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THE JUDICIARY

JUDICIAL POWER AND POLITICAL QUESTION DOCTRINE

ART. VIII Sec. 1 Par. 1- The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law

Q. What is JUDICIAL POWER?

*The Supreme Court is the only constitutional court.


Q. SB?
A. No. It is not a constitutional court, although mentioned in the Constitution.
It is only a constitutionally mandated court.
*Judicial power is not vested in the Supreme Court alone. It is vested as well
in such lower courts as may be established by law. Such lower courts as
may be established by law (BP 129 Judiciary Reorganization Act of 1980)
*Court of Appeals- referred to as lower collegiate courts
*Regional Trial Courts- courts of general jurisdiction
*Courts of limited jurisdiction- (1) Metropolitan Trial Courts (2) MTCC
[chartered cities] (3) Municipal Trial Courts/ Municipal Circuit Trial Courts
*Sandiganbayan- special court having jurisdiction over public officers; coequal with the Court of Appeals.
*Court of Tax Appeals- special court having jurisdiction over tax appeals
cases.
*SHARIAH COURTS- pursuant to Muslim Code; 2 levels:

A. 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. (Art. VIII, Sec. 1, Par. 2)
- Not found in the 1935 and 1973 Constitution.
- Represents a broadening of judicial power to enable the courts of justice to
review what was before forbidden territory.
DUTY - the provision uses the word DUTY. The settlement of controversies
and the determination of whether or not there has been grave abuse of
discretion is not merely a power- it is a duty of the courts as well.
-in power, the power holder has discretion to exercise.
-if it was only a power, then the courts has the discretion to
exercise it or not.
Since it is a duty, there is no such discretion- the exercise of the
power is obligatory and mandatory upon the courts.
TWO PARTS OF THE DEFINITION

(1) Shariah District Court- equivalent to RTC

1. To settle actual controversies involving rights which are legally


demandable and enforceable. (TRADITIONAL)

(2) Shariah Circuit Court- equivalent to MTC

-Very limited definition. Maybe defeated by the political question doctrine.

*QUASI JUDICIAL BODIES - strictly speaking, they are not courts- do not
form part of the judicial system.
- They are administrative bodies performing quasi-judicial functions. In
Remedial Law, referred to loosely as special courts- Doctrine of Primary
Jurisdiction.
- Part of the executive.
Ex. CSC, SEC, COA, COMELEC
*Since quasi-judicial bodies are not strictly courts, their jurisdiction is strictly
construed against them.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

2. To determine whether or not there has been grave abuse of


discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government. (EXPANDED)
- Expanded Power of Judicial Review or the Extraordinary Power to
Determine Grave Abuse of Discretion as referred to by the Supreme Court.
Political question doctrine has been greatly diminished.
Q. How does the definition of judicial power under the present Constitution
affected the political question doctrine?
A. The 1987 Constitution expands the concept of judicial review. Under the
expanded definition, the Court cannot agree xxx that the issues involved is a
political question beyond the jurisdiction of the court to review. When the
grant of power is qualified, conditional or subject to limitations, the issue of
whether the prescribed qualifications or conditions have been met or the
limitations respected is justiciable the problem being one of legality or

validity, not its wisdom. Moreover, the jurisdiction to delimit constitutional


boundaries has been given to this court. When political questions are
involved, the Constitution limits the delimitation as to whether or not there
has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being questioned.

ESTRADA VS. DESIERTO-EDSA 1

Q. What are political questions?


A.-Origin: The principle of separation of powers.

*According to the petition, most of the people who went to EDSA are not
really serious in overthrowing the Marcos government. (Most were vendors)

-In turn, this principle is the result of our Presidential System of Government.

SC: dismissed the petition.

(In a Parliamentary government, the executive and the legislative branches


are welded together)

*No matter, We will no longer inquire into the motives of the people in going
to EDSA. The facts were: because of the magnitude of the people who were
in EDSA, Marcos fled to Hawaii, so that the Cory government was able to
take effective control of the machinery of the State without resistance from
the people. Furthermore, the international community has recognized the
Cory Government. Hence, there can be no more question as to the de jure
status of the said government.

-Thus, legislative power is given to Congress; executive power is given to


the President and judicial power is given to the Supreme Court- 3 great
powers distributed among 3 branches of government.
-The legislative and the executive are called POLITICAL BRANCHES of the
government, where policies are formulated, enacted and implemented.
-Questions of policy that are formulated by the political branches and thus
cannot be the subject of judicial review. This includes questions involving the
wisdom, propriety, efficacy or morality of an act.
TAADA VS. CUENCO - Classic definition of political question.

*Lawyers League for a Better Philippines vs. Aquino


*Oliver Lozano filed a petition before the Supreme Court questioning the
legitimacy of the Cory government.

*The Aquino government was the result of a successful revolution by the


sovereign people-it was installed through a direct exercise of the power of
the Filipino people, in defiance of the provisions of the 1973 Constitution.
The legitimacy of a government sired by a successful revolution by people
power is beyond judicial scrutiny; such government automatically orbits out
of the constitutional loop.

POLITICAL QUESTIONS refer to those questions which under the


Constitution are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government.

Estrada vs. Desierto

TWO TYPES OF POLITICAL QUESTIONS

SC: No. (Justice Reynato S. Puno)

1.

*Arroyos government is not revolutionary in character. The oath she took is


the oath under the 1987 Constitution. Indeed, she has stressed that she is
discharging the powers of the presidency under the authority of the 1987
Constitution.

Those questions which under the Constitution are to be decided


by the people in their sovereign capacity.
Ex. Recall under the LGC
-A mode of removing a local elective official even before the 3 year
term on the ground of loss of trust/confidence.
-There is only one ground for recall-loss of confidence.

EVARDONE VS. COMELEC


Loss of confidence as a ground for recall is a political question. After all, the
initiation of the recall process is not the recall itself. In the recall election, the
people will decide whether or not they have lost their confidence in the
official concerned. Hence, it is a question which has to be decided by the
people in their sovereign capacity in the recall election itself. Not subject to
judicial review.
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

*Desierto argues that the legitimacy of Arroyos assumption to the


presidency is a political question, and invokes the ruling in the Lawyers
League case.

LEGAL DISTINCTIONS BETWEEN EDSA 1 AND EDSA 2


EDSA 1

EDSA 2

-Involves the exercise of the people


power
of
revolution
which
overthrows the whole government.

-Involves the exercise of the people


power of freedom of speech and
freedom to assemble, to petition the
government
for
redress
of
grievances which only affected the

-Extra-constitutional

and

the

legitimacy of the new government


that resulted from it cannot be the
subject of judicial review.

-Presented a political question.

Office of the President.

CALLING OUT POWER

-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.

-It is a political question, a question in regard to which full discretionary


authority has been delegated by the Constitution to the President.

-Involves legal questions.


2.

Those in regard to which full discretionary authority has been


delegated by the Constitution to the executive or legislative branch
of the government.
Ex. Calling out power of the President under Article VII, Sec. 18

IBP VS. ZAMORA


During the time of President Estrada, he issued a LOI ordering the
deployment of Marines in the metropolis to conduct joint visibility patrols with
members of the PNP in various shopping malls. IBP asks that the exercise
of such power be subjected to judicial review.
SC: No. 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. Thus, the Court cannot
be compelled upon to overrule the Presidents wisdom or substitute its own.
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.
3 powers under Art. VII, Sec. 18
1.
2.
3.

Calling out power as commander-in-chief of AFP


Declare Martial Law
Suspend the privilege of the writ of habeas corpus.

*Unlike in the past, the power to declare martial law and to suspend the
privilege of the writ of habeas corpus were expressly made subject of judicial
review.
*Article VII, Sec. 18, Par 3- 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 or the extension thereof, and must promulgate its decision within
thirty days from its filing.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

SC: It is the unclouded intent of the Court to grant to the President full
discretionary authority. The hands of the President should not be tied;
otherwise, this could be a veritable proscription for disaster. Unless grave
abuse of discretion is shown, the Presidents exercise of the power should
not be questioned. Mere abuse of discretion will not suffice. To doubt is to
sustain.
Q. What is the effect of the EXPANDED CONCEPT OF JUDICIAL POWER
on the political question doctrine?
A. It has lessened the political question doctrine. Thus, even if it is a political
question, if there appears to be abuse of discretion, the Court may review it.
*The burden is upon petitioners- the ones assailing the act.
*It must be grave abuse of discretion to warrant judicial intervention.
*Mere abuse of discretion is not enough.
*To doubt is to sustain the act of the person.
Q. Why the difference in treatment?
A. Calling out power is the lesser and more benign power while the power to
declare martial law and to suspend the privilege of the writ of habeas corpus
are the greater powers which involve direct curtailment of civil liberties
thereby necessitating safeguards of Congress and judicial review of the
Court. (IBP VS. ZAMORA)
DAVID VS. GMA
*PGMA exercised the calling out power when she issued GO 5 and PP
1017, not the martial law power. The acts taken purportedly to carry out the
issuances were ultra vires, hence, unconstitutional. The exercise of the
calling out power does not involve the direct curtailment and suppression of
civil liberties and individual freedoms. However GO 5 and PP1017 are
constitutional. Petitioners failed to counteract the factual bases therefore as
alleged by the Solgen.
Q. Why not the martial law powers?
A. There was no case of invasion or rebellion. President will be required to
submit report to (kulang page ko, sorry...)

Q. What are the THREE IMPORTANT FUNCTIONS OF THE COURT?


A. 1. Checking
2. Legitimizing
3. Symbolic
SYMBOLIC FUNCTION OF THE COURT - It is the duty of the Court to
formulate guiding and controlling principles, precepts, doctrines or rules. It
has the symbolic function of educating the bench and the bar on the extent
of protection given by Constitutional guaranties.
Q. What are the requisites for a proper exercise of the power of
JUDICIAL REVIEW?
A. 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.

*On the other hand, INTERNATIONAL COURT OF JUSTICE can render


advisory opinions.
Q. Basis?
A. 1. Statute of ICJ itself
2. UN Charter
2 MAIN FUNCTIONS OF THE ICJ:
1.

To resolve contentious cases

2.

To render advisory opinions to UN organs

MOOT AND ACADEMIC CASES - A moot and academic case is one that
ceases to present a justiciable controversy by virtue of supervening events,
so that a declaration thereon would be of no practical use or value.
Generally, courts decline jurisdiction over such case or dismiss it on ground
of mootness. (David vs. GMA)
*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:

A. THE MEANING OF ACTUAL CASE OR CONTROVERSY


-It means an existing case or controversy which is both ripe for resolution
and susceptible of judicial determination and that which is not conjectural or
clarificatory, or that which seeks to resolve hypothetical or feigned
constitutional problems. (IBP VS. ZAMORA)
*There must also be a conflict of rights-opposing views or contentions-if not,
the Court would be resolving issues that remain unfocused because they
lack concreteness.
*The controversy must also be justiciable-meaning susceptible of judicial
determination.
Q. May courts render advisory opinions?
A. No, courts can only decide actual controversies, not hypothetical
questions or cases.
-There must be an actual case or controversy to be resolved.
-The definition of judicial power under Art. VIII is clear. The evil sought to be
avoided is the possible violation of due process. It is also repugnant to the
Principle of Separation of Powers. If a case is bought involving the same
issue, the court might be forced to follow.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

1.
2.
3.
4.

There is a grave violation of the Constitution;


The exceptional character of the situation and the paramount public
interest involved;
When constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; and
The case is capable of repetition yet evading review. (David vs.
GMA)

B. PROPER PARTY REQUIREMENT


Q. What is the meaning of locus standi?
A. LEGAL STANDING or LOCUS STANDI has been defined as a personal
and substantial interest in the case, such that a 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. (IBP vs.


Zamora)
IBP VS. ZAMORA
IBP has no locus standi. The mere invocation of its duty to preserve the rule
of law is a too general interest. It has not shown any injury it has suffered nor
will suffer by virtue of the act complained of. The presumed injury is not
personal, too vague, highly speculative and uncertain to confer locus standi.
However, IBP has advanced constitutional issues which deserve attention of
this court, in view of their seriousness, novelty and weight as precedents.

1.

2.

TAXPAYERS SUIT
To constitute a taxpayers suit, two requisites must be met, namely:
That public funds are disbursed by a political subdivision or
instrumentality and in doing so, a law is violated or some irregularity
is committed; and
That the petitioner is directly affected by the alleged ultra vires act.

KILOSBAYAN VS. MORATO


*Kilosbayan filed 2 petitions as a taxpayer.
SC: Taxpayer suit does not lie because the issue does not involve the
disbursement of public funds. Rather, what is involved was the interpretation
of the charter of the PCSO.
C. THE CONSTITUTIONAL QUESTION MUST BE RAISED AT THE
EARLIEST OPPORTUNE TIME
It is not the date of the 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 at the trial, and if not considered at
the trial, it cannot be considered on appeal. (Matibag vs. Benipayo)
- However in criminal cases, the accused may raise the constitutional
question even for the first time on appeal. This is because criminal cases
involve the basic rights of the accused to life and liberty.

earliest opportunity to raise a constitutional issue is to raise it in the


pleadings before a competent court that can resolve it, such that if not raised
in the pleadings, it cannot be raised on appeal. Here, Matibag questioned
the legality of said appointments when she filed her petition before the
Supreme Court, which is the earliest opportunity for pleading the
constitutional issue before a competent body.
D. THE CONSTITUTIONAL QUESTION MUST BE THE VERY LIS MOTA
OF THE ENTIRE CONTROVERSY
*The constitutional question must be the main issue of the controversy.
*There is no way that the Court may resolve the entire case, unless it first
resolves the constitutional question raised.
AMENDMENTS OR REVISIONS (ARTICLE XVII)
3 ESSENTIAL ELEMENTS OF A GOOD WRITTEN CONSTITUTION:
1.

Constitution of Government: Articles VI, VII, VIII, IX, X

2.

Constitution of Liberty: Article III (Bill of Rights)

3.

Constitution of Sovereignty: Article XVII (Amendatory Process)


AMENDMENT

REVISION

-refers to a change that adds,


reduces or deletes without altering
the basic principle involved.

-implies a change that alters a basic


principle in the Constitution.

-affects only the specific provision


being amended.

-affects several provisions in the


constitution.

-isolated or piecemeal changes in the


Constitution.

-overhaul of the whole Constitution.

Ex. Lowering of the voting age.

Ex. Altering the principle of


separation of powers or the system
of checks and balances.

MATIBAG VS. BENIPAYO


*Matibag questioned the legality of the appointments of Benipayo, Borra and
Tuason on 03 August 2001, when their first appointments were issued on 22
April 2001. Thus, it is argued that the constitutional question was not raised
on the earliest possible opportunity.
SC: No. It is not the date of the filing that determines whether the
constitutional question was raised at the earliest possible opportunity. The

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

-if the change alters the substantial


entirety of the constitution, as when
the changes affect substantial
provisions of the constitution.

TWO PART TEST


1.

QUANTITATIVE TEST: asks whether the proposed change is so


extensive in its provisions as to change directly the substantial
entirety of the Constitution by the deletion or alteration of numerous

existing provisions. The court examines only the number of


provisions affected and does not consider the degree of change.
2.

QUALITATIVE TEST: inquires into the qualitative effects of the


proposed change in the Constitution. The main inquiry is whether
the change will accomplish such far reaching changes in the nature
of our basic governmental plan as to amount to a revision. Whether
there is an alteration in the structure of government is a proper
subject of inquiry.

*A change in the nature of the basic governmental plan includes


changes in its fundamental framework or the fundamental powers of its
branches. A change in the nature of the basic governmental plan also
includes changes that jeopardize the traditional form of government
and the system of checks and balances. (Lambino vs. COMELEC)
*LAMBINO VS. COMELEC

3.

a.

Congress directly calls a CONCON by 2/3 vote of all its members.

b.

The issue of calling a CONCON may be submitted to the people in


a plebiscite by majority vote of all members of Congress.

Peoples initiative on the Constitution (RA 6735)


Article XVII, Sec. 2- Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a petition of at
least 12 percentum of the total number of registered voters, of which
every legislative district must be represented by at least 3 percentum of
the registered voters therein. No amendment under this section shall be
authorized within 5 years, following the ratification of this Constitution or
oftener than every 5 years thereafter.
The Congress shall provide for the implementation of the exercise
of this right.

-Under both the quantitative and qualitative tests, the Lambino groups
initiative is a revision, not merely an amendment. QUANTITATIVELY, the
Lambino groups proposed changes overhaul two Articles-Article VI of the
Legislature and Article VII on the Executive-affecting a total of 105
provisions in the entire Constitution. QUALITATIVELY, the proposed
changes alter substantially the basic plan of government from presidential to
parliamentary and from a bicameral to unilateral legislature.

*This applies only to amendments not revisions.

STAGES IN THE AMENDATORY PROCESS

A.

1.
2.

Proposal
Ratification

MODES OF PROPOSING AMENDMENTS OR REVISIONS


1.

Congress acting as constituent assembly


-One of the non-legislative powers of Congress
-Congress meets in order to directly propose amendments or revisions
-Requires vote of all its members

2.

Constitutional convention
-a separate body the members of which are elected
Article XVII Sec. 3- The Congress may, by a vote of 2/3 of all its
Members, call a constitutional convention, or by a majority vote of all its
Members, submit to the electorate the calling of such convention
2 ways:

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

*REQ: A petition signed by at least 12% of the total number of


registered voters therein of which every legislative district must be
represented by at least 3% of registered voters therein.
Q. Is the provision on peoples initiative (Art XVII, Sec. 2) self
executing?
No. Note the second sentence says- The Congress shall provide
for the implementation of the exercise of this right. Thus Congress
should enact a law implementing this provision.

Q. Has Congress enacted such law?


A. Yes. Congress enacted a law RA 6735: Initiative and Referendum
Act.
3 SYSTEMS OF INITIATIVE:
1. Initiative on the Constitution
2. Initiative on Statutes
3. Initiative on Local Legislation
SANTIAGO VS. COMELEC (re: Initiative on the Constitution)
*The right of the people to directly propose amendments to the Constitution
through the system of initiative would remain entombed in the cold niche of
the Constitution until Congress provides for its implementation.
*RA 6735 miserably failed to satisfy the requirements in subordinate
legislation in so far as initiative to propose amendments to the Constitution is
concerned.

*If Congress intended to fully provide for the implementation of the initiative
on amendments to the Constitution, it could have provided for a subtitle
therefore, considering that in the order of things, the primacy of interest, or
hierarchy of values, the right of the people to directly propose amendments
to the Constitution is far more important than the initiative on national and
local laws.

Q. Ethical basis?

*SC declared RA 6735 inadequate to cover the system of initiative on


amendments to the Constitution and have failed to provide a sufficient
standard for subordinate legislation (there is undue delegation of power to
Comelec). To this extent, RA 6735 is unconstitutional.

A. Yes. We are bound by the DOCTRINE OF SOVEREIGN EQUALITY. All


states are sovereign equals. An equal may not assume jurisdiction over
another equal. Otherwise it will unduly vex the peace of nations. This is
another generally accepted principle of international law as expressed in the
Latin maxim par in parem non habet imperium.

*Article XVII, Sec. 2 remains non self executing.


*Peoples Initiative on the Constitution is limited only to proposing
amendments not revisions.
RATIFICATION

A. There can be no legal right against the authority which makes the law on
which the right depends. (Justice Holmes)
Q. Does the Doctrine of State Immunity form Suit apply also to foreign
agreements?

Q. Can you sue the State?


A. A State may not be sued without its consent. Hence, you can actually sue
the State, for as long as the State gives its consent.

*Any proposed change must be submitted to the people in a plebiscite not a


referendum.

Q. How does a State waive its immunity from suit?

*Article XVII, Sec. 4- Any amendment to or revision of this Constitution


under Sec. 1 hereof (Con Ass) shall be valid when ratified by a majority of
the votes cast in a plebiscite which shall be held not earlier than 60 days not
later than 90 days after the approval of such amendment or revision.

EXPRESSLY: Through the enactment by Congress of a general law or


special law.

Any amendment under Sec. 2 hereof (Con Com) shall be valid when ratified
by a majority of the votes cast in a plebiscite which shall be held not earlier
than 60 days nor later than 90 days after the certification by the Comelec of
the sufficiency of the petition.

A. No. A mere lawyer of the government cannot validly waive immunity from
suit. Only the Congress can. (Republic vs. Purisima)

CHA-CHA NOT ALLOWED

1. GENERAL LAW

*Article XVII, Sec. 2 remains to be non self executing. The implementing law
was declared unconstitutional. (Santiago vs. Comelec)

Ex. Act No. 3083- applies to any money claims arising from contracts with
the government whether express or implied.

*Peoples initiative is limited only to amendments.

Article XVI, Sec. 3- The State may not be sued without its consent.

-must be correlated with COMMONWEALTH ACT 387 as amended by PD


1445 or the GENERAL AUDITING LAW- any money claim arising from
contract with the government whether expressed or implied must first be
presented to COA and only when COA refuses payment that a party can
sue.

Q. What if the Constitution does not provide for state immunity?

Q. Where?

A. Through the DOCTRINE OF INCORPORATION (Article II, Sec. 2), the


Philippines have adopted the generally accepted principles of international
law as part of the law of the land. State immunity from suit is a generally
accepted principle of international law. Hence we are bound by it.

A. SC. Decisions of COA are reviewable by SC via petition for certiorari.


(DAR vs. NLRC, J. Vitug)

DOCTRINE OF STATE IMMUNITY FROM SUIT

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

A. Either EXPRESSLY or IMPLIEDLY.

Q. May the Solgen validly waive immunity from suit?

*Waiver of immunity constitutes a derogation of sovereignty. Hence, it is


always construed strictly or strictissimi juris.

Q. A contract was entered into with DPWH for the construction of roads.
When the roads were finished, the contractor was not paid. Contractor sued
the government before the RTC. Will the suit prosper?
A. No. It will be dismissed for lack of cause of action. He failed to exhaust all
administrative remedies provided for by law under CA 327 as amended by
PD 1445.
2. SPECIAL LAWS
Ex. Article 2180, NCC- The State is responsible xxx when it acts though a
special agent xxx.
Ex. Article 2189, NCC- Provinces, cities and municipalities shall be liable for
damages for the death of, or injuries suffered by any person by reason of the
defective condition of roads, streets, bridges, public buildings, and other
public works under their control or supervision.
TEOTICO VS. CITY OF MANILA
*City of Manila contends that it cannot be held liable under its charter.
*SC held that the provision in the charter is a general provision in a special
law. On the other hand, Article 2189 is a special provision found in a general
law. A special provision found in a general law prevails over the general
provision found in the charter of the City of Manila. City of Manila is liable.
KILATKO VS. CITY OF DAGUPAN
*City of Dagupan contended that the manhole is found in the national road.
*SC held that the ownership of the road is immaterial. Even if it is a national
road, the LGU is liable. Article 2189 merely requires supervision over the
maintenance of the national road. City of Dagupan has supervision. Hence,
liable.
Ex. Sec. 24, Local Government Code- Liability for Damages- Local
government units and their officials are not exempt from liability for death or
injury to persons or damage to property.
Ex. Charters of GOCC- GSIS, DBP, LBP
*Charter-special law creating GOCC
*The provision in the charter on whether it may sue or be sued is an express
waiver by special law.
IMPLIEDLY-2 ways:
1.

When the State itself commences litigation, thereby opening itself


to counterclaim.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Ex. Government sued A and A filed an answer with a counterclaim. The


government cannot ask for the dismissal of the counterclaim on the
ground of state immunity from suit. Otherwise, it would be the height of
injustice.
2.

When the State enters into a contract with private party.


*Here, the government is deemed to have gone down into the level of a
private entity; there is parity now with the contracting parties; therefore,
it is deemed to have waived its immunity from suit.
*This rule used to be absolute. (US vs. Lyons)
*However, this rule is no longer absoluteUS VS. RUIZ
*This involved the construction of wharves in Subic Bay at the time
Subic was still under the US pursuant to a treaty. Contractor was not
paid so he sued the Subic Naval Authorities. Subic Naval Authorities
moved to dismiss invoking State Immunity from Suit. On the other hand,
the contractor contends that the State entered into a contract (relying on
the old rule).
SC: The traditional rule of immunity exempts a state from being sued in
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, rules of international law are not petrified; they are
constantly developing and evolving. And because the activities of the
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 US, UK and other
states in Western Europe.
*A state may be said to have descended to the level of an individual and
thus deemed to have tacitly given its consent to be sued only when it
enters into business contracts.
*The purpose of the wharves is the defense of US troops and of the
Philippines. Defense of the state is of the highest order and hence, is
jure imperii.
*Case was dismissed because there was no waiver.
*Not all contracts are deemed to be a waiver of state immunity; must
distinguish between:

ACTA JURE IMPERII: contracts entered into by the government in its


sovereign capacity; no waiver of state immunity from suit.
ACTA JURE GESTIONIS: contracts entered into by the government in
its commercial and proprietary capacity; there is waiver of state
immunity from suit. (Restrictive Doctrine of State Immunity from Suit)
Q. In the Ruiz case, can the contractor invoke Act No. 3083?
A. No. Because Act No. 3083 waives the immunity of the Philippine
government only; not of other governments.
Q. What is the remedy of the contractor?
A. Under international law, he will have to convince his state through the
assistance of the Department of Foreign Affairs to take his case up with the
other state.
Q. Raintree contracted with the Armed Forces of the Philippines for the
supply of ponchos to be used by the soldiers. Raintree was not paid. Can
Raintree sue?
A. Yes, under Act No. 3083. This is a money claim arising from contract.
There is no need to invoke implied waiver, since there is already an express
waiver.
US VS. GUINTO
A Filipino cook in a restaurant inside Camp John Hay poured urine into the
soup stock used in cooking the vegetables served to the customers. He was
dismissed. He filed a complaint for damages against the US Air Force
Recreation Center at Camp John Hay who operates the restaurant. The
latter invoked the Doctrine of Immunity from Suit and moved to dismiss.
SC: The restaurant services offered partake of the nature of a business
enterprise undertaken by the US government in its proprietary capacity.
Such services are not extended to the American servicemen for free as a
perquisite of membership in the Armed Forces of the US. Neither does it
appear that they are exclusively offered to these servicemen; on the
contrary, it is well known that they are available to the general public as well,
including the tourists in Baguio City, many of whom make it a point to visit
John Hay for this reason. All persons availing themselves of this facility pay
for the privilege like all other customers in ordinary restaurants. Although the
prices are concededly reasonable and relatively low, such services are
undoubtedly operated for profit as a commercial and not a governmental
activity.
*The case was remanded to the Labor arbiter. There is waiver of immunity.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

SUABILITY VS. LIABILITY


*The circumstance that a state is suable does not necessarily mean that it is
liable. A state can never be held liable if it does not first consent to be sued.
SUABILITY is just a matter of a state giving its consent to be sued.
LIABILITY is a matter of applicable law and circumstance of the case.
Liability is not conceded by the mere fact that the state has allowed itself to
be sued. When the state does waive its sovereign immunity, it is only giving
the plaintiff the chance to prove, if it can, that the defendant is liable.
*Waiver merely gives the claimant the opportunity to prove that the state is
liable.
MUNICIPALITY OF SAN FERNANDO LA UNION VS. JUDGE FIRME
San Fernando owned a dump truck being driven by its official driver, while
hauling gravel, it collided with a jeep, killing the latters passenger. The heirs
sued the municipality for damages. The municipality moved to dismiss on
the ground of immunity of state from suit. Without resolving the motion,
Judge Firme proceeded to resolve the case and held the municipality liable
since its charter expressly provides that it may sue and be sued.
SC: Suability is not the same as liability. Municipality can invoke defensesthat at the time the accident happened, it was engaged in the performance
of governmental function (repair of municipal roads). This is a case of
DAMNUM ABSQUE INJURIA (Damage without injury).
Q. What if the dump truck was then hauling lumber for the repair of a public
market instead of gravel for the repair of municipal road?
A. The operation of a public market is a proprietary function. It is classified
as a business enterprise of the local government. Hence, the municipal
government would then be in the performance of a proprietary function. As
such, it would not be a valid defense to liability.
TORIO VS. FONTANILLA
*The holding of a town fiesta even if the purpose is to commemorate a
religious or historical event of the town is in essence an act for the special
benefit of the community and not for the general welfare of the public
performed in pursuance of a policy of the state. xxx It is a proprietary activity.
Thus, the municipality may be held liable.
EXECUTION OF JUDGEMENT
Q. Assume that you are allowed by the State to sue. After trial, judgement
was rendered in your favor, holding the State liable. Judgement thereafter
attained finality. Can you garnish or levy government funds to execute the
judgement?

