Political Law Reviewer

Political LawComponents:~Political law~Constitutional Law~Administrative Law~Election Laws~Public Corporations~PIL

Constitution4 constitutions 1935, 1973, Freedom, 1987 Constitution

Doctrine of Constitutional Supremacy – The constitution is important, paramount and supreme in law; if a law or contract violates the constitution, that law or contract is null and void. Since it is important, paramount and supreme in law, it is deemed written in every contract and law.

Written constitution3 important parts:Constitution of government – provides for basic structure of government (Arts. 7,8,9,10, LGC)Constitution of Liberty – Bill of Rights - Art. 3, limitations on the powers of government/stateConstitution of Sovereignty – those dealing with amendments of the constitution only (Art. XVII Amendments and Revision)

Sec. 2 Art. III – Right against illegal arrests and seizuresSec. 9 Art. III – Right of just compensation and due process (Rule 67, RoC) in case of expropriation

2 kinds of provisions:Self-executing – operative upon the Constitution takes effectNon self-executing – needs enabling act from congress

Examples of Self-executing provisionsMany provisions in the bill of rights

Manila Prince Hotel vs. GSISFilipino First Policy under the Constitution is self-executing.The presumption is that all provisions of the Constitution are self-executing, except when it is expressly provided that a legislative act should be had for a provision to be executed.

Non-Self-executing provisionsMany of the provisions in Art. 2 (Declaration of Principles and state policies)

- Guide congress in enactment of laws- These are broad policies

Oposa vs. Factoran – intergenerational responsibilityA group of minors filed a petition in court on behalf not only of their generations but on behalf of generations yet to be born for the DENR to cancel existing timber license agreements already issued and not to issue such licenses in order to preserve such forests we still have. They invoked Section 16 of Art. 2 of the 1987 Constitution. “Section 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.”

ISSUE: Whether or not this is a self-executing provision.

HELD: SC replied in the affirmative. As a general rule, many of the provisions in Art. 2 are non-self executory.

Section 16 speaks of a right. The reason why this right is not found in Article 3 because the rights found in Article 3 are civil and political rights. They are limitations to the powers of the government. Art. 2 is a different category altogether, for it concerns nothing less than self-preservation and self-perpetration. This basic right even need not be written in the Constitution, for it is assumed to exist from the inception of human life.

Is the right to a balanced and healthful ecology any less important than any of the civil and political rights enumerated in the Bill of Rights? Explain.

Held: While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation, the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come – generations which stand to inherit nothing but parched earth incapable of sustaining life. (Oposa v. Factoran, Jr., 224 SCRA 792 [1993][Davide])

Manila Prince Hotel vs. GSIS Filipino First Policy Sec. 10 2nd paragraph Art. 12Privatization of MPH. GSIS sold its interest at public auction.

“Section 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities.”

Is the Filipino-first policy self-executory?Yes, according to the SC. It is mandatory positive command, which is complete in itself, there no need for further implementing rules to enforce it. It is per se judicially enforceable. Qualified Filipinos must be preferred. Besides, unless it is expressly provided that it needs a legislative act is needed to enforce a mandate, it is deemed self-executory. The presumption now would be that all provisions of the Constitution are self-executory, unless specifically and expressly stated to be otherwise. Otherwise, Congress would ignore the mandate of the law and the consequences would be cataclysmic.

Patrimony – heritage, natural and cultural.

Article XVII – Amendment or RevisionAmendment – piecemeal change; change that won’t drastically alter the fundamental lawRevision – overhaul

Tests adopted to determine amendment vs. revisionLambino vs. COMELEC – Quantitative test – how many provisions will be affectedQualitative Test – what kind of change is sought to be effected

A proposal to change our form of government from presidential to parliamentary would involve a revision. Many provisions will be subject to change, about 100, according to the SC.

The Change sought to be effected would involve changes in the 3 powers in the government also. The doctrine in the separation of powers will be affected. There will be union of the executive and legislative branches under a parliamentary government.

In amending/revising, there are 2 stages:1. Proposal stage – proposal to amend or revise2. Ratification stage – vote of the people via a plebiscite to be ratified by the majority of the people

1987 Constitution – crafted via Constitutional Commission. This mode of proposing constitutional amendment/revision is not found in Art. XVII. Members thereof were appointed by Pres. Cory Aquino.

PROPOSAL STAGE

How proposal is made: (Sections 1 and 2 Art. XVII)1. Congress itself – ¾ vote of all its members, as a Constituent Assembly2. Constitutional Convention – members are voted upon, a body separate and distinct, elected by people of their respective districts3. People’s Initiative – petition signed by at least 12 percentum of the registered voters in each legislative district. “No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.”

2 ways to convene ConCon1. Congress itself may call for it - 2/3 vote2. Submit the issue to the people via a plebiscite – mere majority of members of congress

PEOPLE’S INITIATIVEWhat is required in people’s initiative?A petition signed by at least 12 percentum of the registered voters, provided at least 3% of the voters in each legislative district shall sign the petition. CAVEAT: “No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.”

Defensor-Santiago vs. COMELEC (Section 2 Art. XVII remains to be non-self-executing)Note that Section 2 Art. XVII states “The Congress shall provide for the implementation of the exercise of this right.” Has it already been enacted?Yes, RA 6735 – Initiative and Referendum Law. But the portion on people’s initiative to revise the Constitution has been declared unconstitutional in the case of Defensor-Santiago under COMELEC. Section 2 Art. XVII remains to be non-self-executing.

Also, People’s Initiative under Section 2 Art. XVII is limited to proposing amendments only, not revision.

3 kinds of initiatives under RA 6735:Initiative on the Constitution – supposed to implement Sec. 2 Art. XVII; declared unconstitutional (Defensor-Santiago vs. COMELEC)Initiative on StatutesInitiative on Local Legislation

Art. I NATIONAL TERRITORYThe national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.

What is included the Philippine Territory?The territory of the Philippines comprises the Philippine archipelago and all other territories over which the Philippines has sovereignty or jurisdiction.

Our Constitution is very verbose. Justice Isagani Cruz

BASES OF OUR NATIONAL TERRITORY:1. The Philippine Archipelago~Treaty of Paris, Dec. 10, 1898 – ceded by Spain to the US, comprising of Luzon, Visayas and Mindanao (exclusive of certain islands like Sulu and Sibutu Group)Ancillary treaties:~Treaty of Washington, Nov. 7, 1900 between US and Spain – Cagayan, Sulu and Sibutu Islands ceded to US~Treaty of January 1930 between US and Great Britain – Certain territories between Palawan like Mangsee Islands and Turtle Islands were ceded by UK to the US.

2. All other territories over which the Philippines has sovereignty or jurisdictionKalayaan Group of Islands (PD 1596 – Law creating the Kalayaan Municipality under the province of Palawan.) in the West Philippine Sea. Note: includes the Panatag Shoal (Bajo de Masinloc)Scarborough Shoal – 124 nautical miles from Masinloc, Zambales; Bajo de Masinloc, Panatag ShoalShoal – a sand bar or coral reef, a shallow portion of a river or sea, visible at low tide but sinks at high tide.

Is the Spratlys Group of Islands/Kalayaan Island Group part of the Philippine Archipelago?No. Is it part of national territory?Yes. (All other territories over which the Philippines has sovereignty or jurisdiction)

Law of discovery – person who discovers new territory has certain rights over his discovery; only mere inchoate right over the territory.

DOCTRINE OF EFFECTIVE OCCUPATIONFor title to pass to discoverer there must be effective occupation and administration over the territory for a period of time.

Before, Spratlys was terra nullus (Land that belonged to no one). It was discovered by Tomas Croma, a Boholano, the founder of the PMI. During Martial Law, he waived his rights over the Spratlys in favor of the government. Marcos had the islands occupied by Marines and issued PD 1596. Elections were held in the islands as to the local officials.

Kalayaan and Panatag are part of the regime of islands of the Philippines, which have its own maritime baselines and zones.

Panatag Shoal is within the 200 mile Exclusive Economic Zone.

We should elevate the issue before the ITLOS (International Tribunal of the Law of the Sea, created under UNCLOS), the proper tribunal to resolve territorial dispute.

Art. I 2nd Sentence“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.” This is an affirmation of our adherence to the Archipelagic Doctrine under the UNCLOS. An archipelagic state like the Philippines involve identifying outermost points and then connect these points to create baselines until you are able to encompass the entire archipelago. All waters therein are considered as one integrated whole.

Implication:Internal WatersForeign vessels cannot just invoke right of innocent passage. This right can only be invoked on territorial sea, which is 12 miles from the shore, or baselines in the case of the archipelago.

BASELINES: Outermost points are connected by straight lines(UNCLOS – United Nations Convention of the Law of the Sea of 1982, we are a signatory and have ratified it.)Shore – 12 miles – territorial sea12th mile -12 miles – contigual zone24th mile to 200th mile – Exclusive economic zone.

Magallona vs. Ermita (RA 9522 is a notice to the whole world about our baselines under UNCLOS III)RA 9522 is not unconstitutional. It is a statutory tool to demarcate the country’ maritime zones and continental shelf under UNCLOS III, not to delineate Philippine territory.

***RA 9522’s use of the framework of Regime of Ilsands to determine the maritime zones of the Kalayaan Islands Group and the Scarborough Shoal is not inconsistent with the Philippines’ claim of sovereignty over these areas.

***In fact, that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and sea lanes passage, does not place them in lesser footing vis-à-vis continental coastal states which are subject, in their territorial sea, to the right of innocent passage and the right of transit passage through international straits. The imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic states’ archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS III. Separate islands generate their own maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the States’ territorial sovereignty, subjecting these waters to the right of other states under UNCLOS III.

***In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone, reserving solely to the Philippines the exploitation of all living and non-living resources within such zone. Such a maritime delineation binds the international community since the delineation is in strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international community will of course reject it and will refuse to be bound by it.

UNLCOS III favors states with a long coastline like the Philippines. UNCLOS III creates a sui generis maritime space – the exclusive economic zone – in waters previously part of the high seas. UNCLOS III grants new rights to coastal states to exclusively exploit the resources found within this zone up to 200 nautical miles. UNCLOS III, however, preserves the traditional freedom of navigation of other states that attached to this zone beyond the territorial sea before UNCLOS III. (Magallona vs. Ermita, August 16, 2011)

***Magallona vs. Ermita, August 16, 2011Statutory Claim over Sabah under RA 5446 is retained.Petitioner’s argument for the invalidity of RA 9522 for its failure to textualize the Philippines’ claim over Sabah in North Borneo is also untenable. Section 3 of RA 5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines of Sabah:

Section 3. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situatied in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty.

BaselinesMagallona vs. Ermita, August 16, 2011

[T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of its maritime zones including the extended continental shelf in the manner provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some technical deficiencies XXX

Hence, far from surrendering the Philippines’ claim over the KIG and the Scarborough Shoal, Congress’ decision to classify the KIG and the Scarborough Shoal as “‘Regime[s] of Islands’ under the Republic of the Philippines consistent with Article 121” of UNCLOS III manifests the Philippine State’s responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any “naturally formed area of land, surrounded by water, which is above water at high tide,” such as portions of the KIG, qualifies under the category of “regime of islands,” whose islands generate their own applicable maritime zones.

There can be a nation without territory (Palestinian nation). But there can be no state without a territory, as territory is an element of a state.

IMPERIUM VS. DOMINIUMSovereignty is the right to exercise the functions of a state to the exclusion of any other state. It is often referred to as the power of imperium, which is defined as the government authority possessed by the state. On the other hand, dominion, or dominium, is the capacity of the state to own or acquire property such as lands and natural resources. (Isagani Cruz vs. Secretary of DENR)

Sultan of Sulu cannot exercise Imperium over Sabah. Only a state can do that.

The Concept of an Associated StateAn association is formed when two states of unequal power voluntary establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. (Province of North Cotabato vs. GRP Peace Panel, Oct. 14, 2008)

Example. Micronesia and Marshall Islands maintain associate state relations with USA.

The Concept of “Association” is not recognized under the 1987 ConstitutionThe 1987 Constitution provides that no province, city or municipality, not even the ARMM is recognized under our laws as having an ‘associative’ relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status the aims to prepare any part of Philippine territory for independence. (Province of North Cotabato vs. GRP Peace Panel, Oct. 14, 2008)

Art. IV CitizenshipSection 1. The following are citizens of the Philippines:

[1] Those who are citizens of the Philippines at the time of the adoption of this Constitution;[2] Those whose fathers or mothers are citizens of the Philippines;

[3] Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and[4] Those who are naturalized in accordance with law.

Feb. 2, 1987 – plebiscite to ratify the 1987 Constitution – “at the time of the adoption of this Constitution”

Section 2. Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens.

2 kinds of natural-born citizens:1. Those who were born without having to perform any act to acquire or perfect their Philippine citizenship2. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens.

Section 3. Philippine citizenship may be lost or reacquired in the manner provided by law.

Section 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission, they are deemed, under the law, to have renounced it.

Section 5. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.

Alien – Sec. 7 Art. XII – prohibited from owning land except through succession.

Natural born and naturalized

Effectivity of Constitution1935 Constitution – 1935 1973 Constitution – January 17, 1973Freedom Constitution - 1987 Constitution - Feb. 2, 1987

Who are Filipino Citizens – Sec. 1[1] Those who are citizens of the Philippines at the time of the adoption of this Constitution;

Feb. 2, 1987 – Date of ratification.Citizenship is covered by the constitution at the time of his birth.

Tecson vs. COMELEC Case of Fernando Poe, Jr.The father of FPJ became a citizen under the 1935 Constitution

[2] Those whose fathers or mothers are citizens of the Philippines;

Note: Fathers OR mothers. So long as one of your parents is Filipino, you are a Filipino. This is our adherence to Jus sanguinis. Ever since, we have adhered to this principle.

X was born in California to Filipino parents. Is X a Filipino Citizen?Yes, under RP law, he is Filipino.In the US, jus soli is determinant of citizenship. X is a US Citizen under US law. Under Sec. 5, dual allegiance is inimical to national interests. It invites some legal complications later on.

[3] Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; (This is to be connected to Section 4, the effect of marriage with foreigners)

This would include:

a. Those born before effectivity of the 1973 Constitution of Filipino mothers, they must elect Filipino citizenship upon reaching the age of majority, within a reasonable period (within 3 years after per jurisprudence) under CA 625.b. Those who are born after January 17, 1973, there is need to have naturalization proceedings. (more of an exception, they will not be around after 100 years)

[4] Those who are naturalized in accordance with law.Natural Born Citizen – Sec. 2

Bengzon III vs. HRETIn general, there are only 2 kinds of citizens, natural-born or naturalized Filipinos. If one did not need to undergo naturalization process, it would mean he is natural-born.

Natural-born Citizens - Citizens of the Philippines from birth will not have to perform any act to perfect their citizenship.

What is Social Justice?Social justice is the humanization of the law, equalization of the social and economic forces by the state so that justice may at least be approximated in its most objectively rational and secular conception.(Calalang vs. Wlliams)

Section 3. Philippine citizenship may be lost or reacquired in the manner provided by law.

Frivaldo vs. COMELECWays of re-acquiring citizenship after loss:1. Naturalization2. Repatriation3. Direct act of congress

How may Filipino citizens who lost their citizenship reacquire the same? Answer: Filipino citizens who have lost their citizenship may x x x reacquire the same in the manner provided by law. Commonwealth Act No. 63 enumerates the three modes by which Philippine citizenship may be reacquired by a former citizen: (1) by naturalization, (2) by repatriation, and (3) by direct act of Congress . (Frivaldo v. COMELEC, 257 SCRA 727, June 28, 1996, En Banc [Panganiban]; Antonio Bengson III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan])

Effect of Marriage : Sec. 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission, they are deemed, under the law, to have renounced it.

This is a carry-over from a similar provision in the 1973 Constitution. But in that provision, it specifies ‘a female Filipino.’

The 1935 provision does not carry the provision.

The 1973 provision was prejudicial to women. Male Filipinos are not affected by the provision.

If the woman maintained a common-law relationship with the foreigner, she retains citizenship. A woman who married a foreigner will gain the citizenship of her husband. Thus, an unmarried woman engaged in a common-law relationship with a foreigner shall gain an advantage over a Filipina who married a foreigner.

Yee vs. Director of Public SchoolsYee is a public school teacher who married a Chinese citizen. She was removed as a public school teacher upon her marriage. The SC ruled that she is not a Filipino citizen anymore under the 1935 Constitution. Public office is only reserved for Filipino citizens, and public school teachers are considered to be occupying a public office. What if she retains a common-law life with him?

She will retain Filipino citizenship. She will have an advantage over a legally married woman who had married a foreigner. The children will be following the citizenship of the mother. However, they are illegitimate children who will follow the citizenship of their mother, and thus illegitimate children held advantage over other legitimate children.

(Note: This is the reason why those children of a Filipino woman but with an alien father who were born after January 17, 1973 need to have naturalization proceedings. And currently, citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission, they are deemed, under the law, to have renounced it.)

In Re Application to the Philippine Bar of Vicente Ching 1999 En bancChing was born in RP in 1964, under the 1935 Constitution. His mother is Filipino, his father is Chinese. He grew up in RP and studied in RP. He passed the CPA and practiced it in RP. He ran for public office once, and won. He decided to take up law and finished. He took the bar and passed, but was not allowed to take the oath.

SC discovered that he elected Filipino citizenship only after 14 years from reaching the age of majority. Congress had enacted Commonwealth Act 625 – Those born to Filipino mothers had to elect within a reasonable time upon reaching the age of majority. SC held that “reasonable time” means within 3 years from reaching the age of majority. The span of 14 years was way beyond the contemplation of the requirement of electing citizenship within a reasonable time. He merely has an inchoate right to such citizenship; as such, he should avail of the right with fervor, enthusiasm and promptitude. Sadly, in this case, he let the golden opportunity slip away from his grasp.

Would it make any difference if the parents of Vicente Ching were not legally married? Why?Yes, he would be a Filipino citizen, because, based on jurisprudence, his mother retains Filipino citizenship. There will be no need for him to undergo naturalization proceedings.

Can a legitimate child born under the 1935 Constitution of a Filipino mother and an alien father validly elect Philippine citizenship fourteen (14) years after he has reached the age of majority?

Held: Under Article IV, Section 1(3) of the 1935 Constitution, the citizenship of a legitimate child born of a Filipino mother and an alien father followed the citizenship of the father, unless, upon reaching the age of majority, the child elected Philippine citizenship. C.A. No. 625 which was enacted pursuant to Section 1(3), Article IV of the 1935 Constitution, prescribes the procedure that should be followed in order to make a valid election of Philippine citizenship. However, the 1935 Constitution and C.A. No. 625 did not prescribe a time period within which the election of Philippine citizenship should \be made. The 1935 Charter only provides that the election should be made “upon reaching the age of majority.” The age of majority then commenced upon reaching twenty-one (21) years. In the opinions of the Secretary of Justice on cases involving the validity of election of Philippine citizenship, this dilemma was resolved by basing the time period on the decisions of this Court prior to the effectivity of the 1935 Constitution. In these decisions, the proper period for electing Philippine citizenship was, in turn, based on the pronouncements of the Department of State of the United States Government to the effect that the election should be made within a “reasonable time” after attaining the age of majority. The phrase “reasonable time” has been interpreted to mean that the election should be made within three (3) years from reaching the age of majority.

The span of fourteen (14) years that lapsed from the time that person reached the age of majority until he finally expressed his intention to elect Philippine citizenship is clearly way beyond the contemplation of the requirement of electing “upon reaching the age of majority.”

Philippine citizenship can never be treated like a commodity that can be claimed when needed and suppressed when convenient. One who is privileged to elect Philippine citizenship has only an inchoate right to such citizenship. As such, he should avail of the right with fervor, enthusiasm and promptitude. (Re: Application for Admission to the Philippine Bar, Vicente D. Ching, Bar Matter No. 914, Oct. 1, 1999, En Banc [Kapunan])

Tecson vs. COMELEC 2004Facts:Petitioners sought for respondent Poe’s disqualification in the presidential elections for having allegedly misrepresented material facts in his (Poe’s) certificate of candidacy by claiming that he is a natural Filipino citizen despite his parents both being foreigners. Comelec dismissed the petition, holding that Poe was a Filipino Citizen. Petitioners assail the jurisdiction of

the Comelec, contending that only the Supreme Court may resolve the basic issue on the case under Article VII, Section 4, paragraph 7, of the 1987 Constitution.

Issue:Whether or not it is the Supreme Court which had jurisdiction.Whether or not Comelec committed grave abuse of discretion in holding that Poe was a Filipino citizen.

Ruling:1.) The Supreme Court had no jurisdiction on questions regarding “qualification of a candidate” for the presidency or vice-presidency before the elections are held.

"Rules of the Presidential Electoral Tribunal" in connection with Section 4, paragraph 7, of the 1987 Constitution, refers to “contests” relating to the election, returns and qualifications of the "President" or "Vice-President", of the Philippines which the Supreme Court may take cognizance, and not of "candidates" for President or Vice-President before the elections.

2.) Comelec committed no grave abuse of discretion in holding Poe as a Filipino Citizen.

The 1935 Constitution on Citizenship, the prevailing fundamental law on respondent’s birth, provided that among the citizens of the Philippines are "those whose fathers are citizens of the Philippines."

Tracing respondent’s paternal lineage, his grandfather Lorenzo, as evidenced by the latter’s death certificate was identified as a Filipino Citizen. His citizenship was also drawn from the presumption that having died in 1954 at the age of 84, Lorenzo would have been born in 1880. In the absence of any other evidence, Lorenzo’s place of residence upon his death in 1954 was presumed to be the place of residence prior his death, such that Lorenzo Poe would have benefited from the "en masse Filipinization" that the Philippine Bill had effected in 1902. Being so, Lorenzo’s citizenship would have extended to his son, Allan---respondent’s father.

Respondent, having been acknowledged as Allan’s son to Bessie, though an American citizen, was a Filipino citizen by virtue of paternal filiation as evidenced by the respondent’s birth certificate. The 1935 Constitution on citizenship did not make a distinction on the legitimacy or illegitimacy of the child, thus, the allegation of bigamous marriage and the allegation that respondent was born only before the assailed marriage had no bearing on respondent’s citizenship in view of the established paternal filiation evidenced by the public documents presented.

But while the totality of the evidence may not establish conclusively that respondent FPJ is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in his favor enough to hold that he cannot be held guilty of having made a material misrepresentation in his certificate of candidacy in violation of Section 78, in relation to Section 74 of the Omnibus Election Code.

****FPJ’s citizenship was questioned. FPJ was born in 1939. His father was Roland Alan Poe, and mother was Bessie Kelly, an American citizen. They were married in 1940. FPJ was an illegitimate child.

FPJ’s grandfather, Lorenzo Poe, was a peninsulares, who stayed after the Spaniards went away in 1898, and died in 1954 at the age of 84. The fundamental laws after the Spanish occupation were organic acts of the US Congress, among which was the Philippine Bill, wherein the term Filipino Citizen was first seen. Among those termed as citizens are all those of Spanish subjects who were inhabitants of the Philippines and resided therein, including who elected to stay after 1898, such as Lorenzo Poe. (This was called en masse citizenship.) The death certificate of Lorenzo Poe gave his death place as San Carlos, Pangasinan (which SC also presumed to be his residence). Thus, the grandfather being a Filipino Citizen, then the descendants are also Filipinos.

On the contention that FPJ being an illegitimate son, and therefore should be an American citizen, SC states that under those covered by the 1935 Constitution, those whose fathers are Filipino citizens are considered Filipino citizens. Regardless of his being illegitimate, he is a Filipino citizen. The 1935 Constitution can never be more explicit than it is. It states that among the Filipino Citizens are those whose fathers are Filipino Citizens. There can be no distinctions where there clearly are none provided.

The 1935 Constitution only makes a qualification on citizenship of children whose mothers married aliens.

Note the Following for reference:1935 ConstitutionThose whose fathers are Filipinos, whether legitimate or illegitimate – Filipino CitizenThose whose mothers married an alien – there is a need to elect Filipino citizenship within 3 years upon majority. 1973 ConstitutionThose whose mothers are Filipinos but whose fathers are aliens – Born before 1973 Constitution’s effectivity, Commonwealth Act 625 applies; Born after 1973 Constitution’s effectivity, there is need to have naturalization proceedings upon reaching the age of majority.

a. Those born before effectivity of the 1973 Constitution, they must elect Filipino citizenship upon reaching the age of majority, within a reasonable period (within 3 years after) under CA 625.b. Those who are born after January 17, 1973, there is need to have naturalization proceedings. (more of an exception, they will not be around after 100 years)

Illegitimate Children born of an alien father and Filipino mother under the 1935 Constitution are considered Filipinos. Why?It did so for the benefit of the child, not to prejudice or discriminate against him. It was to ensure a Filipino nationality for that illegitimate child of an alien father in line with the presumption that the Filipino mother will have custody of the child while exercising parental authority and had the duty to support her illegitimate child. (It is presumed that the father will not recognize the child, and this measure is to prevent an illegitimate child from becoming a stateless person.) (Tecson vs. COMELEC)

Q: What is the Caram Rule? A: Under the 1935 Constitution, those born in the Philippines of foreign parent, who before the adoption of the Constitution had been elected to public office, are considered Filipino citizens. (Chiongbian v. de Leon, G.R. No. L 2007,‐ Jan. 31, 1949)

The 1935, Constitution, during which regime FPJ had seen first light, confers citizenship to all persons whose fathers are Filipino citizens regardless of whether such children are legitimate or illegitimate. (Tecson v. COMELEC, G.R. No. 161434, Mar. 3, 2004)

Section 5. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.

Dual allegiance vs. Dual citizenship

Dual allegiance – a person owes by some positive act loyalty to two or more nations.What is really prohibited is dual allegiance.

Aznar vs. COMELEC (Sec. 5 Art. IV is not self-executing)Sec. 5 Art. IV requires an implementing law. The “law” referred to under said section is a future law to be enacted. In the case of Aznar, the Court ruled that the mere fact that he is an American did not mean that he is no longer a Filipino, and that an application for an alien certificate of registration was not tantamount to renunciation of his Philippine citizenship.

Mercado vs. Edu ManzanoThe SC made the distinction:Dual citizenship arises when as a result of the concurrent application of two or more different states, a person is said to be a national of the different states. Ex. A child is born to Filipino parents in a place which espouses jus soli.

Distinguish dual citizenship from dual allegiance.

Held: Dual citizenship arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states.

Dual allegiance, on the other hand, refers to a situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual’s volition. (Mercado v. Manzano, 307 SCRA 630, May 26, 1999, En Banc [Mendoza])

Bengson III vs. HRETBengson was able to reacquire his citizenship under RA 2630.SC – Repatriation results in the recovery of the original nationality. This means that natural-born Filipinos who lost their citizenship will be restored to his natural status as a natural-born citizen under the provisions of RA 2630.

What are the ways of acquiring citizenship? Discuss.

Held: There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These ways of acquiring citizenship correspond to the two kinds of citizens: the natural-born citizen, and the naturalized citizen. A person who at the time of his birth is a citizen of a particular country, is a natural-born citizen thereof.

As defined in the x x x Constitution, natural-born citizens “are those citizens of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship.”

On the other hand, naturalized citizens are those who have become Filipino citizens through naturalization, generally under Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law, which repealed the former Naturalization Law (Act No. 2927), and by Republic Act No. 530. (Antonio Bengson III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan])

To be naturalized, what must an applicant prove? When and what are the conditions before the decision granting Philippine citizenship becomes executory?

Held: To be naturalized, an applicant has to prove that he possesses all the qualifications and none of the disqualifications provided by law to become a Filipino citizen. The decision granting Philippine citizenship becomes executory only after two (2) years from its promulgation when the court is satisfied that during the intervening period, the applicant has: (1) not left the Philippines; (2) has dedicated himself to a lawful calling or profession; (3) has not been convicted of any offense or violation of government promulgated rules; or (4) committed any act prejudicial to the interest of the nation or contrary to any government announced policies (Section 1, R.A. 530). (Antonio Bengson III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan])

What qualifications must be possessed by an applicant for naturalization?

Held: Section 2, Act 473 provides the following qualifications:

(a) He must be not less than 21 years of age on the day of the hearing of the petition;(b) He must have resided in the Philippines for a continuous period of not less than ten years;(c) He 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;

(d) He must own real estate in the Philippines worth not less than five thousand pesos, Philippine currency, or must have some known lucrative trade, profession, or lawful occupation;(e) He must be able to speak and write English or Spanish and any of the principal languages; and(f) He must have enrolled his minor children of school age, in any of the public schools or private schools recognized by the Bureau of Private Schools of the Philippines where Philippine history, government and civic 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. (Antonio Bengson III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan])

What are the disqualifications under Section 4, Act 473, in an application for naturalization?

Held: Section 4, Act 473, provides the following disqualifications:

(a) He must not be opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized governments;(b) He must not be defending or teaching the necessity or propriety of violence, personal assault, or assassination for the success and predominance of their ideas;(c) He must not be a polygamist or believer in the practice of polygamy;(d) He must not have been convicted of any crime involving moral turpitude;(e) He must not be suffering from mental alienation or incurable contagious diseases;(f) He must have, during the period of his residence in the Philippines (or not less than six months before filing his application), mingled socially with the Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions and ideals of the Filipinos;(g) He must not be a citizen or subject of a nation with whom the Philippines is at war, during the period of such war;(h) He must not be a citizen or subject of a foreign country whose laws do not grant Filipinos the right to become naturalized citizens or subjects thereof.(Antonio Bengson III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan])

Has the SC amended the definition of natural-born citizens in the provisions of Section 2 on citizenship due to this case?No. Congressman Cruz did not perform any acts to acquire or perfect his citizenship. He performed acts to REACQUIRE his original citizenship. (Antonio Bengson III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan])Mercado vs. Manzano (Dual citizenship vs. Dual allegiance)Manzano has dual citizenship.

Is he disqualified to run?Disqualifications under Section 40 under the LGC:Section 40. Disqualifications. - The following persons are disqualified from running for any elective local position:(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;(b) Those removed from office as a result of an administrative case;(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;(d) Those with dual citizenship; (SC interpreted this to actually mean dual allegiance, Mercado vs. Manzano. Change your codal provision)(e) Fugitives from justice in criminal or non-political cases here or abroad;(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and(g) The insane or feeble-minded.

Held: Dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Private respondent is considered as a dual citizen because he is born of Filipino parents but was born in San Francisco, USA. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to posses dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers’ country such children are citizens of that

country; (3) Those who marry aliens if by the laws of the latter’s country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual’s volition.

By filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship. The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any disqualification he might have as a dual citizen.

By declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen. On the other hand, private respondent’s oath of allegiance to the Philippine, when considered with the fact that he has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine citizenship.

Note: It follows that the implementing law in Sec. 40 (d) is actually referring to DUAL ALLEGIANCE, which is prohibited under Sec. 5 Art. IV. It suffices that they file for candidacy. By declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen.

What is the principle in statutory construction was employed by the SC in the interpretation of Mercado vs. Manzano?In case of conflict with a provision of law and the Constitution, the first rule is to harmonize them both. If no harmony can be had, the Constitution prevails. Congress is presumed to know the Constitution when it enacted the law. “Hence, the phrase “dual citizenship” in R.A. No. 7160, §40(d) and in R.A. No. 7854, §20 must be understood as referring to “dual allegiance.” Consequently, persons with mere dual citizenship do not fall under this disqualification.“ (Mercado vs. Manzano)

RA 9225 - Citizenship Retention and Re-acquisition Act of 2003 aka Dual Citizenship Law

Reacquisition: To whom this will apply:Section 3. Retention of Philippine Citizenship - Any provision of law to the contrary notwithstanding, natural-born citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the oath of allegiance to the Republic.Section 4. Derivative Citizenship - The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizenship of the Philippines.

They simply must take the oath in order to reacquire Filipino Citizenship while remaining a citizen of another country. Hence, Sec. 7 Art. XII will not apply to them anymore.

Retention:2nd Paragraph, Section 3.Natural born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath.

For as long as you take the oath, you will retain your natural-born Philippine citizenship.

For one with dual citizenship to run for office, you will have to renounce your foreign citizenship at the time of the filing of your certificate of candidacy, to terminate your foreign citizenship in line with the Mercado vs. Manzano Case. Same requirement in case of appointment to public office, so long as one renounces foreign citizenship before assumption of office.

Section 5: (4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice;

Edison So vs. Republic NaturalizationNaturalization signifies the act of formally adopting a foreigner into the political body of a nation by clothing him or her with the privileges of a citizen. Under current and existing laws, there are three ways by which an alien may become a citizen by naturalization: (a) administrative naturalization pursuant to R.A. No. 9139; (b) judicial naturalization pursuant to C.A. No. 473, as amended; and (c) legislative naturalization in the form of a law enacted by Congress bestowing Philippine citizenship to an alien .

RA 9139 – the process here is simpler. This is not available to all aliens. This is only available to native-born aliens who have lived in this country all their lives, have never seen another country and demonstrated love and loyalty to the Philippines and affinity to the culture and customs of the people. It was enacted as a remedial measure to make acquisition of citizenship less tedious, less technical and more encouraging.

Freedom of State from SuitState ImmunitySection 3, Art. XVI (General Provisions)

The Doctrine of State Immunity from Suit

Discuss the basis of the doctrine of State immunity from suit.

Held: The basic postulate enshrined in the Constitution that “[t]he State may not be sued without its consent,” reflects nothing less than a recognition of the sovereign character of the State and an express affirmation of the unwritten rule effectively insulating it from the jurisdiction of courts. It is based on the very essence of sovereignty. As has been aptly observed by Justice Holmes, a sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. True, the doctrine, not too infrequently, is derisively called “the royal prerogative of dishonesty” because it grants the state the prerogative to defeat any legitimate claim against it by simply invoking its non-suability. We have had occasion to explain in its defense, however, that a continued adherence to the doctrine of non-suability cannot be deplored, for the loss of governmental efficiency and the obstacle to the performance of its multifarious functions would be far greater in severity than the inconvenience that may be caused private parties, if such fundamental principle is to be abandoned and the availability of judicial remedy is not to be accordingly restricted. (Department of Agriculture v. NLRC, 227 SCRA 693, Nov. 11, 1993 [Vitug])

USA vs. GuintoEven if it (doctrine of immunity from suit) is not expressly propounded in Sec. 3, Art. XIV, we are bound by it. See Sec. 2 Art. II.Art. II Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

Doctrine of sovereign equality of all states. Par in parem non habet imperium. (All states are sovereign equals, thus one state cannot exercise sovereignty over another.)

As applied to the local state, the doctrine of state immunity is based on the justification given by Justice Holmes that "there can be no legal right against the authority which makes the law on which the right depends." There are other practical reasons for the enforcement of the doctrine. In the case of the foreign state sought to be impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in parem, non habet imperium. All states are sovereign equals and cannot assert jurisdiction over one another. A contrary disposition would, in the language of a celebrated case, "unduly vex the peace of nations."

While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against the state itself although it has not been formally impleaded. In such a situation, the state may move to dismiss the complaint on the ground that it has been filed without its consent.

Ang Ladlad vs. COMELEC Yogyakarta PrinciplesAt this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice. Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of international law to ascertain their true status. We also hasten to add that not everything that society – or a certain segment of society – wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many social desires as rights in order to further claims that international law obliges states to sanction these innovations. This has the effect of diluting real human rights, and is a result of the notion that if “wants” are couched in “rights” language, then they are no longer controversial. Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international law professors, are – at best – de lege ferenda – and do not constitute binding obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the “soft law” nomenclature, i.e., international law is full of principles that promote international cooperation, harmony, and respect for human rights, most of which amount to no more than well-meaning desires, without the support of either State practice or opinio juris.

Opinio juris - Latin: the sense of legal obligation. In international law, acceptance of a practice as sufficient to create legal obligations.

How waiver is done:1. Express Waiver- General law- Special Law2. Implied Waiver

Express waiverRepublic vs. PurisimaA mere lawyer may not validly waive this immunity of the state. Only through Congress, through its enactment of a special or general law, may valid waiver of immunity be done.

Example of express waiver of immunity from suitGeneral law – Act No. 3083, applies to money claims in transactions with the government, whether express or implied. Act 3083 must always be correlated with CA 327 as amended by PD 1445 (The General Auditing Law). “Commonwealth Act No. 327, as amended by Presidential Decree No. 1445 [Sections 49-50], which requires that all money claims against the government must first be filed with the Commission on Audit which must act upon it within sixty days. Rejection of the claim will authorize the claimant to elevate the matter to the Supreme Court on certiorari (Rule 45) and, in effect, sue the State thereby.”

Special law – Art. 2180 of NCC Torts, the state may be held liable for damages when acting through a special agent.

Art. 2189 NCC, Provinces, cities, etc. may be held liable for damages due to defective maintenance of roads, canals, etc.

Tiutico vs. City of ManilaComplainant fell in an open manhole. Manila was held liable for damages under Art. 2189 NCC.

Sec. 24 LGC - Section 24. Liability for Damages. - Local government units and their officials are not exempt from liability for death or injury to persons or damage to property.

Implied Waiver~State commences litigation against private party, thereby opening itself to a counterclaim.~Entry of the government in to a contract with a private party

Acta juri imperii no implied consentActa jure gestionis there is implied consent

Implied consent, on the other hand, is conceded when the State itself commences litigation, thus opening itself to a counterclaim or when it 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. This rule x x x is not, however, without qualification. 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 function and another which is done in its proprietary capacity.

“The traditional rule of immunity exempts a State from being sued in the courts of another State without its consent or waiver. This rule is a necessary consequence of the principle of independence and equality of States. However, the rules of International Law are not petrified; they are constantly developing and evolving. And because the activities of states have multiplied, it has been necessary to distinguish them - between sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that State immunity now extends only to acts jure imperii. The restrictive application of State immunity is now the rule in the United States, the United Kingdom and other states in Western Europe.

US Vs. Ruiz 136 SCRA 487Facts:

The USA had a naval base in Subic, Zambales. The base was one of those provided in the military bases agreement between RP and the US. Respondent alleges that it won in the bidding conducted by the US for the construction of wharves in said base that was merely awarded to another group. For this reason, a suit for specific performance was filed by him against the US.

Issue: Whether the US naval base in bidding for said contracts exercise governmental functions to be able to invoke state immunity.

Held:

The traditional role of the state immunity exempts a state from being sued in the courts of another state without its consent or waiver. This rule is necessary consequence of the principle of independence and equality of states. However, the rules of international law are not petrified; they are continually and evolving and because the activities of states have multiplied. It has been necessary to distinguish them between sovereign and governmental acts and private, commercial and proprietary acts. The result is that state immunity now extends only to sovereign and governmental acts.

The restrictive application of state immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities of economic affairs. A state may be 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. It does not apply where the contracts relates the exercise of its sovereign function. In this case, the project are integral part of the naval base which is devoted to the defense of both US and RP, indisputably, a function of the government of highest order, they are not utilized for , nor dedicated to commercial or business purposes.

***In United States of America v. Ruiz (136 SCRA 487), where the questioned transaction dealt with the improvements on the wharves in the naval installation at Subic Bay, we held:

“The traditional rule of immunity exempts a State from being sued in the courts of another State without its consent or waiver. This rule is a necessary consequence of the principle of independence and equality of States. However, the rules of International Law are not petrified; they are constantly developing and evolving. And because the activities of states have multiplied, it has been necessary to distinguish them - between sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that State immunity now extends only to acts jure imperii. The restrictive application of State immunity is now the rule in the United States, the United Kingdom and other states in Western Europe.Can Ruiz validly invoke Act No. 3083 to claim payment?No. A local act by Congress cannot validly waive the immunity from suit of a foreign government. This is in violation of the doctrine of equality of all states. The appropriate legal remedy is to convince the DFA to take up his claim against the government of America. (The matter must be taken up at the state-to-state level.)

Restrictive Doctrine of State Immunity (The current rule followed in RP)Not all acts of the state in contracting would be considered as a waiver of its immunity from suit. One must qualify the acts.

Acta jure imperii – no waiver of state immunity, contracts involving sovereign and governmental acts. It does not apply where the contracts relate to the exercise of its sovereign functions.

Acta jure gestionis – contract was entered in the state’s private, commercial and proprietary capacity

The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a 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. It does not apply where the contracts relate to the exercise of its sovereign functions. In this case the projects are an integral part of the naval base which is devoted to the defense of both the United States and the Philippines, indisputably a function of the government of the highest order; they are not utilized for nor dedicated to commercial or business purposes.”(Department of Agriculture v. NLRC, 227 SCRA 693, Nov. 11, 1993 [Vitug])

USA vs. Guinto (acta jure gestionis)US authorities had a cafeteria in Camp John Hay catering to US servicemen and visitors. One day, the cook was found urinating in the soup. He was removed as a cook. He went to the LA to complain his illegal termination. CJH filed a motion to dismiss invoking state immunity from suit. Should motion be granted?SC replied in the negative.CJH acted in its commercial or proprietary capacity in opening up and running the cafeteria. Thus, its act of hiring and dismissing the cook was only an acta juri gestionis. The case was remanded to the LA for determination and decision.

Execution to satisfy Judgment against the stateExecution is the fruit of litigation.

Assume that you sue the state. There was waiver by the state. Civil action of damages was filed. You won the case for P50M, which attained finality. You know the government had funds under the Land Bank. Can you garnish funds in the Land Bank? Can you levy government properties for public auction?No. You cannot garnish public funds or levy public property as this is contrary to public policy. There must be a corresponding appropriation thereto by Congress. The waiver of state immunity from suit extends only up to the rendering of judgment against the state, as suability does not mean its liability. The enforcement of the judgment will require another waiver.

UP vs. Dizon (Aug. 23, 2012) Government funds cannot be garnished.The funds of the UP are government funds that are public in character. They include the income accruing from the use of real property ceded to the UP that may be spent only for the attainment of its institutional objectives. Hence, the funds subject of this action could not be validly made the subject of the RTC’s writ of execution or garnishment. The adverse

judgment rendered against the UP in a suit to which it had impliedly consented was not immediately enforceable by execution against the UP, because suability of the State did not necessarily mean its liability.

What can you do?You may lobby with Congress (or the appropriate legislative authority) to enact a law for appropriation of 50M to satisfy the judgment against the state.What if the legislative refuses to enact the said legislation, what can you do?Mandamus. (Municipality of Makati vs IAC) Ordinarily, government cannot be compelled by mandamus. But since there was a judgment rendered favored to claimant, the judgment attaining finality, the government must be the first one to obey and follow the decisions of the courts. What is once a discretionary function of legislation has now been converted to a ministerial one. Thus, mandamus will lie.

SUITS AGAINST PUBLIC OFFICIALSGeneral Rule:Lansang vs. CADoctrine of state immunity from suit applies to suit against officials for acts in performance of their official duties. These officials are considered as agents of the state.

Exceptions: However, this rule does not apply to officials who act in their official capacity for unlawful acts and acts injurious to the rights of others. Public officials are not exempted in their personal capacity for acts beyond his authority or acts committed in bad faith. A public official may also be sued in his personal capacity for acts complained of while occupying his office.

Republic vs. Sandoval (Mendiola Massacre)While the Republic in this case is sued by name, the ultimate liability does not pertain to the government. Although the military officers and personnel, then party defendants, were discharging their official functions when the incident occurred, their functions ceased to be official the moment they exceeded their authority. Based on the Commission findings, there was lack of justification by the government forces in the use of firearms. Moreover, the members of the police and military crowd dispersal units committed a prohibited act under B.P. Blg. 880 (Public Assembly Act) as there was unnecessary firing by them in dispersing the marchers.

As early as 1954, this Court has pronounced that an officer cannot shelter himself by the plea that he is a public agent acting under the color of his office when his acts are wholly without authority. Until recently in 1991 (Chavez v. Sandiganbayan, 193 SCRA 282 [1991]), this doctrine still found application, this Court saying that immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged status not claimed by any other official of the Republic. The military and police forces were deployed to ensure that the rally would be peaceful and orderly as well as to guarantee the safety of the very people that they are duty-bound to protect. However, the facts as found by the trial court showed that they fired at the unruly crowd to disperse the latter.

While it is true that nothing is better settled than the general rule that a sovereign state and its political subdivisions cannot be sued in the courts except when it has given its consent, it cannot be invoked by both the military officers to release them from any liability, and by the heirs and victims to demand indemnification from the government. The principle of state immunity from suit does not apply, as in this case, when the relief demanded by the suit requires no affirmative official action on the part of the State nor the affirmative discharge of any obligation which belongs to the State in its political capacity, even though the officers or agents who are made defendants claim to hold or act only by virtue of a title of the state and as its agents and servants. This Court has made it quite clear that even a “high position in the government does not confer a license to persecute or recklessly injure another.”

The inescapable conclusion is that the State cannot be held civilly liable for the deaths that followed the incident. Instead, the liability should fall on the named defendants in the lower court. In line with the ruling of this Court in Shauf v. Court of Appeals (191 SCRA 713 [1990]), herein public officials, having been found to have acted beyond the scope of their authority, may be held liable for damages. (Republic v. Sandoval, 220 SCRA 124, March 19, 1993, En Banc [Campos, Jr.])

A public official may also be sued for acts done in his personal capacity while occupying his public position.Ex. Sexual harassment cases against public officer, as his moral ascendancy while occupying the public position is an element of the crime.

Thus, in Amigable v. Cuenca, this Court, in effect, shred the protective shroud which shields the state from suit, reiterating our decree in the landmark case of Ministerio v. CFI of Cebu that “the doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen.” It is just as important, if not more so, that there be fidelity to legal norms on the part of officialdom if the rule of law were to be maintained. (Citations omitted)

FUNDAMENTAL PRINCIPLES AND STATE POLICIESSection 1 Art. IISection 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.

In international law, the kind and form of government does not really matter. What is important is that there is a government and a state. Insofar as our Constitution is concerned, it matters. The Philippines is a democratic and republican State. It cannot be otherwise, unless you want to do away with the constitution.

Sovereignty resides in the people and all government authority emanates from them. See Sec. 1 Art XI, Public office is a public trust. It is present only in a republican democratic government.

Correlate Section 2 of Art. II with Section 1 of Art. XI

ARTICLE XI ACCOUNTABILITY OF PUBLIC OFFICERSSection 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.

Correlate with the important characteristics of public officers:What are the important characteristics of public office in a democratic and republican state?1. Public office is a public trust. It is not a privilege. The sense of public accountability must always be there.2. It cannot be inherited.3. Public office is outside the commerce of men, and therefore it should not subject of a valid contract.4. Public office is not a property and therefore is not protected by the due process clause. There can be no vested right in public office.

Sec. 28, Art. II - TransparencySection 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

Public office is not a property and therefore is not protected by the due process clause. Correlate with Sec. 1 Art. III.Art. III (Bill of Rights)Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

2 modes of termination of official relations with the government:1. Abolition of an office – office itself is abolished. Only limitation is that Congress abolished the office in good faith.2. Removal of an officer – the person occupying the office is removed for just causes provided by law, and there is due process. The office still remains. Defense is right to security of tenure.

Art. XI – includes impeachment Impeachment is all about accountability

Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

Who are the impeachable officers?The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions (CSC, COMELEC and CoA), and the Ombudsman.

The President, the Vice-President – elected.

Members of the Supreme Court, the Members of the Constitutional Commissions(CSC, COMELEC and CoA), and the Ombudsman – highest appointive officers.

“All other public officers and employees may be removed from office as provided by law, but not by impeachment.” The implication would be: The list of impeachable officers is exclusive.

Implication:In the Special law creating the Sandiganbayan, the provision for removal of justices of the Sandiganbayan via impeachment is rendered unconstitutional by Section 7 of Art. XI of the 1987 Constitution.

What are the grounds for impeachment?Conviction of :1. culpable violation of the Constitution, 2. treason, 3. bribery, 4. graft and corruption, 5. other high crimes, or 6. betrayal of public trust.

Who can initiate the filing of impeachment cases?Art XI Section 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

This is an exclusive power. No one can question the filing of such. The moment it is filed, trial in the senate shall proceed. The senate has no option but to proceed with trial.

(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution or endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.

There is nowhere in the provision that requires that those who voted are required to have read the impeachment complaint.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

(6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.

When sitting for that purpose, the Senators shall be on oath or affirmation. - the senators take another oath to act as senator-judges, not as senators. Senator-judges are a different category.

Bill of attainder-a legislative adjudication of guilt without trial.

There can be no bill of attainder in an impeachment court as they do not function as legislators but as judges.

(7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.

The purpose of the impeachment is not to convict, nor to protect the rights of the accused, but to protect the public. The quantum of evidence required in impeachment is akin to that of a civil case. Once convicted, person impeached can be prosecuted criminally.

Impeachment trial is sui generis (a class of its own). Impeachment is all about accountability. Public office is a public trust.

If convicted in the criminal case like tax evasion, the impeached official can be pardoned.

Correlate with Sec. 19 Art. VII. Section 19. Except in cases of impeachment (meaning an impeached official cannot be pardoned, but one convicted of a crime can be pardoned), or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.

Can an impeached officer run for senator?No.Art. VII (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.

~This is a perpetual disqualification.

(8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.

Section 2 Article IISection 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

Important, remember the first part:The Philippines renounces war as an instrument of national policy.

This is consistent with our membership in the UN. We are a chartered member thereof.

Under the constitution, who has the power to declare war?No one, as the Constitution has withheld it from any of the three branches. But only The Congress has power to declare EXISTENCE OF A STATE OF WAR. Note that this power is renounced under the 1987 Constitution. However, it does not mean that we are precluded from engaging in conflict if attacked, to protect the right of existence and self-defense. We are allowed to engage in a defensive war. The Constitution renounces only offensive war.

How:Art. VI Section 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

Powers of the president in times of war:Art. VII Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.

Fundamental Rights of The State: (SPEED)1. Right to Sovereignty and independence2. Right to Property and jurisdiction3. Right to Existence and self-defense4. Right to Equality5. Right to Diplomatic intercourse

Important, remember the second part:Section 2 Art. 2 2nd phrase “adopts the generally accepted principles of international law as part of the law of the land”

Doctrine of incorporation in international law – generally accepted principles of international law automatically becomes part of the law of the land, RP subscribes to this principle.

Doctrine of transformation – the generally accepted principles of international shall require an enabling act from the legislative to adopt them as part of the law.

What are some generally accepted principles of International Law?~Doctrine of State Immunity From Suit~Doctrine of Sovereign Equality of All States (par in parem no habet imperium)~Pacta sund servanda (Treaties must be observed in good faith). Tanada vs Angara – Ratification of the GATT creating WTO. It is one of the oldest principles of international law. A state which enters to a treaty may not advance the provision of its own laws in order not to comply with its treaties. A state is bound to modify its laws in order to be able to comply with its treaty obligations.~Right to self-determination of peoples - Province of North Cotabato vs. Government of RP Peace Panel. This is a right that belongs to minority groups (indigenous peoples/cultural communities) within a state. This has been elevated into the status of a generally applicable principle of international law. It is automatically incorporated in our rules. Also, this is a jus cogens norm.

Isagani Cruz vs. DENRIndigenous peoples and indigenous cultural communities mean the same thing. It is only in the use thereof that there lies the difference. Indigenous peoples is used in the UN and other international bodies; while the term indigenous cultural communities is the term used locally, in the Constitution for instance.

May the Bangsamoro People of Mindanao validly invoke the Right to self-determination of peoples in order to secede or to separate from the RP?No, they may not. When we talk of the right to self-determination, you have to distinguish between internal and external self-determination.

The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination - a people's pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances, such as where a people is under colonial rule, is subject to foreign domination or exploitation outside a colonial context.

internal self-determination - a people's pursuit of its political, economic, social and cultural development within the framework of an existing state

external self-determination - arises in only the most extreme of cases and, even then, under carefully defined circumstances, such as where a people is under colonial rule, is subject to foreign domination or exploitation outside a colonial context.

Province of North Cotabato vs. Government of RP Peace PanelInternational law has long recognized the right to self-determination of "peoples," understood not merely as the entire population of a State but also a portion thereof. In considering the question of whether the people of Quebec had a right to unilaterally secede from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION OF QUEBEC had occasion to acknowledge that "the right of a people to self-determination is now so widely recognized in international conventions that the principle has acquired a status beyond `convention' and is considered a general principle of international law."

Among the conventions referred to are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights which state, in Article 1 of both covenants, that all peoples, by virtue of the right of self-determination, "freely determine their political status and freely pursue their economic, social, and cultural development."

The people's right to self-determination should not, however, be understood as extending to a unilateral right of secession. A distinction should be made between the right of internal and external self-determination. REFERENCE RE SECESSION OF QUEBEC is again instructive:

"(ii) Scope of the Right to Self-determination

126. The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination - a people's pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. x x x

External self-determination can be defined as in the following statement from the Declaration on Friendly Relations, supra, as

The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people. (Emphasis added)

127. The international law principle of self-determination has evolved within a framework of respect for the territorial integrity of existing states. The various international documents that support the existence of a people's right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state's territorial integrity or the stability of relations between sovereign states.

x x x x (Emphasis, italics and underscoring supplied)The Canadian Court went on to discuss the exceptional cases in which the right to external self-determination can arise, namely, where a people is under colonial rule, is subject to foreign domination or exploitation outside a colonial context, and - less definitely but asserted by a number of commentators - is blocked from the meaningful exercise of its right to internal self-determination. The Court ultimately held that the population of Quebec had no right to secession, as the same is not under colonial rule or foreign domination, nor is it being deprived of the freedom to make political choices and pursue economic, social and cultural development, citing that Quebec is equitably represented in legislative, executive and judicial institutions within Canada, even occupying prominent positions therein.

What is the Doctrine of Transformation?A: This doctrine holds that the generally accepted 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.

Yogyakarta Principles – the application of international human rights law in relation to sexual orientation and gender identity.

Ang Ladlad vs. COMELEC Yogyakarta PrinciplesAt this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice. Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of international law to ascertain their true status. We also hasten to add that not everything that society – or a certain segment of society – wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many social desires as rights in order to further claims that international law obliges states to sanction these innovations. This has the effect of diluting real human rights, and is a result of the notion that if “wants” are couched in “rights” language, then they are no longer controversial. Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international law professors, are – at best – de lege refenda – and do not constitute binding obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the “soft law” nomenclature, i.e., international law is full of principles that promote international cooperation, harmony, and respect for human rights, most of which amount to no more than well-meaning desires, without the support of either State practice or opinio juris.

Opinio juris - Latin: the sense of legal obligation. In international law, acceptance of a practice as sufficient to create legal obligations.

Article XVIII, Section 24. Private armies and other armed groups not recognized by duly constituted authority shall be dismantled. All paramilitary forces including Civilian Home Defense Forces not consistent with the citizen armed force established in this Constitution, shall be dissolved or, where appropriate, converted into the regular force.

Gamboa vs. Chan Policy against establishment and maintenance of PAGs, Bill of Rights Right of Privacy

Therefore, when the right to privacy finds tension with a competing state objective, the courts are required to weigh both notions. In these cases, although considered a fundamental right, the right to privacy may nevertheless succumb to an opposing or overriding state interest deemed legitimate and compelling.

***The collection and forwarding of information by the PNP vis-à-vis the interest of the state to dismantle private armiesThe Constitution explicitly mandates the dismantling of private armies and other armed groups not recognized by the duly constituted authority. It also provides for the establishment of one police force that is national in scope and civilian in character, and is controlled and administered by a national police commission.

Taking into account these constitutional fiats, it is clear that the issuance of A.O. 275 articulates a legitimate state aim, which is to investigate the existence of PAGs with the ultimate objective of dismantling them permanently.

***Pursuant to the state interest of dismantling PAGs, as well as the foregoing powers and functions accorded to the Zeñarosa Commission and the PNP, the latter collected information on individuals suspected of maintaining PAGs, monitored them and counteracted their activities. One of those individuals is herein petitioner Gamboa.

***This Court holds that Gamboa was able to sufficiently establish that the data contained in the Report listing her as a PAG coddler came from the PNP. Contrary to the ruling of the trial court, however, the forwarding of information by the PNP to the Zeñarosa Commission was not an unlawful act that violated or threatened her right to privacy in life, liberty or security. The PNP was rationally expected to forward and share intelligence regarding PAGs with the body specifically created for the purpose of investigating the existence of these notorious groups. Moreover, the Zeñarosa Commission was explicitly authorized to deputize the police force in the fulfillment of the former’s mandate, and thus had the power to request assistance from the latter.

Following the pronouncements of the ECHR in Leander, the fact that the PNP released information to the Zeñarosa Commission without prior communication to Gamboa and without affording her the opportunity to refute the same cannot be interpreted as a violation or threat to her right to privacy since that act is an inherent and crucial component of intelligencegathering and nvestigation. Additionally, Gamboa herself admitted that the PNP had a validation system, which was used to update information on individuals associated with PAGs and to ensure that the data mirrored the situation on the field.66 Thus, safeguards were put in place to make sure that the information collected maintained its integrity and accuracy.

ARTICLE XIV: EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE AND SPORTS (ESTACS)Section 5. (2) Academic freedom shall be enjoyed in all institutions of higher learning.

Academic freedom of educational institutions has been defined as the right of the school or college to decide for itself, its aims and objectives, and how best to attain them - free from outside coercion or interference save possibly when the overriding public welfare calls for some restraint. It has a wide sphere of autonomy certainly extending to the choice of students. Said constitutional provision is not to be construed in a niggardly manner or in a grudging fashion. That would be to frustrate its purpose and nullify its intent (Garcia v. The Faculty Admission Committee, et al., supra; Tangonan v. Pano, et al., supra.)

