay here shows that the prosecution and the private complainants failed to exert the reasonable efforts to even present any evidence. The reason for their failure is likewise unsubstantiated. Furthermore, in instances where the State has been given every opportunity to present its evidence, yet it failed to do so, it cannot claim to have been deprived of a fair opportunity to present its evidence. Such failure and the resulting dismissal of the case is deemed an acquittal of the accused even if it is the accused who moved for the dismissal of the case and will bar another prosecution of the accused for the same offense. This is an exception to the rule that a dismissal, upon the motion or with the express consent of the accused, will not be a bar to the subsequent prosecution for the same offense. (People v. Domingo, G.R. No. 204895, 21 Mar. 2018, J. Caguioa) A: NO. There was no double jeopardy. It is a settled doctrine that double jeopardy cannot be invoked against this Court’s setting aside of the trial courts’ judgment of dismissal or acquittal where the prosecution which represents the sovereign people in criminal cases is denied due process. The proceedings that took place before was a sham and a mock trial which resulted in the denial of the State’s right to due process. (Galman v. Sandiganbayan, G.R. No. 72670, 12 Sept. 1986) A Valid Information is required in order for the First Jeopardy to attach When accused policemen entered their pleas of not guilty, and later arraigned anew by reason of amendment of information, and consequently 245 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights revival of the charge against her despite her acquittal and would thereby violate the constitutional proscription against double jeopardy. Is the contention of GMA tenable? Effect of order of a court which lacks jurisdiction Since the MTC did not have jurisdiction to take cognizance of the case pending this Court’s review of the RTC Order, its order of dismissal was a total nullity and did not produce any legal effect. Thus, the dismissal neither terminated the action on the merits, nor amounted to an acquittal. A: YES. The general rule is that the grant of a demurrer to evidence operates as an acquittal and is, thus, final and unappealable. The demurrer to evidence in criminal cases, such as the one at bar, is ''filed after the prosecution had rested its case," and when the same is granted, it calls "for an appreciation of the evidence adduced by the prosecution and its sufficiency to warrant conviction beyond reasonable doubt, resulting in a dismissal of the case on the merits, tantamount to an acquittal of the accused." Such dismissal of a criminal case by the grant of demurrer to evidence may not be appealed, for to do so would be to place the accused in double jeopardy. The verdict being one of acquittal, the case ends there. (MacapagalArroyo v. People of the Philippines, G.R. No. 220598, 18 Apr. 2017) The same can be said of the Order of Revival. Since both orders cannot be the source of any right nor create any obligation, the dismissal and the subsequent reinstatement of Criminal Case No. 89724 did not effectively place the petitioners in double jeopardy. (Quiambao v. People, G.R. No. 185267, 17 Sept. 2014) The appeal of an accused operates as a waiver of his right against double jeopardy 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.” In other words, when appellant appealed the RTC’s judgment of conviction for murder, he is deemed to have abandoned his right to invoke the prohibition on double jeopardy since it became the duty of the appellate court to correct errors as may be found in the appealed judgment. Thus, appellant could not have been placed twice in jeopardy when the CA modified the ruling of the RTC by finding him guilty of robbery with homicide as charged in the Information instead of murder. (People v. Torres, G.R. No. 189850, 22 Sept. 2014) R. RIGHT AGAINST INVOLUNTARY SERVITUDE Involuntary servitude It is where one is compelled by force, coercion, or imprisonment, and against his will, to labor for another, whether he is paid or not. GR: No involuntary servitude shall exist. (1993 BAR) XPNs: (Pu-S-E-C-O-M) 1. Q: Former President Gloria Macapagal-Arroyo (GMA) filed a demurrer to evidence as a defense in the criminal case filed against her. The Supreme Court granted the said petition. The Office of the Ombudsman moved for the reconsideration of the decision. As a defense, GMA contends that the decision has effectively barred the consideration and granting of the motion for reconsideration of the State because doing so would amount to re-prosecution or UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 2. 3. 4. 5. 246 Punishment for a crime for which the party has been duly convicted; Personal military or civil Service in the interest of national defense; In naval Enlistment, a person who enlists in a merchant ship may be compelled to remain in service until the end of a voyage; Posse comitatus or the Conscription of ablebodied men for the apprehension of criminals; Return to work Order issued by the DOLE Secretary or the President; Political Law 6. under contemporary standards. (Leo Echegaray v. Secretary of Justice, G.R. No. 132601, 12 Oct. 1998) Minors under patria potestas are obliged to obey their parents. Cruel and Inhuman Penalty S. RIGHT AGAINST EXCESSIVE FINES, AND CRUEL AND INHUMAN PUNISHMENTS A penalty is cruel and inhuman if it involves torture or lingering suffering. (e.g. being drawn and quartered) The prohibition of cruel and unusual punishments is generally aimed at the form or character of the punishment rather than its severity in respect of duration or amount and applies to punishments which public sentiment has regarded as cruel or obsolete, for instance, those inflicted at the whipping post, or in the pillory, burning at the stake, breaking on the wheel, disemboweling, and the like. Fine and imprisonment would not thus be within the prohibition. It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. Degrading Penalty A penalty is degrading if it exposes a person to public humiliation. (e.g. being tarred and feathered, then paraded throughout town) NOTE: The power to re-impose the death penalty for certain heinous crimes is vested in the Congress; not in the President. After all, the power to define crimes and impose penalties is legislative in nature. Q: Petitioner claims that the Anti-Hazing Law imposes cruel and unusual punishments on those charged under it, as the offense is punishable with reclusion perpetua, a nonbailable offense. In line with this, this Court has found that the penalty of life imprisonment or reclusion perpetua does not violate the prohibition. Even the death penalty in itself was not considered cruel, degrading, or inhuman. A: NO. Settled is the rule that a punishment authorized by statute is not cruel, degrading or disproportionate to the nature of the offense unless it is flagrantly and plainly oppressive and wholly disproportionate to the nature of the offense as to shock the moral sense of the community. It takes more than merely being harsh, excessive, out of proportion or severe for a penalty to be obnoxious to the Constitution. Based on this principle, the Court has consistently overruled contentions of the defense that the penalty of fine or imprisonment authorized by the statute involved is cruel and degrading. Nonetheless, this Court has found that penalties like fines or imprisonment may be cruel, degrading, or inhuman when they are "flagrantly and plainly oppressive and wholly disproportionate to the nature of the offense as to shock the moral sense of the community." However, if the severe penalty has a legitimate purpose, then the punishment is proportionate, and the prohibition is not violated. (Fuertes v. Senate, G.R. No. 208162, 07 Jan. 2020) NOTE: The fact that the punishment authorized by the statute is severe does not make it cruel and unusual. (Corpuz v. People, G.R. No. 180016, 29 Apr. 2014) The intent of the Anti-Hazing Law is to deter members of a fraternity, sorority, organization, or association from making hazing a requirement for admission. By making the conduct of initiation rites that cause physical and psychological harm malum prohibitum, the law rejects the defense that one's desire to belong to a group gives that group the license to injure, or even cause the person's death. Mere extinguishment of life alone does not constitute cruel, degrading, inhuman punishment. To be such, it must involve prolonged agony and suffering; it refers more to the nature of the punishment to be inflicted upon a convict, that which is shocking to the conscience of mankind 247 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights because his liability is ex delicto and not ex contractu. Moreover, the law was meant to counteract the exculpatory implications of "consent" and " initial innocent act" in the conduct of initiation rites by making the mere act of hazing punishable or mala prohibita. Generally, a debtor cannot be imprisoned for failure to pay his debt. However, if he contracted his debt through fraud, he can be validly punished in a criminal action as his responsibility arises not from the contract of loan but from commission of a crime. (Lozano v. Martinez, G.R. No. L-63419, 18 Dec. 1986) Petitioner here fails to show how the penalties imposed under the Anti-Hazing Law would be cruel, degrading, or inhuman punishment, when they are similar to those imposed for the same offenses under the Revised Penal Code, albeit a degree higher. To emphasize, the Anti-Hazing Law aims to prevent organizations from making hazing a requirement for admission. The increased penalties imposed on those who participate in hazing is the country's response to a reprehensible phenomenon that persists in schools and institutions. The AntiHazing Law seeks to punish the conspiracy of silence and secrecy, tantamount to impunity, that would otherwise shroud the crimes committed. (Fuertes v. Senate, G.R. No. 208162, 07 Jan. 2020) U. EX POST FACTO LAW AND BILL OF ATTAINDER An ex post facto law is any law that makes an action, done before the passage of the law, which was innocent when done, criminal, and punishes such action. Ex post facto laws, unless they are favorable to the defendant, are prohibited. (U.S. v. Conde, G.R. No. L-18208, 14 Feb. 1922) (1990 BAR) Kinds of ex post facto law T. NON-IMPRISONMENT FOR DEBTS It can be a law that: (In-A-Great-E-Civ-Pro) Basis 1. Makes an act, which was Innocent when done, criminal and punishes such action; No person shall be imprisoned for debt or nonpayment of a poll tax. (Sec. 20, Article III, 1987 Constitution) (1993, 1997, 2000, 2002 BAR) 2. Aggravates a crime or makes it greater than when it was committed; Debt 3. Changes the punishment and inflicts a Greater punishment than the law annexed to the crime when it was committed; 4. Alters the legal rules of Evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant; 5. Assumes to regulate Civil rights and remedies only. In effect imposes penalty or deprivation of a right for something which when done was lawful; or 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 It is any civil obligation arising from contract. Poll tax A specific sum levied upon any person belonging to a certain class without regard to property or occupation (e.g. community tax). NOTE: A tax is not a debt since it is an obligation arising from law. Hence, its non-payment maybe validly punished with imprisonment. Only poll tax is covered by the constitutional provision. If an accused fails to pay the fines imposed upon him, this may result in his subsidiary imprisonment UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 248 Political Law The Presidential Ad Hoc Committee on Behest Loans was created on Oct. 8, 1992 under Administrative Order No. 13. Subsequently, Memorandum Order No. 61, dated Nov. 9, 1992, was issued defining the criteria to be utilized as a frame of reference in determining behest loans. conviction or acquittal, or a proclamation of amnesty. (Nuñez v. Sandiganbayan and People, G.R. Nos. L-50581-50617, 30 Jan. 1982) Characteristics of ex post facto law The ex post facto law must: (C-P-R) 1. 2. 3. Accordingly, if these Orders are to be considered the bases of charging respondents for alleged offenses committed, they become ex-post facto laws which are proscribed by the Constitution. The Committee filed a Motion for Reconsideration, but the Ombudsman denied it on July 27, 1998. Refer to Criminal matters; Be to the Prejudice of the accused; and Be Retroactive in its application. Q: On Oct. 8, 1992 President Ramos issued A.O. No. 13 creating the Presidential AdHoc FactFinding Committee on Behest Loans. The Committee was tasked to inventory all behest loans and determine the courses of action that the government should take to recover these loans. Are Administrative Order No. 13 and Memorandum Order No. 61 ex-post facto laws? A: NO. The constitutional doctrine that outlaws an ex post facto law generally prohibits the retrospectivity of penal laws. Penal laws are those acts of the legislature which prohibit certain acts and establish penalties for their violations; or those that define crimes, treat of their nature, and provide for their punishment. The subject administrative and memorandum orders clearly do not come within the shadow of this definition. By Memorandum Order No. 61 dated Nov. 9, 1992, the functions of the Committee were expanded to include all non-performing loans which shall embrace behest and non-behest loans. Said Memorandum also named criteria to be utilized as a frame of reference in determining a behest loan. Several loan accounts were referred to the Committee for investigation, including the loan transactions between PEMI and the DBP. Administrative Order No. 13 creates the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, and provides for its composition and functions. It does not mete out penalty for the act of granting behest loans. Memorandum Order No. 61 merely provides a frame of reference for determining behest loans. Consequently, Atty. Salvador, Consultant of the Fact-Finding Committee, and representing the PCGG, filed with the Ombudsman a sworn complaint for violation of Sections 3(e) and (g) of R.A. No. 3019 against the respondents Mapa, Jr. et. al. The Ombudsman dismissed the complaint on the ground of prescription. Not being penal laws, Administrative Order No. 13 and Memorandum Order No. 61 cannot be characterized as ex post facto laws. There is, therefore, no basis for the Ombudsman to rule that the subject administrative and memorandum orders are ex post facto. (Salvador v. Mapa, Jr., G.R. No. 135080, 28 Nov. 2007) According to the Ombudsman, the loans were entered into by virtue of public documents during the period of 1978 to 1981.Records show that the complaint was referred and filed with the Ombudsman on Oct. 4, 1996 or after the lapse of more than fifteen years from the violation of the law. Therefore, the offenses charged had already prescribed. 249 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights Habeas Corpus for Michael Labrador Abellana, G.R. No. 232006, 10 July 2019, Caguioa, J.) Bill of attainder A bill of attainder is generally understood as a legislative act which inflicts punishment on individuals or members of a particular group without a judicial trial. The writ of habeas corpus extends 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. (Sec. 1, Rule 102, ROC) A bill of attainder encroaches on the courts' power to determine the guilt or innocence of the accused and to impose the corresponding penalty, violating the doctrine of separation of powers. (Fuertes v. Senate, G.R. No. 208162, 07 Jan. 2020) The most basic criterion for the issuance of the writ is that the individual seeking such relief be illegally deprived of his freedom of movement or placed under some form of illegal restraint. NOTE: For a law to be considered a bill of attainder, it must be shown to contain all of 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." The most essential of these elements is the complete exclusion of the courts from the determination of guilt and imposable penalty. (Fuertes v. Senate, G.R. No. 208162, 07 Jan. 2020) Concomitantly, if a person's liberty is restrained by some legal process, the writ of habeas corpus is unavailing. The writ cannot be used to directly assail a judgment rendered by a competent court or tribunal which, having duly acquired jurisdiction, was not ousted of this jurisdiction through some irregularity in the course of the proceedings. It is only when a statute applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial does it become a bill of attainder. However, jurisprudence has recognized that the writ of habeas corpus may also be availed of as a post-conviction remedy when, as a consequence sentence as to circumstance of a judicial proceeding, any of the following exceptional circumstances is attendant: Two kinds of bill of attainder 1. 1. 2. 2. Bill of attainder proper (legislative imposition of the death penalty); and Bill of pains and penalties (imposition of a lesser penalty. 