A. No. It will paralyze the operations of the government. Waiver extends only
up to the rendition of judgement. Execution requires another waiver. The
disbursement of public funds requires an appropriate appropriation law.
Q. Remedy?
A. To make representation with the proper legislative authority for the
enactment of an appropriation law necessary to satisfy the judgement.

*The official was charged in his official capacity in the performance of official
duties. In this case, the official was acting only as an agent of the State.
*However, this rule does not apply if:
(1) Acts were unlawful or illegal;
(2) Acts were done in a personal capacity

Q. What if the legislative authority refuses to enact the law?

REPUBLIC VS. SANDOVAL

A. Go to the courts and ask for MANDAMUS to compel the legislative


authority to enact the required law. True, the duty to appropriate is
discretionary. The exception however, as in this case, is when there is
already a money judgement against the government, the discretionary duty
becomes ministerial. The state must be the first to respect and obey the
decisions of the Courts. (Municipality of Makati vs. IAC)

*This case does not qualify as a suit against the State. xxx 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 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 BP 180 as there was
unnecessary firing by them in dispersing the marchers.

SUITS AGAINST GOVERNMENT AGENCIES AND INSTRUMENTALITIES


Distinguish:
1.

INCORPORATED AGENCIES: These are agencies with separate


charters creating them.
-

They have personality separate and distinct from the Philippine


government.

The test of suability will depend whether or not its charter allows it
to sue and be sued.

Ex. SSS, GSIS, PCSO, Phil. Postal Corporation


2.

UNINCORPORATED AGENCIES: These agencies have no charter.


-

They do not have separate personality. A suit against them is really


a suit against the government. Test of suability depends upon
whether or not it is performing a governmental or proprietary
function.

SUIT AGAINST PUBLIC OFFICIALS

EXCEPTIONAL CASES: The doctrine of State Immunity from Suit cannot


serve as an instance to perpetuate injustice on a citizen.
*However, this should not be invoked indiscriminately because the
circumstances obtaining in the following cases are peculiar.
AMIGABLE VS. CUENCA
*Amigable owned a lot in Cebu City. There is no annotation in favor of the
government in the TCT. Then without prior appropriation or negotiated sale,
the government used a portion of the said lot for the construction of roads.
Amigable then filed a complaint against the Republic, and Cuenca, in the
latters capacity as Commissioner of Public Highways.
SC: Where the government takes away property from a private landowner
for public use without going through the legal process of expropriation or
negotiated sale. The aggrieved party may properly maintain a suit against
the government without thereby violating the doctrine of governmental
immunity from suit without its consent.

Q. When do you consider a suit against public officials as a suit against the
state itself?

REASON-MINISTERIO VS. CFI OF CEBU

A. The suit must be regarded as one against the State where the satisfaction
of judgement against the public official concerned will require the State itself
to perform a positive act such as appropriation of the amount necessary to
pay the damages awarded to the plaintiff. (LANSANG VS. GARCIA)

*The doctrine of governmental immunity from suit cannot serve as an


instrument of perpetration of injustice on a citizen. Had the government
followed the procedure indicated by the governing law (Rule 87) at the time,
a complaint would not have been filed by it and only upon payment of
compensation fixed by the judgement or after tender of the party entitled to
such payment of the amount fixed. May it have the right to enter in and

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

10

upon the land so condemned, to appropriate the same to the public use
defined in the judgement.
*Actually, in Amigable and Ministerio cases there is an implied waiver. This
implied waiver lies in the failure to commence the proper action. The action
filed by the petitioners amount to a counterclaim, had the government fled
the proper action. It only became a petition because the government did not
follow the legal procedure.
CITIZENSHIP
(ARTICLE IV, 1987 CONSTITUTION)
The following are the citizens of the Philippines (Sec. 1)
1. Those who are citizens of the Philippines at the time of the adoption
of the 1987 Constitution.
2. Those whose fathers or mothers are citizens of the Philippines.
3. Those born before 17 January 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority
4. Those who are naturalized in accordance with law
1. Those who are citizens of the Philippines at the time of the adoption
of the 1987 Constitution.
Q. When was the 1987 Constitution adopted?
A. 02 Feb. 1987- at the time of the plebiscite
*Not 11 Feb. 1987=When Pres. Aquino declared its ratification.
2. Those whose fathers or mothers are citizens of the Philippines.
* Note that the provision says OR- not and. This means that as long as 1
of your parents is a Filipino, you are a Filipino.
*This is in accordance with our adherence to the principle of jus sanguinis.
*This results in complications when the country where you are born applies
the principle of jus soli.
*Complications arise with respect to the matter of dual allegiance. (See Sec.
5)
VALLES VS. COMELEC (337 SCRA 543, 09 Aug. 2000)
*Rosalind Lopez was born in 1934, in Australia to a Filipino-father, who was
born in 1879, and an Australian-mother. When she came to the Philippines,
she was holding an Australian passport and was registered as an alien in the
BID. Then, Rosalind ran for governor.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

SC: Rosalind is a Filipino citizen. (1) Her father is a Filipino- Her father is a
Spanish subject. In 1898, when the Spanish ceded the Philippines to the US,
under the Jones Law and the Philippine Bill of 01 July 1902, all inhabitants of
the Philippines who were Spanish subjects are deemed to be Philippine
citizens. [This is the first time that there came to be Filipino citizens. It was
an en masse citizenship because of a change of sovereignty].
(2) Rosalind is a Filipino- Philippine law on citizenship adheres to the
principle of jus sanguinis, where a child follows the nationality of the parents
regardless of the place of his/her birth. Hence, Rosalinds father is a Filipino,
she is a Filipina. Her being born in Australia is not tantamount to her losing
her Philippine citizenship. Even if Australia follows jus soli, it only results to
her possessing dual citizenship.
(3) Effect of holding an Australian passport- mere holding of an Australian
passport does not mean renunciation of Philippine citizenship. In order to
lose Philippine citizenship by renunciation, such renunciation must be
expressthe person renouncing must perform a positive act. (See Mercado
vs. Manzano and Aznar vs. Comelec)
3. Those born before 17 January 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority
3 Requisites for the application of this provision:
(1) They were born before 17 Jan. 1973.
(2) Their mother is a Filipino.
(3) They elect Philippine citizenship upon reaching the age of
majority.
History of the provision:
- Under the 1935 Constitution, legitimate minor children follow the
citizenship of their father. Thus one with an alien father and a
Filipina, mother, would, during minority, be an alien. Hence, he is
given, upon reaching the age of majority, the option to elect.
- Note that this is the reason why the provision applies only to those
born of Filipino mothers.
- One with a Filipino-father and an alien mother would still be a
Filipino, since he follows his fathers citizenship.
*These are Natural-Born Citizens (See Sec. 2)
Q: When Should Election Be Made
A: Reasonable Time from Reaching Age of MajorityRE: Application for
Admission to the Philippine Bar, Vicente D. Ching (Bar Matter No. 914, 01
Oct.1999)

11

*Ching was born in 1964, of Chinese father and Filipina mother. Ching now
seeks to elect Philippine citizenship so he can be admitted to the Philippine
Bar.
SC: The 1935 Constitution only states that Philippine citizenship should be
chosen upon age of majority. CA 625 states the child should be given a
reasonable time to elect Philippine citizenship. This reasonable time has
been construed to be 3 years upon reaching the age of majority.
Here, Ching seeks to elect only 14 years after reaching the age
majority. This is way beyond the contemplated period for electing Philippine
citizenship. One who is privileged to elect Philippine citizenship has only an
inchoate right to such citizenshipas such, he should avail of the right with
fervor, enthusiasm and promptitude.
4. Those who are naturalized in accordance with law
TECSON VS. COMELEC
*FPJ was born in 1939, of a Filipino father and an American mother. His
parents got married only in 1940.
SC: FPJ is an illegitimate child because his parents got married only after his
birth. However, the 1935 Constitution states that those whose fathers are
citizens of the Philippines acquire Philippine citizenship. Thus, it did not
distinguish whether the child is legitimate or illegitimate.
The rule is different when it is the mother who is a Filipino. Here, if
the child is legitimatehe can elect Philippine citizenship upon reaching the
age of majority. If he is illegitimate, he will follow the mothers citizenship.
The reason for this rule is to ensure Filipino nationality of the child so as not
to prejudice. Normally, since he is illegitimate, the mother would have
custody and have parental authority.

BENGSON III VS. HRET (GR 142840, 07 May 2001)


Cruz lost his Philippine citizenship when he rendered service in the US
Armed Forces, but re-acquired it through repatriation under RA 2630. He
then ran, and won, as Congressman. His qualification was questioned on the
ground that he is not a natural-born citizen.
SC: He is a natural-born citizen. (1) Effect of RepatriationRepatriation
results in the recovery of the original nationality. Thus, a naturalized Filipino
who lost his citizenship will be restored to his prior status as a naturalized
Filipino. On the other hand, if he was originally a natural-born citizen before
he lost his citizenship, he will be restored to this former status as a naturalborn Filipino.
(2) Kinds of Citizens under the ConstitutionThere are only 2 classes of
citizens under the Constitution(a) natural-born and (b) naturalized in
accordance with law. A citizen who is not a naturalized Filipinoone who
did not undergo the process of naturalizationis a natural-born Filipino.
Noteworthy is the absence in the enumeration of a separate category for
persons who, after losing Philippine citizenship, subsequently reacquires it.
This is because such whether such persons are natural-born or naturalized
depends on the reasons for the loss of their citizenship and the mode
prescribed by the applicable law for the reacquisition thereof.
Marriage to foreignersArt. IV, 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.
*History of the provision:

*Natural-Born Citizens (Sec. 2)

-This provision was carried over from the 1973 Constitution. In the 1935
Constitution, there is no similar provision. Thus, women were prejudiced
when they marry a foreigner, they lose their Filipino citizenship.

2 Kinds of Natural-Born Citizens:

Ex. Biel vs. Director of Public Schools

1. Those who are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine citizenship.

-A public School teacher was removed from her position because she
married her Chinese lover.

2. Those who elect Philippine citizenship in accordance with par (3), Sec. 1
- In this case, the person has to perform an act to perfect his Philippine
citizenship.
st

-Thus, this constitutes an exception to the 1 kind of Natural-Born Citizens.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

-However, if the woman just maintains a live-in relationship with a foreigner,


she does not lose her Philippine citizenshipthere is no marriage.
-Thus, they are better situated than those who contracted marriage with
foreigners.--> Absurd!

12

*In relation to Sec. 1 (3)


-Under the 1935 Constitution, the children of a Filipina-mother and an alienfather who had a common law relationship are Philippine citizens.

(3.) Service in the US Armed Forces (RA 2630) *See Bengzon III
vs. HRET
(4.) Marriage of Filipino woman to an alien, political or economic necessity
(RA 8171)

-No need to elect.


Q. Why?
A. Being illegitimate children, they follow the citizenship of their
mothers, who remain to be Filipinos since they are not married to aliens.

Naturalization vs. Repatriation

1. As to Nature

-This is another absurdity.


Thus:

-Filipina loses Philippine citizenship.

2. In 1975, Filipina married a foreigner

Repatriation

-A mode of acquisition and


reacquisition of Philippine
citizenship.

-A mode of re-acquisition
of Philippine citizenship.

*As a mode of acquisitionCA 473 governs

1. In 1970, Filipina married a foreigner

-The 1935 Constitution had no provision similar to Art. IV, Sec. 4

Naturalization

2. As to process

*As a mode of reacquisition- CA 63 governs.


-Very cumbersome
tedious.

and

-Simpler process

-Filipina retains Philippine citizenship.


-The 1973 Constitution had a provision similar to Art. IV, Sec. 4.
Modes to Acquire Philippine Citizenship:

3. Direct Act of Congress


*Dual AllegianceArt. IV, Sec. 5

1. Birth
2. Naturalization

*Dual allegiance of citizens is inimical to the national interest and shall be


dealt with in accordance with law.

Loss and Re-Acquisition of Philippine Citizenship

Q. Is this provision self executing?

-Art. IV, Sec. 3Philippine citizenship may be lost or reacquired in the


manner provided by law.

A. No. It says shall be dealt with by law. It means a future law.

Ways by which Philippine Citizenship may be Re-Acquired:


Naturalization, Repatriation, and by Direct Act of Congress

Q. Is there now a law that prohibits dual allegiance?


A. Yes. RA 7160, Sec. 40 (d) (Local Government Code)

1. Naturalization
2. Repatriation
*Process is simplerequires only:

The following are disqualified from running for any elective local position:
xxx

1. Take oath of allegiance


2. Registration with the Civil Registry
*Available when the loss of citizenship is due to:

MERCADO VS. MANZANO (307 SCRA 630, 26 May 1999)

(1.) Desertion of the Armed Forces (CA 63)


(2.) Service in the Armed Forces of Allied Forces during WW 2 (RA
965)

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

(d) Those with dual citizenship (See Mercado vs. Manzano)

*Edu Manzano was born in the US, of Filipino parents. In 1998 he ran for
vice-mayor of Makati. His qualification was challenged. Note that RA 7160,
Sec. 40 (d) disqualifies those with dual citizenship from running for local
elective office.

13

SC: He is qualified to run. (1) Manzano has dual citizenshipsince his


parents are Filipinos, he is a Filipino; since he was born in the US, he is also
a US citizen. Thus, he has dual citizenship.
(2) Dual Allegiance is Prohibited, Not Dual Citizenshipwhat is prohibited by
the Constitution is dual allegiance, not dual citizenship. The concern of the
Constitutional Commission was not with dual citizens per se, but with
naturalized citizens who maintain their allegiance to their countries of origin
even after their naturalization. Hence, the phrase dual citizenship in RA
7160, Sec. 40 (d) must be understood as referring to dual allegiance.
Hence, persons with mere dual citizenship do not fall under the
disqualification.
Situations Where Dual Citizenship Arises:
a. Those born of Filipino fathers and/or mothers in foreign countries
which follow the principle of jus soli.
b. 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.
c. Those who marry aliens if by the laws of the latters country the
former are considered citizens, unless by their act or omission they are
deemed to have renounced their Philippine citizenship.
Dual Allegiance vs. Dual Citizenship

1. As to how it results

Dual Allegiance

Dual Citizenship

-A situation where a
person simultaneously
owes, by some positive
act, loyalty to 2 or more
states.

-Arises when, due to


the
concurrent
application
of
the
different laws of 2 or
more states, a person
is
simultaneously
considered a national
by said states.

2. As to voluntariness
-Voluntary.

Involuntary.

RA 9225Dual Citizenship Law (Citizenship Retention and ReAcquisition Act of 2003)

Effect of Re-Acquisition on Civil and Political Rights- the following


rights can be exercised, subject to certain conditions:
1. Right to vote- RA 9225 Sec. 5 (1) - must meet requirements of Sec. 1,
Art. V and of RA 9189 (Overseas Absentee Voting Act of 2003)
2. Elective Public Office RA 9225 Sec. 5 (2) must renounce foreign
citizenship before any public officer authorized to administer oath.
-Done at the time of the filing of the certificate of candidacy.
-Thus, he will lose his dual citizenship- will have just 1 citizenship.
3. Appointive Public Office RA 9225 Sec. 5 (3) must also renounce.
4. Practice of Profession subject to guidelines of proper regulatory
agency.
nd

- Art. 12, Sec. 14, 2 par., 1987 Constitution- The practice of all professions
in the Philippines shall be limited to Filipino citizens, save in cases
prescribed by law.
Q. X was born in the USA on Jan. 10, 1973, of a Filipino mother and
American father. He studied and worked in the Philippines. Can he run for
Mayor?
A. (1) Under the 1935 Constitution, which was governing at the time of Xs
birth, he should elect Philippine citizenship upon reaching the age of
majority.
(2) Under RA 9225, he is also a dual citizenhence, he should first
renounce his American citizenship.
*Res Judicata in Citizenship Cases
GR: No res judicata in cases of citizenship.
EXCEPTION: Burca vs. Republic (51 SCRA 248, 1973)
When the following requisites concur:
1. When the persons citizenship is raised as a material issue in a
controversy where said person is a party;
2. When the Solicitor General or his authorized representative took active
part in the resolution thereof; and
3. When the finding on citizenship is affirmed by the SC.

RULE: Natural-born Filipinos who lost their Philippine citizenship by


naturalization as citizens of a foreign country shall re-acquire/retain their
Philippine citizenship upon taking the Oath of Allegiance. (Sec. 3, RA 9225)

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

14

STRUCTURE OF GOVERNMENT

This is also called the POWER OF JUDICIAL REVIEW

3 Parts of a Written Constitution:

The legislative and the executive branches are called the


POLITICAL BRANCHES.

(1) Constitution of sovereignty This refers to thee provisions pointing out


the modes or procedure in accordance with which Formal changes in the
constitution may be made.
Ex:

Article XVIII Amendments or Revisions

(2) Constitution of Liberty the series of prescriptions setting forth the


fundamental civil and political rights of the citizens and imposing limitations
on the power of the government as a means of securing the enjoyment of
those rights.
Ex:

Article III Bill or Rights

(3) Constitution of Government provides for a structure and system of


government; refers to the provisions outlining the organization of the
Government, enumerating its powers, laying down certain rules relative to its
administration and defining the electorate.
Ex:

Article VI Legislative Department


Article VII Executive Department
Article VIII Judicial Department
Article IX Constitutional Commissions

Corollary to the principle of separation of powers:


Principles of checks and balances - Each branch of the government is a
check of the others so that power will not be concentrated which might lead
to abuse and irreparable damage.
This allows 1 department to resist encroachments upon its prerogatives or to
rectify mistakes or excesses committed by the other departments.
Ex: veto power of the President.
Principle of non-delegation of Powers
GR Potesta delegata non potest delegari Power delegated may no
longer be delegated.
XPNs: Instances of permissible delegation PETAL

Doctrine of Separation of Powers in a presidential type of government

Delegation to the People under the systems of initiative and referendum


(plebiscite, Art. VI, Sec 1)
Delegation to the President of Emergency powers (Art VI, Sec 23)
Delegation to the President of Tariff powers (Art VI, Sec 28[2])
Delegation to Administrative Bodies
Delegation to Local governments (Art. X)

The 3 great powers are distributed among the 3 great branches of


government:

NOTE: There must


Law/Constitution)

Legislative power Legislative branch / Congress

Q. What are the requisites before emergency powers may be delegated to


the President?

Article VI, Sec 1 The legislative power shall be vested in the


congress of the Philippines
This is also called the POWER OF THE PURSE.
Executive power Executive branch / President
Article VII, Sec 1 The executive power shall be vested in the
President of the Philippines
This also called the POWER OF THE SWORD
Judicial power Judiciary / Supreme Court
Article VIII, Sec 1 The judicial power shall be vested in one
Supreme Court and in such lower courts as may be established by
law.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

always

be

an

EXPRESS

delegation!

(by

A. Under Article VI. Section 23. there are four:


There must be a war or other national emergency.
The delegation shall be for a limited period only
The delegation must be pursuant to a declared national policy
The delegation is subject to such restrictions and limitations as Congress
may prescribe.
The power is delegated from the Congress to the President (David vs
Arroyo)
Q. What is meant by delegation to administrative bodies?

15

A. It is the delegation of quasi-legislative powers to administrative


agencies.

refers to the rule making power or power of subordinate legislation or power


to promulgate rules and regulations to implement a given law/legislative
policy.
Operative word, or meant equivalent terms
The power to ENACT laws still belongs to Congress.
Tests of valid delegation vs. abdication of power
Undue delegation to the delegate
Completeness Test - The law delegating the power must be complete in
itself in the sense that the body on whom the power is delegated must have
no discretion to exercise the power but to enforce it.

The standards need not be found in the law delegating the power. Instead,
standards may be found in other laws what is important is that the
standards are determinate or at least determinable (Chong Bian vs Ci-Bos)
If the delegation meets the tests, it is valid.
What is prohibited is undue delegation or a delegation running riot.
If there is undue delegation, it is no longer delegation of power but
abdication of power in favor of the delegate, which violates the doctrine of
separation of powers.
Ratio: You cannot expect the Congress to anticipate all.

Article VI LEGISLATIVE DEPARTM ENT


Legislative Power

The law must be complete in all its terms and conditions, such that
there is nothing more to be done by the body but to enforce it.

Article VI, Sec 1: The legislative power shall be vested in the congress of
the Philippines, which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the people by the
provisions on initiative and referendum.

The law must set forth the policy to be executed, carried out or
implemented by the delegate.

Q. What power is vested in Congress?

The delegate must not be authorized to fill in the gaps.


Sufficiency of Standards Test - The law must provide for standards that
are determinate or at least determinate, which will define the limits of a
delegates authority.
The standard will guide the delegate in the exercise of the
delegated power which standards must be determinate/determinable.
Q. What is a sufficient standard?
A. It is one that defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it.
Ex: (1) Power to organize agencies was delegated to the President
Standard: to streamline the bureaucracy for economy and
sufficiency.
(2) Power to issue franchises delegated to LTFRB
Standard: For public convenience and security

A. Legislative Power under Article VI, Sec. 1 (The Power of the Purse).
Q. Is legislative power exclusively vested in Congress?
A. NO. Unlike in the 1935 constitution where the legislative power is
exclusively vested in Congress, under the 1987 constitution, there is a
reservation made to the people (initiative and referendum). (Art VI, Sec1).
The legislative power is not exclusively vested in Congress! It is vested
in:
Congress made up of 2 houses:
Senate
House of Representatives
(We have a Bicameral Congress)
The houses are co-equal bodies; hence the terms upper house and lower
house are inaccurate!
Bicameral Conference Committee
See Phil. Judges Association vs. Hon. Prado, and
Tolentino vs. Secretary of Finance.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

16

to the extent reserved to the People by initiative and referendum

(2) When the president vetoes a bill, that bill doesnt become a law.(3) When
he calls for a special session

Article VI, Sec. 32 The Congress shall, as early as possible, provide for a
system of initiative and referendum, and the exceptions there from.

Art VI. Sec 15 The president may call a special session at any time

This is not self-executing.

In effect, he will initiate the process

Q. Has the Congress enacted a Law?

When the president certifies as the urgency of the bill to meet a public
calamity or emergency.

A. YES. R.A. 6735 (Initiative and Referendum Law) is the implementing


provision of Sec 1 Art VI, 1987 Constitution.3 kinds of Initiative under RA
6735:1. Initiative on the Constitution1.
declared
unconstitutional
(Santiago
vs.
COMELEC)
2. Initiative on Statutes
Implemented Article VI. Sec 1
* - Refers to petitions proposing to enact a national legislation
- Valid
3. Initiative on Local Legislation
refers to petitions proposing to enact, amend, or repeal local ordinances.
Valid.
Bar Q: What is initiative? What is Referendum?
A: Initiative is the power of the people to propose amendments to the
Constitution on to propose and enact legislations through an election for the
purpose (Sec 3(a), RA6735).
Referendum is the power of the electorate to approve or reject a legislation
through an election called for the purpose (Sec. 3, RA6735).
Q: May the President enact laws?
A: NO. Legislative power is vested in Congress. Legislative power includes
the power to ENACT, AMEND, or REPEAL. The power vested on the
President is the EXECTIVE POWER or the power to IMPLEMENT laws.

Art VI, sec 26 (2) No bill passed by either house shall become a law unless
it has passed three (3) readings on separate days x x x except when the
president certifies as to the necessity of its immediate enactment to meet a
public calamity or emergency.
The president hastens the process by dispensing with 3 separate readings
on 3 separate days rule.
(4)
When the president signs a bill that becomes a law
Art VI, sec 27 Every bill passed by Congress shall before it becomes a
law, be presented to the president. If he approves the same, he shall sign
it
The president performs the last operative act for a bill to become a law.
When the president prepares a budget which is the basis of the GENERAL
APPROPRIATIONS ACT.
Art VII, Sec 22 The president shall submit to the congress x x x as basis
of the general appropriations bill a budget for expenditures and sources of
financing, including receipts from existing and proposed revenue measures.
NON-LEGISLATIVE POWERS OF CONGRESS (9): [IBAWI PA CE]
(1) Investigative power / power to conduct investigation (inquiries in
aid of legislation)

PRESIDENTS PARTICIPATION IN THE LAW-MAKING PROCESS


Q: Does the President have any participation in the Law-making process?
A: Yes, in the following instances: [SBUVS]
(1) When he exercises his veto power
Article VI, Sec 27. Every bill passed by 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

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Art VI, Sec 21 The senate or the house of representatives or any of its
respective committees may conduct inquiries in aid of legislation or in
accordance with its duly published rules of procedure
(2) Power to declare the existence of a state of War
Art VI, Sec 23 The congress by a vote of 2/3 of both houses in joint
session assembled, voting separately, shall have the sole power to declare
the existence of a state of war. [*then based on such declaration, delegate
emergency powers to the President](3) Power to confirm a presidential
appointments [through commission on Appointments]

17

Art VII, Sec 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.
(4) Power to punish for contempt
- Incidental to the power to conduct inquiries in aid of legislations.
(5) Power to impeach and to try cases of impeachment
As a prosecutorial body: Art XI, Sec 3(1) The House of Representatives
shall have the exclusive power to initiate all cases of impeachment.
As an impeachment Court: Art XI, Sec 3(6) The senate shall have the
sole power to try and decide all cases of impeachment x x x
(6) Power to judge election contests involving their members through
the Electoral tribunal
Art VI, Sec 17 The senate and House of Representatives shall each have
electoral tribunals which is the sole judge of all contests relating to the
election returns and qualifications of their respective members x x x

Term limit: 2 Consecutive terms


(b) House of Representatives
Term: 3 years
Term limit: 3 consecutive terms
Art VI, Sec 5(1) The HOR shall be composed of not more than
250 members, unless otherwise fixed by law, who shall be elected
from legislative districts apportioned among the provinces, cities,
and the metropolitan manila area x x x
This provision is already Functus Officio!
Congress has the power to reapportion district every census, under
Art VI, Sec 5(4)
Within 3 years following the term of every census, the congress shall make a
re-apportionment of legislative districts based on the standards provided in
this section.
Qualifications: (
Senator

Representative

(1) Citizenship

Natural born

Art VIII, Sec 19(2) He shall have the power to grant amnesty with the
concurrence of a majority of all the members of the Congress

(2) LIteracy

Able to read and write

(3) Voter

Registered voter

(8) Power to propose amendments to, or revisions of the constitution,


when acting as constituent assembly

(4) Age

35 years of age
on the day of
election

25 years of age on the day of


election

(5) Residence

2 years residence

1 year in the
representing.

(6) Term

6
years,
2
consecutive termlimit

3 years; 3 consecutive term-limit.

