Notes: Political Law Pre-Bar Lecture by Cong.

Antonio Nachura
As forwarded:
P. 12 Territory- It would be on the 2nd sentence on Sec. 1, on what is known in
Public International Law as the archipelagic doctrine of national territory.
P.13 The Archipelagic Doctrine Of National Territory. it should be treated as a
single island for purposes of defense.
P.14 Sec 2., par 1 of the Administrative Code of 1987
P.18 Suit Against Government Agencies But, the corporation code contains precise
ly a provision to the effect that these corporations among others can sue and be
sued, that provision is consent on the part of the State for all of these corpo
rations which are organized or incorporated pursuant to the Corporation Code to
be sued.
P.18 Consent to be sued. Local Government Units, Municipalities, Cities, Provinc
es , Barangays. If you will look at Sec.22 of the Local Govt Code, in the enumer
ation of corporate powers of local government units, you will find that one of t
he corporate powers of the local government unit is the power to sue and be sued
.
P.18 But, the more difficult question perhaps is this, suppose the agency perfor
ms both propriety and governmental functions, how do you resolve this? In such a
case, you look at the principal function of the agency and that is what is supp
osed to prevail.
P.19 Before we look at these classification of consent, I would like to recall R
epublic vs Feliciano, This is not basically Political law, this is more in Remed
ial law, but in Republic vs Feliciano, the SC said, when suit is filed against t
he state, either in the form of an original complaint or by way of counterclaim,
when suit is filed against the state, the complaint or counterclaim must allege
that consent has been obtained and where this consent is found. The SC went on
to say, absent this allegation, the court may sua esponte, dismiss the action be
cause any suit against the state is in derogation of sovereignty and must be con
strued in a strictissimi juris.
P.20 Express Consent. There is in the Civil code an imputation of a vicarious lia
bility on the part of the state when the State acts through a special agent Is th
is provision, express consent on the part of the State to be sued? This is one o
f the questions I would have given in the bar exams if I were the examiner.
P.20 Implied Consent. But the better question perhaps has to do with implied con
sent. Implied consent is deemed implied when the State commences litigation But I
would like to believe, even as the courts have always been very strict in inter
preting exceptions to immunity from suit, I would like to believe that a permiss
ive counterclaim may be allowed in so far as the consent given by the State when
it commences litigation
P.20. same. Perhaps the better question still would be, when the State intervene
s in a pending action, is the intervention by the State commencement of litigati
on and therefore, implied consent to be sued? A files suit against B, the Republ
ic of the Philippines intervenes. Is the intervention by the Republic of the Phi
lippines commencement of litigation? The answer to that is, it depends on the na
ture of the intervention.
P.22. The Supreme Court said, these service contracts entered into by the Republ
ic of Indonesia are in the nature of contracts in jure impreii because they have
to do with the maintenance of the embassy and of the diplomatic personnel of th
e Republic of Indonesia.
P.22. In the case of incorporated agencies whose charters provide that they can
sue and be sued, the Supreme Court said, this charter provision that grants cons
ent to be sued is also consent to execution.
P.23. But the Supreme Court, in the case of Municipality of San Miguel Bulacan v
s Fernandez, said, funds of local government unite, whether they are deposited i
n a bank, whether they are in the nature of a special or general deposits are pu
blic funds. As public funds, they cannot be garnished unless there is an appropr
iate, there is a corresponding appropriation ordinance duly tasked by the Sanggu
nian of the local government unit concerned, appropriating that money in order t
o satisfy the money judgment.
P.23. If it is a local government unit, there has to be an appropriation ordinan
ce. If it is a national government unit that is sued and is made liable under a
judgment, then the consent has to be found in an appropriation law, a law approp
riating the amount in order to satisfy the money judgment, that is your consent.
P.24 Here, Municipality of Makati vs CA, a writ of mandamus will lie not only to
compel the Sanggunian to act but to pass, to pass an appropriation ordinance. I
t is a writ of mandamus that will compel not only the exercise of the discretion
ary power but even the discretion itself.
p.25. A police power legislation, legislation passed in the exercise of police p
ower may be given retroactive effect.
P.26 there has to be some kind of rational basis for choosing the subject of pol
ice legislation.
P.27. This means that because you restrict this, you therefore, accomplish this.
So, the SC, there being no causal connection between the means employed and the
objective sought o be accomplished, the law is therefore, an invalid exercise o
f the police power.
P.41. What are the conditions for the grant of Emergency powers? There must be w
as or other natural emergency. Second, the exercise of the power shall be for a
limited period. It shall be for a limited period as limited by Congress in the l
aw granting the power to the President but in no case shall the grant of the pow
er exceed the emergency itself. Third, the exercise of the emergency powers by t
he President shall be subject to the conditions, terms, restrictions imposed by
Congress found in the law delegating the emergency powers. And of course, when t
he President exercises delegated emergency powers, the President is bound again
by the Constitution to exercise this, or to exercise only such powers as are nec
essary and proper in order to carry out a declared national policy.
Same. Because of that, our constitution provides that now Congress can withdraw
the grant of emergency powers only by a resolution, a resolution does not requir
e approval of the President.
P.43. The potential question is of course, if there should be a conflict between
a Public International Law principle and Municipal Law or law of the Philippine
s, which will prevail? This is from the point of view of Philippine Law and Phil
ippine Constitutional Law, so, if a Public International law principle should be
in conflict with the Philippine Constitution, it is the Philippine Constitution
that will prevail.
P.46Equality of Men and Women. Sec 14, on the rule of women and the fundamental
equality of men and women before the law.