3. V. WRITS OF HABEAS CORPUS, KALIKASAN, HABEAS DATA, AND AMPARO Purpose 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." (Sec. 1, Rule 102, ROC) WRIT OF HABEAS CORPUS Writ of habeas corpus is a speedy and effectual remedy to relive persons from unlawful restraint. It secures to a prisoner the right to have the cause of his detention examined and determined by a court of justice and to have it ascertained whether he is held under lawful authority. (In Re: The Writ of UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES There has been a deprivation of a constitutional right resulting in the restraint of a person; The court had no jurisdiction to impose the sentence; or The imposed penalty has been excessive, thus voiding the sentence as such excess. (In Re: The Writ of Habeas Corpus for Michael Labrador Abellana, G.R. No. 232006, 10 July 2019, Caguioa, J.) The primary purpose of the writ "is to inquire into all manner of involuntary restraint as distinguished 250 Political Law habeas corpus petition calls for that response. (Aquino v. Enrile, L-35546, 11 Sept. 1974) from voluntary, and to relieve a person therefrom if such restraint is illegal." "Any restraint which will preclude freedom of action is sufficient." (Villavicencio v. Lukban, G.R. No. 14639, 25 Mar. 1919) Q: Can a petition for habeas corpus be filed to assail the detention of an accused who was arrested by mistaken identity? When to Invoke YES. 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 v. Warden, Quezon City Jail Annex, BJMP Building, Camp Bagong Diwa, Taguig City, G.R. No. 197597, 08, Apr. 2015) Once a deprivation of a constitutional right is shown to exists such as arbitrary detention without charges filed in Court, habeas corpus is the appropriate remedy to assail the legality of the detention. (Conde v. Diaz, 45 Phil. 173) What is the prescribed period of detention of persons arrested prior to filing of charges? WRIT OF KALIKASAN 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: Definition Twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; Eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent; and Thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent. This is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. (Sec. 1, Rule 7, A.M. No. 09-6-8-SC, Rules of Procedure for Environmental Cases) What should the Court do when a petition for habeas corpus is filed For this writ to be issued, the following requisites must concur: When the writ of habeas corpus is invoked, it is incumbent upon the court to pass on the legality of the detention. 1. 1. 2. 3. 2. The liberty enshrined in the Constitution, for the protection of which habeas corpus is the appropriate remedy, imposes that obligation. Its task is clear. It must be performed. 3. That is a trust to which it cannot be recreant. Justify detention or release the detainees. Precisely, a 251 There is an actual or threatened violation of the constitutional right to a balanced and healthful ecology; The actual or threatened violation arises from an unlawful act or omission of a public official or employee, or private individual or entity; and 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 or provinces. (Segovia v. Climate Change UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights Commission, G.R. No. 211010, 07 Mar. 2017, Caguioa, J.) WRIT OF HABEAS DATA Definition Q: Petitioners are Carless People of the Philippines and Car-owners. They claim that they are entitled to the issuance of the extraordinary writs of Kalikasan and Mandamus due to the alleged failure and refusal of Climate Change Commission to implement the Road Sharing Principle, an act mandated by environmental laws, and violation of environmental laws resulting in environmental damage of such magnitude as to prejudice the life, health and property of all Filipinos. Should the writ of Kalikasan and Mandamus be issued to the petitioners? It is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. (Sec. 1, A. M. No. 08-1-16-SC, The Rule on the Writ of Habeas Data) Purpose The writ of habeas data is an independent and summary remedy designed to protect the image, privacy, honor, information, and freedom of information of an individual, and to provide a forum to enforce one's right to the truth and to informational privacy. A: NO. The petitioners failed to establish the requisites for the issuance of the writs prayed for. With regard to the Writ of Kalikasan, apart from the repeated invocation of the constitutional right to health and to a balanced and healthful ecology and bare allegations that their right was violated, the petitioners failed to show that public respondents are guilty of any unlawful act or omission that constitutes a violation of the petitioners' right to a balanced and healthful ecology. Petitioners have not been able to show that respondents are guilty of violation or neglect of environmental laws that causes or contributes to bad air quality. It seeks to protect a person's right to control information regarding oneself, particularly in instances in which such information is being collected through unlawful means in order to achieve unlawful ends. It must be emphasized that in order for the privilege of the writ to be granted, there must exist a nexus between the right to privacy on the one hand, and the right to life, liberty or security on the other. (Gamboa v. Chan, G.R. No. 193636, 24 July 2012) Similarly, the writ of continuing mandamus cannot issue. First, the petitioners failed to prove direct or personal injury arising from acts attributable to the Climate Change Commission to be entitled to the writ. Second, the Road Sharing Principle is merely a principle. It cannot be considered an absolute imposition to encroach upon the province of the Commission to determine the manner by which this principle is applied in their policy decisions. Mandamus lies to compel the performance of duties that are purely ministerial in nature, not those that are discretionary. (Victoria Segovia et. al. v.. The Climate Change Commission, et. al., G.R. No. 211010, 07 Mar. 2017, J. Caguioa) Q: Mayor Marynette Gamboa was included in a government report listing politicians coddling private armies. The PNP supposedly leaked this report to the media, who then made it public. Is Gamboa entitled to a writ of habeas data? A: NO. Gamboa was unable to prove through substantial evidence that her inclusion in the list of individuals maintaining PAGs made her and her supporters susceptible to harassment and to increased police surveillance. It is clear from the foregoing discussion that the state interest of dismantling PAGs far outweighs the UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 252 Political Law In turn, Ilagan applied for a Writ of Habeas Data in the RTC to compel Lee to return the memory card and enjoin her from reproducing and distributing the sex video. Should the writ be issued? alleged intrusion on the private life of Gamboa, especially when the collection and forwarding by the PNP of information against her was pursuant to a lawful mandate. Therefore, the privilege of the writ of habeas data must be denied. (Gamboa v. Chan, G.R. No. 193636, 24 July 2012) A: No. Ilagan was not able to sufficiently allege that his right to privacy in life, liberty or security was or would be violated through the supposed reproduction and threatened dissemination of the subject sex video. Q: Was it lawful for the government to have leaked the said report to the media? While Ilagan purports a privacy interest in the suppression of this video — which he fears would somehow find its way to Quiapo or be uploaded in the internet for public consumption — he failed to explain the connection between such interest and any violation of his right to life, liberty or security. A: NO. Information-sharing must observe strict confidentiality. Intelligence gathered must be released exclusively to the authorities empowered to receive the relevant information. As the rules and existing jurisprudence on the matter evoke, alleging and eventually proving the nexus between one's privacy right to the cogent rights to life, liberty or security are crucial in habeas data cases, so much so that a failure on either account certainly renders a habeas data petition dismissible, as in this case. (Lee v. Ilagan, G.R. No. 203254, 08 Oct. 2014) After all, inherent to the right to privacy is the freedom from "unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary sensibilities.” That it was leaked to third parties and the media was regrettable, even warranting reproach. But it must be stressed that there are other reliefs available to her to address the purported damage to her reputation, making a resort to the extraordinary remedy of the writ of habeas data unnecessary and improper. (Gamboa v. Chan, G.R. No. 193636, 24 July 2012) Q: Two (2) students of STC in Cebu City posted pictures of themselves on their Facebook page wearing only their undergarments. Their classmates showed the Facebook page to their teacher and the two (2) erring students were administratively sanctioned. The subject students questioned the penalty imposed upon them on the ground that the retrieval of the photos from their Facebook page was a violation of their right to privacy. Q: Lee and Ilagan were common law partners. They had bitter arguments that later turned into ugly scenes and violent quarrels. Ilagan, who was a big man but very emotional and physically aggressive, would often hit and slap the hapless female Lee. Are the students correct? Is there a right to privacy on Facebook and other online social media (OSN)? Thus, Lee filed a criminal case against Ilagan for violation of RA 9262. Lee used as part of her evidence a sex video of Ilagan with another woman, which she found in the memory card of their digital camera. Lee reproduced the video for the purpose of using it as evidence in other cases she intends to file against Ilagan. A: NO. Before one can have an expectation of privacy in his or her OSN activity, it is first necessary that said user manifest the intention to keep certain posts private, through the employment of measures to prevent access thereto or to limit its visibility. 253 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings an enforced disappearances or threats thereof. (Sec. 1, A.M. No. 07-9-12-SC, Rule on the Writ of Amparo) And this intention can materialize in cyberspace through the utilization of the OSN's privacy tools. In other words, utilization of these privacy tools is the manifestation, in cyber world, of the user's invocation of his or her right to informational privacy. Extralegal Killings Disappearances Considering that the default setting for Facebook posts is "Public," it can be surmised that the photographs in question were viewable to everyone on Facebook, absent any proof that petitioners' children positively limited the disclosure of the photograph. That the photos are viewable by "friends only" does not necessarily bolster the petitioners' contention. 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: 2. 3. 4. Enforced Extralegal killings are killings committed without due process of law, i.e., without legal safeguards or judicial proceedings. On the other hand, enforced disappearance has been defined by the Court as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law. (Mamba v. Bueno, G.R. No. 191416, Feb. 07 2017) A person who places a photograph on the Internet precisely intends to forsake and renounce all privacy rights to such imagery, particularly under circumstances such as here, where the Defendant did not employ protective measures or devices that would have controlled access to the Web page or the photograph itself. 1. and Elements Constituting Enforced Disappearances That there be an arrest, detention, abduction or any form of deprivation of liberty; That it be carried out by, or with the authorization, support or acquiescence of, the State or a political organization; Facebook "allows the world to be more open and connected by giving its users the tools to interact and share in any conceivable way;" A good number of Facebook users "befriend" other users who are total strangers; The sheer number of "Friends" one user has, usually by the hundreds; and A user's Facebook friend can "share" the former's post, or "tag" others who are not Facebook friends with the former, despite its being visible only to his or her own Facebook friends. (Vivares v. St. Theresa’s College, G.R. No. 202666, 29 Sept. 2014) That it be followed by the State or political organization’s refusal to acknowledge or give information on the fate or whereabouts of the person subject of the amparo petition; and That the intention for such refusal is to remove subject person from the protection of the law for a prolonged period of time. (Navia v. Pardico, G.R. No. 184467, 19 June 2012) WRIT OF AMPARO Privilege of the Writ of Amparo vs. Writ of Amparo This is a remedy available to any person whose right to life, liberty and security is violated of threatened The privilege includes availment of the entire procedure outlined in A.M. No. 07-9-12-SC, the Rule on the Writ of Amparo. After examining the petition and its attached affidavits, the Return and the Definition UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 254 Political Law evidence presented in the summary hearing, the judgment should detail the required acts from the respondents that will mitigate, if not totally eradicate, the violation of or the threat to the petitioner's life, liberty or security. these organizations together with Col. Kasim, should be held fully accountable for the enforced disappearance of Peregrina. Given their mandates, the PNP and the PNPCIDG officials and members were the ones who were remiss in their duties when the government completely failed to exercise extraordinary diligence that the Amparo rule requires. (Razon v. Tagitis, G.R. No. 182498, 03, Dec. 2009) A judgment which simply grants "the privilege of the writ" cannot be executed. It is tantamount to a failure of the judge to intervene and grant judicial succor to the petitioner. (De Lima v. Gatdula, G.R. No. 204528, 19 Feb. 2013) Q: Six (6) department heads of the provincial government of Ilocos Norte appeared before the House Blue Ribbon Committee as resource persons in the investigation being conducted by the said committee with regard to the alleged misuse of the excise taxes collected from Tobacco companies in the province. Q: Can the “Writ of Amparo” be used in all cases of missing persons? A: NO. For the protective writ of amparo to issue in enforced disappearance cases, allegation and proof that the persons subject thereof are missing are not enough. These resource persons (Ilocos 6) were cited in contempt and ordered detained because they refused to provide answers to the questions of the lawmakers (since most of them said they could no longer remember the facts). These resource persons (Ilocos 6) then applied for a Writ of Amparo to protect them from alleged actual and threatened violations of their rights to liberty and security of person. Should the Writ of Amparo be issued? It must also be shown by the required quantum of proof that their disappearance was carried out by, "or with the authorization, support or acquiescence of, [the government] or a political organization, followed by a refusal to acknowledge the same or give information on the fate or whereabouts of said missing persons.” Even if the person sought to be held accountable or responsible in an amparo petition is a private individual or entity, still, government involvement in the disappearance remains an indispensable element. (Navia v. Pardico, G.R. No. 184467, 19 June 2012) A: NO. The privilege of the writ of Amparo is a remedy available ONLY to victims of extra-judicial killings and enforced disappearances or threats of a similar nature, regardless of whether the perpetrator of the unlawful act or omission is a public official or employee or a private individual. The writ of Amparo is designed to protect and guarantee the (1) right to life; (2) right to liberty; and (3) right to security of persons, free from fears and threats that vitiate the quality of life. Petitioners thus failed to establish that their attendance at and participation in the legislative inquiry as resource persons have seriously violated their right to liberty and security, for which no other legal recourse or remedy is available. Perforce, the petition for the issuance of a writ of Amparo must be dismissed. (Agcaoli v. Hon. Farinas, G.R. No. 232395, 03 July 2017) Q: Engr. Peregrina disappeared one day and his wife filed a petition for the Writ of Amparo with the CA directed against the PNP, claiming that the “unexplained uncooperative behavior” of the respondents request for help and their failure and refusal to extend assistance in locating the whereabouts of Peregrina were indicative of their actual physical possession and custody of the missing engineer.” The PNP was held responsible for the “enforced disappearance” of Engr. Peregrina. Is this valid? A: YES. The government in general, through the PNP and the PNP-CIDG, and in particular, the Chiefs of 255 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Bill of Rights Q: Substantial evidence is sufficient in proceedings involving petitions for the writ of amparo. The respondent must show in the return on the writ of amparo the observance of extraordinary diligence. It is envisioned basically to protect and guarantee the right to life, liberty and security of persons, free from fears and threats that vitiate the quality of life. Since what is involved is the issue of child custody and the exercise of parental rights over a child, who, for all intents and purposes, has been legally