(7) Power to concur in Amnesty Proclamation

Art XVII, Sec 1(2) Any amendment to, or revision of, this constitution may
be done by: (1) The congress, upon a vote of of all its members; x x x(9)
Power to act as board of canvassers in presidential and vicepresidential elections.
Art VII, Sec 4(4) Upon receipt of the certificates of canvass, the president
of the Philippines shall, not later than 30 days after the day of the election,
open al certificates in the presence of the Senate of the House of
Representatives in joint and public session, and the Congress, upon
determination of the authenticity and due execution thereof in the manner
provided by law, canvass the votes.
Composition of CONGRESS

district

he

is

MARCOS vs. COMELEC


In her application for candidacy, Imelda wrote 7 months requirement, then
amended it and wrote, Since birth. The SC decided in favor of Imelda. SC:
in political law, residence is considered as domicile.

(a) Senate 24 senators elected at large;


Term: 6 years
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

18

Kinds of Congressmen:
Art VI, Sec 5(1) The HOR shall be composed of not more than 250
members, unless otherwise fixed by law, who shall be elected from
legislative districts x x x and those who, as provided by law, shall be elected
through a party-list system of registered national, regional, and sectoral
parties or organizations.
(1) District representatives
(2) Party-list representatives
this absorbed the sectoral representatives
Art VI, Sec 5(2) x x x for 3 consecutive terms after the ratifications of this
constitution, of the seats allocated to the 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.
[other sectors: fisher folks, elderly, handicapped (Sec 5, RA7941)].
PUF LICE HWY O
Xpn: Religious sector
Party list system
Implemented by RA7941 (Party-list law)
Adopted the German model of the party list system
1998 elections: first time we had party list election
Borrowed concept from parliamentary system
See: Ang bagong-bayani-OFW labor party vs. COMELEC (June 26, 01
En Banc)
Q: What is the nature of the party-list system?
A: The party-list system is a social justice tool designed not only to
give more in life to the great masses of our people who have less in life, but
also to enable them to become veritable (genuine/real) law makers
themselves. It
intends to make the marginalized and underrepresented active participants
in the mainstream of representative democracy.
The party list system is one such tool intended to benefit those who
hae less in life. It gives the great masses of our people the genuine hope
and genuine power. It is a message to the destitute and the prejudiced, and
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

even to those in the underground (e.g. rebels), that change is possible. It is


an invitation for them to come our of their limbo and seize the opportunity.
Q: Is it open to all?
A: No. It is not open to all but only to the marginalized and the
underrepresented
Allowing all individuals and groups, including those which now
dominate district elections, to have the same opportunity to participate in the
party-list elections would desecrate this lofty. Objective and mongrelize the
social justice mechanism into an atrocious veneer for traditional politics
(nose bleed!)
To make it open to all, without qualifications would not only weaken
the electoral chances of the marginalized and the underrepresented it also
prejudices them. To allow the non-marginalized and the overrepresented to
vie under the party list system would not only dilute, but also prejudice the
chance of the marginalized and underrepresented contrary to the laws
intention to enhance it. 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.
Uphold Social Justice principle to give those who have less life, more in
law
Underground group Rebels (p.27 3A notes)
Guidelines for screening party list participants (8)
The political party, sector, organization, or coalition must represent the
marginalized and underrepresented sectors identified in Sec 5, RA7941.
Sec 5, RA7941 x x x the sectors shall include labor, peasant, fisherfolk,
urban poor, indigenous cultural communities, elderly, handicapped, women,
youth, veterans, overseas workers, and professionals.
This enumeration is NOT exlusive
However, it demonstrates the clear intent of the law that NOT all sectors can
be represented under the party-list system.
While political parties may participate in the party-list system, then
must comply with the declared statutory policy of enabling Filipino citizens
belonging to the marginalized and underrepresented sectors x x x to be
enelcted to the HOR.
They must show that they represent the interests of the
marginalized and the underrepresented.

19

Sec 5, RA 7941 Any organized group of persons may regilster as a party,


organization, or coalition for purposes of the party-list system x x x

The party or organization must not be disqualified under sec 6, RA


7941:

Sec 7, Art IX-C, 1987 Const. No votes cast in favor of a political party,
organization, or coalition shall be valid, except for those registered under the
party-list system as provided in this constitution.

Sec 6, RA 7941 Ground for refusal and/or cancellation of registration:


1. It is a religious sector denomination, organization or association,
organized for religious purposes;

Sec 8, Art IX-C, 1987 Const. Political parties or organizations or coalitions


registered under the party list system shall not be represented in the voters
registration boards x x x

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

Sec 5(1), Art VI, 1987 Const. The HOR shall be composed of x x x and
those who x x x shall be elected through a party list system of registered
national, regional, and sectoral parties or organizations.

4. It is receiving support from any foreign govt, foreigh political party,


foundation, organization, whether directly or through any of its officers or
rd
members or indirectly through 3 parties for partisan election purposes.

The religious sector may not be represented in the party-list system or


registered as a political party.

5. It violates or fails to comply with laws, rules or regulations relating to


elections;

Art IX-C Sec 2(5) The COMELEC shall exercise the following powers and
functions x x x (5) Register x x x political parties, organizations x x x religious
denomination shall not be registered.

6. It declares untruthful statements in its petition;

Art VI, Sec 5(2) x x x from the labor, peasant urban poor x x x and such
other sectors as may be provided by law, except religious sector

8. It fails to participate in the last 2 preceding elections, or fails to obtain at


least 2% of the votes cast under the party list system in the 2 preceding
elections for the constituency in which it has registered.

Sec 6(1), RA7941 The COMELEC may x x x refuse or cancel x x x the


registration of any national regional or sectoral party, organization or
coalition on any of the following grounds: (1) If it is a religious sect or
denomination, organization or association organized for religious purposes.

The party must not only comply with the requirements of the law; its
nominees must likewise do so x x x

Ex: El Shaddai cannot register and participate in the party-list system

Sec 9, RA 7941 Qualifications for party list nominees

The prohibition is on any religious organization registering as a political


party. No prohibition against a priest running as a candidate. What is
prohibited is the registration of a religious sect as a political party.

(1) Natural-born citizen of the Philippines

The party or organization must not be an adjunct of, or a project organized


by, or an entity funded or assisted by the government.

(3) Resident of the Philippines for a perioud of not less than 1 year
immediately preceding the day of the electon.

It must be independent of the government

(4) Able to read and write

By the very nature of the party-list system, the party or organization must be
a group of citizens, organized and operated by citizens.

(5) Bona fide member of the party or organization which he seeks to


represent for at least 90 days preceding the day of the election.

The participation of the government or its officials in the affairs of a party-list


candidate is not only illegal and unfair to others, but also deleterious to the
objective of the law.

(6) Not only the candidate party or organization must represent marginalized
and underrepresented sectors; so also must its nominees.

Ex: MAD Mamamayan Ayaw sa Droga

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

3. It is a foreign party or organization;

7. It has ceased to exist for at least 1 year;

The nominee must also be qualified.

(2) Registered voter

(7)The nominee must also represent the marginalized and underrepresented


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 individualist.

20

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 nature of the whole.
4 inviolable parameters to determine the winners in a Party-list election
(As mandated by the Constitution and RA7941)

Bar Question!

See VETERANS FEDERATION PARTY vs. COMELEC (October 6, 2000 En


Banc)
a. The twenty (20%) percent allocation - The combined member of all
party list congressmen shall not exceed 20% of the total membership of the
HOR, including those elected under the party-list.
Art VI, Sec 5(2) The party-list representatives shall constitute 20% of the
total number of representatives including those under the party-list.
b. The two (2%) percent threshold - Only those garnering a minimum of
2% of the total valid votes cast for the party list system are qualified to have
a seat in the HOR.
NOTE: The base is the total votes cast for the party-list and not the total
number of registered voters.
See RA 7941.
c. The three (3) seat limit - Each qualified part, regardless of the number of
votes actually obtained, is entitled to a maximum of 3 seats 1 qualifying
and 2 additional seats.
Rationale: To avoid domination/monopoly will go against the purpose of
the party-list system.
Proportional Representation - The additional seats to which a qualified
party is entitled to shall be computed in proportion to their total number of
votes.

However, votes cast for a notoriously disqualified candidate may be


considered stray and excluded from the canvass.
This does not apply to the party-list elections!
Because of the express rule in Sec 10, RA 7941 x x x that a vote cast for
a party, sectoral organization or coalition not entitled to be voted for shall not
be counted x x x
The LABO doctrine applies only to SINGLE ELECTIVE POST/ELECTIONS
nd
rd
(e.g. Mayor); In the party-list system, even the 2 , 3 , etc... candidate may
get seats.
Concept and Bases of Congressional Oversight Functions
See MAKALINTAL vs. COMELEC
Q: What is the power of oversight?
A: Broadly defined, the power of oversight embraces all activities undertaken
by Congress to enhance its understanding of and influence over the
implementation of legislation it has enacted. Clearly, oversight concerns
post-enactment measures undertaken by Congress:
to monitor bureaucratic compliance with program objectives;
to determine whether agencies are properly administered;
to eliminate executive waste and dishonesty;
to prevent executive usurpation of legislative authority; and
to assess executive conformity with the congressional perception of public
interest
Q: What is/are the basis of oversight power of Congress?
A: The power of oversight has been held to be (1) intrinsic in the grant of
legislative power itself and (2) integral to the checks and balances (3)
inherent in a democratic system of government.
Q: what are the categories of congressional oversight functions? [SIS]

Q: To determine the total votes cast for the party-list system, should the
votes tallied to the disqualified candidates be deducted/excluded in
computing the 2% threshold?

A: Three categories:

A: Yes. The votes for the disqualified parties should be excluded.

Based primarily on the power of appropriation of congress as under the


constitution, the power of the purse belongs to the congress

(Ang Bagong Bayani OFW vs. COMELEC [June 25, 2003 En Banc])
In the case of Labo vs. COMELEC, reaffirmed in the case of Grego vs.
COMELEC, the court declred that the votes case for an ineligible or
disqualified candidate cannot be considered stray, because this would
disenfranchise the voters/majority; valid votes.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Scrutiny primary purpose is to determine economy and efficiency of the


operation of government activities.

Ex: Budget hearings usual means of renewing policy and auditing the use
of previous appropriation to ascertain whether they have been disbursed for
purposes authorized in an appropriation act.

21

Power of confirmation [through COA,] provides congress an opportunity to


find out whether the nominee possesses the necessary qualifications,
integrity and probity required for all public servants.

(2) Freedom of speech and debate


(3) Freedom from search (see Article 145, RPC)
Privilege from Arrest

Congress may request information and report from the other branches of
government. It can give recommendations / pass resolutions for
consideration of the agency involved.Congressional Investigation a more
intense digging of facts.

Not absolute!

This is an essential and appropriate auxiliary to the legislative functions,


even in the absence of an express provision in the Constitution.

Limitations: (1) Congress must be in session


(2) The offense must be one punishable by imprisonment not exceeding 6
years.
In session

Sec 21 Art VI (in aid of legislation)

does not refer to the day to day session

Sec 22 Art VI (Question hour)

refers to the session from the opening to the final/formal adjournment of


Congress

Legislative Supervision third and most encompassing form of oversight


power.
Supervision connotes a continuing and informed awareness on the part of
congressional committee regarding executive operations in a given
administrative area.
Allows congress to the exercise of delegated law-making authority and
permits congress to retain that part of delegated authority.
Ex: veto power of Congress.
Power to create public office / administrative agency congress has an
additional power to supervise - properly implemented congress has review
powers over these public offices / administrative agencies.
Ex: GSIS.
Q: What is legislative veto?
A: It is the power of the congress to disapprove a subordinate law, rules and
regulations promulgated/enacted by the executive branch pursuant to a
delegation of authority by Congress.
Immunities and privileges of members of Congress
Sec 11, Article VI A senator of member of the HOR shall, in all offenses
punishable by not more than 6 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 Congress or in any
committee thereof.
3 Privileges:
(1) Privilege from Arrest

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Art VI, Sec 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 x x x
Q: After 15 days of continuous session, congress adjourned. Can this be
done?
A: YES. Congress has the discretion under Art VI, Sec 15. It is allowed to
remain in session provided only that 30 days before the opening of the next
session, it shall adjourn (compulsory adjournment).
The opening of the session is also the time the President delivers his STATE
OF THE NATION ADDRESS (SONA) part of the informing power of the
President (Art VII, Sec 23)
Art VII, Sec 23 The president shall address the Congress at the opening
of its regular session x x x
This is a deviation from the 1935 constitution, under which the opening of
th
the regular session is every 4 Monday of January and the duration of the
session is for a fixed period of 100 days. It was patterned after the American
Constitution.
Freedom of Speech and Debate
Requisites:
(1) The speech or debate must be made in Congress or in any
committee thereof.
(2) The congress must be in session.

22

Q: In a TV interview, a congressman maligns someone. Can he invoke his


freedom of speech?

Q: During pendency of his appeal from conviction of RTC, should he be


allowed to post bail?

A. NO. It was not made in congress or any of its committee.

A. NO. Evidence of guild is strong; should wait for decision on appeal inside
the penitentiary.

Q: In his privileged speech, a congressman made remarks against A. Can A


sue him for defamation?
A: NO. It is covered by the immunity.
Q: What is As remedy?
A: Ask the house to punish the congressman.
In any other place means - this includes the courts!

1987 Constitution says


Art III, Sec 13 All persons, except those charged with offenses punishable
by reclusion perpetua, when the evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on recognizance
as may be provided by law. x x x
Rules of Court says

Statement made in Congress is a form of privileged communication.

Rule 114 Sec 4 Bail, a matter of right; exception:

This is a valid defense of Slander or Libel!


Borjal vs. CA: There are 2 kinds of Privileged communication:

All persons in custody shall be admitted to bail as a matter of right, with


sufficient sureties, or released on recognizance as prescribed by law or this
rule.

Absolutely privileged

before / after conviction by the MTC; and

absolutely not actionable even if the author is in bad faith


Ex: Freedom of speech and debate of members of Congress.

before conviction by RTC of an offense not punishable by death, R.P, or life


imprisonment.

Qualifiedly privileged

Rule 114 Sec 5 Bail, when discretionary

Not actionable unless the author acted in bad faith.

Upon conviction by the RTC of an offense NOT punishable by death, RP, or


LI, admission to bail is discretionary. x x

This does NOT include Congress Itself!


Osmea vs. Pendatun: The Senate expelled Senator Osmea from the
Senate when he maligned the President in his speech.
SC: The Senates act is valid. Congress can punish their members [Art VI,
Secc 16(3)]. The freedom of speech and debate cannot be invoked in
Congress itself. The constitution says, in any other place.
People vs. Jalosjos: To allow Jalosjos to attend congressional session will
virtually make him a free man; this would be a mockery of the correctional
system.
Immunity of Members of the Congress
arises from a constitutional provision
granted in a restrictive sense
cannot be extended by
Intendment
Implication
Equitable considerations

Therefore:
Matter or Right before conviction, punishable by penalty lower than
reclusion perpetua
Exception: charged with offense punishable by RP or death.Matter
of Discretion before conviction punishable by penalty of reclusion perpetua
or higher when the evidence of guilt is strong, there will be a hearing to
determine whether evidence of guilt is strong.
After conviction, go to Rule 114 sections 4 and 5.
Power to Conduct Investigations and Inquiries
Sec 21, Art VI 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.Nature of the
power to conduct investigations and inquiries
non-legislative but integral in the grant of Legislative power

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

23

It is investigative.Arnault vs. Nazareno: In the 1935 Constitution, there is no


express provision regarding inquiries in aid of legislation. However, it is
intrinsic to conduct inquiries in aid of legislation. Therefore, even without
such provision, this power is present.Q: Is the power absolute?
A: NO! Section 21 provides for the following limitations:
It must be in aid of legislation.
It must be made in accordance with duly published rules of procedures
The rights of persons appearing in, or affected by such inquiries shall be
respected.

It is attached to information, and not the person asked.


Q: What are the varieties of Executive privilege?
A: (1) State Secrets Privilege Information is of such nature that its
disclosure would subvert crucial military or diplomatic objective.
Informers 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.

The right against self incrimination (Art III sec 17) may be invoked.

Generic privilege for internal deliberations attached to intra-governmental


documents reflecting advisory opinions, recommendations, and deliberations
comprising part of a process by which governmental decisions and policies
are formulated.

In aid of legislation

Power to Conduct a Question Hour

Bengzon Jr vs. Senate Blue Ribbon Committee

Art VI, Sec 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 x x x

Senator Enrile made a privileged speech on the alleged takeover of the


SOLOIL Inc. by Ricardo Lopa, a relative of President Auino, and asked the
Senate to look into the possible violation of the law, particularly with regard
to RA3019, the Anti-Graft and Corrupt Practices Act. The matter was
referred to the Senate Blue Ribbon Committee.
Not an inquiry for inquirys sake.
SC: This cannot be allowed. Enriles speech had no suggestion of
contemplated legislation. The purpose of inquiry was to find out whether
Ricardo Copa violated the law. Thus, there is not intended legislation
involved.

2 ways to initiate a question hour:


1. (1) Own initiative, with the consent of the President
2. (2) Upon request of either house.Q: What is Question Hour?
A: It is a period of confrontation initiated by the parliament to hold the prime
minister and other ministers accountable for their acts and the operation of
the government. (definition borrowed from a parliamentary government).

Q: Is this subject to Judicial Review?

Senate of the Philippines vs Ermita

A: General Rule: NO! It is a political question.

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.

Exception: When it is tainted with grave abuse of discretion


amounting to lack or excess or jurisdiction. In view of the expanded power of
the Courts, the SC can inquire whether the inquiry is in accordance with the
limitations under the constitution.

Section 21

Section 22

- 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.

- pertains to the power to conduct a


questions hour; the aim of which is to
obtain information in the pursuit of
the congress oversight function

unless the question is asked, you cannot invoke this privilege

- co-extensive with the power to


legislate

- in pursuit of Congress oversight


function

It must be invoked (not implied) expressly; must not be a blanket invocation.

Q: What is the executive privilege?


A: It is the power of the government (the President or Executive Secretary
acting in behalf of the president) to withhold information from the public, the
couts and the Congress.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

attendance

is

meant

to

be

attendance

is

meant

to

be

24

compulsory*

discretionary

- grounded on the necessity of


information in the legislative process
(the power of inquiry being coextensive with the power to
legislate)

- congress merely seeks to be


informed on how department heads
are implementing the statutes which
it has issued.

*non-appearance will impair the work of Congress and violate Section 7 of


the Bill of Rights (right to information in matters of public concern through
their duly elected representatives in Congress)
Q: May members of Cabinet and other top executive officials validly refuse
to appear before congressional inquiries without the consent of the President
by invoking EO 464 (prohibiting members of the cabinet and other Executive
officials from appearing in Congressional Inquiries) promulgated by the
President?
A: If the requirement then to secure presidential consent under EO 464 is
limited only to appearances in the Question hour, then it is VALID. For under
Section 22, Article VI of the Constitution, the appearance of department
heads in question hour is discretionary on their part. However, this cannot be
applied to department heads in inquiries in aid of legislation. Congress is not
bound in such instances to respect the refusal of the department heads to
appear in such inquiry, unless a valid claim of privilege is subsequently
made, either by the President himself, or by the Executive secretary (Senate
of the Philippines vs. Ermita). A claim of privilege, being a claim of
exemption from an obligation to disclose information must be clearly
asserted. Absent a statement of the specific basis of a claim of executive
privilege, there is no way of determining whether it falls under one of the
traditional privileges, whether given the circumstances in which it is made. It
should be respected.
Legislative Contempt The power to punish for Contempt
Nature of the power to punish for contempt
General Rule: The power is Judicial in nature. It is an inherent power of the
court.
Exeption: When exercised by the Congress or any of its committees when
conducting inquiries in aid of legislation (legislative contempt), one can be
held in detention/sent to prision.
Q: How long can one be held in detention for legislative contempt?
A: For as long as he refuses to cooperate, it is not limited to the duration of
the session of Congress. Thus, a person holds the key to his own freedom.
(Arnault vs. Nazareno)

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Q: Does the pardoning power of the president apply to cases of Legislative


Contempt?
A: NO. It is a limitation on the presidents power to pardon by virtue of the
doctrine of separation of powers.
Bodies Attached To Congress:
Commission on Appointments (Art. VI, Sec 18)
Electoral Tribunals (Art VI, Sec 17)
Commission on Appointments
Section 18, Art VI 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 and parties or organizations registered under the partylist 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.
Organization
Q:
A: 25

How
many
Senate President ex officio chairman

members?

12 Senators
12 Representatives (from the House of Representatives)
Q: How are the 24 members chosen?
A: based on proportional representation from political parties (including party
list) having membership in the senate or House of representatives.
Example:
Senate composition:
K4 = 10
KNP = 8
LOP = 4
LAKAS = 2
Formula to determine seats per party in the Commission on
Appointments:
# of senators of party
Total # of senators

x 12

25

12 is the # of CoA seats


Simply put, it is the # of senators of a Party DIVIDED by 2
Follow the same formula for HOR component just use the # of
congressmen.

Membership 9 members
Judicial Component 3 Supreme Court Justices; the most senior is the
chairman (designated by the CJ)
Legislative Component 6 senators / congressmen chosen on the basis of
proportional representation

Therefore:
Bondoc vs. Pineda

K4 = 5
KNP = 4
LOP = 2
LAKAS = 1
Q: What if there are decimal places?
A: Disregard (drop) the fraction. Otherwise, rounding off would violate the
rule on proportional representation! Although some seats would not be filled,
it is not mandatory that all seats be filled up. What is necessary is that there
be a quorum (Guingona vs. Gonzales)Q: What is main function of the
Commission on Appointments?
A: To act on Presidential Appointments (checks-and-balances)
Q: When can CoA meet?
nd

A: Only when the congress is in Session. (Art VI, Sec 19. 2 sentence)
The commission on Appointments shall meet only while the Congress is in
session at the call of its chairman and a majority of all its members, to
discharge such powers and functions as are herein conferred upon it
- Thus, ad interim appointments are allowed (see Section 16, 2

nd

par. Art VII)

Electoral Tribunals
Section 17, Art VI 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.

FACTS: Congressman Camasura was a member of the HRET. There was


an electoral contest involving his party-mate and Bondoc. The party
instructed Camasura to vote for his party-mate. However, Camasura cast a
conscience vote in Bondocs favor. Thus, the party expelled Camasura from
HRET on the grounds of disloyalty to the party and breach of party
discipline.HELD: The expulsion is VOID. SET/HRET members are entitled
to security of tenure to ensure their impartiality and independence. As judgemembers of the tribunal, they must be non-partisan; they must discharge
their functions with complete detachment; Independence and impartiality,
even from the party to which they belong. Thus, disloyalty to party and
breach of party discipline are not valid grounds for expelling a tribunals
member. The members are not supposed to vote along party lines once
appointed, the house/senate leadership should not interfere with the tribunal.
Although they are attached to congress, yet they are independent of
Congress.
Q: Can they meet when Congress is not in session?
A: YES. Unlike the Commission on Appointments, they shall meet in
accordance with their rules, regardless of whether congress is in session!Q:
From the decision of SET or HRET, is there an appeal?
A: NO. Sec 17 of Article VI provides that the SET/HRET is the sole judge of
all contests x x x. Hence, from its decision, there is no appeal. Appeal is not
a constitutional but merely a statutory right.
Q: Is there any remedy from its decision?
A: YES. A special civil action (an original action not a mode of appeal) for
certiorari under Rule 65 may be filed. This is based on grave abuse of
discretion amounting to lack or excess of jurisdiction. This will be filed before
the SC.

Two Electoral Tribunals

[The other form of Certiorari is Rule 45, which is a mode of appeal


on pure questions of law. This is a mode of appeal unlike the Special Civil
action for Certiorari under Rule 65]

(1) Senate Electoral Tribunal (SET)


(2) House of Representatives Electoral Tribunal (HRET)

SET/HRETs jurisdiction is limited to contests relating to the election x x x


of their respective members

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

26

Romualdez-Marcos vs. COMELEC

Appropriations bill

FACTS: In the 1995 elections, Imelda ran for HOR. A disqualification case
was filed against her on account of her residence. The case was not
resolved before the election. Imelda won the election. However, she was not
proclaimed. Imelda now questions the COMELECs jurisdiction over the
case.

Private bills

HELD: The COMELEC still has jurisdiction. HRETs jurisdiction as the sole
judge of all contests relating to the elections, etc..of members of congress
begins only after a candidate has become a member of the HOR. Since
Imelda has not yet been proclaimed, she is not yet a member of the HOR.
Thus, COMELEC retains jurisdiction. (see RA6646, Sec 6, Electoral Reform
Law of 1987)
Guerrero vs. COMELEC
FACTS: Rudy Farias of Ilocos Norte ran for Congressman. A
disqualification case was filed against him, which was not resolved before
the elections. He won and was proclaimed. COMELEC dismissed the
pending disqualification case against Farias. This was questioned by
Guerrero on the ground that HRET has jurisdiction only if there is a valid
proclamation of the winning candidate. Thus, if a candidate does not ratify
the statutory requirements, his subsequent proclamation is void and thus,
COMELEC still has jurisdiction.
HELD: The dismissal (of the case) is incorrect. This is a recognition of the
jurisdictional boundaries between COMELEC and HRET. In an electoral
contest where the validity of the proclamation of a winning candidate who
has taken his oath of office and assumed his post as congressman is raised,
the issue is best addressed to the HRET. This avoids duplicity of
proceedings and a dash of jurisdiction between constitutional bodies.
[Thus, once a winning candidate has been proclaimed, taken his oath of
office and assumed office as a member of the HOR, the COMELECs
jurisdiction over election contests relating to his election returns and
qualifications ends, and the HRETs own jurisdiction begins.]The Legislative

Revenue or Tariff bills


Bills Increasing the Public Debt

but senate may propose & concur


with amendments.
Amendment by substitution is
allowed.