P.49. Local Autonomy. Local autonomy is simply decentralization. It does not mea
n that local governments will become an imperium in imperio.
P. 51. Requisites of Substantive Due Process. First, the interest of the public
in general as distinguished form those of particular class required the passage
of the law or the issuance of the administrative rule or regulation. Second, the
means employed must be reasonably necessary for the accomplishment of the purpos
e and not duly oppressive on the individuals.
P. 54. Appeal and Due Process. While appeal is accepted not to be a part of due
process because the right to appeal is granted by statue, nonetheless, where the
re is a law that grants the right to appeal, denial of the right o appeal withou
t any valid basis would constitute a denial of due process.
P.55.Probable Cause. The exception to the rule of probable cause is in the matte
r of violations of the Dangerous Drugs Act considering that the offenses punishe
d under the law are so inter-related.
P.58 Particularity of Description. A John Doe warrant is a valid warrant, provid
ed that the warrant of arrest contains a description of the person to be arreste
d who is, because his name is not known, who is now denominated as John Doe. The
description persona, the description of the person to be arrested.
P.58 same. The Supreme Court said the warrant is in the natire of a general warr
ant and therefore, it is an invalid warrant
P.59 Search Warrants. But when the searching party goes to the house and they fi
nd nothing listed in the search warrant. As they are about to go, they notice th
at there is a car parked along the street in front of the house. Can they search
the car in front o the house? There is no garage. They cant search the car becau
se it is not an extension of the house.
P.59 General Warrants. The SC said the search warrant is severable. And so, whil
e it may be invalid with respect to shabu and paraphernalia for shabu, it is val
id for the guns.
P.61 Warrantless Arrest. When an offense has just been committed and there is pr
obable cause to believe based in personal knowledge of facts or other circumstan
ces that the person to be arrested has committed the offense.
P.61. Warrantles Searches; Valid Waiver. Just like any right, the waiver must be
made voluntarily, willingly, and intelligently. That is, there must be a right.
The person who waives mut know that such a right exists and that he has such a
right, and he willingly and volutariyly waives that right.
P.62 same. The ruling in Anyag vs Comelec is this, consent under coercive circum
stances is not valid consent at all.
P 62.same. in People vs Damaso, consent of waiver must be made by the person who
se right is being violated.
P.63. In Varoy vs Layage, even when consent is already given, the scope of the c
onsent may be limited
P.64. Search as an Incident to a Lawful Arrest. Jurisprudence on the matter tell
us that when as search is made as an incident to a lawful arrest, the search mu
st be made contemporaneous with the arrest which means at or about the time the
arrest was made. And the search is made only within a permissible area of search
, which refers to the place within the control of the person.
P.66. Plain View Doctrine. The peace officer or government agent, must have a va
lid reason to be in the place where he is. Second, without actually conducting a
search, he chances upon or stumbles upon a prohibited item. Number 3, the prohi
bited item is in plain view, it is open to the eye and hand. And number 4, the p
lain view doctrine justifies the seizure.
P.70 Obrien test. First, the act must be within the constitutional power of govt.
second, the act must be intended to further a substantial governmental interest
. Third, the govt interest sought to be promoted must not be related or suppress
ion of freedom of expression. And fourth, the incidental restriction or restrain
t on freedom of expression must be limited to what is only essential or what is
necessary to promote govt interest.
P.70 Challenge of Government Act. A person may not go to court to question the c
onstitutionality of the governmental act even if he himself may not be injured b
y the governmental act, but that others nay be so injured. Even as to himself, t
he act is not unconstitutional with respect to others because on its face, it is
unconstitutional, then he may validly challenge the same.
P.72 Freedom from subsequent punishment. The SC said the determination of what i
s obscene or what is pornographic is a judicial function. And so it is not valid
to say that magazines said to be pornographic can be confiscated at will.
P. 74. Clear and present danger rule. Under the clear and present danger rule, t
he expression must be of such a nature that it will pose a clear and present dan
ger of an evil, which the state has the right to prevent. The degree of imminenc
e must be great.
P. 74. Clear and present danger rule. Speaker attacking the govt. Under the dang
erous tendency rule, definitely, the speaker can be convicted. Under the clear a
nd present danger rule, you have to look at the circumstance surrounding the spe
ech. 10,000 in the audience. All of them children, 6 years old and below.
P.74. Right to Peacable Assembly. Under the Public Assembly Act, there are rules
relative to the acquisition of a permit for the use of a public place in order
to conduct an assembly and the law provides that when the assembly is to be held
in a private place or if it is to be held in a freedom park or in the campus of
a government owned educational institution, then there is no need for a permit
from the Mayor, otherwise a permit is required.
P.75. Right to Peacable Assembly. Economic rights must be subordinate to the rig
ht to peaceably assemble and petition the government for redress and grievances.
P.75. Right to Peacable Assembly. The Supreme Court they were not being penalize
d by exercising their right, they were being penalized for being absent from the
ir classes without any justifiable reason.
P.75. Right to Peacable Assembly. Today the rule is, when a student enrolls in c
ollege, he is supposed to enroll for the entire course subject of course to the
payment of the school fees for the entire course. That means he cannot be denied
re-admission except on 2 grounds. First, academic deficiency, the rules in acad
emic deficiency, however must be published in other words.
P.76. Right to Peacable Assembly. The second, for denying re-admission to the st
udents is if the students commit a violation of reasonable rules of conduct pres
cribed by the school.