4 essential freedoms subsumed with the term academic freedom:1. Who may teach2. What may be taught3. How it shall be taught4. Who may be admitted to study

Mirriam College vs. CA Academic FreedomSection 5 (2), Article XIV of the Constitution guarantees all institutions of higher learning academic freedom. This institutional academic freedom includes the right of the school or college to decide for itself, its aims and objectives, and how best to attain them free from outside coercion or interference save possibly when the overriding public welfare calls for some restraint. The essential freedoms subsumed in the term "academic freedom" encompasses the freedom to determine for itself on academic grounds:

(1) Who may teach,(2) What may be taught,(3) How it shall be taught, and(4) Who may be admitted to study.

The right of the school to discipline its students is at once apparent in the third freedom, i.e., "how it shall be taught." A school certainly cannot function in an atmosphere of anarchy.

Twist:Once a school admits a student, there is now a contract between the school and the student. That is not an ordinary contract. It is one imbued with paramount public interest. The school cannot arbitrarily, whimsically, capriciously refuse to re-admit or expel the student. There must be the observance of due process.

Just causes to expel a student:~Failure to meet minimum academic requirements by the student~Student committed violation of the school rules of discipline. The school must conduct an investigation in line with the commitment to uphold due process.

Is it just on the part of the school to expel a student or black list him if he participated in a demonstration inside the school campus against increase in tuition fees?No. This is part of the freedom of expression of the students. The freedom of expression of the student does not end at the gate of the school.

What if the demonstration became violent, resulting to injuries and destruction of school properties?That may be, but the school must investigate first. Due process must be observed, an investigation must be conducted.

What is the duration of the contract of the school with the student?Non vs. Dames II – It is for the duration of the course. For the school to expel, there must be just cause and observance of due process.

Can a graduate degree already conferred be revoked?Art. XIV, §5 (2) of the Constitution provides that “[a]cademic freedom shall be enjoyed in all institutions of higher learning.” This is nothing new. The 1935 Constitution[35] and the 1973 Constitution likewise provided for the academic freedom or, more precisely, for the institutional autonomy of universities and institutions of higher learning. As pointed out by this Court in Garcia v. Faculty Admission Committee, Loyola School of Theology, it is a freedom granted to “institutions of higher learning” which is thus given “a wide sphere of authority certainly extending to the choice of students.” If such institution of higher learning can decide who can and who cannot study in it, it certainly can also determine on whom it can confer the honor and distinction of being its graduates.

Where it is shown that the conferment of an honor or distinction was obtained through fraud, a university has the right to revoke or withdraw the honor or distinction it has thus conferred. This freedom of a university does not terminate upon the “graduation” of a student, as the Court of Appeals held. For it is precisely the “graduation” of such a student that is in question. It is noteworthy that the investigation of private respondent’s case began before her graduation. If she was able to join the graduation ceremonies on April 24, 1993, it was because of too many investigations conducted before the Board of Regents finally decided she should not have been allowed to graduate.

Wide indeed is the sphere of autonomy granted to institutions of higher learning, for the constitutional grant of academic freedom, to quote again from Garcia v. Faculty Admission Committee, Loyola School of Theology, “is not to be construed in a niggardly manner or in a grudging fashion.”

Under the U.P. Charter, the Board of Regents is the highest governing body of the University of the Philippines. It has the power to confer degrees upon the recommendation of the University Council. It follows that if the conferment of a degree is founded on error or fraud, the Board of Regents is also empowered, subject to the observance of due process, to withdraw what it has granted without violating a student’s rights. An institution of higher learning cannot be powerless if it discovers that an academic degree it has conferred is not rightfully deserved. Nothing can be more objectionable than bestowing a university’s highest academic degree upon an individual who has obtained the same through fraud or deceit. The pursuit of academic excellence is the university’s concern. It should be empowered, as an act of self-defense, to take measures to protect itself from serious threats to its integrity. (UP Board of Regents v. Hon. Court of Appeals and Arokiaswamy William Margaret Celine, G.R. No. 134625, Aug. 31, 1999, 2nd Div. [Mendoza])

Structure of the RP GovernmentDemocratic and RepublicanForm: Presidential

Doctrine of Separation of Powers – 3 important powers of the government are distributed among three different departments.Executive Powers S1 Art. VII – power of the sword, chief executive, commander of the armed forcesLegislative Powers – power of appropriation and legislation; power of the purseJudicial Powers S1 Art VIII – judicial powers and power of judicial review

Executive and Legislative branches are political branches of the government.

Political Question DoctrineThe political question doctrine arose from the doctrine of separation of powers.

NOTE: GET THE 2004 BarQ in Political Law – Brion was the examiner.

Principle of Checks and Balances – each of the three branches is a check on the two others. Power will not be concentrated in just one department to prevent abuse and tyranny.

Principle of non-delegation of power – what has been delegated shall not be redelegated (General Rule)delegata potestas non delegari potest (Latin) states that ‘no delegated powers can be further delegated’.

Exceptions from Principle of Non-delegation of Power5 permissible delegations of powers (PETAL)1. Delegation to the People via referendum and plebiscite2. Delegation of Emergency powers to the President (Sec. 23 (2) Art. VI)3. Delegation of Tariff powers to the President (Sec. 28 Art. VI)4. Delegation to Administrative agencies5. Delegation to Local Governments

EMERGENCY POWERS OF THE PRESIDENTDelegation of Emergency powers to the President – Section 23 2nd Paragraph Art. VI (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

What are the requirements for Emergency powers to applied?1. Used/granted only during war or other national emergency2. For a imited period only3. Subject to such restrictions as it may prescribe 4. Pursuant to a declared national policy.(There must be a law enacted by Congress)

Congress may exercise the delegation of emergency powers Motu Propio.

David vs. Macapagal-Arroyo (Proclamation 1017 – Declaration of a State of National Emergency)What power did she use in declaring the RP in a state of national emergency?Calling out power.Emergency power is a delegated power from Congress; there was no law enacted by Congress at that time.

Pres. Qurino had used emergency powers, authorized by Congress via an enacted law, during the Huk Rebellion of the 1950s.What if the Congress would like to withdraw such authority, is another law required to be enacted?Congress need not enact another law to withdraw such authority. Congress can withdraw such powers by mere resolution (see The Emergency Powers Cases during President Quirino’s suppression of the Huk Rebellion). The effect would be that the resolution by Congress cannot be subjected to the veto power of the President, and thus there is no need for a greater majority to vote to override the veto of the President.

See second sentence Art. VI Sec. 23 (2): Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

DELEGATION OF POWER TO ADMINISTRATIVE AGENCY:Administrative agency:Quasi-legislative power – power to legislate rules and regulations in order to implement a given law or legislative policy. This term is equivalent to rule-making power and power of subordinate legislation.

When an administrative agency exercise quasi-legislative power, just what exactly does it do?It promulgates administrative regulations or implementing rules and regulations. They are referred to as pieces of subordinate legislation.

In case of conflict between the law and the piece of subordinate legislation, which one prevails?In case of conflict between administrative legislation and a provision of law, the provision of law prevails. The spring cannot rise above its source.

Who promulgated the IRR of the Omnibus Election Code?COMELEC.By what Authority?There is a provision in the OEC that gives COMELEC authority to promulgate the IRRS.

Who promulgated the rules and regulations implementing the Labor Code of the Philippines?The secretary of labor. What authority did he have?The Labor Code itself provided that the DOLE, headed by the Secretary of Labor, shall promulgate the IRRs. Sec. Labor acted as a quasi-legislator instead of an administrator.

Delegation to LGUs.Who implemented the IRR of the RA 7160 LGC?An oversight committee, composed of Secretary of DILG and Secretary of Finance.

How are LGUs referred in the Constitution?LGUs – referred to under the Constitution as territorial and political subdivisions (Sec.1 Art. X) of the Republic of the Philippines (S1 Art. X).provinces, cities, municipalities, barangays, ARMM

Note: The organic act creating the administrative region of the Cordilleras was not ratified by the people of the Cordilleras. Only an administrative region exists, Cordillera Administrative Region (CAR).

These LGUs, do they have inherent powers?No. They are mere creatures of Congress, and their powers they exercised are those delegated to them or those that can be possibly implied from the delegated powers.

Tests of valid delegation of powers:

1. Completeness test - complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate (no need to fill in the blanks); the delegate has only to implement the law, there is no need to fill in the gaps of the law.2. Sufficiency of Standard test - Determinate or at least determinable.

The standards are there to prevent undue delegation of powers.

Violation of these standards is tantamount of undue delegation of powers. This will violate the doctrine of separation of powers. It will be tantamount to a delegation running riot, not canalized at all.

May an administrative agency fill in the gaps of the law?No.

What is the remedy if the law delegating the power has gaps?The Congress must amend the law.

A sufficient standard is one which defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected.

Held: Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules and regulations is a form of delegation of legislative authority x x x. However, in every case of permissible delegation, there must be a showing that the delegation itself is valid. It is valid only if the law (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. A sufficient standard is one which defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. (Santiago v. COMELEC, 270 SCRA 106, March 19, 1997)

Legislative DepartmentS1 Art VI. Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.

Is legislative power exclusively vested in the Congress of the Philippines?No. Under this Constitution, the phrase in S1 Art VI. “except to the extent reserved to the people by the provision on initiative and referendum” reserves the power of legislation to the people. However, this will require an implementing law. The Congress has already enacted RA 6735, as mandated under S. 32 Art. VI.

Art. VI Section 32. The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters thereof.

RA 6735 The Initiative and Referendum ActInitiative on the Constitution – this has been declared unconstitutional (Defensor-Santiago vs. COMELEC)Initiative on StatutesInitiative on Local Legislation

RA 6735 is still valid, but dormant. It has never been used since.

Initiative on Statutes – this is the reservation as espoused in Sec. 1 Art VI “except to the extent reserved to the people by the provision on initiative and referendum”

Take note:Art. II Section 26. The State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law.

Some civil society groups spearheading the legislative definition of this section can do so under RA 6735.

Bicameral Conference Committee:S1. Art. VI “the Congress of the Philippines which shall consist of a Senate and a House of Representatives”

What is the Bicameral Conference Committee? Discuss the nature of its function and its jurisdiction.Held: While it is true that a conference committee is the mechanism for compromising differences between the Senate and the House, it is not limited in its jurisdiction to this question. Its broader function is described thus:

A conference committee may deal generally with the subject matter or it may be limited to resolving the precise differences between the two houses. Even where the conference committee is not by rule limited in its jurisdiction, legislative custom severely limits the freedom with which new subject matter can be inserted into the conference bill. But occasionally a conference committee produces unexpected results, results beyond its mandate. These excursions occur even where the rules impose strict limitations on conference committee jurisdiction. This is symptomatic of the authoritarian power of conference committee. (Philippine Judges Association v. Prado, 227 SCRA 703, Nov. 11, 1993, En Banc [Cruz])

BCC - It is a mechanism for compromising differences in the House of Representative and the Senate.

Bicameral – from both houses.

Expanded VAT Law – came from BCC.

RH Bill is currently in the BCC.

Some Non-legislative powers of congress:1. Impeachment Court/Prosecution2. In amendments or revision, Congress may directly propose amendments as Constituent Assembly3. S23, 1st Paragraph – Sole power to declare existence of a state of war4. Board of Canvassers of the elections for President and Vice President5. Amnesty proclamation of the President will be subject to concurrence of Congress6. HRET and SET7. Concurs to treaties and international agreements8. Commission on Appointments9. Congressional Oversight Powers and Functions

Congressional Oversight Powers and FunctionsThe work of Congress does not end upon enactment of a law or ordinances. It has a continuing interest to see to it that the law enacted is properly being implemented. Oversight concerns post-enactment measures undertaken by congress:

(a) to monitor bureaucratic compliance with program objectives, (b) to determine whether agencies are properly administered, (c) to eliminate executive waste and dishonesty, (d) to prevent executive usurpation of legislative authority, and (e) to assess executive conformity with the congressional perception of public interest.

The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to the checks and balances inherent in a democratic system of government.

****It is now beyond debate that the principle of separation of powers

(1) allows the “blending” of some of the executive, legislative, or judicial powers in one body; (2) does not prevent one branch of government from inquiring into the affairs of the other branches to maintain the balance of power; (3) but ensures that there is no encroachment on matters within the exclusive jurisdiction of the other branches.

(Macalintal vs. COMELEC CJ Puno Separate Opinion)

There are 3 categories of congressional oversight functions: (SIS)1. Legislative Scrutiny2. Legislative Investigation3. Legislative Supervision

Legislative ScrutinyLegislative Scrutiny is exercised in 3 instances:1. Budget hearings under Section 22 Art. VII2. During the question hour in Sec. 22 Art. VI3. During the confirmation process in the Commission on Appointments under Sec. 22 Art. VI

Budget hearings:Art. VI Section 22. The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. (Question Hour) Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

Art. VII Section 22. The President shall submit to the Congress, within thirty 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.

It is the President who prepares the proposed budget. Upon the submission of the President to the Congress of the proposed budget, Congress will conduct budget hearings.

Senate vs. Ermita (Question Hour vs. In Aid of Legislation)Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function.When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is "in aid of legislation" under Section 21, the appearance is mandatory for the same reasons stated in Arnault.

In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission.

Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information.

When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power — the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment. It is based on her being the highest official of the executive branch, and the due respect accorded to a co-equal branch of government which is sanctioned by a long-standing custom.

During the confirmation process in the Commission on Appointments Sec. 22 Art. VI

Matibag vs. BenipayoA disapproval by Commission on Appointments in case of a regular appointment is a judgment on the merits of the qualification of the Commission. Once disapproved, the appointee cannot be validly reappointed by the President.

Legislative Investigation Section 21, Art. VI – inquiries in aid of legislation

Art. VI, Section 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in, or affected by, such inquiries shall be respected.

Held: The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct inquiries in aid of legislation (In Arnault v. Nazareno, 87 Phil. 29, this Court held that although there was no express provision in the 1935 Constitution giving such power to both houses of Congress, it was so incidental to the legislative function as to be implied.). Thus, Section 21, Article VI provides x x x.

The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore, absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein, the investigation must be “in aid of legislation in accordance with its duly published rules of procedure” and that “the rights of persons appearing in or affected by such inquiries shall be respected.” It follows then that the rights of persons under the Bill of Rights must be respected, including the right to due process and the right not to be compelled to testify against one’s self.

The power to conduct formal inquiries or investigations is specifically provided for in Sec. 1 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation. Such inquiries may refer to the implementation or re-examination of any law or in connection with any proposed legislation or the formulation of future legislation. They may also extend to any and all matters vested by the Constitution in Congress and/or in the Senate alone.

As held in Jean L. Arnault v. Leon Nazareno, et al, (No. L-3820, July 18, 1950, 87 Phil. 29), the inquiry, to be within the jurisdiction of the legislative body making it, must be material or necessary to the exercise of a power in it vested by the Constitution, such as to legislate or to expel a member.

Under Sec. 4 of the aforementioned Rules, the Senate may refer to any committee or committees any speech or resolution filed by any Senator which in its judgment requires an appropriate inquiry in aid of legislation. In order therefore to ascertain the character or nature of an inquiry, resort must be had to the speech or resolution under which such an inquiry is proposed to be made. (Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767, Nov. 20, 1991, En Banc [Padilla])

Intrinsic in the power of legislation is the power of investigation, for you cannot expect congress to enact good laws if it has no power to investigate.

HELD: It is the inherent right of the Senate to impose penalty in carrying out their duty to conduct inquiry in aid of legislation. But it must be herein established that a witness who refuses to answer a query by the Committee may be detained during the term of the members imposing said penalty but the detention should not be too long as to violate the witness’ right to due process of law. (Arnault vs Nazareno)

Legislative Supervision – Allows Congress to scrutinize the exercise of delegated law making authority and permits Congress to retain a part of that delegated authority.

The most encompassing form of Congress’ oversight powers.

When Congress delegates legislative powers, it provides for certain conditions, one of these being review conditions.

Disapproval by Congress or an oversight committee of an administrative legislation/regulation promulgated by an administrative body to whom legislative power was delegated is called LEGISLATIVE VETO. This is an exercise of legislative supervision, a most encompassing form by which Congress exercises its supervision power. By this way, Congress exercises oversight powers among administrative bodies in the executive department.

ABAKADA Guro vs. Purisima August 14, 2008 En Banc (Legislative Veto declared unconstitutional)However, to forestall the danger of congressional encroachment "beyond the legislative sphere," the Constitution imposes two basic and related constraints on Congress. It may not vest itself, any of its committees or its members with either executive or judicial power. And, when it exercises its legislative power, it must follow the "single, finely wrought and exhaustively considered, procedures" specified under the Constitution, including the procedure for enactment of laws and presentment.

Thus, any post-enactment congressional measure such as this should be limited to scrutiny and investigation. In particular, congressional oversight must be confined to the following:

(1) scrutiny based primarily on Congress’ power of appropriation and the budget hearings conducted in connection with it, its power to ask heads of departments to appear before and be heard by either of its Houses on any matter pertaining to their departments and its power of confirmation and

(2) investigation and monitoring of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation.

Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. Legislative vetoes fall in this class .

Note: The US Supreme Court has never yet declared a legislative veto unconstitutional.

Developments in Section 1 Art. VI:~Legislative power is no longer exclusive in the Congress – RA 6735~We have a BCC, a compromising mechanism. By nature of its function, results may go even beyond its own mandate.~Congress is not limited to enactment of laws. It has non-legislative functions.~The so-called congressional oversight functions in the following categories: legislative scrutiny, legislative investigation and legislative supervision (SIS)

Qualifications of elective officialsPresident V-P Senator Congressman

Citizenship Natural born Natural born Natural born Natural bornEducation Can read and write Can read and write Can read and write Can read and writeRight to vote Registered voter Registered voter Registered voter Registered voterAge 40 on the day of

elections40 on the day of elections

35 on the day of elections

Over 25 on the day of elections

Residence Qualification

At least 10 years in RP

At least 10 years in RP

At least 2 years in RP At least 1 year in the district where he will run

Possibility of Re- No Max of 2 successive Max of 2 successive Max of 3 successive

election term term termsRemoval Impeachment Impeachment Recall RecallTerm 6 years 6 years 6 years 3 years

RA 9165 – Dangerous Drugs Act of 2002Social Justice Society vs. Dangerous Drugs Board – It placed another qualification to run for senator without being provided for in the Constitution, mandatory drug testing. Thus the provision for senatorial candidates to undergo mandatory drug testing was declared unconstitutional.

CONGRESS

Composition of Senate – 24 Senators

House of RepresentativeHouse of Representatives – 283+ Congressmen as of the presentParty-List – 20% of number of district representatives

Art. VI Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members(this has been rendered functus officio, it has outlived its usefulness), unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.

(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.

(3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.

(4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.

Census – every three years. Possibility of increase in legislative districts due to increase in population.

Sema vs. COMELECThe regional assembly of ARMM created the province of Sharif Kabunsuan. This was declared unconstitutional by the SC. The Regional Assembly cannot create a city or province. This has not been delegated by Congress to the Regional Assembly. The Regional Assembly cannot create its own legislative district. It can only create new barangays or a new municipality, but not a city or a province.

An inferior legislative body (Regional Assembly) cannot change the composition of a superior body (House).

The position of a Congressman is a national office to be financed by national funds.

Correlated with:Sec. 10 Art. X Requisites of creation, division, alteration of local boundaries:1. It must be in accordance with criteria established in the LGC.2. There must be a plebiscite in the political units affected to ratify the creation.3. It must not contravene the Constitution. (Sema vs. COMELEC)

Aquino and Robredo vs. COMELEC April 7, 2010There is no specific provision in the Constitution that fixes a 250,000 minimum population that must compose a legislative district.

***The second sentence of Section 5(3), Article VI of the Constitution, succinctly provides: “Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.”

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.

The use by the subject provision of a comma to separate the phrase “each city with a population of at least two hundred fifty thousand” from the phrase “or each province” point to no other conclusion than that the 250,000 minimum population is only required for a city, but not for a province.

***The Mariano case (Mariano, Jr. vs. COMELEC) limited the application of the 250,000 minimum population requirement for cities only to its initial legislative district. In other words, while Section 5(3), Article VI of the Constitution requires a city to have a minimum population of 250,000 to be entitled to a representative, it does not have to increase its population by another 250,000 to be entitled to an additional district.

There is no reason why the Mariano case, which involves the creation of an additional district within a city, should not be applied to additional districts in provinces. Indeed, if an additional legislative district created within a city is not required to represent a population of at least 250,000 in order to be valid, neither should such be needed for an additional district in a province, considering moreover that a province is entitled to an initial seat by the mere fact of its creation and regardless of its population.

Apropos for discussion is the provision of the Local Government Code on the creation of a province which, by virtue of and upon creation, is entitled to at least a legislative district. Thus, Section 461 of the Local Government Code states:

Requisites for Creation. – (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office.

Notably, the requirement of population is not an indispensable requirement, but is merely an alternative addition to the indispensable income requirement.

Aldaba vs. COMELEC January 25, 2010Ruling:YES. The 1987 Constitution requires that for a city to have a legislative district, the city must have “a population of at least two hundred fifty thousand.”

House Bill No. 3693 cites the undated Certification of Regional Director Alberto N. Miranda of Region III of the National Statistics Office (NSO) as authority that the population of the City of Malolos “will be 254,030 by the year 2010.” The Certification states that the population of “Malolos, Bulacan as of May 1, 2000 is 175,291.” The Certification further states that it was “issued upon the request of Mayor Danilo A. Domingo of the City of Malolos in connection with the proposed creation of Malolos City as a lone congressional district of the Province of Bulacan.”

The certification of Regional Director Miranda, which is based on demographic projections, is without legal effect because Regional Director Miranda has no basis and no authority to issue the certification.

First, certifications on demographic projections can be issued only if such projections are declared official by the National Statistics Coordination Board (NSCB). Second, certifications based on demographic projections can be issued only by the NSO Administrator or his designated certifying officer. Third, intercensal population projections must be as of the middle of every year.

Moreover, the Certification states that “the total population of Malolos, Bulacan as of May 1, 2000 is 175,291.” The Certification also states that the population growth rate of Malolos is 3.78% per year between 1995 and 2000. Based on a growth rate of 3.78% per year, the population of Malolos of 175,291 in 2000 will grow to only 241,550 in 2010. Incidentally, the NSO has no published population projections for individual municipalities or cities but only for entire regions and provinces.

Any population projection forming the basis for the creation of a legislative district must be based on an official and credible source. That is why the OSG cited Executive Order No. 135, otherwise the population projection would be unreliable or speculative.

We now have 2 kinds of congressmen~District representatives~Party-list congressmen

Veterans Federation Party vs. COMELECHow many Party-List representatives should be elected?If there are 200 Congressmen200/.80 x 0.20 = 200/4= 50Hence, there must be 50 Party-list congressmen. The ratio must be 4:1. For every four district congressmen, there must be one party-list representative.Easier formula, divide the figure into 4 (200/4) and you’ll come up with the correct number of party-list representatives.

What if there were 203 Congressmen?203/4 = 50.75

SC ruled in Veterans Federation Party vs. COMELEC that FRACTIONAL REPRESENTATION is not allowed. Just disregard the fraction.

Held: The Constitution simply states that "[t]he party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list."

X x x

We rule that a simple reading of Section 5, Article VI of the Constitution, easily conveys the equally simple message that Congress was vested with the broad power to define and prescribe the mechanics of the party-list system of representation. The Constitution explicitly sets down only the percentage of the total membership in the House of Representatives reserved for party-list representatives.

In the exercise of its constitutional prerogative, Congress enacted RA 7941. As said earlier, Congress declared therein a policy to promote "proportional representation" in the election of party-list representatives in order to enable Filipinos belonging to the marginalized and underrepresented sectors to contribute legislation that would benefit them. It however deemed it necessary to require parties, organizations and coalitions participating in the system to obtain at least two percent of the total votes cast for the party-list system in order to be entitled to a party-list seat. Those garnering more than this percentage could have "additional seats in proportion to their total number of votes." Furthermore, no winning party, organization or coalition can have more than three seats in the House of Representatives. X x x

Considering the foregoing statutory requirements, it will be shown x x x that Section 5(2), Article VI of the Constitution is not mandatory. It merely provides a ceiling for party-list seats in Congress. (Veterans Federation Party v. COMELEC, G.R. No. 136781, Oct. 6, 2000, En Banc [Panganiban])

Party-list system.

Party-list congressmenREPUBLIC ACT NO. 7941 – establishing the party-list representation system

This is a borrowed concept from parliamentary democracies in Europe. The idea of this system is to allow the marginalized and under-represented sectors of society shall have appropriate representation in the law-making body.

Ang Bagong Bayani-OFW vs. Comelec June 26, 2001Discuss the nature of the Party-List system. Is it, without any qualification, open to all?Held: 1. The party-list system is a social justice tool designed not only to give more law to the great masses of our people who have less in life, but also to enable them to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them. It intends 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. Thus, allowing all individuals and groups, including those which now dominate district elections, to have the same opportunity to participate in party-list elections would desecrate this lofty objective and mongrelize the social justice mechanism into an atrocious veneer for traditional politics. (Ang Bagong Bayani – OFW Labor Party v. COMELEC, G.R. No. 147589, June 26, 2001, En Banc [Panganiban])

2. Crucial to the resolution of this case is the fundamental social justice principle that those who have less in life should have more in law. The party-list system is one such tool intended to benefit those who have less in life. It gives the great masses of our people genuine hope and genuine power. It is a message to the destitute and the prejudiced, and even to those in the underground, that change is possible. It is an invitation for them to come out of their limbo and seize the opportunity.

Clearly, therefore, the Court cannot accept the submissions x x x that the party-list system is, without any qualification, open to all. Such position does not only weaken the electoral chances of the marginalized and underrepresented; it also prejudices them. It would gut the substance of the party-list system. Instead of generating hope, it would create a mirage. Instead of enabling the marginalized, it would further weaken them and aggravate their marginalization. (Ang Bagong Bayani – OFW Labor Party v. COMELEC, G.R. No. 147589, June 26, 2001, En Banc [Panganiban])Who can run?(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.

The foregoing provision mandates a state policy of promoting proportional representation by means of the Filipino-style party-list system, which will "enable" the election to the House of Representatives of Filipino citizens,

1. who belong to marginalized and underrepresented sectors, organizations and parties(except religious); and(Note: there is no prohibition for priests to run.)

2. who lack well-defined constituencies; but

3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.

The key words in this policy are "proportional representation," "marginalized and underrepresented," and "lack of well-defined constituencies."

Guidelines for Screening Party-List Participants

The Court, therefore, deems it proper to remand the case to the Comelec for the latter to determine, after summary evidentiary hearings, whether the 154 parties and organizations allowed to participate in the party-list elections comply with the requirements of the law. In this light, the Court finds it appropriate to lay down the following guidelines, culled from the law and the Constitution, to assist the Comelec in its work.

First, the political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Section 5 of RA 7941. In other words, it must show -- through its constitution, articles of incorporation, bylaws, history, platform of government and track record -- that it represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of its membership should belong to the marginalized and underrepresented. And it must demonstrate that in a conflict of interests, it has chosen or is likely to choose the interest of such sectors.

Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to participate in the party-list system, they must comply with the declared statutory policy of enabling "Filipino citizens belonging to marginalized and underrepresented sectors x x x to be elected to the House of Representatives." In other words, while they are not disqualified merely on the ground that they are political parties, they must show, however, that they represent the interests of the marginalized and underrepresented. The counsel of Aksyon Demokratiko and other similarly situated political parties admitted as much during the Oral Argument, as the following quote shows:

"JUSTICE PANGANIBAN: I am not disputing that in my question. All I am saying is, the political party must claim to represent the marginalized and underrepresented sectors?

ATTY. KAPUNAN: Yes, Your Honor, the answer is yes."

Third, in view of the objections directed against the registration of Ang Buhay Hayaang Yumabong, which is allegedly a religious group, the Court notes the express constitutional provision that the religious sector may not be represented in the party-list system. The extent of the constitutional proscription is demonstrated by the following discussion during the deliberations of the Constitutional Commission:

"MR. OPLE. x x x

In the event that a certain religious sect with nationwide and even international networks of members and supporters, in order to circumvent this prohibition, decides to form its own political party in emulation of those parties I had mentioned earlier as deriving their inspiration and philosophies from well-established religious faiths, will that also not fall within this prohibition?

MR. MONSOD. If the evidence shows that the intention is to go around the prohibition, then certainly the Comelec can pierce through the legal fiction.

The following discussion is also pertinent:

"MR. VILLACORTA. When the Commissioner proposed "EXCEPT RELIGIOUS GROUPS," he is not, of course, prohibiting priests, imams or pastors who may be elected by, say, the indigenous community sector to represent their group.

REV. RIGOS. Not at all, but I am objecting to anybody who represents the Iglesia ni Kristo, the Catholic Church, the Protestant Church et cetera."

Furthermore, the Constitution provides that "religious denominations and sects shall not be registered." The prohibition was explained by a member of the Constitutional Commission in this wise: "[T] he prohibition is on any religious organization registering as a political party. I do not see any prohibition here against a priest running as a candidate. That is not prohibited here; it is the registration of a religious sect as a political party."

Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941, which enumerates the grounds for disqualification as follows:

"(1) It is a religious sect or denomination, organization or association organized for religious purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or 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; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered."

Note should be taken of paragraph 5, which disqualifies a party or group for violation of or failure to comply with election laws and regulations. These laws include Section 2 of RA 7941, which states that the party-list system seeks to "enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties x x x to become members of the House of Representatives." A party or an organization, therefore, that does not comply with this policy must be disqualified.

Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by, the government. By the very nature of the party-list system, the party or organization must be a group of citizens, organized by citizens and operated by citizens. It must be independent of the government. The participation of the government or its officials in the affairs of a party-list candidate is not only illegal and unfair to other parties, but also deleterious to the objective of the law: to enable citizens belonging to marginalized and underrepresented sectors and organizations to be elected to the House of Representatives.

Sixth, the party must not only comply with the requirements of the law; its nominees must likewise do so. Section 9 of RA 7941 reads as follows:

"SEC. 9. Qualifications of Party-List Nominees. – No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election, able to read and write, a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his term."

Seventh, not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees. To repeat, under Section 2 of RA 7941, the nominees must be Filipino citizens "who belong to marginalized and underrepresented sectors, organizations and parties." Surely, the interests of the youth cannot be fully represented by a retiree; neither can those of the urban poor or the working class, by an industrialist. To allow otherwise is to betray the State policy to give genuine representation to the marginalized and underrepresented.

Eighth, as previously discussed, while lacking a well-defined political constituency, the nominee must likewise be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole. Senator Jose Lina explained during the bicameral committee proceedings that "the nominee of a party, national or regional, is not going to represent a particular district x x x."(Ang Bagong Bayani vs. COMELEC)

Atong Paglaum, Inc. et al. vs. COMELEC ‘New’ Party-List Parameters April 2, 2013

The 1987 Constitution provides the basis for the party-list system of representation. Simply put, the party-list system is intended to democratize political power by giving political parties that cannot win in legislative district elections a chance to win seats in the House of Representatives. The voter elects two representatives in the House of Representatives: one for his or her legislative district, and another for his or her party-list group or organization of choice. xxx

Commissioner Christian S. Monsod, the main sponsor of the party-list system, stressed that “the party-list system is not synonymous with that of the sectoral representation.” xxx

Indisputably, the framers of the 1987 Constitution intended the party-list system to include not only sectoral parties but also non-sectoral parties. The framers intended the sectoral parties to constitute a part, but not the entirety, of the party-list system. As explained by Commissioner Wilfredo Villacorta, political parties can participate in the party-list system “[F]or as long as they field candidates who come from the different marginalized sectors that we shall designate in this Constitution.”

In fact, the framers voted down, 19-22, a proposal to reserve permanent seats to sectoral parties in the House of Representatives, or alternatively, to reserve the party-list system exclusively to sectoral parties. xxx

Thus, in the end, the proposal to give permanent reserved seats to certain sectors was outvoted. Instead, the reservation of seats to sectoral representatives was only allowed for the first three consecutive terms. There can be no doubt whatsoever that the framers of the 1987 Constitution expressly rejected the proposal to make the party-list system exclusively for sectoral parties only, and that they clearly intended the party-list system to include both sectoral and non-sectoral parties.

The common denominator between sectoral and non-sectoral parties is that they cannot expect to win in legislative district elections but they can garner, in nationwide elections, at least the same number of votes that winning candidates can garner in legislative district elections. The party-list system will be the entry point to membership in the House of Representatives for both these non-traditional parties that could not compete in legislative district elections.

The indisputable intent of the framers of the 1987 Constitution to include in the party-list system both sectoral and non-sectoral parties is clearly written in Section 5(1), Article VI of the Constitution [.]xxx

Section 5(1), Article VI of the Constitution is crystal-clear that there shall be “a party-list system of registered national, regional, and sectoral parties or organizations.” The commas after the words “national[,]” and “regional[,]” separate national and regional parties from sectoral parties. Had the framers of the 1987 Constitution intended national and regional parties to be at the same time sectoral, they would have stated “national and regional sectoral parties.” They did not, precisely because it was never their intention to make the party-list system exclusively sectoral.

What the framers intended, and what they expressly wrote in Section 5(1), could not be any clearer: the party-list system is composed of three different groups, and the sectoral parties belong to only one of the three groups. The text of Section 5(1) leaves no room for any doubt that national and regional parties are separate from sectoral parties.

Thus, the party-list system is composed of three different groups: (1) national parties or organizations; (2) regional parties or organizations; and (3) sectoral parties or organizations. 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.

Moreover, Section 5(2), Article VI of the 1987 Constitution mandates that, during the first three consecutive terms of Congress after the ratification of the 1987 Constitution, “one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.” This provision clearly shows again that the party-list system is not exclusively for sectoral parties for two obvious reasons.

First, the other one-half of the seats allocated to party-list representatives would naturally be open to non-sectoral party-list representatives, clearly negating the idea that the party-list system is exclusively for sectoral parties representing the “marginalized and underrepresented.” Second, the reservation of one-half of the party-list seats to sectoral parties applies only for the first “three consecutive terms after the ratification of this Constitution,” clearly making the party-list system fully open after the end of the first three congressional terms. This means that, after this period, there will be no seats reserved for any class or type of party that qualifies under the three groups constituting the party-list system.

Hence, the clear intent, express wording, and party-list structure ordained in Section 5(1) and (2), Article VI of the 1987 Constitution cannot be disputed: the party-list system is not for sectoral parties only, but also for non-sectoral parties.

Xxx

Section 3(a) of R.A. No. 7941 defines a “party” as “either a political party or a sectoral party or a coalition of parties.” Clearly, a political party is different from a sectoral party. Section 3(c) of R.A. No. 7941 further provides that a “political party refers to an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government.” On the other hand, Section 3(d) of R.A. No. 7941 provides that a “sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special interest and concerns of their sector.” R.A. No. 7941 provides different definitions for a political and a sectoral party. Obviously, they are separate and distinct from each other.

R.A. No. 7941 does not require national and regional parties or organizations to represent the “marginalized and underrepresented” sectors. 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. How will these ideology-based and cause-oriented parties, who cannot win in legislative district elections, participate in the electoral process if they are excluded from the party-list system? To exclude them from the partylist system is to prevent them from joining the parliamentary struggle, leaving as their only option the 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.

Under the party-list system, an ideology-based or cause-oriented political party is clearly different from a sectoral party. A political party need not be organized as a sectoral party and need not represent any particular sector. There is no requirement in R.A. No. 7941 that a national or regional political party must represent a “marginalized and underrepresented” sector. It is sufficient that the political party consists of citizens who advocate the same ideology or platform, or the same governance principles and policies, regardless of their economic status as citizens.

Section 5 of R.A. No. 7941 states that “the sectors shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.” The sectors mentioned in Section 5 are not all necessarily “marginalized and underrepresented.” For sure, “professionals” are not by definition “marginalized and underrepresented,” not even the elderly, women, and the youth. However, professionals, the elderly, women, and the youth may “lack well-defined political constituencies,” and can thus organize themselves into sectoral parties in advocacy of the special interests and concerns of their respective sectors.

Section 6 of R.A. No. 7941 provides another compelling reason for holding that the law does not require national or regional parties, as well as certain sectoral parties in Section 5 of R.A. No. 7941, to represent the “marginalized and underrepresented.” Section 6 provides the grounds for the COMELEC to refuse or cancel the registration of parties or organizations after due notice and hearing.

XXX

None of the 8 grounds to refuse or cancel registration refers to nonrepresentation of the “marginalized and underrepresented.”

The phrase “marginalized and underrepresented” appears only once in R.A. No. 7941, in Section 2 on Declaration of Policy. Section 2 seeks “to promote proportional representation in the election of representatives to the House of Representatives through the party-list system,” which will enable Filipinos belonging to the “marginalized and underrepresented sectors,organizations and parties, and who lack well-defined political constituencies,” to become members of the House of Representatives. While the policy declaration in Section 2 of R.A. No. 7941 broadly refers to “marginalized and underrepresented sectors, organizations and parties,” the specific implementing provisions of R.A. No. 7941 do not define or require that the sectors, organizations or parties must be “marginalized and underrepresented.” On the contrary, to even interpret that all the sectors mentioned in Section 5 are “marginalized and underrepresented” would lead to absurdities.

How then should we harmonize the broad policy declaration in Section 2 of R.A. No. 7941 with its specific implementing provisions, bearing in mind the applicable provisions of the 1987 Constitution on the matter?

The phrase “marginalized and underrepresented” should refer only to the sectors in Section 5 that are, by their nature, economically “marginalized and underrepresented.” These sectors are: labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, overseas workers, and other similar sectors. For these sectors, a majority of the members of the sectoral party must belong to the “marginalized and underrepresented.” The nominees of the sectoral party either must belong to the sector, or must have a track record of advocacy for the sector represented. Belonging to the “marginalized and underrepresented” sector does not mean one must “wallow in poverty, destitution or infirmity.” It is sufficient that one, or his or her sector, is below the middle class. More specifically, the economically

“marginalized and underrepresented” are those who fall in the low income group as classified by the National Statistical Coordination Board.

The recognition that national and regional parties, as well as sectoral parties of professionals, the elderly, women and the youth, need not be “marginalized and underrepresented” will allow small ideology-based and cause-oriented parties who lack “well-defined political constituencies” a chance to win seats in the House of Representatives. On the other hand, limiting to the “marginalized and underrepresented” the sectoral parties for labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, overseas workers, and other sectors that by their nature are economically at the margins of society, will give the “marginalized and underrepresented” an opportunity to likewise win seats in the House of Representatives.

This interpretation will harmonize the 1987 Constitution and R.A. No. 7941 and will give rise to a multi-party system where those “marginalized and underrepresented,” both in economic and ideological status, will have the opportunity to send their own members to the House of Representatives. This interpretation will also make the party-list system honest and transparent, eliminating the need for relatively well-off party-list representatives to masquerade as “wallowing in poverty, destitution and infirmity,” even as they attend sessions in Congress riding in SUVs.

The major political parties are those that field candidates in the legislative district elections. Major political parties cannot participate in the party-list elections since they neither lack “well-defined political constituencies” nor represent “marginalized and underrepresented” sectors. Thus, the national or regional parties under the party-list system are necessarily those that do not belong to major political parties. This automatically reserves the national and regional parties under the party-list system to those who “lack well-defined political constituencies,” giving them the opportunity to have members in the House of Representatives.

XXXIn 2009, by a vote of 8-7 in BANAT, this Court stretched the Ang Bagong Bayani ruling further. In BANAT, the majority officially excluded major political parties from participating in party-list elections,60 abandoning even the lip-service that Ang Bagong Bayani accorded to the 1987 Constitution and R.A.No. 7941 that major political parties can participate in party-list elections.

The minority in BANAT, however, believed that major political parties can participate in the party-list system through their sectoral wings. The minority expressed that “[e]xcluding the major political parties in party-list elections is manifestly against the Constitution, the intent of the Constitutional Commission, and R.A. No. 7941. This Court cannot engage in socio-political engineering and judicially legislate the exclusion of major political parties from the party-list elections in patent violation of the Constitution and the law.” The experimentations in socio-political engineering have only resulted in confusion and absurdity in the party-list system. Such experimentations, in clear contravention of the 1987 Constitution and R.A. No. 7941, must now come to an end.

XXX

Thus, we remand all the present petitions to the COMELEC. In determining who may participate in the coming 13 May 2013 and subsequent party-list elections, the COMELEC shall adhere to the following parameters:

1. Three different groups may participate in the party-list system: (1) national parties or organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations.

2. National parties or organizations and regional parties or organizations do not need to organize along sectoral lines and do not need to represent any “marginalized and underrepresented” sector.

3. Political parties can participate in party-list elections provided they register under the party-list system and do not field candidates in legislative district elections. A political party, whether major or not, that fields candidates in legislative district elections can participate in partylist elections only through its sectoral wing that can separately register under the party-list system. The sectoral wing is by itself an independent sectoral party, and is linked to a political party through a coalition.

4. Sectoral parties or organizations may either be “marginalized and underrepresented” or lacking in “well-defined political constituencies.” It is enough that their principal advocacy pertains to the special interest and concerns of their sector. The sectors that are “marginalized and underrepresented” include labor, peasant, fisherfolk, urban poor,

indigenous cultural communities, handicapped, veterans, and overseasworkers. The sectors that lack “well-defined political constituencies” include professionals, the elderly, women, and the youth.

5. A majority of the members of sectoral parties or organizations that represent the “marginalized and underrepresented” must belong to the “marginalized and underrepresented” sector they represent. Similarly, a majority of the members of sectoral parties or organizations that lack “well-defined political constituencies” must belong to the sector they represent. The nominees of sectoral parties or organizations that represent the “marginalized and underrepresented,” or that represent those who lack “well-defined political constituencies,” either must belong to their respective sectors, or must have a track record of advocacy for their respective sectors. The nominees of national and regional parties or organizations must be bona-fide members of such parties or organizations.

6. National, regional, and sectoral parties or organizations shall not be disqualified if some of their nominees are disqualified, provided that they have at least one nominee who remains qualified.

Under Atong Paglaum, who may participate?(1) national parties or organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations.

NATIONAL PARTIES OR ORGANIZATIONS

REGIONAL PARTIES OR ORGANIZATIONS

SECTORAL PARTIES OR ORGANIZATIONS

Registered under the party-list system national parties or organizations can participate in partylist elections only through its sectoral wing that can separately register under the party-list system

“marginalized and underrepresented” include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, and overseasworkers

sectors that lack “well-defined political constituencies” include professionals, the elderly, women, and the youth.

Does not run as district representative Does not run as district representativedo not need to organize along sectoral lines and do not need to represent any “marginalized and underrepresented” sector.

do not need to organize along sectoral lines and do not need to represent any “marginalized and underrepresented” sector.

A majority of the members of sectoral parties or organizations that represent the “marginalized and underrepresented” must belong to the “marginalized and underrepresented” sector they represent. Similarly, a majority of the members of sectoral parties or organizations that lack “well-defined political constituencies” must belong to the sector they represent.

The nominees of national and regional parties or organizations must be bona-fide members of such parties or organizations.

The nominees of national and regional parties or organizations must be bona-fide members of such parties or organizations.

The nominees of sectoral parties or organizations that represent the “marginalized and underrepresented,” or that represent those who lack “well-defined political constituencies,” either must belong to their respective sectors, or must have a track record of advocacy for their respective sectors.

National, regional, and sectoral parties or organizations shall not be disqualified if some of their nominees are disqualified, provided that they have at least one nominee who remains qualified.

National, regional, and sectoral parties or organizations shall not be disqualified if some of their nominees are disqualified, provided that they have at least one nominee who remains qualified.

National, regional, and sectoral parties or organizations shall not be disqualified if some of their nominees are disqualified, provided that they have at least one nominee who remains qualified.

Veterans Federation Party v. COMELEC, G.R. No. 136781 and Companion Cases, Oct. 6, 2000, En Banc [Panganiban]To determine the winners in a Philippine-style party-list election, the Constitution and Republic Act (RA) No. 7941 mandate at least four inviolable parameters. These are:

First, the twenty percent allocation - the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list.

Second, the two percent threshold - only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are “qualified” to have a seat in the House of Representatives;

Third, the three-seat limit - each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one “qualifying” and two additional seats.

Fourth, proportional representation - the additional seats which a qualified party is entitled to shall be computed “in proportion to their total number of votes.”

Because the Comelec violated these legal parameters, the assailed Resolutions must be struck down for having been issued in grave abuse of discretion. The poll body is mandated to enforce and administer election-related laws. It has no power to contravene or amend them. Neither does it have authority to decide the wisdom, propriety or rationality of the acts of Congress.

Its bounden duty is to craft rules, regulations, methods and formulas to implement election laws -- not to reject, ignore, defeat, obstruct or circumvent them.

In fine, the constitutional introduction of the party-list system - a normal feature of parliamentary democracies - into our presidential form of government, modified by unique Filipino statutory parameters, presents new paradigms and novel questions, which demand innovative legal solutions convertible into mathematical formulations which are, in turn, anchored on time-tested jurisprudence.

***Consistent with the Constitutional Commission's pronouncements, Congress set the seat-limit to three (3) for each qualified party, organization or coalition. "Qualified" means having hurdled the two percent vote threshold. Such three-seat limit ensures the entry of various interest-representations into the legislature; thus, no single group, no matter how large its membership, would dominate the party-list seats, if not the entire House.

***

In the exercise of its constitutional prerogative, Congress enacted RA 7941. As said earlier, Congress declared therein a policy to promote "proportional representation" in the election of party-list representatives in order to enable Filipinos belonging to the marginalized and underrepresented sectors to contribute legislation that would benefit them. It however deemed it necessary to require parties, organizations and coalitions participating in the system to obtain at least two percent of the total votes cast for the party-list system in order to be entitled to a party-list seat. Those garnering more than this percentage could have "additional seats in proportion to their total number of votes.” Furthermore, no winning party, organization or coalition can have more than three seats in the House of Representatives. Thus the relevant portion of Section 11(b) of the law provides:

“(b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each; Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes; Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats.”

Considering the foregoing statutory requirements, it will be shown presently that Section 5 (2), Article VI of the Constitution is not mandatory. It merely provides a ceiling for party-list seats in Congress.

What are the inviolable parameters to determine the winners in a Philippine-style party-list election?4 inviolable parameters to declare the winner in a party-list elections:1. 20% allocation/limit

2. 2% threshold3. 3-seat limit4. proportional representation

20% limit - S5(2). Art. VI – 20% allocation, 4:1

2% threshold – It must obtain at least 2% of the total votes cast for the party-listEx. 10M voters for the party-list system = 200k voted for party-list = 1 qualifying seat

3-seat limitRepublic Act No. 7941 = regardless of number of votes garnered, only a maximum of 3 seats.Ex. 10M voters = 1M voted for party-list x = 3 seats only (one qualifying seat and 2 additional seats)

What is the reason behind the 3-seat limit rule?This is to preclude the possibility of one party-list to become too dominant in the 20% allocated seats. It will defeat the very purpose of the party-list system. (Veterans Federation Party v. COMELEC)

Proportional representation - a qualified party shall be qualified to such number of additional seats in proportion to the actual number of votes gathered in the party-list elections.

BANAT vs. COMELECSC did not declare the 2% threshold unconstitutional. What was declared unconstitutional was the continuing application of the 2% threshold in the allocation of additional seats.

The second clause of Section 11(b) of R.A. No. 7941 provides that "those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes." This is where petitioners’ and intervenors’ problem with the formula in Veterans lies. Veterans interprets the clause "in proportion to their total number of votes" to be in proportion to the votes of the first party. This interpretation is contrary to the express language of R.A. No. 7941.

We rule that, in computing the allocation of additional seats, the continued operation of the two percent threshold for the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent threshold makes it mathematically impossible to achieve the maximum number of available party list seats when the number of available party list seats exceeds 50. The continued operation of the two percent threshold in the distribution of the additional seats frustrates the attainment of the permissive ceiling that 20% of the members of the House of Representatives shall consist of party-list representatives.

To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes cast for the 100 participants in the party list elections. A party that has two percent of the votes cast, or one million votes, gets a guaranteed seat. Let us further assume that the first 50 parties all get one million votes. Only 50 parties get a seat despite the availability of 55 seats. Because of the operation of the two percent threshold, this situation will repeat itself even if we increase the available party-list seats to 60 seats and even if we increase the votes cast to 100 million. Thus, even if the maximum number of parties get two percent of the votes for every party, it is always impossible for the number of occupied party-list seats to exceed 50 seats as long as the two percent threshold is present.

We therefore strike down the two percent threshold only in relation to the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941 . The two percent threshold presents an unwarranted obstacle to the full implementation of Section 5(2), Article VI of the Constitution and prevents the attainment of "the broadest possible representation of party, sectoral or group interests in the House of Representatives."

In determining the allocation of seats for party-list representatives under Section 11 of R.A. No. 7941, the following procedure shall be observed:

1. 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.

2. The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one guaranteed seat each.

3. 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.

4. Each party, organization, or coalition shall be entitled to not more than three (3) seats.

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.

Note that the above formula will be applicable only in determining the number of additional seats the first party is entitled to. It cannot be used to determine the number of additional seats of the other qualified parties. As explained earlier, the use of the same formula for all would contravene the proportional representation parameter. For example, a second party obtains six percent of the total number of votes cast. According to the above formula, the said party would be entitled to two additional seats or a total of three seats overall. However, if the first party received a significantly higher amount of votes — say, twenty percent — to grant it the same number of seats as the second party would violate the statutory mandate of proportional representation, since a party getting only six percent of the votes will have an equal number of representatives as the one obtaining twenty percent. The proper solution, therefore, is to grant the first party a total of three seats; and the party receiving six percent, additional seats in proportion to those of the first party.

ANG BAGONG BAYANI-OFW LABOR PARTY vs. COMELEC June 25, 2003Are votes cast for disqualified party-lists stray votes or valid votes?COMELEC had no motu proprio authority to revise Canvass Report No. 26 after its Compliance Reports – to which this Canvass was included – had been approved by this Court. If at all, it should have merely recommended the revision thereof. By revising it motu proprio, Comelec arrogated unto itself the power to decide the legal issue of whether, by the disqualification of certain party-list participants, the votes cast in their favor should be deducted from the total votes cast. This issue is an important incident of this case, over which Comelec had no direct authority to rule, much less to do so without adequate hearing and due process accorded all the parties in this case.

Labo Doctrine should not apply. Votes cast for the disqualified candidate should not be considered stray votes. They should be counted.Why?1. Labo Doctrine is inapplicable in the party-list system. S10 RA 7941 which provides that votes cast for a disqualified party shall not be counted. There is no room for interpretation, but only application.

2. Labo and Grego cases involve single elective posts, that of the mayor. Party-list winners are a different case, the winners being subject to different requirements under RA 7941 to be declared as the winner.

LABO DOCTRINELabo Doctrine in Election Laws: Votes cast for the disqualified candidate, the voters thinking he was qualified, should not be considered as stray votes.

In an election, the 2nd placer has no right to take the contested public office if the winner is disqualified AFTER the election. But if the decision of disqualification is made BEFORE the election yet the people still voted for the disqualified candidate then the 2nd highest vote getter may be proclaimed as the winner. The votes casted in favor of the highest vote getter, in this case, will be considered as “stray” votes. (Labo Jr. vs COMELEC)

Doctrine of the rejection of the 2nd placer“The rule therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office.”

***

“For to allow the defeated and repudiated candidate to take over the mayoralty despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the people’s right to elect officials of their choice.”

***In such a case, it is absurd to proclaim the totally repudiated candidate as the voters’ choice. Moreover, even in instances where the votes received by the second placer may not be considered numerically insignificant voters preferences are nonetheless so volatile and unpredictable that the result among qualified candidates, should the equation change because of the disqualification of an ineligible candidate, would not be self-evident. Absence of the apparent though ineligible winner among no choices could lead to a shifting of votes to candidates other than the second placer. By any mathematical formulation, the runner-up in an election cannot be construed to have obtained the majority or plurality of votes cast where an ‘ineligible’ candidate has garnered either a majority or plurality of the votes.” (Loreto vs. Brion 1999)

When can a second placer be declared the winner?The exception is predicated on the concurrence of two assumptions, namely: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidate’s disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate.(Grego vs. COMELEC 1997)

Maquiling vs COMELEC April 23, 2013 Right of intervention in an election case, Citizenship, Naturalization and effect of continued use of a US passport after naturalization, Doctrine of Rejection of the 2nd Placer is a mere obiter dictumMercado v. Manzano clarified the right of intervention in a disqualification case. In that case, the Court said:

That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private respondent is clear from Section 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which provides: Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final judgment rendered.

Clearly then, Maquiling has the right to intervene in the case. The fact that the COMELEC En Banc has already ruled that Maquiling has not shown that the requisites for the exemption to the second-placer rule set forth in Sinsuat v. COMELEC30 are present and therefore would not be prejudiced by the outcome of the case, does not deprive Maquiling of the right to elevate the matter before this Court.

***By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen, regardless of the effect of such renunciation under the laws of the foreign country.

However, this legal presumption does not operate permanently and is open to attack when, after renouncing the foreign citizenship, the citizen performs positive acts showing his continued possession of a foreign citizenship.

Arnado himself subjected the issue of his citizenship to attack when, after renouncing his foreign citizenship, he continued to use his US passport to travel in and out of the country before filing his certificate of candidacy on 30 November 2009. The pivotal question to determine is whether he was solely and exclusively a Filipino citizen at the time he filed his certificate of candidacy, thereby rendering him eligible to run for public office.

****We agree with the COMELEC En Banc that such act of using a foreign passport does not divest Arnado of his Filipino citizenship, which he acquired by repatriation. However, by representing himself as an American citizen, Arnado voluntarily and effectively reverted to his earlier status as a dual citizen. Such reversion was not retroactive; it took place the instant Arnado represented himself as an American citizen by using his US passport.

This act of using a foreign passport after renouncing one’s foreign citizenship is fatal to Arnado’s bid for public office, as it effectively imposed on him a disqualification to run for an elective local position.

Arnado’s category of dual citizenship is that by which foreign citizenship is acquired through a positive act of applying for naturalization. This is distinct from those considered dual citizens by virtue of birth, who are not required by law to take the oath of renunciation as the mere filing of the certificate of candidacy already carries with it an implied renunciation of foreign citizenship.39 Dual citizens by naturalization, on the other hand, are required to take not only the Oath of Allegiance to the Republic of the Philippines but also to personally renounce foreign citizenship in order to qualify as a candidate for public office.

By the time he filed his certificate of candidacy on 30 November 2009, Arnado was a dual citizen enjoying the rights and privileges of Filipino and American citizenship. He was qualified to vote, but by the express disqualification under Section 40(d) of the Local Government Code,40 he was not qualified to run for a local elective position. In effect, Arnado was solely and exclusively a Filipino citizen only for a period of eleven days, or from 3 April 2009 until 14 April 2009, on which date he first used his American passport after renouncing his American citizenship.

****This Court has previously ruled that:

Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. x x x.The citizenship requirement for elective public office is a continuing one. It must be possessed not just at the time of the renunciation of the foreign citizenship but continuously. Any act which violates the oath of renunciation opens the citizenship issue to attack.

We agree with the pronouncement of the COMELEC First Division that “Arnado’s act of consistently using his US passport effectively negated his “Affidavit of Renunciation.” This does not mean, that he failed to comply with the twin requirements under R.A. No. 9225, for he in fact did. It was after complying with the requirements that he performed positive acts which effectively disqualified him from running for an elective public office pursuant to Section 40(d) of the Local Government Code of 1991.

The purpose of the Local Government Code in disqualifying dual citizens from running for any elective public office would be thwarted if we were to allow a person who has earlier renounced his foreign citizenship, but who subsequently represents himself as a foreign citizen, to hold any public office.

****Besides, Arnado’s subsequent use of his Philippine passport does not correct the fact that after he renounced his foreign citizenship and prior to filing his certificate of candidacy, he used his US passport. In the same way that the use of his foreign passport does not undo his Oath of Renunciation, his subsequent use of his Philippine passport does not undo his earlier use of his US passport.

Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil and political rights accorded by the state to its citizens. It likewise demands the concomitant duty to maintain allegiance to one’s flag and country. While those who acquire dual citizenship by choice are afforded the right of suffrage, those who seek election or appointment to public office are required to renounce their foreign citizenship to be deserving of the public trust. Holding public office demands full and undivided allegiance to the Republic and to no other.

We therefore hold that Arnado, by using his US passport after renouncing his American citizenship, has recanted the same Oath of Renunciation he took. Section 40(d) of the Local Government Code applies to his situation. He is disqualified not only from holding the public office but even from becoming a candidate in the May 2010 elections.

****The often-quoted phrase in Topacio v. Paredes is that “the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots.”

This phrase is not even the ratio decidendi; it is a mere obiter dictum. The Court was comparing “the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the elections x x x [with] that produced by declaring a person ineligible to hold such an office.”