considered a ward of the State, the Amparo rule cannot be properly applied. (Caram v. Segui, G.R. No. 193652, 05 Aug. 2014) Once an enforced disappearance is established by substantial evidence, the relevant State agencies should be tasked to assiduously investigate and determine the disappearance, and, if warranted, to bring to the bar of justice whoever may be responsible for the disappearance. Q: A Petition for Writ of Amparo was granted by the court after finding that petitioner Vivian A. Sanchez proved with substantial evidence that she and her children became persons of interest and were put under surveillance because of her dead husband’s suspected affiliation with the NPA. The Court pointed out that spousal and filial privileges protected the petitioner and her children from inquiries regarding her husband’s activities because these privileges continue to exist after the death of a spouse. Respondent police officers now filed a Motion for Reconsideration, contending that the right to privacy, as well as gender and power analysis, [is] not applicable in the present case, and asserting further that petitioner failed to present sufficient evidence to prove that she was entitled to the writ. Will the Motion for Reconsideration prosper? Is this a violation of the right to presumption of innocence? A: NO. The proceedings taken under the Rule on the Writ of Amparo are not akin or similar to those in criminal prosecutions. In the former, the guilt or innocence of the respondents is not determined, and no penal sanctions are meted. The proceedings only endeavor to give the aggrieved parties immediate remedies against imminent or actual threats to life, liberty or security. The presumption of innocence is never an issue. In the latter, the prosecution of the accused with due process of law is the object of the proceedings. A: NO. The right to privacy is a fundamental right, explicitly provided for by the Constitution as for the limitations on unwarranted State intrusion into personal affairs. While respondents have the mandate to investigate, their duty must be balanced with petitioner’s fundamental rights. In this case, whatever information respondents may have wished to obtain from petitioner or her children is protected by spousal and filial privilege. The presumption of innocence in favor of the accused is always the starting point. Hence, the need for the State to adduce proof beyond reasonable doubt of the guilt of the accused. (Republic v. Cayanan, G.R. No. 181796, 07 Nov. 2017) Is a petition for a writ of amparo the proper recourse for obtaining parental authority and custody of a minor child previously given up for adoption? Further, through Razon v. Tagitis, courts are mandated to consider the “totality of the obtaining situation” in determining whether a petitioner is entitled to a writ of amparo. In this case, the totality of petitioner’s evidence convincingly shows that she and her family became subject of unwarranted police surveillance due to their relationship with a suspected member of the NPA, which resulted to an actual threat to their life, liberty, and security due to NO. The privilege of the writ of amparo is a remedy available to victims of extra-judicial killings and enforced disappearances or threats of a similar nature, regardless of whether the perpetrator of the unlawful act or omission is a public official or employee or a private individual. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 256 Political Law the government’s unparalleled zeal in eradicating communism. Thus, in determining the existence of substantial evidence to support a petition for a writ of amparo, judges should also be cognizant of the different power dynamics at play when assessing if there is an actual or future threat to a petitioner's life, security, or liberty. Refusing to acknowledge this might lead to an outright denial of protection to those who need it the most. (Sanchez v. Darroca, G.R. No. 242257, 15 June 2021) 257 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Citizenship act to acquire or perfect their Philippine citizenship; VIII. CITIZENSHIP b. Citizenship pertains to a membership in a political community, which is personal and more or less permanent in character. It denotes possession within that particular political community of full civil and political rights subject to special disqualifications. Reciprocally, it imposes the duty of allegiance to the political community. The core of citizenship is the capacity to enjoy political rights, that is, the right to participate in government principally through the right to vote, the right to hold public office and the right to petition the government for redress of grievance. (Republic v. Karbasi, G.R. No. 210412, 29 July 2015) 2. Naturalized Citizens – Those who have become Filipino citizens through naturalization, generally under Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law, which repealed the former Naturalization Law (Act No. 2927), and by Republic Act No. 530. (Bengson III v. HRET, G.R. No. 142840, 07 May 2001) Government officials required to be naturalborn Filipino citizens Citizenship vs. Nationality CITIZENSHIP A term denoting membership of a citizen in a political society, which membership implies, reciprocally, a duty of allegiance on the part of the member and duty of protection on the part of the state Those who elect Philippine citizenship in accordance with Par. 3, Sec. 1, Art. IV of the 1987 Constitution shall be deemed naturalborn citizens. 1. 2. 3. 4. NATIONALITY It has a broader meaning, embracing all who owe allegiance to a state, whether democratic or not, without thereby becoming citizens. Because they owe allegiance to it, they are not regarded as aliens. 5. 6. 7. 8. President; Vice-President; Members of Congress; Justices of Supreme Court and lower collegiate courts; Ombudsman and his deputies; Members of Constitutional Commissions; Members of the Central Monetary Authority; Members of the Commission on Human Rights. A. WHO ARE FILIPINO CITIZENS Kind of Citizenship The following are citizens of the Philippines: 1. 1. Natural-born Citizens – Those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. (Sec. 2, Art. IV, 1987 Constitution) (2019 BAR) The following citizens: a. are natural-born 2. 3. Filipino 4. Those who are citizens of the Philippines from birth without having to perform any UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 258 Those who are Filipino citizens at the time of the adoption of the 1987 Constitution; Those whose fathers or mothers are citizens of the Philippines; Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and Those who are naturalized in accordance with law. (Sec. 1, Art. IV, 1987 Constitution) Political Law Any person having the following qualifications may become a citizen of the Philippines by naturalization: (21-10-G-R-A-M) 1. Must not be less than 21 years of age on the day of the hearing of the petition; 2. Must have resided in the Philippines for a continuous period of not less than 10 years; 3. Must be of Good moral character and believes in the principles underlying the Philippine Constitution, and must have conducted himself in a proper and irreproachable manner during the entire period of his residence in the Philippines in his relation with the constituted government as well as with the community in which he is living; 1. Established a new industry or introduced a useful invention in the Philippines; 2. Been engaged as a Teacher in the Philippines in a public or recognized school not established for the exclusive instruction of children of persons of a particular nationality or race, in any of the branches of education or industry for a period of not less than two years; Honorably held Office under the Government of the Philippines or under that of any of the provinces, cities, municipalities, or political subdivisions thereof; Married to a Filipino woman; Born in the Philippines. (Sec. 3, C.A. 473) 3. 4. Must own Real estate in the Philippines worth not less than P5, 000, or must have some known lucrative trade, profession, or lawful occupation; 5. Must be Able to speak and write English or Spanish and any one of the principal Philippine languages; and 6. 4. 5. NOTE: Naturalization laws are strictly construed in the government’s favor and against the applicant. The applicant carries the burden of proving his full compliance with the requirements of law. (Cruz, 2015) B. MODES OF ACQUIRING CITIZENSHIP 1. Must have enrolled his Minor children of school age, in any of the public schools or recognized private schools where the 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 prior to the hearing of his petition for naturalization as Philippine citizen. (Sec, 2, C.A. 473) By birth a. b. NOTE: These qualifications must be possessed by him at the time he applies for naturalization and not subsequently. (Ibid) Jus Sanguinis – On the basis of blood relationship. Jus Soli – On the basis of the place of birth. 2. By naturalization – The legal act of adopting an alien and clothing him with the privilege of a citizen. 3. By marriage – When a foreign woman marries a Filipino husband, provided, she possesses all qualifications and none of the disqualifications for naturalization. Q: Spouses Ben and Liong were Chinese nationals and had three children. While the children were still minors, the spouses were naturalized as Filipino Citizens pursuant to Letter of Instruction 270 and Philippine Citizenship was conferred by virtue of Presidential Decree 923. Special Qualifications The ten (10) years of continuous residence required above shall be reduced to five (5) years if petitioner has any of the following qualifications: (E-T-O-M-B) 259 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Citizenship a.) Will the naturalization extend to the minor children of Spouses Ben and Liong? Grounds for Losing Philippine Citizenship (N-E-S-Re-Ca-De-M) A: YES. The Court ruled that Letter of Instruction (LOI) 270 and C.A. 473 were in pateri materia, and absent any express repeal, the two laws must be read with one another. Although LOI 270 does not expressly provide that the father’s naturalization automatically extended to his wife and children, Sec. 15 of C.A. 473 provides for the extension of the naturalization of the father to his wife and minor children as long as there is no disqualification and the wife sufficiently shows that she and her minor children permanently resides in the Philippines at the time of the naturalization of the husband. Thus, it must also apply to those who naturalize by virtue of LOI 270. (Republic v Winston Brian Chia Lao, G.R. No. 205218, 28 Aug. 2020) 1. Naturalization in a foreign country; 2. Express renunciation (expatriation); or 3. Subscribing to an oath of allegiance to the constitution or laws of a foreign country upon attaining 21 years of age; or Rendering service to or accepting commission in the armed forces of a foreign country unless: 4. a. b. b.) Later on, Winston, Christopher and Jon filed before the Manila Trial Court, a petition to change the nationality of their parents as reflected in their birth certificate. Will their petitions prosper? A: YES. Rule 108 of the Rules of Court allows both the correction of clerical errors and substantial errors reflected in the documents kept by the civil registry. The nationality of Ben and Liong in Winston, Christopher and Jon’s birth certificates, indicating that they are Chinese, is no longer true after the naturalization of the former. Hence the nationality of Ben and Liong in their children’s birth certificates should be amended to indicate “Filipino.” (Republic v Winston Brian Chia Lao, G.R. No. 205218, 28 Aug. 2020) of citizenship The Philippines has a defensive and/or offensive pact of alliance with the said foreign country; or The said foreign country maintains armed forces in the Philippine territory with its consent provided that at the time of rendering said service, or acceptance of said commission, and taking the oath of allegiance incident thereto, states that he does so only in connection with its service to said foreign country. 5. Cancellation of certificate of naturalization (Denaturalization); or 6. Having been declared by final judgment a Deserter of the armed forces of the Philippines in times of war; or 7. In case of a woman, upon her Marriage, to a foreigner if, by virtue of the laws in force in her husband’s country, she acquires his nationality. (Cruz, 2015) Ways to reacquire citizenship C. LOSS AND RE-ACQUISITION OF PHILIPPINE CITIZENSHIP 1. 2. 3. Philippine citizenship may be lost or reacquired in the manner provided by law. (Sec. 3, Art. IV, 1987 Constitution) Naturalization; Repatriation; and Direct act of Congress. Naturalization An act of formally adopting a foreigner into the political body of a nation by clothing him or her with the privileges of a citizen. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 260 Political Law Repatriation 1. 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. (Bengson III v. HRET and Cruz, G.R. No. 142840, 07 May 2001) 2. The oath of allegiance is a general requirement for all those who wish to run as candidates in Philippine elections; while the renunciation of foreign citizenship is an additional requisite only for those who have retained or reacquired Philippine citizenship under R.A. No. 9225 and who seek elective public posts, considering their special circumstance of having more than one citizenship. To qualify as a candidate in Philippine elections, Filipinos must only have one citizenship, namely, Philippine citizenship. (Jacot v. Dal, G.R. No. 179848, 27 Nov. 2008) How Repatriation is effected 1. 2. Taking the necessary oath of allegiance to the Republic of the Philippines; and Registration in the proper civil registry and in the Bureau of Immigration. The Bureau of Immigration shall thereupon cancel the pertinent alien certificate of registration and issue the certificate of identification as Filipino citizen to the repatriated citizen. RA 9225 “Citizenship acquisition Act of 2003” Take their oath of allegiance to the Republic of the Philippines; and Explicitly renounce their foreign citizenship if they wish to run for elective posts in the Philippines. By renouncing foreign citizenship, one is deemed to be solely a Filipino citizen, regardless of the effect of such renunciation under the laws of the foreign country. Retention and ReFiling of a Certificate of Candidacy does not ipso facto amount to a Renunciation of Foreign Citizenship Reacquisition Natural-born citizens of the Philippines who have lost their Filipino citizenship due to naturalization as citizens of a foreign country are deemed to have re-acquired Philippine citizenship by performing acts provided for in R.A. No. 9225. RA 9225 requires the twin requirements of swearing to an Oath of Allegiance and executing a Renunciation of Foreign Citizenship. (Roseller De Guzman v. COMELEC, G.R. No. 180048, 19 June 2009) Effect of use of Foreign Passport; Maquiling Doctrine Retention Natural-born citizens of the Philippines who, after the effectivity of R.A. 9225, become citizens of a foreign country shall retain their Philippine citizenship. (David v. Agbay, G.R. No. 199113, 18 Mar. 2015) Use of a foreign passport amounts to repudiation or recantation of the oath of renunciation. The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time, only to be violated the next day. It requires an absolute and perpetual renunciation of the foreign citizenship and a full divestment of all civil and political rights granted by the foreign country which granted the citizenship. (Maquiling v. COMELEC, G.R. No. 195649, 16 Apr. 2013) Running for Elective Posts; Oath of Allegiance and Renunciation of Foreign Citizenship R.A. 9225 requires Filipinos availing themselves of the benefits under the said Act to: 261 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Citizenship consequence of conflicting laws of different states. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status. The fact that a person has dual citizenship does not disqualify him from running for public office. (Cordora v. COMELEC, G.R. No. 176947, 19 Feb. 2009) Strict adherence to Maquiling Doctrine Matters dealing with qualifications for public elective office must be strictly complied with. The novelty of the issue is not an excuse from strictly complying with the eligibility requirements to run for public office or to simply allow a candidate to correct the deficiency in his qualification by submitting another oath of renunciation. It is with more reason that we should similarly require strict compliance with the qualifications to run for local elective office. (Arnado v. COMELEC, G.R. No. 210164, 18 Aug. 2015) Candidates with dual citizenship can run for public office provided that upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship. (Mercado v. Manzano, G.R. No. 135083, 26 May 1999) D. DUAL CITIZENSHIP AND DUAL ALLEGIANCE Dual Citizenship vs. Dual Allegiance DUAL CITIZENSHIP INVOLUNTARY It arises when, as a result of concurrent application of the different laws of two or more States, a person is simultaneously considered a citizen of both said states. It is allowed considering that their condition is merely an unavoidable consequence of conflicting laws of different states. DUAL ALLEGIANCE VOLUNTARY This refers to the situation where a person simultaneously owes, by some positive act, loyalty to two or more States. It is prohibited by the Constitution because it is inimical to the national interest. Q: Is dual citizenship allowed? If yes, can persons with dual citizenship run for public office? A: YES. The concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Consequently, persons with mere dual citizenship are not disqualified considering that their condition is the unavoidable UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 262 Law on Public Officers security of tenure. (Santos v. Secretary of Labor, G.R. No. L-21624, 27 Feb. 1968) IX. LAW ON PUBLIC OFFICERS 3. It is Personal to the public officer – It is not a property transmissible to the heirs of the officer upon the latter’s death. (Santos v. Secretary of Labor, G.R. No. L-21624, 27 Feb. 1968) 4. It is not a Vested right. A. GENERAL PRINCIPLES Public office NOTE: However, right to a public office is nevertheless a protected right. Nevertheless, right to a public office is a protected right. It cannot be taken from its incumbent without due process. (Morfe v. Mutuc, G.R. No. L-20387, 31 Jan. 1968; Aparri v. CA, G.R. No. L-30057, 31 Jan. 1984) It is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating 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. Sto. Tomas, G.R. No. 116418, 7 Mar. 1995) 5. Purpose of a public office A public office is created to effect the end for which government has been instituted which is the common good; not profit, honor, or private interest of any person, family or class of persons. (63C Am. Jur. 2d Public Officers and Employees 667, 1997) Elements of a public office (C-A-L-I-C) 1. 2. Characteristics of public office (P-P-P--V-N) 1. 2. It is not a Natural right – Under our political system, the right to hold public office exists only because and by virtue of some law expressly or impliedly creating and conferring it. 3. It is a Public trust – The principle of “public office is a public trust” means that the officer holds the public office in trust for the benefit of the people—to whom such officers are required to be accountable at all times, and to serve with utmost responsibility, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. (Sec. 1, Art. XI, 1987 Constitution) 4. 5. It is not a Property and is outside commerce of man. – It cannot be the subject of a contract.– The concept "public office is not a property” means that no officer an acquire vested right in the holding of a public office, nor can his right to hold the office be transmitted to his heirs upon his death. Nevertheless, the right to hold a public office is a protected right-secured by due process and the provision of Constitution on Created by Constitution or by law or by some body or agency to which the power to create the office has been delegated; Vested with Authority to exercise some portion of the sovereign power of the State; The powers conferred and the duties to be discharged must be defined directly or impliedly by the Legislature or through legislative authority; Duties are performed Independently without control unless those of a subordinate; and Continuing and permanent. (Fernandez v. Sto. Tomas, G.R. No. 116418, 7 Mar. 1995; Tejada v. Domingo, G.R. No. 91860, 13 Jan. 1992) Q: Mr. A works in the Bureau of Customs (BOC). Mrs. B, Mr. A’s wife, also served in government in the now defunct Philippine Atomic Energy Commission. Based on the Certificates of Employment and Compensation, Mr. and Mrs. B’s declared income during the time they were in the government amounted to P10,841,412.28. The Ombudsman, through its Field Investigation Office (FIO), conducted motu proprio lifestyle 263 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law checks on government officials and employees. Mr. A was among those evaluated. The report found that there are other properties and business interests belonging to Mr. A which were not declared in his SALNs. There are also properties registered under the name of Mr. A’s children, which should be considered as part of his undisclosed assets, in view of the fact that during the time of the acquisition, his children have no sources of income or means of livelihood of their own. The disputed assets amounted to P23,717,226.89. Subsequently, the FIO filed a Complaint charging Leovigildo of Dishonesty and Grave Misconduct. Q: Complainant Dela Flor bought from Allan Sillador a parcel of land which bore a memorandum of encumbrance. As condition to the full payment of the purchase price, he asked Sillador to cause the cancellation of the encumbrance. He and Sillador went to Bago City Hall of Justice where he got introduced to Montoyo. For the cancellation, complainant agreed to pay the P10,000 that Montoyo asked them. Later on, the Registrar informed the complainant that there could be no cancellation yet because what was submitted to his office was a fake court order granting the petition for cancellation of encumbrance and a fake certificate of finality. Montoyo denied the allegations against her. The OCA recommended that respondent be found guilty of grave misconduct and dishonesty and dismissal from service. Is the OCA correct? Should Mr. A be held liable for Dishonesty and Grave Misconduct? A: YES, but only for Dishonesty and not Grave Misconduct. To constitute Misconduct, the act or omission complained of must have a direct relation to the public officer's duties and affect not on]y his character as a private individual, but also, and more importantly, the performance of his official duties as a public servant. However, it is not clear how the fact of non-declaration in the SALN would have a bearing on the performance of functions by Mr. A in the Bureau of Customs. A: PARTLY CORRECT. Montoyo is guilty of Conduct Prejudicial to the Best Interest of the Service, Serious Dishonesty, and Committing Acts Punishable Under the Anti-Graft Laws under the 2011 Revised Rules on Administrative Cases in the Civil Service (2011 RRACCS) in relation with Rule 140 of the Rules of Court, as amended by A.M. No. 18-01-05-SC. With regard to the charge for Dishonesty, while mere omission from or misdeclaration in one's SALN per se do not constitute Dishonesty, an omission or misdeclaration qualifies as such offense when it is attended with malicious intent to conceal the truth, as Dishonesty implies a disposition to lie, cheat, deceive, or defraud. When a public officer's accumulated wealth is manifestly disproportionate to his lawful income and such public officer fails to properly account for or explain where such wealth had been sourced, he becomes administratively liable for Dishonesty. In this case, the disproportion between Mr. and Mrs. B’s declared income (P10,841,412.28) and the acquisition cost of the Disputed Assets (P23,717,226.89) is too stark to be ignored. (Leovigildo A. De Castro v. Field Investigation Office, Office of The Ombudsman and The Commissioner of Customs, G.R. No. 192723, 5 June 2017, J. Caguioa) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Jurisprudence instructs that where the misconduct committed was not in connection with the performance of duty, the proper designation of the offense should not be Misconduct, but rather, Conduct Prejudicial to the Best Interest of the Service. While there is no hard and fast rule as to what acts or omissions constitute the latter offense, jurisprudence ordains that the same deals with the demeanor of a public officer which tarnishes the image and integrity of his/her public office. Dishonesty is a disposition to lie, cheat, deceive or defraud; untrustworthiness; lack of integrity; lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness; disposition to defraud, deceive or betray. (Dela Flor Jr vs Montoyo, A.M. No. P-14-3242, 5 Oct. 2021) 264 Law on Public Officers Kinds of a public officer Public office vs. Public contract 1. PUBLIC OFFICE PUBLIC CONTRACT As to creation Originates from the will of the contracting Incident of parties, subject to the sovereignty. limitations imposed by law. As to persons affected Has for its object the carrying out of sovereign as well as Imposes obligations only upon persons who governmental functions affecting entered the same. even persons not bound by contract. As to subject matter and scope Is almost always limited in its duration and Embraces the idea of specific in its objects. Its tenure, duration, and terms define and limit continuity. The duties the rights and connected therewith obligations of the are generally parties, and neither may continuing and depart therefrom permanent. without the consent of the other. 2. 3. 4. 5. 6. 7. As to creation a. Constitutional; or b. Statutory. As to nature of functions a. Civil; or b. Military. As to the branch of Government to which it belongs a. Legislative; b. Executive; or c. Judicial. As to the branch of Government served a. National; or b. Local. As to exercise of judgment a. Quasi-Judicial/Discretionary; or b. Ministerial. As to compensation a. Lucrative, office of profit, or office coupled with an interest; or b. Honorary. As to legality of title to office a. De facto; or b. De jure. Kinds of Government Employment CAREER SERVICE Public officer Entrance is based on merits and fitness, which is determined by competitive examination (except for non-competitive positions) or based on highly technical qualifications. Opportunity for advancement to higher career position. The public officer, generally, is the one who holds a “public office.” A public officer is such an officer as is required by law to be elected or appointed, who has a designation or title given to him by law, and who exercise functions concerning the public, assigned to him by law. NOTE: Under Section 2(b), R.A. 3019, The Anti-Graft and Corrupt Practices Act, public officer includes elective and appointive officials and employees, permanent or temporary, whether in the classified, unclassified, or exempt service, receiving compensation, even nominal, from the government. 265 NON-CAREER SERVICE Entrance is based on qualifications other than merit and fitness. No such opportunity. UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law There is security of tenure. Nature of appointment Tenure is limited to a period specified by law, coterminous with the appointing authority or subject to his pleasure, or which is limited to the duration of a particular purpose. Appointment is an essentially discretionary power and must be performed by the officer in which 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. This is a political question involving considerations of wisdom which only the appointing authority can decide. (Luego v. CSC, G.R. No. L-69137, 5 Aug. 1986) Modes of filling up public offices (A-E-D-LAW) 1. 2. 3. 4. Appointment; Election; Designation; or In some instances, by contract or by some other modes authorized by Law. (Preclaro v. Sandiganbayan, G.R. No. 111091, 21 Aug. 1995) a. Succession by operation of law; or b. By direct provisions of law. Appointment vs. Designation APPOINTMENT It is the selection by the proper authority of an individual who is to exercise the functions of a given office. It connotes permanence. When completed, usually with its confirmation, appointment results in security of tenure unless he is replaceable at the pleasure because of the nature of his office. Essentially executive in nature. (Binamira v. Garrucho, G.R. No. 92008, 30 July 1990) B. KINDS OF APPOINTMENT Appointment The act of designation by the executive officer, board, or body to whom that power has been delegated, the individual who is to exercise the powers and functions of a given office. It refers to the nomination or designation of an individual to an office. (Borromeo v. Mariano, G.R. No. L-16808, 3 Jan. 1921) It is, in law, equivalent to “filling a vacancy.” (Conde v. National Tobacco Corp., G.R. No. L-11985, 28 Jan. 1961) NOTE: It is a basic precept in the law of public officers that no person, no matter how qualified and eligible he is for a certain position, may be appointed to an office which is not vacant. There can be no appointment to a non-vacant position. The incumbent must first be legally removed, or his appointment validly terminated before one could be validly installed to succeed him. (Garces v. Court of Appeals, G.R. No. 114795, 17 July 1996) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES DESIGNATION It connotes merely the imposition by law of additional duties on an incumbent official.. Shall hold the office only in a temporary capacity and maybe replaced at will by the appointing authority. It does not confer security of tenure in the person named. Legislative in nature. (Binamira v. Garrucho, G.R. No. 92008, 30 July 1990) Appointing authority 1. Inherently belongs to the people. It belongs to where the people have chosen to place it by their Constitution or laws. (63C Am. Jur. 2d Public Officers and Employees 738, 1997) 266 Law on Public Officers the consent Appointments; 2. Entrusted to designated elected and appointed public officials. The appointment of public officials is generally looked upon as properly belonging to the executive department. Appointments may also be made by Congress or the courts, but when so made should be taken as an incident to the discharge of functions within their respective spheres. (Government v. Springer, 50 Phil. 259, affirmed in Springer v. Government, 277 U.S. 189, 72 Ed. 845, 48 S.CT. 480, 1928) NOTE: The general rule is that the appointing power is the exclusive prerogative of the President, upon which no limitations may be imposed by Congress, except those resulting from the need of securing the concurrence of the Commission of Appointments and from the exercise of the limited power to prescribe the qualifications or disqualifications to a given appointive office. (Rafael v. Embroidery and Apparel Control and Inspections Board, G.R. No. L19978, 29 Sept. 1967) Commission on 3. Third group - Refers to all other officers of the Government whose appointments are not otherwise provided by law (the law is silent or if the law authorizing the head of a department, agency, commission, or board to appoint is declared unconstitutional) and without the consent of the Commission on Appointments; and 4. Fourth group - Lower-ranked officers whose appointments Congress may by law vest in the heads of departments, agencies, commissions, or boards. (Sec. 16, Art. VII, 1987 Constitution) GR: An appointee’s acceptance of office is not necessary to complete or to make the appointment valid where there is no provision of law to the contrary. XPN: Acceptance, however, is necessary to enable the appointee to have full possession, enjoyment, and responsibility of an office. (Borromeo v Mariano, G.R. No. L-16808, 03 Jan. 1921; Lacson v. Romero, G.R. No. L-3081, 14 Oct. 1949) Absent any contrary statutory provision, the power to appoint carries with it the power to remove or discipline. (Aguirre, Jr. v. De Castro, G.R. No. 127631, 17 Dec. 1999) NOTE: An appointee cannot impose his own conditions for the acceptance of a public office. He may only either accept or decline it. (De Leon, 2014) President appoints four groups of officers The following elements should always concur in the making of a Valid Appointment First group - Heads of the Executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers; 1. 2. 3. NOTE: The only officers whose appointments need confirmation by the Commission on Appointments are those mentioned in the first group. 2. the Appointee’s acceptance of office Where the law is silent as to who is the appointing authority, it is understood to be the President of the Philippines. (Rufino v. Endriga, G.R. No. 139554, 21 July 2006) 1. of 4. Authority to appoint and evidence of the exercise of the authority; Transmittal of the appointment paper and evidence of the transmittal; A vacant position at the time of appointment; and Receipt of the appointment paper and acceptance of the appointment by the appointee who possesses all the qualifications and none of the disqualifications. Second group - Those whom the President may be authorized by law to appoint without 267 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law NOTE: This should be understood as both complete and effective until lawfully terminated, thus, enjoys security of tenure. (Sec. 25 (a), P.D. 807, Civil Service Decree) 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. Office of The President, G.R. No. 203372, 16 June 2015) 2. NOTE: Temporary appointment shall not exceed 12 months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available. (ibid.) Procedure for the appointment of those that require confirmation by the Commission on Appointments 1. 2. 3. 