P.76. Right to Peacable Assembly. What are these requisites? First, he must be n
otified of the nature and cause of his alleged violation. Second, he is entitled
to answer with the assistance of counsel if required. Third, he must be given a
ccess to the evidence against him, access to the documents or to the affidavits
that are supposed yo be evidence against him. Fourth, he must be given an opport
unity to present evidence in his behalf. And fifth, the investigator, panel, com
mittee should consider the evidence presented. These then are the requisites for
the validity.
P.78. Non-establishment Clause. An ecclesiastical affair is that which pertains
to creed, doctrine, worship, such as excommunication of members, ordination of m
inisters, administration of sacraments.
P.80.Liberty of Abode and Travel. Alright the right to travel.. the constitution
speaks of national security, public safety and public health as limitations as
may be prescribed by law or as may be prvided by law as limitations on the right
to travel.
P.81.Liberty of Abode and Travel. Under the Universal Declaration of Human Right
s, a person should not at all be prevented from returning to his own native coun
try, even the Covenant on Civil and Political Rights also guarantees a persons ri
ght to return to his own... home-country.
P.81.Right to Information on Matters of Public Concern. First, information relat
ive to privileged communication rooted in the doctrine of separation and powers.
Second, information relating to military or diplomatic secrets. Third, informat
ion affecting the national security. And fourth, information relative to investi
gations conducted by the government into offenses commiited prior to the filing
of the corresponding criminal information in Court.
p.83. Miranda Doctrine. Custodial Investigation takes place when there is a ques
tioning made by the government investigators after the investigation has shifted
from a general inquiry into an unsolved crime and has begun to focus on one per
son or per or the persons who are now prime suspects as perpetrators of the offen
se.
p.83. Miranda Doctrine. Preliminary investigation conducted by the prosecutor is
not custodial investigation andso we refer to custodian investigation really as
that inquiry, that interrogation that takes place after a prime suspect or prim
e suspects has or have already been identified and that the investigation now fo
cuses on him or them as the case may be.
P.84. Right to Bail. When charged with an offense punishable by reclusion perpet
uator higher and evidence of guilty is strong.
P.86. Presumption of Innocence. The Supreme Court said the presumption standing
alone cannot prevail over the presumption of innocence.
P.87. Right of the Accused to be Heard by Himself and Counsel. Right to Counsel
during the trial from arraignment through trial and even upon promulgation of ju
dgment cannot be waived
P.88. Right to be Informed of the Nature and Cause of Accusation. If I, if I wer
e, if I had been a bar examiner, one of the questions I would have asked in the
bar exams would have been very simple. One, one sentence in question. May the ac
cused be convicted of an offense other than that which is charged? Explain your
answer fully.
P.89. Right to be Informed of the Nature and Cause of Accusation. The answer, sh
ould be first, as a rule no. Because if he is convicted of an offense other than
that which is charged, he would be denied the right, the constitutional right t
o be informed of the nature and the cause of the accusation against him. However
, he may be convicted.
P.89. Right to be Informed of the Nature and Cause of Accusation. Of an offense
other than that which is charged if he is convicted of an offense that is necess
arily included in the offense charged.
P.89. Right to be Informed of the Nature and Cause of Accusation. He may also be
convicted of an offense other than that, he may also be convicted of an offense
other than that or in addition even to that which may be charged, if he does no
t at all object to the introduction of any evidence to support the additional ch
arge found in the information.
P.90. Trial in Absentia. On the other hand, after arraignment, if he jumps bail
or escapes from confinement, then the Supreme Court said he loses his standing i
n court. He cannot even invoke the right to appeal unless he comes back and subm
its himself to the jurisdiction of the court.
P.92. Right against Self-incrimination. However class, if the accused in a crimi
nal case or the respondent in any of these administrative cases where a penal sa
nction may be imposed upon him testifies voluntarily, if he testifies then he ca
n no longer refuse to answer questions on cross-examination. In either he can no
longer invoke the right against self-incrimination during cross-examination. Ex
cept to questions which the answer, the answer to which will incriminate him of
an offense other than that for which he is charged.
P.93. Prohibited Punishments. It does not refer merely to the harshness or the s
everity of the penalty imposed but to the disproportion between the act punished
and the penalty imposed such as to shock the moral sense of the community.
P.93. Prohibited Punishments. If I were the ah ah examiner, the only question I
would really ask here is the constitutionality of the death penalty and it would
be in the nature of a composition
P.94. Non-imprisonment for Non-payment of Debt or Poll tax. Lozano vs. Martinez
in the matter of the constitutionality of Batas Pambansa Bilang 22. People vs. J
udge Nitafan on the constitutionality of the Trust Receipts Law, this has been a
sked in the bar exams twice and of course the law is constitutional according to
the Supreme Court because what is punished is not non-payment of an obligation
or a debt but is punished is the loss or is the abuse of confidence or the decei
t incident of the violation of the Trust Receipts Law.
P.95. Double Jeopardy. Memorized the requisites for double jeopardy under the fi
rst sentence. First there must be a valid complaint or information, second the v
alid complaint or information must be filed before the competent court, third th
e accused must have pleaded to the valid complaint or information and fourth the
accused must have been convicted or acquitted or the case dismissed or otherwis
e terminated without the expressed consent of the accused.
P.95. Double Jeopardy. The third situation contemplated is, where the case is te
rminated, is dismissed or otherwise terminated without the expressed consent of
the accused, it is important that the dismissal be a final or a permanent dismis
sal because as you very well know, there may be a provisional dismissal by the C
ourt.