The complete sentence where the phrase is found is part of a comparison and contrast between the two situations, thus:

Again, the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the elections is quite different from that produced by declaring a person ineligible to hold such an office. In the former case the court, after an examination of the ballots may find that some other person than the candidate declared to have received a plura[l]ity by the board of canvassers actually received the greater number of votes, in which case the court issues its mandamus to the board of canvassers to correct the returns accordingly; or it may find that the manner of holding the election and the returns are so tainted with fraud or illegality that it cannot be determined who received a [plurality] of the legally cast ballots. In the latter case, no question as to the correctness of the returns or the manner of casting and counting the ballots is before the deciding power, and generally the only result can be that the election fails entirely. In the former, we have a contest in the strict sense of the word, because of the opposing parties are striving for supremacy. If it be found that the successful candidate (according to the board of canvassers) obtained a plurality in an illegal manner, and that another candidate was the real victor, the former must retire in favor of the latter. In the other case, there is not, strictly speaking, a contest, as the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots. In the one case the question is as to who received a plurality of the legally cast ballots; in the other, the question is confined to the personal character and circumstances of a single individual. (Emphasis supplied)

Note that the sentence where the phrase is found starts with “In the other case, there is not, strictly speaking, a contest” in contrast to the earlier statement, “In the former, we have a contest in the strict sense of the word, because of the opposing parties are striving for supremacy.”

*****The Court in Topacio v. Paredes cannot be said to have held that “the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots.”

A proper reading of the case reveals that the ruling therein is that since the Court of First Instance is without jurisdiction to try a disqualification case based on the eligibility of the person who obtained the highest number of votes in the election, its jurisdiction being confined “to determine which of the contestants has been duly elected” the judge exceeded his jurisdiction when he “declared that no one had been legally elected president of the municipality of Imus at the general election held in that town on 4 June 1912” where “the only question raised was whether or not Topacio was eligible to be elected and to hold the office of municipal president.”

The Court did not rule that Topacio was disqualified and that Abad as the second placer cannot be proclaimed in his stead. The Court therein ruled:

For the foregoing reasons, we are of the opinion and so hold that the respondent judge exceeded his jurisdiction in declaring in those

proceedings that no one was elect[ed] municipal president of the municipality of Imus at the last general election; and that said order and all subsequent proceedings based thereon are null and void and of no effect; and, although this decision is rendered on respondents' answer to the order to show cause, unless respondents raised some new and additional issues, let judgment be entered accordingly in 5 days, without costs. So ordered

On closer scrutiny, the phrase relied upon by a host of decisions does not even have a legal basis to stand on. It was a mere pronouncement of the Court comparing one process with another and explaining the effects thereof. As an independent statement, it is even illogical.

****The popular vote does not cure the ineligibility of a candidate.

The ballot cannot override the constitutional and statutory requirements for qualifications and disqualifications of candidates. When the law requires certain qualifications to be possessed or that certain disqualifications be not possessed by persons desiring to serve as elective public officials, those qualifications must be met before one even becomes a candidate. When a person who is not qualified is voted for and eventually garners the highest number of votes, even the will of the electorate expressed through the ballot cannot cure the defect in the qualifications of the candidate. To rule otherwise is to trample upon and rent asunder the very law that sets forth the qualifications and disqualifications of candidates. We might as well write off our election laws if the voice of the electorate is the sole determinant of who should be proclaimed worthy to occupy elective positions in our republic.

****What will stop an otherwise disqualified individual from filing a seemingly valid COC, concealing any disqualification, and employing every strategy to delay any disqualification case filed against him so he can submit himself to the electorate and win, if winning the election will guarantee a disregard of constitutional and statutory provisions on qualifications and disqualifications of candidates?

It is imperative to safeguard the expression of the sovereign voice through the ballot by ensuring that its exercise respects the rule of law. To allow the sovereign voice spoken through the ballot to trump constitutional and statutory provisions on qualifications and disqualifications of candidates is not democracy or republicanism. It is electoral anarchy. When set rules are disregarded and only the electorate’s voice spoken through the ballot is made to matter in the end, it precisely serves as an open invitation for electoral anarchy to set in.

****We have ruled in the recent cases of Aratea v. COMELEC and Jalosjos v. COMELEC that a void COC cannot produce any legal effect. Thus, the votes cast in favor of the ineligible candidate are not considered at all in determining the winner of an election.

Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still respected, and even more so. The votes cast in favor of an ineligible candidate do not constitute the sole and total expression of the sovereign voice. The votes cast in favor of eligible and legitimate candidates form part of that voice and must also be respected.

As in any contest, elections are governed by rules that determine the qualifications and disqualifications of those who are allowed to participate as players. When there are participants who turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank who does not possess any of the disqualifications nor lacks any of the qualifications set in the rules to be eligible as candidates.

There is no need to apply the rule cited in Labo v. COMELEC that when the voters are well aware within the realm of notoriety of a candidate’s disqualification and still cast their votes in favor said candidate, then the eligible candidate obtaining the next higher number of votes may be deemed elected. That rule is also a mere obiter that further complicated the rules affecting qualified candidates who placed second to ineligible ones.

***The electorate’s awareness of the candidate’s disqualification is not a prerequisite for the disqualification to attach to the candidate. The very existence of a disqualifying circumstance makes the candidate ineligible. Knowledge by the electorate of a candidate’s disqualification is not necessary before a qualified candidate who placed second to a disqualified one can be proclaimed as the winner. The second-placer in the vote count is actually the first-placer among the qualified candidates.

That the disqualified candidate has already been proclaimed and has assumed office is of no moment. The subsequent disqualification based on a substantive ground that existed prior to the filing of the certificate of candidacy voids not only the COC but also the proclamation.

****With Arnado being barred from even becoming a candidate, his certificate of candidacy is thus rendered void from the beginning. It could not have produced any other legal effect except that Amado rendered it impossible to effect his disqualification prior to the elections because he filed his answer to the petition when the elections were conducted already and he was already proclaimed the winner.

To hold that such proclamation is valid is to negate the prohibitory character of the disqualification which Amado possessed even prior to the filing of the certificate of candidacy. The affirmation of Arnado's disqualification, although made long after the elections, reaches back to the filing of the certificate of candidacy. Amado is declared to be not a candidate at all in the May 2010 elections.

Arnado being a non-candidate, the votes cast in his favor should not have been counted. This leaves Maquiling as the qualified candidate who obtained the highest number of votes. Therefore, the rule on succession under the Local Government Code will not apply.

Abayon vs. HRET Feb. 11, 2010Once elected, both the district representatives and the party-list representatives are treated in like manner. They the same deliberative rights, salaries, and emoluments. They can participate in the making of laws that will directly benefit their legislative districts or sectors. They are also subject to the same term limitation of three years for a maximum of three consecutive terms

***It is for the HRET to interpret the meaning of this particular qualification of a nominee—the need for him or her to be a bona fide member or a representative of his party-list organization—in the context of the facts that characterize petitioners Abayon and Palparan’s relation to Aangat Tayo and Bantay, respectively, and the marginalized and underrepresented interests that they presumably embody.

***What is inevitable is that Section 17, Article VI of the Constitution provides that the HRET shall be the sole judge of all contests relating to, among other things, the qualifications of the members of the House of Representatives. Since, as pointed out above, party-list nominees are "elected members" of the House of Representatives no less than the district representatives are, the HRET has jurisdiction to hear and pass upon their qualifications. By analogy with the cases of district representatives, once the party or organization of the party-list nominee has been proclaimed and the nominee has taken his oath and assumed office as member of the House of Representatives, the COMELEC’s jurisdiction over election contests relating to his qualifications ends and the HRET’s own jurisdiction begins.

NOTE: Read Maquiling vs. COMELEC in the light of the SC Ruling on Reyes vs. COMELEC (March 7, 1996):We likewise find no grave abuse of discretion on the part of the COMELEC in denying petitioner Julius O. Garcia’s petition to be proclaimed mayor in view of the disqualification of Renato U. Reyes.

That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled. The doctrinal instability caused by see-sawing rulings has since been removed. In the latest ruling on the question (Aquino v. COMELEC, G.R. No. 120265, September 18, 1995.), this Court said:

To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances.

Garcia’s plea that the votes cast for Reyes be invalidated is without merit. The votes cast for Reyes are presumed to have been cast in the belief that Reyes was qualified and for that reason can not be treated as stray, void, or meaningless. The subsequent finding that he is disqualified cannot retroact to the date of the elections so as to invalidate the votes cast for him.

Reyes vs. COMELEC (June 2013)From the foregoing, it is then clear that 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.

Indeed, in some cases, this Court has made the pronouncement that once a proclamation has been made, COMELEC’s jurisdiction is already lost and, thus, its jurisdiction over contests relating to elections, returns, and qualifications ends, and the HRET’s own jurisdiction begins. However, it must be noted that in these cases, the doctrinal pronouncement was made in the context of a proclaimed candidate who had not only taken an oath of office, but who had also assumed office.***Apparently, the earlier cases were decided after the questioned candidate had already assumed office, and hence, was already considered a Member of the House of Representatives, unlike in the present case.***Here, the petitioner cannot be considered a Member of the House of Representatives because, primarily, she has not yet assumed office. To repeat what has earlier been said, 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.***More importantly, we cannot disregard a fact basic in this controversy – that before the proclamation of petitioner on 18 May 2013, the COMELEC En Banc had already finally disposed of the issue of petitioner’s lack of Filipino citizenship and residency via its Resolution dated 14 May 2013. After 14 May 2013, there was, before the COMELEC, no longer any pending case on petitioner’s qualifications to run for the position of Member of the House of Representative. We will inexcusably disregard this fact if we accept the argument of the petitioner that the COMELEC was ousted of jurisdiction when she was proclaimed, which was four days after the COMELEC En Banc decision. The Board of Canvasser which proclaimed petitioner cannot by such act be allowed to render nugatory a decision of the COMELEC En Banc which affirmed a decision of the COMELEC First Division.***It must be emphasized that the COMELEC is not bound to strictly adhere to the technical rules of procedure in the presentation of evidence. Under Section 2 of Rule I, the COMELEC Rules of Procedure “shall be liberally construed in order x xx to achieve just, expeditious and inexpensive determination and disposition of every action and proceeding brought before the Commission.” In view of the fact that the proceedings in a petition to deny due course or to cancel certificate of candidacy are summary in nature, then the “newly discovered evidence” was properly admitted by respondent COMELEC.

Furthermore, there was no denial of due process in the case at bar as petitioner was given every opportunity to argue her case before the COMELEC. From 10 October 2012 when Tan’s petition was filed up to 27 March 2013 when the First Division rendered its resolution, petitioner had a period of five (5) months to adduce evidence. Unfortunately, she did not avail herself of the opportunity given her.

Also, in administrative proceedings, procedural due process only requires that the party be given the opportunity or right to be heard. As held in the case of Sahali v. COMELEC:

The petitioners should be reminded that due process does not necessarily mean or require a hearing, but simply an opportunity or right to be heard. One may be heard, not solely by verbal presentation but also, and perhaps many times more creditably and predictable than oral argument, through pleadings. In administrative proceedings moreover, technical rules of procedure and evidence are not strictly applied; administrative process cannot be fully equated with due process in its strict judicial sense. Indeed, deprivation of due process cannot be successfully invoked where a party was given the chance to be heard on his motion for reconsideration. (Emphasis supplied)

***To cover-up her apparent lack of an oath of allegiance as required by R.A. No. 9225, petitioner contends that, since she took her oath of allegiance in connection with her appointment as Provincial Administrator of Marinduque, she is deemed to have reacquired her status as a natural-born Filipino citizen.

This contention is misplaced. For one, this issue is being presented for the first time before this Court, as it was never raised before the COMELEC. For another, said oath of allegiance cannot be considered compliance with Sec. 3 of R.A. No. 9225 as certain requirements have to be met as prescribed by Memorandum Circular No. AFF-04-01, otherwise known as the Rules Governing Philippine Citizenship under R.A. No. 9225 and Memorandum Circular No. AFF-05-002 (Revised Rules) and Administrative Order No. 91, Series of 2004 issued by the Bureau of Immigration. Thus, petitioner’s oath of office as Provincial Administrator cannot be considered as the oath of allegiance in compliance with R.A. No. 9225.

These circumstances, taken together, show that a doubt was clearly cast on petitioner’s citizenship. Petitioner, however, failed to clear such doubt.

As to the issue of residency, proceeding from the finding that petitioner has lost her natural-born status, we quote with approval the ruling of the COMELEC First Division that petitioner cannot be considered a resident of Marinduque:

“Thus, a Filipino citizen who becomes naturalized elsewhere effectively abandons his domicile of origin. Upon re-acquisition of Filipino citizenship pursuant to RA 9225, he must still show that he chose to establish his domicile in the Philippines through positive acts, and the period of his residency shall be counted from the time he made it his domicile of choice.

In this case, there is no showing whatsoever that [petitioner] had already re-acquired her Filipino citizenship pursuant to RA 9225 so as to conclude that she has regained her domicile in the Philippines. There being no proof that [petitioner] had renounced her American citizenship, it follows that she has not abandoned her domicile of choice in the USA.

The only proof presented by [petitioner] to show that she has met the one-year residency requirement of the law and never abandoned her domicile of origin in Boac, Marinduque is her claim that she served as Provincial Administrator of the province from January 18, 2011 to July 13, 2011. But such fact alone is not sufficient to prove her one-year residency. For, [petitioner] has never regained her domicile in Marinduque as she remains to be an American citizen. No amount of her stay in the said locality can substitute the fact that she has not abandoned her domicile of choice in the USA.”37 (Emphasis supplied.)

All in all, considering that the petition for denial and cancellation of the COC is summary in nature, the COMELEC is given much discretion in the evaluation and admission of evidence pursuant to its principal objective of determining of whether or not the COC should be cancelled. We held in Mastura v. COMELEC:

The rule that factual findings of administrative bodies will not be disturbed by courts of justice except when there is absolutely no evidence or no substantial evidence in support of such findings should be applied with greater force when it concerns the COMELEC, as the framers of the Constitution intended to place the COMELEC — created and explicitly made independent by the Constitution itself — on a level higher than statutory administrative organs. The COMELEC has broad powers to ascertain the true results of the election by means available to it. For the attainment of that end, it is not strictly bound by the rules of evidence.

****The COMELEC did not impose additional qualifications on candidates for the House of Representatives who have acquired foreign citizenship. It merely applied the qualifications prescribed by Section 6, Article VI of the 1987 Constitution that the candidate must be a natural-born citizen of the Philippines and must have one-year residency prior to the date of elections. Such being the case, the COMELEC did not err when it inquired into the compliance by petitioner of Sections 3 and 5 of R.A. No. 9225 to determine if she reacquired her status as a natural-born Filipino citizen. It simply applied the constitutional provision and nothing more.

Art. VI Section 11 Immunities and Privileges of Congress

Section 11. A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.

Immunities and privileges of Congress:~Privilege from Arrest while the Congress is in session~Freedom of Speech “in any other place for any speech or debate in the Congress or in any committee thereof.”

“while the Congress is in session” – during the entire duration of the session from its opening until its final adjournment, not the day to day session

When is the opening of the regular session of Congress?Every 4th Monday of July. (Also the day the president will make the SONA)

Art. VI Section 15. The Congress shall convene once every year on the fourth Monday of July for its regular session, unless a different date is fixed by law, and shall continue to be in session for such number of days as it may determine until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays, and legal holidays. The President may call a special session at any time.

People vs. JalosjosReclusion Perpetua – no privilege lies as he was convicted of statutory rape.

“shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof ” ‘In any other place’ – would include the courts, but not the Congress itself (Sec. 16(3) Ar. VI). File a case in the House Ethics Committee.

Osmeña vs. PendatunOsmeña maligned the president in a speech in the senate. He was subsequently removed by the Senate. Is this proper?Yes, he cannot be removed in any other place, but except the house wherein he is a member. The House can discipline its own members for disorderly behavior and order his suspension or expulsion as the case may be.

Sec. 16 (3) Art. VI(3) Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days.

S13 Art. VI Forbidden and Incompatible OfficesSection 13. No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected.

Incompatible office“Any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.”

Forbidden office An “office which may have been created or the emoluments thereof increased during the term for which he was elected.”

Incompatible office vs. Forbidden officeIncompatible office Forbidden office

A member of congress may be validly be appointed to an incompatible office

In the case of a forbidden office, a member of congress cannot be validly appointed thereto, even if he is willing to forfeit his seat.

The moment he accepts, he forfeits his office. What happens thereafter, he can no longer come back to his former office. (i.e. his appointment is not confirmed by CoA, he is removed from office)

The appointment of a member of Congress to the forbidden office is not allowed only during the term for which he was elected, when such office was created or its emoluments were increased.

This is merely an inhibition. This is actually a prohibition or a disqualification.

Sec. 14 Art. VI Prohibition of Members of Congress Who are LawyersSection 14. No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office.

Bodies attached to the Congress1. CoA –S18 Art. VI2. ETs – SET and HRET

Commission on Appointments – to act on presidential appointments, serves as a check on the appointing power of the PresidentArt. VI, Section 18. There shall be a Commission on Appointments consisting of the President of the Senate, as ex officio Chairman, twelve Senators, and twelve Members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented therein. The chairman of the Commission shall not vote, except in case of a tie. The Commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. The Commission shall rule by a majority vote of all the Members.

Composition: 12 senators, 12 congressmen and Senate President as ex-officio chairman.Chosen on basis on proportional representation in the House of Representative or Senate from the political parties and parties or organizations registered under the party-list system, as the case may be.

Section 19. The Electoral Tribunals and the Commission on Appointments shall be constituted within thirty days after the Senate and the House of Representatives shall have been organized with the election of the President and the Speaker. The Commission on Appointments shall meet only while the Congress is in session, at the call of its Chairman or a majority of all its Members, to discharge such powers and functions as are herein conferred upon it.

Note: This is the reason why there are ad interim appointments, as appointments were made while Congress was in recess.

Electoral Tribunals:Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

Composition: 9 members, 6 Congressmen/Senators, 3 Justices of the SC (Senior Justice – Ex-Officio Chairman)Chosen on basis on proportional representation in the House of Representative or Senate as the case may be.

Note:Electoral tribunals have judicial component and legislative component. CoA has no judicial component.

At a glance:Commission on Appointments Electoral Tribunal (SET/HRET)

Basis Section 18 Art. VI Section 17 Art. VIComposition 12 senators, 12 congressmen and Senate

President as ex-officio chairman.9 members, 6 Congressmen or 6 Senators, 3 Justices of the SC (Senior Justice – Ex-Officio Chairman)

Mode of choosing Chosen on basis on proportional representation in the House of Representative or Senate as the case may be.

Chosen on basis on proportional representation in the House of Representative or Senate as the case may be. Plus 3 justices as may be designated by the Chief Justice

Components Legislative component only. Legislative and judicial component

From the Electoral Tribunal, a decision was rendered. Where should a losing party go to appeal?No appeal lies. The Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Is Appeal a constitutional right?No, appeal is not a constitutional right. No such right is mentioned in the Bill of rights. It is merely statutory. But in cases of abuse of discretion, Certiorari under Rule 65 can be had.Why?Rule 45 – Petition for Review on Certiorari – mode of appeal on questions of law.Rule 65 – Special Civil Action for Certiorari – a special civil action, an original action, based on grave abuse of discretion.

POWER TO CONDUCT INQUIRIES IN AID OF LEGISLATIONSection 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in, or affected by, such inquiries shall be respected.

Inquiries In Aid of Legislation - Intrinsically granted to Congress by the Constitution. (Arnault vs. Nazareno)

Is the power of both houses of Congress to conduct inquiries in aid of legislation absolute or unlimited?Held: The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct inquiries in aid

of legislation (In Arnault v. Nazareno, 87 Phil. 29, this Court held that although there was no express provision in the 1935 Constitution giving such power to both houses of Congress, it was so incidental to the legislative function as to be implied.). Thus, Section 21, Article VI provides x x x.

The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore, absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein, the investigation must be “in aid of legislation in accordance with its duly published rules of procedure” and that “the rights of persons appearing in or affected by such inquiries shall be respected.” It follows then that the rights of persons under the Bill of Rights must be respected, including the right to due process and the right not to be compelled to testify against one’s self.

The power to conduct formal inquiries or investigations is specifically provided for in Sec. 1 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation. Such inquiries may refer to the implementation or re-examination of any law or in connection with any proposed legislation or the formulation of future legislation. They may also extend to any and all matters vested by the Constitution in Congress and/or in the Senate alone.

As held in Jean L. Arnault v. Leon Nazareno, et al, (No. L-3820, July 18, 1950, 87 Phil. 29), the inquiry, to be within the jurisdiction of the legislative body making it, must be material or necessary to the exercise of a power in it vested by the Constitution, such as to legislate or to expel a member.

Under Sec. 4 of the aforementioned Rules, the Senate may refer to any committee or committees any speech or resolution filed by any Senator which in its judgment requires an appropriate inquiry in aid of legislation. In order therefore to ascertain the character or nature of an inquiry, resort must be had to the speech or resolution under which such an inquiry is proposed to be made. (Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767, Nov. 20, 1991, En Banc [Padilla])

Is this absolute? No 3 important limitations:1. Inquiry must always be in aid of legislation of either a pending bill or bill expected to be filed2. Conducted in accordance with duly published rules of procedure of the House of Congress conducting the inquiry3. Rights of persons appearing in, or affected by, such inquiries shall be respected.

Is this subject to judicial review or is this a political question?This is not a political question. It is subject to judicial review, especially in view of the expanded power of the court to conduct a review on ground of grave abuse of discretion amounting to lack or excess of jurisdiction.

The court may validly inquire into whether the inquiries were in aid or legislation or not; whether or not conducted in accordance with duly published rules of the House conducting the inquirey and whether or not the rights of persons appearing or affected by such inquiries were respected.

On 13 September 1988, the Senate Minority Floor Leader, Hon. Juan Ponce Enrile delivered a speech “on a matter of personal privilege” before the Senate on the alleged “take-over of SOLOIL Incorporated, the flagship on the First Manila Management of Companies (FMMC) by Ricardo Lopa” and called upon “the Senate to look into the possible violation of the law in the case, particularly with regard to Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act.”

On motion of Senator Orlando Mercado, the matter was referred by the Senate to the Committee on Accountability of Public Officers (Blue Ribbon Committee). Thereafter, the Senate Blue Ribbon Committee started its investigation on the matter. Petitioners and Ricardo Lopa were subpoenaed by the Committee to appear before it and testify on “what they know” regarding the “sale of the thirty-six (36) corporations belonging to Benjamin ‘Kokoy’ Romualdez.”

At the hearing held on 23 May 1989, Ricardo Lopa declined to testify on the ground that his testimony may “unduly prejudice” the defendants in Civil Case No. 0035 before the Sandiganbayan. Petitioner Jose F.S. Bengzon, Jr. likewise refused to testify invoking his constitutional right to due process, and averring that the publicity generated by respondent Committee’s inquiry could adversely affect his rights as well as those of the other petitioners who are his co-defendants in Civil Case No. 0035 before the Sandiganbayan.

The Senate Blue Ribbon Committee, thereupon, suspended its inquiry and directed the petitioners to file their memorandum on the constitutional issues raised, after which, it issued a resolution dated 5 June 1989 rejecting the petitioners’ plea to be excused from testifying, and the Committee voted to pursue and continue its investigation of the matter. X x x

Claiming that the Senate Blue Ribbon Committee is poised to subpoena and require their attendance and testimony in proceedings before the Committee, in excess of its jurisdiction and legislative rights, and that there is no appeal nor any other plain, speedy and adequate remedy in the ordinary course of law, the petitioners filed the present petition for prohibition with a prayer for temporary restraining order and/or injunctive relief.

Held: A perusal of the speech of Senator Enrile reveals that he (Senator Enrile) made a statement which was published in various newspapers on 2 September 1988 accusing Mr. Ricardo “Baby” Lopa of “having taken over the FMMC Group of Companies.” X x x

Verily, the speech of Senator Enrile contained no suggestion of contemplated legislation; he merely called upon the Senate to look into a possible violation of Sec. 5 of RA No. 3019, otherwise known as “The Anti-Graft and Corrupt Practices Act.” In other words, the purpose of the inquiry to be conducted by respondent Blue Ribbon Committee was to find out whether or not the relatives of President Aquino, particularly Mr. Ricardo Lopa, had violated the law in connection with the alleged sale of the 36 or 39 corporations belonging to Benjamin “Kokoy” Romualdez to the Lopa Group. There appears to be, therefore, no intended legislation involved.

X x x

It appears, therefore, that the contemplated inquiry by respondent Committee is not really “in aid of legislation” because it is not related to a purpose within the jurisdiction of Congress, since the aim of the investigation is to find out whether or not the relatives of the President or Mr. Ricardo Lopa had violated Section 5 of RA No. 3019, the “Anti-Graft and Corrupt Practices Act”, a matter that appears more within the province of the courts rather than of the legislature. Besides, the Court may take judicial notice that Mr. Ricardo Lopa died during the pendency of this case. In John T. Watkins v. United States (354 U.S. 178, 1 L. ed. 2D 1273 [1957]), it was held:

“x x x. The power of Congress to conduct inquiries in aid of legislation is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic, or political system for the purpose of enabling Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of Congress. This was freely conceded by the Solicitor General in his arguments in this case. Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to and in furtherance of a legislative task of Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.” (italics supplied)

It cannot be overlooked that when respondent Committee decided to conduct its investigation of the petitioners, the complaint in Civil Case No. 0035 had already been filed with the Sandiganbayan. A perusal of that complaint shows that one of its principal causes of action against herein petitioners, as defendants therein, is the alleged sale of the 36 (or 39) corporations belonging to Benjamin “Kokoy” Romualdez. Since the issues in said complaint had long been joined by the filing of petitioners’ respective answers thereto, the issue sought to be investigated by the respondent Committee is one over which jurisdiction had been acquired by the Sandiganbayan. In short, the issue has been pre-empted by that court. To allow the respondent Committee to conduct its own investigation of an issue already before the Sandiganbayan would not only pose the possibility of conflicting judgments between a legislative committee and a judicial tribunal, but if the Committee’s judgment were to be reached before that of the Sandiganbayan, the possibility of its influence being made to bear on the ultimate judgment of the Sandiganbayan can not be discounted.

In fine, for the respondent Committee to probe and inquire into the same justiciable controversy already before the Sandiganbayan, would be an encroachment into the exclusive domain of judicial jurisdiction that had much earlier set in. (Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767, Nov. 20, 1991, En Banc [Padilla])

May the Supreme Court properly inquire into the motives of the lawmakers in conducting legislative investigations? Can it enjoin the Congress or any of its regular and special committees from making inquiries in aid of legislation?

Held: In its comment, respondent Committee claims that this Court cannot properly inquire into the motives of the lawmakers in conducting legislative investigations, much less can it enjoin the Congress or any of its regular and special committees x x x from making inquiries in aid of legislation, under the doctrine of separation of powers, which obtains in our present system of government.

The contention is untenable. X x x

The “allocation of constitutional boundaries” is a task that this Court must perform under the Constitution. Moreover, as held in a recent case (Neptali A. Gonzales, et al. v. Hon. Catalino Macaraig, Jr., et al., G.R. No. 87636, 19 November 1990, 191 SCRA 452, 463), “[t]he political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with the applicability of the principle in appropriate cases.” (Section 1, Article VIII of the 1987 Constitution)

The Court is thus of the considered view that it has jurisdiction over the present controversy for the purpose of determining the scope and extent of the power of the Senate Blue Ribbon Committee to conduct inquires into private affairs in purported aid of legislation. (Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767, Nov. 20, 1991, En Banc [Padilla])

Standard Chartered Bank vs. Senate Committee on Banks 2007On February 1, 2005, Senator Juan Ponce Enrile, Vice Chairperson of respondent, delivered a privilege speech entitled “Arrogance of Wealth” before the Senate based on a letter from Atty. Mark R. Bocobo denouncing SCB-Philippines for selling unregistered foreign securities in violation of the Securities Regulation Code (R.A. No. 8799) and urging the Senate to immediately conduct an inquiry, in aid of legislation, to prevent the occurrence of a similar fraudulent activity in the future. Upon motion of Senator Francis Pangilinan, the speech was referred to respondent.

HELD: The unmistakable objective of the investigation, as set forth in the said resolution, exposes the error in petitioners’ 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 x x x.” This fallacy is made more glaring when we consider that, at the conclusion of his privilege speech, Senator Enrile 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.” Indeed, the mere filing of a criminal or an administrative complaint before a court or a quasi-judicial body should not automatically bar the conduct of legislative investigation. Otherwise, it would be extremely easy to subvert any intended inquiry by Congress through the convenient ploy of instituting a criminal or an administrative complaint. Surely, the exercise of sovereign legislative authority, of which the power of legislative inquiry is an essential component, cannot be made subordinate to a criminal or an administrative investigation.

The court may validly inquire into whether the inquiry is an inquiry in aid of legislation, whether the procedures in the inquiring body were followed or whether the rights of the persons invited therein are respected.

LEGISLATIVE CONTEMPT IN RELATION TO INQUIRIES IN AID OF LEGISLATIONPower of legislative contempt – correlated concept in inquiry in aid of legislation; refusal to appear or refusal to cooperate.

Arnault vs. NazarenoIntrinsic in the grant of the powers of the congress in the constitution is a grant of power of investigation in aid of legislation with the process to enforce it via legislative contempt power.

What is the nature of power to contempt?It is judicial in nature. It is in fact an inherent power of the court, with legislative contempt by way of exception.

How long can a person be held for contempt?“You hold the key to your freedom.” (Arnault vs. Nazareno)

May absolute pardon be granted by the president to a person held in legislative contempt?No. This is an important limitation of the power of the president to grant pardon. To do so would violate the separation of powers.

THE POWER OF INQUIRY VS. THE EXECUTIVE PRIVILEGESenate vs. Ermita EO 464 vs. Inquiry in aid of legislation vs. Question hour

The power of inquiry [inquiry in aid of legislation] of Congress is expressly recognized in Section 21 of Article VI of the Constitution. An exemption to such Congressional power falls under the rubric “executive privilege” which is also a constitutional concept. Executive privilege, however, is recognized only in relation to certain types of information of a sensitive character. The validity of a claim thereof depends on the ground invoked to justify it and the context in which it is made. Executive officials are NOT exempt from the duty to disclose information by the mere fact of being executive officials .

Right to InformationPetitioners are not amiss in claiming that what is involved in the present controversy is not merely the legislative power of inquiry, but the right of the people to information.

There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of the people to information on matters of public concern. Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information.

To the extent that investigations in aid of legislation are generally conducted in public, however, 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. The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress” opinions which they can then communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression.

The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense explained above, just as direct as its violation of the legislature’s power of inquiry.

Non-appearance under E.O. 464 not proper. Non-cooperation will undermine investigative power of the Senate. Non-cooperation will also violate the right of the people under Section 7 of the Bill of Rights under the right to information

They must invoke only the right to executive privilege in certain instances.

Varieties of Executive Privileges:1. State secret privilege2. Informer’s privilege3. Generic privilege for internal deliberations

State secret privilege – information of such nature that revelation would subvert crucial military and diplomatic objectives

This is the ground often invoked. It must be expressly claimed and asserted by the President.

Informer’s privilege - the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law.

Generic privilege for internal deliberations - has been said to attach to intra-governmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.

Senate vs. Ermita (Executive Privilege, what can be invoked)Executive privilege is, nonetheless, not a clear or unitary concept. It has encompassed claims of varying kinds. Tribe, in fact, comments that while it is customary to employ the phrase "executive privilege," it may be more accurate to speak of executive privileges "since presidential refusals to furnish information may be actuated by any of at least three distinct kinds of considerations, and may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations."

One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents, beginning with Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives. Another variety is the informer’s privilege, or the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.

The Constitution espouses transparency and the right of the people to be informed of all matters of public concern. An executive privilege is merely an exception. There must be no blanket invocation of an executive privilege. It cannot attach to the person. It attaches to the kind of information that is being asked by the Congress.

Appearance during investigation in aid of legislation is mandatory unless there is a valid claim of privilege by the President or Executive Secretary. However, if what is involved is the question hour, they may validly refuse to appear without consent of the President by invoking executive privilege. Appearance is not mandatory.

“Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of legislation. Congress is not bound in such instances to respect the refusal of the department head to appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the President herself or by the Executive Secretary.”

Note: Only the President and the Executive Secretary acting under the authority of the President can refuse to attend an investigation in aid of legislation.

In a democratic and republican state, the general rule is disclosure of information, not secrecy (TRANSPARENCY), as it is provided for in the Constitution. Executive privilege is only an exception. There can be no BLANKET privilege. The privilege only attaches not to the person or office, but only to the information being asked by Congress.

Art. II Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

Art. III Section 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

Note: Sec. 21 Art VI – Inquiries in aid of legislationSec. 22 Art. VI – Question HourThere was separation of these 2 powers specifically to delineate the differences between the two. Question hour is a borrowed concept from a parliamentary form of government. Appearance there is not mandatory.

Art. VI, Section 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in, or affected by, such inquiries shall be respected.

Art. VI, Section 22. The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

HOW A BILL BECOMES A LAWSec. 24 Art. VI – Bills exclusively originating in the House of Representatives: (APRIL)~Appropriations Bill~Private Bill~Revenue or Tariff Bill~Increase in public debts~Local application bills

Art. VI, Section 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills, shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments.

Tolentino vs. Sec. Finance E-VATAlthough revenue bills should originate in the HR, the Senate has the power to propose or concur with amendments, which includes amendments by substitution.

From the BCC, the bill will have to be sent back to both houses, and in both houses, it will now be subjected to votation. If the yes prevails over the nays, it is then that the Senate President and House Speaker shall sign it, and then send it to the President for signing or veto.

HELD: This argument will not bear analysis. To begin with, it is not the law - but the revenue bill - which is required by the Constitution to “originate exclusively” in the House of Representatives. It is important to emphasize this, because a bill originating in the House may undergo such extensive changes in the Senate that the result may be a rewriting of the whole. The possibility of a third version by the conference committee will be discussed later. At this point, what is important to note is that, as a result of the Senate action, a distinct bill may be produced. To insist that a revenue statute - and not only the bill which initiated the legislative process culminating in the enactment of the law - must substantially be the same as the House bill would be to deny the Senate's power not only to “concur with amendments” but also to “propose amendments.” It 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.

The contention that the constitutional design is to limit the Senate's power in respect of revenue bills in order to compensate for the grant to the Senate of the treaty-ratifying power (Art. VII, Sec. 21) and thereby equalize its powers and those of the House overlooks the fact that the powers being compared are different. We are dealing here with the legislative power which under the Constitution is vested not only in any particular chamber but in the Congress of the Philippines, consisting of “a Senate and a House of Representatives.” (Art. VI, Sec. 1) The exercise of the treaty-ratifying power is not the exercise of legislative power. It is the exercise of a check on the executive power. There is, therefore, no justification for comparing the legislative powers of the House and of the Senate on the basis of the possession of a similar non-legislative power by the Senate. The possession of a similar power by the U.S. Senate has never been thought of as giving it more legislative powers than the House of Representatives.

X x x Given, then, the power of the Senate to propose amendments, the Senate can propose its own version even with respect to bills which are required by the Constitution to originate in the House.

It is insisted, however, that S. No. 1630 was passed not in substitution of H. No. 11197 but of another Senate bill (S. No. 1129) earlier filed and that what the Senate did was merely to “take (H. No. 11197) into consideration” in enacting S. No. 1630. There is really no difference between the Senate preserving H. No. 11197 up to the enacting clause and then writing its own version following the enacting clause (which, it would seem, petitioners admit is an amendment by substitution), and, on the other hand, separately presenting a bill of its own on the same subject matter. In either case the result are two bills on the same subject.

Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff, or tax bills, bills authorizing an increase of the public debt, private bills and bills of local application must come from the House of Representatives on the theory that, elected as they are from the districts, the members of the House can be expected to be more sensitive to the local needs and problems. On the other hand, the senators, who are elected at large, are expected to approach the same problems from the national perspective. Both views are thereby made to bear on the enactment of such laws.

Nor does the Constitution prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House, so long as action by the Senate as a body is withheld pending receipt of the House bill. The Court cannot, therefore, understand the alarm expressed over the fact that on March 1, 1993, eight months before the House passed H. No. 11197, S. No. 1129 had been filed in the Senate. After all it does not appear that the Senate ever considered it. It was only after the Senate had received H. No. 11197 on November 23, 1993 that the process of legislation in respect of it began with the referral to the Senate Committee on Ways and Means of H. No. 11197 and the submission by the Committee on February 7, 1994 of S. No. 1630. For that matter, if the question were simply the priority in the time of filing of bills, the fact is that it was in the House that a bill (H. No. 253) to amend the VAT law was first filed on July 22, 1992. Several other bills had been filed in the House before S. No. 1129 was filed in the Senate, and H. No. 11197 was only a substitute of those earlier bills. (Tolentino v. Secretary of Finance, 235 SCRA 630, 661-663, Aug. 25, 1994, En Banc [Mendoza])

Section 26, Art. VISection 26. (1) Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. (One Subject – One Title Rule)

(2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal. (3 Readings on Separate Days Rule)

One Subject – One Title Rule – intended to prevent Riders in the bill.

Q: What is the so called one bill one subject rule? ‐ ‐A: 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.

Note: The purpose of such rule is (1) to prevent hodgepodge or log rolling legislation, (2) to prevent surprise or fraud upon ‐the legislature, and to fairly appraise the people. (Central Capiz v. Ramirez, G.R. No. 16197, March 12, 1920)

Rider – a provision totally unrelated in the subject matter, and may be subject of a separate bill in itself.

Liberal Interpretation Rule – the title of the bill need not be a catalogue or an index thereof.Ex. The title of the Bill is The New Civil Code of the Philippines.Did it comply with the one-subject one-title rule?It did.

Exception to the 3-reading requirement:“except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency “It need not even comply with the provision of copies to all members of Congress.

What constitutes a public calamity or emergency that will justify the enactment of an emergency bill is a political question which the courts cannot take cognizance.

Bicameral Conference Committee - a mechanism for compromising differences between the Senate and Congress

It still exists in such time as another BCC convenes until another bill is crafted a version that will be acceptable to both houses.

From BCC, the bill is sent back to both houses. Only one reading will be had for votation. If the yeas prevail over the nays, it is signed by the Speaker and Senate President, certified by the secretaries of both houses and is transmitted to the President for his signature.

If during the votation, the nays prevails over the yes, is the bill “killed”?No. The bill still exists and may be taken up in another BCC until such time a version of the bill is crafted that will be acceptable to both houses.

Enrolled Bill DoctrineDiscuss the Enrolled Bill Doctrine.Once the bill is an enrolled bill, it becomes conclusive as to the courts as to its due enactment. Courts cannot validly inquire into the bill as to whether it was duly enacted.

Held: Under the enrolled bill doctrine, the signing of H. Bill No. 7189 by the Speaker of the House and the President of the Senate and the certification by the secretaries of both Houses of Congress that it was passed on November 21, 1996 are conclusive of its due enactment. x x x To be sure, there is no claim either here or in the decision in the EVAT cases (Tolentino v. Secretary of Finance) that the enrolled bill embodies a conclusive presumption. In one case (Astorga v.

Villegas, 56 SCRA 714 [1974]) we “went behind” an enrolled bill and consulted the Journal to determine whether certain provisions of a statute had been approved by the Senate.

But, where, as here, there is no evidence to the contrary, this Court will respect the certification of the presiding officers of both Houses that a bill has been duly passed . Under this rule, this Court has refused to determine claims that the three-fourths vote needed to pass a proposed amendment to the Constitution had not been obtained, because “a duly authenticated bill or resolution imports absolute verity and is binding on the courts.”xxx

This Court has refused to even look into allegations that the enrolled bill sent to the President contained provisions which had been “surreptitiously” inserted in the conference committee x x x. (Tolentino v. Secretary of Finance)

Why is this so?This is because of the doctrine of separation of powers. The bill is presumed to have undergone the regular legislative process. Courts should give due respect to the signatures appearing therein.

In other cases, this Court has denied claims that the tenor of a bill was otherwise than as certified by the presiding officers of both Houses of Congress.

The enrolled bill doctrine, as a rule of evidence, is well-established. It is cited with approval by text writers here and abroad. The enrolled bill rule rests on the following considerations:

X x x. As the President has no authority to approve a bill not passed by Congress, an enrolled Act in the custody of the Secretary of State, and having the official attestations of the Speaker of the House of Representatives, of the President of the Senate, and of the President of the United States, carries, on its face, a solemn assurance by the legislative and executive departments of the government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by Congress. The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed Congress, all bills authenticated in the manner stated; leaving the court to determine, when the question properly arises, whether the Act, so authenticated, is in conformity with the Constitution. (Marshall Field & Co. v. Clark, 143 U.S. 649, 672, 36 L. Ed. 294, 303 [1891])

Between the journal and the enrolled bill, the enrolled bill must prevail. Exception would be those matters that are required to be entered under the journal. (Arroyo vs. De Venecia)

To overrule the doctrine now, x x x is to repudiate the massive teaching of our cases and overthrow an established rule of evidence. (Arroyo v. De Venecia, 277 SCRA 268, Aug. 14, 1997 [Mendoza])

When should the Legislative Journal be regarded as conclusive upon the courts, and why?Held: The Journal is regarded as conclusive with respect to matters that are required by the Constitution to be recorded therein. With respect to other matters, in the absence of evidence to the contrary, the Journals have also been accorded conclusive effects. Thus, in United States v. Pons (34 Phil. 729, 735 [1916]], quoting ex rel. Herron v. Smith, 44 Ohio 348 [1886]), this Court spoke of the imperatives of public policy for regarding the Journals as “public memorials of the most permanent character,” thus: “They should be public, because all are required to conform to them; they should be permanent, that rights acquired today upon the faith of what has been declared to be law shall not be destroyed tomorrow, or at some remote period of time, by facts resting only in the memory of individuals.” X x x. (Arroyo v. De Venecia, 277 SCRA 268, 298-299, Aug. 14, 1997 [Mendoza])

What matters are required to be entered on the Journal? (These are conclusive upon the courts.)Held: 1) The yeas and nays on the third and final reading of a bill (Art. VI, Sec. 26[2]);2) The yeas and nays on any question, at the request of one-fifth of the members present (Id., Sec. 16[4]);3) The yeas and nays upon re-passing a bill over the President’s veto (Id., Sec. 27[1]); and4) The President’s objection to a bill he had vetoed (Id.). (Arroyo vs. De Venecia)

Rule of Presentment of Bills to the President

Options of the President:1. Sign the bill into a law2. Vetoes a bill, the bill does not become a law, he sends it back to the house with his objections3. Presidential inaction – the bill automatically becomes a law

Art. VI, Section 27(1) Last sentence: The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof, otherwise, it shall become a law as if he had signed it.

What is a pocket veto?A bill was passed to the president for signing before the end of session. The president failed to act on that bill up to the end of the session, and thus the bill does not become a law. The bill is deemed ‘pocketed’ by the president. (This is not applicable in RP.)

2 kinds of Presidential Veto:1. General veto2. Item veto

As a rule, the president cannot veto a part of a bill without vetoing the entire bill itself.

Art. VI, Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof, otherwise, it shall become a law as if he had signed it.

Executive must veto a bill in its entirety or not at all. He or she cannot act like an editor crossing out specific lines, provisions, or paragraphs in a bill that he or she dislikes. In the exercise of the veto power, it is generally all or nothing. (Bengson vs Drilon.)

Bengzon v. DrilonThe OSG is correct when it states that the Executive must veto a bill in its entirety or not at all. He or she cannot act like an editor crossing out specific lines, provisions, or paragraphs in a bill that he or she dislikes. In the exercise of the veto power, it is generally all or nothing. However, when it comes to appropriation, revenue or tariff bills, the Administration needs the money to run the machinery of government and it cannot veto the entire bill even if it may contain objectionable features. The President is, therefore, compelled to approve into law the entire bill, including its undesirable parts. It is for this reason that the Constitution has wisely provided the "item veto power" to avoid inexpedient riders being attached to an indispensable appropriation or revenue measure.

ITEM OR LINE VETO POWER OF THE PRESIDENTThe Constitution provides that only a particular item or items may be vetoed. The power to disapprove any item or items in an appropriate bill does not grant the authority to veto a part of an item and to approve the remaining portion of the same item. (Gonzales v. Macaraig, Jr., 191 SCRA 452, 464 [1990])

Appropriation, Revenue and Tariff Bills – can be subject to item veto.Section 27 (2) Art. VI(2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.

Distinguish an “item” from a “provision” in relation to the veto power of the President.

An item in a bill refers to the particulars, the details, the distinct and severable parts. (“that an item” of an appropriation bill obviously means an item which in itself is a specific appropriation of money, not some general provision of law)

Held: The terms item and provision in budgetary legislation and practice are concededly different. An item in a bill refers to the particulars, the details, the distinct and severable parts x x x of the bill (Bengzon, supra, at 916). It is an indivisible sum of money dedicated to a stated purpose (Commonwealth v. Dodson, 11 S.E., 2d 120, 124, 125, etc., 176 Va. 281). The United States Supreme Court, in the case of Bengzon v. Secretary of Justice (299 U.S. 410, 414, 57 Ct 252, 81 L. Ed., 312) declared “that an item” of an appropriation bill obviously means 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. (Bengzon v. Drilon, 208 SCRA 133, 143-145, April 15, 1992, En Banc [Gutierrez])

DOCTRINE OF INAPPROPRIATE PROVISIONInappropriate provisions can be treated as items and therefore can be vetoed validly by the president. Inappropriate provisions must be struck down because they contravene the constitution because it limits the power of the executive to augment appropriations.

Gonzales v. Macaraig, Jr. 1990GR 87636 -EN BANC

Facts:December 16, 1988 Congress passed House Bill No. 19186 (GAB of Fiscal Year 1989) which eliminated or decreased certain items included in the proposed budget submitted by the president

December 29, 1988 - President signed bill into law (RA 6688) but vetoed 7 special provisions and Sec 55, a general provision.

February 2, 1989 Senate passed Res. No. 381 - Senate as an institution decided to contest the constitutionality of the veto of the president of SEC 55 only.

April 11, 1989 this petition was filed

January 19, 1990 filed motion for leave to file and to admit supplemental petition - same issues but included SEC 16 of House Bill 26934 (Gab for FY 1990 or RA 6831)

SEC. 55 disallows the president and heads of several department to augment any item in the GAB thereby violation CONSTI ART VI SEC 25 (5) (page 459)

SEC 16 of the GAB of 1990 provides for the same and the reason for veto remains the same with the additional legal basis of violation of PD 1177 SEC 44 and 45 as amended by RA 6670 that authorizes the president and the heads of depts. To use saving to augment any item of appropriations in the exec branch of government (page 460)

ISSUE:Whether or not the veto by the President of SEC 55 of GAB for FY 1989 and SEC 16 of GAB for FY 1990 is unconstitutional.

HELD:The veto is CONSTITUTIONAL. Although the petitioners contend that the veto exceeded the mandate of the line-veto power of the president because SEC 55 and SEC 16 are provisions, the court held that inappropriate provisions can be treated as items (Henry v. Edwards) and therefore can be vetoed validly by the president . Furthermore inappropriate provisions must be struck down because they contravene the constitution because it limits the power of the executive to augment appropriations (ART VI SEC 25 PAR 5.)

Art. VI, Section 25 (2). No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates.

Art. VI, Section 25 (5). No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the

heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.

The ‘provisions’ are inappropriate because They do not relate to particular or distinctive appropriations Disapproved or reduces items are nowhere to be found on the face of the bill It is more of an expression of policy than an appropriation

Court also said that to make the GAB veto-proof would be logrolling on the part of the legislative - the subject matter of the provisions should be dealt with in separate and complete legislation but because they are aware that it would be NOT passed in that manner they attempt hide it in the GAB

If the legislature really believes that the exercise of veto is really invalid then congress SHOULD resort to their constitutionally vested power to override the veto. (ART VI SEC 21 PAR 1)

What are the limitations on the veto power of the President?Held: The act of the Executive in vetoing the particular provisions is an exercise of a constitutionally vested power.

But even as the Constitution grants the power, it also provides limitations to its exercise. The veto power is not absolute.

X x x

The OSG is correct when it states that the Executive must veto a bill in its entirety or not at all. He or she cannot act like an editor crossing out specific lines, provisions, or paragraphs in a bill that he or she dislikes. In the exercise of the veto power, it is generally all or nothing. However, when it comes to appropriation, revenue or tariff bills, the Administration needs the money to run the machinery of government and it can not veto the entire bill even if it may contain objectionable features. The President is, therefore, compelled to approve into law the entire bill, including its undesirable parts. It is for this reason that the Constitution has wisely provided the “item veto power” to avoid inexpedient riders being attached to an indispensable appropriation or revenue measure.

The Constitution provides that only a particular item or items may be vetoed. The power to disapprove any item or items in an appropriate bill does not grant the authority to veto a part of an item and to approve the remaining portion of the same item. (Gonzales v. Macaraig, Jr., 191 SCRA 452, 464 [1990]) (Bengzon v. Drilon, 208 SCRA 133, 143-145, April 15, 1992, En Banc [Gutierrez])

Again:DOCTRINE OF INAPPROPRIATE PROVISIONInappropriate provisions can be treated as items and therefore can be vetoed validly by the president. Inappropriate provisions must be struck down because they contravene the constitution because it limits the power of the executive to augment appropriations.

LAMP vs. Secretary of Budget and Management April 24, 2012Under the Constitution, the power of appropriation is vested in the Legislature, subject to the requirement that appropriation bills originate exclusively in the House of Representatives with the option of the Senate to propose or concur with amendments.[32] While the budgetary process commences from the proposal submitted by the President to Congress, it is the latter which concludes the exercise by crafting an appropriation act it may deem beneficial to the nation, based on its own judgment, wisdom and purposes. Like any other piece of legislation, the appropriation act may then be susceptible to objection from the branch tasked to implement it, by way of a Presidential veto. Thereafter, budget execution comes under the domain of the Executive branch which deals with the operational aspects of the cycle including the allocation and release of funds earmarked for various projects. Simply put, from the regulation of fund releases, the implementation of payment schedules and up to the actual spending of the funds specified in the law, the Executive takes the wheel. “The DBM lays down the guidelines for the disbursement of the fund. The Members of Congress are then requested by the President to recommend projects and programs which may be funded from the PDAF. The list submitted by the Members of Congress is endorsed by the Speaker of the House of Representatives to the DBM, which reviews and determines whether such list of projects submitted are consistent with the guidelines and the priorities set by the Executive.” This demonstrates the power given to the President to execute appropriation laws and therefore, to exercise the spending per se of the budget.

In Philconsa, the court upheld the authority of individual members of Congress to propose and identify priority projects because this was merely recommendatory in nature and it also recognized that individual members of Congress far more than the President and their congressional colleagues were likely to be knowledgeable about the needs of their respective constituents and the priority to be given each project.

Does the local chief executive have veto power?The governor and mayor, yes. The Barangay Captain does not.

Note: The Punong Barangay is a member of the barangay legislature. How can he veto his own act???Who are persons in authority in a Barangay?Sec. 388. Persons in Authority in their respective territorial jurisdiction (LGC)Barangay CaptainSangguniang Barangay MembersLupon Tagapamayapa Members

In our system of government, the PB is the most powerful person. He is the chief executive of the barangay, he presides over the sessions of the sangguniang barangay, he is the chairman of the lupon. Therefore, he exercises the 3 powers of the government. He is a person in authority, whereas a policeman is a mere agent of a person in authority.

Section 55(a) LGC. Veto Power of the Local Chief Executive.The 2 Grounds of vetoing an ordinance:1. ultra vires 2. prejudicial to the public welfare

Section 55(b) LGCLine Veto of local chief executives:1. appropriations ordinance2. an ordinance or resolution adopting a local development plan or public investment program,3. an ordinance directing the payment of money or creating liabilityCorrelate with the Veto Power of the President

Executive ImpoundmentDEFINITION: This refers to a refusal by the President, for whatever reason, to spend funds made available by Congress. It is the failure to spend or obligate budget authority of any type

For the sake of correlation:Q: What is a Heckler’s Veto?A: A heckler's veto occurs when an acting party's right to freedom of speech is curtailed or restricted by the government in order to prevent a reacting party's behavior. The term Heckler’s Veto was coined by University of Chicago professor of law Harry Kalven.

It may be in the guise of a permit requirement in the holding of rallies, parades, or demonstrations conditioned on the payment of a fee computed on the basis of the cost needed to keep order in view of the expected opposition by persons holding contrary views. (Gorospe, 2006, citing Forsyth County v. Nationalist Movement, 315 U.S. 568, 1942)

ARTICLE VII EXECUTIVE DEPARTMENTSection 1. The executive power shall be vested in the President of the Philippines.

Faithful Execution ClauseSec. 17 2nd Sentence Art. VII

Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.

The President has so many functions that he cannot do them himself. This is why he has a cabinet.

Alter-ego doctrine – doctrine of qualified political agencyThe members of the cabinet are deemed to be the alter-ego of the president. Acts and decisions of these are considered acts of the president unless reprobated by the president.

Section 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date, six years thereafter. The President shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.

No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected.

Unless otherwise provided by law, the regular election for President and Vice-President shall be held on the second Monday of May.

The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.

The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately.

The Congress shall promulgate its rules for the canvassing of the certificates.

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose.

Why was GMA able to run again?The President shall not be eligible for any re-election. 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.

Section 3. There shall be a Vice-President who shall have the same qualifications and term of office and be elected with, and in the same manner, as the President. He may be removed from office in the same manner as the President.

The Vice-President may be appointed as a Member of the Cabinet. Such appointment requires no confirmation.

Vacancy In The Office of the President (DPRR)~death, ~permanent disability, ~removal from office, or ~resignation

Art. VII, Section 8. In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice-President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified.

Specific powers of the president:List of the Powers of the President: ART. VII Section 16-23 and others1. Appointing power – Section 162. Control power – Section 17, note the President exercises general supervision under Sec. 4 Art. X with respect to local governments. The Constitution guarantees local autonomy, thus the President cannot exercise control over LGUs.3. Section 18: Calling out power as CINC of the all the AFs4. Section 18: Martial law power5. Section 18: Power to suspend the writ of habeas corpus6. Section 19: Reprieves7. Section 19: Commutations8. Section 19: Pardons9. Section 19: Remit fines and forfeitures, and 10. Section 19: Amnesty11. Borrowing power – Section 20 12. Treaty-making power – Section 2113. Budgetary power – Section 2214: Informing power – Section 23 - SONA – Every 4th Monday of July15. Veto Power – Art.VI Section 2716. General supervision over LGUs – Art. X Section 417. Call Congress to a special session – Art. VI Section 15 last sentence18. Unstated residual powers – Marcos vs. Manglapus

Reprieve – suspension of execution of a death convictProbation – suspension of the penalty

Marcos vs. Manglapus (Attempted return of Marcoses)Contrary to petitioners' view, it cannot be denied that the President, upon whom executive power is vested, has unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific power of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the general grant of executive power.

APPOINTING POWERArt. VII, Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproved by the Commission on Appointments or until the next adjournment of the Congress. (Ad-interim appointment)

Regular Appointment - appointments made by the president for the time being the Congress is in session.

Ad-interim appointment – appointments made by the president for the time being the Congress is on recess, whether voluntary or compulsory.

Officer to be subject for appointment by the President:

heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution

State the reason why not all appointments made by the President under the 1987 Constitution will no longer require confirmation by the Commission on Appointments.

Held: The aforecited provision (Section 16, Article VII) of the Constitution has been the subject of several cases on the issue of the restrictive function of the Commission on Appointments with respect to the appointing power of the President. This Court touched upon the historical antecedent of the said provision in the case of Sarmiento III v. Mison (156 SCRA 549) in which it was ratiocinated upon that Section 16 of Article VII of the 1987 Constitution requiring confirmation by the Commission on Appointments of certain appointments issued by the President contemplates a system of checks and balances between the executive and legislative branches of government. Experience showed that when almost all presidential appointments required the consent of the Commission on Appointments, as was the case under the 1935 Constitution, the commission became a venue of "horse trading" and similar malpractices. On the other hand, placing absolute power to make appointments in the President with hardly any check by the legislature, as what happened under the 1973 Constitution, leads to abuse of such power. Thus was perceived the need to establish a "middle ground" between the 1935 and 1973 Constitutions. The framers of the 1987 Constitution deemed it imperative to subject certain high positions in the government to the power of confirmation of the Commission on Appointments and to allow other positions within the exclusive appointing power of the President. (Manalo v. Sistoza, 312 SCRA 239, Aug. 11, 1999, En Banc [Purisima])

Will all appointments made by the President require confirmation by CoA?Under the 1987 Constitution, no. Sarmiento vs. Mison

Enumerate the groups of officers who are to be appointed by the President under Section 16, Article VII of the 1987 Constitution, and identify those officers whose appointments shall require confirmation by the Commission on Appointments.

Held: Conformably, as consistently interpreted and ruled in the leading case of Sarmiento III v. Mison (Ibid.), and in the subsequent cases of Bautista v. Salonga (172 SCRA 160), Quintos-Deles v. Constitutional Commission (177 SCRA 259), and Calderon v. Carale (208 SCRA 254), under Section 16, Article VII, of the Constitution, there are four groups of officers of the government to be appointed by the President:

First, the 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 whose appointments are vested in him in this Constitution;

Second, all other officers of the Government whose appointments are not otherwise provided for by law;

Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone.

It is well-settled that only presidential appointees belonging to the first group require the confirmation by the Commission on Appointments. (Manalo v. Sistoza, 312 SCRA 239, Aug. 11, 1999, En Banc [Purisima])

heads of the executive departments – cabinet secretaries, require confirmationException – Section 3 2nd Paragraph Art. VII – VP can be appointed as secretary, no need to go through CoA.