Bills of Local Application


Source:
Article VI, section 24 All appropriate, revenue or tariff bills, bills
authorizing increase of 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. Secretary of Finance EVAT is a revenue bill. It intends to
raise income for the govt.
FACTS: There were 2 versions of the EVAT the HOR and the Senate
version. The HOR bill was first filed and the Senate suspended its own
deliberations until the HOR version was sent to the Senate. Then, the senate
passed its own version. Both versions were sent to the Bicameral
Conference Committee. What eventually became the EVAL law was the
senates version.
HELD: It is not the law, but the revenue bill that is required to originate
exclusively in the HOR. What the constitution simply means is that the
INITIATIVE for filing revenue, tariff bills, etcmust come from the HOR on
the theory that since the HOR members are elected from the districts, they
can be expected to be more sensitive to the local needs and problems. A bill
originating in the HOR may undergo such extensive changes in the Senate.
The result may be a rewriting of the whole. To insist that the revenue statute
must be substantially the same as the house bill would deny the senates
power to concur and propose amendments. This would violate the coequality of the legislative power between the HOR and the Senate. Thus, the
power of the senate to propose amendments includes the power to propose
its own version. Amendments may be amendments by substitution.
2 rules:

Process
Filing of the Bill
General Rule: A bill may be introduced and may originate either from the
Senate or the HOR.
Exceptions: Bills that must originate exclusively with the HOR [APRIL]

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

1) One-subject-one-title rule
Sec 26(1), Art VI Every bill passed by the Congress shall embrace only 1
subject, which shall be expressed in the title thereof.
Objectives (De Guzman Jr. vs. COMELEC)
To prevent hodge-podge or log-rolling legislation;

27

To prevent surprise or fraud upon the legislature by means of provisions in


bills of which the title gives no information and which might thus be
overlooked and carelessly and unintentionally adopted; and
To fairly appraise the people, through such publication of legislative
proceedings as usually made, of the subjects of legislation that are being
considered, in order that they may have the opportunity of being heard
thereon by petition or otherwise, if they shall so desire.
In general, the rule seeks to prevent riders provision which is totally
unrelated to the subject matter of the legislation being considered and may
be the subject of a separate legislation.
This rule is interpreted liberally!
Philippine Judges Association vs. Prado
FACTS: RA7354 is entitled, law creating the Philippine Postal Corporation.
In section 35 (Repealing clause), the Judiciarys franking privilege was
withdrawn. Philippine Judges Association argues that Section 35 is not
expressed in the title of the law, and also the title does not reflect the
purpose of withdrawing said franking privilege.
HELD: The bills title is not required to be an index to the body of the act, or
to be comprehensive as to cover every single detail in the act. If the title
fairly indicates the general subject and reasonable covers all the provisions
of the act, and is not calculated to mislead the legislature or the people,
there is sufficient compliance with the constitutional requirement.
[Here, when a statute repeals a former law, such repeal is the effect not
the subject of the law and it is the subject and not the effect that is required
to be briefly expressed in the title.]
Tobias vs. Abalos
FACTS: San Juan and Mandaluyong used to be municipalities belonging to
one (1) legislative district, with one congressman. RA7675 was enacted
entitled, converting Mandaluyong into a highly urbanized city. Section 49 of
said law creates a separate legislative district for Mandaluyong. The people
approved the law in a plebiscite. Tobias now questions the legality of the law
on the ground that it has 2 unrelated subjects: (1) conversion of
Mandaluyong into a highly urbanized city, and (2) creation of a separate
legislative district for Mandaluyong.
HELD: The creation of a separate legislative district for Mandaluyong is NOT
a subject separate from its conversion into a highly urbanized city. Instead, it
is a natural and logical consequence of such conversion. This is because of
Article VI, Section 5(3), which provides that each city with a population of at
least 250,000 or each province shall have at least one (1) representative.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

This, for as long as various provisions are germane to the subject matter
which is expressed in the title the rule is complied with.
2) Three readings on three separate days rule
Sec 26(2), Art VI No bill passed by either House shall become a law
unless it has passed three readings on separate days, and printed copied
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.
General Rule: Each bill must undergo 3 separate readings on 3 separate
days. (one in Senate, one in HOR = 6 days/readings all-in-all)
First Reading: the bills title is read; it is assigned a number, and
then referred to the appropriate committee. . NNo deliberations yet
In the committee to which the bill was referred to, it may die a
natural death if said committee sits on it. If the members of the
committee endorse the bill to the plenary, it will be calendared for
nd
2 reading.
Second Reading: The bill is sent back to the plenary.
NOTE: In the plenary, it will be discussed in its entirety;
there will be sponsorship speech, interpellations, deliberations;
amendments may also be introduced.
rd

Third Reading: Requirement: 3 days before the scheduled 3


reading. Printed copies of the bill will have to be distributed to each
member of the house. Here, there are no more deliberations,
discussions, or amendments. There is only voting; the yeas and
nays must be entered in the journal.
Exception: When the President certifies to the necessity of its immediate
enactment to meet a public calamity or emergency.
Tolentino vs. Secretary of Finance
When the president certifies as to the necessity of the Bills immediate
enactment, it need not undergo 3 readings on 3 separate days and printed
copies of the Bill need not be distributed to the members 3 days before the
rd
3 reading.
What constitutes a public calamity or emergency is a political question
into which the courts cannot interfere.

28

While the sufficiency of the factual basis of the suspension of the writ of
Habeas Corpus or declaration of martial law is subject to Judicial review
because basic rights of individuals may be at hazard, the factual basis of
presidential certification of bills, which involves doing away with procedural
requirements designed to insure that bill are duly considered by member of
congress, certainly should elicit a different standard of review.

If the nays prevail over the yeas another bicameral conference committee
will be created until an acceptable version of the bill is created; the court did
not say that the bill is killed.

After 3 readings, the bill will be sent to the other house where it will
undergo the same cumbersome process.

A: Once a bill has become an enrolled bill, it becomes conclusive upon the
courts as to its enactment*, so that the courts will not inquire into whether
that Bill was regularly enacted or not.

If both houses have different versions of the Bill, said versions will be sent
to the Bicameral Conference Committee for reconciliation.

BICAMERAL CONFERENCE COMMITTEE (Sec 1, Art VI Bicameral


Congress)
Q: Is this mentioned in the Constitution?
A: NO! But it can be inferred from:
Power of each house of Congress to have rules of proceedings under Art VI,
Section 16(3) Each house may determine the rules of its proceedings x x
x; and
The fact that we have a bicameral Congress Art VI, Sec 1 The
legislative power shall be vested in the Congress x x x which shall consist of
a senate and a HoR.
Nature and Functions of the Bicameral Conference Committee
Source: Philippine Wages Association vs. Prado
Primarily, it is a mechanism for compromising differences between the
senate and the HoR; this is because we have a bicameral Congress.
It is capable of producing unexpected results which can even go beyond its
mandate.
rd

Enrolled Bill Doctrine


Q: What is the enrolled bill doctrine?

* It is the enactment only and NOT its constitutionality or validity, which is


subject to judicial review.
Q: What is an enrolled bill?
A: It is a bill that contains the signatures of the respective secretaries of both
Houses of Congress, of the House Speaker and of the Senate President;
and is to be sent to the President for his signature.
In other words, the following are the signatories to the enrolled bill:
Secretary of the senate and of the
speaker
Senate president
Q: What is the reason for the doctrine?
A: Separation of Powers. The courts should give due respect because the
enrolled bill contains the signatures of the officers of the co-equal branches
of Government.
Journal Keeping Requirement
Sec 16(4), Art VI Each house shall keep a Journal of its proceedings
and from time to time publish the same, excepting such parts as may, in its
judgment, affect national security x x x
Q: Between the enrolled bill and the Journal, which prevails?

Referred to as the 3 house of Congress not correct under our


constitution, because there are only two houses.

A: General Rule: Enrolled bill prevails

See Arroyo vs. De Venecia

Exception: Journal prevails as to the matters required by law to be


entered into the Journal. They are regarded as conclusive:

Referral back to the Senate and the HoR from the bicameral conference
committee, the consolidated bill will be sent back to each House.

The yeas and nays on the 3 and final reading

There, the consolidated bill will be subject to voting; no more readings


If the yeas prevail over the nays the bill is passed and will be sent to the
Senate Predient and the HoR speaker for signing.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

rd

Art VI. Sec 26(2) Upon the last reading of a bill x x x the vote thereon shall
be taken immediately thereafter, and the yeas and nays entered in the
Journal.

29

The yeas and nays on any question at the request of 1/5 of the members
present
Art VI, Sec 16(4) Each house shall keep a journal of its proceedings x x x
and the yeas and nays on any question shall, at the request of 1/5 of the
members present, be entered in the journal.
The yeas and nays upon re-passing a bill over the Presidents veto.

Enrolled bill to the President - Last stage


From Congress, the bill will be sent to the President.
Q:
How
A: 3 options:

many

options

does

the

president

(1) President approves the bill

bill becomes a law

(2) President vetoes the bill

bill does not become a law

have?

Art VI Sec 27(1) In 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.

(3) President does not do anything (inaction) automatically becomes a law


thirty (30) days after receipt of the bill.

The presidents objection to a bill he had vetoed.

First option: President approves the Bill

Art VI Sec 27(1) every bill passed by Congress shall, before it becomes a
law, be presented to the President x x x 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 x x x

Sec 27 (1), Art VI Every bill passed by Congress shall, before it becomes
a law, be presented to the President. If he approves the same, he shall sign
it xxx

Astorga vs. Villegas


FACTS: A bill of local application was filed in the and was there passed
rd
on 3 reading without amendments. Forthwith, the bill was sent to the
Senate for its concurrence. It was approved with minor amendments
suggested by Senator Roxas, that instead of the City Engineer, it be the
President Protempore of the Municipal Board who should succeed the Vice
Mayor in case of the latters incapacity to act as Mayor. However, on second
reading, substantial amendments to this were introduced by Senator
Tolentino. These were approved in toto by Senate. The amendment
recommended by Senator Roxas does not appear in the Journal of the
Senate proceedings as having been acted upon. When the Secretary of the
Senate sent a letter to the that the House Bill No. 9266 had been passed
by the Senate with amendments, he attached a certification of the
amendment, which were the ones actually approved by the senate. The
thereafter signified its approval of the bill and caused copies thereof to be
printed. The printed copies were then certified and attested by the
secretaries of the and the senate and the speaker of the and the
Senate president. When the printed copies were sent to the President, he
affixed his signature thereto by was of approval. The bill became R.A. 4065.
However, Senator Tolentino issued a press statement that the bill signed
into law by the President was the wrong version. Consequently, the Senate
President withdrew his signature.
HELD: The court went beyond the enrolled bill and looked into the Journal to
determine whether theres legal insertion or not.

Second option: President vetoes the bill


Sec 27 (1), Art VI Every bill passed by Congress shall, before it becomes
a law, be presented to the President x x x otherwise, he shall veto it and
return the same with his objections to the House where it originated.
Requirements:
Sent the bill back to Congress,
Together with his objections (veto message)
Q: Can Congress overthrow the veto (repass the law)?
A: YES! With a 2/3 vote as provided under Sec 27(1) Art VI If after such
reconsideration, 2/3 of all members of such House agree to pass the bill, it
shall be sent, together with the objections to the other house by which it shall
likewise be considered, and if approved by 2/3 of all members of that house,
it shall become a law.
KINDS OF VETO
General Veto Art VI, Sec 27, par 1
Item or Line Veto Art VI, Sec 27, par 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.
General Rule: President may not veto a provision without vetoing the entire
bill.
The rule is all or nothing; selective veto is not allowed.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

30

The president may not veto a bill without vetoing the entire bill. The
executive must veto a bill in its entirety or not at all. He cannot be an editor
crossing our provisions which she dislikes. (Bengzon vs. Drilon)

A: Person-in-authority (recall Crim Book II can be subject to direct assault)

Exceptions: Selective veto is allowed in 3 kinds o bill (ART)

Sec. 388 LGC

Appropriation bills

Punong Baranggay

Revenue Bills

Sangguniang Baranggay members


authority

Tariff Bills

N.B.: Policeman agent of person-in-authority

Persons-in-

Lupong taga-pamayapa

Grounds for Vetoing Ordinance by the Chief Executive


Sec. 55 of LGC par. A

[UP]

Ultra-vires/
prejudicial to public welfare
Sec 55 of LGC par. B: on Item/line veto:

[PAL]

Doctrine of Inappropriate Provisions


Provisions in an appropriation bill must relate to some particular provision
therein (see Art VI, Sec 25(2)). If it does not, it becomes an inappropriate
provision and will be treated as an item. Thus, it can be subject to the item
veto (Gonzales vs. Macaraig)

Appropriation Ordinance

Gonzales vs. Macaraig

Adopting a local development plan

FACTS: the General Appropriations Bill contained a provision prohibiting the


President from augmenting the funds of one department from the other.
President Aquino vetoed that provision. Congress argued that what she
vetoed was a provision, not an item. Thus, she effectively vetoed the entire
bill since the item veto refers to items and not to provisions.

Ordinance Authorizing Payment of money/creating Liability


Q: Under the LGC, can Punong-Baranggay veto an ordinance?
A: NO. He is part of the ordinance-making (or legislative process) body as
the presiding officer of the sessions of Sangguniang Baranggay.
Q: Do Local Chief Executives have veto power?
A: NO.
Q: How about a Governor?

HELD: The Court sustained the validity of the exercise by the President of
her veto power, invoking the doctrine of inappropriate provision.Section 25,
par 2, Art VI 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.

A: Yes. There is a vice-governor.


Q: How about a Mayor?

Q: May the President veto a LAW?

A. Yes. There is vice-mayor.


Chief Executive of Baranggay

A: NO. What the president may validly veto is ONLY a BILL and neither the
provisions of LAW 35 years before his term nor a final and executory
judgment of the Supreme Court. (Bengzon vs. Drilon)

Chief Executive

Item vs. Provision in an appropriation bill

Sangguniang Baranggay, presiding officer


Lupong Tagapamayapa

An item is a specific appropriation of money, not some general provision


of law that happens to be in an appropriation bill.

Can carry firearms

Third option: President does not do anything (inaction)

Q: Is the Chief executive of Baranggay an agent, or a person-in-authority?


Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

31

Sec 27 (1), Art VI [last sentence] x x x The president shall communicate


his veto of any bill to the House where it originated within thirty days after the
ate of receipt thereof; otherwise, it shall become a law as if he had
signed it.
Q: Is pocket veto valid or practiced in our jurisdiction?
A: NO. There is not such thing as pocket veto in the Philippines. Unlike in
the US if within 10 days, the president fails to act on the Bill and Congress
adjourns, the bill does not become a law. In our jurisdiction, the bill
automatically becomes a law if the President does not act within 30 days
after receipt of the Bill.
Example of Bills which lapsed into law by the Presidents inaction:

(4) at least 40 years of age on the day of the election


(5) resident of the Philippines for at least 10 years immediately preceding
the election
- Enumeration is exclusive!. The Constitution specifically provided that the
Congress cannot add nor subtract from the list.
TERM OF OFFICE OF THE PRESIDENT ARTICLE VII, Sec. 4
- 6 years, to begin at noon of June 30 next following the day of the election
and to end at noon of the same date 6 years thereafter.
- no re-election; regardless of whether or not President finished his term.
- The President shall not be eligible for any re-election. (Sec. 4)
QUALIFICATIONS AND TERM OF OFFICE OF THE VICE PRESIDENT

Bar Flunkers Act President Quirino

- same as the President

Changing the name of Manila Intl Airport to Ninoy Aquino Intl Airport
President Aquino

ARTICLE VII, Sec. 3, 1 par. There shall be a Vice President who shall
have the same qualifications and term of office xxx as the President."

Q: What if the President does not veto the inappropriate item?

- may be re-elected once!

A: It becomes a law/ rider which may be a separate subject of legislation.

ARTICLE VII, Sec. 3, 2


two successive terms.

Doctrine of Qualified Political Agency (Alter Ego Doctrine)


Members of the Cabinet are considered acts/decisions of the President
UNLESS reprobated by the latter.

st

nd

par. No Vice President shall serve for more than

- no longer an idle official


nd

Members of the Cabinet are considered alter ego of he President.

ARTICLE VII, Sec. 3, 2 par. The vice President may be appointed as a


Member of the Cabinet. Such appointment requires no confirmation.

EXECUTIVE DEPARTM ENT

PRESIDENTIAL SUCCESSION

EXECUTIVE POWER

ARTICLE VII, Sec 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.4 INSTANCES:

ARTICLE VII, Sec. 1: The executive power shall be vested in the President
of the Philippines.
Q: What power belongs to the President?

(1) Death

A: Power of the Sword. (Power of the Purse belongs to the Congress.)

(2) Permanent disability

FAITHFUL EXECUTION CLAUSE

(3) Removal
- The President can only be removed by means of impeachment.

ARTICLE VII, Sec. 17, 2


faithfully executed.

nd

sentence: xxx he shall ensure that the laws be

QUALIFICATIONS OF PRESIDENT ARTICLE VII, Sec. 2


(1) natural-born citizen
(2) registered voter
(3) able to read and write

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

- ARTICLE XI, Sec. 2 : the list of impeachable officer is exclusive!


(1)
(2)
(3)
(4)
(5)

President
Vice President
Members of the Supreme Court
Members of the Constitutional Commission
Ombudsman

32

Hence, the provision in the law creating the Sandiganbayan


(1980) is already doubtful! (The law creating Sandiganbayan provides that
SB Justices may only be removed by impeachment.)
- Grounds:
(a) culpable violation of the Consitution
(b) treason
(c) bribery
(d) graft and corruption
(e) high crimes
(f) betrayal of public trust
Q: Was Estrada impeached?
A: Yes!
Q: But was he removed through impeachment?
A: No! (remember, a vice president can only be removed by impeachment)
(4) Resignation
Estrada vs. Desierto
(Did Erap resign?)
- Elements of Resignation
(a) there must be an intent to resign, which is coupled with:
(b) act of relinquishment
- Form of Resignation: the validity of a resignation is not governed
by any formal requirement as to form it can be oral or written; express or
implied as long as the resignation is clear, it must be given effect.
- TOTALITY OF CIRCUMSTANCES TEST AND CONSTRUCTIVE
RESIGNATION Estrada did not write any formal letter of resignation before
leaving Malacanang. Thus, whether or not he resigned is to be determined
from his acts and omissions before, during, and after January 20,2001 or by
the totality of prior, contemporaneous and posterior facts and circumstantial
evidence bearing a material relevance on the issue using this test, his
resignation cannot be doubted. In his final statement, he (a) acknowledged
Arroyos oath-taking as President; (b) emphasized he was leaving
Malacanang for the sake of peace and order not because of some inability;
(c) expressed his gratitude to the people for the opportunity to serve them,
etc.Note; In the Law Public Officers, an essential element of resignation is
the acceptance by the proper authority.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

- This element cannot be applied in the instances when the President


resigns.
- The President is the highest officer of the land, hence, there is no one to
act on his resignation.
- Unique situation so SC applied a unique solution. (Concept of Constructive
Resignation)

POWERS OF THE PRESIDENT


I. SPECIFIC POWERS OF THE PRESIDENT
(1) Appointing Power carries with it the power of removal ARTICLE VII,
Sec. 16
(2) Control Power - ARTICLE VII, Sec. 17 The President shall have
control of all the executive departments, bureaus, and offices xxx.
- With respect to local governments, the President merely has
power of general supervision. (ARTICLE X, Sec. 4)
(3) Military Power - ARTICLE VII, Sec. 18
There are actually 3:
(a) calling-out power as the commander-in-chief of all the armed
forces
(b) power to declare martial law
(c) power to suspend the privilege of writ of habeas corpus
(4) Pardoning Power - ARTICLE VII, Sec. 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 Members of the
Congress.
- 5 matters mentioned:
(a) reprieves
(b) commutations
(c) pardons
(d) remit fines and forfeitures
(in these 4, conviction by final judgment is a requirement)
(e) amnesty
33

- require concurrence of the majority of Congress

(a) authority to impound given by Congress

- conviction by final judgment is not a requirement

(b) executive power president as the commander-in-chief

- if case is still pending, may extend amnesty

(c) faithful execution clause

(5) Borrowing Power - ARTICLE VII, Sec. 20 The President may


contract or guarantee foreign loans on behalf of the Republic of the
Philippines with the prior concurrence of the Monetary Board, and subject to
limitations as may be provided by law xxx.

(2) Unstated Residual Powers


- powers which are not found in the Constitution, but he may validly
exercise. (Marcos vs. Manglapuz).
- reserved powers of the president

(6) Treaty-Making Power ARTICLE VII, Sec. 21 No treaty or


international agreement shall be valid and effective unless concurred in by at
least 2/3 of all the Members of the Senate.

Q: How do you define executive powers?

(7) Budgetary Power- ARTICLE VII, Sec. 22 The President shall submit
to the Congress within 30 days from the opening of every regular session, as
the basis of the general appropriations bill, a budget of expenditures and
sources of financing, including receipts from existing and proposed revenue
measures.(8) Informing Power- SONA

APPOINTING POWER

- ARTICLE VII, Sec. 23 The President shall address the Congress at the
opening of its regular session. He may also appear before it at any other
time.
II. SPECIFIC POWERS OF THE PRESIDENT FOUND SOMEWHERE
ELSE IN THE CONSTITUTION
(1) Power of general supervision over local governments
- ARTICLE X, Sec. 4 The President of the Philippines shall exercise
general supervision over local governments xxx.
(2) Veto Power
- ARTICLE VI, Sec. 27
(3) Power to call Congress to special session

A: Executive power is neither legislative nor judicial. (This implies that it is


very broad.)

- ARTICLE VII, Sec. 16


- correlate with Law on Public Officers
Nature of Appointing Power
- vested in the President; executive in nature
- subject only to well-known exceptions
- carries with it the removal power (power to hire carries with it the power to
fire)

Structure of ARTICLE VII, Sec. 16: 2 Paragraphs


(1) list of officers who are to appointed by the President
(2) ad interim appointments
FIRST SENTENCE, FIRST PARAGRAPH

- ARTICLE VI, Sec. 15 The President may call a special session at any
time.

Q: Will all appointments of the President require confirmation of the


Commission on Appointments?

III. OTHER POWERS

A: Not all appointments require confirmation under the present Constitution.


st
Only those officers enumerated in the 1 sentence require confirmation.
(Sarmiento vs. Mison)

(1) Impoundment Power


- refusal of the President, for whatever reason, to spend funds
made available by Congress. It is the failure to spend or obligate budget
authority or any type. (PHIILCONSA VS. ENRIQUEZ)
- 3 principal sources:

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

- Under the 1935 Constitution, all appointments need confirmation.


- Under the 1973 Constitution, all appointments no longer need confirmation
(because Congress was then abolished by President Marcos).

34

- Experience shows that when all appointments required Confirmation, it


became a venue for 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 1973
Constitution, leads to abuse of such power. Thus, was perceived the need
to establish a middle ground between the 1935 and 1973
Constitution.FOUR INSTANCES WERE CONFIRMATION IS REQUIRED
(1) Heads of executive departments
- appointment of cabinet secretaries requires Confirmation

keep a regular force necessary for the security of the state. On the other
hand, Sec. 6 of the same article ordains that: The state shall establish and
maintain one police force, which shall be national in scope and civilian in
character to administered and controlled by a national police commission.
The authority of local executives over the police units in their jurisdiction
shall be provided by law.
- To so distinguish the police force from the armed force, Congress enacted
RA. 6975. Thereunder the police force is different from and independent of
the armed forces and the ranks int eh military are not similar to those in the
PNP.

- EXCEPTION: Vice-president may be appointed as a member of the


Cabinet and such appointment requires no confirmation. (ARTICLE VII,
Sec. 3, Par. 2)

- Present PNP is no longer part of the AFP; is a civilian institution placed


under DILG. Unlike PCINP, which is a part of AFP, it is in fact armed forces.

(2) Ambassadors, other public ministers and consuls

(4) Other officers of the government whose appointments are vested in


him in this Constitution

- those connected with the diplomatic and consular services of the country.

EX: Chairmen and members of CSC, Comelec, COA (by express provision)

(3) Officers of the armed forces from the rank of colonel or naval
captain
Q: What about officers of PNP of equivalent ranks?
A: No.
MANALO VS. SISTOZA
- President Aquino promoted 15 police officers by appointing them to
positions in the PNP with the rank of Chief Superintendent to Director.
Without their names submitted to the Commission on Appointments for
confirmation, the said police officers took their oath and assumed their
respective positions. Manalo questioned this on the ground that both under
Sec. 16, ARTICLE VII of the 1987 Constitution and RA. 6975 (Local Govt
Act of 1990) require their appointments to be submitted for confirmation and
that PNP is akin to the AFP.
SC: Only presidential appointments belonging to the first group require
confirmation by the Commission on Appointments. The appointments of
police officers who are not within the first category need not be confirmed by
the Commission on Appointments. Consequently, unconstitutional are
Sections 26 and 31 of RA. 6975 which empowers the Commission on
Appointments to confirm the appointments of public officials whose
appointments are not required by the Constitution to be confirmed.
- The PNP is separate and distinct from the AFP. The Constitution no less,
sets forth the distinction. Under Sec. 4, ARTICLE XVII, the armed forces of
the Philippines shall be composed of a citizen armed force which shall
undergo military training and service, as may be provided by law. It shall
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

Regular members of JBC (ARTICLE VII, Sec. 8, Par. 2)


EXCEPTION: Judges, Justices, Ombudsman (by the creation of the
JBC, their appointments no longer require confirmation)
Sectoral representatives in Congress (Teresita Quintos deles et al vs.
Commision on Constitutional Commission)
SECOND SENTENCE INSTANCES WHEN CONFIRMATION IS NO
LONGER REQUIRED
(1) All other officers of the government whose appointments are not
otherwise provided by law
(2) Those who 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.
SARMIENTO VS. MISON
- It is evident that the position of Commissioner of Bureau of Customs (a
bureau head) is not one of those within the first group of appointments
where the consent of the Commission on appointments is required.MARY
CONCEPCION BAUTISTA VS. SALONGA
- The appointment of the chairman and members of the Commission on
Human Rights is not specifically provided for in the Constitution itself. Unlike
the Chairmen and Members of the CSC, the Comelec and the COA, whose
appointments are expressly vested by the Constitution in the President with
35

the consent of the Commission on Appointments. The Human Rights


pursuant to the second sentence in Sec. 16, ARTICLE VII, that is, without
the Confirmation of the Commission on Appointments because they are
among the officers of the government whom he may be authorized by law to
appoint. And Sec. 2(c) EO. 135 (5 May 1987) authorizes the President to
appoint the chairman and members of the Commission on Human Rights.
CALDERON VS. CARALE

A: These are appointments made by the President when Congress is in


session.
Q: What is the real distinction between the two?
A: The real distinction between ad interim and regular appointment lies in
the effectivity of the appointment.
AD INTERIM

- Calderon questions the constitutionality and legality of the permanent


appointments extended by the President to respondents chairman and
members of the NLRC without submitting the same to the Commission on
Appointments for confirmation pursuant to ARTICLE 215 of the Labor Code,
as amended by RA. 6715 (Herrrera-Veloso Law or the Act amending the
Labor Code reorganizing the NLRC)
nd

SC: The NLRC Chairman and Commissioners fall within the 2 sentence of
Sec. 16, ARTICLE VII of the Constitution more specifically under the third
group of appointees those whom the President may be authorized by law
to appoint. Undeniably, the chairman and members of the NLRC are not
st
among the officers mentioned in the 1 sentence of Sec. 16, ARCTICLE VII
whose appointments require confirmation by the Commission on
Appointments. To the extent that RA. 6715 requires confirmation by the
Commission on Appointments of the appointments of respondent chairman
and members of NLRC, it is unconstitutional.
- SC clarified that this list is EXCLUSIVE. Congress by a mere legislative
act may not validly amend the constitution by adding or deducting anything
from that list

REGULAR

takes effect immediately

does not take effect immediately;


takes effect only upon confirmation
by the Commission on Appointments

there is risk of losing both positions


(upon assumption of new office),
he
loses
his
former position

no risk involved (appointee cannot


assume
until
appointment
is
confirmed)

actually, the President appoints,


subject
only to the resolutory
condition that it be confirmed later on
by the Commission on Appointments

actually, the President does not


appoint; he merely nominates
subject to confirmation by the
Commission on Appointments

MATIBAG VS. BENIPAYO

- Sec. 16, ARTICLE VII, Par. 2 should be correlated to Sec. 19, ARTICLE VI
xxx The Commission on Appointments shall meet only while the Congress
is in session xxx.

Benipayo, Tuason, and Borra were appointed Chairman and Commissioners


respectively of the COMELEC by the President when Congress was not in
session.
These ad interim appointments were by-passed by the
Commission on Appointments. However, they were subsequently reappointed by the President to the same positions. Upon assumption to
office, Benipayo transferred Matibag to another department. Matibag now
questions the validity of the appointments on the grounds that: (1) the ad
interim appointments violate ARTICLE IX-C, Sec. 1, Par. 2 In no case
shall any member be appointed or designated in a temporary or acting
capacity (Matibag is of the impression that such ad interim appointments are
temporary because they are revocable at the will of the President); and (2)
even assuming they are valid, their re-appointment violates ARTICLE IX-C,
Sec. 1, Par. 2 The chairman and the commissioners shall be appointed
xxx for a term of seven years without reappointment.