P.97. Double Jeopardy. A was charged for killing B because they were last seen t
ogether and B simply disappeared and could no longer be found, circumstantial ev
idence pointed to the guild of A, ok so he was sentenced to 20 years of prison,
after serving 20 years he now goes out of prison and the first person he sees is
B and he tell himself, 20 years akong naghirap sa bilangguan sa pagpatay sayo, b
uhay ka pa pala, papatayin na kita pinatay nya ngayon. Pinatay nya ngayon, charge
d with killing B can he invoke double jeopardy, considering the fact that he was
charged under a valid complaint or information for before a court of competent
jurisdiction to which he pleaded and he was convicted of the offense of homicide
, he is now charged again of homicide for killing the very same person for which
he had already served sentence.
P.101. Dual Allegiance. Dual citizenship in section 40 of the Local Government C
ode should be understood to mean dual allegiance, and dual allegiance would mean
that a person owes allegiance to independent sovereign states and dual allegian
ce pre-supposes voluntariness, allegiance given voluntarily by the individual no
t cases where by virtue of circumstances beyond the control of the individual, t
he individual possesses 2 or more nationalities.
P.102. Dual Allegiance. Any administrative finding of citizenship will not acqui
re res judicata or preclusive effect that is what Zita Ngo Burca all about, will
not acquire res judicata effect unless 3 conditions are satisfied: first, the i
ssue of citizenship is raised as a material issue in an administrative or a judi
cial proceeding and subjected to a full hearing; second, the Solicitor General o
r his representatives participated in the proceedings; and third, the finding wh
ether by administrative agency or judicial body is affirmed by the Court. IT is
in that sense then class that an administrative determination of Filipino citize
nship never becomes final and never acquires res judicata effect.
P.103. Citizens of the Philippines. And then finally class, there is a class of
citizens under the 35 Constitution that is not found in any of the other Philippi
ne Constitutions, the class of citizens who became citizens of the Philippines b
y virtue of what is called the Caram provision in the 1935 Constitution.
P.104. Citizens of the Philippines. Doctrine of implied election
P.104. Citizens of the Philippines. The answer is yes of course, yes, yes becaus
e the determining factor is the citizenship of the mother at the time of her mar
riage and not at the time of the conception or birth of the child as long as the
mother was a Filipino at the time of her marriage then, the child can avail of
the privilege of electing Filipino citizenship.
P.104. Citizens of the Philippines. But legitimation is not a mode of acquiring
Filipino citizenship, neither is marriage, although marriage may give rise to th
e naturalization of a the foreign woman as we will discuss in a little while und
er Moy Ya Lim Yao vs. Commissioner of Immigration, yon.
P.105. Naturalization. If she herself may be lawfully naturalized means that she d
oes not have to go through the naturalization proceedings, she does not have to
go through the naturalization proceedings, wala, all she has to do is file a pet
ition with the Bureau of Immigration and deportation a petition for cancellation
of her alien certificate registration.
P.105. Naturalization. Note than under our law on administrative naturalization,
it is not the Court anymore that grants naturalized Filipino citizenship status
it is the special committee on naturalization, with the SOLGEN as chairman and
the Secretary of the Department of Foeign Affairs and the National Security Advi
ser as member.
P.108. Loss and Reacquisition of Filipino Citizenship. In Frivaldo, the Supreme
Court said that the effect of repatriation retroacts to the date of filing of th
e application for repatriation, thats one.
P.108. Loss and Reacquisition of Filipino Citizenship. When a person is repatria
ted he is restored to his original status as a Filipino citizen.
P.108. Legislative Department. Consider also class, the definition of an indirec
t initiative where the people petition for the adoption of a law course through
Congress, it is indirect in that instead of seeking the direct adoption of the l
aw through an election for the purpose, the people instead go through Congress a
nd would like Congress to adopt that law through the legislative, the normal leg
islative process provided in Article VI.
P.109. Senate. And then of course able to read and write that is the mere litera
cy qualification, able to read and write what oo. If a person is blind but he kno
ws how to read and write in Braille Braille, will be qualified for the Senate exp
lain you answer, 1% noh.
P.110. House of Representatives. Alright the constitution provides that congress
shall pass a re-apportionment law within 3 years from return of every census, t
he census referred to in the constitution is the census on population which is n
ormally undertaken by the government once every 10 years, census on population s
o.
P.110. House of Representatives. The principle that the commission on elections
cannot exercise the power of apportionment.
P.112. Commission on Appointments. The Supreme Court said membership in the Comm
ission on Appointments is never permanent. It is never permanent in the sense th
at it is always subject to the Constitutional provision that membership therein
shall be based on proportional representation of the political parties registere
d in the partylist system represented in the house.
P.113. Powers of Congress. Plenary legislative power. The plenary legislative po
wer is the power to propose and act, amend and repeal laws.
P.114. Legislative Process. All of those things, dun pa lang sa persons and fami
ly relations pa lang, and so class when you speak of only one subject, that subj
ect refers to a general subject matter and not to a specific/particular subject
matter.
P.115. Legislative Process. So, kailangan the 3 reading must be on separate days
.
P.116. Legislative Process. The Supreme Court has said that when there is a pres
idential certification to your bill, then you do not have to have 3 readings on
separate days. All the 3 readings can be done on the same day. There is no need
for the printed copy of the bill in its final form distributed at least 3 days p
rior to the 3rd and final reading. You can distribute final copies on the same d
ay that you approved the bill on 2nd reading and on the same day you cannot appr
ove the bill on 3rd reading.