Who needs to go through CoA?1. heads of the executive departments,2. ambassadors, other public ministers and consuls, 3. officers of the armed forces from the rank of colonel or naval captain, and 4. other officers whose appointments are vested in the President in this Constitution

*officers of the armed forces from the rank of colonel or naval captain – policemen of equivalent rank is not included in this list. (Manalo vs. Sistoza.) The PNP is no longer part of the armed forces. It is a civilian agency of the government placed under a civilian department, the DILG. See Section 6, Art. XVI.

Under Republic Act 6975 (the DILG Act of 1990), the Director General, Deputy Director General, and other top officials of the Philippine National Police (PNP) shall be appointed by the President and their appointments shall require confirmation by the Commission on Appointments. Respondent Sistoza was appointed Director General of the PNP but he refused to submit his appointment papers to the Commission on Appointments for confirmation contending that his appointment shall no longer require confirmation despite the express provision of the law requiring such confirmation. Should his contention be upheld?

Held: It is well-settled that only presidential appointees belonging to the first group (enumerated under the first sentence of Section 16, Article VII of the 1987 Constitution) require the confirmation by the Commission on Appointments. The appointments of respondent officers who are not within the first category, need not be confirmed by the Commission on Appointments. As held in the case of Tarrosa v. Singson (232 SCRA 553), Congress cannot by law expand the power of confirmation of the Commission on Appointments and require confirmation of appointments of other government officials not mentioned in the first sentence of Section 16 of Article VII of the 1987 Constitution.

Consequently, unconstitutional are Sections 26 and 31 of Republic Act 6975 which empower the Commission on Appointments to confirm the appointments of public officials whose appointments are not required by the Constitution to be confirmed. x x x. (Manalo v. Sistoza, 312 SCRA 239, Aug. 11, 1999, En Banc [Purisima])

*other officers whose appointments are vested in him in this Constitution~Civil Service Commission, COMELEC, Commission on Audit~JBC regular members

Who are Members of the JBC, and who among them are to be appointed by the President?JBC Ex-Officio Chairman – Chief JusticeA member of Congress (whether a senator or congressman, it is up to the president)Secretary of JusticeClerk of the SC – Ex-Officio SecretaryMembers of the JBC to be appointed by the President:~Retired Justice~Representative of the IBP, a member of the Philippine Bar~Law Professor~Civilian

Term of the regular members: 4 years

Judges and justices are appointed by the President, but not subject to the Commission on Appointments, as the JBC shall be the one responsible for screening the appointees.

Other Appointments that the President may make:The President may appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

Do appointment of Justices and Judges require confirmation by CoA?Under the 1987 Constitution, no more. They are removed from the confirming power of the legislature. The JBC has jurisdiction. Judges, justices and ombudsman.

Calderon vs. Carale/Manalo vs. Sistoza – The list requiring CoA confirmation is EXCLUSIVE. Congress cannot add or deduct from such list. Congress cannot validly amend the Constitution by mere legislative amendment.

Calderon vs. CaraleRA 6175 – Amending Labor Code and Reorganizing the NLRCUnder RA 6175, the Chairman and Commissioners of the NLRC will require appointment of the president and need to undergo CoA confirmation. This was held by SC as unconstitutional. The list is exclusive. The Constitution cannot be amended by mere legislative act.

Manalo vs. SistozaRA 6975 – DILG Act, creating the PNPUnder the DILG Act, PNP officers shall be appointed by the President and require CoA confirmation. This was held by SC as unconstitutional. The list is exclusive. The Constitution cannot be amended by mere legislative act.

AD-INTERIM APPOINTMENTArt. VII Sec. 16. 2nd Paragraph : The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproved by the Commission on Appointments or until the next adjournment of the Congress.

What is the real distinction between a regular and an ad interim appointment?The distinction between Ad-Interim vs Regular appointment is that the appointee in an ad-interim appointment takes effect immediately, subject to subsequent confirmation by CoA. In Regular Appointment, the appointee will have to wait after his appointment is confirmed by CoA. In actuality, in an ad interim appointment, the president merely appoints, and is thus subject to confirmation of CoA. In a regular appointment, the CoA subjects the appointee to its review before confirming the appointment.

Congressman Mar Roxas was appointed DTI Secretary. He waited until he was confirmed before assuming office. Is this allowed? Why?Yes. This is because Roxas cannot assume both offices, their being incompatible offices, he can choose to wait until confirmation. The risk if he assumed office immediately an ad-interim appointment is that he must first vacate his office as congressman before he assumes office as DTI secretary. Once vacated, he can never be allowed to return to his former elective post in case he loses the appointed post to any cause. Thus, if in case he accepted the ad-interim appointment, and subsequently, CoA did not confirm him, he must now vacate the office to which he was appointed to. (This is a sign of political maturity.)

Discuss the nature of an ad-interim appointment. Is it temporary and, therefore, can be can be withdrawn or revoked by the President at her pleasure? (See Summers vs. Ozaeta and Matibag vs. Benipayo)

Held: An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of congress. The second paragraph of Section 16, Article VII of the Constitution provides as follows:

“The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.”

Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it can no longer be withdrawn or revoked by the President. The fear that the President can withdraw or revoke at any time and for any reason an ad interim appointment is utterly without basis.

More than half a century ago, this Court had already ruled that an ad interim appointment is permanent in character. In Summers v. Ozaeta (81 Phil. 754 [1948]), decided on October 25, 1948, we held that:

“x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of the Constitution, which provides that the ‘President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.’ It is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired. Said appointment is of course distinguishable from an ‘acting’ appointment which is merely temporary, good until another permanent appointment is issued.”

The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad interim appointment takes effect immediately. The appointee can at once assume office and exercise, as a de jure officer, all the powers pertaining to the office. In Pacete v. Secretary of the Commission on Appointments (40 SCRA 58 [1971]), this Court elaborated on the nature of an ad interim appointment as follows:

“A distinction is thus made between the exercise of such presidential prerogative requiring confirmation by the Commission on Appointments when Congress is in session and when it is in recess. In the former, the President nominates, and only upon the consent of the Commission on Appointments may the person thus named assume office. It is not so with reference to ad interim appointments. It takes effect at once. The individual chosen may thus qualify and perform his function without loss of time. His title to such office is complete. In the language of the Constitution, the appointment is effective ‘until disapproval by the Commission on Appointments or until the next adjournment of the Congress.’”

If ad interim appointment is disapproved by CoA, it is an actual judgment of the merits on the appointee’s qualification.If simply by-passed by CoA due to lack of time, he can be validly re-appointed by the President as there was no exercise of the CoA’s checking functions.

Marahombsar vs. CAAn ad-interim appointment is not descriptive of the appointment, whether acting or temporary. It only denotes the manner the appointment was made.

AD INTERIM VS. ACTING CAPACITY (Distinctions)Pimintel vs. Ermita

Ad Interim Appointment in an acting capacityCan be done only if Congress is on recess Can be done whether Congress is on recess or in sessionPermanent Temporary, until withdrawn by the PresidentRequire confirmation by CoA Do not require CoA confirmation

Significant limitations on the appointing power of the president:1. Prohibition against nepotism. Sec. 13 2nd Paragraph Art. VII – prohibition against appointing his spouse, or any relatives within the 4th civil degree by consanguinity or affinity, to the Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries. Kamaganak, Inc.

The President is prohibited to appoint his spouse or relatives within the 4th civil degree by consanguinity or affinity

The prohibited positions are:~Members of the Constitutional Commissions,~the Office of the Ombudsman, ~Secretaries, ~Undersecretaries, ~chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries

2. Midnight appointees - Section 15 Art. VII - Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

~Only during Presidential elections~Directed to president or acting president

To what types of appointments is Section 15, Article VII of the 1987 Constitution (prohibiting the President from making appointments two months before the next presidential elections and up to the end of his term) directed against?

Held: Section 15, Article VII is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within two months preceding the Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code; while the second consists of the so-called “midnight” appointments. The SC in In Re: Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta, (298 SCRA 408, Nov. 9, 1998, En Banc [Narvasa C.J.]) clarified this when it held:

“Section 15, Article VII has a broader scope than the Aytona ruling (Midnight appointments). It may not unreasonably be deemed to contemplate not only “midnight” appointments – those made obviously for partisan reasons as shown by their number and the time of their making – but also appointments presumed made for the purpose of influencing the outcome of the Presidential election.”

Section 15, Article VII is directed against two types of appointments:(1) those made for buying votes :refers to those appointments made within two months preceding the Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code(2) those made for partisan considerations“midnight” appointments – those made for partisan considerations at the time of their making.

In Re: Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta, (298 SCRA 408, Nov. 9, 1998, En Banc)

Aytona Ruling: An outgoing president is merely a caretaker for the incoming president. He cannot preempt the exercise of the incoming president in the by filling up the vacant office.

What is the test to determine the kind of prohibited appointments?The test is the date the appointment was made:1. If the appointment is made 2 months before the elections, it is an appointment made for buying votes.2. If the appointments is made after the elections until June 30th, it is a midnight appointment.

De Castro vs. JBCThe midnight appointment of Corona was sustained. Appointments in the judiciary are not covered in the articles of Article VII. (but they forgot about Section 15 Art. VII and forgot to abandon In re: Mateo Villanueva, an En Banc ruling)

(Note, May 17, 2010 was the actual time when Chief Justice Puno retires, when the office of the chief justice will be vacant, but the appointment of Corona was appointed, upon the happening of the vacancy, in March 2010.)

Exceptions to the limitations of the President’s appointing power: 1. temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.2. Appointments in the judiciary, especially appointments in the SC. (De Castro vs. JBC, but forgot to rule In Re: Mateo Valenzuela as abandoned.) This is a new development!!!! Abide by the majority ruling. Do not anchor your argument on the dissenting opinion, even if you do not agree with the majority opinion.Why? This is because, appointments in the judiciary is found in Art. VIII, not Art. VII.

Ma. Evelyn S. Abeja was a municipal mayor. She ran for reelection but lost. Before she vacated her office, though, she extended permanent appointments to fourteen new employees of the municipal government. The incoming mayor, upon assuming office, recalled said appointments contending that these were “midnight appointments” and, therefore, prohibited under Sec. 15, Art. VII of the 1987 Constitution. Should the act of the new mayor of recalling said appointments on the aforestated ground be sustained?Held: The records reveal that when the petitioner brought the matter of recalling the appointments of the fourteen (14) private respondents before the CSC, the only reason he cited to justify his action was that these were “midnight appointments” that are forbidden under Article VII, Section 15 of the Constitution. However, the CSC ruled, and correctly so, that the said prohibition applies only to presidential appointments. In truth and in fact, there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure. (De Rama v. Court of Appeals (353 SCRA 94, Feb. 28, 2001, En Banc [Ynares-Santiago])

PRESIDENTIAL POWER OF CONTROLArt. VII Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.

President only exercises general supervision over LGUs. (Sec. 4, Art. X)Why? Local autonomy is guaranteed under the Constitution. (Sec. 25 Art II)

“executive departments, bureaus, and offices”EO 292 – Administrative Code of the PhilippinesAn Executive Department is defined as any of the executive departments created by law in EO 292.

Each department is headed by a cabinet secretary.

Bureau is a principal subdivision of a department. Ex. Under DoF: BIR, BoC

Office is a major functional unit of a department or a bureau. The term will include even the regional offices of the bureau.

Control in administrative law means the power of a superior officer to act directly whenever a power

Q: What is the power of control?

A: Control is 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.

Note: The President’s power over GOCCs comes not from the Constitution, but from statute. Hence, it may be taken away by statute.

The President has full control of all the members of his Cabinet. He may appoint them as he sees fit, shuffle them at pleasure, and replace them in his discretion without any legal inhibition whatever. However, such control is exercisable by the President only over the acts of his subordinates and not necessarily over the subordinate himself. (Ang Angco v.‐ Castillo, G.R. No.L 17169, Nov. 30, 1963)‐

Q: What is the doctrine of qualified political agency or alter ego principle? It means that 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. Secretary of the Interior, G.R. No. L 46570, ‐April 21, 1939)

What are the exceptions to the alter ego doctrine? A: 1. If the acts are disapproved or reprobated by the President; 2. If the President is required to act in person by law or by the Constitution.

Note: In the case of Abakada Guro v. Executive Secretary, G.R. No. 168056, Sept. 1, 2005, the SC held that the Secretary of Finance can act as an agent of the Legislative Dept. to determine and declare the event upon which its expressed will is to take effect. Thus, being the agent of Congress and not of the President, the latter cannot alter, or modify or nullify, or set aside the findings of the Secretary of Finance and to substitute the judgment of the former for that of the latter.

Q: What is the reason for the alter ego doctrine?A: 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.

CONTROL SUPERVISIONAn officer in control lays down the rules in the doing of an act.

The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules.

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.

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, Aug. 4, 1994)

Distinguish the President’s power of general supervision over local governments from his control power.

Held: On many occasions in the past, this Court has had the opportunity to distinguish the power of supervision from the power of control. In Taule v. Santos (200 SCRA 512 [1991]), we held that the Chief Executive wielded no more authority than that of checking whether a local government or the officers thereof perform their duties as provided by statutory enactments. He cannot interfere with local governments provided that the same or its officers act within the scope of their authority. Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body (Ibid.). Officers in control lay down the rules in the doing of an act. If they are not followed, it is discretionary on his part to order the act undone or redone by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. Supervising officers merely see to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done to conform to the prescribed rules. He cannot prescribe his own manner for the doing of the act (Drilon v. Lim, supra, 142). (Bito-Onon v. Fernandez, 350 SCRA 732, Jan. 31, 2001, 3rd Div. [Gonzaga-Reyes])

Art. VII, Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof,

and must promulgate its decision thereon within thirty days from its filing. (This is Lansang vs. Garcia now enshrined in the Constitution)

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus.

The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion.

During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

Powers of the President under Art. VII Sec. 18:1. Calling out powers – suppress lawless violence2. Martial law powers – only in case of invasion and rebellion, when the public safety requires it.3. Suspension of the privilege of the writ of habeas corpus – only in case of invasion and rebellion, when the public safety requires it.

Discuss the three distinct powers of the President under Section 18, Art. VII of the 1987 Constitution. Are they subject to judicial review, or are they political questions?

Ans.: There are three distinct powers of the President under Sec. 18, Art. VII of the Constitution, to wit: 1) her calling out power, as Commander-in-Chief of the Armed Forces; 2) her martial law power; and 3) her power to suspend the privilege of the writ of habeas corpus.

Her martial law power and her power to suspend the privilege of the writ of habeas corpus are subject to judicial review as expressly provided under Sec. 18, Art. VII of the 1987 Constitution because these two are the greater powers, compared with her calling out power, as they involve the curtailment and suppression of certain basic civil rights and individual freedoms (IBP v. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan]).

Her calling out power is a political question and not subject to judicial power as this is the lesser and more benign of the three powers under Sec. 18, Art. VII of the 1987 Constitution (IBP v. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan]). It is a question in regard to which full discretionary authority has been delegated by the Constitution to the President, as their Commander-in-Chief, to call out the armed forces whenever she deems it necessary in order to prevent or suppress lawless violence, invasion, or rebellion. To subject such calling out power to unfettered judicial scrutiny could be a veritable prescription for disaster as such power may be unduly straitjacketed by an injunction or a TRO every time it is exercised.

Unless it can be shown that the exercise of such discretion to call out the armed forces was gravely abused, the President’s exercise of judgment deserves to be accorded respect from the Court. And the burden to show that the President gravely abused her discretion in calling out the armed forces to prevent or suppress lawless violence, invasion, or rebellion, lies with the petitioner.

Calling out power of the President. – the power of the President to call out the armed forces whenever it is necessary to prevent or suppress lawless violence, invasion or rebellion

Grounds for exercise of calling out powersprevent or suppress 1. lawless violence, 2. invasion or 3. rebellion

How come these three powers are found in Article VII Section 18? How can you account the difference in treatment?The reason is this, the martial law power and power to suspend the writ of habeas corpus are the 2 greater powers, as they involve the curtailment and suppression of certain basic civil rights and individual freedoms, necessitating a review by Congress and judiciary. Calling out power involves the use of a lesser power, not curtailing civil rights and individual freedoms.

IBP vs. Zamora

Is the actual use of the armed forces by the President subject to judicial review? A: No. While the suspension of the privilege of the writ of habeas corpus and the proclamation of martial law is subject to judicial review, the actual use by the President of the armed forces is not. Thus, troop deployments in times of war are subject to the President’s judgment and discretion. (IBP v. Zamora, G.R. No. 141284, Aug. 15, 2000)

Are martial law power and the power to suspend privilege of the writ of habeas corpus subject to judicial review?Yes. Her martial law power and her power to suspend the privilege of the writ of habeas corpus are subject to judicial review as expressly provided under the 3rd paragraph of Sec. 18, Art. VII of the 1987 Constitution because these two are the greater powers, compared with her calling out power, as they involve the curtailment and suppression of certain basic civil rights and individual freedoms (IBP v. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan]).

Lansang vs Garcia. SC has the power to review the factual basis of the suspension of the writ of habeas corpus and the proclamation of martial law.(However, less than 3 months later, it was reversed by Enrile vs. Morales, reverting back to the political question doctrine.)

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. (3rd Paragraph Sec. 18, Art. VII 1987 Constitution; The Lansang Doctrine enshrined in the Constitution)

We now have a very limited concept of Martial Law:Significant Limitations of Martial Law and Suspension of the Writ of Habeas Corpus1. Grounds: only in case of invasion and rebellion2. only when the public safety requires it.3. Subject to judicial review4. Limited to 60 days duration with extension5. It may be revoked by Congress6. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President.7. A state of martial law does not suspend the operation of the Constitution,8. It does not supplant the functioning of the civil courts or legislative assemblies, (The Lansang Doctrine now enshrined in the Constitution)9. It does not authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function. (Olaguer Doctrine now enshrined in our Constitution; Civilian authority is supreme over the military.)10. It does not automatically suspend the privilege of the writ of habeas corpus.11. The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion.12. During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.13. Art. III Section 13. Last sentence: The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

Aquino vs. Military Commission – During martial law, the military courts may assume jurisdiction over civilians.

Olaguer Doctrine – even during martial law, civilian courts shall assume jurisdiction among civilians, so long as these courts remain able to function.

Civilians cannot be tried by military courts if the civil courts are open and functioning. (Olaguer v. Military Commission No. 34, G.R. No. L 54558, May 22, 1987).‐

Article VII, Section 18 was written in the blood, sweat and tears of the Marcos victims during Martial Law.

PARDONING POWERSection 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.

What is the scope of the President’s pardoning power? (Forms of executive clemency) A: The President may grant the following: [ Pa R C Re A ] 1. Pardons (conditional or plenary) 2. Reprieves 3. Commutations 4. Remission of fines and forfeitures 5. Amnesty

Note: The first 4 require conviction by final judgment while amnesty does not.

Why is amnesty separate from the other pardoning powers of the president?This is because, the first 4 requires conviction by final judgment. Also, the president need not seek concurrence of majority of all members of the Congress to grant these powers.

Amnesty – conviction by final judgment is not required.

Reprieves, commutations, and pardons, and remit fines and forfeitures – only after final judgment.

Discuss the nature of a conditional pardon. Is its grant or revocation by the President subject to judicial review?

Held: A conditional pardon is in the nature of a contract between the sovereign power or the Chief Executive and the convicted criminal to the effect that the former will release the latter subject to the condition that if he does not comply with the terms of the pardon, he will be recommitted to prison to serve the unexpired portion of the sentence or an additional one (Alvarez v. Director of Prisons, 80 Phil. 50). By the pardonee’s consent to the terms stipulated in this contract, the pardonee has thereby placed himself under the supervision of the Chief Executive or his delegate who is duty-bound to see to it that the pardonee complies with the terms and conditions of the pardon. Under Section 64(i) of the Revised Administrative Code, the Chief Executive is authorized to order “the arrest and re-incarceration of any such person who, in his judgment, shall fail to comply with the condition, or conditions of his pardon, parole, or suspension of sentence.” It is now a well-entrenched rule in this jurisdiction that this exercise of presidential judgment is beyond judicial scrutiny. The determination of the violation of the conditional pardon rests exclusively in the sound judgment of the Chief Executive, and the pardonee, having consented to place his liberty on conditional pardon upon the judgment of the power that has granted it, cannot invoke the aid of the courts, however erroneous the findings may be upon which his recommitment was ordered.

It matters not that the pardonee has allegedly been acquitted in two of the three criminal cases filed against him subsequent to his conditional pardon, and that the third remains pending for thirteen (13) years in apparent violation of his right to a speedy trial.

Ultimately, solely vested in the Chief Executive, who in the first place was the exclusive author of the conditional pardon and of its revocation, is the corollary prerogative to reinstate the pardon if in his own judgment, the acquittal of the pardonee from the subsequent charges filed against him, warrants the same. Courts have no authority to interfere with the grant by the President of a pardon to a convicted criminal. It has been our fortified ruling that a final judicial pronouncement as to the guilt of a pardonee is not a requirement for the President to determine whether or not there has been a breach of the terms of a conditional pardon. There is likewise nil a basis for the courts to effectuate the

reinstatement of a conditional pardon revoked by the President in the exercise of powers undisputably solely and absolutely in his office. (In Re: Wilfredo Sumulong Torres, 251 SCRA 709, Dec. 29, 1995 [Hermosisima])

Pardon, Reprieve, Commutation, Remissions AmnestyPardon is a private act of the president Amnesty is an official act of the presidentIt is not a matter of judicial notice Judicial notice will lieRequires proving in court It will no longer require proof

Matters that need not be proved in court:1. Judicial admissions2. Judicial presumptions3. Those of Judicial notice4. Official acts of the executive, legislative and judiciary

If you had filed an appeal, but you want to be pardoned, what should you do?Pardon procedure:1. Withdraw your appeal2. Apply for pardon

Amnesty – can be given even before final judgment

Can pardon be given to those convicted of an administrative offense or is it available to only those convicted of a crime?Llamas vs. OrbosYes. The Constitution did not distinguish, so the court cannot distinguish. Besides, if persons convicted of serious crimes were pardoned, why not persons only convicted of administrative offenses which do not require proof beyond reasonable doubt?

Clemency is not a function of the judiciary; it is an executive function. The grant is discretionary, and may not be controlled by the legislature or reversed by the court, save only when it contravenes its limitations.

The power to grant clemency includes cases involving administrative penalties.

In granting the power of executive clemency upon the President, Sec. 19, Art. VII of the Constitution does not distinguish between criminal and administrative cases. (If the law does not distinguish, the courts must not distinguish.)

If the President can grant pardons in criminal cases, with more reason he can grant executive clemency in administrative cases, which are less serious. (Llamas v. Orbos, G.R. No. 99031, Oct. 15, 1991)

Effect of the grant of absolute pardonCan there be reinstatement and return of backwages in case of absolute pardon?Monsanto vs. FactoranPardon may mean forgiveness, but not forgetfulness. What was remitted only is the penalty imposed on her, so that she will no longer serve the sentence. In the eyes of the law, she is still a convict. Pardon does not erase the fact, it does not look back, but looks to the future. Unless the grant expressly so provides, she cannot be reinstated. If she wants to, she may re-apply. But her past will be held against her. Thus, she cannot be reinstated, and with more reason she cannot avail of backwages.

Pardon is an act of grace which exempts 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, Feb. 9, 1989)

Note: Because pardon is an act of grace, no legal power can compel the President to give it. Congress has no authority to limit the effects of the President’s pardon, or to exclude from its scope any class of offenders. Courts may not inquire into the wisdom or reasonableness of any pardon granted by the President.

What are the kinds of pardon? What makes them different from each other? A: 1. Absolute pardon one extended without any conditions ‐2. Conditional pardon one under which the convict is required to comply with certain requirements ‐3. Plenary pardon extinguishes all the penalties imposed upon the offender, including accessory disabilities partial pardon‐ does not extinguish all penalties 4. Partial pardon ‐ does not extinguish all the penalties

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, July 23, 1987) ‐

Amnesty – erases the past, creating a clean slate, as if like a new born child. The past is erased. It erases the offense or crime and the penalty.

What is a reprieve?Postponement of the execution of a death convict. (Note that the Death Penalty law is inoperable, but this is a right granted Section 19 Art. II, as Death Penalty may be later re-imposed.)

Probation - Postponement of the sentence.

Commutation – shortening of the sentence.

Pardon is an act of grace which exempts individual on whom it is bestowed from punishment which the law inflicts for a crime he has committed.

Kapunan, Jr. vs. CAWere members of the AFP who took up arms against the state covered by the proclamation # 347, granting a general amnesty by the President?They were deemed included by the wordings of the amnesty proclamation issued by the President.

Significant limitations to the pardoning power of the President:1. It will not apply in cases of impeachment (Sec. 19 Art. VII)2. There must be conviction by final judgment (Sec. 19 Art. VII)3. It will not apply in case of legislative contempt, in view of the doctrine of separation of powers (Art. VI)4. No pardon, amnesty, parole or suspension of sentence for violation of election laws, rules or regulations without favorable recommendation of the COMELEC (Sec. 5 Art. IX[C])5. President cannot pardon judges as this will encroach judicial supervision of the SC under Sec. 11 2nd sentence Art. VIII

Section 20 Art. VIILimitations on the borrowing power of the president:1. prior concurrence of the monetary board2. subject to such limitations as may be provided by law

TREATY-MAKING POWERArt. VII Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.

Who has the power to ratify a treaty?

Held: In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification . (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])

Pimintel vs. Office of the SecretaryThe role of the senate is limited only to giving or withholding its consent, or concurrence, to the ratification .

Q: Who ratifies a treaty? What is the scope of the power to concur treaties and international agreements?A: The power to ratify is vested in the President subject to the concurrence of Senate. The role of the Senate, however, is limited only to giving or withholding its consent or concurrence. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate. Although the refusal of a state to ratify a treaty which has been signed in his behalf is a serious step that should not be taken lightly, such decision is within the competence of the President alone, which cannot be encroached upon by the Court via a writ of mandamus. (Pimentel v. Ermita, G.R. No. 164978, Oct. 13, 2005)

Treaty or International Agreement – require concurrence of the Senate

Executive agreement – does not require concurrence.

Is an executive agreement an equally binding obligation?In international law, there is no difference between treaties or executive agreements in their binding effects concerned, as long as the functionaries remain within their power. International law continues to make no distinctions between treaties and executive agreements. They are equally binding obligations upon nations. (Bayan vs. Zamora)

What about an exchange of notes?In connection with the loan agreement, there was an exchange of notes between ambassadors of Japan and RP. An exchange of notes is considered a form of an executive agreement, which becomes binding through executive action without the need of a vote by the Senate or the Congress. (Abaya vs. Ebdane, Jr. 2007)

Visiting Forces Agreement aka Balikatan ExercisesUS forces were allowed to come here for joint military exercises and civil actions. Among the purpose was to enhance defense capability of the Philippines.Is this VFA a treaty or is this an executive agreement?It is a treaty. No less than the president himself considered this a treaty as he transmitted this to Congress for concurrence. (Bayan vs. Zamora)

Q: Is VFA a treaty or a mere executive agreement?A:In the case of Bayan v. Zamora G.R No. 138570, Oct. 10, 2000, VFA was considered a treaty because the Senate concurred in via 2/3 votes of all its members. But in the point of view of the US Government, it is merely an executive agreement.

If that be the case, what is the governing constitutional provision, Section 21 ART VII or Section 25 ART XVIII?Section 21 Art. VII concerns with treaties in general. All treaties, regardless of subject matter, coverage, etc., requires the concurrence of the senate to be effective.

Sec. 25 Art. XVIII is a special provision that applies to treaties involving presence of foreign military bases, troops, or facilities in the Philippines. Undoubtedly, Art. XVIII Sec. 25 should have applied in the VFA, it being a special provision. The special provision takes precedence over the general one.

Correlate these always in cases of treaties involving military bases in the Philippines:Art. VII Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.

Art. XVII Section 25. 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.

Requisites to allow foreign military bases, foreign military bases, troops, or facilities in RP:1. There must be a Treaty duly concurred by the Senate2. When Congress requires, ratification via referendum3. Other contracting state recognizes that as a treaty

What is the Rome Statute?This is the treaty that created the International Criminal Courts. We are the 117th state to ratify the Rome Statute.

ICC – has jurisdiction over the following offenses: Genocide Crimes Against Humanity War Crimes The Crime of Aggression

Pimintel Jr., vs. Office of the Executive Secretary – provides backgrounderThe Rome Statute established the International Criminal Court which “shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern xxx and shall be complementary to the national criminal jurisdictions.” Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the crime of aggression as defined in the Statute. The Statute was opened for signature by all states in Rome on July 17, 1998 and had remained open for signature until December 31, 2000 at the United Nations Headquarters in New York. The Philippines signed the Statute on December 28, 2000 through Charge d’ Affairs Enrique A. Manalo of the Philippine Mission to the United Nations. Its provisions, however, require that it be subject to ratification, acceptance or approval of the signatory states.

Principle of ComplementarityThe ICC shall be complementary to national jurisdictions. It gives primacy to national jurisdictions. So if the state takes cognizance of those four offenses, crime of genocide, crimes against humanity, war crimes and the crime of aggression, ICC will not assume jurisdiction.

Exceptions to this principle are:1. proceeding is conducted for the protection of the accused2. the proceeding is conducted without impartiality or unjustified delay

Q: What is the Principle of Complementarity?A:This principle would not replace national courts in criminal jurisdiction. If the national court is able or willing to take cognizance of crimes that are also cognizable by the ICC, the latter would not take cognizance of the case. Only when the national court creates an unjustified delay or when its proceedings are meant to shield an individual from criminal liability may the ICC take cognizance of the case.

Principle of Ne Bis In IdemArt. 20 Par. 3 ICC Statute (Rome Statute)Unless proceedings in the national court is for the purpose of shielding the person concerned for m liability, or not conducted independently or impartially. “no person who has been tried by another court for conduct (constituting crimes within its jurisdiction) shall be tried by the (ICC) with respect to the same conduct.;

BUDGETARY POWER OF THE PRESIDENT

Art. VII Section 22. The President shall submit to the Congress, within thirty 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.

Correlate with:

Art. VI Section 25. (1) The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law.

Power of appropriation – belongs to Congress

The power to prepare the budget – belongs to the President, through the DBM.

President prepares the proposed budget through the DBM. The proposed budget becomes the basis of the general appropriations bill. (this is the interplay of blending of powers, checks and balances and separation of powers)

Can Congress change the items within the proposed budget by increasing it?No. Art. VI Section 25. (1) The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law.

This is the interplay of blending of powers, checks and balances, blending of powers and separation of powers. At most, they can trim down the value, but cannot increase it. The form, content, and manner of preparation of the budget shall be prescribed by law, meaning, it can be prescribed by Congress.

INFORMING POWER.Art. VII Section 23. The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time.

POWER OF IMPOUNDMENT

What is the power of impoundment of the President? What are its principal sources?

Held: Impoundment refers to the refusal of the President, for whatever reason, to spend funds made available by Congress. It is the failure to spend or obligate budget authority of any type.

Proponents of impoundment have invoked at least three principal sources of the authority of the President. Foremost is the authority to impound given to him either expressly or impliedly by Congress. Second is the executive power drawn from the President’s role as Commander-in-Chief. Third is the Faithful Execution Clause.

The proponents insist that a faithful execution of the laws requires that the President desist from implementing the law if doing so would prejudice public interest. An example given is when through efficient and prudent management of a project, substantial savings are made. In such a case, it is sheer folly to expect the President to spend the entire amount budgeted in the law. (PHILCONSA v. Enriquez, 235 SCRA 506, Aug. 9, 1994 [Quiason])

Three principal sources of the authority of the President. 1. Authority to impound given to him either expressly or impliedly by Congress. 2. Executive power drawn from the President’s role as Commander-in-Chief. 3. Faithful Execution Clause.

Faithful Execution ClauseSec. 17 2nd Sentence Art. VII

Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.

PHILCONSA v. Enriquez – only recognized the presence of this power. No other issues were tackled.

There are other powers of the President within the Constitution aside from those found in Art. VII.

The President also has unstated residual powers.

ARTICLE VIII JUDICIAL DEPARTMENT

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

BP 129 created the following courts:1. Court of Appeals2. Regional trial court – the court of general jurisdiction3. MTC, MeTC, MTCC

Other Courts created by law:1. Sandiganbayan

Note:The Sandiganbayan is created by a special law, a constitutionally mandated court only. (“and in such lower courts as may be established by law.”)

2. CTA3. Sharia Courts

DOCTRINE OF PRIMARY JURISDICTIONQ: What is the doctrine of primary jurisdiction or doctrine of prior resort? A: Under the principle of primary jurisdiction, courts cannot or will not determine a controversy involving question within the jurisdiction of an administrative body prior to the decision of that question by the administrative tribunal where: 1. The question demands administrative determination requiring special knowledge, experience and services of the administrative tribunal; 2. The question requires determination of technical and intricate issues of a fact; 3. The uniformity of ruling is essential to comply with purposes of the regulatory statute administered

Note: In such instances, relief must first be obtained in administrative proceeding before a remedy will be supplied by the courts even though the matter is within the proper jurisdiction of a court. The judicial process is accordingly suspended pending referral of the claim to the administrative agency for its view.

Q: What are the reasons for this doctrine? 1. To take full advantage of administrative expertness; and 2. To attain uniformity of application of regulatory laws which can be secured only if determination of the issue is left to the administrative body

Q: When is the doctrine inapplicable? A: 1. When, by the court's determination, the legislature did not intend that the issues be left solely to the initial determination of the administrative body. 2. When the issues involve purely questions of law.3. When courts and administrative bodies have concurrent jurisdiction.

Definition of Judicial Power 2nd Paragraph, Sec. 1 Art. VIIIJudicial power : 1. includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, (traditional concept of judicial power under the previous constitutions) 2. to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (expanded power of the judiciary, a.k.a. Extra-ordinary power of the courts)

Note:The Constitution made judicial power a duty. If this is simply a power, the holder can exercise it with his discretion. Since this is a duty, the court is bound to mandatorily exercise that duty.

Traditional concept of judicial power:Duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable. (Before, the solicitor general need only invoke that the matter in court is a political question that is subject to the principle of separation of powers, hence out of court’s jurisdiction.)

Expanded power of judicial review/Extra-ordinary power of the courts: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.

The political question doctrine has been adversely affected. The political question doctrine has been greatly diminished by the expanded power of the court. Even if the question is a political question, for as long as there is grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government, the court can take cognizance of the matter before it.

The political question doctrine arose from the doctrine of separation of powers. The first 2 branches (Executive and legislative) are the political branches of the government where policies are formulated and the laws are crafted.

Political questions in general are questions of policy. They involve the wisdom or the efficacy or the necessity of an act or a particular measure. Courts are not supposed to make up policy, make up laws or enforce the laws. Courts are supposed to interpret the laws.

Tanada vs. CuencoPolitical questions are those questions which under the constitution are to be decided by the people in their sovereign capacity or those questions in regard to which full discretionary authority has been delegated by the Constitution to the legislative or executive branch of the government.

2 types of political questions:1. those questions which under the constitution are to be decided by the people in their sovereign capacity (Pure Political Questions)2. those questions in regard to which full discretionary authority has been delegated by the Constitution to the legislative or the executive branch of the government.

Those questions which under the constitution are to be decided by the people in their sovereign capacityExample:In the LGC:RECALLQ: What is recall? A: It is a mode of removal of a public officer by the people before the end of his term. The people’s prerogative to remove a public officer is an incident of their sovereign power, even in the absence of constitutional restraint; the power is implied in all governmental operations. (Garcia v. Comelec, G.R. No. 111511 October 5, 1993)

Note: Expenses for the conduct of recall elections: Annual General Appropriations Act has a contingency fund at the disposal of the COMELEC (Sec. 75, LGC)

Q: What is the ground for recall? Is this subject to judicial inquiry? A: The only ground for recall of local government officials is loss of confidence. No, it is not subject to judicial inquiry, the Court ruled that ‘loss of confidence’ as a ground for recall is a political question. (Evardone v. COMELEC, G.R. No. 94010 Dec. 2, 1991).

Recall – a mode of removing a local elected official from his post even before the end of his term on the ground of loss of confidence. (Sections 69-74, LGC)

Local Officials – Term is 3 years, 3 consecutive terms. (Sec. 8 Art X, 1987 Constitution)

If a local official is a good one, 3 years is a very short term. If a local elected official is a bad one, he can be removed. 3 years is very long. The people cannot be allowed to suffer for that long. This is the concept of recall in the LGC.

THERE IS ONLY ONE GROUND FOR RECALL, LOSS OF CONFIDENCE.

Evardone vs COMELECLoss of confidence as a ground for recall is a political question, and not subject to judicial review. The question of whether the people has confidence in him or not can only be revealed through the votes, a question to be decided by the people themselves in their sovereign capacity in the special recall election. (The political question is the loss of confidence, not the recall.)

Q: Upon whom and how may a recall be initiated?A:1. Who: any elective

a. Provincialb. Cityc. Municipald. Barangay official

2. How: by a petition of a registered voter in the LGU concerned and supported by the registered voters in the LGU concerned during the election in which the local official sought to be recalled was elected. (Sec. 70 of R.A. 7160, as amended by R.A. 9244)

Note: By virtue of R.A. 9244, Secs. 70 and 71 of the Local Government Code were amended, and the Preparatory Recall Assembly has been eliminated as a mode of instituting recall of elective local government officials.

All pending petitions for recall initiated through the Preparatory Recall Assembly shall be considered dismissed upon the effectivity of RA 9244 (Approved Feb. 19, 2004)

Stages of Recall:1. Initiatory stage – petition to be signed by registered voters concerned2. Recall Election

Q. State the initiation of the recall process. A: 1. Petition of a registered voter in the LGU concerned, supported by percentage of registered voters during the election in which the local official sought to be recalled was elected.(% decreases as population of people in area increases. Also, the supporting voters must all sign the petition).

RA 9244 – bracketing 20K, 75K, 300K (Feb. 18, 2004)

Bracket:Less than 20K – 25%; Greater than 20K but less than 75k – 20%; Greater than 75K but less than 300K – 15%; Greater than 300K – 10%(RA 9244)

2. Within 15 days after filing, COMELEC must certify the sufficiency of the required number of signatures. Failure to obtain required number automatically nullifies petition.

3. Within 3 days of certification of sufficiency, COMELEC provides official with copy of petition and causes its publication for three weeks (once a week) in a national newspaper and a local newspaper of general circulation. Petition must also be posted for 10 to 20 days at conspicuous places. Protest should be filed at this point and ruled with finality 15 days after filing.

4. COMELEC verifies and authenticates the signature

5. COMELEC announces acceptance of candidates.

6. COMELEC sets election within 30 days upon completion of previous section in barangay/city/municipality proceedings and 45 days in the case of provincial officials. Officials sought to be recalled are automatically candidates. (Sec 70, R.A. 7160)

Q: What are the limitations on recall?A: 1. Any elective local official may be subject of a recall election only once during his term of office for loss of confidence; and2. No recall shall take place within one year from the date of the official’s assumption to office or one year immediately preceding a regular election. (Sec. 74, LGC)

Claudio vs. COMELECOne-year prohibitory period (Based on the facts of the case): Noon of June 30, 1998 up to June 30, 1999.The period applies only to the actual recall election, not to the initiatory proceedings.

Section 74 (b. ) No recall shall take place within one year from the date of the official’s assumption to office or one year immediately preceding a regular election. (Sec. 74, LGC)

Q: May an elective local official sought to be recalled resign? A: The elective local official sought to be recalled shall not be allowed to resign while the recall process is in progress. (Sec. 73, LGC)

Q: Section 74 of the Local Government Code provides that “no recall shall take place within one year immediately preceding a regular local election.” What does the term “regular local election,” as used in this section, mean?A: It refers to one where the position of the official sought to be recalled is to be actually contested and filled by the electorate. (Paras v. Comelec, G.R. No. 123169, Nov. 4, 1996)

The one year time bar will not apply where the local official sought to be recalled is a Mayor and the approaching ‐election is a barangay election. (Angobung v. COMELEC, G.R. No. 126576, Mar. 5, 1997)

Q. When does recall take effect?

A: Only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall. Should the official sought to be recalled receive the highest number of votes, confidence in him is thereby affirmed, and he shall continue in office. (Sec. 72, LGC)

Q. Will it be proper for the COMELEC to act on a petition for recall signed by just one person? A: A petition for recall signed by just one person is in violation of the statutory 25% minimum requirement as to the number of signatures supporting any petition for recall. (Angobung v. COMELEC, G.R. No. 126576, March 5, 1997) Note: This case was decided before RA 9244 came into effect.

Service of the recall term, since it is less than 3 years, is not considered as one full term for purposes of applying the disqualification under Section 8 of Art. X of the Constitution – Mendoza vs. COMELEC

Lawyer’s League for a Better Philippines vs. Corazon AquinoThe league questioned the legitimacy of the Cory Government. According to the League, most of the people who went to EDSA were not really serious in overthrowing the Marcos government.

The SC dismissed the petition. But in dismissing, the court discussed the matter. Marcos fled because of the people gathered at EDSA. Thus, the Cory government was able to effectively rule the state with no substantial resistance to authority. And also, the other states (international authorities) recognized the authority of the Cory government. (The matter has already been taken out of the hands of the court. This has already been decided by the people in their sovereign capacity.) Any government that was born out of a revolution is no longer subject to judicial review as it had become extra-constitutional.

Estrada vs. DesiertoAfter Estrada vacated on Jan. 20, 2001, VP GMA took over. There were several cases filed against Erap in the Sandiganbayan. Erap filed a petition in the SC questioning the legitimacy of the assumption of office of GMA. The Ombudsman stated that her assumption was a political question not subject to review, citing Lawyer’s League for a Better Philippines vs. Corazon Aquino in support of their assertions.

SC did not agree. Respondent’s relied on the case of Lawyer’s League for a Better Philippines vs. Corazon Aquinoand related case, presenting a political question. A more cerebral reading will show that they are inapplicable. I the cited cases, the removal of Marcos was a result of a successful revolution. Any government that was borne out of a successful revolution is outside judicial review as that government automatically orbits out of the constitutional loop. (extraconstitutional)

In checkered contrast, the government of respondent of GMA is not revolutionary in character. The oath that she took is the oath under the 1987 Constitution. In her oath, she categorically swore to preserve and defend the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution. There lies the big difference between the two. In fine, the legal distinction between EDSA I and EDSA II is clear. EDSA I involves the exercise of the people power of revolution which overthrows the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President. EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review.

Is the legitimacy of the assumption to the Presidency of President Gloria Macapagal Arroyo a political question and, therefore, not subject to judicial review? Distinguish EDSA People Power I from EDSA People Power II.

Held: Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino, et al. and related cases to support their thesis that since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they present a political question. A more cerebral reading of the cited cases will show that they are inapplicable. In the cited cases, we held that the government of former President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful one. No less than the Freedom Constitution declared that the Aquino government was installed through a direct exercise of the power of the Filipino people “in defiance of the provisions of the 1973 Constitution, as amended.” It is familiar learning that the legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution. In her oath, she categorically swore to preserve and defend the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power I and EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution which overthrows the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President. EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented a political question; EDSA II involves legal questions. X x x

Needless to state, the cases at bar pose legal and not political questions. The principal issues for resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably Section 1 of Article II, and Section 8 of Article VII, and the allocation of governmental powers under Section 11 of Article VII. The issues likewise call for a ruling on the scope of presidential immunity from suit. They also involve the correct calibration of the right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury v. Madison (1 Cranch [5 US] 137, L Ed 60 [1803]), the doctrine has been laid down that “it is emphatically the province and duty of the judicial department to say what the law is x x x.” Thus, respondent’s invocation of the doctrine of political question is but a foray in the dark. (Joseph E. Estrada v. Aniano Desierto, G.R. Nos. 146710-15, March 2, 2001, En Banc [Puno])

Those questions in regard to which full discretionary authority has been delegated by the Constitution to the legislative or executive branch of the government

Those questions in regard to which full discretionary authority has been delegated by the Constitution to the legislative or the executive branch of the government.

IBP vs. ZamoraHer calling out power is a political question and not subject to judicial power as this is the lesser and more benign of the three powers under Sec. 18, Art. VII of the 1987 Constitution (IBP v. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan]). It is a question in regard to which full discretionary authority has been delegated by the Constitution to the President, as their Commander-in-Chief, to call out the armed forces whenever she deems it necessary in order to prevent or suppress lawless violence, invasion, or rebellion. To subject such calling out power to unfettered judicial scrutiny could be a veritable prescription for disaster as such power may be unduly straitjacketed by an injunction or a TRO every time it is exercised.

Unless it can be shown that the exercise of such discretion to call out the armed forces was gravely abused, the President’s exercise of judgment deserves to be accorded respect from the Court. And the burden to show that the President gravely abused her discretion in calling out the armed forces to prevent or suppress lawless violence, invasion, or rebellion, lies with the petitioner.

Calling out power of the President. – the power of the President to call out the armed forces whenever it is necessary to prevent or suppress lawless violence, invasion or rebellion

(Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan]) Background: Erap issued a letter of instruction ordering the deployment of the Marines in the metropolis to secure the metropolis along with the PNP after the Camp Abubakar was taken by AFP to prevent reprisal against the state.

Is the President’s power to call out the armed forces as their Commander-in-Chief in order to prevent or suppress lawless violence, invasion or rebellion subject to judicial review, or is it a political question? Clarify.

Held: When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President's wisdom or substitute its own.(Those questions in regard to which full discretionary authority has been delegated by the Constitution to the legislative or the executive branch of the government) However, this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. In view of the constitutional intent to give the President full discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the President's decision is totally bereft of factual basis. The present petition fails to discharge such heavy burden as there is no evidence to support the assertion that there exists no justification for calling out the armed forces. There is, likewise, no evidence to support the proposition that grave abuse was committed because the power to call was exercised in such a manner as to violate the constitutional provision on civilian supremacy over the military. In the performance of this Court's duty of "purposeful hesitation" before declaring an act of another branch as unconstitutional, only where such grave abuse of discretion is clearly shown shall the Court interfere with the President's judgment. To doubt is to sustain. (Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan])

It is the unclouded intent of the constitution to vest upon the president as commander in chief of the armed forces the authority to call out the armed forces in cases of lawless violence, invasion or rebellion. (Do not tie the hands of the president. The president is highly knowledgeable of the conditions of the country and indeed must have to act swiftly and decisively in order to have any effect at all. To subject this exercise to scrutiny is an veritable recipe for disaster.)

After declaring thus, unless the petitioner can show that the exercise of such discretion is gravely abused, the exercise of the president’s judgment deserves to be afforded respect from this court. (Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan]) Here now is the impact of the expanded powers of the court.

Be very careful here. The burden of proving that the president gravely abused his discretion in the exercising of the calling out power lies on the person citing such. Abuse must be whimsical, oppressive and capricious., unreasonable excess of discretion. Mere abuse of discretion will not do. To doubt is to sustain the president.

Correlate with Prof. Randolph David vs. ArroyoGMA Proclamation 1017 declaring a state of national emergency.

All powers need some restraint; practical adjustments rather than rigid formula are necessary. Superior strength – the use of force – cannot make wrongs into rights. In this regard, the courts should be vigilant in safeguarding the constitutional rights of the citizens, specifically their liberty.

Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most relevant. He said: "In cases involving liberty, the scales of justice should weigh heavily against government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak." Laws and actions that restrict fundamental rights come to the courts "with a heavy presumption against their constitutional validity."

***The Court has passed upon the constitutionality of these issuances. Its ratiocination has been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out by the President of the military to prevent or suppress lawless violence, invasion or rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the military and the police committed acts which violate the citizens’ rights under the Constitution, this Court has to declare such acts unconstitutional and illegal. (Prof. Randolph David vs. Macapagal-Arroyo)

***In sum, the lifting of PP 1017 through the issuance of PP 1021 – a supervening event – would have normally rendered this case moot and academic. However, while PP 1017 was still operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been media reports on April 30, 2006 that allegedly PP 1017 would be reimposed "if the May 1 rallies" become "unruly and violent." Consequently, the transcendental issues raised by the parties should not be "evaded;" they must now be resolved to prevent future constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President for the AFP to prevent or suppress lawless violence. The proclamation is sustained by Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier. However, PP 1017’s extraneous provisions giving the President express or implied power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to lawless violence as well as decrees promulgated by the President; and (3) to impose standards on media or any form of prior restraint on the press, are ultra vires and unconstitutional. The Court also rules that under Section 17, Article XII of the Constitution, the President, in the absence of a legislation, cannot take over privately-owned public utility and private business affected with public interest .

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President – acting as Commander-in-Chief – addressed to subalterns in the AFP to carry out the provisions of PP 1017. Significantly, it also provides a valid standard – that the military and the police should take only the "necessary and appropriate actions and measures to suppress and prevent acts of lawless violence." But the words "acts of terrorism" found in G.O. No. 5 have not been legally defined and made punishable by Congress and should thus be deemed deleted from the said G.O. While "terrorism" has been denounced generally in media, no law has been enacted to guide the military, and eventually the courts, to determine the limits of the AFP’s authority in carrying out this portion of G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition of standards on media or any prior restraint on the press; and (4) the warrantless search of the Tribune offices and the whimsical seizures of some articles for publication and other materials, are not authorized by the Constitution, the law and jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative sanctions on the individual police officers concerned. They have not been individually identified and given their day in court. The civil complaints or causes of action and/or relevant criminal Informations have not been presented before this Court. Elementary due process bars this Court from making any specific pronouncement of civil, criminal or administrative liabilities.

It is well to remember that military power is a means to an end and substantive civil rights are ends in themselves. How to give the military the power it needs to protect the Republic without unnecessarily trampling individual rights is one of the eternal balancing tasks of a democratic state. During emergency, governmental action may vary in breadth and intensity from normal times, yet they should not be arbitrary as to unduly restrain our people’s liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various competing political philosophies is that, it is possible to grant government the authority to cope with crises without surrendering the two vital principles of constitutionalism: the maintenance of legal limits to arbitrary power, and political responsibility of the government to the governed.

Note : Proclamation 1017 itself was valid, it being a valid exercise of the President’s calling out power, a political question the court cannot subject to review. However, the acts committed in pursuance thereto were found to be unconstitutional. (1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas;(2) the dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition of standards on media or any prior restraint on the press; and (4) the warrantless search of the Tribune offices and the whimsical seizures of some articles for publication and other materials

Vinuya vs. Romulo (involving comfort women…. Aka… the plagiarism case)

Background: Before the outbreak of WWII, there was a prior war with Japan and China. Japan seized the city of Nanking where they committed atrocities, one of them being the rape of all women there. As a reaction of adverse public opinion in Japan, Japan adopted an official policy, the establishment of comfort stations in the areas that they occupied, mostly the conscription being against the will of the women. This was done in RP when Japan conquered RP. We entered to a treaty of peace with Japan in 1951, subject to the payment of reparations to RP. In 2008, the surviving comfort women wanted the president to espouse their claims against Japan for the rapes committed against their person and pay reparations to them The executive branch refused, claiming that Japan had already done so and had paid reparations. The comfort women filed the case in court to compel the executive to take up their cause. May the court compel the executive to do so?SC state that the most they can do is to exhort the executive, but not to compel. The issue involves a political question wherein matters of foreign policy are under the president’s discretion. Refusal to do so was to avoid strained relations and political embarrassment. The peace treaty with Japan had already waived future claims in exchange full compensation of a future peace. History has vindicated the wisdom of that bargain.

Kulayan vs. Tan July 3, 2012 Calling-out power is only endowed to the President. As early as Villena v. Secretary of Interior, it has already been established that there is one repository of executive powers, and that is the President of the Republic. This means that when Section 1, Article VII of the Constitution speaks of executive power, it is granted to the President and no one else.xxxCorollarily, it is only the President, as Executive, who is authorized to exercise emergency powers as provided under Section 23, Article VI, of the Constitution, as well as what became known as the calling-out powers under Section 7, Article VII thereof.

Indeed, while the President is still a civilian, Article II, Section 3 of the Constitution mandates that civilian authority is, at all times, supreme over the military, making the civilian president the nation’s supreme military leader. The net effect of Article II, Section 3, when read with Article VII, Section 18, is that a civilian President is the ceremonial, legal and administrative head of the armed forces. The Constitution does not require that the President must be possessed of military training and talents, but as Commander-in-Chief, he has the power to direct military operations and to determine military strategy. Normally, he would be expected to delegate the actual command of the armed forces to military experts; but the ultimate power is his. As Commander-in-Chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual.xxxGiven the foregoing, respondent provincial governor is not endowed with the power to call upon the armed forces at his own bidding. In issuing the assailed proclamation, Governor Tan exceeded his authority when he declared a state of emergency and called upon the Armed Forces, the police, and his own Civilian Emergency Force. The calling-out powers contemplated under the Constitution is exclusive to the President. An exercise by another official, even if he is the local chief executive, is ultra vires, and may not be justified by the invocation of Section 465 of the Local Government Code[.]

What are the requisites before the Court can exercise the power of judicial review?(1) the existence of an actual case/controversy; (2) a personal and substantial interest (legal personality) of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the resolution of the constitutional question is the lis mota of the case

Held: 1. The time-tested standards for the exercise of judicial review are: (1) the existence of an appropriate case; (2) an interest personal and substantial by the party raising the constitutional question; (3) the plea that the function be exercised at the earliest opportunity; and (4) the necessity that the constitutional question be passed upon in order to decide the case (Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of Environment and Natural Resources, et al., G.R. No. 135385, Dec. 6, 2000, En Banc).

2. When questions of constitutional significance are raised, the Court can exercise its power of judicial review only if the following requisites are complied with, namely: (1) the existence of an actual and appropriate case; (2) a personal and substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the constitutional question is the lis mota of the case. (Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan])

What is an "actual case or controversy"?

Held: An "actual case or controversy" means an existing case or controversy which is both ripe for resolution and susceptible of judicial determination, and that which is not conjectural or anticipatory, or that which seeks to resolve hypothetical or feigned constitutional problems. A petition raising a constitutional question does not present an "actual controversy," unless it alleges a legal right or power. Moreover, it must show that a conflict of rights exists, for inherent in the term "controversy" is the presence of opposing views or contentions. Otherwise, the Court will be forced to resolve issues which remain unfocused because they lack such concreteness provided when a question emerges precisely framed from a clash of adversary arguments exploring every aspect of a multi-faceted situation embracing conflicting and demanding interests. The controversy must also be justiciable; that is, it must be susceptible of judicial determination. (Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan])

Petitioners Isagani Cruz and Cesar Europa brought a suit for prohibition and mandamus as citizens and taxpayers, assailing the constitutionality of certain provisions of Republic Act No. 8371, otherwise known as the Indigenous Peoples Rights Act of 1997 (IPRA), and its Implementing Rules and Regulations. A preliminary issue resolved by the SC was whether the petition presents an actual controversy.

Held: Courts can only decide actual controversies, not hypothetical questions or cases. The threshold issue, therefore, is whether an "appropriate case" exists for the exercise of judicial review in the present case.

X x x

In the case at bar, there exists a live controversy involving a clash of legal rights. A law has been enacted, and the Implementing Rules and Regulations approved. Money has been appropriated and the government agencies concerned have been directed to implement the statute. It cannot be successfully maintained that we should await the adverse consequences of the law in order to consider the controversy actual and ripe for judicial resolution. It is precisely the contention of the petitioners that the law, on its face, constitutes an unconstitutional abdication of State ownership over lands of the public domain and other natural resources. Moreover, when the State machinery is set into motion to implement an alleged unconstitutional statute, this Court possesses sufficient authority to resolve and prevent imminent injury and violation of the constitutional process. (Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of Environment and Natural Resources, et al., G.R. No. 135385, Dec. 6, 2000, En Banc)

May the ICJ render advisory opinions?Yes. Under the charter of the UN and under its own statute (Rome Statute), ICJ has 2 main functions:1. to resolve contentious cases2. to render advisory opinions to the General Assembly, the Security Council, and other organs of the UN.

May Philippine Courts render advisory opinions?The Philippine courts cannot render advisory opinions. There is no actual case/controversy resolved there.Why?The duty of the courts of justice here in RP is to settle actual controversies.

Sec.1 Art. VIII. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

THERE MUST BE AN ACTUAL CONTROVERSY.Actual case – an existing case or controversy which is both ripe for resolution and susceptible of judicial determination, and that which is not conjectural or anticipatory, or that which seeks to resolve hypothetical or feigned constitutional problems.

Exceptions to the moot and academic principle:

The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: ~first, there is a grave violation of the Constitution; ~second, the exceptional character of the situation and the paramount public interest is involved; ~third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and ~fourth, the case is capable of repetition yet evading review.(Prof. Randolph David vs. Arroyo)

Should the Court still resolve the case despite that the issue has already become moot and academic? Exception.Held: Neither do we agree that merely because a plebiscite had already been held in the case of the proposed Barangay Napico, the petition of the Municipality of Cainta has already been rendered moot and academic. The issue raised by the Municipality of Cainta in its petition before the COMELEC against the holding of the plebiscite for the creation of Barangay Napico are still pending determination before the Antipolo Regional Trial Court.