4. Nomination by the President; Confirmation by the Commission on Appointments; Issuance of commission; and Acceptance by the appointee. One who holds a temporary or acting appointment has no fixed tenure of office, and, therefore, his enjoyment can be terminated at the pleasure of the appointing power even without hearing or cause. (Erasmo v. Home Insurance & Guaranty Corporation, G.R. No. 139251, 29 Aug. 2002) NOTE: Appointment is deemed complete upon acceptance. Pending such acceptance, which is optional on the part of the appointee, the appointment may still be validly withdrawn. However, if the appointment is for a specific period, the appointment may not be revoked until the expiration of the term. GR: Appointment to a public office cannot be forced upon any citizen. NOTE: Acquisition of civil service eligibility will not automatically convert the temporary appointment into a permanent one. (Prov. Of Camarines Sur v. CA, G.R. No. 104639, 14 July 1995) XPN: If it is for purposes of defense of the State under Sec. 4, Art. 2 (also an XPN to the rule against involuntary servitude). (Lacson v. Romero, No. L3081, 14 Oct. 1949) 3. NOTE: In ad interim appointments, steps 1, 3 and 4 precede step 2. For appointments which do not require confirmation, step 2 is skipped. Kinds of Appointments 1. Permanent – An appointment in the civil service 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 law, rules and standards promulgated in pursuance thereof. It lasts UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Temporary – A kind of appointment issued to a person who meets all the requirements for the position to which he is being appointed, except the appropriate civil service eligibility, in the absence of appropriate eligibilities and it becomes necessary in the public interest to fill a vacancy. (Sec. 25(b), P.D. 807) 268 Provisional appointment – One which may be issued, upon the prior authorization of the Commissioner of the CSC, to 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. (Jimenea v. Guanzon, G.R. No. L-24795, 29 Jan. 1968) Law on Public Officers Temporary Appointment Appointment (1994 BAR) TEMPORARY APPOINTMENT Issued to a person to a position needed only for a limited period not exceeding twelve months. (Sec 24(d), Civil Service Act of 1959) Necessary in the public interest to fill the vacancy. Meets all requirements for position except civil service eligibility. (Sec 25(b), Civil Service Act of 1959) vs. Provisional PROVISIONAL APPOINTMENT Issued upon to the prior authorization of CSC. (Sec 24(e), Civil Service Act of 1959) Vacancy occurs and the filing thereof is necessary in the interest of the service & there is no appropriate register of eligible at the time of appointment. Has not qualified in an appropriate examination but otherwise meets requirements for appointment to a regular position. NOTE: Provisional appointments in general have already been abolished by R.A. 6040. However, it still applies with regard to teachers under the Magna Carta for Public School Teachers. 4. Regular appointment – One made by the President while Congress is in session, takes effect only after confirmation by the CA and, once approved, continues until the end of the term of the appointee. 5. Ad interim appointment– One made by the President while Congress is not in session, which takes effect immediately, but ceases to be valid if: a. Disapproved by the CA or b. Upon the next adjournment of Congress, either in regular or special session, the CA has not acted upon it. (1990, 1994 BAR) 269 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law Difference between Regular appointment, Ad interim appointment, Temporary appointment and Designation TEMPORARY or ACTING DESIGNATION Made when Congress is NOT in session. Lasts until a permanent appointment is issued. Mere imposition of new or additional duties to be performed by an officer in a special manner while he performs the function of his permanent office. Made only after the nomination is confirmed by CA. Made before confirmation of the CA. Cannot be validly confirmed by the CA because there was no valid nomination The officer is already in service by virtue of an earlier appointment performing other functions. Continues until the expiration of the term. Shall cease to be valid if disapproved by CA or upon the next adjournment of Congress. May be terminated at the pleasure of appointing power without hearing or cause. Maybe anytime. REGULAR Made when Congress is in session. AD INTERIM UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 270 terminated Law on Public Officers Acting Appointment (2003 BAR) Revocation vs. Recall of appointment An acting appointment is merely temporary. (Sevilla v. CA, G.R. No. 88498, June 9, 1992) A temporary appointment cannot become a permanent appointment, unless a new appointment, which is permanent, is made. (Marohombsar v. Alonto, G.R. No. 93711, 25 Feb. 1991) Where an appointment requires the approval of the CSC, such appointment may be revoked or withdrawn by the appointing authority any time before the approval by the CSC. After an appointment is completed, the CSC has the power to recall an appointment initially approved on any of the following grounds However, if the acting appointment was made because of a temporary vacancy, the temporary appointee holds office until the assumption of office by the permanent appointee. In such case, this temporary appointment cannot be used by the appointing authority as an argument or justification in order to evade or avoid the security of tenure principle provided for under the Constitution and the Civil Service Law. (Gayatao v. CSC, G.R. No. 93064, 22 June 1992) 1. 2. 3. 4. Q: Can the CSC revoke an appointment by the appointing power and direct the appointment of an individual of its choice? Non-compliance with procedures/criteria in merit promotion plan; Failure to pass through the selection board; Violation of existing collective relative agreement to promotion; Violation of CSC laws, rules and regulations. (Debulgado v. CSC, G.R. No. 111471, 26 Sept. 1994) Requirements for public office A: NO. The CSC cannot dictate to the appointing power whom to appoint. Its function is limited to determining whether or not the appointee meets the minimum qualification requirements prescribed for the position. Otherwise, it would be encroaching upon the discretion of the appointing power. (Medalla v. Sto. Tomas, G.R. 94255, 5 May 1992) Protest to appointment Any person who feels aggrieved by the appointment may file an administrative protest against such appointment. Protests are decided in the first instance by the Department Head, subject to appeal to the CSC. 1. Eligibility – It is the state or quality of being legally fit or qualified to be chosen. 2. Qualification – This refers to the act which a person, before entering upon the performance of his duties, is by law required to do such as the taking, and often, subscribing and filing of an official oath, and, in some cases, the giving of an official bond. It may refer to: a. Endowments, qualities or attributes which make an individual eligible for public office e.g., citizenship; or The act of entering into the performance of the functions of a public office e.g., taking oath of office. (De Leon, 2011) b. NOTE: To entitle a public officer to hold a public office, he must possess all the qualifications and none of the disqualifications prescribed by law for the position, not only at the time of his election or appointment but also during his incumbency. (Velicaria-Garafil v. OP, GR No. 203372, 16 June 2015 The protest must be for a cause (i.e., appointee is not qualified; appointee was not the next-in-rank; unsatisfactory reasons given by the appointing authority in making the questioned appointment). The mere fact that the protestant has the more impressive resume is not a cause for opposing an appointment. (Aquino v. CSC, G.R. No. 92403, 22 Apr. 1992) 271 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law General Qualifications for Public Office (C-A-R-ES-C-A-P) 1. 7. 8. Ability to read and write; and Political affiliation, as a rule, is not a qualification. Citizenship; XPN: Party-list, membership in the Electoral Tribunal, Commission on Appointments NOTE: Only natural-born Filipinos who owe total and undivided allegiance to the Republic of the Philippines could run for and hold elective public office. (Arnado v. COMELEC, G.R. No. 210164, 18 Aug. 2015) NOTE: The qualifications for public office are continuing requirements and must be possessed not only at the time of appointment, election, or assumption of office but during the officer’s entire tenure. Once any of the required qualification is lost, his title may be reasonably challenged. (Frivaldo v. COMELEC, G.R. No. 87193, 23 June 1989; Aguila v. Genato, G. R No. L-55151, 17 Mar. 1981) Congress enacted R.A. 9225 allowing naturalborn citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization abroad to re-acquire Philippine citizenship and to enjoy full civil and political rights upon compliance with the requirements of the law. They may now run for public office in the Philippines provided that they: (1) meet the qualifications for holding such public office as required by the Constitution and existing laws; and (2) make a personal and sworn renunciation of any and all foreign citizenships before any public officer authorized to administer an oath prior to or at the time of filing of their CoC. (Arnado v. COMELEC, ibid.; Sec. 5, R.A. No. 9225) Authority to prescribe qualifications Congress is generally empowered to prescribe the qualifications for holding public office, provided it does not exceed thereby its constitutional powers or impose conditions of eligibility inconsistent with constitutional provisions. (Amora v. COMELEC, G.R. No. 19228, 2011) Limitation on the power of Congress to prescribe qualifications This rule applies to all those who have reacquired their Filipino citizenship without regard as to whether they are still dual citizens or not. It is a pre-requisite imposed for the exercise of the right to run for public office. (Sobejana-Condon v. COMELEC, G.R. No. 198742, 10 Aug. 2012) Congress has no power to require qualifications other than those qualifications specifically set out in the Constitution. Such Constitutional criteria are exclusive. (Republic of the Philippines v. Sereno, G.R No. 237428, 11 May 2018) For appointive public officials, R.A. 9225 requires an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, that they renounce their oath of allegiance to the country where they took that oath. [Sec. 5(2), R.A. No. 9225] In the absence of constitutional inhibition, Congress has the same right to provide disqualifications as it has to provide qualifications for office. 2. 3. 4. 5. 6. Power of Congress to prescribe disqualifications Congress, however, may not add disqualifications where the Constitution has provided them in such a way as to indicate intention that the disqualifications provided shall embrace all which are to be permitted. Moreover, 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. (46 C.J. 936-937) Age; Residence; Education; Suffrage; Civil service examination; UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 272 Law on Public Officers Perfection of the right of a public officer to enter in office Prohibitions attached to elective and appointive officials in terms of compensation Upon his oath of office, it is deemed perfected. Only when the public officer has satisfied this prerequisite can his right to enter into the position be considered complete. Until then, he has none at all, and for as long as he has not qualified; the holdover officer is the rightful occupant. (Lecaroz v. Sandiganbayan, G.R. No. 130872, 25 Mar. 1999) GR: They cannot receive (A-D-Ic): 1. 2. 3. Disqualifications attached employees or officials to civil service Additional compensation – An extra reward given for the same office (e.g., bonus) Double compensation – When an officer is given two sets of compensation for two different offices held concurrently by one officer. Indirect Compensation - Any benefit to the employee that doesn't come in the form of cash XPN: Unless specifically authorized by law. 1. Losing candidate in any election NOTE: “Specifically authorized” means a specific authority particularly directed to the officer or employee concerned. a. Cannot be appointed to any office in the government or GOCCs or their subsidiaries; and b. Period of disqualification: One year after such election. XPN: Losing candidates in barangay elections Pensions and gratuities, per diems and allowances are not considered as additional, double, or indirect compensation. (Sec. 8, Art. IX-B, 1987 Constitution) 2. Elective officials C. DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS GR: They are not eligible for appointment or designation in any capacity to any public office or position during their tenure. Prohibitions imposed under the Constitution against the holding of two or more positions XPN: May hold ex officio positions. E.g., The Vice President may be appointed as a Cabinet member. A. Members of Congress shall not: (A-Co-In) 3. Appointive officials GR: Cannot hold any other office in the government. or any agency or instrumentality thereof, including GOCCs and their subsidiaries. 1. Appear as counsel before any court, electoral tribunal, or quasi-judicial and other administrative bodies; 2. Be 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 its subsidiary; or Intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office. XPN: Unless otherwise allowed by law, or by the primary functions of his position. 3. NOTE: The exception does not apply to Cabinet members, and those officers mentioned in Art. VII, Sec. 13. They are governed by the stricter prohibitions contained therein. 273 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law Grounds for disqualification to hold public office: (I-MIS-1-Mo-Re-Ex-I-S-G-ON-E) B. The President, Vice President, Members of the Cabinet, and their deputies or assistants, unless otherwise allowed by the Constitution, shall not: 1. 2. C. 1. 2. 3. Directly or indirectly practice any other profession; or 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 its subdivisions; shall avoid conflict of interest in the conduct of their office. 4. 5. 6. 7. 8. Members of the Constitutional Commission shall not: 1. 2. NOTE: Where there is no constitutional or statutory declaration of ineligibility for suspension or removal from office, the courts may not impose the disability. Hold any other office or employment or engage in the practice of any profession or in the active management or control of any business that may be affected by the functions of his office; or Be financially interested, directly or indirectly, in any contract with, or in any franchise, or special privilege granted by the Government, or any subdivision, agencies or instrumentalities including GOCCs, or their subsidiaries. These shall also apply to the Ombudsman and his deputies during his term. 9. Grounds provided for under the LGC; 10. Office Newly created or the Emoluments of which have been increased (forbidden office); and 11. Being an Elective official (Flores v. Drilon, G.R. No. 104732, 22 June 1993). XPN: Losing elections 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. (Sec. 5(4), Art. XVI, 1987 Constitution) UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES candidates in barangay NOTE: The Supreme Court held that while all other appointive officials in the Civil Service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. (Civil Liberties Union v. Executive Secretary, G.R. No. 83896, 22 Feb. 1991) D. 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. (Sec. 7, Art. IX-B, 1987 Constitution; Flores v. Drilon, G.R. No. 104732, 22 June 1993) E. Mental or physical Incapacity; Misconduct or commission of a crime; Losing candidate in the election within 1 year following the date of election (prohibitions from office, not from employment); Holding More than one office (except ex officio) Relationship with the appointing power (nepotism) (2010 BAR); Consecutive terms Exceeding the allowable number of terms; Impeachment; Removal or Suspension from office; Prohibitions under Code of Conduct and Ethical Standards for Public Officials and Employees 1. 274 Prohibition against financial and material interest – Directly or indirectly having any financial or material interest in any transaction requiring the approval of their office; Law on Public Officers 2. 3. 4. Prohibition against outside employment and other activities related thereto – Owning, controlling, managing or accepting employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office; Engaging in the private practice of their profession; and Recommending any person to any position in any private enterprise which has a regular or pending official transaction with their office. 2. 3. 4. NOTE: These prohibitions shall continue to apply for a period of one year after resignation, retirement, or separation from public office, except in the case of participating in any business or having financial interest in any contract with the government, but the professional concerned cannot practice his profession in connection with any matter before the office he used to be with, in which case the one-year prohibition shall likewise apply. Other prohibitions imposed on public officers 1. a. 2. 