P.117. Legislative Process. 1. President approves the bill. 2. By merely lapse o
f time. 3. Then of course class, if the President does not want or does not like
the bill, then the President vetoes the bill, President shall veto. However, ev
en if the President objections to the bill and then sends the bill back to house
of origin along with the veto message. Despite the Presidential veto however, t
he bill may still become a law if Congress overrides the veto. Overriding the ve
to will entail a vote of 2/3 of all of the members of the house where the bill o
riginated and then a similar vote in the other house 2/3 to override the veto. 4
. Without the approval of the President, without any presidential action.
P.117. Legislative Process. This bill shall be deemed certified by the President
, it shall be deemed certified by the President and after approval on third read
ing by both Houses, shall automatically become law.
P.118. Appropriation Law. What is an appropriation law? It is a law, the primary
and specific purpose of which is to authorize the release of funds from the pub
lic treasury.
P.118. Appropriation Law. The General Appropriation Law is that which is based t
hat law passed by Congress based on the budget submitted by the President of the
Philippines and it is intended for the financial operation of government for an
entire fiscal year.
P.119. Appropriation Law. 2 constitutional limitations on special appropriation
law. First, the measure itself. The law itself must provide the specific purpose
for which the appropriation is to be spent. Second, the law must be accompanied
by a certification of the national treasurer that there are funds available for
the purpose.
P.119. Appropriation Law Limitations; Guidelines. First, the constitution provid
es that the Congress cannot increase the appropriation recommended by the Presid
ent for the operations of the government for the fiscal year.
P.119. Appropriation Law Rider. A rider in a general appropriation law is a prov
ision in the GAA that is, does not refer to any specific appropriation item.
P.120. Principle of Automatic Reappropriation. Impoundment is the term given to
the refusal of the President to obligate or to spend money appropriated already
for whatever reason.
P.120. Principle of Automatic Reappropriation. And then of course the matter of
budgetary reserves under the Administrative Code of 1987, there is a provision t
hat authorizes the President through the budget secretary not to release in full
the amounts appropriated for purposes of, to be called budgetary the amounts re
served are called budgetary reserves.
P.120. Principle of Automatic Reappropriation. Class the veto must be normally a
veto is a veto of the entire law.
P.120. Item Veto vs. Line Veto. A legislative veto is a means by which Congress
may block or modify administrative action or executive action taken in the imple
mentation of the measure.
P.121. Item Veto vs. Line Veto. However, the Supreme Court did not declare this
unconstitutional. Ang sinabi lang ng Supreme Court however, such a provision shou
ld be contained in a separate substantive law not in the GAA itself. Should be c
ontained in a separate substantive law. Therefore the veto made by President Ram
os was held valid because this is an inappropriate provision in the General Appr
opriations Act, considering that such a provision should be contained in a separ
ate substantive law.
P.121. Power of Taxation. What are the requisites however for the validity of su
ch legislative inquiry or legislative investigation? One, the investigation must
be in aid of legislation. Two, the investigation must be conducted in accordanc
e with duly published rules of procedures. And three, the rights of the person a
ffected by such investigation must be respected.
P.121. Legislative Investigation. Yes, of course. But he can invoke the same onl
y when the question calling for an incriminating answer is asked because such a
person is called in an investigation as a witness and not as a respondent for ex
ample.
P.122. The President. So the President of the Philippines. The Executive power o
f the government is vested in the President of the Philippines. What are the qua
lifications for President? Natural-born Filipino citizen, on the day of the elec
tion at least 40 years of age, able to read or write, a registered voter, a resi
dent of the Philippines for at least 10 whole years immediately preceding the el
ection. Remember these are the same qualification for your Vice-President. Why?
Because your Vice-President could at any time be your President.
P.123. Privileges. This immunity cannot be invoked by 1 whose term has expired o
r who is no longer President even if he is called to account for acts committed
by him while he was President of the Philippines.
P.123. Privileges. The Secretary of Education cannot claim the immunity that is
granted to the President because as we earlier said, the immunity granted is per
sonal to the President of the Philippines and it is not enjoyed by alter egos of
the President of the Philippines.
P.123. Temporary Vacancy; Rules of Succession. So itong temporary vacancy, class
the rules on temporary vacancy found in the constitution are rules copied from
the United States.
P.123. Temporary Vacancy; Rules of Succession. If the majority of the members of
the cabinet
P.124. Powers of the President. Distinguish this from the Office of the Presiden
t at large, on the whole which includes all of the departments of the government
. While indeed the President has indeed plenary authority to abolish, merge, con
solidate offices, agencies and positions in the office of the President proper,
there are limits to the power of the President to reorganize all of these depart
ments, agencies, etc. but in that case also, the Supreme Court said that the Pre
sident may delegate this power to reorganize.
P.124. Powers of the President. Where the President of the Philippines refuses t
o implement, to enforce or to execute a law, will this mean culpable violation o
f the constitution which will be then be a basis of complaint for impeachment? T
hat is possible.
P.124. Power of Appointment. Appointment as you very well know is the selection
by the authority having the power of an individual who is to perform the functio
ns of a given office.
P.126. Power of Removal. However class, note first in the members of cabinet, me
mbers of the cabinet while the President can replace them at any time, what happ
ens if a cabinet member is replaced is not removal but expiration of term.
P.127. Constitutional Limitations on the Power of the President to Appoint. But
the Supreme Court said that this prohibition found in the constitution does not
apply to local executives. So mayors and governors may issue valid appointments
even during the 2, no even during, just before the term ends. Of course, the app
ointments made 2 months before the elections, the normal prohibition is 45 days
before the election in the case of other government offices. In the case of the
President is 2 months before the elections and all the way up to the end of the
term.