In Tan v. Commission on Elections (G.R. No. 73155, 142 SCRA 727, 741-742 [1986]), we struck down the moot and academic argument as follows –

“Considering that the legality of the plebiscite itself is challenged for non-compliance with constitutional requisites, the fact that such plebiscite had been held and a new province proclaimed and its officials appointed, the case before Us cannot truly be viewed as already moot and academic. Continuation of the existence of this newly proclaimed province which petitioners strongly profess to have been illegally born, deserves to be inquired into by this Tribunal so that, if indeed, illegality attaches to its creation, the commission of that error should not provide the very excuse for perpetration of such wrong. For this Court to yield to the respondents’ urging that, as there has been fait accompli, then this Court should passively accept and accede to the prevailing situation is an unacceptable suggestion . Dismissal of the instant petition, as respondents so propose is a proposition fraught with mischief. Respondents’ submission will create a dangerous precedent. Should this Court decline now to perform its duty of interpreting and indicating what the law is and should be, this might tempt again those who strut about in the corridors of power to recklessly and with ulterior motives, create, merge, divide and/or alter the boundaries of political subdivisions, either brazenly or stealthily, confident that this Court will abstain from entertaining future challenges to their acts if they manage to bring about a fait accompli.”(City of Pasig v. COMELEC, 314 SCRA 179, Sept. 10, 1999, En Banc [Ynares-Santiago])

Locus Standi (legal standing)What is the meaning of "legal standing" or locus standi?Held: "Legal standing" or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged . The term "interest" means a material interest, an interest in issue affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. The gist of the question of standing is whether a party alleges "such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions." (Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000)

In addition to the existence of an actual case or controversy, a person who assails the validity of a statute must have a personal and substantial interest in the case, such that, he has sustained, or will sustain, a direct injury as a result of its enforcement. Evidently, the rights asserted by petitioners as citizens and taxpayers are held in common by all the citizens, the violation of which may result only in a "generalized grievance". Yet, in a sense, all citizen's and taxpayer's suits are efforts to air generalized grievances about the conduct of government and the allocation of power. (Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of Environment and Natural Resources, et al., G.R. No. 135385, Dec. 6, 2000, En Banc)

Exception: The court has the discretion to take cognizance of the suit without satisfaction of the requirements of locus standi when the issue is of paramount importance.

Having stated the foregoing, it must be emphasized that this Court has the discretion to take cognizance of a suit which does not satisfy the requirement of legal standing when paramount interest is involved. In not a few cases, the Court has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental

significance to the people. Thus, when the issues raised are of paramount importance to the public, the Court may brush aside technicalities of procedure. (Principle of Transcendental Importance)

Proper party – one who has sustained or is in immediate danger of sustaining an injury as a result of the act complained of.

GR: If there is no actual or potential injury, complainant has no legal personality to raise Constitutional questions

XPN: If the question is of transcendental importance (IBP vs. Zamora)

Note: The Principle of Transcendental Importance is determined by:

a. The character of the funds or other assets involved in the case; b. The presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; c. The lack of any other party with a more direct and specific interest in raising the questions being raised. (Francisco, Jr. v. House of Representatives, G.R. No. 160261, Nov. 10, 2003)

Earliest opportunity – Constitutional question must be raised at the earliest possible opportunity. If not raised in pleadings, it cannot be considered in trial and on appeal. However, such is not absolute. It is subject to the following conditions:

a. Criminal case – 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. b. Civil case – it may be brought anytime if the resolution of the Constitutional issue is inevitable in resolving the main issue. c. When the jurisdiction of the lower court is in question except when there is estoppel

Note: The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same, such that, if not raised in the pleadings, it cannot be considered in trial and, if not considered in trial, it cannot be considered on appeal.

The Ombudsman has no jurisdiction to entertain questions regarding constitutionality of laws. Thus, when the issue of constitutionality a law was raised before the Court of Appeals (CA), which is the competent court, the constitutional question was raised at the earliest opportune time. (Estarija v. Ranada, G.R. No. 159314, June 26, 2006)

The NLRC’s foremost function is to administer and enforce R.A. No. 8042, and not to inquire into the validity of its provisions. Therefore, even if the issue on the constitutionality of the subject clause was first raised, not in petitioner's appeal with the NLRC, but in his Motion for Partial Reconsideration with said labor tribunal, and reiterated in his Petition for Certiorari before the CA, the issue is deemed seasonably raised because it is not the NLRC but the CA which has the competence to resolve the constitutional issue. (Serrano v. NLRC, G.R. No. 167614, Mar. 29, 2009)

Matibag vs. Benipayo (earliest opportunity)Respondents harp on petitioner’s belated act of questioning the constitutionality of the ad interim appointments of Benipayo, Borra and Tuason. Petitioner filed the instant petition only on August 3, 2001, when the first ad interim appointments were issued as early as March 22, 2001. However, it is not the date of filing of the petition that determines whether the constitutional issue was raised at the earliest opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same, such that, “if it is not raised in the pleadings, it cannot be considered on appeal.” (Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 858 [1996], citing People v. Vera, 65 Phil. 56 [1937]). Petitioner questioned the constitutionality of the ad interim appointments of Benipayo, Borra and Tuason when she filed her petition before this Court, which is the earliest opportunity for pleading the constitutional issue before a competent body. Furthermore, this Court may determine, in the exercise of sound discretion, the time when a constitutional issue may be passed upon (Ibid., citing Sotto v. Commission on Elections, 76 Phil. 516 [1946]). There is no doubt petitioner raised the constitutional issue on time.

The Very Lis Mota (The main issue of the entire controversy)Necessity of deciding constitutional questions – as a joint act of the legislative and executive authorities, a law is supposed to have been carefully studied and determined to be constitutional before it was finally enacted. As long as there are other bases which courts can use for decision, constitutionality of the law will not be touched.

Moreover, the legality of petitioner’s reassignment hinges on the constitutionality of Benipayo’s ad interim appointment and assumption of office. Unless the constitutionality of Benipayo’s ad interim appointment and assumption of office is resolved, the legality of petitioner’s reassignment from the EID to the Law Department cannot be determined. Clearly, the lis mota of this case is the very constitutional issue raised by petitioner.

In any event, the issue raised by petitioner is of paramount importance to the public. The legality of the directives and decisions made by the COMELEC in the conduct of the May 14, 2001 national elections may be put in doubt if the constitutional issue raised by petitioner is left unresolved. In keeping with this Court’s duty to determine whether other agencies of government have remained within the limits of the Constitution and have not abused the discretion given them, this Court may even brush aside technicalities of procedure and resolve any constitutional issue raised (Ople v. Torres, 293 SCRA 1412 [1998]; others omitted). Here the petitioner has complied with all the requisite technicalities. Moreover, public interest requires the resolution of the constitutional issue raised by petitioner. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])

What is the relevance of these requisites for the Court to exercise the power of judicial review as well as political question doctrine?In practice, when you have a client who wants to sue the government, you will meet the OSG as your adversary. Know these tactics of the OSG to frustrate your ends so you will know how to counter their tactics.OSG Tactics:1. Present the issue of complainant as a political question2. No actual issue to be resolved3. Locus standi of complainant4. Issue constitutes not the lis mota of the case.5. In resolving the merits during trial, your evidence will be contested at every turn.(Take note: in studying cases, you will find ¾ consists of items 1 to 3, and less than ¼ usually items 4 and 5)

What are the requisites before a law can be declared partially unconstitutional? A: 1. The legislature must be willing to retain valid portion (separability clause) 2. The valid portion can stand independently as law

Q: What is the Principle of Stare Decisis? A: A principle underlying the decision in one case is deemed of imperative authority, controlling the decisions of like cases in the same court and in lower courts within the same jurisdiction, unless and until the decision in question is reversed or overruled by a court of competent authority. (De Castro v. JBC, G.R. No. 191002, Apr. 20, 2010)

Section 5 paragraph 5 ART. VIII (Rule-making power of the SC)(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

Rules SC can promulgate rules concerning:1. the protection and enforcement of constitutional rights, 2. pleading, 3. practice, and procedure in all courts, 4. the admission to the practice of law, 5. the integrated bar, and

6. legal assistance to the under-privileged.

Observe the RoC structures:Rules 1-71 – Civil ProcedureRules 72 -109 – Special ProceedingsRule 110 -127 – Criminal ProceduresRule 128 – 134 – Rule on EvidenceAdmission to the Practice of LawLegal EthicsJudicial Ethics

What was the basis of the SC in the crafting of the Writs of Amparo, Habeas Data and Kalikasan?The rule-making power.

Sec. 9 Art. VIIISection 9. The Members of the Supreme Court and judges of the lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.

Appointment of Judges and Justices – President appoints them. However, the removal of judges are subject to the cognizance of the SC. Justices are removed by way of impeachment. Judges of the lower courts are removed by SC En Banc.

For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.

Art. VIII Section 11. The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.

JBC Composition:Ex Officio members:CJ as ex-officio chairmanCongressSecretary of JusticeClerk of SC – ex-officio secretary

Regular Members: appointed by President, to be confirmed by CoARetired justice of SC ~ Representative of IBPLaw ProfessorRepresentative of the private sector

Art. VIII Section 13. The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the Court. A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties. Any Members who took no part, or dissented, or abstained from a decision or resolution, must state the reason therefor. The same requirements shall be observed by all lower collegiate courts.

15 Justices – CJ + 14 AJs

Divisions of 3 – 5 – 7 Sec. 4(3) Art. VIII

(3) Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.

When shall the court decide en banc?No doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.

The Law on Public OfficersTerm: Section 8. Art. X

3 years – 3 consecutive terms

Sec. 8 Art. X Term of Office of elective local officials – 3 years – 3 consecutive termsVoluntary renunciation – not an interruption

Under Section 8, Article X of the Constitution, "[T]he term of office of elective local officials x x x shall be three years and no such official shall serve for more than three consecutive terms." How is this term limit for elective local officials to be interpreted?

Mayor Capco was a vice-mayor. The mayor died in 1989. Mayor Capco took over. He ran and won two terms after that. He ran again for the third time. Is he qualified?Yes.Held: The term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply. (Borja, Jr. v. COMELEC and Capco, Jr., G.R. No. 133495, Sept. 3, 1998, 295 SCRA 157, En Banc [Mendoza])

What are the policies embodied in the constitutional provision barring elective local officials, with the exception of barangay officials, from serving more than three consecutive terms?

Held: To prevent the establishment of political dynasties is not the only policy embodied in the constitutional provision in question (barring elective local officials, with the exception of barangay officials, from serving more than three consecutive terms). The other policy is that of enhancing the freedom of choice of the people. To consider, therefore, only stay in office regardless of how the official concerned came to that office – whether by election or by succession by operation of law – would be to disregard one of the purposes of the constitutional provision in question. (Borja, Jr. v. COMELEC and Capco, Jr., G.R. No. 133495, Sept. 3, 1998, 295 SCRA 157, En Banc [Mendoza])

Two conditions that must concur for the 3-term limit (Sec. 8 Art. X Term of Office)to apply:1. Local official has been elected three consecutive times to the same position2. He was able to fully serve three consecutive termsAbsent any of these conditions, he is still qualified to serve.

There are two policies embodied in this provision (Sec. 8 Art. X Term of Office):1. to prevent establishment of political dynasties2. to enhance the freedom of choice of the people

Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of the incumbent. Six months before the next election, he resigns and is twice elected thereafter. Can he run again for mayor in the next election?

Answer: Yes, because although he has already first served as mayor by succession and subsequently resigned from office before the full term expired, he has not actually served three full terms in all for the purpose of applying the term limit.

Under Art. X, Sec. 8, voluntary renunciation of the office is not considered as an interruption in the continuity of his service for the full term only if the term is one “for which he was elected.” Since A is only completing the service of the term for which the deceased and not he was elected, A cannot be considered to have completed one term. His resignation constitutes an interruption of the full term.

Lonzanida vs. COMELEC (Interrupted term)Lonzanida was previously elected and served two consecutive terms as mayor of San Antonio, Zambales prior to the May 1995 mayoral elections. In the May 1995 elections he again ran for mayor of San Antonio, Zambales and was proclaimed winner. He assumed office and discharged the rights and duties of mayor until March 1998 when he was ordered to vacate the post by reason of the COMELEC decision on the election protest against him which declared his opponent Juan Alvez the duly elected mayor. Alvez served the remaining portion of the 1995-1998 mayoral term. Is Lonzanida still qualified to run for mayor of San Antonio, Zambales in the May 1998 local elections?

Held: The two requisites for the application of the three term rule was absent. First, Lonzanida cannot be considered as having been duly elected to the post in the May 1995 elections, and second, he did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. After a re-appreciation and revision of the contested ballots the COMELEC itself declared by final judgment that Lonzanida lost in the May 1995 mayoral elections and his previous proclamation as winner was declared null and void. His assumption of office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void proclamation. It has been repeatedly held by the SC that a proclamation subsequently declared void is no proclamation at all and while a proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election protest. Lonzanida did not serve a term as mayor of San Antonio, Zambales from May 1995 to March 1998 because he was not duly elected to the post; he merely assumed office as presumptive winner, which presumption was later overturned by the COMELEC when it decided with finality that Lonzanida lost in the May 1995 mayoral elections.

Second, Lonzanida cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate his post before the expiration of the term. His opponents' contention that Lonzanida should be deemed to have served one full term from May 1995-1998 because he served the greater portion of that term has no legal basis to support it; it disregards the second requisite for the application of the disqualification, i.e., that he has fully served three consecutive terms. The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected." The clear intent of the framers of the Constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people's choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. Lonzanida vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, Lonzanida did not fully serve the 1995-1998 mayoral term.

In sum, Lonzanida was not the duly elected mayor and that he did not hold office for the full term; hence, his assumption of office from May 1995 to March 1998 cannot be counted as a term for purposes of computing the three term limit. (Lonzanida v. COMELEC, 311 SCRA 602, July 28, 1999, En Banc [Gonzaga-Reyes])

Ong vs. Alegre (3-term rule)Ong was elected mayor in May 1995. May 1998, he won, but Alegre filed a protest against him. May 2001, Ong ran again and won. But, his May 1998 protest was decided in favor of Alegre. May 2004, Ong again ran for mayor and won. Alegre questioned the election of Ong. Ong stated that he was qualified as he was not elected 3 consecutive times, as he was only the presumptive winner in the May 1998 elections. Is he qualified or not qualified?

SC stated he is not qualified anymore. The RTC decision did not serve any practical and legal purpose anymore having promulgated after the legal term has expired. The RTC should have dismissed the election protest upon service of Ong of the full term. Ong’s contention that he is a presumptive winner did not make him less than an elected mayor. His continuous service from start to finish should be taken as full service term. The two conditions to qualify are present, he is no longer qualified to run.

1995—Francis Ong ran for mayor, he won1998—He ran and won again. Alegre filed a protest.2001—Ong ran and won again. The protest in 1998 was decided by the RTC on July 4,2001 that it was Alegre who won in 1998 election.2004—Ong ran again. Alegre questioned. Ong alleged that his proclamation as mayorelectin the May 1998 election was contested and eventually nullified by the RTC ofDaet.Issue: Whether or not Ong’s assumption of office as Mayor from July 1, 1998 to June 30, 2001 may be considered as one full term service in the context of the consecutive 3-term limit rule?

Held: The assumption of office from July 1, 1998 to June 30, 2001 constitutes “service for the full term” and should be counted as a full term served in contemplation of the 3-term limit prescribed by the Constitution and LGC, barring local elective officials from being elected and serving more than 3-consecutive term for the same position. x x x His proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the 3-term rule.There was no interruption or break in the continuity of Ong’s service respecting the 1998-2001 term. Ong was never unseated during the term in question; he never ceased discharging his duties and responsibilities as Mayor of San Vicente, Camarines Norte for the entire period covering the 1998-2001 term.

SOCRATES DOCTRINE: A local official who runs and wins in a recall election serves for the remainder of the recall term equivalent as one full term for purposes of applying the disqualification under Sec. 8 ART. X. Otherwise, he will be allowed to serve for more than 9 years. (This is a mere obiter dictum.)

SOCRATES vs. COMELEC (Hagedorn Case):Mayor Edward S. Hagedorn of Puerto Princesa City was elected for three consecutive times in the 1992, 1995 and 1998 elections and served in full his three consecutive terms as Mayor. In the 2001 elections, he ran for Governor of the Province of Palawan and lost. Socrates ran and won as Mayor of Puerto Princesa in that election. On July 2, 2002, the Preparatory Recall Assembly (PRA) of Puerto Princesa City adopted a Resolution calling for the recall of incumbent Mayor Socrates. The COMELEC scheduled a Special Recall Election for Mayor of that City on September 24, 2002. Is Mayor Hagedorn qualified to run again for Mayor in that Special Recall Election considering the circumstances?

Held: The three-term limit rule for elective local officials is found in Section 8, Article X of the Constitution x x

This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the Local Government Code x x x.

These constitutional and statutory provisions have two parts. The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service or consecutive terms .

After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service.

X x x

Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not immediately after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate reelection after the third term.

Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same term of office. What the Constitution prohibits is a consecutive fourth term. The debates in the Constitutional Commission evidently show that the prohibited election referred to by the framers of the Constitution is the immediate reelection after the third term, not any other subsequent election.

X x x

In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an immediate reelection after his third consecutive term which ended on June 30, 2001. The immediate reelection that the Constitution barred Hagedorn from seeking referred to the regular elections in 2001. Hagedorn did not seek reelection in the 2001 elections.

X x x

From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was Socrates. This period is clearly an interruption in the continuity of Hagedorn’s service as mayor, not because of his voluntary renunciation, but because of a legal prohibition. Hagedorn’s three consecutive terms ended on June 30, 2001. Hagedorn’s new recall term from September 24, 2002 to June 30, 2004 is not a seamless continuation of his previous three consecutive terms as mayor. One cannot stitch together Hagedorn’s previous three-terms with his new recall term to make the recall term a fourth consecutive term because factually it is not. An involuntary interruption occurred from June 30, 2001 to September 24, 2002 which broke the continuity or consecutive character of Hagedorn’s service as mayor.

X x x In Hagedorn’s case, the nearly 15-month period he was out of office, although short of a full term of three years, constituted an interruption in the continuity of his service as mayor. The Constitution does not require the interruption or hiatus to be a full term of three years. The clear intent is that interruption “for any length of time,” as long as the cause is involuntary, is sufficient to break an elective local official’s continuity of service. (Victorino Dennis M. Socrates v. The Commission on Elections, G.R. No. 154512, Nov. 12, 2002, En Banc [Carpio])

Mendoza vs. COMELEC - barely a month after Socrates vs. COMELECGov. Garcia was elected governor in 1992. In 1993, he was recalled, and Gov. Roman won. Only on June 28, 1994 was Governor Roman was able to sit down as governor. Governor Roman won in 1995 and 1998. He ran again for governor in 2001. Is he qualified?Under the Socrates Ruling, he is disqualified. But in this case, the court voted 8-7 to dismiss the petition against Governor Roman. He was deemed qualified. The service of Governor Roman during the 1992 to 1995 term should not be counted. Roman was not able to serve one full term. Thus, he is still qualified.

The rule is, service of the recall term will not interrupt the 3-consecutive term rule. In the case of Mendoza vs. COMELEC, the SC did not abandon the ruling in Socrates, because it was merely an obiter dictum. The case of Mendoza is different from the case of Socrates vs. COMELEC.

The ruling in Mendoza is more faithful to the Borja Ruling and other related cases, so we consider the requirements required in the Borja Ruling. “Elected 3 consecutive times = Served 3 consecutive terms”

Developments in the area of Section 8 Art. X

Aldovino, Jr. vs. COMELEC 2009 En Banc (Brion is the ponente) (Preventive Suspension does not disrupt term)He was elected 3 times as mayor. During his third term, he was placed under preventive suspension. Can he run again?SC held that no, he cannot. Interruption means no less than the involuntary loss of title of office for any length of time. When under preventive suspension, he is still the mayor but only incapable of exercising his office. This is similar to a prolonged ailment, where he still remains to be the mayor who is only incapable to serve his office until he gets well, and the vice-mayor will be in the meantime serving as acting mayor. Temporary inability even for a short length of time to exercise the office is not an interruption as he still holds the office of the mayor.

Voluntary renunciation – not an interruption of the term of service

Temporary inability even for a short length of time to exercise the office is not an interruption. (either by sickness or due to legal barrier)

Montebon vs. COMELEC (Vacation of office to serve in another by operation of law = interruption of term)He was elected thrice as councilor in 1998, 2001 and 2004. During the second term, he was the highest ranking councilor. The Vice-mayor retired in 2002. He succeeded the post of vice-mayor by operation of law as he was the highest ranking councilor. Can he run again as councilor in the 2007 elections?SC held that he was qualified. There is now an interruption of office during his second term when he became vice-mayor by operation of law. This was not voluntary resignation. Thus, he can run again as councilor in the 2007 elections.

Resignation = voluntary resignation = 1 term of office.

Bolos vs. COMELEC 1994 (Punong Barangay) Vacation of office for another elective post – not an interruptionThe term of office of a Barangay Captain is determined by law. He was thrice elected punong barangay (1994-1997, 1997-2002 and 2002-October 2007 term). During his third term, on May 2004 elections, he ran for Councilor and won. He assumed office and served until June 30, 2007. Barangay elections were held in October 2007 and he ran for barangay captain. This was questioned that he voluntarily resigned from office. He justified that the vacation of office was by operation of law, and thus an interruption of service as a punong barangay.

SC held that there was no interruption, that his act of vacating office to assume another elective office is equivalent to voluntary resignation of office, and will be considered as service for the full term for the position vacated. Hence, he was no longer qualified to run in the barangay elections in October 2007.

LOCAL GOVERNMENT CODESuccession in the Local Government in case of permanent vacancyRule on Automatic Succession: Sec. 44 LGC

Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-Mayor. - If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice-governor, mayor, or vice-mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice-governor, mayor or vice-mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein.

(a) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sanggunian barangay member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the punong barangay.

(b) A tie between or among the highest ranking sanggunian members shall be resolved by the drawing of lots.

(c) The successors as defined herein shall serve only the unexpired terms of their predecessors.

For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office.

For purposes of succession as provided in the Chapter, ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election.

How about ranking by districts like that in Manila?

For purposes of succession as provided in the Chapter, ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election. (Different districts)

A tie between or among the highest ranking sanggunian members shall be resolved by the drawing of lots. (Same district)

There are 8 Sangguniang bayan members. The last ranking member died. How do you fill the vacancy?Apply Section 45 LGC.

Section 45. Permanent Vacancies in the Sanggunian. -

(a) Permanent vacancies in the sanggunian where automatic succession provided above do not apply shall be filled by appointment in the following manner:

(1) The President, through the Executive Secretary, in the case of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities;

(2) The governor, in the case of the sangguniang panlungsod of component cities and the sangguniang bayan;

(3) The city or municipal mayor, in the case of sangguniang barangay, upon recommendation of the sangguniang barangay concerned.

(b) Except for the sangguniang barangay, only the nominee of the political party under which the sanggunian member concerned had been elected and whose elevation to the position next higher in rank created the last vacancy in the sanggunian shall be appointed in the manner hereinabove provided. The appointee shall come from the same political party as that of the sanggunian member who caused the vacancy and shall serve the unexpired term of the vacant office. In the appointment herein mentioned, a nomination and a certificate of membership of the appointee from the highest official of the political party concerned are conditions sine qua non, and any appointment without such nomination and certification shall be null and void ab initio and shall be a ground for administrative action against the official responsible therefore.

(c) In case or permanent vacancy is caused by a sanggunian member who does not belong to any political party, the local chief executive shall, upon recommendation of the sanggunian concerned, appoint a qualified person to fill the vacancy.

(d) In case of vacancy in the representation of the youth and the barangay in the sanggunian, said vacancy shall be filled automatically by the official next in rank of the organization concerned.

The “last vacancy” in the Sanggunian refers to that created by the elevation of the member formerly occupying the next higher in rank which in turn also had become vacant by any of the causes already enumerated. The term “last vacancy” is thus used in Section 45(b) to differentiate it from the other vacancy previously created. The term by no means refers to the vacancy in the No.8 position which occurred with the elevation of 8th placer to the seventh position in the Sanggunian. Such construction will result in absurdity. (Navarro v. CA, G.R. No. 141307, Mar. 28, 2001)

Q: State the rules of succession in case of permanent vacancies. A: 1. In case of permanent vacancy in:

a. Office of the governor: vice governor ‐

b. Office of the mayor: vice mayor ‐

c. Office of the governor, vice governor, mayor or vice mayor: highest ranking ‐ Sanggunian member or in case of his permanent inability, the second highest ranking Sanggunian member – successor should have come from the same political party. d. Office of the punong barangay: the highest ranking sangguniang barangay member – successor may or may not have come from the same political party.

Note: For purposes of succession, ranking in the Sanggunian shall be determined on the basis of the proportion of the votes obtained by each winning candidate to the total number of registered voters in each district in the preceding election.

In case of tie between and among the highest ranking Sangguniang members, resolved by drawing lots (Section 44, LGC).

The general rule is that the successor (by appointment) should come from the same political party as the Sangunian member whose position has become vacant. The exception would be in the case of vacancy in the Sangguniang barangay.

2. In case automatic succession is not applicable and there is vacancy in the membership of the sanggunian: a. The President thru the Executive Secretary shall appoint the political nominee of the local executive for the sangguniang panlalawigan/panlungsod of highly urbanized cities/independent component cities b. The Governor, shall appoint the political nominees for the sanggunian panlungsod of component cities/bayan concerned

c. The city/municipal mayor shall appoint the recommendee of the sangguniang barangay concerned.

Note: The “last vacancy” in the Sanggunian refers to that created by the elevation of the member formerly occupying the next higher in rank which in turn also had become vacant by any of the causes already enumerated. The term “last vacancy” is thus used in Section 45(b) to differentiate it from the other vacancy previously created. The term by no means refers to the vacancy in the No. 8 position which occurred with the elevation of 8th placer to the seventh position in the Sanggunian. Such construction will result in absurdity. (Navarro v. CA, G.R. No. 141307, Mar. 28, 2001)

In case of vacancy in the representation of the youth and the barangay in the Sanggunian, vacancies shall be filled automatically with the official next in rank of the organization concerned.

When may a permanent vacancy arise under Section 44 of the Local Government Code?

Held: Under Section 44, a permanent vacancy arises when an elective official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. (Navarro v. Court of Appeals, 355 SCRA 672, Mar. 28, 2001, 1st Div. [Kapunan])

How is Section 45(b) of the Local Government Code to be interpreted? What is the reason behind the right given to a political party to nominate a replacement where a permanent vacancy occurs in the Sanggunian?

Held: What is crucial is the interpretation of Section 45(b) providing that “x x x only the nominee of the political party under which the Sanggunian member concerned has been elected and whose elevation to the position next higher in rank created the last vacancy in the Sanggunian shall be appointed in the manner hereinabove provided. The appointee shall come from the political party as that of the Sanggunian member who caused the vacancy x x x.”

The reason behind the right given to a political party to nominate a replacement where a permanent vacancy occurs in the Sanggunian is to maintain the party representation as willed by the people in the election (Aquilino Pimentel, the Local Government Code of 1991, The Key to National Development, p. 150).

With the elevation of petitioner Tamayo, who belonged to REFORMA-LM, to the position of Vice-Mayor, a vacancy occurred in the Sanggunian that should be filled up with someone who should belong to the political party of petitioner Tamayo. Otherwise, REFORMA-LM’s representation in the Sanggunian would be diminished. To argue that the vacancy created was that formerly held by Rolando Lalas, a LAKAS-NUCD-Kampi member, would result in the increase

of that party’s representation in the Sanggunian at the expense of the REFORMA-LM. This interpretation is contrary to the letter and spirit of the law and thus violative of a fundamental rule in statutory construction which is to ascertain and give effect to the intent and purpose of the law (Manila Lodge No. 761 v. Court of Appeals, 73 SCRA 12 [1976]). As earlier pointed out, the reason behind par. (b), section 44 of the Local Government Code is the maintenance of party representation in the Sanggunian in accordance with the will of the electorate.

The “last vacancy” in the Sanggunian refers to that created by the elevation of the member formerly occupying the next higher in rank which in turn also had become vacant by any of the causes already enumerated. The term “last vacancy” is thus used in Sec. 45 (b) to differentiate it from the other vacancy previously created. The term by no means refers to the vacancy in the No. 8 position which occurred with the elevation of Rolando Lalas to the seventh position in the Sanggunian. Such construction will result in absurdity. (Navarro v. Court of Appeals, 355 SCRA 672, Mar. 28, 2001, 1 st Div. [Kapunan])

Navarro vs. CA (Interpretation of Section 45(b) )When may a permanent vacancy arise under Section 44 of the Local Government Code?

Held: Under Section 44, a permanent vacancy arises when an elective official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. (Navarro v. Court of Appeals, 355 SCRA 672, Mar. 28, 2001, 1st Div. [Kapunan])

If the sanggunian member who caused the vacancy is an independent, how can the vacancy be filled up?Section 45 (c) will be applied.

(c) In case or permanent vacancy is caused by a sanggunian member who does not belong to any political party, the local chief executive shall, upon recommendation of the sanggunian concerned, appoint a qualified person to fill the vacancy

A case interpreting Section 45(c) LGCFarinas vs. BarbaThe last ranking member of the sangguniang bayan of the municipality of San Nicolas resigned. The resigned member did not belong to any political party. Mayor Barba appointed a person based on the recommendation of the sanggunian concerned. Farinas appointed another person who is a member of his party. Whose appointment should be held?SC held that neither can be appointed. In order to have a uniform interpretation, it is understood that the local chief executive should be under Section 45 (a), meaning the governor in this case, upon to the recommendation of the sanggunian concerned, the municipality of San Nicolas. Hence, both parties should follow the law. Governor Farinas should appoint a person recommended by the sanggunian concerned.

Q: State the rules in case of temporary vacancies in local positions. A: 1. In case of temporary vacancy of the post of the local executive (leave of absence, travel abroad, suspension): vice‐ governor, vice mayor, highest ranking sangguniang barangay shall automatically exercise the powers and perform the functions of the local Chief Executive concerned.

GR: He cannot exercise the power to appoint, suspend or dismiss employees XPN: If the period of temporary incapacity exceeds 30 working days.

2. If travelling within the country, outside his jurisdiction, for a period not exceeding 3 days: he may designate in writing the officer in charge. The OIC cannot exercise the power to appoint, suspend or dismiss employee. ‐ ‐

3. If without said authorization, the vice governor, vice mayor or the highest ranking ‐ ‐ sangguniang barangay member shall assume the powers on the 4th day of absence. (Sec. 46, LGC)

Q: How is temporary incapacity terminated? A: 1. It shall terminate upon submission to the appropriate sanggunian of a written declaration by the local chief executive concerned that he has reported back to office – If the temporary incapacity was due to:

a. Leave of absence b. Travel abroad c. Suspension.

2. If the temporary incapacity was due to legal reasons, the local chief executive should also submit necessary documents showing that the legal cause no longer exist. (Sec. 46[b], LGC)

Gamboa vs. Aguirre, Jr. 1999The governor went abroad and left instructions that vice-governor shall be the acting governor. The vice-governor wanted to continue presiding the sessions in the SP. May an incumbent Vice-Governor, while concurrently the Acting Governor, continue to preside over the sessions of the Sangguniang Panlalawigan (SP)? If no, who may preside in the meantime?

Held: Being the acting governor, the Vice-governor cannot continue to simultaneously exercise the duties of the latter office, since the nature of the duties of the Provincial Governor calls for a full-time occupant to discharge them. Such is not only consistent with but also appears to be the clear rationale of the new (Local Government) Code wherein the policy of performing dual functions in both offices has already been abandoned. To repeat, the creation of a temporary vacancy in the office of the Governor creates a corresponding vacancy in the office of the Vice-Governor whenever the latter acts as Governor by virtue of such temporary vacancy. This event constitutes an “inability” on the part of the regular presiding officer (Vice-Governor) to preside during the SP sessions, which thus calls for the operation of the remedy set in Article 49(b) of the Local Government Code – concerning the election of a temporary presiding officer. The continuity of the Acting Governor’s (Vice-Governor) powers as presiding officer of the SP is suspended so long as he is in such capacity. Under Section 49(b), “in the event of the inability of the regular presiding officer to preside at the sanggunian session, the members present and constituting a quorum shall elect from among themselves a temporary presiding officer.” (Gamboa, Jr. v. Aguirre, Jr., G.R. No. 134213, July 20, 1999, En Banc [Ynares-Santiago])

If that be the case, who will preside over the Sangguniang Panlalawigan in the meantime? SC stated that under Sec. 49 (b) of the LGC, in case of temporary inability of the presiding officer, the sanggunian members shall elect among themselves a temporary presiding officer. **** Under Section 49(b), “in the event of the inability of the regular presiding officer to preside at the sanggunian session, the members present and constituting a quorum shall elect from among themselves a temporary presiding officer.” Gamboa, Jr. v. Aguirre, Jr., G.R. No. 134213, July 20, 1999, En Banc [Ynares-Santiago])

Section 49. Presiding Officer. -

(b) In the event of the inability of the regular presiding officer to preside at a sanggunian session, the members present and constituting a quorum shall elect from among themselves a temporary presiding officer. He shall certify within ten (10) days from the passage of ordinances enacted and resolutions adopted by the sanggunian in the session over which he temporarily presided. (Application of the Rule of permanent vacancy by analogy)

Q: May the local chief executive authorize any local official to assume the powers, duties and functions of the office other than the vice governor, city or municipal vice mayor, or highest ranking sangguniang barangay member as the case ‐ ‐maybe? XPN: If travelling within the country, outside his jurisdiction. (Sec. 46[c], LGC)

Note: A vice governor who is concurrently an acting governor is actually a quasi governor. For the purpose of exercising ‐ ‐his legislative prerogatives and powers, he is deemed a non member of the sangguninang panlalawigan for the time ‐being. (Gamboa v. Aguirre, G.R. No. 134213, July 20, 1999)

Under the LGC, who appoints the barangay treasurer, the barangay secretary and other appointive officers of the barangay?Ramon Alquizola, Sr. vs. Gallardo OcolSC HELD: The LGC vests on the PB upon the concurrence of the majority of the Sangguniang Barangay the power to appoint or remove the barangay treasurer, the barangay secretary and other appointive officers of the barangay. Verily, the

power of appointment is to be exercised conjointly by the PB and the SB. Applying the principle that the power to appoint includes the power to remove, removal shall be exercised conjointly.

What are the important characteristics of public office in a democratic and republican state?1. Public office is a public trust. It is not a privilege. The sense of public accountability must always be there.2. It cannot be inherited.3. Public office is outside the commerce of men, and therefore it should not subject of a valid contract.4. Public office is not a property and therefore is not protected by the due process clause. There can be no vested right in public office.

Designation – Presupposes a person has been appointed, merely being given additional powers, there is no security of tenure.

Appointment – essentially discretionary.

Define Appointment. Discuss its nature.

Held: An “appointment” to a public office is the unequivocal act of designating or selecting by one having the authority therefor of an individual to discharge and perform the duties and functions of an office or trust. The appointment is deemed complete once the last act required of the appointing authority has been complied with and its acceptance thereafter by the appointee in order to render it effective. Appointment necessarily calls for an exercise of discretion on the part of the appointing authority. In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court (140 SCRA 22), reiterated in Flores v. Drilon (223 SCRA 568), this Court has held:

“The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. It is a prerogative of the appointing power x x x.” (At p. 579) Indeed, it may rightly be said that the right of choice is the heart of the power to appoint. In the exercise of the power of appointment, discretion is an integral thereof. (Bermudez v. Torres, 311 SCRA 733, Aug. 4, 1999, 3rd Div. [Vitug])

Luego vs. CSCLuego Doctrine – Appointment is discretionary. It is a political question involves the question of wisdom of the appointing authority.

May the Civil Service Commission, or the Supreme Court, validly nullify an appointment on the ground that somebody else is better qualified?No.Held: The head of an agency who is the appointing power is the one most knowledgeable to decide who can best perform the functions of the office. Appointment is an essentially discretionary power and must be performed by the officer vested with such power 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. Indeed, this is a prerogative of the appointing authority which he alone can decide. The choice of an appointee from among those who possess the required qualifications is a political and administrative decision calling for considerations of wisdom, convenience, utility and the interests of the service which can best be made by the head of the office concerned, the person most familiar with the organizational structure and environmental circumstances within which the appointee must function.

As long as the appointee is qualified the Civil Service Commission has no choice but to attest to and respect the appointment even if it be proved that there are others with superior credentials. The law limits the Commission’s authority only to whether or not the appointees possess the legal qualifications and the appropriate civil service eligibility, nothing else. If they do then the appointments are approved because the Commission cannot exceed its power by substituting its will for that of the appointing authority. Neither can we. (Rimonte v. CSC, 244 SCRA 504-505, May 29, 1995, En Banc [Bellosillo, J.])

Flores vs. DrilonThen Mayor Dick Gordon was appointed to the SBMA under RA 7227. May the mayor of Olongapo be appointed as SBMA chairman for the first year of operation? A: No. This violates constitutional prohibition against appointment or designation of elective officials to other government posts. Appointive officials may be allowed by law or primary functions of his position to hold multiple offices. Elective officials are not so allowed, except as otherwise recognized in the Constitution (Ex-officio capacity only). The provision also encroaches on the executive power to appoint. (Flores v. Drilon, G.R. No. 104732, June 22, 1993)

A more fundamental reason why the SC did not allow the appointment of Dick Gordon as SBMA Chairman was that appointment is discretionary. At the core of discretion is the power to choose. So when Congress will prescribe qualifications to the position that will limit to just one qualified person to the position, it is an encroachment to the President’s prerogative. It will violate the doctrine of separation of powers. SC also declared RA 7227 as unconstitutional for this reason.

Sec. 7 Art. IX DSection 7. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. (Note: Exception, if appointment is only in ex-officio capacity)

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.

Next-in-Rank Rule – if a vacancy is created by promotion, the person next in rank may fill the position. (the person next-in-rank “would be among the first to be considered for the vacancy, if qualified.”)

Does the “next-in-rank” rule import any mandatory or peremptory requirement that the person next-in-rank must be appointed to the vacancy?

Held: The “next-in-rank rule is not absolute; it only applies in cases of promotion, a process which denotes a scalar ascent of an officer to another position higher either in rank or salary. And even in promotions, it can be disregarded for sound reasons made known to the next-in-rank, as the concept does not import any mandatory or peremptory requirement that the person next-in-rank must be appointed to the vacancy . The appointing authority, under the Civil Service Law, is allowed to fill vacancies by promotion, transfer of present employees, reinstatement, reemployment, and appointment of outsiders who have appropriate civil service eligibility, not necessarily in that order. There is no legal fiat that a vacancy must be filled only by promotion; the appointing authority is given wide discretion to fill a vacancy from among the several alternatives provided by law.

What the Civil Service Law provides is that if a vacancy is filled by promotion, the person holding the position next in rank thereto “shall be considered for promotion.”

In Taduran v. Civil Service Commission (131 SCRA 66 [1984]), the Court construed that phrase to mean that the person next-in-rank “would be among the first to be considered for the vacancy, if qualified.” In Santiago, Jr. v. Civil Service Commission (178 SCRA 733 [1989]), the Court elaborated the import of the rule in the following manner:

“One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position x x x”(Abila v. CSC, 198 SCRA 102, June 3, 1991, En Banc [Feliciano])

Take note: Appointment is essentially discretionary.

What are the Kinds of Appointments in the Civil Service?Permanent and TemporaryHow are appointments in the Civil Service classified?

Career and Non-Career.

Are there Regular Employees in Civil Service?No. The term Regular Employee is found in the Labor Code, not the Civil Service Law. What is found in the SCL is PERMANENT and TEMPORARY Employees.

Permanent vs. Temporary AppointmentIt is settled that a permanent appointment can be issued only “to a person who meets all the requirements for the position to which he s being appointed, including the appropriate eligibility prescribed.” Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and “at a moment’s notice,” conformably to established jurisprudence.

Temporary Appointment – 12 months or shorter.

CHARACTERISTICS OF CAREER POSITIONS:Career Positions are characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure (Sec. 7, Chap. 2, Subtitle A, Title I, Bk. V, E.O. No. 292).

CHARACTERISTICS OF NON-CAREER POSITIONS:The Non-Career Service shall be characterized by (1) entrance on bases other than of the usual tests of merit or fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made (Sec. 9, Chap. 2, Subtitle A, Title I, Bk. V, E.O. No. 292).

Take note: Elective Posts are NON-CAREER. Tenure thereto is a specified by law.

Highly Technical Position – one which requires the appointee thereto to possess skills or technical training in the supreme or superior degree.

Let us presume you are holding a primarily confidential position. You were removed on the ground of loss of confidence, can you complain for violation of your security of tenure?No. One who holds a position that is primarily confidential shall hold that office either coterminous with the appointing authority or subject to his pleasure. The removal does not really mean he/she was removed, it really means the term or duration (of the appointing authority’s pleasure) has expired.Corpuz vs. Cuaderno

What is a primarily confidential position? What is the test to determine whether a position is primarily confidential or not?

Held: A primarily confidential position is one which denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom from intercourse without embarrassment or freedom from misgivings or betrayals of personal trust or confidential matters of state. (De los Santos v. Mallare, 87 Phil. 289 [1950])

Under the proximity rule, 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 or embarrassment or misgivings of possible betrayal of personal trust or confidential matters of state. Withal, where the position occupied is more remote from that of the appointing authority, the element of trust between them is no longer predominant. (CSC v. Salas, 274 SCRA 414, June 19, 1997)

ADMINISTRATIVE CASES INVOLVING PUBLIC OFFICERS AND EMPLOYEES

Under the Civil Service Law, what court has original jurisdiction?Head secretary of the office, or bureau. LGUs – local chief executive. Appeal goes to the Civil Service Commission. Appeal of CSC decisions now go to the CA.

Can you file an administrative complaint against a public official or employee directly in the CSC?Yes. It has both original and appellate jurisdiction on this matter.

RA 6770 (Ombudsman Act)Ombudsman has administrative disciplinary authority over all public appointive and elective offices, national or local, except impeachable officers, members of Congress and the members of the judiciary.

Decision of the Ombudsman was, under Sec. 27 RA 6770, supposed to be appealed directly to the SC. However, in the case of Fabian vs. Desierto, the provision was declared unconstitutional. Hence, the decision of the ombudsman in an administrative case is appealable in the CA.

Note: If there is no law that grants you the right of appeal, it is not a right.

CIVIL SERVICE COMMISSIONIs appeal available under Civil Service Law?If you were charged administratively, and found guilty, penalized with cases where the penalty imposed is suspension for not more than thirty (30) days or fine in an amount not exceeding thirty days salary, APPEAL IS NOT ALLOWED.

If you penalized with suspension, demotion in rank or salary, transfer, removal or dismissal from office, suspension for more than thirty (30) days or fine in an amount exceeding thirty days salary, APPEAL IS ALLOWED.

Can the complainant appeal the decision of the CSC?No. Under the CSL, the term “the party adversely affected” pertains to the respondent. When respondent is exonerated of the charges, there is no occasion for appeal. Also, in administrative cases, the complainant is considered as considered as a witness, as the real offended party is the State itself. (Paredes v. Civil Service Commission, 192 SCRA 84, 85) This has been abandoned partially under CSC vs. Dacoycoy.

Does the Civil Service Law contemplate a review of decisions exonerating officers or employees from administrative charges?

Held: By this ruling, we now expressly abandon and overrule extant jurisprudence that “the phrase ‘party adversely affected by the decision’ refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office” and not included are “cases where the penalty imposed is suspension for not more than thirty (30) days or fine in an amount not exceeding thirty days salary” (Paredes v. Civil Service Commission, 192 SCRA 84, 85) or “when respondent is exonerated of the charges, there is no occasion for appeal.” (Mendez v. Civil Service Commission, 204 SCRA 965, 968) In other words, we overrule prior decisions holding that the Civil Service Law “does not contemplate a review of decisions exonerating officers or employees from administrative charges” enunciated in Paredes v. Civil Service Commission (192 SCRA 84); Mendez v. Civil Service Commission (204 SCRA 965); Magpale v. Civil Service Commission (215 SCRA 398); Navarro v. Civil Service Commission and Export Processing Zone Authority (226 SCRA 207) and more recently Del Castillo v. Civil Service Commission (237 SCRA 184). (CSC v. Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo])

Therefore: CSL now allows review of decisions exonerating officers or employees from administrative charges. The party adversely affected by the decision, the respondent, can now appeal.

Since the CSC became the party adversely affected by the decision, the CSC may also appeal.

NAC of NAPOLCOM vs. MAMAUAG – later case from Dacoycoy.Complainant has no personality to appeal. In an administrative case, the real offended party is the government. (This part of Paredes is still operational.)

PREVENTIVE SUSPENSIONPreventive suspension is merely an incident to an action, not an action in itself.Determine what the principal action was all about. Is there an administrative or criminal case, and such suspension was imposed? Different laws govern preventive suspension in administrative case vs. criminal case.

What are the significant laws to consider in the case of preventive suspension?Administrative cases are governed by these rules:CSLLGCOmbudsman Act

Criminal Cases involving public officers and employees – governed by the Anti-Graft Law

CSL – 90 days, automatically reinstated after 90 days if not yet resolved; Except:1. you contributed to the delay in the proceedings2. you filed a certiorariPeriods pertaining thereto are not included in the period of 90 days.

What is preventive suspension? Discuss its nature.

Held: Imposed during the pendency of an administrative investigation, preventive suspension is not a penalty in itself. It is merely a measure of precaution so that the employee who is charged may be separated, for obvious reasons, from the scene of his alleged misfeasance while the same is being investigated. Thus preventive suspension is distinct from the administrative penalty of removal from office such as the one mentioned in Sec. 8(d) of P.D. No. 807. While the former may be imposed on a respondent during the investigation of the charges against him, the latter is the penalty which may only be meted upon him at the termination of the investigation or the final disposition of the case. (Beja, Sr. v. CA, 207 SCRA 689, March 31, 1992 [Romero])

Service of the preventive suspension shall not be credited to the service of the penalty of suspension as the two suspensions are different in nature. Yabut vs. Vasquez

Service of preventive suspension cannot be credited to the service of the penalty of suspension.Quimbo vs. Gervacio

Indefinite suspension is violative of due process.Laylo vs. Ombudsman

Discuss the kinds of preventive suspension under the Civil Service Law. When may a civil service employee placed under preventive suspension be entitled to compensation?

Held: There are two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension: (1) preventive suspension pending investigation (Sec. 51, Civil Service Law, EO No. 292) and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated on appeal (Section 47, par. 4, Civil Service Law, EO No. 292).

Preventive suspension pending investigation is not a penalty. It is a measure intended to enable the disciplining authority to investigate charges against respondent by preventing the latter from intimidating or in any way influencing witnesses against him. If the investigation is not finished and a decision is not rendered within that period, the suspension will be lifted and the respondent will automatically be reinstated. If after investigation respondent is found innocent of the charges and is exonerated, he should be reinstated. However, no compensation was due for the period of preventive suspension pending investigation. The Civil Service Act of 1959 (R.A. No. 2260) providing for compensation in such a case once the respondent was exonerated was revised in 1975 and the provision on the payment of salaries during suspension was deleted.

But although it is held that employees who are preventively suspended pending investigation are not entitled to the payment of their salaries even if they are exonerated, they are entitled to compensation for the period of their suspension pending appeal if eventually they are found innocent.

Preventive suspension pending investigation x x x is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension . (Gloria v. CA, G.R. No. 131012, April 21, 1999, En Banc [Mendoza])

Two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension: (1) preventive suspension pending investigation (Sec. 51, Civil Service Law, EO No. 292) and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated on appeal

The knowing of the distinction lies in the payment of back salaries.

In Summary:preventive suspension pending investigation – not a penalty; if found innocent, he is to be reinstated, but not allowed to claim backwages (The Civil Service Act of 1959 (R.A. No. 2260) providing for compensation in such a case once the respondent was exonerated was revised in 1975 and the provision on the payment of salaries during suspension was deleted.)preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension

Who shall investigate and impose preventive suspension under the LGC?Local Government CodeSection 63 Local Elective OfficialsBarangay Elective Officials – MayorElective officials of Municipalities, Component Cities – GovernorElective officials of ICCs HUCC - PresidentElective Provincial Officials - President

Single administrative case – 60 daysSeveral administrative cases – In no case the period exceed 90 days.

Read Sec. 63 with:Section 62 (C) – no local elective official be placed under preventive suspension or subject to investigation 90 days before the next local elections. If ever having been placed under preventive suspension, the suspension will be lifted.

Section 85 – Applicable to local appointive officials and employeesMax duration: 60 days

Why is this provision crafted?Section 62 (C) – no local elective official be placed under preventive suspension or subject to investigation 90 days before the next local elections. If ever having been placed under preventive suspension, the suspension will be lifted.

~This is to prevent political harassment of the investigating officer; to prevent preventive suspension to be used as political harassment of the person subject to investigation.

Distinguish preventive suspension under the Local Government Code from preventive suspension under the Ombudsman Act.

Held: We reach the foregoing conclusion, however, without necessarily subscribing to petitioner’s claim that the Local Government Code, which he averred should apply to this case of an elective local official, has been violated. True, under said Code, preventive suspension may only be imposed after the issues are joined, and only for a maximum period of sixty

days. Here, petitioner was suspended without having had the chance to refute first the charges against him, and for the maximum period of six months provided by the Ombudsman Law. But as respondents argue, administrative complaints commenced under the Ombudsman Law are distinct from those initiated under the Local Government Code. Respondents point out that the shorter period of suspension under the Local Government Code is intended to limit the period of suspension that may be imposed by a mayor, a governor, or the President, who may be motivated by partisan political considerations. In contrast the Ombudsman, who can impose a longer period of preventive suspension, is not likely to be similarly motivated because it is a constitutional body. The distinction is valid but not decisive, in our view, of whether there has been grave abuse of discretion in a specific case of preventive suspension.

X x x

Respondents may be correct in pointing out the reason for the shorter period of preventive suspension imposable under the Local Government Code. Political color could taint the exercise of the power to suspend local officials by the mayor, governor, or President’s office. In contrast the Ombudsman, considering the constitutional origin of his Office, always ought to be insulated from the vagaries of politics, as respondents would have us believe.

In Hagad v. Gozo-Dadole (251 SCRA 242 [1995]), on the matter of whether or not the Ombudsman has been stripped of his power to investigate local elective officials by virtue of the Local Government Code, we said:

“Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other.” (Hagad v. Gozo-Dadole, supra, 251-252)

It was also argued in Hagad, that the six-month preventive suspension under the Ombudsman Law is “much too repugnant” to the 60-day period that may be imposed under the Local Government Code. But per J. Vitug, “the two provisions govern differently.” (Id., at 253-254)

However, petitioner now contends that Hagad did not settle the question of whether a local elective official may be preventively suspended even before the issues could be joined. Indeed it did not, but we have held in other cases that there could be preventive suspension even before the charges against the official are heard, or before the official is given an opportunity to prove his innocence (supra at note 14, excluding the case of Buenaseda v. Flavier). Preventive suspension is merely a preliminary step in an administrative investigation and is not in any way the final determination of the guilt of the official concerned.

Petitioner also avers that the suspension order against him was issued in violation of Section 26[2] of the Ombudsman Law x x x.

Petitioner argues that before an inquiry may be converted into a full-blown administrative investigation, the official concerned must be given 72 hours to answer the charges against him. In his case, petitioner says the inquiry was converted into an administrative investigation without him being given the required number of hours to answer.

Indeed, it does not appear that petitioner was given the requisite 72 hours to submit a written answer to the complaint against him. This, however, does not make invalid the preventive suspension order issued against him. As we have earlier stated, a preventive suspension order may be issued even before the charges against the official concerned is heard.

Moreover, respondents state that petitioner was given 10 days to submit his counter-affidavit to the complaint filed by respondent Tagaan. We find this 10-day period is in keeping with Section 5[a] of the Rules of Procedure of the Office of the Ombudsman x x x. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2nd Div. [Quisumbing])

OMBUDSMAN ACT (RA 6770)The ombudsman or his deputies has the power to impose preventive suspension.Max duration : 6 months.

The Ombudsman Act and Local Government Code are different laws.

Ombudsman’s authority to impose preventive suspension is in his administrative jurisdiction over all public officers or employees. In a criminal case, the ombudsman has no authority whatsoever to impose preventive suspension.

What is the difference between the preventive suspension provided under R.A. 6770 and under LGC? A: Preventive Suspension under RA 6770 Preventive Suspension under LGCRequirements:1. Evidence of Guilt is strong; and2. Any of the following circumstances are present:

a. the charge against the officer or employee should involve dishonesty, oppression or grave misconduct or neglect in the performance of duty;b. the charges should warrant removal from office; orc. the respondent’s continued stay in office would prejudice the case filed against him.

Requirements:1. There is reasonable ground to believe that the respondent has committed the act or acts complained of;2. The evidence of culpability is strong;3. The gravity of the offense so warrants;4. The continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence.

Maximum duration: 6 months Maximum duration: 60 days (Appointive officials and employees. (Hagad vs. Gozo-Dadole)Elective Officials:Single admin. Case – 60 daysSeveral admin. Cases – maximum 90 days

Q: Does the LGC withdraw the power of the Ombudsman under R.A. 6770 to conduct administrative investigation?A: No. Hence, the Ombudsman and the Office of the President have concurrent jurisdiction to conduct administrative investigations over elective officials. (Hagad v. Gozo Dadole, G.R. No. 108072, Dec.12, 1995)‐

Q: Who may sign an order preventively suspending officials?A: It is not only the Ombudsman, but also his Deputy, who may sign an order preventively suspending officials. Also, the length of the period of suspension within the limits provided by law and the evaluation of the strength of the evidence both lie in the discretion of the Ombudsman. It is immaterial that no evidence has been adduced to prove that the official may influence possible witnesses or may tamper with the public records. It is sufficient that there exists such a possibility. (Castilo Co v. Barbers, G.R. No. 129952 June 16, 1998)‐

Q. What is the effect of an appeal on the preventive suspension ordered by the Ombudsman?A. An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal. A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course. (Office of the Ombudsman vs. Samaniego, G.R. No. 175573, October 5, 2010)

Anti-graft and Corrupt Practices Act RA 3019For criminal cases: Anti Graft and Corrupt Practices Act (R.A. 3019) – ‐ 90 days by analogy with the CSL.Sec. 13 RA 3019 as Amended - Suspension and Loss of BenefitsIt is silent as to who shall impose suspension. It is also silent as to the duration.The court where the case was filed shall impose the suspension. RTC (below SG 27) or Sandiganbayan (SG27 up).

Since the law is silent as to duration, apply by analogy of the CSL.Gonzaga vs. Sandiganbayan.

Preventive suspension under RA 3019 is mandatory, but not automatic. Once the information is filed, the court must conduct a pre-suspension hearing.(Socrates vs. Sandiganbayan)

Note: When a public officer is charged with violation of the Anti Graft and Corrupt Practices Act or R. A No. 3019, ‐ a pre‐suspension hearing is required solely to determine the applicability of such law and for the accused be given a fair and adequate opportunity to challenge the validity of the criminal proceedings against him. This may be done through various pleadings. (Torres v. Garchitorena, G.R. No. 153666, Dec. 27, 2002)

X is a mayor. A case was filed against him. During the pendency of the case, X ran for governor and won. After the proclamation, the Sandiganbayan issued a preventive suspension against now Governor X. X claimed the suspension was irregularly issued. Is X correct?No. Section 13 of Republic Act No. 3019 does not state that the public officer concerned must be suspended only in the office where he is alleged to have committed the acts with which he has been charged. Thus, it has been held that the use of the word “office” would indicate that it applies to any office which the officer charged may be holding, and not only the particular office under which he stands accused. (Bayot v. Sandiganbayan, supra; Segovia v. Sandiganbayan, supra.)

X was a governor. He signed for the government certain contracts. Anti-graft complaints due to these. During the investigation, X ran for congressman and won. The Ombudsman filed a graft case against X in the Sandiganbayan. The suspension order was given to the speaker of the house. It was not implemented. They claim that the suspension was an encroachment on the legislative power to punish its members under Sec. 16 (3), Art. VI of the Constitution. Is this correct?No.“x x x. Petitioner’s invocation of Section 16 (3), Article VI of the Constitution – which deals with the power of each House of Congress inter alia to ‘punish its Members for disorderly behavior,’ and ‘suspend or expel a Member’ by a vote of two-thirds of all its Members subject to the qualification that the penalty of suspension, when imposed, should not exceed sixty days – is unavailing, as it appears to be quite distinct from the suspension spoken of in Section 13 of RA 3019, which is not a penalty but a preliminary, preventive measure, prescinding from the fact that the latter is not being imposed on petitioner for misbehavior as a Member of the House of Representatives.”

The doctrine of separation of powers by itself may not be deemed to have effectively excluded Members of Congress from Republic Act No. 3019 nor from its sanctions. The maxim simply recognizes each of the three co-equal and independent, albeit coordinate, branches of the government – the Legislative, the Executive and the Judiciary – has exclusive prerogatives and cognizance within its own sphere of influence and effectively prevents one branch from unduly intruding into the internal affairs of either branch.

Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of the 1987 Constitution, empowers the Court to act not only in the settlement of “actual controversies involving rights which are legally demandable and enforceable,” but also in the determination of “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.” The provision allowing the Court to look into any possible grave abuse of discretion committed by any government instrumentality has evidently been couched in general terms in order to make it malleable to judicial interpretation in the light of any emerging milieu. In its normal concept, the term has been said to imply an arbitrary, despotic, capricious or whimsical exercise of judgment amounting to lack or excess of jurisdiction. When the question, however, pertains to an affair internal to either of Congress or the Executive, the Court subscribes to the view that unless an infringement of any specific Constitutional proscription thereby inheres the Court should not deign substitute its own judgment over that of any of the other two branches of government. It is an impairment or a clear disregard of a specific constitutional precept or provision that can unbolt the steel door for judicial intervention. If any part of the Constitution is not, or ceases to be, responsive to contemporary needs, it is the people, not the Court, who must promptly react in the manner prescribed by the Charter itself.