3. Prohibition against solicitation of gifts. (Sec. 7(d), R.A. No. 6713) NOTE: Public officers, however, may accept the following gifts from foreign governments: Prohibitions against the practice of other professions under the LGC 1. agency or instrumentality of the government is the Adverse party; Cannot 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; Shall Not collect any fee for their appearance in administrative proceedings involving the LGU of which he is an official; and May Not use property and personnel of the Government, except when defending the interest of the Government. b. c. Local chief executives (governors, city and municipal mayors) are prohibited from practicing their profession; Sanggunian members may practice their profession, engage in any occupation, or teach in schools except during session hours; and Doctors of medicine may practice their profession even during official hours of work in cases of emergency provided that they do not derive monetary compensation therefrom. Gifts of nominal value received as souvenir or mark of courtesy; Scholarship or fellowship grant or medical treatment; or Travel grants or expenses for travel outside the Philippines. (Sec. 7(d), R.A. No. 6713) 2. Prohibition against partisan political activities. (Sec. 2(4), Art. IX-B, 1987 Constitution) NOTE: Partisan political activity is an act designed to promote the election or defeat of a particular candidate/s to a public office. It is also known as “electioneering”. (Sec. 79, OEC) Officers or employees in the Civil Service including members of the Armed Forces cannot engage in such activity except to vote. They shall not use their official authority or influence to coerce the political activity of any person. (Sec. 55, Book V, Title I, Subtitle A, Administrative Code of 1987) Q: Can the members of Sanggunian engage in the practice of law under the LGC? A: GR: Yes. XPNs: (A-R-Not2) 1. Cannot appear as counsel in any civil case wherein a LGU or any office, 275 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law or subject them to any of the acts involving subordinates prohibited in the Election Code. Officers and employees in the Civil Service can nonetheless express their views on current political issues and mention the names of the candidates they support. Q: De Vera, a Court Stenographer deliberately and fraudulently, and for a consideration, misrepresented her ability to assist the complainant in the adoption of her niece and nephew. The Office of the Court Administrator equated those acts as Grave Misconduct and dismissed De Vera from office. Is the OCA correct? b. National, provincial, city and municipal elective officials. (Santos v. Yatco, G.R. No. L- 16133, 06 Nov. 1959) 3. Prohibition against engaging in strike. (Social Security System Employees Assn. v. CA, G.R No. 85279, 28 July 1989) Restriction against engaging in the practice of law. (Sec. 90, R.A. No. 7160) Prohibition against practice of other professions. (Sec. 90, R.A. No. 7160) Restriction against engaging in private business. (Abeto v. Garces, A.M. No. P88-269, 29 Dec. 1995) Restriction against accepting certain employment. (Sec. 7(b), R.A. No. 6713) 4. 5. 6. A: YES. Section 2, Canon 1 of the Code of Conduct of Court Personnel has enjoined all court personnel from soliciting or accepting any gift, favor or benefit based on any or explicit understanding that such gift, favor or benefit shall influence their official actions. De Vera thus violated her sacred oath as a court employee to serve the Judiciary with utmost loyalty and to preserve the integrity and reputation of the Judiciary as an institution dispensing justice to all. Her violation was made worse by her committing it in exchange for easy money. She was thereby guilty of corruption. She compounded her guilt by disobeying the orders of the Court requiring her to explain herself. Under the circumstances, she committed grave misconduct which is punishable by dismissal from service. (Galindez v. Susbilla-De Vera, A.M. No. P-13-3126, 04 Feb. 2014) 7. Q: Does the election or appointment of an attorney to a government office disqualify him from engaging in the private practice of law? A: YES. As a general rule, judges, other officials of the superior courts, of the office of the Solicitor General and of other government prosecution offices; the President; Vice-President, and members of the cabinet and their deputies or assistants; members of constitutional commissions; and civil service officers or employees whose duties and responsibilities require that their entire time be at the disposal of the government are strictly prohibited from engaging in the private practice of law. (E.O. 297) Public officers who may engage in partisan political activities a. D. POWERS AND DUTIES OF PUBLIC OFFICERS Those holding political offices, such as the President of the Philippines, Vice President of the Philippines; Executive Secretary or Department Secretaries and other Members of the Cabinet; all other elective officials at all levels; and those in the personal and confidential staff of the above officials; and Sources of powers of public officers 1. 2. 3. NOTE: It shall, however, be unlawful for them to solicit contributions from their subordinates UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Expressly conferred upon him by the Act appointing him; Expressly annexed to the office by law; and Attached to the office by common law as incidents to it. NOTE: In general, the powers and duties of public 276 Law on Public Officers Duties of public officers officers are prescribed by the Constitution or by statute or both. Public officers have only those powers expressly granted or necessarily implied by law. If broader powers are desirable, they must be conferred by the proper authority. They cannot merely be assumed by administrative officers, nor can they be created by the courts in the proper exercise of their judicial functions. [63C Am. Jur. 2d Public Officers and Employees 883 (1997)] 1. 2. 3. 4. Doctrine of Necessary Implication 5. Be accountable to the people; Serve the people with utmost responsibility, integrity, and efficiency; Act with patriotism and justice and to lead modest lives; Submit a declaration under oath of his assets, liabilities, and net worth upon assumption of office and as often thereafter as may be required by law; and Owe the State and the Constitution allegiance at all times. All powers necessary for the effective exercise of the express powers are deemed impliedly granted. (Pimentel v. COMELEC, G.R. No. L-53581, 19 Dec. 1980) Reasons for the imposition of the duty to disclose financial records Kinds of duties of public officers 1. MINISTERIAL Discharge is imperative and it must be done by the public officer. Can be compelled by mandamus. Can be delegated. DISCRETIONARY Public officer may do whichever way he wants provided it is in accordance with law and not in a whimsical manner. Cannot be compelled by mandamus except when there is grave abuse of discretion. Cannot be delegated unless otherwise provided by law (2010 BAR). 2. 3. 4. Rights and privileges of public officers Right to: (O-C-A-Va-Ma-Re-Lo-Pe-Se-P) 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Doctrine of Ratification Although the acts of a public officer may not be binding on the State because he has exercised his powers defectively, his acts may be ratified. 1. 2. 3. 4. 5. To maintain public confidence in the Government and in public officials and employees; To avoid conflicts of interest from arising; To deter corruption; and To provide the citizens with information concerning a public officer’s financial affairs and thus enable them to better judge his integrity and fitness for office. The doctrine does not apply where: There is a want of power in the public officer to perform the original act; The act was absolutely void at the time it was done; If the principal himself could not have lawfully done the act; or If it could not have lawfully been done by anyone. Office; Compensation/salary; Appointment; Vacation and sick leave; Maternity leave; Retirement pay; Longevity pay; Pension; Self-organization; and Protection of temporary employees. Prohibition against diminution of salary of constitutional officers Congress is given the power to fix the salaries of certain constitutional officers, but after it has done so, it may not reduce the salary of any of them during his term or tenure. This provision is 277 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law intended to secure their independence. (Sec. 3, Art. IX-A, 1987 Constitution) technically qualified in all points of law to act. Holding of office rests on reputation. Extent of the right to self-organization of employees in the public service Officer may be ousted in a direct proceeding against him. While the Constitution recognizes the right of public employees to organize, they are prohibited from staging strikes, demonstrations, mass leaves, walkouts, and other forms of mass action which may result to temporary cessation of work or disturbance of public service. Their right to selforganization is limited only to form unions or to associate without including the right to strike. Labor unions in the government may bargain for better terms and conditions of employment by either petitioning the Congress for better terms and conditions or negotiating with the appropriate government agencies for the improvement of those not fixed by law. (SSS Employees Assn. v. CA, G.R No. 85279, 28 July 1989) Effects of the acts of de facto public officers 1. The lawful acts, so far as the rights of third persons are concerned are, if done within the scope and by the apparent authority of the office, are considered valid and binding; 2. The de facto officer cannot benefit from his own status because public policy demands that unlawful assumption of public office be discouraged; NOTE: The general rule is that a de facto officer cannot claim salary and other compensations for services rendered by him as such. However, the officer may retain salaries collected by him for services rendered in good faith when there is no de jure officer claiming the office. E. DE FACTO VS DE JURE OFFICERS De facto officer (2000, 2004, 2009, 2010 BAR) 3. A de facto officer is one who assumed office under the color of a known appointment or election but which appointment or election is void for reasons that the officer was not eligible, or that there was want of power in the electing body, or that there was some other defect or irregularity in its exercise, wherein such ineligibility, want of power, or defect being unknown to the public. 4. 1. A de jure officer is one who is in all respects legally appointed or elected and qualified to exercise the office. 2. DE JURE OFFICER 3. Has lawful title to the office. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES The de facto officer is subject to the same liabilities imposed on the de jure officer in the discharge of official duties, in addition to whatever special damages may be due from him because of his unlawful assumption of office; and The acts of the de facto public officer, insofar as they affect the public, are valid, binding and with full legal effect. Manner by which challenge to a de facto office is made De jure officer DE FACTO OFFICER Has possession of and performs the duties under a colorable title without being Holding of office rests on right. Officer cannot be removed through a direct proceeding (quo warranto). 278 The incumbency may not be challenged collaterally or in an action to which the de facto officer is not a party; The challenge must be made in a direct proceeding where title to the office will be the principal issue; and The authorized proceeding is quo warranto either by the Solicitor General in the name of the Republic or by any person claiming title to the office. Law on Public Officers wrongful tenure even though he entered into the office in good faith and under a colorable title. The de facto officer takes the salaries at his risks and must therefore account to the de jure officer for the amounts he received. However, where there is no de jure officer, a de facto officer shall be entitled to the salaries and emoluments accruing during the period when he actually discharged the duties. (Monroy v. CA, G.R. No. L-23258, 01 July 1967) Q: Ross ran as congressman of Cagayan province. His opponent, Paulo, however, was the one proclaimed as the winner by the COMELEC. Ross filed seasonably a protest before the HRET. After two years, the HRET reversed the COMELEC’s decision and Ross was proclaimed finally as the duly elected Congressman. Thus, he had only one year to serve in Congress. 1. Can Ross collect salaries and allowances from the government for the first two years of his term as Congressman? 2. Should Paulo refund to the government the salaries and allowances he had received as Congressman? 3. What will happen to the bills that Paulo alone authored and were approved by the HoR while he was seated as Congressman? Reason and explain briefly. NOTE: In Monroy v. CA, the Supreme Court said that the Rodriguez ruling cannot be applied for the absence of factual and legal similarities. Essence of de facto doctrine The de facto doctrine has been formulated, not for the protection of the de facto officer principally, but rather for the protection of the public and individuals who get involved in the official acts of persons discharging the duties of an office without being lawful officers. A. 1. 2. 3. NO. Ross cannot collect salaries and allowances from the government for the first two years of his term, because in the meanwhile Paulo collected the salaries and allowances. Paulo was a de facto officer while he was in possession of the office. To allow Ross to collect the salaries and allowances will result in making the government pay a second time. NO. Paulo is not required to refund to the government the salaries and allowances he received. As a de facto officer, he is entitled to the salaries and allowances because he rendered services during his incumbency. The bills which Paulo alone authored and were approved by the House of Representatives are valid because he was a de facto officer during his incumbency. The acts of a de facto officer are valid insofar as the public is concerned. (Rodriguez v. Tan, G.R. No. L-3913, 07 Aug. 1952) Q: May the salary of a public officer or employee be subject to garnishment? Why? A: NO. It may not, by garnishment, attachment, or order of execution, be seized before being paid to him, and appropriated for the payment of his debts, because of the following reasons: 1. 2. 3. While it is still in the hands of the disbursing officer, it belongs to the government; Public policy forbids such practice since it would be fatal to the public service; and It would be tantamount to a suit against the State in its own court, which is prohibited, except with its consent. De facto officer vs. Usurper DE FACTO OFFICER Recovery of the salary received by a de facto officer during a wrongful tenure USURPER (2000 Bar) Complies with the 3 elements of Takes a de jure officer, namely: possession of an office and does 1. Existence of a de jure office; official acts 2. Must possess the legal without any As a rule, the rightful incumbent of the public office may recover from a de facto officer the salaries received by the latter during the time of the latter's 279 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law 3. qualifications for the office actual in question; and apparent Must have qualified himself authority. to perform the duties of such office according to the mode prescribed by law. or F. THE CIVIL SERVICE The Civil Service embraces every branch, agency, subdivision, and instrumentality of the government, including every government-owned or controlled corporations whether performing governmental or proprietary functions. (Sec. 2(1), Art. IX-B, 1987 Constitution) Has neither Has color of right or title to color of right or office. title to office. Acts are rendered valid as to Acts are the public until his title is absolutely void. adjudged insufficient. Constitutional Functions of the CSC As the central personnel agency of the government, it: GR: The rightful incumbent of a public office may recover from an officer de facto the salary received by the latter during the time of his tenure even though he entered into the office in good faith and under color of title. 1. 2. 3. 4. XPN: Where there is no de jure public officer, the officer de facto who Not entitled to in good faith has had compensation possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may, in an appropriate action, recover the salary, fees and other compensations attached to the office. (Gen. Manager, Philippine Ports Authority v. Monserate, G.R. No. 129616, 17 Apr. 2002) 5. Establishes a career service; Adopts measures to promote morale, efficiency, integrity, responsiveness, progressiveness and courtesy in the Civil Service; Strengthens the merits and rewards system; Integrates all human resources and development programs for all levels and ranks; and Institutionalizes a management climate conducive to public accountability. (Sec. 3, Art. IX-B, 1987 Constitution) Composition of the CSC 1. 2. Chairman; and Two Commissioners The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. NOTE: 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. (Sec. 1(2), Art. IX-B, 1987 Constitution) Qualifications 1. 2. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 280 Natural-born citizen; At least 35 years old at the time of appointment; Law on Public Officers 3. 4. The Career Service shall include: With proven capacity for public administration; and Not a candidate in any election immediately preceding the appointment. (Sec. 1(1), Art. IX-B, 1987 Constitution) 1. 2. Disqualifications (L-E-A-C) 1. 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 GOCC or in any of its subsidiaries; (Sec. 6, Art. IX-B, 1987 Constitution) 2. No Elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure; (Sec. 7(1), Art. IX-B, 1987 Constitution) (1995, 2002 BAR) 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; (Sec. 7(2), Art. IX-B, 1987 Constitution) and, 4. 