P.127. Other Powers. Conduct unbecoming of an officer and a gentleman charged be
fore a court martial duly created under the authority of the president of the Ph
ilippines. The 50 members of the military establishment are exonerated by the co
urt martials. May the President reverse the decision of exoneration and declare
them guilty and impose a penalty of 10 years of hard labor?
P.127. Other powers. And so he declared, aba hindi pa tapos yan, hindi pa tapos
yan ah the decision of the court martials is subject to review of the President
of the Philippines. Because the court martial is precisely an agency of executiv
e character and is subject to the exercise of the power of control which the pre
sident wields over the entire Armed Forces of the Philippines, as it were.
P.128. Other powers. Invasion when public safety requires it and rebellion when
public safety requires it.
P.128. Other powers. The inquiry that the Supreme Court can do with respect to t
he proclamation is limited to the sufficiency of the factual basis.
P.129. Other powers. For our purposes, the important things to remember from the
standpoint of constitutional law are first the discretion vested in the preside
nt of the Philippines. Nobody can compel the president to issue a pardon.
P.130. Other powers. First, the president cannot pardon a person declared or fou
nd guilty in an impeachment case.
P.130. Other powers. Second no pardon shall be issued in favor a person convicte
d of violation of election laws unless there is a favorable recommendation made
by the Commission on Elections. Third, note that a pardon may be issued only aft
er a final conviction.
P.130. Other powers. Fourth, a pardon shall not relieve a person for any of liab
ility for legislative contempt.
P.130. Other powers. Number 5, a pardon shall not relieve a convict of civil lia
bility.
P.130. Other powers. Finally a pardon shall not restore public offices forfeited
.
P.130. Other powers. That plenary pardon made you eligible to be appointed again
. But you are not eligible to be automatically reinstated.
P.131. Other powers. The SC said no, there is no need for your to be convicted.
When you accept the conditional [pardon you a re entering a contract with the Pr
esident of the Philippines. By entering that contact, you give to the President
of the Philippines the authority to determine whether or not you have really com
mitted a violation of the conditions attached to the pardon.
P. 133, The Judicial Power. The of course, yung decision nila dyan, that the pen
alty to be imposed on the erring judge is dismissal from his service that the Su
preme Court must decide the case en banc. Majority of the members who participat
e in the deliberation and who vote thereon but it is to be decided en banc where
the penalty to be imposed is dismissal from the service or separation from serv
ice.
P 134. July 15 16. Because under the administrative code, a superior officer shal
l be held liable for the unlawful, negligent or malicious acts of his subordinat
es only if he is authorized in writing then doing of such an act. There is no su
ch thing as command responsibility except perhaps in the military.
P. 135. Private Lands. The citizenship of the corporation sole is not the citize
nship of the bishop or a high priest.
P. 139. Education, Science and Technology, Arts Culture and Sports. 1.) the stud
ent is entitled to know, has the right tot know the nature and cause of the accu
sations against him; 2.) he has the right to answer with the assistance of couns
el if desired; 3.) he has the right of access to the evidence against him; 4.) h
e has right to preset evidence in his behalf; and 5.) the body, committee panel,
investigator must consider the evidence presented.
P. 139. General Provisions. Congress passes a law changing the name of the Repub
lic of the Philippines to Bayan Ng Maharlika, is the law valid? Explain.
P. 140. Powers of Administrative Bodies. Determinative Powers and Incidental Pow
ers.
P. 141. Same. The enabling powers, the directing powers, the dispensing powers,
the examining powers and the summary powers.
Same. The Issuance of license is part of the mayors power.
Same. Example of directing powers is making Assessments or the bureau of customs
.
Same. But perhaps even now, we should consider the case of Guevara v. COMELEC, t
he Supreme Court said that the power to punish contempt is essentially a judicia
l power; however, an administrative agency may by law be granted the power to pu
nish contempt. However, even when the law grants an administrative agency the po
wer to punish contempt, that power can be exercised only by the agency when the
agency is engaged in the performance of quasi-judicial functions.
Same. Accordingly, in the case of COMELEC for example, the Commission on Electio
ns has quasi judicial powers. It is, the COMELEC, supposed to be given original
exclusive jurisdiction over all prep proclamation contests. The COMELEC. The COM
ELEC has exclusive jurisdiction over all cases relating to election returns, qua
lification of regional, provincial and city elective officials.
Same. Then the summary powers refer to powers of certain administrative agency t
o apply compulsion or force upon persons or things without the necessity of judi
cial warrant.
P. 142. Kinds of Administrative Rules and Regulations. Detailed legislation, int
erpretative legislation, and contingent legislation.
P. 143. July 17, 2004. Preclusive effect.
Same. There can no res judicata where the amount of benefits given to the employ
ee are less than those provided by law.
P. 144. Exhaustion of Administrative Remedies. The doctrine says that when a par
ty agreed by an administrative decision, has still other available administrativ
e remedies, he may not seek judicial recourse until he shall have exhausted all
such administrative remedies.
Same. The doctrine of finality of prior resort and the doctrine of finality of a
dministrative action.
P. 145. Same. The doctrine of qualified political agency.
Same. Two exceptions, were the law itself provide it inasmuch as the President h
imself who issued the Presidential proclamation, appeal to the President would b
e complete exhaustion of administrative remedies.
Same. The administrative agency invoking the doctrine of estoppel.
Same. Where the issue is a pure question of law.
Same. Administrative action will result in the nullification of the claim.
Same. There is violation of due process of law.