Is it mandatory for the Sandiganbayan to suspend a public officer against whom a valid information is filed?A: It is now settled that Section 13, RA 3019, makes it mandatory for the Sandiganbayan to suspend any public officer against whom a valid information charging violation of that law, or any offense involving fraud upon the government or public funds or property is filed. (Bolastig v. Sandiganbayan, 235 SCRA 103)

AGAIN:1. Determine what the principal action is (Criminal vs. Administrative Case)2. What is the law applicable?Administrative Case : LGC, Ombudsman Act, CSLCriminal Case – Sec. 13, Anti-Graft and Corrupt Practices Act RA 30193. PenaltiesAdministrative penalties – removal from office with forfeiture of retirement benefits (at the most)

Ganzon vs. CA

Amidst the two successive suspensions, Mayor Ganzon instituted an action for prohibition against the respondent Secretary of Local Government (now, Interior) in the Regional Trial Court, Iloilo City, where he succeeded in obtaining a writ of preliminary injunction. Presently, he instituted CA-G.R. SP No. 16417, an action for prohibition, in the respondent Court of Appeals.

Meanwhile, on May 3, 1990, the respondent Secretary issued another order, preventively suspending Mayor Ganzon for another sixty days, the third time in twenty months, and designating meantime Vice-Mayor Mansueto Malabor as acting mayor. Undaunted, Mayor Ganzon commenced CA-G.R. SP No. 20736 of the Court of Appeals, a petition for prohibition, (Malabor it is to be noted, is one of the complainants, and hence, he is interested in seeing Mayor Ganzon ousted.)

On September 7, 1989, the Court of Appeals rendered judgment, dismissing CA-G.R. SP No. 16417. On July 5, 1990, it likewise promulgated a decision, dismissing CA-G.R. SP No. 20736. In a Resolution dated January 24, 1990, it issued a Resolution certifying the petition of Mary Ann Artieda, who had been similary charged by the respondent Secretary, to this Court.

Issue: Whether or not the Secretary of Local Government, as the President's alter ego, can suspend and/or remove local officials.

HELD:

The issue, as the Court understands it, consists of three questions: (1) Did the 1987 Constitution, in deleting the phrase "as may be provided by law" intend to divest the President of the power to investigate, suspend, discipline, and/or remove local officials? (2) Has the Constitution repealed Sections 62 and 63 of the Local Government Code? (3) What is the significance of the change in the constitutional language?

It is the considered opinion of the Court that notwithstanding the change in the constitutional language, the charter did not intend to divest the legislature of its right or the President of her prerogative as conferred by existing legislation to provide administrative sanctions against local officials. It is our opinion that the omission (of "as may be provided by law") signifies nothing more than to underscore local governments' autonomy from congress and to break Congress' "control" over local government affairs. The Constitution did not, however, intend, for the sake of local autonomy, to deprive the legislature of all authority over municipal corporations, in particular, concerning discipline.

Autonomy does not, after all, contemplate making mini-states out of local government units, as in the federal governments of the United States of America (or Brazil or Germany), although Jefferson is said to have compared municipal corporations euphemistically to "small republics." Autonomy, in the constitutional sense, is subject to the guiding star, though not control, of the legislature, albeit the legislative responsibility under the Constitution and as the "supervision clause" itself suggest-is to wean local government units from over-dependence on the central government.

It is noteworthy that under the Charter, "local autonomy" is not instantly self-executing, but subject to, among other things, the passage of a local government code, a local tax law, income distribution legislation, and a national representation law, and measures designed to realize autonomy at the local level. It is also noteworthy that in spite of autonomy, the Constitution places the local government under the general supervision of the Executive. It is noteworthy finally, that the Charter allows Congress to include in the local government code provisions for removal of local officials, which suggest that Congress may exercise removal powers, and as the existing Local Government Code has done, delegate its exercise to the President. Thus:

Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units.

As hereinabove indicated, the deletion of "as may be provided by law" was meant to stress, sub silencio, the objective of the framers to strengthen local autonomy by severing congressional control of its affairs, as observed by the Court of Appeals, like the power of local legislation. The Constitution did nothing more, however, and insofar as existing legislation authorizes the President (through the Secretary of Local Government) to proceed against local officials administratively, the Constitution contains no prohibition.

XXXX

"Control" has been defined as "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for test of the latter." "Supervision" on the other hand means "overseeing or the power or authority of an officer to see that subordinate officers perform their duties. As we held, however, "investigating" is not inconsistent with "overseeing", although it is a lesser power than "altering". The impression is apparently exacerbated by the Court's pronouncements in at least three cases, Lacson v. Roque, Hebron v. Reyes, and Mondano v. Silvosa, and possibly, a fourth one, Pelaez v. Auditor General. In Lacson, this Court said that the President enjoyed no control powers but only supervision "as may be provided by law," a rule we reiterated in Hebron, and Mondano. In Pelaez, we stated that the President "may not . . . suspend an elective official of a regular municipality or take any disciplinary action against him, except on appeal from a decision of the corresponding provincial board." However, neither Lacson nor Hebron nor Mondano categorically banned the Chief Executive from exercising acts of disciplinary authority because she did not exercise control powers, but because no law allowed her to exercise disciplinary authority. Thus, according to Lacson:

The contention that the President has inherent power to remove or suspend municipal officers is without doubt not well taken. Removal and suspension of public officers are always controlled by the particular law applicable and its proper construction subject to constitutional limitations.

In Hebron we stated:

Accordingly, when the procedure for the suspension of an officer is specified by law, the same must be deemed mandatory and adhered to strictly, in the absence of express or clear provision to the contrary-which does not et with respect to municipal officers ...

In Mondano, the Court held:

... The Congress has expressly and specifically lodged the provincial supervision over municipal officials in the provincial governor who is authorized to "receive and investigate complaints made under oath against municipal officers for neglect of duty, oppression, corruption or other form of maladministration of office, and conviction by final judgment of any crime involving moral turpitude." And if the charges are serious, "he shall submit written charges touching the matter to the provincial board, furnishing a copy of such charges to the accused either personally or by registered mail, and he may in such case suspend the officer (not being the municipal treasurer) pending action by the board, if in his opinion the charge by one affecting the official integrity of the officer in question." Section 86 of the Revised Administration Code adds nothing to the power of supervision to be exercised by the Department Head over the administration of ... municipalities ... . If it be construed that it does and such additional power is the same authority as that vested in the Department Head by section 79(c) of the Revised Administrative Code, then such additional power must be deemed to have been abrogated by Section 110(l), Article VII of the Constitution.

xxx xxx xxx

In Pelaez, we stated that the President can not impose disciplinary measures on local officials except on appeal from the provincial board pursuant to the Administrative Code.

Thus, in those cases that this Court denied the President the power (to suspend/remove) it was not because we did not think that the President can not exercise it on account of his limited power, but because the law lodged the power elsewhere. But in those cases in which the law gave him the power, the Court, as in Ganzon v. Kayanan, found little difficulty in sustaining him.

The Court does not believe that the petitioners can rightfully point to the debates of the Constitutional Commission to defeat the President's powers. The Court believes that the deliberations are by themselves inconclusive, because although Commissioner Jose Nolledo would exclude the power of removal from the President, Commissioner Blas Ople would not.

The Court is consequently reluctant to say that the new Constitution has repealed the Local Government Code, Batas Blg. 37. As we said, "supervision" and "removal" are not incompatible terms and one may stand with the other notwithstanding the stronger expression of local autonomy under the new Charter. We have indeed held that in spite of the approval of the Charter, Batas Blg. 337 is still in force and effect.

As the Constitution itself declares, local autonomy means "a more responsive and accountable local government structure instituted through a system of decentralization." The Constitution as we observed, does nothing more than to break up the monopoly of the national government over the affairs of local governments and as put by political adherents, to "liberate the local governments from the imperialism of Manila." Autonomy, however, is not meant to end the relation of partnership and inter-dependence between the central administration and local government units, or otherwise, to user in a regime of federalism. The Charter has not taken such a radical step. Local governments, under the Constitution, are subject to regulation, however limited, and for no other purpose than precisely, albeit paradoxically, to enhance self- government.

As we observed in one case, decentralization means devolution of national administration but not power to the local levels. Thus:

Now, autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments "more responsive and accountable," and "ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress." At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises "general supervision" over them, but only to "ensure that local affairs are administered according to law." He has no control over their acts in the sense that he can substitute their judgments with his own.

Decentralization of power, on the other hand, involves an abdication of political power in the favor of local governments units declared to be autonomous., In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to "self-immolation," since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency.

******

The plain truth is that this Court has been ill at ease with suspensions, for the above reasons, and so also, because it is out of the ordinary to have a vacancy in local government. The sole objective of a suspension, as we have held, is simply "to prevent the accused from hampering the normal cause of the investigation with his influence and authority over possible witnesses" or to keep him off "the records and other evidence.

It is a means, and no more, to assist prosecutors in firming up a case, if any, against an erring local official. Under the Local Government Code, it cannot exceed sixty days, which is to say that it need not be exactly sixty days long if a shorter period is otherwise sufficient, and which is also to say that it ought to be lifted if prosecutors have achieved their purpose in a shorter span.

Suspension is not a penalty and is not unlike preventive imprisonment in which the accused is held to insure his presence at the trial. In both cases, the accused (the respondent) enjoys a presumption of innocence unless and until found guilty.

Suspension finally is temporary and as the Local Government Code provides, it may be imposed for no more than sixty days. As we held, a longer suspension is unjust and unreasonable, and we might add, nothing less than tyranny.

As we observed earlier, imposing 600 days of suspension which is not a remote possibility Mayor Ganzon is to all intents and purposes, to make him spend the rest of his term in inactivity. It is also to make, to all intents and purposes, his suspension permanent.

It is also, in fact, to mete out punishment in spite of the fact that the Mayor's guilt has not been proven. Worse, any absolution will be for naught because needless to say, the length of his suspension would have, by the time he is reinstated, wiped out his tenure considerably.

The Court is not to be mistaken for obstructing the efforts of the respondent Secretary to see that justice is done in Iloilo City, yet it is hardly any argument to inflict on Mayor Ganzon successive suspensions when apparently, the respondent Secretary has had sufficient time to gather the necessary evidence to build a case against the Mayor without suspending him a day longer. What is intriguing is that the respondent Secretary has been cracking down, so to speak, on the Mayor piecemeal apparently, to pin him down ten times the pain, when he, the respondent Secretary, could have pursued a consolidated effort.

We reiterate that we are not precluding the President, through the Secretary of Interior from exercising a legal power, yet we are of the opinion that the Secretary of Interior is exercising that power oppressively, and needless to say, with a grave abuse of discretion.

The Court is aware that only the third suspension is under questions, and that any talk of future suspensions is in fact premature. The fact remains, however, that Mayor Ganzon has been made to serve a total of 120 days of suspension and the possibility of sixty days more is arguably around the corner (which amounts to a violation of the Local Government Code which brings to light a pattern of suspensions intended to suspend the Mayor the rest of his natural tenure. The Court is simply foreclosing what appears to us as a concerted effort of the State to perpetuate an arbitrary act.

As we said, we can not tolerate such a state of affairs.

In resume the Court is laying down the following rules:

1. Local autonomy, under the Constitution, involves a mere decentralization of administration, not of power, in which local officials remain accountable to the central government in the manner the law may provide;

2. The new Constitution does not prescribe federalism;

3. The change in constitutional language (with respect to the supervision clause) was meant but to deny legislative control over local governments; it did not exempt the latter from legislative regulations provided regulation is consistent with the fundamental premise of autonomy;

4. Since local governments remain accountable to the national authority, the latter may, by law, and in the manner set forth therein, impose disciplinary action against local officials;

5. "Supervision" and "investigation" are not inconsistent terms; "investigation" does not signify "control" (which the President does not have);

6. The petitioner, Mayor Rodolfo Ganzon. may serve the suspension so far ordered, but may no longer be suspended for the offenses he was charged originally; provided:

a) that delays in the investigation of those charges "due to his fault, neglect or request, (the time of the delay) shall not be counted in computing the time of suspension. [Supra, sec. 63(3)]

b) that if during, or after the expiration of, his preventive suspension, the petitioner commits another or other crimes and abuses for which proper charges are filed against him by the aggrieved party or parties, his previous suspension shall not be a bar to his being preventively suspended again, if warranted under subpar. (2), Section 63 of the Local Government Code.

ADMINISTRATIVE PENALTIESDoctrine of CondonationWhat is the doctrine of forgiveness or condonation? Does it apply to pending criminal cases?

Held: 1. A public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner. (Aguinaldo v. Santos, 212 SCRA 768, 773 [1992])

2. A reelected local official may not be held administratively accountable for misconduct committed during his prior term of office. The rationale for this holding is that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds. (Mayor Alvin B. Garcia v. Hon. Arturo C. Mojica, et al., G.R. No. 139043, Sept. 10, 1999 [Quisumbing])

Doctrine of Condonation applies only to administrative cases involving elective public officials who had been reelected.In criminal cases, there is no such thing as condonation.

Law on NepotismCSL – up to 3rd civil degree onlySec. 79 LGC – Nepotism provision, prohibited degree is up to 4th civil degree.

What are the situations covered by the law on nepotism?Held: Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following:a) appointing authority;b) recommending authority;c) chief of the bureau or office; andd) person exercising immediate supervision over the appointee.

Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee. (CSC v. Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo])

What are the exemptions from the operation of the rules on nepotism?Ans.: The following are exempted from the operation of the rules on nepotism: (a) persons employed in a confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines.(e) member of any family who, after his or her appointment to any position in an office or bureau, contracts marriage with someone in the same office or bureau, in which event the employment or retention therein of both husband and wife may be allowed. (Sec. 59, Chap. 7, Subtitle A, Title I, Bk. V, E.O. No. 292)

The law of nepotism applies to all kinds of appointments in the government service. The law did not distinguish as to the kind of appointments, thus let us distinguish.Debulgado vs. CSC

Laurel vs. CSCGov. Laurel employed his brother as a civil security officer (bodyguard). At that time, the provincial administrator’s position was a career position. Gov. Laurel designated his same brother as acting provincial administrator. Gov. Laurel claimed that he did not violate the law on nepotism, since he merely DESIGNATED his brother, not appointed his brother. Is he correct?SC held that he is correct. Designation presupposes that the person is already appointed, but merely given additional functions. But, for the purposes of the law on nepotism, the designation and appointment are the same. One cannot indirectly do what the law directly prohibits him to do.

Relate to:Prohibition against nepotism. Sec. 13 2nd Paragraph Art. VII – prohibition against appointing his spouse, or any relatives within the 4th civil degree by consanguinity or affinity, to the Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries. Kamaganak, Inc.

Powers of the Ombudsman:

Art. XI Sec. 5Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed.

RA 6770 – The Ombudsman Act of 1989Administrative Jurisdiction: Administrative disciplinary authority over all public officers and employees, whether elective or appointive, national or local, except only with respect to impeachable officers, members of Congress and members of the Judiciary.

Criminal Jurisdiction: The Ombudsman shall investigate and prosecute only, but jurisdiction lies in the Sandiganbayan.

Appeal of Ombudsman Decision: Sec. 27 of RA 6770 providing for direct appeal to the SC has been declared unconstitutional, hence all decisions of the Ombudsman in an administrative case appeals goes to the CA. (Fabian vs. Ombudsman Desierto)

Ombudsman and his deputies have the power to hold preventive suspension.

Preventive suspension as penalty is different from suspension as a penalty. Preventive suspension is merely a measure of precaution so that the employee will be separated from his office while the investigation is ongoing.

Gloria vs. CA – Preventive suspension for purposes of preventing person subject of investigation from intimidating or in any way influencing witnesses. (preventive suspension)

Yabut vs. Ombudsman Vasquez – Preventive suspension cannot be considered service of suspension handed down as penalty.

The two suspensions are different in nature. Suspension is the penalty handed down to him upon finding him guilty of the charge. Service of preventive suspension cannot be credited to the penalty of suspension imposed upon him.Quimbo vs. Gervacio

Preventive suspension by the Ombudsman is applicable only in administrative cases. In a criminal case, only the court where the information was filed shall have the authority to impose preventive suspension. The Ombudsman has no power to impose preventive suspension in a criminal case.

Criminal Prosecution by the Ombudsman:Sandiganbayan – SG27 aboveRTC – below SG27

Principle of Non-refoulementThe right of a refugee not to be expelled or returned ”in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

Doctrine of State Responsibility/ International TortA state is under no obligation to admit an alien in its territory. However, once admitted, the state has the duty to afford protection to that alien. Any injury to that alien, or if the alien dies, since the stat was remiss of this duty of protection would give rise to a liability against the state.

Stockholm Declaration (Principle 21) – declaration of the UN Conference on the Human Environment, which was made in Sweden in June 27, 1972. It has 26 principles.

Principle 21 states that all states have the sovereign right to exploit their own resources pursuant to their own environmental policies and they have the responsibility to ensure that their activities within their jurisdiction or control will not cause environmental damage within their territory or beyond the limits of their own territorial jurisdiction. Jus cogens norms – a peremptory/mandatory norm of general international law which is recognized and accepted by the international community states as a norm that does not permit of any derogation, and which can only be modified by another subsequent norm of general international law of the same character. (COMPELLING LAW)Ex. Prohibition against the use of force under the UN Charter. Law on Genocide. Prohibition against slavery and slave trade.

Under the Vienna Convention Law of Treaties, a treaty which violates a jus cogens norm will have to be invalidated.

Peremptory - mandatory

Erga omnes obligations – it is an obligation of every state towards the international community as a whole. All states have legal interest in its compliance. All states are entitled to invoke responsibility for breach of such an obligation.

If it is a jus cogens norm, it becomes an erga omnes obligation of a state. Between an erga omnes obligation and an obligation by way of a treaty by one state with another state, the erga omnes obligation shall be superior.

Vinuya vs. Romulo – Comfort Women CaseVinuya vs. Romulo (involving comfort women…. Aka… the plagiarism case)Background: Before the outbreak of WWII, there was a prior war with Japan and China. Japan seized the city of Nanking where they committed atrocities, one of them being the rape of all women there. As a reaction of adverse public opinion in

Japan, Japan adopted an official policy, the establishment of comfort stations in the areas that they occupied, mostly the conscription being against the will of the women. This was done in RP when Japan conquered RP. We entered to a treaty of peace with Japan in 1951, subject to the payment of reparations to RP. In 2008, the surviving comfort women wanted the president to espouse their claims against Japan for the rapes committed against their person and pay reparations to them. The executive branch refused, claiming that Japan had already done so and had paid reparations. The comfort women filed the case in court to compel the executive to take up their cause. May the court compel the executive to do so?

SC state that the most they can do is to exhort the executive, but not to compel. The issue involves a political question wherein matters of foreign policy are under the president’s discretion, as the chief architect foreign policy and as spokesman. Refusal to do so was to avoid strained relations and political embarrassment. The peace treaty with Japan had already waived future claims in exchange full compensation of a future peace. History has vindicated the wisdom of that bargain.

As the state has the duty to protect his citizens, petitioners state that their cause has become an erga mones obligation. Were they correct?SC held that these are more recent developments. There was no proof whatsoever at that time that this specific cause has evolved as a jus cogens norm which the state is obligated to pursue.

PUBLIC INTERNATIONAL LAWEx aequo et bono – If both parties of the dispute agree, the court can apply equity in precedence to all other legal rules.Paragraph 2, Article 38 of the Statute of the ICJ.

Equity – invoked only when there is no provision of the law applying in a certain instance/case. Dura lex, sed lex – basis of our justice system.

War of National LiberationIn Marxist terminology, wars of national liberation or national liberation revolutions are conflicts fought by oppressed nationalities against imperial powers to establish separate sovereign states for the subjugated nationality. From a Western point of view, these same wars are called insurgencies or rebellions, or more positively, wars of independence. Wars of national liberation refer to the wars fought since the October Revolution of 1917, especially those fought during the decolonization movement, and never those fought against a communist party. They were founded in guerrilla warfare or asymmetric warfare by national liberation movements, often with intervention from other states. This struggle became a major battlefield of the Cold War.

War of IndependenceA war of independence is a conflict occurring over a territory that has declared independence. Once the state that previously held the territory sends in military forces to assert its sovereignty or the native population clashes with the former occupier, a separatist rebellion has begun. If a new state is successfully established, the conflict is subsequently known as a war of independence.

Relations between International Law and Municipal LawDoctrines of Incorporation and Transformation

Q: What is the Doctrine of Incorporation? A: Under this doctrine, rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. The doctrine decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments.

Q: What is the Doctrine of Transformation? A: This doctrine holds that the generally accepted 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.

Important, remember the second part:

Section 2 Art. 2 2nd phrase “adopts the generally accepted principles of international law as part of the law of the land”

Doctrine of incorporation in international law – generally accepted principles of international law automatically becomes part of the law of the land, RP subscribes to this principle.

Doctrine of transformation – the generally accepted principles of international shall require an enabling act from the legislative to adopt them as part of the law.

What are some generally accepted principles of International Law?~Doctrine of State Immunity From Suit~Doctrine of Sovereign Equality of All States (par in parem no habet imperium)~Pacta sund servanda (Treaties must be observed in good faith). Tanada vs Angara – Ratification of the GATT creating WTO. It is one of the oldest principles of international law. A state which enters to a treaty may not advance the provision of its own laws in order not to comply with its treaties. A state is bound to modify its laws in order to be able to comply with its treaty obligations.~Right to self-determination of peoples - Province of North Cotabato vs. Government of RP Peace Panel. This is a right that belongs to minority groups (indigenous peoples/cultural communities) within a state. This has been elevated into the status of a generally applicable principle of international law. It is automatically incorporated in our rules. Also, this is a jus cogens norm.

May the Bangsamoro People of Mindanao validly invoke the Right to self-determination of peoples in order to secede or to separate from the RP?No, they may not. When we talk of the right to self-determination, you have to distinguish between internal and external self-determination.

The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination - a people's pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances, such as where a people is under colonial rule, is subject to foreign domination or exploitation outside a colonial context.

Province of North Cotabato vs. Government of RP Peace PanelInternational law has long recognized the right to self-determination of "peoples," understood not merely as the entire population of a State but also a portion thereof. In considering the question of whether the people of Quebec had a right to unilaterally secede from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION OF QUEBEC had occasion to acknowledge that "the right of a people to self-determination is now so widely recognized in international conventions that the principle has acquired a status beyond `convention' and is considered a general principle of international law."

Among the conventions referred to are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights which state, in Article 1 of both covenants, that all peoples, by virtue of the right of self-determination, "freely determine their political status and freely pursue their economic, social, and cultural development."

The people's right to self-determination should not, however, be understood as extending to a unilateral right of secession. A distinction should be made between the right of internal and external self-determination. REFERENCE RE SECESSION OF QUEBEC is again instructive:

"(ii) Scope of the Right to Self-determination

126. The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination - a people's pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral

secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. x x x

External self-determination can be defined as in the following statement from the Declaration on Friendly Relations, supra, as

The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people. (Emphasis added)

127. The international law principle of self-determination has evolved within a framework of respect for the territorial integrity of existing states. The various international documents that support the existence of a people's right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state's territorial integrity or the stability of relations between sovereign states.

x x x x (Emphasis, italics and underscoring supplied)The Canadian Court went on to discuss the exceptional cases in which the right to external self-determination can arise, namely, where a people is under colonial rule, is subject to foreign domination or exploitation outside a colonial context, and - less definitely but asserted by a number of commentators - is blocked from the meaningful exercise of its right to internal self-determination. The Court ultimately held that the population of Quebec had no right to secession, as the same is not under colonial rule or foreign domination, nor is it being deprived of the freedom to make political choices and pursue economic, social and cultural development, citing that Quebec is equitably represented in legislative, executive and judicial institutions within Canada, even occupying prominent positions therein.

internal self-determination - a people's pursuit of its political, economic, social and cultural development within the framework of an existing state

external self-determination - arises in only the most extreme of cases and, even then, under carefully defined circumstances, such as where a people is under colonial rule, is subject to foreign domination or exploitation outside a colonial context.

Ang Ladlad vs. COMELEC Yogyakarta PrinciplesAt this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice. Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of international law to ascertain their true status. We also hasten to add that not everything that society – or a certain segment of society – wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many social desires as rights in order to further claims that international law obliges states to sanction these innovations. This has the effect of diluting real human rights, and is a result of the notion that if “wants” are couched in “rights” language, then they are no longer controversial. Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international law professors, are – at best – de lege ferenda – and do not constitute binding obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the “soft law” nomenclature, i.e., international law is full of principles that promote international cooperation, harmony, and respect for human rights, most of which amount to no more than well-meaning desires, without the support of either State practice or opinio juris.

Opinio juris - Latin: the sense of legal obligation. In international law, acceptance of a practice as sufficient to create legal obligations.

Yogyakarta Principles – the application of international human rights law in relation to sexual orientation and gender identity.

Q: What are the sources of Public International Law?A:Primary Sources:1. International conventions, whether general or particular, establishing rules expressly recognized by the contesting state, treaties;2. International custom, as evidence of a general practice accepted as law; and3. The general principles of law recognized by civilized nations; (Article 38(1), Statute of the International Court of Justice)

Note: Sources of law refer to norms derived from international conventions on treaties, customs, and general principles of law. The distinctive character of these norms is that they are created or they acquire binding effect through the methods pointed above.

Secondary Sources:1. Decisions of international tribunals; and2. Teachings of the most highly qualified publicists of various nations.

Q: What is the difference between formal sources from material sources of international law?A: Formal sources consist of the methods and procedures by which norms are created while material sources are the substantive evidence of the existence of norms.Note: The material sources supplies the substance of the rule to which the formal sources gives the force and nature of law. Thus, custom as a norm creating process is a formal source of law.

International conventions, whether general or particular, establishing rules expressly recognized by the contesting state, treaties;Take into account jus cogens norms

Jus cogens norms – a peremptory/mandatory norm of general international law which is recognized and accepted by the international community states as a norm that does not permit of any derogation, and which can only be modified by another subsequent norm of general international law of the same character. (COMPELLING LAW)Ex. Prohibition against the use of force under the UN Charter. Law on Genocide. Prohibition against slavery and slave trade.

Under the Vienna Convention Law of Treaties, a treaty which violates a jus cogens norm will have to be invalidated.

Peremptory - mandatory

Erga omnes obligations – it is an obligation of every state towards the international community as a whole. All states have legal interest in its compliance. All states are entitled to invoke responsibility for breach of such an obligation.If it is a jus cogens norm, it becomes an erga omnes obligation of a state. Between an erga omnes obligation and a treaty with another state, the erga omnes obligation shall be superior.

What is the relationship between a jus cogens norm and an erga omnes norm?Once it has becomes established as a jus cogens norm, then it becomes an erga omnes obligation of a state.

Vinuya vs. Romulo – Comfort Women CaseVinuya vs. Romulo (involving comfort women…. Aka… the plagiarism case)Background: Before the outbreak of WWII, there was a prior war with Japan and China. Japan seized the city of Nanking where they committed atrocities, one of them being the rape of all women there. As a reaction of adverse public opinion in Japan, Japan adopted an official policy, the establishment of comfort stations in the areas that they occupied, mostly the conscription being against the will of the women. This was done in RP when Japan conquered RP. We entered to a treaty of peace with Japan in 1951, subject to the payment of reparations to RP. In 2008, the surviving comfort women wanted the

president to espouse their claims against Japan for the rapes committed against their person and pay reparations to them. The executive branch refused, claiming that Japan had already done so and had paid reparations. The comfort women filed the case in court to compel the executive to take up their cause. May the court compel the executive to do so?SC state that the most they can do is to exhort the executive, but not to compel. The issue involves a political question wherein matters of foreign policy are under the president’s discretion, as the chief architect foreign policy and as spokesman. Refusal to do so was to avoid strained relations and political embarrassment. The peace treaty with Japan had already waived future claims in exchange full compensation of a future peace. History has vindicated the wisdom of that bargain.

As the state has the duty to protect his citizens, petitioners state that their cause has become an erga mones obligation. Were they correct?SC held that these are more recent developments. There was no proof whatsoever at that time that this specific cause has evolved as a jus cogens norm which the state is obligated to pursue.

TREATIES AS SOURCES OF INTERNATIONAL OBLIGATIONS

Ratification of TreatiesWho has the power to ratify a treaty?Held: In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification . (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])

Pimintel vs. Office of the SecretaryThe role of the senate is limited only to giving or withholding its consent, or concurrence, to the ratification .

Q: Who ratifies a treaty? What is the scope of the power to concur treaties and international agreements?A: The power to ratify is vested in the President subject to the concurrence of Senate. The role of the Senate, however, is limited only to giving or withholding its consent or concurrence. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate. Although the refusal of a state to ratify a treaty which has been signed in his behalf is a serious step that should not be taken lightly, such decision is within the competence of the President alone, which cannot be encroached upon by the Court via a writ of mandamus. (Pimentel v. Ermita, G.R. No. 164978, Oct. 13, 2005)

Treaty or International Agreement – require concurrence of the Senate

Executive agreement – it does not require concurrence.

Is an executive agreement an equally binding obligation?In international law, there is no difference between treaties or executive agreements in their binding effects concerned, as long as the functionaries remain within their power. International law continues to make no distinctions between treaties and executive agreements. They are equally binding obligations upon nations. (Bayan vs. Zamora)

What about an exchange of notes?In connection with the loan agreement, there was an exchange of notes between ambassadors of Japan and RP. An exchange of notes is considered a form of an executive agreement, which becomes binding through executive action without the need of a vote by the Senate or the Congress. (Abaya vs. Ebdane, Jr. 2007)

Visiting Forces Agreement aka Balikatan ExercisesUS forces were allowed to come here for joint military exercises and civil actions. Among the purpose was to enhance defense capability of the Philippines.Is this VFA a treaty or is this an executive agreement?It is a treaty. No less than the president himself considered this a treaty as he transmitted this to Congress for concurrence. (Bayan vs. Zamora)

Q: Is VFA a treaty or a mere executive agreement?A:

In the case of Bayan v. Zamora G.R No. 138570, Oct. 10, 2000, VFA was considered a treaty because the Senate concurred in via 2/3 votes of all its members. But in the point of view of the US Government, it is merely an executive agreement.

If that be the case, what is the governing constitutional provision, Section 21 ART VII or Section 25 ART XVIII?Section 21 Art. VII concerns with treaties in general. All treaties, regardless of subject matter, coverage, etc., requires the concurrence of the senate to be effective. It is a general provision.Sec. 25 Art. XVIII is a special provision that applies to treaties involving presence of foreign military bases, troops, or facilities in the Philippines. Undoubtedly, Art. XVIII Sec. 25 should have applied in the VFA, it being a special provision. The special provision takes precedence over the general one.

Correlate these always in cases of treaties involving military bases in the Philippines:Art. VII Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.

Art. XVII Section 25. 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.

Requisites to allow foreign military bases, foreign military bases, troops, or facilities in RP:1. There must be a Treaty duly concurred in by the Senate2. When Congress so requires, ratification of the people via national referendum3. Other contracting state recognizes that as a treaty

What is the Rome Statute?This is the treaty that created the International Criminal Courts. We are the 117th state to ratify the Rome Statute.

ICC – has jurisdiction over the following offenses: Genocide Crimes Against Humanity War Crimes The Crime of Aggression

Pimintel Jr., vs. Office of the Executive Secretary – provides backgrounderThe Rome Statute established the International Criminal Court which “shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern xxx and shall be complementary to the national criminal jurisdictions.” Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the crime of aggression as defined in the Statute. The Statute was opened for signature by all states in Rome on July 17, 1998 and had remained open for signature until December 31, 2000 at the United Nations Headquarters in New York. The Philippines signed the Statute on December 28, 2000 through Charge d’ Affairs Enrique A. Manalo of the Philippine Mission to the United Nations. Its provisions, however, require that it be subject to ratification, acceptance or approval of the signatory states.

Principle of ComplementarityThe ICC shall be complementary to national jurisdictions. It gives primacy to national jurisdictions. So if the state takes cognizance of those four offenses, crime of genocide, crimes against humanity, war crimes and the crime of aggression, ICC will not assume jurisdiction.

Exceptions to this principle are:1. proceeding is conducted for the protection of the accused2. the proceeding is conducted without impartiality or unjustified delay

Q: What is the Principle of Complementarity?A:This principle would not replace national courts in criminal jurisdiction. If the national court is able or willing to take cognizance of crimes that are also cognizable by the ICC, the latter would not take cognizance of the case. Only when the national court creates an unjustified delay or when its proceedings are meant to shield an individual from criminal liability may the ICC take cognizance of the case.

Principle of Ne Bis In IdemArt. 20 Par. 3 ICC Statute (Rome Statute)Unless proceedings in the national court is for the purpose of shielding the person concerned for m liability, or not conducted independently or impartially. “no person who has been tried by another court for conduct (constituting crimes within its jurisdiction) shall be tried by the (ICC) with respect to the same conduct.

INTERNATIONAL CUSTOMWhat is a custom?

Q: What are the elements of international custom? A:1. General practice, characterized by uniformity and consistency; 2. Opinio juris, or recognition of that practice as a legal norm and therefore obligatory; and 3. Duration

What distinguishes custom from a usage?The opinio juris, the conviction or recognition of that practice as a legal norm and therefore obligatory.

GENERAL PRINCIPLES OF LAW RECOGNIZED BY CIVILIZED NATIONS Prescription Estoppel Res Judicata Res Inter Allos Acta He who comes to court must come with clean hands

Exceptions: Stare decisis – adherence to precedence – finds no application in international law, although it is a general principle of law.

Art. 59 of the Rome Statute states that the decision of the ICJ shall be binding to the parties of the dispute and with respect to that dispute only. Thus, no stare decisis.

Subjects of International LawWhat is a subject of international law as distinguished from a mere object?A subject is an entity that has international personality.

When does an entity has an international personality?An entity has international personality if it has rights in international law which may be directly enforced under international law, or it has accountabilities or obligations which can be enforced under international law.

If an entity has rights, but such rights cannot be enforced under international law, but only by interference of his own state, he is just an object of international law.

The traditional view is that only states are subjects of international law. Now, that view is now incorrect these days.

Government of Hong Kong vs. Olalia (US vs. Puruganan overturned, Standard for bail in extradition cases)

Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there is nothing in the Constitution or statutory law providing that a potential extraditee has a right to bail, the right being limited solely to criminal proceedings.

***However, this Court cannot ignore the following trends in international law: (1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other.

The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of international law is now taking root. The vulnerable doctrine that the subjects of international law are limited only to states was dramatically eroded towards the second half of the past century. For one, the Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as violations of the laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders have been prosecuted for war crimes and crimes against humanity committed in the former Yugoslavia. These significant events show that the individual person is now a valid subject of international law. (Note: War crimes were committed by individuals during WWII, not by states.)

On a more positive note, also after World War II, both international organizations and states gave recognition and importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized as customarily binding upon the members of the international community. Thus, in Mejoff v. Director of Prisons, this Court, in granting bail to a prospective deportee, held that under the Constitution, the principles set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the International Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and due process.

STATEQ:What is a State?A: A State is a community of persons, more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing an organized government to which the great body of inhabitants render habitual obedience.

Q: What are the elements of a State?A:1. People – an aggregate of individuals of both sexes, who live together as a community despite racial or cultural differences.2. Territory – fixed portion of the earth’s surface which the inhabitants occupy.3. Government – the agency through which the will of the state is formulated, expressed and realized.4. Independence/sovereignty – capacity to enter into international relations; the power of a state to manage its external affairs without direction or interference from another state

The Concept of an Associated StateAn association is formed when two states of unequal power voluntary establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. (Province of North Cotabato vs. GRP Peace Panel, Oct. 14, 2008) An associated state is viewed as transitional device of formal colonies before eventual independence as a separate state.

Example. Micronesia and Marshall Islands maintain associate state relations with USA.

The Concept of “Association” is not recognized under the 1987 ConstitutionThe 1987 Constitution provides that no province, city or municipality, not even the ARMM is recognized under our laws as having an ‘associative’ relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status the aims to prepare any part of Philippine territory for independence. (Province of North Cotabato vs. GRP Peace Panel, Oct. 14, 2008)

~Pacta sund servanda (Treaties must be observed in good faith). Tanada vs Angara – Ratification of the GATT creating WTO. It is one of the oldest principles of international law. A state which enters to a treaty may not advance the provision of its own laws in order not to comply with its treaties. A state is bound to modify its laws in order to be able to comply with its treaty obligations

Tanada vs AngaraIs sovereignty really absolute?Does the constitutional policy of a “self reliant and independent national economy” rule out foreign competition? ‐A: No. It contemplates neither “economic seclusion” nor “mendicancy in the international community.”

Aside from envisioning a trade policy based on “equality and reciprocity,” the fundamental law encourages industries that are “competitive in both domestic and foreign markets,” thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor of the gradual development of robust industries that can compete with the best in the foreign markets. (Tañada v. Angara, G.R. No. 118295, May 2, 1997)

Q: What is the principle of Auto Limitation of Sovereignty?‐A: Under the principle of auto limitation, any State may by its consent, express or implied, submit to a restriction of its ‐sovereign rights. There may thus be a curtailment of what otherwise is a plenary power. (Reagan v. CIR, G.R. No.L 26379, ‐Dec. 27, 1969)We will have to voluntarily surrender some state power in exchange for the benefits we may derive from the observance of treaties.Limitations in RP sovereignty:~Limitations brought about by our memberships in the UN~Limitations brought about by treaty stipulations

Sovereignty is absolute in the relations of the state with its people, but not with a states relations with other nations.

How recognition is perceived in International LawRecognition of StatesRecognition of GovernmentsRecognition of Belligerency

Recognition of StatesRecognition is an act by which a State acknowledges the existence of another State, government, or a belligerent community and indicates its willingness to deal with the entity as such under international law.

The theories of recognition of a State are:1. Constitutive theory – recognition is the last indispensable element that converts the state being recognized into an international person; recognition is a legal act.2. Declaratory theory – recognition is merely an acknowledgment of the pre existing fact that the state being recognized ‐is an international person; merely discretional, recognition of states being a political act.

Distinguish recognition of State from recognition of government.A:

1. Recognition of State carries with it the recognition of government since the former implies that a State recognized has all the essential requisites of a State at the time recognition is extended.

2. Once recognition of state is accorded, it is generally irrevocable.3. Recognition of government may be withheld from a succeeding government brought about by violent or unconstitutional means.

De Facto Recognition of Governments – merely provisional; it does not vest title to its properties abroad; brings forth limited juridical relationships abroad

De Jure Recognition of Governments – more or less permanent recognition; it does vest title to its properties abroad; brings full diplomatic recognition by all governments

Distinguish de jure recognition from de facto recognition. RECOGNITION DE JURERelatively permanentVests title to properties of government abroadBrings about full diplomatic relations

RECOGNITION DE FACTOProvisonal (e.g.: duration of armed struggle)Does not vest title to properties of government abroadLimited to certain juridical relations

What are the requirements for recognition of government?A:1. The government is stable and effective, with no substantial resistance to its authority (Objective Test)2. The government must show willingness and ability to discharge its international obligations (Subjective Test)3. The government must enjoy popular consent or approval of the people

What are the minimum requirements for recognition of government that came about via a revolution?A:1. The government is stable and effective, with no substantial resistance to its authority (Objective Test)2. The government must show willingness and ability to discharge its international obligations (Subjective Test)

Q: What is the Tobar/Wilson doctrine?A: It precludes recognition to any government coming into existence by revolutionary means so long as the freely elected representatives of the people thereof have not constitutionally reorganized the country.

Q: What is the Estrada Doctrine?A: It involves a policy of never issuing any declaration giving recognition to governments and of accepting whatever government is in effective control without raising the issue of recognition. An inquiry into legitimacy would be an intervention in the internal affairs of another State.

Who has authority to recognize another state?That depends on the Constitution of the state. It can be. implied in the diplomatic powers and treaty-making powers of the President. If you enter to a treaty with a state or commence diplomatic relations with it, it presupposes that one has recognized that state.

Q: Who has the authority to recognize?A: It is a matter to be determined according to the municipal law of each State. In the Philippines, it is the President who determines the question of recognition and his decisions on this matter are considered acts of state which are, therefore, not subject to judicial review. His authority in this respect is derived from his treaty making power, his power to send and ‐receive diplomatic representatives, his military power, and his right in general to act as the foreign policy spokesman of the nation. Being essentially discretionary, the exercise of these powers may not be compelled.

Q: What are the effects of recognition? VIP Ces

1. The recognized State acquires Capacity to enter into diplomatic relations. 2. Recognized State acquires capacity to Sue in courts of recognizing State. 3. Immunity from jurisdiction of courts of law of recognizing State. 4. Entitled to receive and demand possession of Properties situated within the jurisdiction of the recognizing State which are owned by recognized State. 5. Validity of the acts and decrees of recognized state/ government precluding courts of the recognizing state from passing judgment on the legality of the acts or decrees of the recognized state.

Act of State DoctrineCourts of one state cannot pass in judgment on the legality of the acts of another state committed within its territory.

Q: What is belligerency?A: Belligerency exists when the inhabitants of a State rise up in arms for the purpose of overthrowing the legitimate government or when there is a state of war between two states.

2 states of belligerency:1. A state of war between two or more states2. Actual hostility amounting to civil war within a state

INSURGENCYA mere initial stage of war. It involves a rebel movement, and is usually not recognized.

Sanctions to insurgency are governed by municipal law – Revised Penal Code, i.e. rebellion.

BELLIGERENCYMore serious and widespread and presupposes the existence of war between 2 or more states (1st sense) or actual civil war within a single state (2nd sense).

Belligerency is governed by the rules on international law as the belligerents may be given international personality.

Stages of a rebel movement within a state:1. State of insurgency – not much international complication, purely a matter of municipal law; 2. State of belligerency – rebellion develops and becomes widespread; it is no longer purely a matter of municipal law, the International Human Rights will come into play; internal armed conflict under IHL; other states will have to observe strict neutrality in their relations with the rebel government and the state.

Q: What are the requisites in recognizing Belligerency?A: TWOS1. The rebels must occupy a substantial portion of the Territory of the state.2. The rebels must be willing and able to observe the laws and customs of War.3. There must be an Organized civil government directing the rebel forces.4. The conflict between the legitimate government and the rebels must be Serious, making the outcome uncertain. (Seriousness of the struggle)Or COWS1. Civil government organized by the rebels2. Occupation of a substantial portion of the national territory (more –or–less permanent)3. Willingness to observe the IHL4. Seriousness of the struggle (widespread), leaving no doubt as to its possible outcome

What are the legal consequences of belligerency?A:1. Before recognition, it is the legitimate government that is responsible for the acts of the rebels affecting foreign nationals and their properties. Once recognition is given, responsibility is shifted to the rebel government.

2. The legitimate government is bound to observe the laws and customs of war in conducting the hostilities.3. From the viewpoint of third States, is to put them under obligation to observe strict neutrality and abide by the consequences arising from that position.4. Recognition puts the rebels under responsibility to third States and to the legitimate government for all their acts which do not conform to the laws and customs of war.

INTERNATIONAL HUMANITARIAN LAW (IHL)Q: What is International Humanitarian Law (IHL)? A: It is the branch of PIL which governs armed conflicts to the end that the use of violence is limited and that human suffering is mitigated or reduced by regulating or limiting the means of military operations and by protecting persons who do not or no longer participate in hostilities. It is also known as the law of armed conflict or the law of war.

International humanitarian law (IHL), or the law of armed conflict, is the law that regulates the conduct of armed conflicts (jus in bello). It comprises "the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law." It defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians.

Armed Conflict – term used to denote a war.Persons who “no longer participate in hostilities”:1. Persons hors de combat (outside of combat) – disabled soldiers2. POWs – captured or surrendered soldiers

Basic rules of IHL

1. Persons hors de combat (outside of combat) and those not taking part in hostilities shall be protected and treated humanely.

2. It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.3. The wounded and sick shall be cared for and protected by the party to the conflict which has them in its power.

The emblem of the "Red Cross," or of the "Red Crescent," shall be required to be respected as the sign of protection.

4. Captured combatants and civilians must be protected against acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.

5. No one shall be subjected to torture, corporal punishment or cruel or degrading treatment.6. Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means

of warfare.7. Parties to a conflict shall at all times distinguish between the civilian population and combatants. Attacks shall be

directed solely against military objectives.

Principal legal instruments of IHL?1. The 4 Geneva Conventions of 1949: Land Warfare, Naval Warfare, Treatment of POWS, Treatment of civilians2. The 2 additional protocols of 1977: The protocols relating to the victims of International Armed Conflicts and Protection victims of Internal Armed Conflicts

Categories of Armed Conflicts:1. International Armed Conflict2. Internal Armed Conflict3. War of National Liberation – peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.

Martens Clause

What is the Martens clause/Principle of humanity? In cases not covered by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.

Article I, Paragraph 2, of Additional Protocol 1 of 1977

PRINCIPLE OF DISTINCTIONPrinciple of Distinction in the conduct of armed conflict. – the belligerents must “at all times distinguish between the civilian population and combatants. Attacks shall be directed solely against military objectives.”This is the cornerstone of IHL.

CombatantsQ: Who are regarded as combatants?A:1. Members of the armed forces except those not actively engaged in combat (chaplains and medical personnel)

2. The irregular forces, such as the guerrillas, provided that:a. They are commanded by an officer/person responsible for his subordinates’ conductb. They wear a fixed distinctive insigniac. They carry arms openly, not treacherously; and d. They conduct their operations in accordance with the laws and customs of war.

3. Levee en Masse –the civilian inhabitants of unoccupied territory who, on approach or the enemy, spontaneously take arms to resist the invading troops without having had time to organize themselves, provided only that they carry arms openly and observe the laws and customs of war. (Upon capture, they are to be treated as combatants, and thus should be treated as POWs.)

4. The officers and crew members of merchant vessels who forcibly resist attack.

Non-privileged combatants – these are active participants in combat activities but are not members of the regular or irregular forces.Ex. Spies, saboteurs, mercenaries.

An unlawful combatant is someone who commits belligerent acts but does not qualify for POW status under GCIII Articles 4 and 5. If there is any doubt about whether a detained alleged combatant is a "lawful combatant" then the combatant must be held as a prisoner of war until his or her status has been determined by "a competent tribunal". If that tribunal rules that a combatant is an "unlawful combatant" then the person's status changes to that of a civilian which may give them some rights under the Fourth Geneva Convention.

An unlawful combatant or unprivileged combatant/belligerent is a civilian who directly engages in armed conflict in violation of the laws of war. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action.

It is likely that if they are found to be an "unlawful combatant" by "a competent tribunal" under GCIII Article 5, and if they are a protected person under GCIV, that the Party to the conflict will invoke GCIV Article 5. In which case, the "unlawful combatant" does not have the "rights and privileges under the present Convention as would, if exercised in the favor of such individual person, be prejudicial to the security of such State." They do, however, retain the right "to be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention.

If, after a "fair and regular trial", the individual in question is found guilty of a crime, then the "unlawful combatant" can be punished by whatever lawful methods are available to the party to the conflict.

Perfidy is a form of deception, in which one side promises to act in good faith (e.g., by raising a flag of surrender) with the intention of breaking that promise once the enemy has exposed themselves (e.g., by coming out of cover in order to capture the surrendering forces).

Combatants who do not qualify for prisoner of war status(General Rule) If the combatant is engaged in "armed conflict not of an international character" then under the Article 3 of the general provisions of the Geneva Conventions they should be "treated humanely", and if tried "sentences must ... be pronounced by a regularly constituted court."

The last time that American and British unlawful combatants were executed after "a regularly constituted court" was the Luanda Trial as mercenaries.

Under Article 47 of Protocol I (Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts) it is stated in the first sentence "A mercenary shall not have the right to be a combatant or a prisoner of war."

Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property(saboteur), are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

Espionage or spying involves a government or individual obtaining information that is considered secret or confidential without the permission of the holder of the information. Espionage is inherently clandestine, as it is taken for granted that it is unwelcome and, in many cases, illegal and punishable by law. It is a subset of intelligence gathering - which otherwise may be conducted from public sources and using perfectly legal and ethical means.

Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition. Common definitions of terrorism refer only to those violent acts which are intended to create fear (terror), are perpetrated for a religious, political or, ideological goal; and deliberately target or disregard the safety of non-combatants (civilians). Some definitions now include acts of unlawful violence and war. The use of similar tactics by criminal organizations for protection rackets or to enforce a code of silence is usually not labeled terrorism though these same actions may be labeled terrorism when done by a politically motivated group.

Spies and terrorists are only protected by the laws of war if the power which holds them is in a state of armed conflict or war and until they are found to be an unlawful combatant. Depending on the circumstances, they may be subject to civilian law or military tribunal for their acts and in practice have been subjected to torture and/or execution. The laws of war neither approve nor condemn such acts, which fall outside their scope. Countries that have signed the UN Convention Against Torture have committed themselves not to use torture on anyone for any reason.

A soldier who is out of uniform shall be treated as a spy, so is considered a non-privileged combatant.

Civilian Objects not subject to attack:Ex.1. Schools2. power plants3. hospitals

If you do not abide with the rules of the IHL, you might be prosecuted as a war criminal.

The law of war is binding not only upon States as such but also upon individuals and, in particular, the members of their armed forces. Parties are bound by the laws of war to the extent that such compliance does not interfere with achieving legitimate military goals. For example, they are obliged to make every effort to avoid damaging people and property not involved in combat, but they are not guilty of a war crime if a bomb mistakenly hits a residential area. By the same token, combatants that intentionally use protected people or property as shields or camouflage are guilty of violations of laws of war and are responsible for damage to those that should be protected.

The Law on NeutralityQ: What is neutrality? What is Neutralization?

A: It is non participation, directly or indirectly, in a war between contending belligerents. This exists only during war time‐ and is governed by the law of nations. Examples of these states are Switzerland, Sweden, The Vatican City, Costa Rica.~unilateral act of one state of not joining the armed conflict.

Neutralization – it is a status created by means of a treaty. Switzerland has this status, guaranteed by the Geneva Conference, and recognized up to this date.

Q: What is non alignment (Neutralism)?‐A: This refers to peacetime foreign policies of nations desiring to remain detached from conflicting interests of other nations or power groups.

Q: What is a neutralist policy?A: It is the policy of the state to remain neutral in future wars. Non alignment is the implementation of neutralism.‐

Q: When is a State considered as a neutralized State?A: Where its independence and integrity are guaranteed by an international convention on the condition that such State obligates itself to never take up arms against any other State, except for self defense, or enter into such international ‐obligations as would indirectly involve a war.

Note: A State seeks neutralization where it is weak and does not wish to take active part in international politics. The power that guarantees its neutralization may be motivated either by balance of power considerations or by desire to make the State a buffer between the territories of the great powers.

Important duties of a neutral state:1. Duty of abstention – abstain from any act that tends to support any belligerent in times of war2. Prevention – duty to prevent the use of its territory by any belligerents to launch an attack against another belligerent3. Duty of acquiescence – it should not complain committed by a belligerent in the course of an armed conflict.

Q: What are the obligations of belligerents?A:1. Respect the status of the neutral State;2. Avoid any act that will directly or indirectly involve it in their conflict and to submit to any lawful measure it may take to maintain or protect its neutrality.

Q: What are some restraints on neutral States?A: The following are some restraints:1. Blockade2. Contraband of war3. Free ships make free goods

Q: What are the rights and duties of a neutral State?A:1. Abstain from taking part in the hostilities and from giving assistance to either belligerent;2. Prevent its territory and other resources from being used in the conduct of hostilities(Right of territorial Integrity); and3. Acquiesce in certain restrictions and limitations the belligerents may find necessary to impose.4. To continue diplomatic relations with other neutral states and with the belligerents (Right of diplomatic communications).

Right of AngaryQ: What is the Right of Angary? A: By the right of angary, a belligerent may, upon payment of just compensation, seize, use or destroy, in case of urgent necessity for purposes of offenses or defense, neutral property found in its territory, in enemy territory, or on the high seas.

Q: What are the requisites before Right of Angary may be exercised?A:1. That the property is in the territory under the control or jurisdiction of the belligerent;

2. That there is urgent necessity for the taking; and3. That just compensation is paid to the owner.

Prohibited acts of a neutral state?1. Breach of blockade2. Carriage of contrabands3. Performing unneutral service

Q: What is a blockade?A: It is a hostile operation by means of which vessels and aircraft of one belligerent prevent all other vessels, including those of neutral States, from entering or leaving the ports or coasts of the other belligerent, the purpose being to shut off the place from international commerce and communications with other States.

Q: What is contraband?A: It refers to goods which, although neutral property, may be seized by a belligerent because they are useful for war and are bound for a hostile destination.

They may be absolute, such as guns or ammunition, which are useful for war under all circumstances; conditional, such as food and clothing, which have both civilian and military utility; or under the free list/free goods, such as medicines and medical supplies for the use of the sick and the wounded, which are exempt from the law on contraband for humanitarian reasons.

Q: What is unneutral service?A: It consists of acts, of a more hostile character than carriage of contraband or breach of blockade, which are undertaken by merchant vessels of a neutral State in aid of any of the belligerents.Ex. Carriage of the troops of a belligerent in a merchant vessel of a neutral vessel

Q: What is the Concept of Visit and Search (Right of Visitation)?A: Belligerent warships and aircraft have the right to visit and search neutral merchant vessels on the high seas to determine whether they are in any way connected with the hostilities. Ex. Determine if a neutral vessel is performing unneutral service or carrying contraband. Determine the nationality of the vessel.

Q: What is the Doctrine of Infection?A: Innocent goods shipped with contraband may also be seized.

Q: What is the Doctrine of Ultimate Consumption?A: Goods intended for civilian use which may ultimately find their way to and be consumed by belligerent forces may be seized on the way.

Q: What is the Doctrine of Ultimate Destination?A: The liability of the contraband from being captured is determined not by their ostensible but by their real destination.

Q: What is the Doctrine of “Free ships make free goods”?A: A ship’s nationality determines the status of its cargo. Thus, enemy goods on a neutral ship, excepting contraband, would not be subject to capture on the high seas.

Note: Blockade is a legitimate war measure which neutral states must respect.

Q: When is neutrality terminated?A: When the neutral State itself joins the war or upon the conclusion of peace.

INTERNATIONAL HUMAN RIGHTS LAWNote: IHL and international human rights law (hereafter referred to as human rights) are complementary. Both strive to protect the lives, health and dignity of individuals, albeit from a different angle.

Q: What are human rights?A: Those liberties, immunities and benefits, which all human beings should be able to claim “as a right of the society in which they live – Louis Henkin

Q: How are the international human rights divided?A: The said rights are divided into 3 generations, namely:1. First generation: civil and political rights2. Second generation: economic, social and cultural rights3. Third generation: Right to development, right to peace and right to environment

Q: How are human rights classified?A:1. Individual rights – Ex. Those in the Bill of Rights2. Collective rights (right to self determination of people; the permanent sovereignty over natural resources) Ex. Right to ‐self-determination of peoples (right of IPs/ICCs within a state), right to a balanced and healthful ecology

Q: What are the three main instruments of human rights in the international plain? (The so-called International Bill of Rights)A:1. United Declaration of Human Rights2. The International Covenant on Economic, Social and Cultural Rights3. International Covenant on Civil and Political RightsTaken together, they comprise the so-called International Bill of Rights.

Q: What are the rights guaranteed in the International Covenant on Economic, Social and Cultural Rights?A:Right to:1. Self determination‐2. Work and accompanying rights3. Social Security and other Social rights4. Adequate Standards of living5. Physical and Mental Health6. Education7. Take part in cultural life8. Enjoy the benefits of scientific progress and applications

How do you distinguish IHL from IHRL?IHL IHRL

Applies only when there is armed conflict It is applied in times of war and in times of peaceDoes not allow any derogation; compliance is a must.Ex. Principle of distinction is mandatory

There are certain treaties that permit government to derogate in certain times of emergencies;Ex. Privilege of habeas corpus may be suspended in times of war

It protects persons who do not participate in war; but it does not protect those who are non-privileged combatants

Protects the individual at all times

EXTRADITION

In international law, extradition is a form of jurisdictional assistance.

What is extradition?A: It is the right of a foreign power, created by treaty, to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other State to surrender.

It may not be effected unilaterally.2 stages1. Request of the state which sought the extradition of the person located in another state2. Actual return of the other state of the person sought to be returned to the requesting state.

A state has no legal obligation to extradite a person to RP if there is no extradition treaty with that country.

Q: What is the basis of extradition?A: The extradition of a person is required only if there is a treaty between the State of refuge and the State of origin. As a gesture of comity, however, a State may extradite anyone. Furthermore, even with a treaty, crimes which are political in character are exempted.

Q: What are the fundamental principles governing extradition?A:1. Based on the consent of the State expressed in a treaty2. Principle of Specialty – a fugitive who is extradited may be tried only for the crime specified in the request for extradition and included in the list of offenses in the extradition treaty3. Any person may be extradited, whether he be a national of the requesting State, of the State of refuge or of another State. He need not be a citizen of the requesting State.4. Political or religious offenders are generally not extraditable.

Note: Attentant clause is a provision in an extradition treaty which states that the murder or assassination of the head of a state or any member of his family will not be considered as a political offense and therefore extraditable.

5. The offense must have been committed within the territory of the requesting State or against its interest6. Double Criminality Rule – The act for which the extradition is sought must be punishable in both States

Attentant clause is a provision in an extradition treaty which states that the murder or assassination of the head of a state or any member of his family will not be considered as a political offense and therefore extraditable.