- RATIONALE: Commission on Appointments meets when Congress is


in session so that even if Congress is not in session, the President is not
precluded from making an appointment.

SC: (1) An ad interim appointment is permanent in character (Summers vs.


Ozaeta). The Consitution imposes no condition on the effectivity of an ad
interim appointment and thus an ad interim takes effect immediately.

Q: What are regular appointments?

- The Constitution itself makes ad interim permanent appointment.

SECOND PARAGRAPH: AD INTERIM APPOINTMENTS


Q: What are ad interim appointments?
A: AD INTERIM literally means in the meantime or for the time being.
- These are appointments made by the President when Congress is not in
session.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

36

- An ad interim appointment is not descriptive of the nature of the


appointment, that is, it is not indicative of whether the appointment is
temporary or in an acting capacity, rather it denotes the manner in which the
appointment was made. (Marohombsar vs. CA)
(2) There are four situations where ARTICLE IX-C, Sec. 1, Par. 2 will apply:

- Hence, the President cannot be compelled especially since the positions


of cabinet secretary require trust and confidence.
Distinctions between Ad Interim and Acting Appointments
Ad Interim

Acting Appointments

a) where an ad interim appointee to the Comelec, after confirmation by the


Commission on appointment, serves his full seven-year term;

extended only during a recess of


Congress

extended anytime there is a vacancy

b) where the appointee, after confirmation, swerves a part of his term and
then resigns before his seven-year term of office ends;

permanent in nature

merely temporary

c) where the appointee is confirmed to serve the unexpired term of


someone who died or resigned and the appointee completes the unexpired
term;
d) where the appointee has previously served a term of less than seven
years, and a vacancy arises from death or resignation.
- 2

nd

issue is of first impression! (not yet asked in the bar)

- In any of these four situations, it presupposes that the appointment had


already been confirmed by the Commission on Appointments. It will not
apply in this case where the appointments were by-passsed.Q: What if the
appointments were actually disapproved and not simply by-passed, can they
still be validly reappointed?
A: No. The disapproval is actually a judgment on the merits of their
qualification. The principle of checks and balances will come into play.
PIMENTEL VS. ERMITA
- The cabinet secretaries were appointed as acting secretaries of their
respective departments while Congress is in session. Thus, the Senators
filed a petition to compel the president to extend regular appointments.SC:
Nature of the Power to Appoint
- The power to appoint is essentially executive in nature, and the legislature
may not interfere with the exercise of this power except in those instances
when the Constitution expressly allows it to interfere.- Appointment is
discretionary.
- The essence of an appointment in an acting capacity is its temporary
nature. It is a stop-gap measure intended to fill an office for a limited time
until the appointment of a permanent occupant to the office. In case of
vacancy in a n office occupied by an alter ego of the President, such as the
office of a department secretary, the President must necessarily appoint an
alter ego of her choice as acting secretary before the permanent appointee
of her choice could assume office.
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

requires
confirmation
by
Commission on Appointments

the

does not require such confirmation

Note: Mootness of the Petition When the Congress adjourned, GMA


extended ad interim appointments but this is an exception because the case
is capable of repetition yet evading review.
LIMITATIONS ON THE APPOINTING POWER OF THE PRESIDENT
(1) ARTICLE VII, Sec. 13, Par. 2 The spouse and relative by
consanguinity or affinity within the fourth civil degree of the President shall
not, during his tenure be appointed as member of the Constitutional
Commissions, or the Office of the Ombudsman, or as secretaries,
undersecrataries, chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and their subsidiaries.
(nepotic appointments)
- This is a prohibition against NEPOTISM on the President.
Q: To what positions?
A: (1) Constitutional Commissions COA, Comelec, CSC
(2) Office of the Ombudsman
(3) Secretaries
(4) Undersecretaries
(5) Chairmen or heads of bureaus or offices, including GOCCs and their
subsidiaries
(2) ARTICLE VII, Sec. 15 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 appointment to
executive positions when continued vacancies therein will prejudice public
service or endanger public safety.
- This applies only to a presidential election: every 6 years.
Q: To what kind of appointment is this directed against?

37

A: This is directed against 2 types of appointments: (In Re: Valenzuela and


Vallaria)
(1) those made for buying votes (to influence the outcome of Presidential
elections)
- refers to those appointments made within the 2 months preceding
a Presidential election and are similar to those which are declared election
offenses in the Omnibus Election Code.
(2)
those made for partisan considerations (the so-called midnight
appointments)
- refers to appointments made after election day but before the
term of the next president begins (30 June).
- Hence, this provision contemplate not only midnight appointments
(appointments made for partisan considerations where an outgoing
President fells up all vacant positions thereby preempting an incoming
president of his prerogative) but also appointments presumed made for the
purpose of influencing the outcome of the Presidential election.
AYTONA VS. CASTILLO
- After the proclamation of Diosdado Macapagal as duly elected President,
President Carlos P. Garcia, who was defeated in his bid for reelection,
became no more than a caretaker administrator, whose duty was to
prepare for the orderly transfer of authority to the incoming President.
IN RE: HON. MATEO VALENZUELA AND HON. PLACIDO VALLARTA
- Before the 11 May 1998 elections, President Ramos appointed on 30
March 1998 2 gentlemen as RTC judges. On 14 May 1998, already after the
elections, their appointments were transmitted to the Office of the Chief
Justice. However, the 2 were able to secure advance copies of their
appointments so they were able to take their oaths and assumed office.

A: If the appointment was made within 2 months immediately preceding the


presidential election, then the purpose is for vote-buying or to influence the
outcome of the elections.
IF the appointment was made after the
Presidential election but before the outgoing presidents term end (his term
ends noon of June 30), then it is midnight appointment.
DE RAMA VS. CA
- Ma. Evelyn S. Abeja was a municipal Mayor. When her term is about to
end, she filled up all the positions before she vacated her position. When
her successor sit, there was no more vacancy and all the appointments were
nullified by the latter on the ground that they were midnight appointments.
SC: The records reveal that when De Rama brought the matter of recalling
the appointments of the 14 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, Sec. 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.
(3) ARTICLE VII, Sec. 13, Par. 1 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 and controlled corporations or their
subsidiaries. They shall strictly avoid conflict in the conduct of their office.
- This is a prohibition against HOLDING MULTIPLE POSITIONS.Q:
Directed against whom?

SC: The questioned appointments are void. They were unquestionably


made during the period of the ban. Consequently, they come within the
prohibition relating to appointments which are considered to be for the
purpose of buying votes or influencing the elections.

A: (1) President

- The only exception is temporary appointments to executive positions when


continued vacancies therein will prejudice public service or endanger public
safety. However, this case does not even fall within the exception. Their
appointments are not temporary and not to an executive but to the judiciary.

- applies to private employment

Q: How do you detect if its a midnight appointment or for purpose of votebuying?

A: (1) unless otherwise provided in this Constitution

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

(2) Vice President


(3) Member of the Cabinet and their deputies or assistants

- the idea is for them to focus in their functions


Q: What are the exceptions?

38

EX: The Vice President may be appointed as a Member of the


Cabinet xxx. (ARTICLE VII, Sec. 3, Par. 2)

unscrupulous public officials who took advantage of this scheme for


purposes of self-enrichment.

The Secretary of Justice is an ex-officio Member fo the


Judicial and Bar Council (ARTICLE VIII, Sec. 8, Par. 1)

- EO 284 was declared null and void!

(2) If they will hold that other office in an ex-officio capacity.


Liberties Union vs. Exec. Sec.)

(Civil

CIVIL LIBERTIES UNION VS. EXECUTIVE SECRETARY


President Aquino issued EO 284 allowing member of cabinet to hold not
more than 2 other positions in the government including government-owned
and controlled corporations. EO 284 was issued when President Aquino still
exercises legislative powers. The idea was to have them earn more.
Pursuant to EO 284, President Aquino appointed member of her Cabinet to
other positions. Civil Liberties Union questioned this on the ground that as
Members of the Cabinet, they are prohibited from holding other positions
under ARTICLE VII, Sec. 13. On the other hand, the Solicitor General
contends that they are covered by ARTICLE IX-B, Sec. 7, Par. 2 because
they are appointive officials. As members of cabinet, they can hold other
office if a law allows it, in this case, there is a law, EO 284.
SC: The contention of Civil Liberties Union is correct. Section 7, ARTICLE
IX-B, Par. 2 (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.) is meant to lay down the general rule applicable to all
appointive public officials and employees while Section 13, ARTICLE VII is
meant to be the exception applicable only to the President, Vice President,
Members of the Cabinet and their deputies and assistants.
- The evident purpose of the framers of the 1987 Constitution is to impose a
stricter prohibition.
- Section 13, ARTICLE VII is a new provision not found in 1935 and 1973
Constitution.
- This was a reaction to what happened during the Marcos Regime. There
was proliferation of newly created agencies, instrumentalities, and
government-owned or controlled corporations created by presidential
decrees and other modes of presidential issuances where cabinet members,
their deputies and assistants were designated to head or sit as member of
the board with the corresponding salary, emoluments, per diems,
allowances, and other perquisites of the office. This practice of holding
multiple offices or positions in the government soon led to abuses by

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

PUBLIC INTEREST CENTER, INC. VS. ELMA


Magdangal B. Elma was appointed by the President as Chairman of the
PCGG. At the same time, he was appointed as Chief Presidential Legal
Counsel. At that time, PCGG was placed directly under the Office of the
President and PCGG Chairman has the same rank, position, and salary as
that of a cabinet secretary. Public Interest center questioned this on the
ground that Elma, as a member of cabinet, he is prohibited from holding 2
positions under ARTICLE VII, Section 14.
SC: The prohibition in Section 13, ARTICLE VII of the 1987 Constitution
does not apply to Elma since neither the PCGG Chairman nor the CPLC is a
cabinet secretary, undersecretary, or assistant secretary even if the former
may have the same rank as the latter positions. Even if Section 13,
ARTICLE VII is not applicable, Elma still could not be appointed concurrently
to the offices of the PCGG Chairman and CPLC because neither office was
occupied by him in an ex-officio capacity and the primary functions of one
office do not require an appointment to the other post. Moreover, even if the
appointments in question are not covered by Section 13, ARTICLE VII of the
1987 Constitution, said appointments are still prohibited under Section 7,
ARTICLE IX-B, which covers all appointive and elective officials, due to the
incompatibility between the primary functions of the offices of the PCGG
Chairman and the CPLC.
- PRINCIPLE OF INCOMPATIBLE OFFICE : one which may not be held by
a member during his term without forfeiting his seat.
EX: Fiscal and PAO
Treasurer and Auditor
Congressman and Cabinet Secretary
ARTICLE VI, Sec 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
GOCCs or their subsidiaries, during his term without forfeiting his seat.
Neither shall he be appointed to any office which may have been created or
emoluments thereof increased during the term for which he was elected.
INCOMPATIBLE OFFICE

FORBIDDEN OFFICE

referred to in the first sentence

referred to in the second sentence

one which may not be held by a


member during his TERM of office

one which is forbidden by law even if


he is willing to forfeit his seat.

39

without forfeiting his seat.

TENURE: actual stay in office

ARTICLE X, Section 4 The


President of the Philippines shall
exercise general supervision over
local governments xxx

-not necessary for him to resign


before he accepts the other office; It
is automatic.

ARTICLE II, Section 25 The State


shall ensure the autonomy of local
governments.

TERM: provided by law

a member may be validly appointed


but he forfeits his seat.

he may not be validly appointed

more of an inhibition

more of a prohibition

Q: Congressman X was appointed


as Secretary of DENR, can he
validly accept the appointment?

Q: Congress created a new office,


Urban Poor Commission.
It
appropriated P10B. Congressman X
resigned and applied for that
position. Can he be validly
appointed?

A: Yes.

A: No. It was created during the


term in which he was elected. Even
if he is willing to resign, He cannot
still be appointed because it is a
forbidden office.

A: No!
- In this case, the function of CPLC is to review decisions of officers under
the Office of the President and among them is the PCGG.
CONTROL POWER

Q: Does the President have CONTROL over local government units?


A: No. His power is limited to GENERAL SUPERVISION. The power of
supervision means overseeing or the authority of an officer to see that the
subordinate officers perform their duties. If the subordinate officers fail or
neglect to fulfill their duties, the official may take such action or step as
prescribed by law to make them perform their duties. The Presidents power
of general supervision means no more than the power of ensuring that laws
are faithfully executed or that subordinate officers act within the law.
(JOSON VS. TORRES)

- Control is said to be the very heart of the power of the President. (Joson
vs. Torres)
Q: What is an EXECUTIVE DEPARTMENT, BUREAU, OR OFFICE?
A: EO 292 : ADMINISTRATIVE CODE OF 1987:

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

exercised
over
all
executive
departments bureaus, and offices

A: (1) to direct the performance of a duty;


(2) to restrain the commission of acts;
(3) to review, reverse, revise, alter, or modify the decisions of his
subordinates; or
(4) to substitute his own decision over that of his subordinates.

- Hence, the Presidents power of general supervision means to oversee; to


see to it that the local governments and their officials perform their functions
in accordance with law. No more than that.

Q: Can he still go back to his former


position?

CONTROL

Q: What is CONTROL?

GENERAL SUPERVISION
exercised over local governments

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

DEPARTMENT: any of the executive departments created by law.


Ex: Depatment of Finance
BUREAU: a principal subdivision of a department.
Ex: Bureau of Internal Revenue and Bureau of Customs
OFFICE: a major functional unit of a department or bureau.
Ex: Office of the Secretary of Finance, Regional Office of BIR
- All of these are under the control of the President.

40

DOCTRINE OF QUALIFIED POLITICAL AGENCY or ALTER EGO


The acts, decisions of the members of the cabinet, heads of bureaus and
offices, being alter ego of the President, rendered or performed in the
regular course of business are deemed to the acts of the President, unless
reprobated by him.
PIMENTEL VS. AGUIRRE
Allegedly, we were experiencing economic difficulties then so President
Estrada issued AO 43, amending Section 4 of AO 372, by reducing to five
percent the amount of Internal revenue Allotment (IRA) to be withheld from
the LGUs. Pimentel, Jr. et al. contends that in issuing AO 43, the President
was in effect exercising the power of control over LGUs while the
Constitution vests in the President, however, only the power of general
supervision over LGUs.
Also, they argued that the directive is in
contravention of Section 286 of the LGC and of Section 6, Article X of the
Constitution providing for the automatic release to each of these units its
share in the national internal revenue.
SC: Such withholding clearly contravenes the Constitution and the law. The
Constitution vests the President with the power of supervision, not control,
over LGUs. Such power enables him to see to it that LGUs and their
officials execute their tasks in accordance with law. While he may issue
advisories and seek their cooperation in solving economic difficulties, he
cannot prevent them from performing their tasks and using available
resources to achieve their goals. He may not withhold or alter any authority
or power given them by law. Thus, the withholding of a portion of internal
revenue allotments legally due them cannot be directed by administrative
fiat.
GANZON VS. CA
There were 10 administrative charges against Mayor Ganzon of Iloilo in the
Office of the President. The Office of the President investigated. DILG
Secretary, as the Presidents alter ego, preventively suspended Ganzon.
Ganzon questioned this contending that the Constitution has left the
President mere supervisory powers which supposedly excludes the power of
investigation and denied her control which allegedly embraces disciplinary
authority. According to him, the President may not validly investigate and
much more cannot place him under preventive suspension which is an
incident of the power to investigate.
SC: The impression of Ganzon is mistaken. Legally, supervision is not
incompatible with disciplinary authority. Investigating is not inconsistent with
overseeing although it is a lesser power than altering.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

- How can you expect the President to determine that the following performs
their powers and functions in accordance with law if you will deny him the
power to investigate.
- The power to investigate is an incident of the power of control.
MILITARY POWERS ARTICLE VII, Sec 18
3 DISTINCT MILITARY POWERS OF THE PRESIDENT
(1) Calling out power as the Commander-in-chief of the Armed Forces of the
Philippines
(2) Power to proclaim martial law
(3) Power to suspend the privilege of the writ of habeas corpus
INSTANCES WHEN THE PRESIDENT MAY CALL OUT AFP To
suppress
(1) lawless violence
(2) invasion
(3) rebellion
INSTANCES WHEN THE PRESIDENT MAY DECLARE MARTIAL LAW or
SUSPEND THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS
(1) invasion }
} when public safety requires it
(2) rebellion }
Other Limitations
(1) For a period not exceeding 60 days
(2) Expressly been made subject to judicial review under ARTICLE VII, Sec.
18, Par. 3 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. (LANSANG VS. GARCIA)
(3) Within 48 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.
(4) 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.

41

(5) 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.
(6) The Congress, if not in session, shall, within 24 hours following such
proclamation or suspension, convene in accordance with its rules without
need of a call.
(7) 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, (OLAGUER DOCTRINE)
Nor automatically suspend the privilege of the writ.
OLAGUER DOCTRINE

- ARTICLE VII, sec. 18, Par. 6 During the suspension of the privilege of
the writ, any person thus arrested or detained shall be judicially charged
within 3 days, otherwise he shall be released.
PARDONING POWER
ARTICLE VII, Sec.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.
FIVE MATTERS COVERED
(1) To grant reprieves

- Superseded AQUINO VS. COMMISSIONER

(2) To grant commutations

- during martial law, military courts may assume jurisdiction over civilians

(3) To grant pardons

- Ninoy Aquino questioned the assumption of jurisdiction of the military


tribunals

(4) To remit fines and forfeitures

- predictably, he was sentenced to death by musketry (firing squad)


- sentence was not carried out but he died just the same

(5) To grant amnesty


AMNESTY
- segregated from the 4 others

- Several Filipinos abroad were against the decision in Aquino vs.


Commission they were known as Olaguer group.

- concurrence of the majority of all member of congress is required

- They were out to embarrass the Marcos Government.

- conviction by final judgment is not required unlike the 4 others

Unfortunately, the Lovely brothers, among their con-conspirators


accidentally detonated a bomb.
- They did not die and the group was arrested.
- All were sentenced to die by musketry.
- While the case was pending before the SC, EDSA I happened.
- Justice Teehankee, the lone dissenter in the Aquino case,
became the Chief Justice of SC and he penned the Olaguer doctrine.
- ARTICLE VII, Sec. 18, Par. 5 The suspension of the privilege of the writ
shall apply only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion.
- In connection with ARTICLE III, Sec. 13 If the offense is bailable, one
can still post bail because under this The right to bail shall not be impaired
even if the privilege of the writ of habeas corpus is suspended.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

PARDON

AMNESTY

concurrence of congress is not


required

concurrence of congress is required

conviction
required

is

may be granted even without prior


conviction by final judgment

not

erases whatever shade of guilt there


was

usually extended to individuals


convicted of common crimes

extended to group of individuals


charged of political offenses

private act of the President

official act of the President

by

final

judgment

may mean forgiveness


forgetfulness

but

- Important to know distinction because of judicial notice


- Under the law on evidence, there are 3 things which need not be proven:

42

(1) those matters which the court must take judicial notice of
(2) judicial admissions
(3) presumptions
- Under Section1, Rule 129 of the Rules of Court, one of the matters which
the courts must take judicial notice of is the official acts of the legislative,
executive and judicial departments of the Philippines.

purpose of the privilege. Pardon does not ipso facto restore a convicted
felon to public office necessarily relinquished or forfeited by reason of the
conviction although such pardon undoubtedly restores his eligibility for
appointment to that office.

- Hence, amnesty, which is an official act of the President, no longer


requires proof.

- The very essence of a pardon is forgiveness or remission of guilt. Pardon


implies guilt. It does not erase the fact of the commission of the crime and
the conviction thereof. It does not wash out moral stain. It involves
forgiveness not forgetfulness.

- On the other hand, pardon, being a private act of the President, requires
proof and the convict who was granted such pardon has the burden of proof.

- A pardon looks to the future. It is not retrospective. It makes no amends


for the part. It affords no relief for what has been suffered by the offender.

LIMITATIONS OF THE PARDONING POWER

- Hence, she is excused from serving sentence; but in the eyes of the law,
she is still a convict. Unless the grant expressly so provides, she cannot be
reinstated. And since she is not entitled to be reinstated, with more reason
that she is not entitled to backwages.

(1) does not apply in cases of impeachment (ARTICLE VII, Sec. 19)
(2) there must first be conviction by final judgment (ARTICLE VII, Sec. 19)
(3) not applicable to legislative contempt
(4) not applicable to election offenses without favorable recommendation of
Comelec (ARTICLE IX-C, Sec. 5)
REPRIEVE suspension or stay of execution of a death convict
Probation suspension of penalty
COMMUTATION reduction of penalty by 1 degree from death to RP
Q: Is pardon available to those guilty of administrative offenses?
A: Yes. Pardon is available not only to those guilty of criminal offense but
also to those guilty of administrative offense. Section 19, ARTICLE VII
makes no distinction between criminal offense and administrative offense
except with respect to impeachment. If persons convicted of heinous crimes
where evidence of guilt is beyond reasonable doubt are entitled to pardon,
why do we have to deny the same to those convicted of administrative
offenses where only substantial evidence is required? (LLAMAS VS.
ORBOS)MONSANITO VS. FACTORAN Not entitle to be reinstated; no
backwages
The Assistant Municipal Treasurer was convicted of malversation through
falsification of public document. Later, he was granted absolute pardon by
the President, when he was released, he demanded to be reinstated to his
former position and be paid backwages.
SC: 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 persons innocence (which is rare), it
cannot bring back lost reputation for honesty, integrity, and fair dealing. This
must be constantly kept in mind, lest we lose track of the true character and

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

- It does not impose upon the government any obligation to make reparation
for what has been suffered since the offense has been established by
judicial proceedings, that which has been done or suffered while they were
in force is presumed to have been rightfully done and justly suffered and no
satisfaction for it can be required.GARCIA VS. COA
Garcia was an employee of the Bureau of Telecommunications. Several
properties of BT were lost. He was summarily dismissed from the service on
the ground of dishonesty. It became final subsequently. A criminal case for
qualified theft was filed against Garcia based on the same facts obtaining in
the administrative actions. After a full blown trial, Garcia was acquitted not
based on lack of proof beyond reasonable doubt but based on an express
finding that he was innocent of the crime charged.
Garcia sought
reinstatement to his former position in view of his acquittal in the criminal
case. Bureau of Telecommunications denied his request. Hence, Garcia
pleaded to the President for executive clemency. Acting on the favorable
endorsements of the then Ministry of Transportation and Communications
and the CSC, the President granted Garcia executive clemency. Then
Garcia filed with COA a claim for payment of backwages. This was denied
by COA on the ground that executive clemency granted to him did not
provide for the payment of back salaries and that he has not been reinstated
in the service.
SC: Garcia should not be considered to have left his office for all legal
purposes, so that he is entitled to all the rights and privileges that accrued to
him by virtue of the office held, including backwages. If the pardon is based
on the innocence of the individual, it affirms this innocence and makes him a
new man and as innocent as if he had not been found guilty of the offense
charged. When a person is given pardon because he did not truly commit

43

the offense, the pardon relieves the party from all punitive consequences of
his criminal act, thereby restoring him his clean name, good reputation and
unstained character prior to the finding of guilt.
- The bestowal of executive clemency on Garcia in effect completely
obliterated the adverse effects of the administrative decision which found
him guilty of dishonesty and ordered his separation from the service. This
can be inferred from the executive clemency itself exculpating Garcia from
the administrative charge and thereby directing his reinstatement, which is
rendered automatic by the grant of the pardon. This signifies that petitioner
need no longer apply to be reinstated to his former employment. He is
reinstated to his office ipso facto upon the issuance of the clemency. His
automatic reinstatement entitles him to backwages.
- He is entitled to full backwages for 8 years. Verily, law, equity, and justice
dictate that Garcia be afforded compassion for the embarrassment,
humiliation, and above all injustice caused to him and his family by his
unfounded dismissal. This is a little measure. SC even commended him for
protecting government property.
ESTRADA VS. DESIERTO
Leo Echegaray was convicted of qualified rape. At that time, the death
penalty is still in effect. On the date he is to be executed by lethal injection,
the SC issued a TRO. This was criticized on the ground, among others, that
it encroached on the power of the President to grant reprieve under Sec. 19,
ARTICLE VII of the 1987 Constitution.
SC: Sec. 19, ARTICLE VII of the 1987 Constitution is simply the source of
power of the President to grant reprieves, commutations, and pardons and
remit fines and forfeiture after conviction by final judgment. This provision,
however, cannot be interpreted as denying the power of the courts to control
the enforcement of their decisions after the finality. In truth, an accused who
has been convicted by final judgment still possesses collateral rights and
these rights can be claimed in the appropriate courts. The suspension of
such a death sentence is indisputably an exercise of judicial power. It is not
usurpation of the presidential power of reprieve though its effect is the same
the temporary suspension of the execution of the death convict. The
powers of the Executive, Legislative, and the Judiciary to save the life of a
death convict do not exclude each other for the simple reason that there is
no higher right than the right to life.
Q: Discuss the nature of a CONDITIONAL PARDON.
A: A CONDITIONAL PARDON is in the nature of a contract between the
sovereign power of 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
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

prison to serve the unexpired portion of the sentence or an additional one.


By the pardonees 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. (In Re: Wilfredo
Sumulong Torres)
Q: Is the grant or revocation of conditional pardon by the President subject
to judicial review?
A: No! This exercise of presidential judgment is beyond judicial scrutiny.
(In Re: Wilfredo Sumulong Torres)
BORROWING POWER
ARTICLE VII, Sec. 20 The President may contract or guarantee foreign
loans on behalf of the Republic of the Philippines with the prior concurrence
of the Monetary Board, and subject to such limitations as may be provided
by law xxx.
LIMITATIONS ON THE BORROWING POWER:
(1) There must be prior concurrence of the Monetary Board.
(2) Subject to such limitations as may be provided by law.
TREATY-MAKING POWER
ARTICLE VII, Sec. 21 No treaty or international agreement shall be valid
and effective unless concurred in by at least 2/3 of all the Members of the
Senate.
Q: Who has the power to ratify treaties?
A: The power to ratify is vested in the President and not in the legislature.
The role of the Senate is limited only to giving or withholding its consent or
concurrence to the ratification. (Bayan vs. Zamora)
- What requires concurrence is a treaty or international agreement NOT an
executive agreement.
Q:
Is an EXECUTIVE AGREEMENT
INTERNATIONAL AGREEMENT?

equally

binding

as

an

A: Yes. In international law, there is no difference between treaties and


executive agreements in their binding effect upon states concerned as long
as the functionaries have remained within their powers. International law
continues to make no distinction between treaties and executive
agreements. They are equally binding obligations upon nations.

44

- The distinction between TREATY and EXECUTIVE AGREEMENT is more


of a municipal law whether concurrence of the Senate is required or not.
Q: How to determine whether an agreement is executive or international?
A:
INTERNATIONAL
- involves major policy
- more or less permanent and of
duration
Q: Is VFA a treaty?