P. 146. Same. Where the administrative action is patently illegal.
Same. The basis even as class in the old, in American jurisprudence, Congress ca
n deny resort to the court. In other words, Congress can provide that he decisio
n of the administrative agency shall be final, executory and unappealable, that
is no longer possible today under the Constitution where there is involved the e
xercise of quasi judicial powers because the exercise of quasi judicial powers e
ntails the exercise of discretion by the agency vested with the quasi judicial p
owers and under Section 1, second paragraph of Article 8, the definition of judi
cial powers includes the power to determine whether or not there has been a grav
e abuse of discretion amounting to lack or excess in jurisdiction on the part of
any agency of instrumentality of the government.
Same. Board of Commission CID v. Judge Dela Rosa; Commendador v. De Villa
Same. However, questions of fact may be raised if the law itself provides the qu
estions of fact may be validly raised. Second, when there is fraud, imposition o
r mistake, other than error of judgment in the evaluating the evidence, or were
there is a mistake or error committed in the appreciation of the pleadings, or i
n the interpretation of documentary evidence.
Same. The brandized doctrine of assimilation of facts, were what purports to be
a question of a finding on the question of fact is so intimately related with, o
r dependent upon a question of all as to be in substance and effect a decision o
n the latter, then the court may go over the records and the evidence and theref
ore, rule even on the question of facts.
P. 147. Tenure. Tenure is supposed to be the period of time by which the public
officer actually holds office. While term is the period of time by which the pub
lic officer is entitled to hold office.
Same. Right to Salary. The salaries of public officers before they are paid to t
he public officer himself are free from garnishment.
P. 148. Salaries or Compensation of de facto Officers. Also goes into the matter
of qualifying for the office so that even if an accountable officer has already
taken the oath of office, if he has not yet posted his bond, that requirement m
ay go into the title that he has over the office. He may not be a de jure public
officer; he may only be a de facto public officer until after he has fully qual
ified by posting the bond, alright.
Same. Qualifications. In the case of Constitutional offices.
Same. In the case of statutory public office. One that the prescribed qualificat
ions must be germane to the duties attached to the office and second, that the p
rescribed qualifications must not be specific as to fit an identifiable individu
al because were such a provision in the law is included, it is in effect Congres
s that is appointing or exercising the power of appointment to the given office.
P. 149. Same. That the prescribed qualification must not be unconstitutional, it
must not violate the Constitution.
P. 150. Disqualification. Elected official cannot be appointed to any other offi
ce during their tenure.
Same. In their case, they may not hold any other office in the government, unles
s otherwise provided by law, unless allowed by the law in fact or by the primary
functions of their office, alright.
Same. First, allowed by law and second, allowed by the primary functions of the
office unless otherwise allowed by the Constitution.
P. 151. Specific Disqualifications. So, President, Vice President, members of th
e cabinet, undersecretaries, and their assistants are prohibited from holding an
y other office in government during their tenure of course.
Same. Incompatible office.
Same. For members of the Judiciary, Justices of the Supreme Court and Judges of
lower courts, the prohibition is against being designated to any position in gov
ernment performing quasi- judicial of administrative functions.
Same. Constitutional Commission members, the Ombudsman and the deputies are proh
ibited from holding other office during their tenure, of course. Then, the ombud
sman and deputies may not be candidates for public office in the election immedi
ately succeeding their cessation from office. Members of the Constitutional Comm
issions should not have been candidates in the election immediately preceding th
eir appointments.
P. 152. Requisites. 1.) There must be a validly existing office; 2.) The officer
must have the physical position of the office; 3.) What makes him only de facto
because instead of having full, legal, valid title to the office, he has only c
olor of title, he does not have a valid title to the office.
Same. Situations that give rise to color of title: 1.) by reputation and acquies
cence; 2.) under a known and valid appointment or election but he does not confo
rm with a duty mandated by law, such as, precisely qualification; 3.) under a kn
own election or appointment, void election, void because either the appointee or
the party elected is ineligible of ineligibility, or there is want of authority
on the part o electing or appointing authority, or there was an irregularity in
the appointment or in the election provided that such ineligibility , such want
of authority, or such irregularity is not know n to the public; 4.) under a kno
wn appointment or election, void, because the election or the appointment is mad
e pursuant a an unconstitutional law before the law is declared unconstitutional
.
Same. Entitlement to Salaries. When the de facto officers co exist with the de j
ure officer, such as the de facto officer physically ousted the de jure officer
from the office and the de facto officer assumed office, stated functions, etc,
then the de facto public officer is not entitled to the emoluments attached to t
he office. He is under the obligation to give the salaries and other emoluments
to the de jure officer.
When there is no de jure public officer, the de facto officer is entitled to the
salaries and emoluments of the office because he has been or is performing the
functions of the office.
If the fellow being made to pay is a de facto public officer then he cannot be m
ade to pay, he is entitled. But if he is merely a usurper then he may be made to
pay, or to refund, or to reimburse or to deliver to the winning candidate whate
ver that it was he received by way of compensation, salaries or other emoluments
incident to the office.
P. 154. Commencement of the Official Relations. Appointment is the selection by
the authority having the power of an individual who is to perform the functions
of a given public office. It is distinguished from designation, in that official
ly, is merely the grant of additional duties to one who is already in public off
ice.
Same. Appointment. When designation is used to convey an appointment instead of
merely giving additional duties to one who is already in public service, when de
signation is the term used to the issuance of the appointment, then, it has alwa
ys been held to mean temporary appointment, not a permanent appointment.