Q: What does the Principle of Specialty mean in extradition?A: Under the principle of specialty in extradition, a person cannot be tried for an offense not included in the list of extraditable offenses in the extradition treaty between the requesting and the requested States, unless the requested State does not object to the trial of such person for the unlisted offense.

How do you distinguish extradition from deportation? (1995 Bar Question)A:

Extradition DeportationEffected at the request; it cannot be effected unilaterally Unilateral act of the of the State of origin local StateBased on criminal offenses committed in the State of origin Based on causes arising in the local State, even if he did not

commit an offense (cause to declare him an undesirable alien)

Calls for the return of the fugitive to the State or origin Undesirable alien may be deported to a State other than his own or the State of origin

It is for the benefit of the requesting state It is for the benefit of the expelling stateDestination is the requesting state Destination may be another state willing to accept him or

his home state

2 types of extradition treaties:1. Old type contains a list of extraditable offenses2. Modern type – No-List Treaty; no list of extraditable offenses, stating that the offense is punishable in both states based on the principle of Double Criminality.

Q: What does the Principle of Dual Criminality mean in extradition?A: Under the principle of double or dual criminality, the crime must be punishable in both the requesting and requested States to make it extraditable.

PD 1069 – Extradition Law; RTC has jurisdiction of an extradition case

Q: Is the retroactive application of the extradition treaty amounting to an ex post facto law? No. In Wright v. Court of Appeals, G.R. No.113213, August 15,1994, it was held that the retroactive application of the Treaty of Extradition does not violate the prohibition against ex post facto laws, because the Treaty is neither a piece of criminal legislation nor a criminal procedural statute. It merely provided for the extradition of persons wanted for offenses already committed at the time the treaty was ratified.

Secretary of Justice vs. LantionMark Gimenez 1

What is extradition? To whom does it apply? Held: It is the “process by which persons charged with or convicted of crime against the law of a State and found in a foreign State are returned by the latter to the former for trial or punishment. It applies to those who are merely charged with an offense but have not been brought to trial; to those who have been tried and convicted and have subsequently escaped from custody; and those who have been convicted in absentia. It does not apply to persons merely suspected of having committed an offense but against whom no charge has been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment.” (Weston, Falk, D' Amato, International Law and Order, 2nd ed., p. 630 [1990], cited in Dissenting Opinion, Puno, J., in Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc)

What is the nature of an extradition proceeding? Is it akin to a criminal proceeding?Held: [A]n extradition proceeding is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee especially by one whose extradition papers are still undergoing evaluation. As held by the US Supreme Court in United States v. Galanis:

“An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany a criminal trial in this country do not shield an accused from extradition pursuant to a valid treaty.” (Wiehl, Extradition Law at the Crossroads: The Trend Toward Extending Greater Constitutional Procedural Protections To Fugitives Fighting Extradition from the United States, 19 Michigan Journal of International Law 729, 741 [1998], citing United States v. Galanis, 429 F. Supp. 1215 [D. Conn. 1977])

There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in natural while criminal proceedings involve a full-blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards . In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited “upon showing of the existence of a prima facie case.” Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him. The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nation's foreign relations before making the ultimate decision to extradite.

As an extradition proceeding is not criminal in character and the evaluation stage in an extradition proceeding is not akin to a preliminary investigation, the due process safeguards in the latter do not necessarily apply to the former. This we hold for the procedural due process required by a given set of circumstances “must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action.” The concept of due process is flexible for “not all situations calling for procedural safeguards call for the same kind of procedure.” (Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000, En Banc [Puno])

Extradition Proceedings Criminal Proceedingnot a criminal prosecution, and the constitutional safeguards that accompany a criminal trial in this country do not shield an accused from extradition pursuant to a valid treaty

Criminal prosecution

Summary in nature Requires a full blown trialLiberal interpretation rule rules of evidence in a criminal proceeding allow admission

of evidence under stringent standardsPrima facie evidence only Proof beyond reasonable doubtcourts may adjudge an individual extraditable but the President has the final discretion to extradite him

executory upon being rendered final

Balance of Interest: The competing interests are equally desirable to societyDue process vs. international relations“It is only a soft restraint.” Being in its initial evaluation stage, the right to due process must give way to prevent the person subject of the extradition proceedings be able to take flight.

US vs. PurugananMark Gimenez 2

Prior notice and hearing are not requirements in an issuance of a warrant of arrest in an extradition proceeding.2 bases:1. Statutory basis - PD 1069 – judge must immediately issue warrant of arrest, no mention that a hearing is required.2. Constitutional basis – Section 2 of the Bill of Rights (Art. III) does NOT require PRIOR HEARING in order for a warrant arrest to be issued.

Assuming he is arrested, can bail be posted?In this case, no. No bail rule is applied in extradition. Under the Bill of Rights, bail shall be available to ‘all person before conviction’ whereas an extraditee is not a criminal, as his guilt is not determined in an extradition proceeding.

But bail can be granted under the following conditions:1. he is not a flight risk2. based on humanitarian reasons or compelling circumstancesThese must be proven by clear and convincing evidence (new standard of evidence) to be presented during the extradition proceedings.

Clear and Convincing Evidence – lower than proof beyond reasonable doubt but higher than preponderance of evidence.

Q: Is the right to bail available to an alien during the pendency of deportation proceedings?A: Yes, provided that potential extraditee must prove by clear and convincing proof that he is not a flight risk and will abide with al orders and processes of the extradition court. (Government of Hong Kong Special Administrative Region v. Olalia Jr., G.R 153675, Apr. 19, 2007)

Q: Is a petition for bail valid in extradition cases?A: Yes. The Philippines, along with other members of the family of nations, committed to uphold the fundamental human rights as well as value the worth and dignity of every person. The commitment is enshrined in Section 11, Article II of our Constitution which provides: “The State values the dignity of every human person and guaranteed full respect for human rights.” The Philippines, therefore, has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court, to enable it

to decide without delay on the legality of the detention and order their release if justified. In other words, the Philippine authorities are under obligation 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. (Government of Hong Kong Special Administrative Region, represented by the Philippine Department of Justice v. Olalia, Jr., G.R. No. 153675, April 19, 2007)

Government of Hong Kong vs. Olalia (US vs. Puruganan overturned, Standard for bail in extradition cases)Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there is nothing in the Constitution or statutory law providing that a potential extraditee has a right to bail, the right being limited solely to criminal proceedings.

***However, this Court cannot ignore the following trends in international law: (1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other.

The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of international law is now taking root. The vulnerable doctrine that the subjects of international law are limited only to states was dramatically eroded towards the second half of the past century. For one, the Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as violations of the laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders have been prosecuted for war crimes and crimes against humanity committed in the former Yugoslavia. These significant events show that the individual person is now a valid subject of international law. (Note: War crimes were committed by individuals during WWII, not by states.)

On a more positive note, also after World War II, both international organizations and states gave recognition and importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized as customarily binding upon the members of the international community. Thus, in Mejoff v. Director of Prisons, this Court, in granting bail to a prospective deportee, held that under the Constitution, the principles set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the International Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and due process.

Election Laws:Art. VS U F F R A G EQualifications of a VoterArt. V, Section 1Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen (18) years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.

Qualifications of a voter:1. citizens of the Philippines not otherwise disqualified by law,2. at least eighteen (18) years of age3. resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election, exception, absentee voters (Makalintal vs. COMELEC)

Q: Who are disqualified to vote?A:1. Persons sentenced by final judgment to suffer imprisonment for not less than one year, unless pardoned or granted amnesty; but right is reacquired before expiration of 5 years after service of sentence2. Conviction by final judgment of any of the following crimes:

a. Crime involving disloyalty to the governmentb. Any crime against national securityc. Firearms lawsBut right is reacquired before expiration of 5 years after service of sentence.

3. Insanity or incompetence declared by competent authority (Sec. 118, B.P. 881 Omnibus Election Code)

Resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the electionException: Absentee voters/OFWs~Register in RP Embassies and consulates~Execute an affidavit that within 3 years, they shall return to RP and shall resume their residency in RP~Vote for President, VP, Senator and Party-list representative

Overseas Absentee Voting Act of 2003 (RA 9189)Absentee Voting—process by which qualified citizens of the Philippines abroad exercise their right to vote pursuant to the constitutional mandate that Congress shall provide a system for absentee voting by qualified Filipinos abroad(Sec. 3a, RA 9189 and Section 2, Article V of the Constitution)

It is an exception to the 6-month/1-year residency requirement.

Overseas Absentee Voter—citizens of the Philippines who is qualified to register and vote under this Act, not otherwise disqualified by law, who is abroad on the day of electionCoverage: All citizens of the Philippines abroad, who are not otherwise disqualified by law at least 18 years of age on the day of elections, may vote for President, VP, Senators and Party-List Representatives. (Sec. 4)

Disqualifications:1. Those who have lost their Filipino citizenship in accordance with Philippine laws;2. Those who have expressly renounces their Philippine citizenship and who have pledged their allegiance to a foreign country;3. Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than 1 year, including those who have committed and been found guilty of disloyalty, such disability not having been removed by plenary pardon or amnesty. Provided however, that any person disqualified to vote under this subsection shall automatically acquire the right to vote upon expiration of 5 years after service of sentence;4. An immigrant or a permanent resident who is recognized as such in the host country, unless he executes, upon registration, an affidavit for the purpose by the COMELEC declaring that he shall resume actual physical residence not later than 3 years from approval of his registration. Such affidavit shall also state that he has not applied for citizenship in another country; and5. Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by Philippine embassies, consulate or foreign service establishment concerned.

Makalintal vs. COMELEC, G.R. No. 157013, July 10, 2003, Section 18.5 of RA 9189, insofar as it grants sweeping authority to the COMELEC to proclaim all winning candidates, it is unconstitutional as it is repugnant to Section 4 of Article VII of the Constitution, which vest in Congress the authority to proclaim the winning Presidentialor Vice-Presidential candidates.

Omnibus Election CodeSection 4 – It is an obligation to vote.Section 262 (y) and (z) – Penalizes failure to register and failure to voteThese are superseded by the Constitution (Art. V Sec. 1). “Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law…”The language being permissive, it is no longer an election offense not to register and not to vote.

Who has the authority to register political parties?COMELEC, Sec. 2(5) of Art IX-C(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their platform or program of government; and accredit citizens' arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused registration.

Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections, constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law.

Correlate 2nd paragraph of Sec. 2(5) of Art IX-C with Sec. 81 BP 881: Omnibus Election CodeSec. 81 BP 881: Omnibus Election Code – Sec. 81. Intervention of foreigners. - It shall be unlawful for any foreigner, whether juridical or natural person, to aid any candidate or political party, directly or indirectly, or take part in or influence in any manner any election, or to contribute or make any expenditure in connection with any election campaign or partisan political activity. Magdalo Para sa Pagbabago vs. COMELEC – Magdalo was not registered as it was a party which had previously sought to achieve their goals through violence or unlawful means in the past. (2012)Subsequently, Magdalo renounced violence as a means to achieve its goals, so it was eventually allowed to participate in the Party-List elections.

Prohibited organizations to be registered as political parties:1. Religious denominations and sects 2. Those which seek to achieve their goals through violence or unlawful means, 3. Those who refuse to uphold and adhere to this Constitution, 4. Those who are supported by any foreign government

Financial contributions related to elections only constitute interference in national affairs.

Election period vs. Campaign period

Election period – fixed period; 90 days before and 30 days after elections

Campaign period – duration varies (national office, longer; local, shorter), ends one day before the elections,

Election campaign vs. partisan political activityOmnibus Election Code Section 79 B – Election campaign and partisan political activity are used interchangeably under this section.Any design to promote the election or defeat of a particular candidate or candidates.

CAMPAIGNElection and Campaign Periods (Sec. 3, OEC)

Election period begins 90 days before the day of election and ends 30 days thereafter—period of time with respect to a scheduled date of election when the conduct of certain political activities are regulated by election laws, and the violation of which constitutes election offense subject to penalties.

Campaign Periods:1. President and VP—90 days before the day of election2. Members of Congress, Senatorial, Provincial and City/Municipal—45 days3. Barangay Election—15 days4. Special Election—45 days (Section 5, paragraph 2, Article VIII)The campaign period shall no include the day before and the day of the election.

Period of time within the election period specified by law when bona fide candidates can legally conduct campaign activities and other election propaganda in relation to the scheduled date of election.

Candidate (Sec. 79A) – one who is a person aspiring for an elective office and files a COC.

Certificate of Candidacy (COC) Rules:1. No person shall be elected into public office unless he files his COC within the prescribed period;2. No person shall be eligible for more than one office. If he files for more than one position, he shall not be eligible for all unless he cancels all and retains one.3. The COC shall be filed by the candidate personally or by his duly authorized representative.4. Upon filing, an individual becomes a candidate, he is already covered by the rules, restrictions and processes involving candidates. (Section 73, OEC)

Art .IX-C Section 10. Bona fide candidates for any public office shall be free from any form of harassment and discrimination.

Section 80 OEC - Election campaign and partisan political activity should be engaged during election period only. The only exception is the holding of party political conventions or meetings to nominate their official candidates even before the start of the election period.

Rule Against Premature CampaigningThe use of lawful election propaganda is subject to the supervision and regulation of the COMELEC in order to prevent premature campaigning and to equalize, as much as practicable, the situation of all candidates by preventing popular and rich candidates from gaining undue advantage in exposure and publicity on account of their resources and popularity.

Chavez vs. COMELEC, G.R. No. 162777, August 31, 2004, all propaganda materials including advertisements on print, in radio, or on television showing image or mentioning the name of a person, who subsequent to the placement or display thereof becomes a candidate for public office, be immediately removed, otherwise, this shall be presumed as premature campaigning in violation of Section 80 of the OEC.

Q. Petitioner Penera and respondent Andanar ran for mayor of Sta. Monica, Surigao Del Norte during the May 14, 2007 elections. Penera’s political party held a motorcade preceding the filing of her certificate of candidacy announcing her candidacy for mayor. Because of this, Andanar filed a petition to disqualify Penera for engaging in premature campaigning in violation of Sec.80 and 68 of the Omnibus Election Code. Does the act of campaigning for votes immediately preceding the filing of certificate of candidacy violate the prohibition against premature campaigning? A. The campaign period for local officials begin on 30 March 2007 and ends on 12 May 2007. Penera filed her certificate of candidacy on 29 March 2007. Penera was thus a candidate on 29 March 2009 only for purposes of printing the ballots under Sec.11 of R.A. 8436. On 29 March 2007, the law still did not consider Penera a candidate for purposes other than the printing of ballots. Acts committed by Penera prior to 30 March 2007, the date when she became a "candidate," even if constituting election campaigning or partisan political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts are within the realm of a citizen’s protected freedom of expression. Acts committed by Penera within the campaign period are not covered by Section 80 as Section 80 punishes only acts outside the campaign period.

Duty to receive COC: ministerial duty of the COMELEC

When a candidate files his COC, the COMELEC has a ministerial duty to receive and acknowledge its receipt pursuant to Section 76, of the Election Code. The COMELEC may not, by itself, without the proper proceedings, deny due course to or cancel a COC filed in due form. (Luna vs. COMELEC, G.R. No. 165983, April 24, 2007)

Q: What is the duty of the COMELEC in receiving CoCs? A: GR: When a candidate files his COC, the COMELEC has a ministerial duty to receive and acknowledge its receipt pursuant to Section 76, of the Election Code. The COMELEC may not, by itself, without the proper proceedings, deny due course to or cancel a COC filed in due form. (Luna vs. COMELEC, G.R. No. 165983, April 24, 2007) XPN: 1. Nuisance candidates—Sec. 69 of the OEC 2. Petition to deny due course or to cancel a COC—Sec. 78 of the OEC 3. Filing of a disqualification case on any of the grounds enumerated in Section 68, OEC.

Abcede vs. Imperial, 103 Phil 136, the COMELEC has no discretion to give or not to give due course to a COC filed in due form. While it may look into patent defects in the COC, it may not go into matters not appearing on their face.Exceptions:1. Nuisance candidates2. Petition to deny due course or to cancel a COC—Sec. 78 of the OEC3. Filing of a disqualification case on any of the grounds enumerated in Section 68, OEC.

Sec. 73. Certificate of candidacy. - No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein.

A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the office concerned a written declaration under oath.

No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them. However, before the expiration of the period for the filing of certificates of candidacy, the person who was filed more than one certificate of candidacy may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices.

The filing or withdrawal of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred.

Principles under Sec. 73 OEC1. File a sworn certificate of candidacy within the period fixed by law.2. File a CoC only for one office, if 2 or more are filed for different offices, one is disqualified in all of them3. Withdrawal should be by a written declaration under oath

Monsale vs. Nico Withdrawal of CoCQ: On the last day of filing a CoC, March 31, Jose Monsale withdrew his CoC. April 1, campaign period started. On April 2, he wanted to run again so he filed a written declaration withdrawing his withdrawal. Is his act of withdrawing the withdrawal valid? A: No. The withdrawal of the withdrawal of the CoC made after the last day of filing is considered as filing of a new CoC. Hence, it was not allowed since it was filed out of time. (Monsale v. Nico, G.R. No. L 2539, May 28, 1949)‐

Withdrawal of the COC—shall effect the disqualification of the candidate to be elected for the position. (Ycain vs. Caneja, 81 Phil 773)The withdrawal of the withdrawal, for the purpose of reviving the COC must be made within the period provided by law for the filing of COC. (Monsale vs. Nico, 83 Phil 758)

Where the decision of the COMELEC disqualifying the candidate is not yet final and executory on election day, the Board of Election Inspectors (BEI), in the exercise of its ministerial duty, is under obligation to count and tally the votes cast in favor of the candidate. (Papandayan vs. COMELEC, G.R. No. 147909, April 16, 2002)

Death, Disqualification and Withdrawal:If after the last day of filing of the COC, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by the same political party may file a COC to replace the candidate who died, withdrew or was disqualified. (Section 77, OEC)

Q: What is the effect of filing a certificate of candidacy on the tenure of incumbent government officials? A: 1. Appointive official – Sec. 66 of the OEC provides that any person holding an appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in GOCCs, shall be considered ipso facto RESIGNED from his office upon the filing of his certificate of candidacy. Such resignation is irrevocable.

It also applies to those in the active service, GOCCs and Government employees.

2. Elective official – No effect. The candidate shall continue to hold office, whether he is running for the same or a different position. (Sec. 14, Fair Elections Act expressly repealed Sec. 67 of BP 881)

What is the effect of the filing of certificate of candidacy by elective officials?Answer: COMELEC Resolution No. 3636, promulgated March 1, 2001, implementing the Fair Election Act (R.A. No. 9006) provides in Section 26 thereof: “ any elective official , whether national or local , who has filed a certificate of candidacy for the same or any other office shall not be considered resigned from his office .”

Note that Section 67 of the Omnibus Election Code and the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 which modified said Section 67, were expressly repealed and rendered ineffective, respectively, by Section 14 (Repealing Clause) of The Fair Election Act (R.A. No. 9006).

What is the effect of the filing of certificate of candidacy by those holding appointive office?Sec. 66 OEC – Public appointed position - Ipso facto resigned once COC is filed.Where the law does not distinguish, so must the court not distinguish. Candidates who are appointees in GOCCs with and without original charters (PNOC vs. NLRC) – Sec. 66 OEC applies. Ipso facto resigned once COC is filed.

Quinto vs. COMELEC Distinction between candidates from appointive and elective officesSC initially declared unconstitutional Sec. 66 of the OEC. But on MfR, SC reversed itself.SC stated that there was substantial distinction between those holding appointive office and elective office. SC stated that those holding elective office hold a mandate from the people. That is a valid substantial distinction against those holding appointive office. Also, those elected to public office hold limited tenure, whereas those holding appointive office has security of tenure until retirement age.

Q: Do the deemed resigned provisions which are applicable to appointive officials and not with elective officials violate‐ the equal protection clause of the constitution? A: No. The legal dichotomy created by the Legislature is a reasonable classification, as there are material and significant distinctions between the two classes of officials. This is because elected public officials, by the very nature of their office, engage in partisan political activities almost all year round, even outside of the campaign period. Political partisanship is the inevitable essence of a political office, elective positions included. The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. (Quinto v. COMELEC, Feb. 22, 2010, G.R. 189698)

Characteristics of Valid Substantial distinctions so Equal Protection of Laws will not be violated:1. Based on substantial distinctions 2. Germane to the purposes of the law 3. Applies to existing and future conditions 4. Applies to all those falling within a class

Substitution of candidatesSec. 77 OECSec. 77. Candidates in case of death, disqualification or withdrawal of another. - If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission.

Requisites:1. Period to file by a substitute candidate is from start of campaign period until midday of the elections.2. Substitute candidate must belong to the SAME political party of the candidate being substituted

Grounds for valid substitution: (DDW)1. Death2. Disqualification3. Withdrawal of a candidate

Note: An independent candidate cannot be substituted. Nobody will qualify.

Q: Explain the concept of “substitution of candidacy”. A: If after the last day for the filing of certificates of candidacy, an official candidate of a political party: (1) dies, (2) withdraws or is (3) disqualified for any cause—a person belonging to, and certified by, the same political party may file a certificate of candidacy not later than mid day of election day to replace the candidate who died, withdrew or was ‐disqualified. (COMELEC Reso. No. 9140)

Note: However, no substitution shall be allowed for any independent candidate. (Ibid.)

Q: When may substitution take place? A: Substitution can only take place on the first day of campaign period until not later than mid day of election day.‐ (COMELEC Reso. No. 9140)

Q: Martin de Guzman died while campaigning. His son substituted him. Voters on the day of the election wrote Martin de Guzman instead of casting the same in the name of his son, Joel de Guzman. Should the votes be counted in favor of Joel? A: Yes. As a general rule, the same will be considered as stray votes but will not invalidate the whole ballot. Exception is when the substitute carries the same family name. (Sec. 12, R.A 9006)

Q: In the 1998 election, Mayor Miranda already served 8 consecutive terms, yet he still filed a CoC. As a result, Abaya filed a disqualification case. COMELEC then disqualified Miranda and cancelled his CoC. The son of Miranda, Joel, upon nomination of their political party, filed a certificate of substitute. Joel Miranda won. Was the substitution valid? A: There was no valid substitution. COMELEC did not only disqualify Miranda but also cancelled his CoC. Therefore, he cannot be validly substituted. A disqualified candidate may only be substituted if he had a valid CoC because if the disqualified candidate did not have a valid and seasonably filed CoC, he is and was not a candidate at all. (Miranda v. Abaya, G.R. No. 136351, July 28, 1999)

A valid CoC must be filed by the candidate to be substituted. Otherwise, there is nobody to substitute. (Miranda vs Abaya)

In case of valid substitution after the official ballots have been printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. This rule shall not apply if the substitute candidate is of the same family name. (Section 12, RA 9006) See the case of Luna vs. COMELEC A disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed COC, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Section 77 of the OEC. (Miranda vs. Abaya,G.R. No. 136351, July 28, 1999)

Note: Miranda was disqualified to run for a 4th time as mayor, but filed for CoC. He was disqualified. Upon nomination of the political party, his son filed the CoC and ran and won. SC removed Miranda from the position. There was no valid substitution. When the COMELEC disqualified the elder Miranda, they also cancelled the CoC. Thus, there was no valid CoC filed by the person to be substituted. A substitute candidate cannot run as a substitute of a one who ran without a valid CoC filed in the first place.

Can Joel Miranda be considered as a candidate in his own right, not as a mere substitute?No, he filed his CoC outside the period to file the CoC. Late filing is not allowed.

The concept of a substitute presupposes the existence of the person to be substituted. For how can a person take the place of somebody who does not exist or who never was. The existence of a valid COC seasonably filed is a requisite sine qua non. There was no valid substitution. The existence of a valid COC seasonably filed is a requisite sine qua non. It is as if he was not a candidate, he may not be substituted. Joel Miranda was not proclaimed. (Miranda vs. Abaya, G.R. No. 136351, July 28, 1999)

Can Abaya be declared mayor?No. The Doctrine of the Rejection of the Second Placer will be applied. The wreath of victory cannot be transferred from the disqualified winner to the repudiated loser. The vice-mayor will assume the office.(see also Sunga vs. COMELEC and Butz Aquino vs. COMELEC)

Q: Since there was no valid substitution, should the candidate who obtained the second highest vote be proclaimed? Who will then assume the position of mayorship? A: No. Under the doctrine on the rejection of second placer, the second placer is just like that—second placer. He was not the choice of the electorate. The wreath of victory cannot be transferred to the repudiated loser. Following the rule on succession, it is the Vice Mayor who will assume the position of mayorship. ‐ (Cayat v. COMELEC, G.R. No. 163776, Apr. 24, 2010)

Should the votes cast for the substituted candidate be considered votes for the substitute candidate?Answer: Republic Act No. 9006, otherwise known as the Fair Election Act, provides in Section 12 thereof: “In case of valid substitutions after the official ballots have been printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. For this purpose, the official ballots shall provide spaces where the voters may write the name of the substitute candidates if they are voting for the latter: Provided, however, That if the substitute candidate is of the same family name, this provision shall not apply.”

Doctrine of the rejection of the 2nd placer“The rule therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office.”

***“For to allow the defeated and repudiated candidate to take over the mayoralty despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the people’s right to elect officials of their choice.”

***In such a case, it is absurd to proclaim the totally repudiated candidate as the voters’ choice. Moreover, even in instances where the votes received by the second placer may not be considered numerically insignificant voters preferences are nonetheless so volatile and unpredictable that the result among qualified candidates, should the equation change because of the disqualification of an ineligible candidate, would not be self-evident. Absence of the apparent though ineligible winner among no choices could lead to a shifting of votes to candidates other than the second placer. By any mathematical formulation, the runner-up in an election cannot be construed to have obtained the majority or plurality of votes cast

where an ‘ineligible’ candidate has garnered either 78yu78u78u7y8gg majority or plurality of the votes.” (Loreto vs. Brion 1999)

When can a second placer be declared the winner?The exception is predicated on the concurrence of two assumptions, namely: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidate’s disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate.(Grego vs. COMELEC 1997)

Disqualification cases before the elections –COMELEC, whether pursuant to Art. 68, 69 or 78ONLY COMELEC has jurisdiction.

3 disqualification casesSec. 68 OEC – Vote buying, etc.Sec. 69 OEC – Nuisance Candidate – no bona fide intention to run, intended to confuse the electorate, COMELEC may act on this motu propio. File a case within 5 days after the last day of filing.Sec. 78 OEC – Material misrepresentation as to any state of facts in the CoC, file within 25 days from the date the candidate filed his CoC with the alleged misrepresentation (Mandatory requirement under the law).

Tecson vs. COMELECSec. 78 OEC was the ground used, material misrepresentation of facts stated in the CoC.

Loong vs. COMELEC, 216 SCRA 760, the petition for cancellation of the COC of Loong for alleged misrepresentation as to his age, filed by Ututalum beyond the 25-day period from the last day for filing COC cannot be given due course. Neither can it be treated as quo warranto petition since there has been no proclamation yet.

The 25-day period is a mandatory period. Any petition filed beyond this period is considered filed beyond time.

What kind of “material misrepresentation” is contemplated by Section 78 of the Omnibus Election Code as a ground for disqualification of a candidate? Does it include the use of surname?Held: Therefore, it may be concluded that the material misrepresentation contemplated by Section 78 of the (Omnibus Election) Code refers to qualifications for elective office. This conclusion is strengthened by the fact that the consequences imposed upon a candidate guilty of having made a false representation in his certificate of candidacy are grave – to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws. It could not have been the intention of the law to deprive a person of such a basic and substantial political right to be voted for a public office upon just any innocuous mistake.

[A]side from the requirement of materiality, a false representation under Section 78 must consist of a “deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible.” In other words, it must be made with an intention to deceive the electorate as to one’s qualifications for public office. The use of a surname, when not intended to mislead or deceive the public as to one’s identity, is not within the scope of the provision. (Victorino Salcedo II v. COMELEC, G.R. No. 135886, Aug. 16, 1999, En Banc [Gonzaga-Reyes])

Petition to Deny Due Course to or Cancel COC (Sec. 78, OEC)—a verified petition seeking to deny due course or to cancel a COC may be field by any person exclusively on the ground that any material representation contained therein as required in Section 74 hereof is false. The petition may be filed at any time not later than 25 days from the time of filing the COC and shall be decided, after due notice and hearing, not later than 15 days before the election.

Jurisdiction over a petition to cancel a COC lies with the COMELEC in division, not with the COMELEC en banc. (Garvida vs. Sales, G.R. No. 122872, September 10, 1997)

Sec. 69 OEC and 78 OEC – Petition to deny Due Course or to Petition to Cancel CoC.

Nuisance Candidates – 5 days to file from the last day of filingMaterial misrepresentation – 25 day period for the date of filing of the CoC with the material misrepresentation

Sec. 68 OEC – Disqualification proper via Petition for DisqualificationDeclared disqualified and the CoC will be cancelled.Here, the candidate is to have committed an election offense, but has filed a valid CoC. Hence, the petition to file is Petition for Disqualification and Cancellation of CoC.

Sec. 78 – Petition to deny due course, period to file: within 25 days after the date of filing of CoCNote: Under Section 77, he is qualified to be substituted if disqualified if the petition did not include petition to cancel CoC.

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election.

Note: Grounds for Disqualification (Section 68 of Omnibus Election Code):a) Giving money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions;b) Committed acts of terrorism to enhance his candidacy;c) Spent in his election campaign an amount in excess of that allowedd) Solicited, received or made any contribution which are prohibited

RA 6646 – Electoral Reforms Law of 1987Section 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.

Sec. 6. Effect of Disqualification Case – Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted.

If for any reason the candidate is not declared disqualified by final judgment before the elections, and he subsequently wins, court COMELEC shall continue with the inquiry or protest until resolution thereof.

Correlate with Art. VI Sec. 17Art. VI Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

Fr. Cayat was convicted for acts of lasciviousness. This was covered by LGC section 40(a).He was convicted 2 weeks before the elections. He won in the election. Palileng, the other candidate, had already filed a disqualification case.

In Fr. Cayat vs. COMELEC, G.R. Nos. 163776 and 165736, April 24, 2007, the law expressly declares that a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not have been counted. This is a mandatory provision of law under Section 6 of RA 6646, the Electoral Reforms Law of 1987. The SC did not apply the doctrine of the rejection of second placer which triggers the rule on succession. There was no second placer

because Palileng is not a second-placer but the only placer. There was only one candidate. Since the decision to disqualify Cayat was given 2 weeks before the election, the people should not have voted for him.

Section 40. Disqualifications. - The following persons are disqualified from running for any elective local position:(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;(b) Those removed from office as a result of an administrative case;(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;(d) Those with dual citizenship;(e) Fugitives from justice in criminal or non-political cases here or abroad;(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and(g) The insane or feeble-minded.

Fencing is an offense involving moral turpitude, even if punishable by a special law. Even if it is malum prohibitum, conviction for violation thereof is covered under Section 40 (a) of the LGC. (Dela Torre vs. COMELEC)

Lingating vs. COMELECSC clarified that the administrative decision finding him guilty must ATTAIN FINALITY in order for Section 40(b) will apply. There being an appeal or the case being subject of certiorari, the disqualification may not yet apply.

Disloyalty to the republic ((c) Those convicted by final judgment for violating the oath of allegiance to the Republic;)

Dual Citizenship must refer to dual allegiance.The phrase “dual citizenship” as a disqualification in R.A. No. 7160, §40(d) and in R.A. No. 7854, §20 must be understood as referring to “dual allegiance.” (Mercado v. Manzano, G.R. No. 135083, May 26,1999)

Dual allegiance, on the other hand, refers to a situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual’s volition. (Mercado v. Manzano, 307 SCRA 630, May 26, 1999, En Banc [Mendoza])

Sec. 40 (e) Fugitives from justice in criminal or non-political cases here or abroad;“Fugitive from Justice”Marquez Jr. vs. COMELEC and Rodriguez vs. COMELECFugitives from justice in criminal and non criminal cases here and abroad ‐ include not only those who flee after conviction to avoid punishment, but likewise those who after being charged, flee to avoid prosecution (Marquez v. COMELEC, G.R. No. 112889, April 18, 1995; Rodriguez v. COMELEC, GR 120099 July 24, 1996)

What is controlling insofar as fugitives from justice is concerned is the INTENT TO EVADE the jurisdiction of the court concerned. Hence, the charges being filed 6 months after Rodriguez had returned to the Philippines, he may not yet be considered a fugitive from justice under Section 40 (e) under the LGC.

Sec. 40 (f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code;This reinforces Sec. 58 of the OEC.

Sec. 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code,

unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.

A person who has achieved immigrant status is disqualified to run for any elective office, unless they are able to renounce that right before the elections. The renouncement of a green card status involves a separate act aside from the mere filing of a CoC. Public office is reserved only for those who are willing to stake their life and limbs for this country.Caasin vs. CA

Q: What is the significance of possession of a “green card” by a candidate for an elective position?A: Possession of a “green card” is ample evidence to show that the person is an immigrant to or a permanent resident of the U.S. Hence, immigration to the US by virtue of a “Green card” which entitles one to reside permanently in that country, constitutes abandonment of domicile in the Philippines. (Ugdoracion v. COMELEC, G.R. No. 179851, April 18, 2008)

Imelda Marcos vs. COMELEC (1995 Elections in Leyte) She claimed that she had won, COMELEC is ousted with the jurisdiction to continue with the disqualification case.2nd Sentence Sec. 6 RA 6466Marcos vs. COMELEC, 248 SCRA 300 – The court or Commission shall continue the trial, Sec. 6. RA 6466.

Guerrero vs. COMELEC, 336 SCRA 458 (July 26, 2000)— While the Congress is vested with the power to declare valid or invalid certificate of candidacy, its refusal to exercise the power following the proclamation and assumption of Fariñas is a recognition of the jurisdictional boundaries separating the COMELEC and the HRET.

Under Article VI, Section 17 of the Constitution, the HRET has the sole and exclusive jurisdiction over all contests relative to the elections, returns and qualifications of members of the House of Representatives. Thus, once a winning candidate has been proclaimed, taken his oath, and assumed office as a member of the HOR, COMELEC’s jurisdiction over election contests relating to his elections, returns and qualifications ends, and the HRET’s own jurisdiction begins. Thus, the COMELEC’s decision to discontinue exercising jurisdiction over the case is justifiable, in deference to the HRET’s own jurisdiction and functions.

RA 8295 – Lone Candidate Law

What is the Lone Candidate Law? What are its salient provisions?

Answer: The Lone Candidate Law is Republic Act No. 8295, enacted on June 6, 1997. Section 2 thereof provides that “Upon the expiration of the deadline for the filing of the certificate of candidacy in a special election called to fill a vacancy in an elective position other than for President and Vice-President, when there is only one (1) qualified candidate for such position, the lone candidate shall be proclaimed elected to the position by proper proclaiming body of the Commission on Elections without holding the special election upon certification by the Commission on Elections that he is the only candidate for the office and is thereby deemed elected.”

Section 3 thereof provides that “the lone candidate so proclaimed shall assume office not earlier than the scheduled election day, in the absence of any lawful ground to deny due course or cancel the certificate of candidacy in order to prevent such proclamation, as provided for under Sections 69 and 78 of Batas Pambansa Bilang 881 also known as the Omnibus Election Code.”

Pre-Proclamation CasesThis is a remedy after the election but before the proclamation.

Pre-Proclamation Cases

What are pre-proclamation cases, and exceptions thereto? What Court has jurisdiction over pre-proclamation cases?

Held: As a general rule, candidates and registered political parties involved in an election are allowed to file pre-proclamation cases before the Comelec. Pre-proclamation cases refer to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of election returns (Section 241, Omnibus Election Code). The Comelec has exclusive jurisdiction over all pre-proclamation controversies (Section 242, supra). As an exception, however, to the general rule, Section 15 of Republic Act 7166 prohibits candidates in the presidential, vice-presidential, senatorial and congressional elections from filing pre-proclamation cases. It states:

“Sec. 15. Pre-Proclamation Cases Not Allowed in Elections for President, Vice-President, Senator, and Members of the House of Representatives. - For purposes of the elections for President, Vice-President, Senator and Member of the House of Representatives, no pre-proclamation cases shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of election returns or the certificates of canvass, as the case may be. However, this does not preclude the authority of the appropriate canvassing body motu proprio or upon written complaint of an interested person to correct manifest errors in the certificate of canvass or election returns before it.”

The prohibition aims to avoid delay in the proclamation of the winner in the election, which delay might result in a vacuum in these sensitive posts. The law, nonetheless, provides an exception to the exception. The second sentence of Section 15 allows the filing of petitions for correction of manifest errors in the certificate of canvass or election returns even in elections for president, vice-president and members of the House of Representatives for the simple reason that the correction of manifest error will not prolong the process of canvassing nor delay the proclamation of the winner in the election. The rule is consistent with and complements the authority of the Comelec under the Constitution to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall" (Section 2[1], Article IX-C, 1987 Constitution) and its power to "decide, except those involving the right to vote, all questions affecting elections." (Section 2[3], Article IX-C, supra) (Federico S. Sandoval v. COMELEC, G.R. No. 133842, Jan. 26, 2000 [Puno])

Sections 241, 242, 243 OEC.

Section 241 – definitionSection 242 – Jurisdiction – COMELECSection 243 – Issues that may be raised:

PRE-PROCLAMATION CONTROVERSY—Section 241, OECAny question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matters raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. (Bandala vs. COMELEC, G.R. No. 159369, March 3, 2004)

COMELEC shall have exclusive jurisdiction over all pre-proclamation controversies. (Section 242, OEC)

These rules has been greatly affected by the election computerization:~Idem sonas rule – same sound rule~Equity of the incumbent rule ~Descriptio personae rule

Remedies After Proclamation:ProtestPetition for Quo Warranto

What are the remedies after proclamation?Election Protest or Petition for Quo Warranto.

Section 241-243 OEC and Sec. 15 RA 6646Sec. 241. Definition. - A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns.

Sec. 242. Commission's exclusive jurisdiction of all pre-proclamation controversies. - The Commission shall have exclusive jurisdiction of all pre-proclamation controversies. It may motu proprio or upon written petition, and after due notice and hearing, order the partial or total suspension of the proclamation of any candidate-elect or annual partially or totally any proclamation, if one has been made, as the evidence shall warrant in accordance with the succeeding sections.

Sec. 243. Issues that may be raised in pre-proclamation controversy. - The following shall be proper issues that may be raised in a pre-proclamation controversy:

(a) Illegal composition or proceedings of the board of canvassers;(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code;(c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and(d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates.

Note: These provisions in 243 are now affected by the automation of the voting process.

OEC Sec. 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect.

Does the petition for annulment of proclamation of a candidate merely involve the exercise by the COMELEC of its administrative power to review, revise and reverse the actions of the board of canvassers and, therefore, justifies non-observance of procedural due process, or does it involve the exercise of the COMELEC's quasi-judicial function?

Held: Taking cognizance of private respondent's petitions for annulment of petitioner's proclamation, COMELEC was not merely performing an administrative function. The administrative powers of the COMELEC include the power to determine the number and location of polling places, appoint election officials and inspectors, conduct registration of voters, deputize law enforcement agencies and governmental instrumentalities to ensure free, orderly, honest, peaceful and credible elections, register political parties, organizations or coalition, accredit citizen's arms of the Commission, prosecute election offenses, and recommend to the President the removal of or imposition of any other disciplinary action upon any officer or employee it has deputized for violation or disregard of its directive, order or decision. In addition, the Commission also has direct control and supervision over all personnel involved in the conduct of election. However, the resolution of the adverse claims of private respondent and petitioner as regards the existence of a manifest error in the questioned certificate of canvass requires the COMELEC to act as an arbiter. It behooves the Commission to hear both parties to determine the veracity of their allegations and to decide whether the alleged error is a manifest error. Hence, the resolution of this issue calls for the exercise by the COMELEC of its quasi-judicial power. It has been said that where a power rests in judgment or discretion, so that it is of judicial nature or character, but does not involve the exercise of functions of a judge, or is conferred upon an officer other than a judicial officer, it is deemed quasi-judicial. The COMELEC

therefore, acting as quasi-judicial tribunal, cannot ignore the requirements of procedural due process in resolving the petitions filed by private respondent. (Federico S. Sandoval v. COMELEC, G.R. No. 133842, Jan. 26, 2000 [Puno])

Q: What are pre proclamation controversies?‐A: They refer to any question pertaining to or affecting the proceedings of the board of canvassers, and the preparation, transmission, receipt, custody and appreciation of election returns which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the COMELEC. (Sec. 241, B.P. 881 Omnibus Election Code)

Note: The purpose of this kind of controversy is to ascertain winners in the elections on basis of election returns duly authenticated by board of inspectors and admitted by the board of canvassers. (Abella v. Larrazabal, G.R. No. 87721 30, ‐December 21, 1989)

Q: Are there pre proclamation cases in elections for President, Vice president and Members of the House of ‐ ‐Representatives on matters relating to the preparation, transmission, receipt, custody, and appreciation of the election returns or the certificates of canvass?A:GR: No (Sec. 15, Synchronized Election Law).XPNS:1. Correction of manifest errors2. Questions affecting the composition or proceedings of the board of canvassers and3. Determination of the authenticity and due execution of certificates of canvass as provided in Sec. 30 of R.A.7166, as amended by R.A. 9369.

Note: GR: The COMELEC is restricted to a mere examination of returns on their face and not to go beyond and investigate irregularities. (Belac v. COMELEC, G.R. No. 145802, April 4, 2001)XPN: If there is a prima facie showing that return is not genuine. (Ibid.)

No pre proclamation cases are allowed in case of barangay election. (Sec. 9, R.A. No. 6679)‐

Q: When are pre proclamation cases terminated?‐A:GR: At the beginning of term of the officers. (Sec. 16, R.A. No. 7166)XPNS:1. When based on evidence, COMELEC determines that petition is meritorious2. The SC in a petition for certiorari issues a contrary order; or3. The case is not a pre proclamation case. (Peñaflorida v. COMELEC, G.R. No. 125950, November 18, 1997)‐

Q: What issues may be raised in a pre proclamation controversy?‐A:1. Illegal composition or proceedings of the Board of Canvassers2. Canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified; or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sec. 233, 234, 235, and 236 of B.P. 8813. Election returns were prepared under duress threat, coercion, or intimidation, or they are obviously manufactured or not authentic4. When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate/s. (Sec. 242, B.P. 881 Omnibus Election Code).

Q: What is a petition to annul or suspend the proclamation?A: It is a remedy where there is manifest error in the face of the returns, and a winning candidate is about to be, or has already been proclaimed on the basis thereof.

Note: The filing of a petition to annul or suspend the Proclamation shall suspend the running of the period within which to file an election protest or quo warranto proceedings.

Q: Are pre proclamation controversies allowed under the new Automated Elections Law?‐

A:GR: For purpose of the elections for president, vice – president, senator, and member of the House of Representatives, no pre proclamation cases shall be allowed on matters relating to the preparation, transmission, receipt, custody and ‐appreciation of election returns or the certificates of canvass, as the case may be. (Sec. 38, R.A. No. 9369)

XPNS:1. Illegal composition of the Board of Canvassers (BOC);2. Illegal proceedings of the BOC. (Sec. 1, Rule 3, COMELEC Resolution No. 8804, March 22, 2010)

Note: However, this does not preclude the authority of the appropriate canvassing body motu propio or upon written complaint of an interested person to correct manifest errors in the certificate of canvass or election before it. (Sec. 38, R.A. No. 9369)

Issues that may be raised in pre-proclamation controversy:1. Illegal composition or proceedings of the board of canvassers; (This is still applicable in computerized voting)2. The canvassed election returns (ER) are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in authentic copies thereof.3. The ERs were prepared under duress, threats, coercion, or intimidation, or they are obviously manufacture, or not authentic.4. When substitute and fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidates. (Section 243, OEC)

Note: Issues #s 2, 3 and 4 are not applicable to election of President, VP, Senators and Members of the House ofRepresentatives. Only #1 is applicable to them

Distinguish Election Protest from Petition for Quo Warranto.

Held: In Samad v. COMELEC, we explained that a petition for quo warranto under the Omnibus Election Code raises in issue the disloyalty or ineligibility of the winning candidate. It is a proceeding to unseat the respondent from office but not necessarily to install the petitioner in his place. An election protest is a contest between the defeated and winning candidates on the ground of frauds or irregularities in the casting and counting of the ballots, or in the preparation of the returns. It raises the question of who actually obtained the plurality of the legal votes and therefore is entitled to hold the office. (Dumayas, Jr. v. COMELEC, G.R. Nos. 141952-53, April 20, 2001, En Banc [Quisumbing]) Protest – to determine who won, proceeding to unseat the respondent from office, not necessarily to install the petitioner in his placeQuo Warranto – raises in issue the disloyalty or ineligibility of the winning candidate, contest between the defeated and winning candidates on the ground of frauds or irregularities in the casting and counting of the ballots, or in the preparation of the returns, winner of the case entitled to hold the office

What controls is the allegation made

FAILURE OF ELECTIONSWhat if there were no elections due to PCOS machines not reaching the precincts due to flood?Petition for Declaration of Failure of Elections under Sec. 6 OEC

NOEL – No elections, suspended, failure to elect (no winners)On account of: Fraud, violence, force majeure terrorism, other analogous circumstances.

Where to file?Jurisdiction lies in COMELEC En Banc. Majority may grant the petition and special elections will be scheduled in the areas affected.

In an pre-proclamation case, there was an election, but there was no proclamation yet.

In failure of election, no election happened or else the will of the electorate cannot be determined due to fraud, violence, force majeure terrorism, and other analogous circumstances

Pre-conditions for declaring failure of elections—1. No voting has been held (NOEL) or 2. Election has been suspended before the hour fixed by law for the closing of the voting in any precinct because of:

a. Force majeureb. Violencec. Terrorismd. Fraude. Other analogous cases.

3. Votes not cast are sufficient to affect the results of the elections. (Tan vs.COMELEC, G.R. Nos. 148575-76, December 10, 2003)

Q: Who has the power to declare a failure of election? A: The COMELEC has the power to declare a failure of election and this can be exercised motu proprio or upon verified petition. (Loong v. COMELEC, G.R. Nos. 107814 15, May 16, 1996)‐

Q: What are the three instances where a failure of election may be declared? A: 1. The election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; 2. The election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes; and 3. After the voting and during the preparation and transmission of the election returns or canvass thereof such election results in failure to elect on account of force majeure, violence, fraud or analogous causes. (Banaga Jr vs Comelec, G.R. No. 134696, July 31, 2000)

Q: Who has the power to declare a failure of election? A: The COMELEC has the power to declare a failure of election and this can be exercised motu proprio or upon verified petition. (Loong v. COMELEC, G.R. Nos. 107814 15, May 16, 1996)‐

Note: The hearing is summary in nature and the COMELEC may delegate to its lawyers the power to hear the case and to receive evidence. (Ibid.)

Q: What are the conditions before COMELEC can act on a petition to declare failure of election? A:1. No voting took place in the precinct or precincts on the date fixed by law, or even if there was voting, the election resulted in failure to elect; and 2. The votes not cast would have affected the result of the election (Tan v. COMELEC, G.R. No. 148575 76, Dec. 10, 2003) ‐

Note: The COMELEC en banc has original and exclusive jurisdiction to hear and decide petitions for declaration of failure of election or for annulment of election results (Sec. 4, R.A. 7166).

The proclamation of the winning candidate does not divest the COMELEC of such jurisdiction, where the proclamation is null and void or is claimed to be so. (Ampatuan v. COMELEC, G.R.No. 149803, January 31, 2002)

Q: Due to violence and terrorism attending the casting of votes in a municipality in Lanaodel Sur, it became impossible to hold therein free, orderly and honest elections. Several candidates for municipal positions withdrew from the race. One candidate for Mayor petitioned the COMELEC for the postponement of the elections and the holding of special elections after the causes of such postponement or failure of elections shall have ceased. 1. How many votes of the COMELEC Commissioners may be cast to grant the petition? Explain.

2. A person who was not a candidate at the time of the postponement of the elections decided to run for an elective position and filed a certificate of candidacy prior to the special elections. May his certificate of candidacy be accepted? Explain.

3. Suppose he ran as a substitute for a candidate who previously withdrew his candidacy, will your answer be the same? Explain.

A: 1. The COMELEC shall decide by a majority vote of all its members on any case or matter brought before it. (Section 7, Article IX A of the 1987 Constitution‐ ). In Cua v. COMELEC, G.R. No. 80519 2, Dec. 17, 1987‐ , the Supreme Court stated that a two to one decision rendered by a Division of the COMELEC and a three to two decision rendered by the COMELEC ‐ ‐ ‐ ‐ en banc was valid where only five members took part in deciding the case.

2. No, his certificate of candidacy cannot be accepted. As a rule, in cases of postponement or failure of election no additional certificate of candidacy shall be accepted. (Section 75 of the Omnibus Election Code)

3. No, the answer will be different. An additional certificate of candidacy may be accepted in cases of postponement or failure of election if there was a substitution of candidates; but the substitute must belong to and must be endorsed by the same party. (Section 75 of the Omnibus Election Code)

Mitmug v. COMELECThere were 10k registered voters and 3 candidates for mayor. On the day of elections, only 3000 voted. One of the candidates filed a petition to declare failure of elections in the entire municipality due to massive terrorism, coercion and intimidation on the part of two of the candidates.

Held: In Mitmug v. COMELEC (230 SCRA 54 [1994]), petitioner instituted with the COMELEC an action to declare failure of election in forty-nine precincts where less than a quarter of the electorate were able to cast their votes. He also lodged an election protest with the Regional Trial Court disputing the result of the election in all precincts in his municipality. The Comelec denied motu proprio and without due notice and hearing the petition to declare failure of election despite petitioner’s argument that he has meritorious grounds in support thereto, that is, massive disenfranchisement of voters due to terrorism. On review, we ruled that the Comelec did not gravely abuse its discretion in denying the petition. It was not proven that no actual voting took place. Neither was it shown that even if there was voting, the results thereon would be tantamount to failure to elect. Considering that there is no concurrence of the conditions seeking to declare failure of election, there is no longer need to receive evidence on alleged election irregularities.

Distinguish a petition to declare failure of elections from an election protest.Held: While petitioner may have intended to institute an election protest by praying that said action may also be considered an election protest, in our view, petitioner’s action is a petition to declare a failure of elections or annul election results. It is not an election protest.

First, his petition before the Comelec was instituted pursuant to Section 4 of Republic Act No. 7166 in relation to Section 6 of the Omnibus Election Code. Section 4 of RA 7166 refers to “postponement, failure of election and special elections” while Section 6 of the Omnibus Election Code relates to “failure of election.” It is simply captioned as “Petition to Declare Failure of Elections and/or For Annulment of Elections.”

Second, an election protest is an ordinary action while a petition to declare a failure of elections is a special action under the 1993 Comelec Rules of Procedure as amended. An election protest is governed by Rule 20 on ordinary actions, while a petition to declare failure of elections is covered by Rule 26 under special actions.

In this case, petitioner filed his petition as a special action and paid the corresponding fee therefor. Thus, the petition was docketed as SPA-98-383. This conforms to petitioner’s categorization of his petition as one to declare a failure of elections or annul election results. In contrast, an election protest is assigned a docket number starting with “EPC,” meaning election protest case.

Third, petitioner did not comply with the requirements for filing an election protest. He failed to pay the required filing fee and cash deposits for an election protest. Failure to pay filing fees will not vest the election tribunal jurisdiction over the case. Such procedural lapse on the part of a petitioner would clearly warrant the outright dismissal of his action.

Fourth, an en banc decision of Comelec in an ordinary action becomes final and executory after thirty (30) days from its promulgation, while an en banc decision in a special action becomes final and executory after five (5) days from promulgation, unless restrained by the Supreme Court (Comelec Rules of Procedure, Rule 18, Section 13 [a], [b]). For that reason, a petition cannot be treated as both an election protest and a petition to declare failure of elections.

Fifth, the allegations in the petition decisively determine its nature. Petitioner alleged that the local elections for the office of vice-mayor in Paranaque City held on May 11, 1998, denigrates the true will of the people as it was marred with widespread anomalies on account of vote buying, flying voters and glaring discrepancies in the election returns. He averred that those incidents warrant the declaration of a failure of elections.

Given these circumstances, public respondent cannot be said to have gravely erred in treating petitioner’s action as a petition to declare failure of elections or to annul election results. (Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31, 2000, En Banc [Quisumbing])

Pre-Proclamation Controversy Petition for Failure of ElectionThere was election There was no electionJurisdiction: Division of a COMELEC Sec. 242 OEC Jurisdiction: COMELEC En Banc Sec. 4 RA 7166Once proclaimed, the pre-proclamationshall be dismissed

No proclamation can be had

POST-PROCLAMATION REMEDIESElection Protest Quo Warranto

Distinguish Election Protest and Quo Warranto in Election Proceedings.

Election Protest Quo WarrantoIssue: Who won the Elections Issue: Is the candidate qualified to run?Who may file: Candidate may file Who may file: Any registered voter may fileEffect: Winner of the case will assume office Effect: Law of succession applies if respondent is removed

Jurisdictions in Election Protest and Quo Warranto Cases.Sec 4 (7) Art. VII – President or Vice President – SC En Banc acting as PET; (The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose.)Members of – the Senate – SET - No appeal lies. Only remedy is Certiorari under Rule 65 based on Grave Abuse of DiscretionMembers of Congress including Party-List – Sec. 17 HRET – No appeal lies. Only remedy is Certiorari under Rule 65 based on Grave Abuse of Discretion

Regional, Provincial, and City officials – COMELEC – Sec. 2 paragraph 2 Art IX-C.Elective municipal officials – RTC; appellate - COMELECBarangay officials including SK – MTC; appellate – COMELEC

Appellate Jurisdiction(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable.

What Court has jurisdiction over election protests and quo warranto proceedings involving Sangguniang Kabataan (SK) elections?

Held: Any contest relating to the election of members of the Sangguniang Kabataan (including the chairman) – whether pertaining to their eligibility or the manner of their election – is cognizable by MTCs, MCTCs, and MeTCs. Section 6 of Comelec Resolution No. 2824 which provides that cases involving the eligibility or qualification of SK candidates shall be decided by the City/Municipal Election Officer whose decision shall be final, applies only to proceedings before the election. Before proclamation, cases concerning eligibility of SK officers and members are cognizable by the Election Officer. But after the election and proclamation, the same cases become quo warranto cases cognizable by MTCs, MCTCs, and MeTCs. The distinction is based on the principle that it is the proclamation which marks off the jurisdiction of the courts from the jurisdiction of election officials.

The case of Jose M. Mercado v. Board of Election Supervisors (243 SCRA 423, G.R. No. 109713, April 6, 1995), in which this Court ruled that election protests involving SK elections are to be determined by the Board of Election Supervisors was decided under the aegis of Comelec Resolution No. 2499, which took effect on August 27, 1992. However, Comelec Resolution No. 2824, which took effect on February 6, 1996 and was passed pursuant to R.A. 7808, in relation to Arts. 252-253 of the Omnibus Election Code, has since transferred the cognizance of such cases from the Board of Election Supervisors to the MTCs, MCTCs and MeTCs. Thus, the doctrine of Mercado is no longer controlling. (Francis King L. Marquez v. COMELEC, G.R. No. 127318, Aug. 25, 1999, En Banc [Purisima])

Section 2 (2) Art. IX (C)(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.

COMELEC Jurisdiction:1. exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials

2. appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction (RTC), or involving elective barangay officials decided by trial courts of limited jurisdiction (MTC).

Sec. 17 ART. VI

Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

Highly Urbanized City and Independent Component City - Protest in the COMELEC

Barangay – MTC

Governor ARMM – COMELEC

There can be no splitting of jurisdiction with respect of election protest or quo warranto. Same court has jurisdiction.

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose.

Sec.4 (paragraph 7) Art. VII : The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the elections, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose. - The word contest here refers to election protest and quo warranto, which, although two distinct remedies, have one object in view, to unseat the winning candidate. The words election returns refer to election protest. The word qualifications here refer to quo warranto. Tecson vs. COMELEC (FPJ case)

Section 2 (2) Art. IX C(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable.

Sec. 3 Art. IX-CSection 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre- proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.

Reyes vs RTC of Oriental MindoroCOMELEC Division, final and executory under Sec. 3 Art. IX-C – Motion for Reconsideration – COMELEC En BANC – Certiorari under Rule 65 – SCIt is the decision of the COMELEC En Banc that is reviewable by the SC under Certiorari (Rule 65).

Gementiza vs. COMELEC (Qualification of the Reyes Ruling)If what is involved is a mere interlocutory order of the COMELEC, there the party may go directly to the SC via Certiorari (Rule 65). Sec. 3 Art. IX-C states that the COMELEC EN BANC shall decide motions for reconsideration only for “decisions” of a Division, meaning those acts of final character. Gementiza vs. COMELEC, 353 SCRA 724, March 6, 2001, the COMELEC EN BANC shall decide motions for reconsideration only for “decisions” of a Division, meaning those acts of final character. The interlocutory order ruled by the Division of COMELEC should be brought up to the Supreme Court thru Certiorari.

ADMINISTRATIVE LAW

Q: Define Administrative Law?A: It is a branch of public law fixing the organization and determines the competence of administrative authorities, and indicates the individual remedies for the violation of the rights.

EO 292 – Administrative Code of 1987 – the governing administrative code today.