3. Positions in the Career Executive Service (CES), namely Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President; NOTE: For a position to be considered as CES, a. No officer or employee in the Civil service shall engage, directly or indirectly, in any electioneering or partisan political activity. (Sec. 2(4), Art. IX-B, 1987 Constitution) b. Classification 1. 2. Open Career positions are those for appointment to which prior qualification in an appropriate examination is required; Closed Career positions are those which are scientific or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems; Career Service; and Non-Career Service. The position must be among those enumerated under Sec. 7(3), Book V, Title I, Subtitle A, Chapter 2, of the Administrative Code of 1987 or a position of equal rank as those enumerated and identified by the CESB to be such position of equal rank; and The holder of the position must be a presidential appointee. (Seneres v. Sabido, G.R. No. 172902, 21 Oct. 2015) Requisites for a CES employee to acquire security of tenure: Career Service i. ii. The Career Service shall be characterized by the following: 1. Entrance based on merit and fitness to be determined as far as practicable by competitive examinations or based on highly technical qualifications; 2. Opportunity for advancement to higher career positions; and 3. Security of tenure. 4. 5. 281 CES eligibility; and Appointment to the appropriate CES rank. (Seneres v. Sabido, ibid.) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Department of Foreign Affairs; Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system; UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law 6. 7. case of Feliciano and Gonzalez that even though they are holders of the CSEE, they still needed to comply with CESB Resolution No. 811 dated August 17, 2009, which states that holders of the CSC's CSEE still needed to comply with the last two stages to get CES Eligibility, which are the assessment center and the performance validation. Personnel of government-owned or -controlled corporations, whether performing governmental or proprietary functions, who do not fall under the non-career service; and Permanent laborers, whether skilled, semiskilled, or unskilled. Q: The Office of the President issued the Guidelines Implementing Memorandum Circular No. 1, which states that "all non-CESOs occupying CES positions in all agencies of the Executive Branch shall remain in office and continue to perform their duties and discharge their responsibilities until July 31, 2010 or until their resignations have been accepted, and/or until their respective replacements have been appointed or designated, whichever comes first, unless they are reappointed in the meantime." Here, similar to Feliciano and Gonzalez, Matibag only possessed the CSC's CSEE. She failed to prove that she has completed the last two stages of the examination process under CESB Resolution No. 811. Given this, she was not CES Eligible at the time she held the position of Deputy Executive Director for Operations, and did not enjoy security of tenure. Her appointment was temporary. Similar to Feliciano and Gonzalez, Matibag's termination from her position as Deputy Executive Director for Operations of DDB was therefore effective and valid. (Dangerous Drugs Board V. Maria Belen Angelita V. Matibag, G.R. No. 210013, 22 Jan 2020, J. Caguioa) Matibag sent a letter requesting clarification on the coverage of OP-MC No. 1. In response, the [CSC] cited the provision of Section 2 (3), Article IX-B of the 1987 Constitution which states that she enjoys security of tenure for being a holder of an appropriate Civil Service Eligibility. Thus, she cannot be removed or suspended except for cause provided for by law and after due process. Non-Career Service The Non-Career Service shall be characterized by It appears that following letter, Undersecretary Edgar C. Galvante, the Acting Executive Director of the DDB, issued a Memorandum addressed to Matibag, which states that "considering that you are a Non-CESO holder and covered by Memorandum Circular No. 2, you are hereby notified that your designation as Deputy Executive Director for Operations is terminated effective this date. This is without prejudice to your reappointment to the position and/or the final resolution of the propriety of the issuance of MC 2 by the Supreme Court." 1. 2. The Non-Career Service shall include: Matibag thus filed a complaint before the CSC for illegal dismissal. The CSC and the CA ruled that Matibag was illegally dismissed. Are they correct? A: NO. The CESB has the authority to prescribe the requirements for entry to the CES. Following this clear authority of the CESB, the Court held in the UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; and Tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made. 282 1. Elective officials and their personal or confidential staff; 2. Department Heads and other officials of Cabinet rank who hold positions at the pleasure of the President and their personal or confidential staff; Law on Public Officers 3. Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff; 4. Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and 5. 3. Within the same level, no civil service examination shall be required for promotion to a higher position in one or more related occupational groups. A candidate for promotion should, however, have previously passed the examination for that level. (Art. IV, P.D. 807) Manner of appointment to the civil service Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and, except to positions which are policy-determining, primarily confidential, or highly technical, by competitive examination. (Sec. 2(2), Art. IX-B, 1987 Constitution) Emergency and seasonal personnel. Principal groups of position in the Civil Service, on the basis of appointment Classes of positions in the Career Service 1. 1. Classes of positions in the career service appointment to which requires examinations shall be grouped into three major levels as follows: a. b. c. 2. 2. The first level shall include clerical, trades, crafts, and custodial service positions which involve non-professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies; The second level shall include professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and The third level shall cover positions in the Career Executive Service. Competitive positions – According to merit and fitness to be determined by competitive examinations, as far as practicable; Non-competitive positions – Do not have to take into account merit and fitness. No need for competitive examinations; and a. Policy-determining – They are tasked to formulate a method of action for the government or any of its subdivisions. b. Primarily confidential – Their duties are not merely clerical but devolve upon the head of an office, which, by reason of his numerous duties, delegates his duties to others, the performance of which requires skill, judgment, trust and confidence Proximity Rule The test used to determine confidentiality of a position. The occupant of a particular position could be considered a confidential employee if the predominant reason why he was chosen by the appointing authority was the latter’s belief that he can share a close intimate relationship with the occupant which ensures freedom of discussion without fear of embarrassment or misgivings of possible betrayals of personal trust and confidential matters of State. (De los Santos v. Mallare, G.R. No. L3881, 31 Aug. 1950) Except as herein otherwise provided, entrance to the first two levels shall be through competitive examinations, which shall be open to those inside and outside the service who meet the minimum qualification requirements. Entrance to a higher level does not require previous qualification in the lower level. Entrance to the third level shall be prescribed by the Career Executive Service Board. 283 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law c. payments of petitioners' salary differentials based on their new positions. Further, a CSC resolution was passed invalidating the appointments of the employees. Is the CSC authorized to invalidate appointments? Highly technical – Requires technical skill or training in the highest degree. NOTE: The test to determine whether the position is non-competitive is the nature of the responsibilities, not the description given to it. The Constitution does not exempt the abovegiven positions from the operation of the principle that “no officer or employee of the civil service shall be removed or suspended except for cause provided by law.” A: YES. In Quirog v. Aumentado, the Court held that the ruling in De Rama v. Court of Appeals does not mean that the raison d' etre behind the prohibition against midnight appointments may not be applied to those made by chief executives of local government units. Indeed, the prohibition is precisely designed to discourage, nay, even preclude, losing candidates from issuing appointments merely for partisan purposes thereby depriving the incoming administration of the opportunity to make the corresponding appointments in line with its new policies. (Nazareno v. City of Dumaguete, G.R. No. 181559, 02 Oct. 2009) Q: Who may be appointed in the civil service? A: Whoever fulfills all the qualifications prescribed by law for a particular position may be appointed therein. NOTE: The CSC cannot disapprove an appointment just because another person is better qualified, as long as the appointee is himself qualified. It cannot add qualifications other than those provided by law. (Cortez v. CSC, G.R. No. 92673, 13 Mar. 1991) Q: Governor Ibaneta of Zamboanga del Sur was authorized by the Sangguniang Panlalawigan to undertake the reorganization of the provincial government and to implement a new staffing pattern, where the plantilla positions were reduced. Subsequently, Governor Ibaneta appointed new employees to the new positions in the Government. However, some permanent employees were not given placement preference and were instead terminated without valid cause and against their will. The terminated employees alleged that the reorganization was done in bad faith. After a complaint was filed, the CSC confirmed that the reorganization was done in bad faith and invalidated the new appointments made. Did the CSC err? Authority to recall appointments The Civil Service Commission has the authority to recall appointments made in disregard of the applicable provisions of Civil Service Law and regulations. (Sales v. Carreon Jr., G.R. No. 160791, 13 Feb. 2007) Q: The CSC issued a Resolution granting the City Government of Dumaguete the authority to take final action on all its appointments subject to rules and regulations and within the limits and restrictions of the implementing guidelines of the CSC Accreditation Program as amended and subject to monthly monitoring by the Civil Service Field Office (CSFO). On June 5, 7, and 11, 2001, Dumaguete City outgoing Mayor Felipe Antonio B. Remollo promoted 15 city hall employees, and regularized another 74 city hall employees, including the herein 52 petitioners. But the incoming Mayor Perdices did not honor the appointments made by former Mayor Remollo and he ordered the City Administrator to direct the City Assistant Treasurer to refrain from making any cash disbursements for UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES A: No. Appointment, by its very nature, is a highly discretionary act. However, it must be reconciled with the provisions of RA 6656. RA 6656 provides that when reorganization is done in bad faith, the aggrieved employee, having been removed without valid cause, may demand for his reinstatement or reappointment. Hence, there is no encroachment on the discretion of the appointing authority when the CSC revokes an appointment on such ground. In such instance, the CSC is not actually directing the 284 Law on Public Officers Where the appointment is permanent, it is protected by the security of tenure provision. But if it is temporary or in an acting capacity, which can be terminated at any time, the officer cannot invoke the security of tenure. appointment of another but simply ordering the reinstatement of the illegally removed employee. (Cerilles v. Civil Service Commission, G.R. No. 180845, 22 Nov 2017, J. Caguioa) Security of tenure NOTE: The holder of a temporary appointment cannot claim a vested right to the station to which assigned, nor to security of tenure thereat. Thus, he may be reassigned to any place or station. (Teotico v. Agda, G.R. No. 87437, 29 May 1991) It means that no officer or employee in the civil service shall be suspended or dismissed except for cause provided by law, and after due process or after he shall have been given the opportunity to defend himself. Attachment of security of tenure NOTE: One must be validly appointed to enjoy security of tenure. Thus, one who is not appointed by the proper appointing authority does not acquire security of tenure. Once an appointment is issued and completed and the appointee assumes the position, he acquires a legal right, not merely an equitable right to the position. (Lumigued v. Exevea, G.R. No. 117565, 18 Nov. 1997) It attaches once an appointment is issued and the moment the appointee assumes a position in the civil service under a completed appointment, he acquires a legal, not merely equitable, right (to the position) which is protected not only by statute, but also by the constitution, and cannot be taken away from him either by revocation of the appointment, or by removal, except for cause, and with previous notice and hearing. (Aquino v. CSC, G.R. No. 92403, 22 Apr. 1992) Regardless of the characterization of the position held by a government employee covered by civil service rules, be it career or non-career position, such employee may not be removed without just cause. (Jocom v. Regalado, G.R. No. 77373, 22 Aug. 1991) Security of tenure for Career Executive Service (CES) Security of tenure in the CES is thus acquired with respect to rank and not to position. The guarantee of security of tenure to members of the CES does not extend to the particular positions to which they may be appointed a concept which is applicable only to first and second-level employees in the civil service but to the rank to which they are appointed by the President. Within the CES, personnel can be shifted from one office or position to another without violation of their right to security of tenure because their status and salaries are based on their ranks and not on their jobs. (Seneres v. Sabido, G.R. No. 172902, 21 Oct. 2015) Bases of the constitutional guaranty of security of tenure in the civil service (1999, 2005 BAR) The prohibition against suspension or dismissal of an officer or employee of the Civil Service “except for cause provided by law” is “a guaranty of both procedural and substantive due process.” “Not only must removal or suspension be in accordance with the procedure prescribed by law, but also they can only be made on the basis of a valid cause provided by law.” (Land Bank of the Philippines v. Rowena O. Paden, G.R. No. 157607, 07 July 2009) Illustration: The position of NCC (National Computer Center) Director General is a CES position equivalent to Career Executive Service Officer (CESO) Rank I. Seneres is already CES eligible, but no President has yet appointed him to any CES rank (despite the previous recommendation of the CESB for his appointment to CESO Rank I). Therefore, Characteristic of security of tenure It is the nature of the appointment that characterizes security of tenure and not the nature of one’s duties or functions. 285 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law of office of those who are in the Civil Service. (CSC v. PACHEO, G.R. No. 178021, 25 Jan. 2012) Seneres's membership in the CES is still incomplete. Falling short of one of the qualifications that would complete his membership in the CES, Seneres cannot successfully interpose violation of security of tenure. NOTE: Acceptance of a temporary appointment or assignment without reservation or upon one’s own volition is deemed waiver of security of tenure. (Palmera v. CSC, G.R. No. 110168, 04 Aug. 1994) His appointment to the position of NCC Director General could only be construed as temporary, and he could be removed any time even without cause. Even assuming that he was already conferred with a CES rank, his appointment would be permanent as to his CES rank only but not as to his position as NCC Director General. As member of the CES, he could be reassigned or transferred from one position to another from one department, bureau, or office to another provided that there would be no reduction in his rank or salary and that his reassignment/transfer was not oftener than every two years, among other conditions. (Seneres v. Sabido, ibid.) Rules applicable to temporary employees vis-avis security of tenure 1. 2. 3. Q: May the courts determine the proper classification of a position in government? Is the position of corporate secretary in a GOCC primarily confidential in nature? Security of tenure for non-competitive positions 1. 2. 