P. 155. July 20, 2004. Notice the distinction between permanent and temporary in
the matter of security of tenure were one is appointed to a permanent, permanen
tly appointed to a position in the government, in the Civil Service, one enjoys
security of tenure and that means he cannot be suspended or dismissed except for
the cause, anyone of the causes prescribed in the Civil Service Law or repeated
in the Administrative Code and only in accordance with the procedure prescribed
by the Civil Service Code. But only if you are a temporary appointee, then you
can be terminated at anytime, except, yung ating sinabi na may specific period f
or the temporary appointment.
P. 156. Same. a petition quo warranto filed in court to protest the validity of
an appointment in the Civil Service by a person who claims to be, to have a bett
er title to the position, will not lie. The Court cannot entertain that petition
for quo warranto.
Same. Automatic reversion rule under the Civil Service Law. The automatic revers
ion rule, maraming appointments, simultaneous promotion on appointments.
P. 157. Classes of Civil Service. Career and non career service.
P. 158. Same. In both cases, the Supreme Court said the requirements for acquiri
ng security of tenure in career executive service are: 1.) acquisition of the ap
propriate, of the corresponding career executive service eligibility; 2.) appoin
tment by the President to the career executive service rank.
P. 159. Same. Elective officials and their confidential staff, heads of departme
nts, cabinet ranks and their confidential staff, chairman, commissioners with, t
hose with appointed for specific term and their confidential staff, and then con
tractual personnel, except, that there, the law comes in and says, that contract
ual personnel appointed and falling within this non-career service are those who
possess certain skills or knowledge not available in the agency.
P. 160. Same. This is merely an exclusive determination, executive or legislativ
e determination which is not binding on the courts because the SC said, the prim
ary factor in determining whether a position is primarily confidential is still
the nature of the functions of the position, nature.
P. 160. Promotion. Promotion is the movement within the same agency, movement fr
om one position to another that entails additional duties, additional responsibi
lities and as a rule also is accompanied by increases in salary and compensation
.
Same. This is also known as the next in rank rule which provides that generally
the officer holding the position next in rank shall be given preference in the m
atter of promotion whenever the position next higher in rank shall be vacated.
P. 162. Retirement Benefits. For those in government service, terminal leave ben
efits, terminal leave benefits are benefits from accumulated leave credits. The
rule is the payment of your terminal leave benefit credits shall be based on the
highest salaries you have received.
P.165.Impeachment. Deemed Ipso facto resigned, it does not matter apparently if
later he withdraws his certificate of candidacy because it is supposed to be the
filing of the certificate of candidacy that will toll the termination of the of
ficial relationship.
P.165.Impeachment. The hold over principle states that a public officer may cont
inue to hold office even after the expiration of a term of office until his succ
essor shall had been duly elected or appointed and shall have qualified.
P.166.Impeachment. We have the case of Licaros vs. Sandiganbayan. However, where
the Supreme Court justified the hold over of a Sangguniang Kabataan Chairman be
cause of the failure on the part of the successor to take his oath and to qualif
y for the position, justifying the hold over. Because according to the Supreme C
ourt, there was no express or implied prohibition against hold over.
P.167. Resignation. So, two basic requisites for a valid resignation. Number one
, voluntariness. Second, acceptance by competent authority.
P.170. Preventive Suspension. And consider that while transfer as a rule, transf
er of a public officer or employee constitutes a violation of security of tenure
, nonetheless, transfer may also be a penalty imposed on the erring public offic
er or employee.
P.171. Preventive Suspension. Accomplishment of the purpose for which the public
office created.
P.171. Preventive Suspension. And if one is absent without leave for a period of
30 days under the Civil Service rules, his name may be stricken off the roll of
employees of public officers.
P.171. Preventive Suspension. Acceptance of an incompatible office.
P.171. Preventive Suspension. Abolition of office. Who has the power to abolish
government offices? Congress.
P.171. Preventive Suspension. The common standards of simplicity, economy and ef
ficiency in government service to justify the abolitionof a number of offices or
positions in certain government offices.
P.174. Election Laws. Provided, however, that all election cases including pre-p
roclamation cases shall first be taken cognizance of and resolved by the Commiss
ion on Elections in division. Provided, however, that the motion for reconsidera
tion shall be resolved by the Commission En Banc.
P.174. July 21, 2004.All cases appealed from the municipal of the Municipal Tria
l Court, all of these cases including pre-proclamation cases must be decided by
the Commission in division before it can be decided by the Commission En Banc. H
owever, the Supreme Court has sustained the contention of Commission En Banc tha
t in the matter of correction of a manifest error, the matter can be taken cogni
zance of directly by the Commission En Banc, even if the correction of the manif
est error may involve what may be an issue in a pre-proclamation contest.
P.175. July 21, 2004. When in election cases, it entails the use of quasi-judici
al powers of the COMELEC because kung purely administrative matter, hindi kailan
gan na it must first be heard, decided, in division before it is decided by the
Commission En Banc, pag purely administrative, hindi quasi-judicial.
P.175. July 21, 2004. Because if the COMELEC En Banc simply acted within its own
purely administrative, acted in the exercise of purely administrative powers th
en you do not go to the Supreme Court on a petition for certiorari. You go to th
e appropriate court of general jurisdiction or a tribunal that has primary admin
istrative jurisdiction.
P176. Commission on Elections. The 2nd constitutional powers and functions of th
e COMELEC is precisely the authority the commission has over election cases and
the constitution provides that the COMELEC shall have exclusive original jurisdi
ction over all cases involving the election returns and qualifications of region
al, provincial and city elective officials. Exclusive original and exclusive app
ellate jurisdiction over cases involving ER and qualifications over municipal as
well as barangay elective officials.