EXECUTIVE
- involves implementation of that policy
more or less temporary longer
and of short duration

A: Yes. The President himself considered it as a treaty. He referred the


VFA to the Senate for concurrence.
Q: What are the conditions before foreign military bases, troops, or facilities
may be allowed in the Philippines pursuant to ARTICLE XVIII, Sec. 25 of the
1987 Constitution?
A: Sec. 25, ARTICLE XVIII disallows foreign military bases, troops or
facilities in the country unless the following conditions are sufficiently met:
(a) it must be under a treaty;
(b) the treaty must be duly concurred in by the Senate and when so
required by Congress, ratified by a majority of the votes cast by the people in
a national referendum; and
(c) recognized as a treaty by the other contracting state
BAYAN VS. ZAMORA
The President entered into a VFA with the US under which American troops
will be allowed to enter the Philippines to conduct joint military exercises with
members of the Philippine armed forces. He subsequently transmitted said
VFA to the Senate for concurrence invoking his treaty-making power under
Section 21, ARTICLE VII of the 1987 Constitution. Petitioners, who are
opposed to the VFA, challenged the constitutionality of said VFA contending
that it was grave abuse of discretion on the part of the President to transmit
the same to the Senate invoking Section 21, ARTICLE VII of the Constitution
as the controlling provision should have been Section 25, ARTICLE XVIII.
Q: Which Constitutional provision was upheld?
A: Petitioners contention on this point was upheld.
- Section 21, ARTICLE VII deals with treaties or international agreements in
general, in which case, the concurrence of at least 2/3 of all the Members of
the Senate is required to make the subject treaty or international agreement
valid and binding on the part of the Philippines. This provision lays down the
general rule on treaties or international agreements and applies to any form

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

of treaty with a wide variety of subject matter, such as, but not limited to,
extradition or tax treaties or those economic in nature. All treaties or
international agreements, entered into by the Philippines, regardless of
subject matter, coverage, or particular designation or appellation, requires
the concurrence of the Senate to be valid and effective.
- In contrast, Section 25, ARTICLE XVIII is a special provision that applies
to treaties which involve the presence of foreign military bases, troops, or
facilities in the Philippines. Under this provision, the concurrence of the
Senate is only one of the requisites to render compliance with the
constitutional requirement and to consider the agreement binding on the
Philippines.
- Undoubtedly, section 25, ARTICLE XVIII which specifically deals with
treaties involving foreign military bases, troops, or facilities should apply in
the instant case. It is a finely-imbedded principle in statutory construction
that special provision or law prevails over a general one. To a certain extent
and in a limited sense, however the provisions of Section 21, ARTICLE VII
will find applicability with regard to the issue and for the sole purpose of
determining the number of votes required to obtain the valid concurrence of
the Senate.
Q: The nature of the petition filed was for certiorari and prohibition. Did it
constitute grave abuse of discretion on the part of the President when he
submitted the VFA to the Senate invoking Section 21 instead of Section 25?
A: No! The President, in ratifying the VFA and in submitting the same to
Senate for concurrence, acted within the confines and limits of the powers
vested in him by the Constitution. It is of no moment that the President, in
the exercise of his wide latitude of discretion and in the honest belief that
VFA falls within the ambit of Section 21, ARTICLE VII of the Constitution
referred to the Senate for concurrence. Certainly, no abuse of discretion
much less a grave, patent and whimsical abuse of judgment, may be
imputed to the President in his act of ratifying the VFA and referring the
same to the Senate for the purpose of complying with the concurrence
requirement embodied in the fundamental law. In doing so, the President
merely performed a constitutional task and exercised a prerogative that
chiefly pertains to the functions of his office.
BUDGETARY POWER
ARTICLE VII, Sec. 22 The President shall submit to the Congress within
30 days from the opening of every regular session, as the basis of the
general appropriations bill, a budget of expenditures and sources of
financing, including receipts from existing and proposed revenue measures.
- Correlate with Section 25(1), ARTICLE VI Congress may not increase
the appropriations recommended by the President for the operation of the
45

Govt as specified in the budget. The form, content, and manner of


preparation of the budget shall be prescribed by law.
- The most that Congress could do is to trim down or slash the budget!

MAJORITY = 5
VOTING

INFORMING POWER

- Only the members present and who participated in the deliberations on the
issues in the case shall vote.

ARTICLE VII, Sec. 23 The President shall address the Congress at the
opening of the regular session. He may also appear before it at any other
time.

- All cases xxx which shall be heard en banc xxx shall be decided with the
concurrence of a majority of members who actually took part in the
deliberations on the issues in the case and voted thereon.

JUDICIAL DEPARTM ENT

- Cases or matters heard by division shall be decided or resolved with the


concurrence of a majority of 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 a t least 3 such members.

JUDICIAL POWER (ARTICLE VIII, Sec. 1)


TYPES OF POLITICAL QUESTIONS
THREE IMPORTANT FUNCTIONS OF THE COURT
REQUISITES FOR THE EXERCISE OF JUDICIAL REVIEW
COMPOSITION OF THE SUPREME COURT Section 4, ARTICLE VIII
- 15 Justices: Chief Justice and 14 associate Justices
- May sit en banc or, in its discretion, in divisions of 3, 5, or 7 members
- In practice, sits in division of 5
- First division: Chief Justice = Chairman
st
- Second division: 1 most senior = Chairman
nd
- Third division: 2 most senior = Chairman
QUALIFICATION Section 7, ARTICLE VIII
OF MEMBERS
COURT

OF

SUPREME

OF ANY LOWER COLLEGIATE


COURT

(1) natural born citizen of the Phils.

(1) citizen of the Phils.

(2) at least 40 years of age

(2) member of the Bar

(3) must have been for 15 years or


more a judge of a lower court or
engaged in the practice of law in the
Phils

(3)
possesses the qualifications
prescribed by Congress

(4) must be a person of proven


competence, integrity, probity and
independence

(4) must be a person of proven


competence, integrity
probity and independence

QUORUM = 8

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

- When the required number is not obtained, the case shall be decided en
banc.
- No doctrine or principle of law laid down by the court in a decision
rendered en banc or in a division may be modified or reversed except by the
court sitting en banc.
Q: What cases are to be heard by the Supreme Court en banc?
A: (1) Cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, executive order, or presidential
decree, proclamation, order, instruction, ordinance or regulation is in
question;
(2) Criminal cases in which the appealed decision imposes the death
penalty;
(3) Cases raising novel questions of law;
(4) Cases affecting ambassadors, other public ministers and consuls;
(5) Cases involving decisions, resolutions, or orders of the CSC,
Comelec, and COA;
(6) Cases where the penalty to be imposed is the dismissal of a judge,
officer or employee of the judiciary, disbarment of a lawyer, or either the
suspension of any of them for a period of more than one (1) year or a fine
exceeding P10,000 or both;
(7) Cases where a doctrine or principle laid down by the court en banc
or in division may be modified or reversed;
(8) Cases assigned to a division which in the opinion of at least (3)
members thereof merit the attention of the court en banc and are acceptable
to a majority of the actual membership of the court en banc; and

46

(9) All other cases as the court en banc by a majority of its actual
membership may deem of sufficient importance to merit its attention.
CONSTITUTIONAL PROVISIONS THAT TEND TO STRENGTHEN THE
INDEPENDENCE OF THE JUDICIARY
(1) ARTICLE VIII, Sec. 9 The Members of the Supreme Court and judges
of 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.

STATE PRINCIPLES AND POLICIES


ARTICLE II (AND RELATED PROVISIONS), 1987
CONSITUTION
I.

Taada v. Angara By its very nature, Art. II are policies and principles that
may guide the Legislature in the enactment of laws and the courts in its
interpretation

JUDICIAL AND BAR COUNCIL (Section 8, Article VIII)


Functions:
-principal function of recommending appointees to the judiciary
-may exercise such other functions and duties as the SC may
assign to it
Composition:
(1) Chief Justice- as ex officio Chairman
(2) Secretary of Justice
} as ex officio members
(3) A representative of the Congress
}
(4) A representative of the Integrated Bar ]as regular members
(5) A professor of law
]
(6) A retired member of the SC
]
(7) A representative of the private sector
]
- Term:
The regular members of the Council shall be appointed by the President for
a term of 4 years with the consent of the Commission on Appointments.
(2) ARTICLE VIII, Sec. 3 The Judiciary shall enjoy fiscal autonomy.
Appropriations for the Judiciary may not be reduced by the legislature below
the amount appropriated for the previous year and after approval, shall be
automatically and regularly released.
Q: What is fiscal autonomy?
A: Fiscal autonomy contemplates a guarantee of full flexibility to
allocate and utilize their resources with the wisdom and dispatch that their
needs require. It recognizes the power and authority to levy, assess and
collect fees, fix rates of compensation not exceeding the highest rates
authorized by law for compensation and pay plans of the govt and allocate
and disburse such sums as may be provided by law or prescribed by them in
the course of the discharge of their functions. Fiscal autonomy means
freedom from the outside control.

General Considerations:

Hence, as a general rule, these provisions are non-self-executin


BUT a provision that is complete in itself, and provides sufficient
rules for the exercise of rights, is self-executing
Thus, certain provisions under Art. II are self-executing
Eg.: Sec. 16 (See Oposa v. Factoran)
The 1st sections are entitled Principles, while the rest are entitled Policies
However, there seems to be no clear distinction between what are
Principles and what are Policies.
II.

Sec. 1, Art. Ii The Philippines I a democratic and republican


State.
Sovereignty resides in the people and all
government authority emanates from them.

This is prescriptive of the kind of government that we should have it should


be democratic and republican. We cannot have any other kind of
government
Note that in International Law, it is not concerned with the kind of
government. What is essential is that there is a government, since it is an
essential element of the State.
Republican hence, we have a representative type of
government we elect our leaders.
Thus, we have Art. V on Suffrage, and Art. IX-C on COMELEC
Relate to Art. XI, Sec 1 Public office is a public trust. Public officers and
employees must at all times be accountabels to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives.
Because sovereignty resides in the people, public office is a public
trust. Hence, there is the sense of accountability.
III. Sec. 2, Art II The Philippines renounces war as an
instrument of national policy, adopts the generally

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

47

accepted principles of international law as part of the law


of the land and adhere to the policy of peace, equality,
justice, freedom, cooperation, and amity with all nations
War is renounced as an instrument of national policy. Thus, no one has the
power to declare war
BUT: Congress can declare a State of War
Also, the President can only use military powers in case of
invasion, rebellion, etc. He has no power to declare war.
BUT, does not that when we are attacked, we cannot engage in
war!
Constitution only renounces offensive war, not defensive war
This is one of the Rights of States:
1. Sovereignty and Independence
2. Property and Jurisdiction
3. Equality
4. Existence and Self-Defense
5. Diplomatic Intercourse
This is constituent with the policy of the UN, of which we are a member.
Adopt: the generally accepted principles of international law as part of the
law of the land. Reaffirms the Doctrine of Incorporation
Examples of generally accepted principles of International Law
1. Pacta sunt servanda
2. Rebus sic stantibus
3. State Immunity from Suit
4. Sovereign Equality if States
IV. Sec. 3, Art II Civilian authority is at all times, supreme over
the military. The AFP is the protector of the people and
the State. Its goal is to secure the sovereignty of the State
snd the integrity of the national territory. (Civilian
Supremacy Clause)
It is expressly stated that it is SUPREME over the military
Role of the AFP:
1. Secure State sovereignty
2. Secure integrity of the national territory
Q:

The provision says the AFP is the protector of the people


and the State Does this justify a coup d etat?

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

A:
NO! This clause should not be lifted out of context. Look
st
at the 1 sentence of the provision that the civilian authority is supreme
over the military. Thus, the AFPs role must be understood within the
context of civilian supremacy.
INTEGRATED BAR OF THE PHILS. v. ZAMORA
FACTS : Estrada issued an LOI deploying the marines all over Metro Manila
HELD: (1) Civilian Supremacy Clause not Violated The calling of the
marines in this case constitutes permissible use of military assets for civilian
enforcement. The limited participation of the Marine is evident in the
provisions of the LOI, which provides the metes and bounds of their
authority. The local police forces are in charge of the visibility patrols the
real authority belongs to the PNP, the Metro Manila Police Chief is the
overall leader of the PNP-Philippine Marines joint visibility patrols.
(2) Deployment of Marines to assist the PNP does not unmake the civilian
character of the PNP the Marines render only assistance in conducting the
patrols. There is no insidious incursion of the military in civilian affairs. In
fact, military assistance to civilian authorities is rendered in the following
actuations: elections, administration of the Philippine Red Cross, relief and
rescue operations during calamities and disasters, amateur sports,
promotion and development, development of the culture and the arts,
conservation of natural resources, implementation of the agrarian reform
program, enforcement of customs laws, composite civilian-military law
enforcement activities, conduct of licensure examinations, conduct of
nationwide tests for elementary and highschool students, anti-drug
enforcement activities, sanitary inspections, conduct of census work,
administration of the Civil Aeronautics Board, assistance in installation of
weather forecasting devices, and peace and order policy formulation in
LGUs.
V.

Sec. 4, Art. II The prime duty of the Government is to serve


and protect the people. The Government may call upon
the people to defend the State and, in the fulfillment
thereof, all citizens may be required, under conditions
provided by law, to render personal military on civil
service.

Q: What is the Governments Duty?


A: To serve and protect the people
Service to the State

48

Q:
It states that the government may call upon the people to
defend the State. Does this amount to involuntary servitude?
A:
NO! This is an exception to the rule n involuntary
servitude:
Exceptions to the rule on involuntary servitude:
1. Military service to defend the State
2. Penal punishment
3. Assumption of jurisdiction of DOLE in labor cases
4. Mariners and pilots
5. Minor children under the patria potestas of parents
Note that the provisions says PERSONAL service
Thus, one cannot hire mercenaries to take ones place.
VI. Sec. 16, Art. II 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.
Q:
This refers to a right of the people. Why is this
found in Art. II and not in Art. III (Bill of Rights)?

TANO v. SOCRATES (GR. 110249, 21 Aug. 1997)


FACTS: The Province of Palawan and City of Pierto Princesa enacted
ordinances prohibiting the catching and exportation of live tropical fishes.
Some fishermen were apprehended for violating said ordinances, They now
challenge the constitutionality of said ordinances, invoking their preferential
rights as subsistence fishermen to the use of our communal marine
resources.
HELD: The preferential rights of subsistence fishermen to the use of marine
resources is not absolute. Marine resources, per the Regalian Dontrine and
under Art. XII, Sec. 2, belongs to the State, and their exploration,
development and utilization shall be under the States full control and
supervision. It is a policy enshrined in the Constitution that the State has the
duty to protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature. The
ordinances are meant precise to this, so that the enjoyment of our resources
may be guaranteed for the present and future generations. The right to a
balanced and healthful ecology carries with it a correlative duty to refrain
from impairing the environment.
VII. Provisions on Economic Policy
1.

A:
This right belongs to a different category of rights!
Oposa v. Factoran (224 SCRA 792, 1993)
HELD: While this right is found under the
Declaration of Principles and State Polivies, it does not
follow that it is less important than any of the c ivil and
political rights under the Bill of Rights. This right belongs
to a different category of rights, since it concerns nothing
less than self preservation and self- perpetuation, the
advance of which may be said to predate all governments
and Constitutions, since they are presumed to exist from
the inception of humankind.
This is self-executing provision! (Oposa v. Factoran) Thus, its
violation gives rise to a cause of action.

Art. XII, Sec. 10(2) In the grant of rights, privileges, and


concessions covering the national economy and
patrimony, the State shall give preference to qualified
Filipinos
This is known as the Filipino First Policy

MANILA PRINCE HOTEL v. GSIS (GR. 118295, 02 May 1997, 267 SCRA
402)
FACTS:
The Manila Hotel, which was previously owned by a US
Corporation, was then owned by GSIS.
Pursuant to the policy of
Privatization, the GSIS held it up for bidding. The Filipino Corporation lost.
However, it offered to match the bid of the winning foreign corporation.

In relation to the Preferential Right of Subsistence Fishermen to the


Use of Communal Marine and Fishing Resources

HELD: (1) Art. XI, Sec. 10 (2) is a self-executing provision. It is a


mandatory, positive command that is complete in itself and which needs no
further guidelines or implementing laws or rules for its enforcement, it does
not require any legislation to put it in operation.

Art. XIII, Sec. 7 The State shall protect the rights of


subsistence fishermen, especially of local communities, to
the preferential use of communal marine and fishing
resources, both inland and offshore.

(2) The word patrimony means heritage. Heritage includes not only natural
resources but also our national and cultural heritage. While the Manila Hotel
was not originally Filipino, it has become truly Filipino, with its own history. It
is a mute witness to our history.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

49

2.

Art. II, Sec. 19 The State shall develop a self-reliant and


independent national economy effectively controlled by
Filipinos

This refers to the method of teaching


4.

This refers to the students

TAADA v. ANGARA (272 SCRA 18, [1997])


HELD: This economic policy does not rule out the entry of foreign
investments, goods, and services, nor does it contemplate economic
exclusion or 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 bothe
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 market.
VIII. Provisions on Education

Who may be admitted to study?

Right of the School to Determine Who may be Admitted to Study


Thus, mandamus would not lie to compel a school to
accept a student
BUT: once the school admitted the student, there is now a
contract between them this a contract with PUBLIC
INTEREST
Thus, the school may not arbitrarily dismiss or
expel a student it should be based on either:
1.

Failure to meet minimum academic


requirements prescribed for the
school or for the subject;

2.

Violation of the schools rules of


discipline

Academic Freedom Art. XIV, Sec. 5 (2) Academic freedom


shall be enjoyed in all institutions of higher learning.
Note that the provision says institutions of higher
learning
This refers to the tertiary level only!
Q:

What is academic Freedom?

A:

This is the right of the school or college to dictate


for itself, its aims and objectives, and how best to
attain them free from outside coercion or
interference save possible when the overriding
public welfare calls fro some restraint. It has a
wide sphere of autonomy. (University of San
Agustin v. CA [23 SCRA 761])

Subsumed in the tern academic freedom is the freedom to


determine, on academic grounds, the following:
1.

Who may teach?


This refers to the faculty

2.

What may be taught?


This refers to the subject and courses to
be offered

Also, the school must conduct an investigation


it must observe due process to establish the
culpability of the student
UP BOARD OF REGENTS v. CA (GR. 134625, 31 Aug. 1999)
FACTS: Aroklaswamy Willuan Margaret Celine was given a masteral degree
and was allowed to graduate. Subsequently, however, it was discovered
that her thesis was plagiarized. Thus, UP revoked her degree.
HELD: If an institution of higher learning can decide who can and who
cannot study in it, it can also determine on whom it can convey the honor
and distinction of being its graduates. If the conferment of an honor or
distinction was obtained through fraud, a university can revoke or withdraw
such honor or distinction. This freedom does not terminate upon a students
graduation, since it is precisely the graduation that is in question.
Art. XIV, Sec. 4(1) The State recognizes the complementary role of public
and private institution in the educational system and shall exercise
reasonable supervision and regulation of all educational institutions
This deals with the States power to regulate educational
institutions
MIRIAM COLLEGE FOUNDATION v. CA (348 SCRA 265, 15 Dec. 2000)

3.

How it shall be taught?

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

50

HELD: The power of the State to regulate educational institutions is subject


to the requirement of reasonableness. Moreover, what is allowed is only the
regulation and supervision of educational institutions not the deprivation of
their rights.

NOTE: The terms are always used in the plural form


3.

Ancestral Domain and Ancestral Lands, Definition and


Nature (Separate Opinion of J. Puno)

Nature:: These are private property of indigenous peoples it does not


constitute part of the land of the public domain
IX. Rights of Indigenous Peoples

Definitions:

CRUZ v. SECRETARY of DENR (GR. 135385, 06 Dec 2000)

(1) Ancestral Domain Sec. 3(a), IPRA

FACTS: The constitutionality of RA 8371 (Indigenous Peoples Reform Act)


was quesrioned. The SC en banc voted 7-7, hence, since the presumption
is for constitutionality, such presumption was not overthrown, and the law
was declared unconstitutional. Each justice wrote a separate opinion, and
all opinions form part of the decision.

Ancestral Domain all areas belonging to ICCs/ IPs held under


a claim of ownership, occupied or possessed by ICCs/IPs by
themselves or through their ancestors, communally or
individually since time immemorial, continuously until the
present, except when interrupted by war, force majeure or
displacement by force, deceit, stealth or as a consequence of
government projects or any other voluntary dealings with
government and/or private individuals or corporations

SALIENT POINTS
1.

Nature of RA 8371(Separate Opinion of J. Puno)


RA 8371:
(1) Recognizes the existence of the indigenous cultural
communities (ICCs) or indigenous peoples (IPs) as a
distinct sector in the Philippine society
(2) Grants them the ownership and possession of their
ancestral domains and ancestral lands, and defines the
extent of these lands and domains,
(3) Gives the indigenous concept of ownership under
customary law which traces its origin to native title.
2. Definition and Distinction ICCs/IPs (Separate Opinion of
J. Kapunan)
Sec. 3, RA 8371 IPs/ICCs refer to a group of people or
homogenous societies identified
by self-ascription and
ascription of others, who have continuously lived as organized
community on communally bounded and defined territory, and
who have, under claims of ownership since time immemorial,
occupied, possessed and utilized such territories, sharing
common bonds of language, customs, traditions, and other
distinctive cultural traits, or who have, through resistance to
political, social and cultural inroads of colonization, nonindigenous religions and cultures, became historically
differentiated from the majority of Filipinos.

NOTE: There is really no difference between the 2 terms, except:


ICCs the term used in the Constitution
IPs the term used in the international community and the UN

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

It comprise lands, inland waters, coastal areas, and natural


resources therein, including ancestral lands, forests, pasture,
residential, agricultural and other lands whether alienable or
not, hunting grounds, burial grounds, worship areas, bodies of
water, mineral and other natural resources.
(2) Ancestral Land - Sec. 3(b), IPRA
These are lands held by the ICCs/IPs under the same
conditions as ancestral domains except that these are limited
to lands and that these land are not merely occupied and
possessed but are also utilized by them under claims of
individual or traditional group ownership.

Thus, Ancestral Domain is a broader concept it includes Ancestral Lands


4.

Acquisition by ICCs/IPs of their Rights to their


Ancestral Domains and Lands (Separate Opinion of J.
Puno)
2 ways:
(1) By Native Title over both Ancestral Domain and
Ancestral Lands
(2) By Torrens Title under the Public Land Act over
Ancestral Lands only.

51

5.

Native Title, Concept (Separate Opinion of J. Puno)

Ownership by Native Title

This refers to the ICCs/IPs pre-conquered rights to lands


and domains held under a claim of private ownership as far back as
memory reaches.

Here, the land has been held by its


possessor and his predecessor-ininterest in the concept of an owner since
time immemorialThus, the land is not
acquired from the State there was no
transfer from the State

Theses lands are deemed NEVER to have been public


lands and are presumed to have been held privately since before
the Spanish Conquest.

The land is private in character as far


back as memory reaches.

This right of private ownership is peculiarly granted to


ICCs/IPs over their Ancestral Lands and Domains.
7.

Formal recognition of this right is embodies in a Certificate


of Ancestral Domain Title (CADT)
A CADT is just like a Torrens Title it is evidence of
private ownership of land by native title.
6.

Ownership by Acquisitive Prescription v. Ownership by


Native Title (Separate Opinion of J. Kapunan)
Ownership by Acquisitive Prescription

Jura Regalia requires that private title to land must


be traced to some grant express or implied from
the Spanish Crown or its successors the American
Colonial Government and after, the Philippine
Government.

Q:

Does jura regalia negate native title?

A:

NO!

In Cario v. Insular Government, the SC has held that


when as far back as testimony or memory goes, the land has been
held by individuals under a claim of private ownership, it will be
presumed to have been held in the same way from before the
Spanish conquest, and never to have been public land.

Involves a conversion of the propertys character


from alienable public l
and to private land
Thus, there is a transfer for title from the State to
a private person

Native title is an exception to jura regalia.

Meaning, the land is originally public land, which


is converted to private

Art. XII, Sec 2. All lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential
energy, fisheries, forest or timber, wildlife, flora and fauna and other
natural resources are owned by the State

Note: This requires that the land is alienable


Public Land Art. XII, sec. 3 Lands of the public
domain are classified into agricultural, forest or timber,
mineral lands, and national parks

This is the recognition of the Doctrine of Jura Regalia

Of these, only agricultural lands are alienable


Requirement for Acquisitive Prescription
the private individual must have
possessed the land open, continuously,
exclusively, adversely, and notoriously,
in the concept of an owner, for either of
the following periods:
(1) 30 years bad faith
(2) 10 years good faith

ELECTION LAW
Significant Laws
BP 881 Omnibus Election Code
RA 6646 Electoral Reform Law of 1987
RA 7166
RA9006 Fair Election Act
RA 9189 Absentee Voters Act of 2003

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

52

Election Process divided into 3 stages:

NLRC

(1) Pre-election

Miranda v. Abaya

Sec. 26 OEC

(2) During election

COMELEC
Resolution

(3) Post Election

-Disqualification Cases
Sec. 68 OEC
Sec. 69 OEC (5 days)

PRE-ELECTION STAGE

Sec.
days)

Registration of Voters
Q:
A:

Who may register?


Only those who are qualified.

Q:

Is there an exception to the residence qualification?

VOTERS QUALIFICATIONS

A:

Yes. RA 9189 (Absentee Voters Act of 2003)

Art. V, Sec. 1 Suffrage may be exercised by all citizens of the Philippines


not otherwise disqualified by law, who are at least eighteen 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 preceding the
election. No literacy, property or other substantive requirement shall be
imposed on the exercise of suffrage.

MACALINTAL v. COMELEC

(1) citizens of the Philippines


(2) not otherwise disqualified by law

78

OEC

(25

HELD: Under the ABSENTEE VOTERS ACT OF 2003, overseas absentee


voters are allowed to vote for President, Vice-President, Senators and PartyList representatives. This is a clear intent to enfranchise Filipinos abroad, to
allow them to have a voice in the selection of our leaders. This refers to
IMMIGRANTS and those who acquire the right to reside therein. It does not
pertain to NATURALIZED CITIZENS. However, there must be an affidavit
executed by these Filipinos abroad that they will return and resume
residence in the Philippines within 3 years.

(3) at least 18 years of age

This is an exception to residence qualification

(4) resident of the Philippines for at least one year and of the place wherein
they propose to vote for at least six months immediately preceding the
elections

For purposes of election law, ones domicile is that to which the


Constitution refers when it speaks of residence

Section 8, BP 881

Election Period: 90 days before the day of the election and shall end 30 days
thereafter

-Registration
Art. V. Sec 1

-Filing of Certificate of
Candidacy
Sec. 79(A) OEC

-Political Parties
Art. IX-C, Sec 2(5)

-Substitution
Candidates

Sec. 73 OEC
Monsale v. Nico
Sec. 66 OEC
PNOC-EDC

-Campaign Period

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Sec. 6 OEC

Sec. 4 (70 Art. VII

Sec. 4 RA 7166

Sec. 17 Art. VII

Mitmug
COMELEC

of

v.

Sec. 77 OEC
Sec. 12 RA 9006

v.

Failure of Elections

Sec. 2(2) Art. IX-C

Pre-Proclamation
Sec.

Election Protest
Counter protest

241,242,243

53

OEC

Kho v. COMELEC

Sec. 15, RA 7166

Effects
Disqualification

of

Quo Warranto

Effect of Death
De Castro v. COMELEC

Sec. 6, RA 7166

Santiago v. FVR

Guerrero
COMELEC

v.

Loong
COMELEC

v.

Salcedo
COMELEC

v.

Tecson
COMELEC

v.

A:

No. It is merely a condition precedent for the exercise of the right


of suffrage. Registration laws are police power measures designed
to ensure that only those who possess qualifications and none of
the disqualifications can be allowed to exercise the right of suffrage.
They are for the purpose of conducting an honest and free election.

REGISTRATION OF POLITICAL PARTIES


Q:

Who has the power to register political parties?