Describe the Administrative Code of 1987

Held: The Code is a general law and “incorporates in a unified document the major structural, functional and procedural principles of governance (Third Whereas Clause, Administrative Code of 1987) and “embodies changes in administrative structures and procedures designed to serve the people.” (Fourth Whereas Clause, Administrative Code of 1987) The Code is divided into seven (7) books. These books contain provisions on the organization, powers and general administration of departments, bureaus and offices under the executive branch, the organization and functions of the Constitutional Commissions and other constitutional bodies, the rules on the national government budget, as well as guidelines for the

exercise by administrative agencies of quasi-legislative and quasi-judicial powers. The Code covers both the internal administration, i.e., internal organization, personnel and recruitment, supervision and discipline, and the effects of the functions performed by administrative officials on private individuals or parties outside government. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

What is the Government of the Republic of the Philippines?Answer: The Government of the Republic of the Philippines refers to the corporate governmental entity through which the functions of the government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government. (Sec. 2[1], Introductory Provisions, Executive Order No. 292)

Government of the Republic of the Philippines - corporate governmental entity through which the functions of the government are exercised throughout the Philippines, including the various arms through which political authority is made effective in the Philippines

“the various arms through which political authority is made effective in the Philippines” – the LGUs as referred in the Administrative Code of the Philippines

Territorial and political subdivisions of the Philippines – LGUs as referred in the 1987 Constitution

What is a government instrumentality? What are included in the term government instrumentality?

Answer: A government instrumentality refers to any agency of the 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, enjoying operational autonomy, usually through a charter. The term includes regulatory agencies, chartered institutions and government-owned or controlled corporations. (Sec. 2[10], Introductory Provisions, Executive Order No. 292)

Q: What is an Agency? A: An agency is any department, bureau, office, commission, authority or officer of the national government, authorized by law or executive order to make rules, issue licenses, grant rights or privileges, and adjudicate cases; research institutions with respect to licensing functions; government corporations with respect to functions regulating private rights, privileges, occupation or business, and officials in the exercise of the disciplinary powers as provided by law.

Sec. 17 Art. VIIThe president shall have control over all administrative bodies under the doctrine of qualified political agency or the alter-ego doctrine.

It is vested in the President of the Philippines. Thus, the President shall have control of all executive departments, bureaus and offices. He shall ensure that laws are faithfully executed. (Sec. 17, Art. VI, 1987 constitution)

Note: Until and unless a law is declared unconstitutional, the President has a duty to execute it regardless of his doubts as to its validity. This is known as the faithful execution clause. (Secs.1 and 17, Art. VII, 1987 Constitution).

DepartmentBureauOffice

Control - Control means the authority of an empowered officer to alter or modify, or even nullify or set aside, what a subordinate officer has done in the performance of his duties, as well as to substitute the judgment of the latter, as and when the former deems it to be appropriate. Expressed in another way, the President has the power to assume directly the functions of an executive department, bureau and office. It can accordingly be inferred therefrom that the President can interfere in the exercise of discretion of officials under him or altogether ignore their recommendations.1. alter2. modify3. nullify4. set aside

5. substitute the judgment of the latter

Q: What is the power of general supervision?A: This is the power of a superior officer to ensure that the laws are faithfully executed by subordinates. The power of the President over LGUs is only of general supervision. Thus, he can only interfere in the affairs and activities of a LGUEXECUTIVE DEPARTMENT if he finds that the latter acted contrary to law. 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 corporations. (Dadole v. COA, G.R. No. 125350, Dec. 3, 2002)

Distinguish the President’s power of general supervision over local governments from his control power.

Held: On many occasions in the past, this Court has had the opportunity to distinguish the power of supervision from the power of control. In Taule v. Santos (200 SCRA 512 [1991]), we held that the Chief Executive wielded no more authority than that of checking whether a local government or the officers thereof perform their duties as provided by statutory enactments. He cannot interfere with local governments provided that the same or its officers act within the scope of their authority. Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body (Ibid.). Officers in control lay down the rules in the doing of an act. If they are not followed, it is discretionary on his part to order the act undone or redone by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. Supervising officers merely see to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done to conform to the prescribed rules. He cannot prescribe his own manner for the doing of the act (Drilon v. Lim, supra, 142). (Bito-Onon v. Fernandez, 350 SCRA 732, Jan. 31, 2001, 3rd Div. [Gonzaga-Reyes])

Q: What is the power of control?A: Control is 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.

Note: The President’s power over GOCCs comes not from the Constitution, but from statute. Hence, it may be taken away by statute.

The President has full control of all the members of his Cabinet. He may appoint them as he sees fit, shuffle them at pleasure, and replace them in his discretion without any legal inhibition whatever. However, such control is exercisable by the President only over the acts of his subordinates and not necessarily over the subordinate himself. (Ang Angco v. ‐Castillo, G.R. No.L 17169, Nov. 30, 1963)‐

Doctrine of Qualified Political Agency

Q: What is the doctrine of qualified political agency or alter ego principle?A:It means that 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. Secretary of the Interior, G.R. No. L 46570, April 21, ‐1939)

Q: What are the exceptions to the alter ego doctrine?A:1. If the acts are disapproved or reprobated by the President;2. If the President is required to act in person by law or by the Constitution.

Note: In the case of Abakada Guro v. Executive Secretary, G.R. No. 168056, Sept. 1, 2005, the SC held that the Secretary of Finance can act as an agent of the Legislative Dept. to determine and declare the event upon which its expressed will is to take effect. Thus, being the agent of Congress and not of the President, the latter cannot alter, or modify or nullify, or set aside the findings of the Secretary of Finance and to substitute the judgment of the former for that of the latter.

Q: What is the reason for the alter ego doctrine?A: 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.

Kinds of Instrumentalities: Regulatory AgenciesChartered InstitutionsGovernment Corporations

President

Local Governments Executive Departments Instrumentalities General Supervision Control Regulatory agencies – administrative supervision of the dept.

Bureaus Chartered Institutions – administrative supervision of the Offices Department they have a like function.

GOCCs – attachment

Attachment – coordination involving planning of programs; pre-supposes equal bodies.

Beja Sr. vs. CA

What is a regulatory agency?

Answer: A regulatory agency refers to any agency expressly vested with jurisdiction to regulate, administer or adjudicate matters affecting substantial rights and interest of private persons, the principal powers of which are exercised by a collective body, such as a commission, board or council. (Sec. 2[11], Introductory Provisions, Executive Order No. 292)

What is a chartered institution?

Answer: A chartered institution refers to any agency organized or operating under a special charter, and vested by law with functions relating to specific constitutional policies or objectives. This term includes state universities and colleges and the monetary authority of the State. (Section 2[12], Introductory Provisions, Executive Order No. 292)

When is a government-owned or controlled corporation deemed to be performing proprietary function? When is it deemed to be performing governmental function?

Held: Government-owned or controlled corporations may perform governmental or proprietary functions or both, depending on the purpose for which they have been created. If the purpose is to obtain special corporate benefits or earn pecuniary profit, the function is proprietary. If it is in the interest of health, safety and for the advancement of public good and welfare, affecting the public in general, the function is governmental. Powers classified as “proprietary” are those intended for private advantage and benefit. (Blaquera v. Alcala, 295 SCRA 366, 425, Sept. 11, 1998, En Banc [Purisima])

What is a government instrumentality? What are included in the term government instrumentality?

Answer: A government instrumentality refers to any agency of the 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, enjoying operational autonomy, usually through a charter. The term includes regulatory agencies, chartered institutions and government-owned or controlled corporations. (Sec. 2[10], Introductory Provisions, Executive Order No. 292)

When is a government-owned or controlled corporation deemed to be performing proprietary function? When is it deemed to be performing governmental function?

Held: Government-owned or controlled corporations may perform governmental or proprietary functions or both, depending on the purpose for which they have been created. If the purpose is to obtain special corporate benefits or earn pecuniary profit, the function is proprietary. If it is in the interest of health, safety and for the advancement of public good and welfare, affecting the public in general, the function is governmental. Powers classified as “proprietary” are those intended for private advantage and benefit. (Blaquera v. Alcala, 295 SCRA 366, 425, Sept. 11, 1998, En Banc [Purisima])

UP vs. Dizon – page 39 in the handoutDespite its establishment as a body corporate, UP remains a governmental institution performing its own functions….

Does the petition for annulment of proclamation of a candidate merely involve the exercise by the COMELEC of its administrative power to review, revise and reverse the actions of the board of canvassers and, therefore, justifies non-observance of procedural due process, or does it involve the exercise of the COMELEC's quasi-judicial function?

Held: Taking cognizance of private respondent's petitions for annulment of petitioner's proclamation, COMELEC was not merely performing an administrative function. The administrative powers of the COMELEC include the power to determine the number and location of polling places, appoint election officials and inspectors, conduct registration of voters, deputize law enforcement agencies and governmental instrumentalities to ensure free, orderly, honest, peaceful and credible elections, register political parties, organizations or coalition, accredit citizen's arms of the Commission, prosecute election offenses, and recommend to the President the removal of or imposition of any other disciplinary action upon any officer or employee it has deputized for violation or disregard of its directive, order or decision. In addition, the Commission also has direct control and supervision over all personnel involved in the conduct of election. However, the resolution of the adverse claims of private respondent and petitioner as regards the existence of a manifest error in the questioned certificate of canvass requires the COMELEC to act as an arbiter. It behooves the Commission to hear both parties to determine the veracity of their allegations and to decide whether the alleged error is a manifest error. Hence, the resolution of this issue calls for the exercise by the COMELEC of its quasi-judicial power. It has been said that where a power rests in judgment or discretion, so that it is of judicial nature or character, but does not involve the exercise of functions of a judge, or is conferred upon an officer other than a judicial officer, it is deemed quasi-judicial. The COMELEC therefore, acting as quasi-judicial tribunal, cannot ignore the requirements of procedural due process in resolving the petitions filed by private respondent. (Federico S. Sandoval v. COMELEC, G.R. No. 133842, Jan. 26, 2000 [Puno])

Discuss the Doctrine of Primary Jurisdiction (or Prior Resort).

Held: Courts cannot and will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact.

In recent years, it has been the jurisprudential trend to apply this doctrine to cases involving matters that demand the special competence of administrative agencies even if the question involved is also judicial in character. It applies “where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such case, the judicial process is suspended pending referral of such issues to the administrative body for its view.”

In cases where the doctrine of primary jurisdiction is clearly applicable, the court cannot arrogate unto itself the authority to resolve a controversy, the jurisdiction over which is lodged with an administrative body of special competence. (Villaflor v. CA, 280 SCRA 287)

Discuss the Doctrine of Exhaustion of Administrative Remedies. Enumerate exceptions thereto.

Held: 1. Before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction then such remedy should be exhausted first before the court’s judicial power can be sought. The premature invocation of court’s jurisdiction is fatal to one’s cause of action. Accordingly, absent any finding of waiver or estoppel the case is susceptible of dismissal for lack of cause of action. This doctrine of exhaustion of administrative remedies was not

without its practical and legal reasons, for one thing, availment of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies. It is no less true to state that the courts of justice for reasons of comity and convenience will shy away from a dispute until the system of administrative redress has been completed and complied with so as to give the administrative agency concerned every opportunity to correct its error and to dispose of the case.

This doctrine is disregarded:

1) when there is a violation of due process;2) when the issue involved is purely a legal question;3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction;4) when there is estoppel on the part of the administrative agency concerned;5) when there is irreparable injury;6) when the respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter;7) when to require exhaustion of administrative remedies would be unreasonable;8) when it would amount to a nullification of a claim; 9) when the subject matter is a private land in land case proceeding; 10) when the rule does not provide a plain, speedy and adequate remedy, and11) when there are circumstances indicating the urgency of judicial intervention.

(Paat v. CA, 266 SCRA 167 [1997])

2. Non-exhaustion of administrative remedies is not jurisdictional. It only renders the action premature, i.e., claimed cause of action is not ripe for judicial determination and for that reason a party has no cause of action to ventilate in court. (Carale v. Abarintos, 269 SCRA 132)

250. When may the Government not validly invoke the rule that prescription does not run against the State?

Held: While it is true that prescription does not run against the State, the same may not be invoked by the government in this case since it is no longer interested in the subject matter. While Camp Wallace may have belonged to the government at the time Rafael Galvez’s title was ordered cancelled in Land Registration Case No. N-361, the same no longer holds true today.

Republic Act No. 7227, otherwise known as the Base Conversion and Development Act of 1992, created the Bases Conversion and Development Authority. X x x

X x x

With the transfer of Camp Wallace to the BCDA, the government no longer has a right or interest to protect. Consequently, the Republic is not a real party in interest and it may not institute the instant action. Nor may it raise the defense of imprescriptibility, the same being applicable only in cases where the government is a party in interest. X x x. Being the owner of the areas covered by Camp Wallace, it is the Bases Conversion and Development Authority, not the Government, which stands to be benefited if the land covered by TCT No. T-5710 issued in the name of petitioner is cancelled.

Nonetheless, it has been posited that the transfer of military reservations and their extensions to the BCDA is basically for the purpose of accelerating the sound and balanced conversion of these military reservations into alternative productive uses and to enhance the benefits to be derived from such property as a measure of promoting the economic and social development, particularly of Central Luzon and, in general, the country’s goal for enhancement (Section 2, Republic Act No. 7227). It is contended that the transfer of these military reservations to the Conversion Authority does not amount to an abdication on the part of the Republic of its interests, but simply a recognition of the need to create a body corporate which will act as its agent for the realization of its program. It is consequently asserted that the Republic remains to be the real party in interest and the Conversion Authority merely its agent.

We, however, must not lose sight of the fact that the BCDA is an entity invested with a personality separate and distinct from the government. X x x

It may not be amiss to state at this point that the functions of government have been classified into governmental or constituent and proprietary or ministrant. While public benefit and public welfare, particularly, the promotion of the economic and social development of Central Luzon, may be attributable to the operation of the BCDA, yet it is certain that

the functions performed by the BCDA are basically proprietary in nature. The promotion of economic and social development of Central Luzon, in particular, and the country’s goal for enhancement, in general, do not make the BCDA equivalent to the Government. Other corporations have been created by government to act as its agents for the realization of its programs, the SSS, GSIS, NAWASA and the NIA, to count a few, and yet, the Court has ruled that these entities, although performing functions aimed at promoting public interest and public welfare, are not government-function corporations invested with governmental attributes. It may thus be said that the BCDA is not a mere agency of the Government but a corporate body performing proprietary functions.

X x x

Having the capacity to sue or be sued, it should thus be the BCDA which may file an action to cancel petitioner’s title, not the Republic, the former being the real party in interest. One having no right or interest to protect cannot invoke the jurisdiction of the court as a party plaintiff in an action (Ralla v. Ralla, 199 SCRA 495 [1991]). A suit may be dismissed if the plaintiff or the defendant is not a real party in interest. X x x.

However, E.B. Marcha Transport Co., Inc. v. IAC (147 SCRA 276 [1987]) is cited as authority that the Republic is the proper party to sue for the recovery of possession of property which at the time of the installation of the suit was no longer held by the national government body but by the Philippine Ports Authrotiy. In E.B. Marcha, the Court ruled:

It can be said that in suing for the recovery of the rentals, the Republic of the Philippines, acted as principal of the Philippine Ports Authority, directly exercising the commission it had earlier conferred on the latter as its agent. We may presume that, by doing so, the Republic of the Philippines did not intend to retain the said rentals for its own use, considering that by its voluntary act it had transferred the land in question to the Philippine Ports Authority effective July 11, 1974. The Republic of the Philippines had simply sought to assist, not supplant, the Philippine Ports Authority, whose title to the disputed property it continues to recognize. We may expect the that the said rentals, once collected by the Republic of the Philippines, shall be turned over by it to the Philippine Ports Authority conformably to the purposes of P.D. No. 857.

E.B. Marcha is, however, not on all fours with the case at bar. In the former, the Court considered the Republic a proper party to sue since the claims of the Republic and the Philippine Ports Authority against the petitioner therein were the same. To dismiss the complaint in E.B. Marcha would have brought needless delay in the settlement of the matter since the PPA would have to refile the case on the same claim already litigated upon. Such is not the case here since to allow the government to sue herein enables it to raise the issue of imprescriptibility, a claim which is not available to the BCDA. The rule that prescription does not run against the State does not apply to corporations or artificial bodies created by the State for special purposes, it being said that when the title of the Republic has been divested, its grantees, although artificial bodies of its own creation, are in the same category as ordinary persons (Kingston v. LeHigh Valley Coal Co., 241 Pa 469). By raising the claim of imprescriptibility, a claim which cannot be raised by the BCDA, the Government not only assists the BCDA, as it did in E.B. Marcha, it even supplants the latter, a course of action proscribed by said case.

Moreover, to recognize the Government as a proper party to sue in this case would set a bad precedent as it would allow the Republic to prosecute, on behalf of government-owned or controlled corporations, causes of action which have already prescribed, on the pretext that the Government is the real party in interest against whom prescription does not run, said corporations having been created merely as agents for the realization of government programs.

It should also be noted that petitioner is unquestionably a buyer in good faith and for value, having acquired the property in 1963, or 5 years after the issuance of the original certificate of title, as a third transferee. If only not to do violence and to give some measure of respect to the Torrens System, petitioner must be afforded some measure of protection. (Shipside Incorporated v. Court of Appeals, 352 SCRA 334, Feb. 20, 2001, 3rd Div. [Melo])

Discuss the nature and functions of the NTC, and analyze its powers and authority as well as the laws, rules and regulations that govern its existence and operations.

Held: The NTC was created pursuant to Executive Order No. 546, promulgated on July 23, 1979. It assumed the functions formerly assigned to the Board of Communications and the Communications Control Bureau, which were both abolished under the said Executive Order. Previously, the NTC’s function were merely those of the defunct Public Service Commission (PSC), created under Commonwealth Act No. 146, as amended, otherwise known as the Public Service Act, considering that the Board of Communications was the successor-in-interest of the PSC. Under Executive Order No. 125-A, issued in April 1987, the NTC became an attached agency of the Department of Transportation and Communications.

In the regulatory communications industry, the NTC has the sole authority to issue Certificates of Public Convenience and Necessity (CPCN) for the installation, operation, and maintenance of communications facilities and services, radio communications systems, telephone and telegraph systems. Such power includes the authority to determine the areas of operations of applicants for telecommunications services. Specifically, Section 16 of the Public Service Act authorizes the then PSC, upon notice and hearing, to issue Certificates of Public Convenience for the operation of public services within the Philippines “whenever the Commission finds that the operation of the public service proposed and the authorization to do business will promote the public interests in a proper and suitable manner.” (Commonwealth Act No. 146, Section 16[a]) The procedure governing the issuance of such authorizations is set forth in Section 29 of the said Act x x x. (Republic v. Express Telecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002, 1st Div. [Ynares-Santiago])

Is the filing of the administrative rules and regulations with the UP Law Center the operative act that gives the rules force and effect?

Held: In granting Bayantel the provisional authority to operate a CMTS, the NTC applied Rule 15, Section 3 of its 1978 Rules of Practice and Procedure, which provides:

Sec. 3. Provisional Relief. – Upon the filing of an application, complaint or petition or at any stage thereafter, the Board may grant on motion of the pleader or on its own initiative, the relief prayed for, based on the pleading, together with the affidavits and supporting documents attached thereto, without prejudice to a final decision after completion of the hearing which shall be called within thirty (30) days from grant of authority asked for. (italics ours)

Respondent Extelcom, however, contends that the NTC should have applied the Revised Rules which were filed with the Office of the National Administrative Register on February 3, 1993. These Revised Rules deleted the phrase “on its own initiative”; accordingly, a provisional authority may be issued only upon filing of the proper motion before the Commission.

In answer to this argument, the NTC, through the Secretary of the Commission, issued a certification to the effect that inasmuch as the 1993 Revised Rules have not been published in a newspaper of general circulation, the NTC has been applying the 1978 Rules.

The absence of publication, coupled with the certification by the Commissioner of the NTC stating that the NTC was still governed by the 1987 Rules, clearly indicate that the 1993 Revised Rules have not taken effect at the time of the grant of the provisional authority to Bayantel. The fact that the 1993 Revised Rules were filed with the UP Law Center on February 3, 1993 is of no moment. There is nothing in the Administrative Code of 1987 which implies that the filing of the rules with the UP Law Center is the operative act that gives the rules force and effect. Book VII, Chapter 2, Section 3 thereof merely states:

Filing. – (1) Every agency shall file with the University of the Philippines Law Center three (3) certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months from the date shall not thereafter be the basis of any sanction against any party or persons.

(2) The records officer of the agency, or his equivalent functionary, shall carry out the requirements of this section under pain of disciplinary action.

(3) A permanent register of all rules shall be kept by the issuing agency and shall be open to public inspection.

The National Administrative Register is merely a bulletin of codified rules and it is furnished only to the Office of the President, Congress, all appellate courts, the National Library, other public offices or agencies as the Congress may select, and to other persons at a price sufficient to cover publication and mailing or distribution costs (Administrative Code of 1987, Book VII, Chapter 2, Section 7). In a similar case, we held:

This does not imply, however, that the subject Administrative Order is a valid exercise of such quasi-legislative power. The original Administrative Order issued on August 30, 1989, under which the respondents filed their applications for importations, was not published in the Official Gazette or in a newspaper of general circulation. The questioned Administrative Order, legally, until it is published, is invalid within the context of Article 2 of Civil Code, which reads:

“Article 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette (or in a newspaper of general circulation in the Philippines), unless it is otherwise provided. X x x”

The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filed with, and published by the UP Law Center in the National Administrative Register, does not cure the defect related to the effectivity of the Administrative Order.

This Court, in Tanada v. Tuvera (G.R. No. L-63915, December 29, 1986, 146 SCRA 446) stated, thus:

“We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative power or, at present, directly conferred by the Constitution. Administrative Rules and Regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties.

X x x

We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws.”

The Administrative Order under consideration is one of those issuances which should be published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid delegation, i.e., P.D. 1071, in relation to LOI 444 and EO 133 (Philippine International Trading Corp. v. Angeles, 263 SCRA 421, 446-447 [1996]).

Thus, publication in the Official Gazette or a newspaper of general circulation is a condition sine qua non before statutes, rules or regulations can take effect. This is explicit from Executive Order No. 200, which repealed Article 2 of the Civil Code, and which states that:

Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided (E.O. 200, Section 1).

The Rules of Practice and Procedure of the NTC, which implements Section 29 of the Public Service Act (C.A. 146, as amended), fall squarely within the scope of these laws, as explicitly mentioned in the case of Tanada v. Tuvera (146 SCRA 446 [1986]).

Our pronouncement in Tanada v. Tuvera is clear and categorical. Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. The only exception are interpretative regulations, those merely internal in nature, or those so-called letters of instructions issued by administrative superiors concerning the rules and guidelines to be followed by their subordinates in the performance of their duties (PHILSA International Placement & Services Corp. v. Secretary of Labor, G.R. No. 103144, April 4, 2001, 356 SCRA 174).

Hence, the 1993 Revised Rules should be published in the Official Gazette or in a newspaper of general circulation before it can take effect. Even the 1993 Revised Rules itself mandates that said Rules shall take effect only after their publication in a newspaper of general circulation (Section 20 thereof). In the absence of such publication, therefore, it is the 1978 Rules that governs. (Republic v. Express Telecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002, 1st Div. [Ynares-Santiago])

May a person be held liable for violation of an administrative regulation which was not published?

Held: Petitioner insists, however, that it cannot be held liable for illegal exaction as POEA Memorandum Circular No. II, Series of 1983, which enumerated the allowable fees which may be collected from applicants, is void for lack of publication.

There is merit in the argument.

In Tanada v. Tuvera (136 SCRA 27 [1985]), the Court held, as follows:

“We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and the public, need not be published. Neither is publication required of the so-called letter of instructions issued by the administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties.”

Applying this doctrine, we have previously declared as having no force and effect the following administrative issuances: a) Rules and Regulations issued by the Joint Ministry of Health-Ministry of Labor and Employment Accreditation Committee regarding the accreditation of hospitals, medical clinics and laboratories (Joint Ministry of Health-Ministry of Labor and Employment Accreditation Committee v. Court of Appeals, 196 SCRA 263 [1991]); b) Letter of Instruction No. 416 ordering the suspension of payments due and payable by distressed copper mining companies to the national government (Caltex Philippines, Inc. v. Court of Appeals, 208 SCRA 726 [1992]); c) Memorandum Circulars issued by the POEA regulating the recruitment of domestic helpers to Hong Kong (Phil. Association of Service Exporters v. Torres, 212 SCRA 298 [1992]); d) Administrative Order No. SOCPEC 89-08-01 issued by the Philippine International Trading Corporation regulating applications for importation from the People’s Republic of China (Philippine International Trading Corporation v. Angeles, 263 SCRA 421 [1996]); and e) Corporate Compensation Circular No. 10 issued by the Department of Budget and Management discontinuing the payment of other allowances and fringe benefits to government officials and employees (De Jesus v. Commission on Audit, 294 SCRA 152 [1998). In all these cited cases, the administrative issuances questioned therein were uniformly struck down as they were not published or filed with the National Administrative Register as required by the Administrative Code of 1987 (Administrative Code of 1987, Book VII, chapter 2, Section 3).

POEA memorandum Circular No. 2, Series of 1983 must likewise be declared ineffective as the same was never published or filed with the National Administrative Register.

POEA Memorandum Circular No. 2, Series of 1983 provides for the applicable schedule of placement and documentation fees for private employment agencies or authority holders. Under the said Order, the maximum amount which may be collected from prospective Filipino overseas workers is P2,500.00. The said circular was apparently issued in compliance with the provisions of Article 32 of the Labor Code x x x.

It is thus clear that the administrative circular under consideration is one of those issuances which should be published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid delegation (Philippine International Trading Corporation v. Angeles, supra.). Considering that POEA Administrative Circular No. 2, Series of 1983 has not as yet been published or filed with the National Administrative Register, the same is ineffective and may not be enforced. (Philsa International Placement and Services Corporation v. Secretary of Labor and Employment, 356 SCRA 174, April 4, 2001, 3rd Div., [Gonzaga-Reyes])

Does the publication requirement apply as well to administrative regulations addressed only to a specific group and not to the general public?

Held: The Office of the Solicitor General likewise argues that the questioned administrative circular is not among those requiring publication contemplated by Tanada v. Tuvera as it is addressed only to a specific group of persons and not to the general public.

Again, there is no merit in this argument.

The fact that the said circular is addressed only to a specified group, namely private employment agencies or authority holders, does not take it away from the ambit of our ruling in Tanada v. Tuvera. In the case of Phil. Association of Service Exporters v. Torres ((212 SCRA 298 [1992]), the administrative circulars questioned therein were addressed to an even smaller group, namely Philippine and Hong Kong agencies engaged in the recruitment of workers for Hong Kong, and still the Court ruled therein that, for lack of proper publication, the said circulars may not be enforced or implemented.

Our pronouncement in Tanada v. Tuvera is clear and categorical. Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. The only exceptions are interpretative regulations, those merely internal in nature, or those so-called letters of instructions issued by administrative superiors concerning the rules and guidelines to be followed by their subordinates in the performance of their duties. Administrative Circular No. 2, Series of 1983 has not been shown to fall under any of these exceptions.

In this regard, the Solicitor General’s reliance on the case of Yaokasin v. Commissioner of Customs (180 SCRA 599 [1989]) is misplaced. In the said case, the validity of certain Customs Memorandum Orders were upheld despite their lack of publication as they were addressed to a particular class of persons, the customs collectors, who were also the subordinates of the Commissioner of the Bureau of Customs. As such, the said Memorandum Orders clearly fall under one of the exceptions to the publication requirement, namely those dealing with instructions from an administrative superior to a subordinate regarding the performance of their duties, a circumstance which does not obtain in the case at bench.

X x x

To summarize, petitioner should be absolved from the three (3) counts of exaction as POEA Administrative Circular No. 2, Series of 1983 could not be the basis of administrative sanctions against petitioner for lack of publication. (Philsa International Placement and Services Corporation v. Secretary of Labor and Employment, 356 SCRA 174, April 4, 2001, 3rd Div., [Gonzaga-Reyes])

255. May a successful bidder compel a government agency to formalize a contract with it notwithstanding that its bid exceeds the amount appropriated by Congress for the project?

Held: Enshrined in the 1987 Philippine Constitution is the mandate that “no money shall be paid out of the Treasury except in pursuance of an appropriation made by law.” (Sec. 29[1], Article VI of the 1987 Constitution) Thus, in the execution of government contracts, the precise import of this constitutional restriction is to require the various agencies to limit their expenditures within the appropriations made by law for each fiscal year.

X x x

It is quite evident from the tenor of the language of the law that the existence of appropriations and the availability of funds are indispensable pre-requisites to or conditions sine qua non for the execution of government contracts. The obvious intent is to impose such conditions as a priori requisites to the validity of the proposed contract (Fernandez, A Treatise on Government Contracts Under Philippine Law, 2001, pp. 40-41). Using this as our premise, we cannot accede to PHOTOKINA’s contention that there is already a perfected contract. While we held in Metropolitan Manila Development Authority v. Jancom Environmental Corporation (Supra) that “the effect of an unqualified acceptance of the offer or proposal of the bidder is to perfect a contract, upon notice of the award to the bidder,” however, such statement would be inconsequential in a government where the acceptance referred to is yet to meet certain conditions. To hold otherwise is to allow a public officer to execute a binding contract that would obligate the government in an amount in excess of the appropriations for the purpose for which the contract was attempted to be made (64 Am Jur 2d Sec. 11). This is a dangerous precedent.

In the case at bar, there seems to be an oversight of the legal requirements as early as the bidding stage. The first step of a Bids and Awards Committee (BAC) is to determine whether the bids comply with the requirements. The BAC shall rate a bid “passed” only if it complies with all the requirements and the submitted price does not exceed the approved budget for the contract.” (Implementing Rules and Regulations [IRR] for Executive Order No. 262, supra.)

Extant on the record is the fact that the VRIS Project was awarded to PHOTOKINA on account of its bid in the amount of P6.588 Billion Pesos. However, under Republic Act No. 8760 (General Appropriations Act, FY 2000, p. 1018, supra.), the only fund appropriated for the project was P1 Billion Pesos and under the Certification of Available Funds (CAF) only P1.2 Billion Pesos was available. Clearly, the amount appropriated is insufficient to cover the cost of the entire VRIS Project. There is no way that the COMELEC could enter into a contract with PHOTOKINA whose accepted bid was way beyond the amount appropriated by law for the project. This being the case, the BAC should have rejected the bid for being excessive or should have withdrawn the Notice of Award on the ground that in the eyes of the law, the same is null and void.

X x x

Even the draft contract submitted by Commissioner Sadain, that provides for a contract price in the amount of P1.2 Billion Pesos is unacceptable. X x x While the contract price under the draft contract is only P1.2 Billion and, thus, within the certified available funds, the same covers only Phase I of the VRIS Project, i.e., the issuance of identification cards for only 1,000,000 voters in specified areas (Ibid., p. 382). In effect, the implementation of the VRIS Project will be “segmented” or “chopped” into several phases. Not only is such arrangement disallowed by our budgetary laws and practices, it is also disadvantageous to the COMELEC because of the uncertainty that will loom over its modernization project for an indefinite period of time. Should Congress fail to appropriate the amount necessary for the completion of the entire project, what good will the accomplished Phase I serve? As expected, the project failed “to sell” with the Department of Budget and Management. Thus, Secretary Benjamin Diokno, per his letter of December 1, 2000, declined the COMELEC’s request for the issuance of the Notice of Cash Availability (NCA) and a multi-year obligatory authority to assume payment of the total VRIS Project for lack of legal basis. Corollarily, under Section 33 of R.A. No. 8760, no agency shall enter into a multi-year contract without a multi-year obligational authority, thus:

“SECTION 33. Contracting Multi-Year Projects. - In the implementation of multi-year projects, no agency shall enter into a multi-year contract without a multi-year Obligational Authority issued by the Department of Budget and Management for the purpose. Notwithstanding the issuance of the multi-year Obligational Authority, the obligation to be incurred in any given calendar year, shall in no case exceed the amount programmed for implementation during said calendar year.”

Petitioners are justified in refusing to formalize the contract with PHOTOKINA. Prudence dictated them not to enter into a contract not backed up by sufficient appropriation and available funds. Definitely, to act otherwise would be a futile exercise for the contract would inevitably suffer the vice of nullity. X x x

X x x

Verily, the contract, as expressly declared by law, is inexistent and void ab initio (Article 1409 of the Civil Code of the Philippines). This is to say that the proposed contract is without force and effect from the very beginning or from its incipiency, as if it had never been entered into, and hence, cannot be validated either by lapse of time or ratification (Manila Lodge v. Court of Appeals, 73 SCRA 162 [1976]; See also Tongoy v. Court of Appeals, 123 SCRA 99 [1983]).

X x x

In fine, we rule that PHOTOKINA, though the winning bidder, cannot compel the COMELEC to formalize the contract. Since PHOTOKINA’s bid is beyond the amount appropriated by Congress for the VRIS Project, the proposed contract is not binding upon the COMELEC and is considered void x x x. (Commission on Elections v. Judge Ma. Luisa Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-Gutierrez])

What is the remedy available to a party who contracts with the government contrary to the requirements of the law and, therefore, void ab initio?

Held: Of course, we are not saying that the party who contracts with the government has no other recourse in law. The law itself affords him the remedy. Section 48 of E.O. No. 292 explicitly provides that any contract entered into contrary to the above-mentioned requirements shall be void, and “the officers entering into the contract shall be liable to the Government or other contracting party for any consequent damage to the same as if the transaction had been wholly between private parties.” So when the contracting officer transcends his lawful and legitimate powers by acting in excess of or beyond the limits of his contracting authority, the Government is not bound under the contract. It would be as if the contract in such case were a private one, whereupon, he binds himself, and thus, assumes personal liability thereunder. (Fernandez, a Treatise on Government Contracts Under Philippine Law, 2001, supra., pp. 22-23). Otherwise stated, the proposed contract is unenforceable as to the Government.

While this is not the proceeding to determine where the culpability lies, however, the constitutional mandate cited above constrains us to remind all public officers that public office is a public trust and all public officers must at all times be accountable to the people. The authority of public officers to enter into government contracts is circumscribed with a heavy burden of responsibility. In the exercise of their contracting prerogative, they should be the first judges of the legality, propriety and wisdom of the contract they entered into. They must exercise a high degree of caution so that the Government may not be the victim of ill-advised or improvident action (Rivera v. Maclang, 7 SCRA 57 [1963]). (Commission on Elections v. Judge Ma. Luisa Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-Gutierrez])

Does the Commission on Human Rights have the power to adjudicate?

Held: In its Order x x x denying petitioners’ motion to dismiss, the CHR theorizes that the intention of the members of the Constitutional Commission is to make CHR a quasi-judicial body. This view, however, has not heretofore been shared by this Court. In Carino v. Commission on Human Rights (204 SCRA 483, 492), the Court x x x has observed that it is “only the first of the enumerated powers and functions that bears any resemblance to adjudication of adjudgment,” but that resemblance can in no way be synonymous to the adjudicatory power itself. The Court explained:

“x x x [T]he Commission on Human Rights x x x was not meant by the fundamental law to be another court or quasi-judicial agency in this country, or duplicate much less take over the functions of the latter.

“The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. But fact finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or official. The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To be considered such, the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be provided by law. This function, to repeat, the Commission does not have. (Simon, Jr. v. Commission on Human Rights, 229 SCRA 117, 125, Jan. 5, 1994, En Banc [Vitug, J.])

Does the Commission on Human Rights have jurisdiction to issue TRO or writ of preliminary injunction?

Held: In Export Processing Zone Authority v. Commission on Human rights (208 SCRA 125, 131), the Court x x x explained:

“The constitutional provision directing the CHR to ‘provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection’ may not be construed to confer jurisdiction on the Commission to issue a restraining order or writ of injunction for, if that were the intention, the Constitution would have expressly said so. ‘Jurisdiction is conferred only by the Constitution or by law.’ It is never derived by implication.”

“Evidently, the ‘preventive measures and legal aid services’ mentioned in the Constitution refer to extrajudicial and judicial remedies (including a writ of preliminary injunction) which the CHR may seek from the proper courts on behalf of the victims of human rights violations. Not being a court of justice, the CHR itself has no jurisdiction to issue the writ, for a writ of preliminary injunction may only be issued ‘by the judge of any court in which the action is pending [within his district], or by a Justice of the Court of Appeals, or of the Supreme Court. x x x. A writ of preliminary injunction is an ancillary remedy. It is available only in a pending principal action, for the preservation or protection of the rights and interest of a party thereto, and for no other purpose.”

The Commission does have legal standing to indorse, for appropriate action, its findings and recommendations to any appropriate agency of government (See Export Processing Zone Authority v. Commission on Human Rights, 208 SCRA 125). (Simon, Jr. v. Commission on Human Rights, 229 SCRA 117, 134-135, Jan. 5, 1994, En Banc [Vitug, J.])

Discuss the contempt power of the Commission on Human Rights (CHR). When may it be validly exercised?

Held: On its contempt powers, the CHR is constitutionally authorized to “adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court.” Accordingly, the CHR acted within its authority in providing in its revised rules, its power “to cite or hold any person in direct or indirect contempt, and to impose the appropriate penalties in accordance with the procedure and sanctions provided for in the Rules of Court.” That power to cite for contempt, however, should be understood to apply only to violations of its adopted operational guidelines and rules of procedure essential to carry out its investigatorial powers. To exemplify, the power to cite for contempt could be exercised against persons who refuse to cooperate with the said body, or who unduly withhold relevant information, or who decline to honor summons, and the like, in pursuing its investigative work. The “order to desist” (a semantic interplay for a restraining order) in the instance before us, however, is not investigatorial in character but prescinds from an adjudicative power that it does not possess. x x x (Simon, Jr. v. Commission on Human Rights, 229 SCRA 117, 134, Jan. 5, 1994, En Banc [Vitug, J.])

Powers of Administrative Agenciesa. Quasi-Legislative Power

In exercise of delegated legislative power, involving no discretion as to what law shall be, but merely authority to fix details in execution or enforcement of a policy set out in law itself.

b. Quasi-Judicial PowerProceedings partake of nature of judicial proceedings. Administrative body granted authority to promulgate its own rules of procedure, provided they do not increase diminish or modify substantive rights, and subject to the disapproval by the Supreme Court.

Kinds of Administrative Rules and Regulations1. Legislative regulation:

a. Supplementary or detailed legislation,b. Contingent regulation

2. Interpretative legislation or internal rules

Requisites for Validitya. Law itself must declare as punishable the violation of administrative rule or regulation;b. Law should define or fix penalty therefor; andc. Rule/regulation must be published

Administrative Due ProcessThe essence of due process is simply to be heard, or as applied in administrative proceedings, an opportunity to explain one’s side or an opportunity to seek reconsideration of the action or ruling complained of.

Administrative due process is recognized to include the right to:1. Notice, be actual or constructive, of the institution of the proceedings that may affect a person’s legal right;2. Reasonable opportunity to appear and defend his rights, and to introduce witnesses and relevant evidence in his favor;3. A tribunal so constituted as to give him reasonable assurance of honesty and impartiality, and one of competent jurisdiction;4. And a finding or decision by that tribunal supported by substantial evidence presented at the hearing or at least ascertained in the records or disclosed to the parties.

Notice and hearing as the fundamental requirements of due process, are essential only when an administrative body exercises its quasi-judicial function, but in the performance of its executive or legislative functions, such as the issuing rules and regulations, an administrative body need not comply with the requirements of notice and hearing, except when it involves revocation of a license. (Corona v. United Harbor Pilots Association of the Philippines, 283 SCRA 31)

Due process in administrative context does not require trial type-proceedings similar to those in the courts of justice. (UP Board of Regents v. CA, 313 SCRA 404 ) Administrative due process cannot be fully equated to due process in its strict judicial sense. (Ocampo v. Office of the Ombudsman, 322 SCRA 17)

A formal trial-type hearing is not at all times and in all instances essential to due process- it is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present evidence on which a fair decision can be based. (Melendres v. COMELEC, 319 SCRA 262)

The requirement of hearing is complied with as long as there is opportunity to be heard, and to submit any evidence one may have in support of his defense, and not necessarily that an actual hearing was conducted. (Busuego v. CA, 304 SCRA 473)

Where the litigants are given the opportunity to be heard, either through oral arguments or pleadings, there is no denial of procedural due process. (Domingo, Jr. v. COMELEC, 313 SCRA 311; Ablera v. NLRC, 215 SCRA 476) A party who chooses not to avail of the opportunity to answer the charges cannot complain of denial of due process.(Ocampo v. Office of the Ombudsman, supra) There can be no denial of due process where a party had the opportunity to participate in the proceedings but failed to do so.(DBP v. CA, 302 SCRA 362; Tiomico v. CA, 304 SCRA 216)

Administrative Appeal and Review

Administrative Appeal – It refers to the review by a higher agency of decisions rendered by an administrativeagency, commenced by petition of an interested party.

It refers to the review by a higher agency of decisions rendered by an administrative agency, commenced by petition of an interested party. Administrative appeals are established by the 1987 Administrative Code, which will govern primarily in the absence of a specific law applicable. Under the 1987 Administrative Code, administrative appeals from a decision of an agency are taken to the Department Head.

Administrative Review – A superior officer or department head may upon his or her own volition review a subordinate’s decision pursuant to the power of control, however, subject to the caveat that a final and executory decision is not included within the power of control, and hence can no longer be altered by administrative review.

Pursuant to the doctrine of exhaustion of administrative remedies, before a party litigant can seek judicial intervention, he must exhaust all means of administrative redress available under the law, subject to the exceptions provided for by law or jurisprudence.

By virtue of the power of control of the president over all executive departments, the President, by himself or through the Department Secretaries (pursuant to the “alter ego doctrine”), may affirm, modify, alter, or reverse the administrative decision of subordinate officials and employees.

The appellate administrative agency may conduct additional hearings in the appealed case, if deemed necessary. But just like in the appellate courts, appellate administrative bodies may only pass upon errors assigned. (Diamonon vs. DOLE, GR No. 108951, March 7, 2000)

Administrative Res JudicataThe doctrine of res judicata applies only to judicial or quasi-judicial proceedings and not to the exercise of purely administrative functions (applies only to judicial and quasi-judicial proceedings not to exercise of administrative functions(Brillantes vs. Castro 99 Phil. 497)). Administrative proceedings are nonlitigious and summary in nature; hence, res judicata does not apply.

Fact-Finding, Investigative, Licensing and Rate-Fixing Powers

Fact-Finding Power The power delegated by the legislature to an administrative agency to determine some fact or state of things uponwhich the law makes, or intends to make, its own action depend, or the law may provide that it shall become operative only upon the contingency or some certain fact or event, the ascertainment of which is left to an administrative agency.

Investigative Power The power of an administrative agency to take into consideration the result of its own observation and investigation of the matter submitted to it for decision, in connection with other evidence presented at the hearing of the case.

Licensing Power The action of an administrative agency in granting or denying, or in suspending or revoking a license, permit, franchise, or certificate of public convenience and necessity.

Rate Fixing Power It is the power usually delegated by the legislature to administrative agencies for the latter to fix the rates which public utility companies may charge the public.

Judicial Recourse and Review

Requisites of judicial review of administrative action:1. Administrative remedies must have been exhausted or the principle of exhaustion of administrative remedies.2. Administrative action must have been completed or the principle of finality of administrative action.

Doctrine of Primary Administrative Jurisdiction (Or Doctrine of Preliminary Resort)

Judicial action of a case is deferred pending the determination of some issues which properly belong to an administrative body because their expertise, specializes skills, knowledge and resources are required for the resolution of factual and non-legal matters. In such a case, relief must first be sought and obtained in the administrative body concerned before the Court will supply the remedy. Where a statute lodges exclusive original jurisdiction in an administrative agency, the court will refuse to take up a case unless the agency has finally completed its proceedings.

The doctrine does not warrant a court to arrogate unto itself authority to resolve a controversy the jurisdiction over which is initially lodged with an administrative body of special competence. (Roxas & Co. Inc v. Court of Appeals, 321 SCRA 106 and Province of Zamboanga del Norte v. Court of Appeals, 342 SCRA)

The application of the doctrine of primary jurisdiction does not call for the immediate dismissal of the case pending before the court. The case is merely suspended until the issues resolvable by the administrative body are threshed out and fully determined (Industrial enterprises, Inc v. CA, 184 SCRA 426)

Doctrine of Exhaustion of Administrative RemediesWhenever there is an available administrative remedy provided by law, no judicial recourse can be made until all such remedies have been availed of and exhausted. Before a party can invoke the jurisdiction of the courts of justice, he is expected to have exhausted all means of administrative redress afforded to him by law.

Failure to exhaust administrative remedies will not affect the jurisdiction of the courts. Noncompliance with the doctrine will deprive the complainant of a cause of action, which is a ground for a motion to dismiss the case. However, if no motion to dismiss is filed on this ground, there is deemed a waiver. (Rosario v. CA, 211 SCRA and Baguioro v. Basa, 214 SCRA 437)

One of the reasons for the doctrine of exhaustion of administrative remedies is the separation of powers, which enjoins upon the judiciary a becoming a policy of non-interference with matters coming primarily within the competence of other department. The Legal reason is that the courts should not act and correct its mistakes or errors and amend its decision on a given matter and decide it properly. (Lopez v. City of Manila, 303 SCRA 448) And the practical reason is that administrative process I intended to provide less expensive and speedier solution to disputes.

Doctrine of Finality of Administrative ActionNo resort to courts will be allowed unless administrative action has been completed and there is nothing left to be done in administrative structure.

PROHIBITIONS:Article IX Section 2. No member of a Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which, in any way, may be affected by the functions of his office, nor shall he be financially interested, directly or

indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries.

Art. VII Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure, be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.

Does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7, par. (2), Article IX-B?

Held: The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7, par. (2), Article IX-B which, for easy reference is quoted anew, thus: “ 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 corporation or their subsidiaries.”

We rule in the negative.

X x x

The practice of designating members of the Cabinet, their deputies and assistants as members of the governing bodies or boards of various government agencies and instrumentalities, including government-owned and controlled corporations, became prevalent during the time legislative powers in this country were exercised by former President Ferdinand E. Marcos pursuant to his martial law authority. There was a proliferation of newly-created agencies, instrumentalities and government-owned and controlled corporations created by presidential decrees and other modes of presidential issuances where Cabinet members, their deputies or assistants were designated to head or sit as members of the board with the corresponding salaries, emoluments, per diems, allowances and other perquisites of office. X x x

This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public officials who took advantage of this scheme for purposes of self-enrichment. X x x

Particularly odious and revolting to the people’s sense of propriety and morality in government service were the data contained therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29) governmental agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Rono of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Pena of ten (10) each.

The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission, convened as it was after the people successfully unseated former President Marcos, should draft into its proposed Constitution the provisions under consideration which are envisioned to remedy, if not correct, the evils that flow from the holding of multiple governmental offices and employment. X x x

But what is indeed significant is the fact that although Section 7, Article IX-B already contains a blanket prohibition against the holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself.

Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other offices or employment in the government or elsewhere is concerned.

Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the Constitution on the disqualifications of certain public officials or employees from holding other offices or employment. Under Section 13, Article VI, “[N]o Senator or Member of the House of Representatives may hold any other office or employment in the Government x x x.” Under section 5(4), Article XVI, “[N]o member of the armed forces in the active service shall, at any time, be appointed in any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries.” Even Section 7(2), Article IX-B, relied upon by respondents provides “[U]nless 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.”

It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition pertains to an office or employment in the government and government-owned or controlled corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that “[T]he President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure.” In the latter provision, the disqualification is absolute, not being qualified by the phrase “in the Government.” The prohibition imposed on the President and his official family is therefore all-embracing and covers both public and private office or employment.

Going further into Section 13, Article VII, the second sentence provides: “They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.” These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions.

X x x

Thus, 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, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-President, Members of the Cabinet, their deputies and assistants.

This being the case, the qualifying phrase “unless otherwise provided in this Constitution” in Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article IX-B of the 1987 Constitution. To construe said qualifying phrase as respondents would have us to do, would render nugatory and meaningless the manifest intent and purpose of the framers of the Constitution to impose a stricter prohibition on the President, Vice-President, Members of the Cabinet, their deputies and assistants with respect to holding other offices or employment in the government during their tenure. Respondents’ interpretation that Section 13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers of the Constitution as to when the high-ranking officials of the Executive Branch from the President to assistant Secretary, on the one hand, and the generality of civil servants from the rank immediately below Assistant Secretary downwards, on the other, may hold any other office or position in the government during their tenure.

Moreover, respondents’ reading of the provisions in question would render certain parts of the Constitution inoperative. This observation applies particularly to the Vice-President who, under Section 13 of Article VII is allowed to hold other office or employment when so authorized by the Constitution, but who as an elective public official under Sec. 7,

par. (1) of Article IX-B is absolutely ineligible “for appointment or designation in any capacity to any public office or position during his tenure.” Surely, to say that the phrase “unless otherwise provided in this Constitution” found in Section 13, Article VII has reference to Section 7, par. (1) of Article IX-B would render meaningless the specific provisions of the Constitution authorizing the Vice-President to become a member of the Cabinet (Sec. 3, Ibid.), and to act as President without relinquishing the Vice-Presidency where the President shall not have been chosen or fails to qualify (Sec. 7, Article VII). Such absurd consequence can be avoided only by interpreting the two provisions under consideration as one, i.e., Section 7, par. (1) of Article IX-B providing the general rule and the other, i.e., Section 13, Article VII as constituting the exception thereto. In the same manner must Section 7, par. (2) of Article IX-B be construed vis-à-vis Section 13, Article VII.

X x x

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government during their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the privilege of holding multiple government offices and employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation (Varney v. Justice, 86 Ky 596; 6 S.W. 457; Hunt v. State, 22 Tex. App. 396, 3 S.W. 233). The phrase “unless otherwise provided in this Constitution” must be given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII ; and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

X x x

It being clear x x x that the 1987 Constitution seeks to prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment in the government, except in those cases specified in the Constitution itself and as above clarified with respect to posts held without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of their office, the citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on the general rule laid down for all appointive officials should be considered as mere personal opinions which cannot override the constitution’s manifest intent and the people’s understanding thereof.

In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of positions that Cabinet members, undersecretaries or assistant secretaries may hold in addition to their primary position to not more than two (2) positions in the government and government corporations, Executive Order No. 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.

The Court is alerted by respondents to the impractical consequences that will result from a strict application of the prohibition mandated under Section 13, Article VII on the operations of the Government, considering that Cabinet members would be stripped of their offices held in an ex-officio capacity, by reason of their primary positions or by virtue of legislation. As earlier clarified in this decision, ex-officio posts held by the executive official concerned without additional compensation as provided by law and as required by the primary functions of his office do not fall under the definition of “any other office” within the contemplation of the constitutional prohibition. With respect to other offices or employment held by virtue of legislation, including chairmanships or directorships in government-owned or controlled corporations and their subsidiaries, suffice it to say that the feared impractical consequences are more apparent than real. Being head of an executive department is no mean job. It is more than a full-time job, requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived from a department head’s ability and expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other governmental offices or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions and responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be derived from this concentration of attention, knowledge and expertise, particularly at this stage of our national and economic development, far outweigh the benefits, if any, that may be gained from a department head spreading himself too thin and taking in more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm, the Court hereby orders respondents x x x to immediately relinquish their other offices or employment, as herein defined, in the government, including government-

owned or controlled corporations and their subsidiaries. (Civil Liberties Union v. Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ])

Public Interest Group vs. Elma (2006)Q: Christian, the Chief Presidential Legal Counsel (CPLC), was also appointed as Chairman of the PCGG. May the two offices be held by the same person? A: No. The two offices are incompatible. Without question, the PCGG is an agency under the Executive Department. Thus, the actions of the PCGG Chairman are subject to the review of the CPLC. (Public Interest Group v. Elma, G.R. No. 138965, June 30, 2006)

It is absurd that CPLC Magdangal Elma shall review the decisions of PCGG Chairman Magdangal Elma.

Note: The law creating the PCGG provides that the chairperson shall be of the same rank and position as a Cabinet Secretary.

Q: Does the acceptance of an incompatible office pertain to its physical impossibility or its nature? A: It refers to the nature and relation of the two offices to each other, they should not be held by one person from the contrariety and antagonism which would result in the attempt by one person to faithfully and impartially discharge the duties of one, toward the incumbent of the other. (Treatise on the Law of Public Offices and Officers, Mechem,1890 edition)

Section 13 Art VI.

Incompatible office – “No senator or member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government owned and controlled corporations or their subsidiaries during his term without forfeiting his seat” (Sec. 13, Article VI, 1987 Constitution)

Forbidden office – Neither shall a senator or a member of the House of Representatives be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected. (Sec. 13, Art. VI, 1987 Constitution)

Note: With this, even if the member of the Congress is willing to forfeit his seat therein, he may not be appointed to any office in the government that has been created or the emoluments thereof have been increased during his term. Such a position is forbidden office. The purpose is to prevent trafficking in public office.

Section 5 (4) Art. XVI(4) 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 government-owned or controlled corporations or any of their subsidiaries.

Law on Nepotism – appointment of relativesCivil Service LawLGC 1987 Constitution

What are the situations covered by the law on nepotism?

Held: Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following:

1. appointing authority;2. recommending authority;3. chief of the bureau or office; and

4. person exercising immediate supervision over the appointee.

Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee. (CSC v. Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo])

Section 79. LGCSection 79. Limitation to Appointments. - No person shall be appointed in the career service of the local government if he is related within the fourth civil degree of consanguinity or affinity to the appointing or recommending authority.

Check the question if the problem involves local government or any other position in the government. If LGU is involved, apply Section 79 LGC. Otherwise, apply CSL.

What are the exemptions from the operation of the rules on nepotism?

Ans.: The following are exempted from the operation of the rules on nepotism: (a) persons employed in a confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines.

The rules on nepotism shall likewise not be applicable to the case of a member of any family who, after his or her appointment to any position in an office or bureau, contracts marriage with someone in the same office or bureau, in which event the employment or retention therein of both husband and wife may be allowed. (Sec. 59, Chap. 7, Subtitle A, Title I, Bk. V, E.O. No. 292)

The law applies to all kinds of appointments, since the law did not distinguish.Debulgado vs CSC

Laurel vs. CSCGov. Laurel employed his brother as a civil security officer (bodyguard). At that time, the provincial administrator’s position was a career position. Gov. Laurel designated his same brother as acting provincial administrator. Gov. Laurel claimed that he did not violate the law on nepotism, since he merely DESIGNATED his brother, not appointed his brother. Is he correct?SC held that he is correct. Designation presupposes that the person is already appointed, but merely given additional functions. But, for the purposes of the law on nepotism, the designation and appointment are the same. One cannot indirectly do what the law directly prohibits him to do.

Art. VII Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure, be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.

Doctrine of CondonationWhat is the doctrine of forgiveness or condonation? Does it apply to pending criminal cases?

Held: 1. A public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner. (Aguinaldo v. Santos, 212 SCRA 768, 773 [1992])

2. A reelected local official may not be held administratively accountable for misconduct committed during his prior term of office. The rationale for this holding is that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds. (Mayor Alvin B. Garcia v. Hon. Arturo C. Mojica, et al., G.R. No. 139043, Sept. 10, 1999 [Quisumbing])

Doctrine of Condonation applies only to administrative cases involving elective public officials who had been reelected.In criminal cases, there is no such thing as condonation.

Hold-over DoctrineAbsent an express or implied constitutional or statutory provision to the contrary, an officer is entitled to stay in office until his successor is appointed or chosen and has qualified.

What is the hold-over doctrine? What is its purpose?

Held: 1. The concept of holdover when applied to a public officer implies that the office has a fixed term and the incumbent is holding onto the succeeding term. It is usually provided by law that officers elected or appointed for a fixed term shall remain in office not only for that term but until their successors have been elected and qualified . Where this provision is found, the office does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it, but the present incumbent will carry over until his successor is elected and qualified, even though it be beyond the term fixed by law.

Absent an express or implied constitutional or statutory provision to the contrary, an officer is entitled to stay in office until his successor is appointed or chosen and has qualified. The legislative intent of not allowing holdover must be clearly expressed or at least implied in the legislative enactment, otherwise it is reasonable to assume that the law-making body favors the same.

Indeed, the law abhors a vacuum in public offices, and courts generally indulge in the strong presumption against a legislative intent to create, by statute, a condition which may result in an executive or administrative office becoming, for any period of time, wholly vacant or unoccupied by one lawfully authorized to exercise its functions. This is founded on obvious considerations of public policy, for the principle of holdover is specifically intended to prevent public convenience from suffering because of a vacancy and to avoid a hiatus in the performance of government functions . (Lecaroz v. Sandiganbayan, 305 SCRA 397, March 25, 1999, 2nd Div. [Bellosillo])

2. The rule is settled that unless “holding over be expressly or impliedly prohibited, the incumbent may continue to hold over until someone else is elected and qualified to assume the office.” This rule is demanded by the “most obvious requirements of public policy, for without it there must frequently be cases where, from a failure to elect or a refusal or neglect to qualify, the office would be vacant and the public service entirely suspended.” Otherwise stated, the purpose is to prevent a hiatus in the government pending the time when the successor may be chosen and inducted into office . (Galarosa v. Valencia, 227 SCRA 728, Nov. 11, 1993, En Banc [Davide, Jr.])