3. Primarily confidential officers and employees hold office only for so long as confidence in them remains. If there is genuine loss of confidence, there is no removal, but merely the expiration of the term of office. Non-career service officers and employees’ security of tenure is limited to a period specified by law, coterminous with the appointing authority or subject to his pleasure, or which is limited to the duration of a particular purpose. Political appointees in Foreign Service possess tenure coterminous with that of the appointing authority or subject to his pleasure. A: YES. The courts may determine the proper classification of a position in government. A strict reading of the law (E.O. 292) reveals that primarily confidential positions fall under the non-career service. The tenure of a confidential employee is coterminous with that of the appointing authority, or is at the latter's pleasure. However, the confidential employee may be appointed or remain in the position even beyond the compulsory retirement age of 65 years. Jurisprudence establishes that the Court is not bound by the classification of positions in the civil service made by the legislative or executive branches, or even by a constitutional body like the CSC. The Court is expected to make its own determination as to the nature of a particular position, such as whether it is a primarily confidential position or not, without being bound by prior classifications made by other bodies. Instances where a transfer may be considered violative of employee’s security of tenure When the transfer is a preliminary step toward his removal, or a scheme to lure him away from his permanent position, or when it is designed to indirectly terminate his service, or force his resignation. Such a transfer would in effect circumvent the provision that safeguards the tenure UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Not protected by security of tenure – can be removed anytime even without cause; If they are separated, this is considered an expiration of term. But, they can only be removed by the one who appointed them; and Entitled to such protection as may be provided by law. (Sec. 2(6), Art. IX-B, 1987 Constitution) In fine, a primarily confidential position is characterized by the close proximity of the positions of the appointer and appointee as well as the high 286 Law on Public Officers which selection for reemployment shall be made; (Sec. 26(5), Title I-A, Chapter 5, Book V, Revised Administrative Code of 1987) degree of trust and confidence inherent in their relationship. In the light of the instant controversy, the Court's view is that the greater public interest is served if the position of a corporate secretary is classified as primarily confidential in nature. (CSC v. Javier, G.R. No. 173264, 22 Feb. 2008) 6. Detail – A movement of an employee from one agency to another without issuance of an appointment and shall be allowed, only for a limited period in the case of employees occupying professional, technical and scientific positions; (Sec. 26(6), Title I-A, Chapter 5, Book V, Revised Administrative Code of 1987) 7. Reassignment – An employee may be reassigned from one organizational unit to another in the same agency, provided that such reassignment shall not involve a reduction in rank, status or salary; (Sec. 26(7), Title I-A, Chapter 5, Book V, Revised Administrative Code of 1987) 8. Demotion – A movement from one position to another involving the issuance of an appointment with diminution in duties, responsibilities, status or rank which may or may not involve reduction in salary; 9. Secondment – It is the movement of an employee from one department or agency to another which is temporary in nature. It may or may not require the issuance of an appointment and may involve an increase in compensation and benefits. Acceptance of a secondment is voluntary on the part of the employee. The payment of salaries of a seconded employee shall be borne by the receiving agency and the seconded employee shall be on leave without pay in his mother agency for the duration of his secondment. (Señeres v. Sabido, G.R. No. 172902, 21 Oct. 2015) Personnel Actions Any action denoting movement or progress of personnel in the civil service. (City Mayor Debulgado v. CSC, G.R. No. 111471, 26 Sept. 1994) Personnel Actions include 1. 2. Appointment through Certification – It is issued to a person who has been selected from a list of qualified persons certified by the Commission from an appropriate register of eligible and who meets all other requirements of the position; (Sec. 26(2), Title I-A, Chapter 5, Book V, Revised Administrative Code of 1987) Promotion – It is the movement from one position to another with increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay; (Sec. 26(2), Title I-A, Chapter 5, Book V, Revised Administrative Code of 1987) 3. Transfer – A movement from one position to another which is of equivalent rank, level or salary without break in service involving issuance of an appointment; 4. Reinstatement – A person who has been permanently appointed to a position in the career service and who has, through no delinquency or misconduct, been separated therefrom, may be reinstated to a position in the same level for which he is qualified; 5. Reemployment – Persons who have been appointed permanently to positions in the career service and who have been separated as result of reduction in force and or reorganization shall be entered in a list from 287 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law 11. Habitual drunkenness; 12. Gambling; 13. Refusal to perform official duty or render overtime service; 14. Physical or mental incapacity due to immoral or vicious habits; and 15. Willful refusal to pay just debts or willful failure to pay taxes. G. ACCOUNTABILITY OF PUBLIC OFFICERS Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives. (Sec. 1, Art. XI, 1987 Constitution) Q: The Office of the Court Administrator recommends that Cesare Sales be dismissed from service in the Judiciary despite his 17 years length of service on the ground of habitual tardiness. The Report submitted shows that Sales had always been tardy in going to the office for the months of January to September 2011. In addition, he was on several sick leaves, forced leaves, and vacation leaves. On the days he was on leave, he indicated in his DTRs "sick leave applied," "vacation leave applied" or "forced leave applied." In his comment, Sales admitted his frequent tardiness in going to the office but pleaded that he be given consideration by the Court. Should Sales be dismissed from service on the ground of habitual tardiness? Types of Accountability 1. 2. Administrative Criminal 1. DISCPLINE Disciplinary Action It is a proceeding, which seeks the imposition of disciplinary sanction against, or the dismissal or suspension of, a public officer or employee on any of the grounds prescribed by law after due hearing. a. GROUNDS NOTE: Gross neglect is such neglect which, from the gravity of the case or the frequency of instances, becomes so serious in its character as to endanger or threaten the public welfare. (Office of the Court Administrator v. Guan, A.M. No. P-07-2293, 15 July 2015) A: YES. Under CSC Memorandum Circular No. 04, s. 1991, an officer or employee shall be considered habitually tardy if he is late for work, regardless of the number of minutes, ten (10) times a month for at least two (2) months in a semester, or at least two (2) consecutive months during the year. In the case of Sales, he had continuously incurred tardiness during the months of January to September 2011 for more than 10 times each month, except during the month of March when he only came in late 10 times. (Re: Habitual tardiness of Cesare Sales, MTC Office of Clerk of Court, Manila, A.M. No. P-13-3171, 28 Jan. 2014) Misconduct; Disgraceful and immoral conduct; Discourtesy in the course of official duties; Inefficiency and incompetence in the performance of official duties; 8. Conviction of a crime involving moral turpitude; 9. Being notoriously undesirable; 10. Falsification of official documents; Q: Hallasgo was the Municipal Treasurer of the Municipality of Damulog, Bukidnon and was accused before the Office of the Deputy Ombudsman for Mindanao of unauthorized withdrawal of monies of the public treasury amounting to malversation of public funds by outgoing and incumbent officials of the municipality. The Office of the Ombudsman for Mindanao determined that it could not make a Grounds for the discipline of public officers 1. Dishonesty; 2. Oppression; 3. Neglect of duty; 4. 5. 6. 7. UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES 288 Law on Public Officers dismissed for violating administrative remedies. complete evaluation of the issues without conducting an extensive audit. The Deputy Ombudsman for Mindanao issued a Decision finding petitioner guilty of grave misconduct. Is the petitioner correct when it contended that the CA failed to appreciate that there was no substantial evidence to warrant the meting out of the extreme penalty of dismissal from service? the doctrine of 1. Is the CA correct? 2. Should Catipon be exonerated of the latter offense? A: 1. YES. It is the Civil Service Commission Proper, which shall have jurisdiction over decisions of Civil Service Regional Offices. It is only the decision of the Commission Proper that may be brought to the CA on petition for review, under Section 50 of MC 19. Indeed, the administrative agency concerned is in the "best position to correct any previous error committed in its forum." A: NO. Misconduct generally means wrongful, improper or unlawful conduct motivated by a premeditated, obstinate or intentional purpose. It is a transgression of some established and definite rule of action, a forbidden act, a dereliction of duty. Qualified by the term “gross,” it means conduct that is “out of all measure beyond allowance; flagrant; shameful; such conduct as is not to be excused.” We find that the evidence on record demonstrates a pattern of negligence and gross misconduct on the part of the petitioner that fully satisfies the standard of substantial evidence. Substantial evidence is such amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. (Hallasgo v. Commission on Audit, G.R. No. 171340, 11 Sept. 2009) 2. YES. Catipon was negligent in filling up his CSPE application form and in failing to verify beforehand the specific requirements for the CSPE examination. The claim of good faith and absence of deliberate intent or willful desire to defy or disregard the rules relative to the CSPE is not a defense as to exonerate him from the charge of conduct prejudicial to the best interest of the service; under our legal system, ignorance of the law excuses no one from compliance therewith. (Catipon Jr. vs. Japson, G.R. No. 191787, 22 June 2015) Q: In 1993, Macario Catipon filed an application to take the Career Service Professional Examination (CPSE), believing that the CSC still allowed applicants to substitute the length of their government service for any academic deficiency which they may have. When he passed, he was later promoted to Senior Analyst and Officer-in-Charge Branch Head of the SSS Bangued. In October 1995, he finally eliminated his deficiency of 1.5 units in Military Science. Q: Felomino C. Villa filed an administrative complaint against Atty. Arolf M. Ancheta, former Provincial Agrarian Reform Adjudicator (PARAD) for Grave Misconduct and Dishonesty and for violation of Republic Act No. (R.A.) 3019 in connection with Ancheta's alleged irregular issuance of an Order granting the quashal of a writ of execution in favor of Villa. Ancheta denied the charges against him, mainly arguing that Villa's claims were all hearsay and unsupported by evidence. The Ombudsman found Ancheta guilty of simple neglect of duty. Is the Ombudsman correct? In 2003, he was charged with Dishonesty, Falsification of Official documents, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service by the CSC-CAR for making deliberate false entries in his CSPE application. The CSC exonerated Catipon from the offense charged but found him guilty of Conduct Prejudicial to the Best Interest of Service. Catipon appealed the judgment directly to the Court of Appeals, but the petition was A: NO. Simple neglect of duty means the failure of an employee or official to give proper attention to a task expected of him or her, signifying a disregard of a duty resulting from carelessness or indifference. In this case, the Ombudsman ruled that Ancheta "fell short of the reasonable diligence required of him, 289 UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW Political Law committee, and the DECS Secretary cannot usurp such right. The inclusion of a representative of the teachers’ organization in the committee is indispensable to ensure an impartial tribunal. (Fabella v. Court of Appeals G.R. No. 110379, 28 Nov. 1997) for failing to exercise due care and prudence in ascertaining that the printed unofficial order or its soft copy in his computer files [is] already torn or deleted after issuing the order inhibiting himself from the DARAB case." However, there appears to be insufficient basis for the Ombudsman's findings. Its ruling that Ancheta "either neglected to tear or pierce the printed unofficial order, or delete the same in his computer files after he issued the Order x x x inhibiting himself" is mere conjecture, which is not enough to hold Ancheta administratively liable especially when coupled with the established fact, admitted by the Ombudsman herself, that there is no evidence linking Ancheta to the inclusion of the subject Order in the case records before the DARAB Regional Office. (Atty. Arolf M. Ancheta v. Felomino C. Villa, G.R. No. 229634, 15 Jan. 2020, J. Caguioa) Q: DD filed an Affidavit Complaint before the Ombudsman, alleging that XX, the former Municipal Mayor, approved several appointments of his brother, YY, as Mechanical Shop Foreman. DD alleged that 1) ZZ who is XX's and YY's sister, certified the appointments in her capacity as the former Municipal Budget Officer; and 2) that the siblings conspired to make it appear that the position is of a higher salary grade (SG 15) when in truth, the Sangguniang Bayan, through Ordinance Nos. 2000-151 and 2001-157 fixed a lower Salary grade of 11 to the position–Consequently, YY received a salary higher than what was provided by law, to the damage and prejudice of the government. b. JURISDICTION Disciplinary Jurisdiction of Heads of Ministries, Agencies and Instrumentalities, Provinces, Cities and Municipalities Should ZZ be held liable for grave misconduct, being the local budget officer at the time of YY’s appointment? They have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decision shall be final in case the penalty imposed is suspension of not more than 30 days or fine in an amount not exceeding 30 days salary. In other cases, the decision shall be initially appealed to the department head and finally to the Civil Service Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the department head. (Sec. 37, P.D. 807) A: NO. In order to establish administrative liability for misconduct, there must be a nexus between the public official's acts and the functions of his or her office. The case against ZZ revolved around her certifications appearing in the Plantilla of Casual Appointments of YY. However, a simple reading of the Plantilla of Casual Appointments plainly shows the extent of ZZ’s acts to be only with respect to certifying that appropriations did exist for the position. It is actually the HRMO which indicated the salary grades of the appointees in the documents, and which determined their correctness. NOTE: Sec. 9, R.A. 4670 Magna Carta for Public School Teachers provides that the committee to hear administrative charges against public school teachers must include a representative of the teachers’ organization. The appointment by the DECS Secretary of teachers to the committee does not comply with this requirement, as it is the teachers’ organization which possesses the right to indicate its choice of representative in the UNIVERSITY OF SANTO TOMAS 2022 GOLDEN NOTES Hence, the specific act for which ZZ is being called to account has nothing to do with budget preparations and any act related to it leading up to the enactment of an appropriation ordinance by the sanggunian. Therefore, there is no substantial evidence to hold ZZ administratively liable. (Cecilia Rejas v. Office of the Ombudsman, GR Nos. 241576 & 241623, 3 Nov. 2020, J. Caguioa) 290 Law on Public Officers Disciplinary Commission Jurisdiction of Civil Liabilities of Public Officers Service GR: A public officer is not liable for injuries sustained by another due to official acts done within the scope of authority. It has jurisdiction over the employees of Government branches, subdivisions, instrumentalities, and agencies, including government-owned or –controlled corporations with original charters. It has the authority to hear and decide administrative disciplinary cases instituted directly with it or brought to it on appeal and to enforce or order execution of its decisions, resolutions or orders. (De Leon, 2014) XPNs: 1. 2. 3. Jurisdiction over administrative disciplinary actions against elective local officials. Jurisdiction over administrative disciplinary actions against elective local officials is lodged in two authorities: the Disciplinary Authority and the Investigating Authority. (A.O. No. 23) The Disciplining Authority is the President of the Philippines, whether acting by himself or through the Executive Secretary. The Secretary of the Interior and Local Government is the Investigating Authority, who may act by himself or constitute an Investigating Committee. The Secretary of the DILG, however, is not the exclusive Investigating Authority. In lieu of the DILG Se