A:
COMELEC in accordance with Article IX-C, Sec. 2(5). It is the
registration with COMELEC that vests personality to an organization as a
political party.
Art. IX-C, Sec. 2(5) ORGANIZATIONS THAT MAY NOT 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 which refuse to uphold the Constitution
(4) those which are supported by any foreign government
Art. IX-C, Sec. 2(5) Par. 2 Financial contributions from foreign
governments and their agencies to political parties, organization,
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 their penalties that may be prescribed
by law.

Art. V, Sec. 2 The Congress shall provide a system for securing


the secrecy and sanctity of the ballot as well as a system for
absentee voting by qualified Filipinos abroad xxx
Provides for:
(1) A system for securing the security and sanctity of ballots
(2) A system for absentee voting
EXIT POLLS
The reason for securing the sanctity/secrecy of ballots is to avoid vote
buying through voter identification. What is forbidden is the association of
voters with their respective votes for the purpose of assuring that votes have
been cast in accordance with the instruction of a third party.

This constitute an election offense in accordance to Section 81,


Omnibus election Code Intervention of foreigners- it shall be unlawful for
any foreigners, whether judicial (juridical) or natural person, to aid any
candidate or political party, directly or indirectly, or to 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.
MULTI-PARTY SYSTEM

Exit polls conducted by ABS-CBN does not violate the sanctity of ballots.
The contents of the ballots are not exposed. The revelation is not
compulsory but voluntary. Also, voters are not required to reveal their
names. (ABS-CBN v. COMELEC)

We are supposed to have a multi-party system as provided under Art. IX-C,


Sec. 6 A free and open party system shall be allowed to evolve according
to the free choice of the people, subject to the provisions of this Article.

Q:

ELECTION PERIOD

Even if you possess all qualifications and none of the


disqualifications. If you fail to register you will not be able/ allowed
to vote. Is registration then an additional qualification of a voter?

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Q:

What is the election period?

54

A:

Art. IX-C, Sec. 9 provides that unless otherwise fixed by the


Commission in special cases, the election period shall commence
90 days before the day of election and shall end 30 days
thereafter.

PROHIBITED ACTIVITIES DURING ELECTION PERIOD


(1) construction of public highways/ public works
(2) public employment, appointment

certificate of candidacy by himself of through an accredited political party,


aggroupment, or coalition of parties.
Q:
Does Pichays as itanim sa senado even before the elections and
campaign period violate Sec. 80 of the OEC?
A:
No. At that time, Pichay has not yet filed his certificate of
candidacy. He is not yet a candidate within the meaning of the law.
Therefore, it cannot be considered as an election campaign.
FILING OF CERTIFICATE OF CANDIDACY

CAMPAIGN PERIOD
- duration usually shorter
- depends on the office aspired for
-usually starts after the last day of filing of the certificate of candidacy and
ends one day before elections.
ELECTION CAMPAIGN

Election Campaign and partisan political activity are the same.


They are used interchangeably.

Under Sec. 79 (b) Omnibus Election Code, it refers to an act


designed to promote the election or defeat of a particular candidate
or candidates to a public office xxx

Section 80, Omnibus Election Code ELECTION CAMPAIGN OR


PARTISAN POLITICAL ACTIVITY OUTSIDE CAMPAIGN PERIOD It shall
be unlawful for any person, whether or not a voter or candidate, or for any
party, or association of persons, to engage in an election campaign or
partisan political activity except during the campaign period: PROVIDED,
that political parties may hold political conventions or meetings to nominate
their official candidates within 30 days before the commencement of the
campaign period and 45 days for Presidential and Vice-Presidential
election.
GENERAL RULE: It is unlawful for any person to engage in an election
campaign except during the campaign period. Otherwise, it will be an
election offense.
EXCEPTION: Political parties may hold political conventions to nominate
their candidates within 30 days before the commencement of the campaign
period within 45 days for President and Vice-President elections.
CANDIDATE
Sec. 79(a) Omnibus Election Code the term CANDIDATE refers to
any person aspiring for or seeking an elective public office, who has filed a

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Sec.76. Omnibus Election Code Ministerial duty of receiving and


acknowledging receipt The Commission, provincial election supervisor,
election registrar or officer designated by the Commission or the board of
election inspectors under the succeeding section shall have the ministerial
duty to receive and acknowledge receipt of the certificate of candidacy.
It is a ministerial duty on the part of the election official to receive and
acknowledge receipt of the certificate of candidacy. The question of whether
or not a person is disqualified belongs to another tribunal in an appropriate
disqualification case.
Q:
Ka Roger went to Laguna to file COC. The election officer refused
because he seeks to achieve goals through violence. Valid?
A:
No. It is the ministerial duty on the part of the election official to
receive and acknowledge receipt of the certificate of candidacy. The
question of whether or not a person is disqualified belongs to another
tribunal in an appropriate disqualification case.

PERIOD
Sec. 73, 1st sentence, OEC No person shall be eligible for any elective
public office unless he files a sworn certificate of candidacy within the period
fixed herein xxx
The certificate of candidacy must be filed within the period prescribed by
law.
Late filing not allowed
rd

Sec. 73, 3 sentence, OEC 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
xxx
The certificate of candidacy must be filed for only one office in an election

55

If a candidate files his certificate of candidacy for more than one office, he
shall not be eligible for any of them.

PNOC-EDC v. NLRC
HELD: The OEC does not distinguish between employees of GOCCs which
have original charters and those that do not have one.

WITHDRAWAL
Q:

Can you withdraw the certificate of candidacy?

A:
Yes. A person who has filed a certificate of candidacy may, prior to
the election, withdraw the same by submitting to the office concerned a
nd
written declaration under oath. (Sec. 73, 2 sentence, OEC)
MONSALE v. NICO
On the last day of filing of certificate of candidacy. March 31, Jose Monsale
withdrew his certificate of candidacy. April 1, campaign started. On April 2,
he wanted to run again so he filed a written declaration withdrawing his
withdrawal.
HELD: The withdrawal of the withdrawal of the certificate of candidacy
made after the last day of filing is considered as filing of a new certificate of
candidacy. Hence, it was not allowed since it was filed out of time.

Elective Officials
Sec. 67, OEC Candidates holding elective office xxx has already been
repealed by the Repealing Clause of the Fair Election Act under Sec. 14, RA
9006 Repealing Clause. Sec 67 and 85 0f the EOC xxx are hereby
repealed.
Q:

What governs now?

A:
Secton 38, COMELEC Resolution 7767 (30 Nov 2006),
Implementing Rules of the Fair Election Act Effect of Filing Certificate of
Candidacy of Elective Officials Any elective official, whether national or
local, who has filed a certificate of candidacy for the same or other office
shall not be considered resigned from his office.

FARIAS v. EXECUTIVE SECRETARY


EFFECT OF FILING OF A CERTIFICATE OF CANDIDACY
Appointive Officials
Sec. 66. OEC Candidates holding appointive office or position Any
person holding a public appointive office or position, including active
members of the Armed Forces of the Philippines, and officers and
employees in the government-owned or controlled corporations, shall be
considered ipso facto resigned from his office upon the filing of his certificate
of candidacy.
Q:
X, a municipal treasurer filed a certificate of candidacy for governor.
What is the effect?
A:

He is considered ipso facto resigned.

Q:

Is there a need to resign?

A:
NO! The appointive official is ipso facto resigned. Ipso facto means
no need to resign.
Q:

What if after filing, the appointive official withdrew his certificate of


candidacy. Can he be reinstated to his former position?

A:

No! What matters is the moment of filing.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

HELD: The provision of the Fair Election Act (RA 9006) to the extent that it
repealed Sec.67 of OEC is constitutional.
Q:
Vice-governor filed a certificate of candidacy for governor. What is
the effect?
A:
He is NOT ipso facto considered resigned. Sec. 67 OEC has been
repealed by the FAIR ELECTION ACT (RA 9006). Any elective official,
national or local shall not be considered as resigned from their elective
office.

SUBSTITUTION OF CANDIDATES
Q:

What are the GROUNDS for substitution of candidates?

A:

Sec.77, OEC enumerates 3Grounds:


(1) Death
(2) Disqualification
(3) Withdrawal of another

Section 77. OEC Candidates in case of death, disqualification or


withdrawal of another. - If after the last day for the filing of certificates of

56

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.
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.

Q:

Martin de Guzman, a candidate for mayor, died 3 days before the


election. Can his wife substitute him?

A:

It depends. Under Sec. 77, only a candidate belonging to the same


political party may be substituted. By implication, an independent
or those who do not belong to any political party may not be validly
substituted because nobody will qualify.

Q:

What are the requirements for substitution?

A:

(1) nominated by the political party concerned

MIRANDA v. ABAYA
FACTS: In the 1998 election, mayor Miranda of Isabela, already served 8
consecutive terms, yet he still filed a certificate of candidacy. As a result,
Abaya filed a disqualification case. COMELEC then disqualified Miranda
and cancelled his certificate of candidacy. The son of Miranda, Joel, upon
nomination of their political party, filed a certificate as a substitute. Joel
Miranda won.
HELD: There was no valid substitution. COMELEC did not only disqualify
Miranda but also cancelled his certificate of candidacy. Therefore, he
cannot be validly substituted. It is as if he was not a candidate.
Even on the most basic and fundamental principles, it is already
understood that 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 court has no other choice but to
rule that in all instances enumerated in Sec.77 of the OEC, the existence of
a valid certificate of candidacy seasonably filed is a requisite sine quo non.
All told, 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 Sec. 77 of the OEC.
The purpose of the law in requiring the filing of the COC and in fixing the
time limit therefore are:
(a) To enable the voters to know at least 60 days before the regular
election, the candidates among whom they are to make the choice
and

(2) certified by the political party concerned


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, under RA 9006, Sec. 12, 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, the said
provision will not apply.

Section 12. RA 9006 Substitution of Candidates. 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 of the same family name, this provision shall not apply.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

(b) To avoid confusion and inconvenience in the tabulation of the votes


cast
Q:

Considering that Joel possesses all the qualifications, can he be


considered as a candidate in his own right?

A:
No. The certificate of candidacy was filed long after the last day of
filing (Sec. 73, OEC)

The existence of a certificate of candidacy is a condition sine qua non under


Section 77.

57

Q:
Since there was no valid substitution, should the candidate who
obtained the second highest vote be proclaimed?
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 (crown) of victory cannot be transferred to the
repudiated loser. (Cayat v. COMELEC citing Butch Aquino v. COMELEC
and Sunga v. COMELEC)
Q:

Who will now assume the position of mayorship?

A:

Following the rule on succession, it is the Vice-Mayor.

LABO DOCTRINE
The thrust is what to do with the votes cast for a disqualified candidate.
Should they be considered as stray votes?
SC:
No! That would disenfranchise the majority. The votes cast for the
disqualified are not stray votes they are valid votes only that the candidate
was later on found to be disqualified.
It would have been different if his disqualification was so apparent,
so notorious, so much so that the people, notwithstanding that they knew
him to be disqualified, they still voted for him in which case the votes cast for
him shall be considered as protest votes. Protest votes are considered as
stray votes. But not in this case, where the people of Baguio voted for Labo
only to find out that he is disqualified.
You cannot apply Labo Doctrine in Party-List because of Section 10, RA
7941
CAYAT v. COMELEC
FACTS: Rev. Fr. Nardo Cayat ran for Mayor. Palileng, his opponent, found
out that Cayat, before the elections, was previously convicted of acts of
lasciviousness although he was granted probation. His candidacy was then
questioned in a disqualification case invoking Section 40 pf the LGC.
(Disqualification 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 (2) years after serving sentence ; xxx) .
COMELEC disqualified Cayat on the ground of conviction of an offense
involving moral turpitude. However, Cayat alleged that he did not receive a
copy of the judgment. That decision disqualifying Cayat became final even 2
weeks before the election. Still, Cayat won in the election. Palileng claimed
that since Cayat is disqualified, he should be the one proclaimed.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

HELD: The Court agreed and did not apply the doctrine of the rejection of
the second placer. The one who obtained the second highest number of
votes was the one actually proclaimed. This is very peculiar because here,
there is only one candidate. Since Cayat was disqualified, it is as if he is not
a candidate. Hence, there is no second placer here.
The doctrine of the rejection of second placer is not applicable because of
Sec.6 of RA 6646
Also, under Section 6, RA 6646 (Electoral Reform Law of 1987 Effect of
st
disqualification) which contemplates of 2 situations, it is the 1 sentence
which applies to Cayat. He was declared by final judgment, to be
disqualified because the decision attained finality even 2 weeks before the
election. He shall therefore not be voted for and the votes cast for him shall
not be counted.
The second sentence contemplates that there was a disqualification case
filed before the COMELEC but for whatever reason, COMELEC was not
able to render a decision before the election and such candidate won in the
election, in which case, the court or Commission shall continue with the trial
and hearing of the election, inquiry or protest.

DISQUALIFICATIONS/REMEDIES BEFORE ELECTION


Any disqualification filed before the election, whether pursuant to Sections
68, 69 and 78 of OEC, the jurisdiction is with the COMELEC
(1)

Section 68, OEC 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,

58

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.

HELD: No. The petition was filed out of time. The disqualification case
under Sec. 78 should be filed within 25 days from the date the candidate
who made the misrepresentation filed his certificate of candidacy, not on the
date of discovery. The 25-day period is mandatory.
Q:

What then is the remedy?

A:

There is a GAP in the law, which must be addressed by Congress.

Violation of election laws is without prejudice to the filing of criminal action.

SALCEDO v. COMLELEC

(2)
Section 69, OEC Nuisance candidates. - The Commission may
motu proprio or upon a verified petition of an interested party, refuse to give
due course to or cancel a certificate of candidacy if the candidate is a
nuisance candidate.

HELD: Material misrepresentation refers to the QUALIFICATIONS of the


elective official for the elective office and NOT to any innocuous mistake.
There must be a deliberate intent to deceive the people to ones qualification
for public office.

Q:

TECSON v. COMELEC

Who is NUISANCE CANDIDATE?

A:
A nuisance candidate is a candidate who has no bona fide intention
to run, his purpose is merely to put the election process in mockery or
disrepute or to cause confusion among the voters by the similarity of the
names of the registered candidates or by other circumstances or acts
intended to prevent a faithful determination of the true will of the electorate.
(Bautista v. COMELEC)

FACTS: A disqualification case was filed against FPJ in accordance with


Sec. 78 on the ground of material representation as to the citizenship.
HELD: There was no material misrepresentation. The misrepresentation
must not only be material. There must also be a deliberate intent to mislead
or deceive as to ones qualification to public office.

EFFECT OF DISQUALIFICATION CASES


Period to file a petition
Within five (5) days from the last day of filing of the certificate of candidacy
assuming that COMELEC did not act motu proprio.
(3)
Section 78, OEC 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. Xxx
Period to file a petition

Section 6. RA 6646 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.
ROMUALDEZ-MARCOS v. COMELEC

Within twenty-five (25) days from the time the candidate filed his certificate
of candidacy/ from the date the candidate alleged to have made
misrepresentation in the COC filed.

There was yet no proclamation, hence not yet a member of the HOR.
COMELEC still has jurisdictom

LOONG v. COMELEC

GUERRERO v. COMELEC

FACTS: Loong was a candidate for Vice-Governor in ARMM. There was an


election held but there was yet no proclamation. Eventually, it was found out
that Loong was still underage. Can the petition to disqualify Loong on the
ground of material misrepresentation prosper?

Farias was elected, proclaimed and took his oath. The COMELEC ousted
itself of jurisdiction. SC upheld COMELEC. It was recognition of the power
of the HRET and the constitutional boundaries.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

59

Election 7am 3pm, then counting, members of Board of Canvassers


Return usually 7 copies:

Section 243,OEC Issues that may be raised in pre-proclamation


controversy. - The following shall be proper issues that may be raised in a
pre-proclamation controversy:

(1)COMELEC

(a) Illegal composition or proceedings of the board of canvassers;

(2)Treasurer

(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;

(3)Municipal Judge

The idea is that in case of lost return, they can refer to the other copies.
Number of votes written in words and number

(c) The election returns were prepared under duress, threats,


coercion, or intimidation, or they are obviously manufactured or not
authentic; and

POST ELECTION

(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.

PRE-PROCLAMATION CASE
Q:

After election, but before proclamation, what is the remedy?

A:
Pre-proclamation case.
election

But this presupposes that there was

Section 243, OEC refers to issues that may ne raised in a pre-proclamation


controversy. There are four (4) grounds, which can be summarized into two
(2):

Q:

After proclamation, what is the remedy?

(1) illegality in the composition of proceedings of the BOC (a)

A:

(1) Election Protest

(2) illegality in the preparation, transmission,


appreciation of election returns (b, c,d)

(2) Quo Warranto


In pre-proclamation cases, the governing provisions are Section 241, 242,
243 OEC.
Section 241, OEC 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.
Section 242, OEC Commission's exclusive jurisdiction of all preproclamation 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.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

receipt,

custody,

or

Eg. Ballot box switching not proper for pre-proclamation case; does not fall
under any of the instances under Art. 243 of OEC.
Once a candidate has been proclaimed, the pending pre-proclamation case
should be dismissed. After all, the issues pending in the pre-proclamation
case will also be raised in the subsequent Election Protest or Quo Warranto
case filed.

DOCTRINE OF
DONCTRINE

STATISTICAL

IMPROBABILITY

LAGUMBAY

Where there exist similarities in the tallies in favor of candidates belonging to


one party, and results in the blanking out of the opposing candidates, the
election returns are obviously manufactured on the basis of the doctrine of
statistical improbability.
As watcher, object to the inclusion of the canvass of the particular return on
the ground that the election returns are obviously manufactured on the basis

60

of the doctrine of statistical improbability. If still included, it can result to a


pre-proclamation controversy.
Pre-proclamation cases is NOT allowed in barangay elections.
Section 15, RA 7166 Pre-proclamation Cases Not Allowed in Elections
for President Vice-President, Senator, and Member of the House of
Representatives. - For purposes of the elections for President, VicePresident, Senator and Member of the House of Representatives, no preproclamation cases shall be allowed on matters relating to the preparation,
transmission, receipt, custody and appreciation of the 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 propio or upon written
complaint of an interested person to correct manifest errors in the certificate
of canvass or election returns before it.

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.
GROUNDS FOR FAILURE OF ELECTION
(1)
(2)
(3)
(4)
(5)

Questions affecting the composition or proceedings of the board of


canvassers may be initiated in the board or directly with the Commission in
accordance with Section 19 hereof.
Any objection on the election returns before the city or municipal board of
canvassers, or on the municipal certificates of canvass before the provincial
board of canvassers or district boards of canvassers in Metro Manila Area,
shall be specifically noticed in the minutes of their respective proceedings.

SITUATIONS
(1) No election

For purposes of election of

The election in any polling place has not been held on the date
fixed on account of FVTFA

(1) President
(2) Vice-President
(3) Senators
(4) House of Representatives
There can be no pre-proclamation case on matters relating to
transmission, custody of election returns; the only issue that can be
raised illegality of the composition or proceeding of the Board of
Canvassers

(2) Election is suspended


The election in any polling place has been suspended before the
hour fixed by law for the closing of the voting on account of FVTFA
(3) There is a failure to elect
After the voting and during the preparation and transmission of the
election returns or to the custody or canvass thereof, such election
results in a failure to elect on account of FVTFA; nobody emerged
as winner

Therefore, there can only be a pre-proclamation case on the following:


(1) Municipal officials
(2) City officials
(3) Provincial officials
Autonomous officials
FAILURE OF ELECTION
Section 6, OEC Failure of election. - If, on account of force majeure,
violence, terrorism, fraud, or other analogous causes the election in any

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Force majeure
Violence
Terrorism
Fraud
Analogous Causes

Q:
What are the two (2) conditions that must concur before the
COMELEC can act on a verified petition seeking to declare a failure of
election?
A:

(1) no voting took place in the precinct


(2) on the date fixed by law or even if there was voting, the election
resulted in a failure to elect.

61

Q:

Where to file a petition to declare a failure of election?

A:
COMELEC EN BANC. The majority of the Commission may grant
the petition and schedule special election in areas affected.
(Section 4, RA 7166 Postponement, Failure of election and
special Elections The postponement, declaration of failure of election and
the calling of special elections as provided in Sec. 5, 6, and 7 of the OEC
shall be decided by the Commission sitting en banc by a majority vote of its
Members. The causes for the declaration of a failure of election may occur
before or after the casting of votes or n the day of the election xxx)

BANAGA v. COMELEC

(2) President, Vice-President Elections: Congress acting as Board


of Canvassers
(3) Senators: COMELEC
(4) Congressman
(a) Lone Congressional district Provincial BOC
(b) Several districts District BOC
It is the ministerial duty of the BOC to proclaim the winning candidate. It has
no discretion whether to proclaim or not. After the last official act, which is
the proclamation, the BOC becomes functus officio and may not validly
reconvene motu proprio. However, when the COMELEC ordered the
reconveyance of the BOC, it may.

Failure of election is the same with petition to annul election returns


General Rule: xxx All such election cases shall be heard and decided in
division, provided that motions for reconsideration of decisions shall be
decided by the Commision en banc. (Art IX-C, Section 3)
Exception: A petition to declare a failure of election shall be heard by the
COMELEC en banc.]
PRE-PROCLAMATION v. FAILURE OF ELECTION
In pre-proclamation, there is actually an election that took place
In failure of election, there was no election at all or it was suspended or there
was a failure to elect.
MITMUG v. COMELEC
There were 3 candidates for mayor. The total registered voters is 10, 000.
Only 3,000 voted. There was a low turn out of voters. A petition was filed to
declare a failure of election
HELD: The petition cannot be granted. There was an election that took
place. The law does not require the majority of voters to cast their votes.
There can onlybe a failure of election if the will of the people is defiled and
cannot be determined.

POST-ELECTION REMEDIES After election


ELECTION PROTEST v. QUO WARRANTO
ELECTION PROTEST

QUO WARRANTO

- who really won in the election?,


determination of real choice of
electorate

- whether the winning candidate is


qualified, eligibility or lack of
qualifications of the candidate

- only the candidate running for the


same can file

- If the winning candidate is


disqualified, he shall be removed
and automatic succession shall
apply unless what is removed is not
a local elective official, in which
case, the position shall be declared
vacant, until there is a special
election to fill the vacancy.

- if the protestant wins, he shall be


proclaimed and shall replace the
previously proclaimed winner.

- eg. coercion, terrorism, ballot box


switching, vote buying.

PROCLAMATION
Q:

Who proclaims the winner?

A:

(1) Board of Canvassers

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

-eg.
Citizenship,
residence,
disloyalty to Republic of the
Philippines

DUMAYAS v. COMELEC
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 returns. It resolves the question of who

62

actually obtained the plurality of the legal votes and therefore is entitled to
hold the office.
Quo warranto 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.
JURISDICTION
(1) President/ VP

- SC en banc , acting
as Presidential
Electoral Tribunal
(Art. VII, Sec. 4[7])

(Appellate)
(Art. IX-C, Sec. 2[2])

(6) Elective Barangay


Official

- EP
30 days from
proclamation

-MTC (Original)
(trial courts of limited
jurisdiction)
-COMELEC
(Appellate)

QW
10 days from
proclamation

sole judge
REYES v. RTC OF ORIENTAL MINDORO
(2) Members
Congress

of

the

-EP or QW

-Senators

-Senate
Tribunal

Electoral

-Congressmen

-HR Electoral Tribunal


(Art. VI, Sec. 17)

- 15 days after
proclamation
- 10 days after
proclamation

No appeal
Or Rule 65 (Special
Civil Action
on
Certiorari)
(3) Governor/
Governor

Vice-

-COMELEC (Original)
(Art. IX-C, Sec. 2[2])
-SC (Appellate)

-10
days
proclamation

from

From the decision of the COMELEC, file first a motion for reconsideration. It
is only the decision of COMELEC EN BANC that is reviewable by the SC.
TECSON v. COMELEC
Before the election, a petition was filed on the ground of material
misrepresentation. COMELEC dismissed the petition. TECSON et. al.
argued tha the jurisdiction with the SC.
HELD: Contest refers to post-election scenario and not pre-election
scenario. It shall consist of either an election protest or quo warranto which
are two (2) distinct remedies but with one objective, to unseat winning
candidate. SC has jurisdiction over election contests of President/VicePresident and NOT candidates. It does NOT include a petition qualifying a
candidate for President/Vice-President.
Sc is the sole judge for
President/Vice-President and NOT over candidates for President/VicePresident. Hence, the action was dismissed for lack of jurisdiction and
prematurity.
election returns refers to election protest

(4)
Regional/
Provincial/City

(5) Elective Municipal


Official

-COMELEC (Original)

qualification refers to quo warranto

-SC (Appellate)

GALIDO v. COMELEC

-RTC (Original)

Notwithstanding the finality of COMELECs decision, the parties are NOT


precluded from filing a petition for certiorari with the SC.

(trial courts of general


jurisdiction)
-COMELEC

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

FRIVALD0 v. COMELEC ; LOONG v. COMELEC


If the ground relied upon is lack of citizenship or disloyalty to the Republic,
the period must be extended.

63

EFFECT OF DEATH OF A PARTY

Q:

Q:

A:
COMELEC not the fiscal unless the latter is deputized by the
COMELEC

What is the effect of death of a party in an election protest? Should


it warrant the dismissal of the protest?

A:
The death of the protestant neither constitutes a ground for the
dismissal of the contest not ousts the trial court of its jurisdiction to decide
the election contest. An election protest involves both the private interests of
the rival candidates and the public interest in the final determination of the
real choice of the electorate, and for this reason, an election contest
necessarily survives the death of the protestant or the protestee. But while
the right to public office is personal and exclusive to the public officer, an
election protest ins not purely personal and exclusive to the protestant or to
the protestee such that after the death of either would oust the court of all
authority to continue the protest proceedings. An election contest, after all,
involves not merely conflicting private aspirations but is imbued with
paramount public interests. (DE CASTRO v. COMELEC)
COUNTER-PROTEST available to a winning candidate if his election is
protested.
A remedy available to a duly proclaimed winner in order to protect ones
lead. Allege also the precinct where your opponent cheated.
KHO v. COMELEC
Counter protest must be filed within 5 days from receipt of the copy of the
protest. The period is not only mandatory but also jurisdictional. It partakes
the nature of a counterclaim. So that the court is ousted of jurisdiction to
entertain a counter protest belatedly filed.
If a counter protest was belatedly filed, but was erroneously admitted, the
remedy is to file a motion to expunge the counter protest from the records. If
not expunged from the record, file a petition for certiorari under Rule 65.

ELECTION OFFENSE
Q:

Who has jurisdiction over election offenses?

A:

RTC, except in cases where there is failure to register to vote which


shall be under the MTC.

Section 268, OEC Jurisdiction of courts. - The regional trial


court shall have the exclusive original jurisdiction to try and decide any
criminal action or proceedings for violation of this Code, except those
relating to the offense of failure to register or failure to vote which shall be
under the jurisdiction of the metropolitan or municipal trial courts. From the
decision of the courts, appeal will lie as in other criminal cases.
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

Who shall prosecute election offenses?

Q:

In case of public official, should COMELEC still prosecute?

A:

COMELEC can still prosecute. It is not the personality of the


accused but the nature of the offense.

INCLUSION/EXCLUSION PROCEEDINGS
- within the jurisdiction of MTC appealable to RTC
-RTC decision is not appealable
WHEN ELECTION PROTEST BECOMES MOOT
Defensor Santiago filed an Election Protest. Subsequently, she ran for
Senator and won. She abandoned her protest when she ran for an office
different frim that of the President.
RULES ON APPRECIATION OF BALLOTS
(1) GENERAL RULE After the elections, the liberal interpretation rule
shall be applied. IN CASE OF DOUBT, the rule in favor of the vote
being valid as to give effect to the will of the electorate shall be
followed.
(2) EQUITY OF INCUMBENT RULE 2 or more candidates running
for the same office, they bear the same first name, surname or both
and the voter in his ballot wrote only either of the 2, the vote shall
be appreciated in favor of the incumbent. If neither of them is
incumbent, the votes shall be considered stray votes.
(3) IDEM SONANS RULE or SAME SOUNDS RULE If the name of
the candidate is misspelled by the voter, for as long as when it is
pronounced, it sounds like the name of the candidate, the vote is
counted in the latters favor UNLESS it can be considered as
marking, in which case the entire ballot is invalid.
(4) DESCRIPTIO PERSONAE rule is the same in idem sonans rule.
ADMINISTRATIVE LAW
- Promulgated by Pres. Aquino when she still had legislative powers
pursuant to Article XIII, Section 6 (The incumbent President shall continue to
exercise legislative powers until the First Congress is convened).
-took effect in 1989, only after 2 years.
The Code is a general law and incorporates into a unified document the

64

major structural, functional and procedural principles of governance and


embodies changes in administrative structures and procedures designed to
serve the people (Ople v. Torres).

question, which is within the jurisdiction of an administrative tribunal.

- The Code is divided into seven books:

ADMINISTRATIVE AGENCIES

Book 1 : Sovereignty and General Administration


Book 2: Distibution of Powers of the Three Branches of the Government
Book 3: Office of the President
Book 4: Executive Branch
Book 5: Constitutional Commissions
Book 6: National Government Budgeting
Book 7: Administrative Procedure
- includes the Civil Service Law.

Generally, the function is EXECUTIVE

It implements or enforces

Ex: COMELEC - main function is to enforce the laws relative to the


conduct of election.
- This is an executive function.

Two important definitions of Administrative Law

But the law may vest the agency quasi-judicial and quasi-legislative
powers.

1. Dean Roscoe Pound


it is that branch of modern law under the executive department of the
government, acting in quasi-legislative or quasi-judicial capacity, interferes
with the conduct of individual for the purpose of promoting the well being of
the community.

GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES

2. Professor Goodnow

-refers to the corporate governmental entity through which the functions of


the government are exercised throughout the Philippines including 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.

it is that part of public law which fixes the organization of the government
and determines the competence of the authorities who execute the law and
indicates to the individual remedies for the violation of his rights.

2 COMPONENTS:

In both definitions, the focus is on the executive department acting in quasilegislative and quasi-judicial functions.

(1) Corporate governmental entity, through which the functions of


government are exercised throughout the Philippines.

THREE IMPORTANT DOCTRINES

(2) Various arms through which political authority is made effective in the
Philippines.

(1) DOCTRINE OF QUALIFIED POLITICAL AGENCY


The members of the cabinets are deemed alter egos of the
President so that their decision and acts performed in the regular course of
business are deemed acts or decisions of the President UNLESS reprobated
by the President.
(2) EXHAUSTION OF ADMINISTRATIVE REMEDY
Whenever 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.
(3) DOCTRINE OF PRIMARY JURISDICTION OR PRIOR RESORT
The courts cannot and will not resolve a controversy involving a

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Thus, LOCAL GOVERNMENTS are included in the definition of


GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES

(a) They are referred to as various arms through which political


authority is made effective in the Philippines (ADMINISTRATIVE
CODE)
(b) They are referred to as territorial and political subdivisions of the
Republic of the Philippines (Article X, Section 1, 1987
CONSTITUTION).
The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities and barangays.
There shall be autonomous regions in Muslim Mindanao and the

65

Cordilleras.

district unit therein. (Section

*Under the first component, whether the agency is an incorporated or


unincorporated agency of the government is included in the definitions.

*LGU's are not under the control power of the President. It falls under the
general supervision of the President.

Q. Are government owned or controlled corporations (GOCC's) part of


the definition of the GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES?

DEPARTMENT

A. It depends (1) If the GOCC is performing governmental function, then it is part of


the definition.

A. If the purpose is to obtain special corporate benefits, or earn


pecuniary profit intended for private benefit, advantage - the function is
proprietary. If it is in the interest of health, safety or the advancement of
public good and welfare affecting the public in general - the function is
governmental.

refers to man executive department created by law. (Section


2[7] Introductory Provisions E.O. 292)

Ex: DOJ, DENR, DOH

BUREAU

(2) If the GOCC is performing proprietary function, then it is not part of


the definition.

Q. When is a GOCC deemed to be performing proprietary function?


Governmental function?

any principal subdivision or unit of a department (Section 2 [8]


Introductory Provisions E.O. 292)

Ex: BIR under DOF, NBI under DOJ

refers to any major functional unit of a department or bureau


including regional offices.

Ex: Regional Office of the Bureau of Lands.

OFFICE

3 IMPORTANT ADMINISTRATIVE RELATIONSHIPS


(Section 38, Chapter 7, Book IV)

ARTICLE VII, Section 17

ARTICLE X, Section 4

(1) SUPERVISION AND CONTROL

CONTROL is the power of the


superior
to
direct
the
performance of a duty,
restrain the commission of
acts, review, revise, modify,
reverse or alter the decisions
and even to substitute the
superiors own decision.

POWER
OF
GENEREAL
SUPERVISION means to generally
oversee, see to it that the local
governments and their officials perform
their functions in accordance with law
(no more than that)

Supervision and Control shall include authority to act directly


whenever a specific function is entrusted by law or regulation to a
subordinate; direct the performance of duty, restrain the commission of acts;
review, approve, reverse or modify acts and decision of subordinate officials
or units; determine priorities in the execution of plans and programs; and
prescribe standards, guidelines, plans and programs. Unless a different
meaning is explicitly provided in the specific law governing the relationship of
particular agencies, the word control shall encompass supervision and
control as defined in this paragraph.

CONTROL is the very heart of


the power of the President.
(Joson V. Torres)
VARIOUS ADMINISTRATIVE AGENCIES
AGENCY OF THE GOVERNMENT
-

refers to any of the various units of the government, including a


department, bureau, office, instrumentality, or government
owned or controlled corporations, or a local government or

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

(2) ADMINISTRATIVE SUPERVISION


Administrative Supervision which shall govern the administrative
relationship between a department or its equivalent and regulatory agencies
or other agencies as may be provided by law, shall be limited to the authority
of the department or its equivalent to generally oversee the operations of
such agencies and to insure that they are managed effectively, efficiently
and economically but without interference with day to day activities; or
require the submission of reports and cause the conduct of management

66

audit, performance evaluation and inspection to determine compliance with


policies, standards and guidelines of the department, to take such actions as
may be necessary for the proper performance of official functions, including
rectification of violations, abuses and other forms of mal-administration, and
to review and pass upon budget proposals such agencies but may not
increase or add to them.
ATTACHMENT

constitutional policies or objectives.


-

Ex: BSP
GOVERNMENT-OWNED OR CONTROLLED CORPORATION

This refers to the lateral relationship between the department or its


equivalent and the attached agency or corporation for purposes of policy and
program coordination. The coordination may be accomplished by having the
department represented in the governing board of the attached agency or
corporation either as chairman or as a member, with or without voting rights.
If this is permitted by the charter, having the attached corporation or
agency comply with a system of periodic reporting which shall reflect the
progress of programs and projects and having the department or its
equivalent provide general policies through its representative in the board,
which shall serve as the framework for the internal policies of the attached
corporation or agency.
OTHER AGENCIES
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, and enjoying operational autonomy,
usually through a charter.
this term includes regulatory agencies, chartered institutions and
GOCC's. (Sec.2 [16], Introductory Provisions, E.O. 292)

REGULATORY AGENCY
-

refers to any agency expressly vested with jurisdiction to


regulate, administer, or adjudicate matters affecting substantial
rights and interests of private persons, the principal powers of
which are exercised by a collective body, such as a
commission, board or council. (Sec. 2[4] Introductory
Provisions, E.O. 292)
Ex: PRC, NLRC, SEC, Insurance Commission

CHARTERED INSTITUTIONS
-

refers to any agency organized or operating under a special


charter, and vested by law with functions relating to specific

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

this term includes the state universities and colleges and the
monetary authority of the state. Section 2 [12] Introductory
Provisions, E.O. 292)

refers to any agency organized as a stock or non-stock


corporation, vested with functions relating to public needs
whether governmental or proprietary in nature, and owned by
the government directly or through its instrumentalities either
wholly or where applicable as in the case of stock corporations
to the extent of fifty-one (51%) percent of its capital stock xxx
(Section 2[13] Introductory provisions, E.O. 292)

Provided, the GOCC's may be further categorized by the


Department of Budget, Civil Service Commission and the
Commission on Audit for purposes of the exercise and
discharge of their respective powers, functions and
responsibilities with respect to such corporations.

These instrumentalities are NOT integrated to the department


framework.

They do not fall within the control power of the president over the
departments.

Under Article VII, Section 17, Instrumentalities are not included.

Q. What are the administrative relationships involved?


A. (1) Regulatory Agencies - mere administrative supervision, to oversee
with no interference with the day-to-day operation.
Ex: the relationship between NLRC and Secretary of Labor (Vertical
relationship)
(2) Chartered Institution/GOCC - attachment, lateral relationship
involving planning and program coordination.
BEJA JR. V. COURT OF APPEALS
An attached agency enjoys more autonomy than an agency placed
under administrative supervision. It is free from departmentalized control.
Likewise, an agency under administrative supervision has more autonomy
than an agency placed under supervision and control.
ILLUSTRATION

67

power
Delegation of Powers

Conferment of Jurisdiction

QUASI-LEGISLATIVE POWER

QUASI- LEGISLATIVE

QUASI JUDICIAL

Q. What do you mean by Quasi-legislative?

ADMINISTRATIVE AGENCY

Administrative Regulations

A. It refers to the power or authority of an administrative agency to


promulgate rules and regulations in order to implement a law or a given
legislative policy.
Jurisdiction Rules of Procedure

Q. Other names?
A. (1) Rule-making power of an agency

Legislative

Interpretative

Due Process

(2) Power of Subordinate Legislation

Supplemental

Contingent

Contempt Power

Appeals

QUASI-LEGISLATIVE POWER includes the power to promulgate


ADMINISTRATIVE REGULATIONS or IMPLEMENTING RULES
AND REGULATIONS (IRR), which are pieces of subordinate
legislation called mini-laws, which may take the form of circulars or
memoranda, but which cannot prevail over the laws.

POWERS AND FUNCTIONS OF ADMINISTRATIVE AGENCIES

Q. In what capacity did the Secretary of Labor acted in promulgating the


rules and regulations implementing the Labor Code?

Q. Generally, how will you describe the functions of an administrative


agency?

A. He acted in his quasi-legislative capacity.

A. The functions of an administrative agency are to enforce, implement,


administer and execute laws.
Q. What kind of function?

In exercising quasi-legislative functions, the administrative agency


is acting like Congress but not to enact laws. They cannot have
more powers than Congress.

An administrative agency may not exercise this quasi-legislative


function unless it has been expressly delegated to it. It is a
delegated power.

A. Executive. These agencies belong to the executive branch. They do not


perform legislative and judicial functions. However, these agencies may
perform quasi-legislative and quasi-judicial functions.
Ex: COMELEC - to administer all laws relative to plebiscite,
referendum, recall
CSC - to administer the Civil Service Law
Note: Not all administrative agencies perform all kind of functions.

DOCTRINE OF DELEGATION OF POWERS


GENERAL RULE: A power that has already been delegated may no longer
be delegated.
EXCEPTIONS: Instances of Permissible Delegation of Powers:

Ex: NLRC - exercises in general quasi-judicial function


DOLE - the agency that administers labor law
SEC - has an executive function and quasi-legislative; no more
quasi-judicial
LTFRB - has quasi-judicial function
CSC - has an executive, quasi-legislative and quasi-judicial

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

(1) Delegation to the PEOPLE through plebiscite and referendum


(2) Delegation of EMERGENCY POWERS to the President
(3) Delegation to the President of TARIFF POWERS
(4) Delegation to ADMINISTRATIVE BODIES
(5) Delegation to the LOCAL GOVERNMENT
The delegation to administrative bodies simply deals with QuasiLegislative powers.

68

Ex: Under Section 244, NIRC, The Secretary of Finance, upon


recommendation of the Commissioner shall promulgate all needful rules
and regulations for the effective enforcement of the provisions of this
code.
-

This is a delegation to the Secretary of Finance. Without


this delegated authority, the Secretary of Finance may not
exercise the power.

The delegation must be valid. Even if the power has been


delegated, if the delegation is invalid, the exercise of the power
becomes an abdication of powers. Hence, it is not just a matter of
delegating the power. The delegation must be valid.

TEST OF A VALID DELEGATION


(1) COMPLETENESS TEST: The law delegating the power must be
complete in all its terms and conditions when it leaves the Congress, so
when it reaches the delegates, it will have nothing to do but to enforce it.
(2) SUFFICIENT STANDARD TEST: The law must offer a sufficient
standard, which are determinate, or at least determinable to specify the
limits of the delegates authority, announce the legislative policy and specify
the conditions under which is to be implemented.
KINDS OF ADMINISTRATIVE REGULATIONS
(1) LEGISLATIVE Regulation
a. Contingent
b. Supplemental
(2) INTERPRETATIVE Regulation
Q. What is their distinction?
A. If the regulation is merely interpretative, it will not require publication.

When Article 2 of the New Civil Code refers to laws, these do not
only refer to those enacted by Congress but includes administrative
regulations promulgated by administrative bodies in their quasilegislative functions except those which are merely internal or
interpretative in nature. (Tanada v. Tuvera)

Q. What are the


REGULATION?

OF

VALID

ADMINISTRATIVE

A. (1) Its promulgation must be authorized by the legislature


(2) It must be within the scope of authority given by the legislature
(3) It must be promulgated in accordance with the prescribed procedure
(4) It must be reasonable

FIRST REQUISITE: its promulgation must be authorized by the legislature meaning, there is a valid delegation of power.
SECOND REQUISITE: it must be within the scope of authority given by the
legislature.
-

in the exercise of the delegated authority to promulgate


administrative regulations, the administrative agency cannot
amend the main law it seeks to implement. Otherwise, the
delegate will act in excess of authority.

TOLEDO v. COMELEC
Attorney Augusto Toledo, at the time of his appointment was
already 57 years old. Upon discovery, COMELEC nullified his appointment
on the ground that a provision in the Civil Service Rules on Personal Actions
and Policies provides that no person shall be appointed or reinstated in the
service if he is already 57 years old, unless the President of the Philippines,
President of the Senate, Speaker of the House of Representatives or the
Chief Justice of the Supreme Court, as the case may be, determines that he
possesses special qualifications and his services are needed.
SC: The provision on 57 year old person in the Revised Civil Service Rules
under R.A. 2260 cannot be accounted validity. It is entirely a creation of Civil
Service Commission, having no basis in the law itself that it was meant to
implement. The power vested in the Civil Service Commission was to
implement the law or put it into effect, not to add to it, to carry the law into
effect or execution; not to supply perceived omissions in it. By its
administrative regulations, of course, the law itself cannot be extended; said
regulations cannot amend an act of Congress. The Civil Service
Commission is not the Congress. It may not add anything to the Civil Service
Law.
THIRD REQUISITE: it must be promulgated in accordance with the
prescribed procedure.
-

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

REQUISITES

among the prescribed procedure is the requirement of:

69

Elements: CD-DIP

a. PUBLICATION

The clear objective of Article 2 of the NCC is to give the general


public adequate notice of the various laws, which are to regulate
their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the
maxim ignorantia legis non excusat. It would be the height of
injustice to punish or otherwise burden a citizen for the
transgression of a law which he had no notice whatsoever, not
even a constructive one.

GR: Publication is required not only to laws passed by Congress, but


includes administrative regulations, which are issued in the exercise of
quasi-legislative power of the administrative agencies.

1. It is created by law or authority of law


-the powers to create and abolish public office are vested in the
legislative
-power to abolish is not absolute, it must be done in good faith
2. Possess a delegation of a portion of the sovereign powers of the
government, to be exercised for the benefit of the public.
3. Powers conferred and duties imposed must be defined directly of
impliedly by the legislature.

XPNs:

4. Duties must be performed independently and without the control of a


superior power other than the law.

(1) interpretative regulation

5. Must have permanence or continuity.

(2) internal regulation


b. Furnish a copy of the administrative regulation to the
UP LAW CENTER

Is salary an element in public office?

- Every agency shall file with the UP Law Center three (3)
certified copies of every rule adopted by it

Congress can pass a law eliminating salaries. As a rule this cannot


be questioned. If Congress can remove the public office itself, then by all
means. It may remove its incidence. However, everything must be done on
good faith.

- 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.
FOURTH REQUISITE: it must be reasonable
-

it must not
confiscatory

be

unreasonable,

Characteristics of a public office: PHOP


whimsical,

oppressive,

must pass the test of reasonableness

absence of one of these, the administrative regulation ought to


be invalidated.

LAW ON PUBLIC OFFICERS


What is a public office?
It refers to the right, authority or duty created and conferred by law
by which for a given period either fixed by law or enduring at the pleasure of
the creating power, an individual is invested with some sovereign power of
the sovereign function of the government, to be exercised by that individual
for the benefit of the public.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

No. It is merely an incident of public office.

1. Public office is a public trust


It is merely entrusted to the public officer
Article XI (Accountability of Public Officer), Sec. 1 provides: Public
Office is a public trust. Public Officers and employees must at all means be
accountable to the people, serve them with utmost responsibility, integrity,
loyalty and efficiency, and act with patriotism, justice and lead with modest
lives.
2. It is not a heritable possession
Y? We live in a democratic and republican state.
Art. II, Sec. 26 provides: The State shall guarantee equal access to
opportunities for public service and prohibit political dynasties as may be
defined by law (provision is not self-executing).

70

3. It is outside the commerce of man.


It cannot be the subject of a valid contract.

DESIGNATION -refers to the imposition of additional duties, usually by law,


on any person already in public office. It presupposes that a person is
already appointed.

If it is a subject, the contract is void.

SEVILLA VS CA

4. It is not a property.
It is therefore not protected or guaranteed by the due process
clause.
Ex: A is holding public office, Congress decided to abolish it. A cannot
complain that there was a violation of the due process clause if he was not
given an opportunity to be heard, provided that the abolition is done in good
faith.
ABOLITION VS REMOVAL
In abolition, what is abolished is the office itself, while in removal, it
is the occupant that is removed, but the office remains.

Ex: A is holding a public office, he was removed. In this case, A may validly
invoke his security of tenure. He can only be removed for a just and valid
cause and there must be an observance of due process.
PUBLIC OFFICER
Who is a public officer?
A public office is one who holds a public office.
Any person, who by direct provision of law, popular election of by
appointment of competent authority, shall take part in the performance of
public function on the Government of the Philippines or shall perform in said
Govt or any of its branches public duties as employer, agent, subordinate,
or official of any rank or class, shall be deemed to be a public officer.
May a notary public be considered as a public officer?
Yes
SELECTION
How is public officer chosen?
2 ways:
1. Election
2. Appointment

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Generoso Sevilla was appointed as Asst. City Engineer of Palayan


City, Nueva Ecija until he was designated as the Acting Engr of Cabanatuan
City. After the EDSA Revolution, Sevilla was ousted when the City Mayor of
Cabanatuan appointed Nerito Santos as the new City Engineer. This was
later confirmed by the Ministry of Public Works and Highways and approved
by the CSC. This was questioned by Sevilla in an action/petition for Quo
warranto filed against Santos.
SC: The petition is devoid of merit. An acting appointment is merely
temporary, one which is good only until another appointment is made to take
its place.
APPOINTMENT VS DESIGNATION
Appointment selection by the proper authority of an individual
who is to exercise the functions of an office.
Designation connotes merely the imposition of additional duties
upon a person who is already in the public service by virtue of an earlier
appointment or election. A mere designation does not confer upon the
designee security of tenure in the position or office which he occupies only in
an acting capacity.
Nature of designation
Essentially temporary and not entitled to security of tenure
APPOINTMENT in focus
Nature of appointment
1. Executive on character
2. Discretionary
LUEGO VS CSC
Felimon Luego was appointed by Mayor Solon as Administrative
Officer II. His appointment was described as permanent, but CSC approved
it on a temporary basis subjecting it to the final action to be taken on the
protest filed by Felicula Tuazo. Subsequently, CSC found Tuazo to be
better qualified than Luego and directed that Tuazo be instead appointed.
Luego questioned this.

71

SC: CSC has no authority to revoke said appointment simply because it


believed that Tuazo was better qualified, for that would have constituted an
encroachment on the discretion vested solely in the City Mayor.

one candidate. Once the power of appointment is conferred on the


President, such conferment necessarily carries the discretion on whom to
appoint.

Appointment is essentially a discretionary power and must be performed by


the power on which it is vested. The only condition being that the appointee
should possess the qualification 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.

NEXT IN RANK RULE

LUEGO DOCTRINE:
This is a political question involving consideration of wisdom which
only the appointing authority may determine. For as long as the appointee
has the minimum requirements, the CSC and the SC are powerless to
render that a better one is more qualified.
REMONTE VS CSC:
The head of an agency who is the appointing power is the one who
is most knowledgeable to decide who can best perform the function of an
office.
FLORES VS DRILON
When the US-Phils treaty expired, Congress enacted RA 7227,
creating the SBMA. The Charter provided that for the first year of operation,
the President shall appoint the Mayor of Olongapo City as head chairman
and CEO of SBMA. Thus, then Mayor Gordon assumed the positions.
SC: The Charter violates:
1. Art IX-B, Section 7, part 1:
No elective official shall be eligible for appointment or
designation in any capacity to any public office or position during his tenure.
This prohibits elective officers from being appointed or designated to any
public office. The only exception is when the public office is to be held in exofficio capacity.
2. Doctrine of Separation of Powers
Congress encroached on the power of the President to
appoint. The President was not given an option at all. The Appointment
was limited to the Mayor of Olongapo. The heart or core of appointment is
the power to choose. Also, the nature of appointment is discretionary, not a
ministerial act.

Where can you find the said rule?


Civil Service Law
What is the next in rank rule?
If there is a vacancy in a government office that ought to be filled up
by promotion, the person holding the position next thereto shall be
considered for promotion.
Q: If the next to the Head Chief Accountant is the Deputy accountant and the
third is the Administering Officer IV, then the office of Chief Accountant
became vacant and the then Deputy accountant and Administering Officer IV
applied, assume that another Chief Accountant applied and was appointed,
can the Deputy Accountant claim that there was a violation of the next in
rank rule?
A: No. The next in rank rule applies only in case of promotion. What is
involved here is a mere transfer, a lateral movement involving same rank
and position.
In case of a promotion, vertical movement from lower to a higher position.
Q: What if the one that was appointed was the Administering Officer, can
Deputy Accountant complain?
A: Yes, because it was filled by a promotion.
Q: Can the Deputy Officer claim that he should be the one to be appointed?
A: No, appointment is discretionary.
Rules:
1. It applies only in cases of promotion.
2. 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
preemptory requirement that the person next in rank must be appointed to
the vacancy.
3. The appointing authority is allowed to fill vacancies by promotion,
transfer, reinstatement, etc.

Hence, when the Congress clothes the President with the power to appoint
an officer, it cannot at the same time limit the choice of the President to only

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

72

4. 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
several alternatives provided by law.

2. One who is illegally dismissed from office is, by fiction of law, deemed not
to have vacated his office. His security of tenure did not attach.
QUALIFICATION TO PUBLIC OFFICE

5. One who is next in rank is entitled to preferential consideration for


promotion to higher vacancy BUT it does not necessarily follow that he and
no one else can be appointed.

The power to prescribe qualifications to public office is vested with the


LEGISLATURE.

ABILA VS CSC

THREE IMPORTANT LIMITATIONS ON THE PART OF THE CONGRESS:

When Amado Villafuerte retired from his position as Admin Officer


IV in DOH-Qeuzon City, the Officer-in-Charge appointed Alex Abila, who had
been the Acting Asst. Civil Security Officer, as his successor. This was
questioned by Florentina Aleria, the Admin Officer III of DOH.

1. If the qualifications are prescribed by the Constitution itself in an


exclusive manner, then the Congress may not add nor subtract from the
enumerated qualifications.

SC: A vacant position in the CSC may be filled by promotion, transfer of


present employees, reinstatement, re-employment or appointment of
outsiders who have the necessary eligibility. The next in rank rule invoked
by the CSC to justify its choice of Eleria over Abila APPLIES ONLY when a
vacancy is filled by promotion, a process which denotes a scalar ascent of
an officer to another position higher in rank or salary.
Even of the vacancy here had been filled by promotion rather by a lateral
transfer, the concept of next in rank rule does not import any mandatory or
preemptory requirement that the person next in rank must be appointed to
the vacancy. What the Civil Service Law provides is that if the vacancy is
filled up by promotion, the person holding the position next in rank thereto
shall be considered for promotion.

2. The qualification prescribed must be germane to the functions to be


performed.
3. The qualification must be expressed in general terms only.
TWO SENSES OF QUALIFICATION:
1. As an act
2. As an endowment
QUALIFICATION AS AN ACT
-consists in taking of an oath
-in case of an accountable officer (Ex: Treasurer), consist in the posting of a
bond.

The one who is next in rank is only entitled to preferential consideration.

Constitutional provisions related to it:

The next in rank rule is not absolute.


disregarded.

1. Art. 7, sec. 5 before they enter on the execution of their office, the
President, the Vice President or the Acting President shall take the following
oath or affirmation XXX.

Even in promotion, it can be

PRINCIPLE OF VACANCY
Q: Jose, an employee working for ten years already, was surprised to learn
that Pedro replaced him. Jose was removed. But the CSC ordered the
reinstatement of Jose which became final. Can Pedro validly complain that
there was a violation of security of tenure?
A: No. This is because there was no vacancy, hence security of tenure did
not attach.
2 PRINCIPLIES:
1. A person no matter how qualified cannot be appointed to an office which
is not vacant.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

2. Art IX-B, Sec. 4 All public officers and employees shall take an oath or
affirmation to uphold and defend the Constitution.
3. Art. XV, Sec. 5, par. 1 All members of the armed forces shall take an
oath or affirmation to uphold and defend the Constitution.
Q: A public officer was appointed/elected. Then he assumed the office but
failed to take an oath. He nonetheless preformed his duties. Are his acts
valid?
A: Yes, insofar only as third persons are concerned and the general public
relied on the said acts. He is a de facto officer.

73

DE JURE VS DE FACTO VS USURPER/INTRUDER

3. Actual physical possession of the office.

De Jure Officer One who has lawful title

QUALIFICATION AS AN ENDOWMENT

His acts are valid

- possession of attributes to be qualified

His title may not be questioned

- refers to Citizenship, Age, Civil service eligibility, Education, Residence


(CACER)

De Facto Officer One who is in actual possession but only has a colorable
title. His title is imperfect.
His acts are valid insofar only as third persons are concerned and the
general public relied on the said acts.
His title may only be questioned directly in a quo warranto proceedings
Intruder/Usurper No Title but in actual possession
His acts are entirely void
His acts may be questioned collaterally or directly.
Q: Is a De Facto Officer entitled to salary?
A: As a rule, No. This is because he is not allowed to benefit from his acts.
Otherwise it will encourage people to usurp other office. When he assumes
office knowing that his title is imperfect, he runs the risk of not receiving a
salary that attaches to the office.
EXCEPTIONS:
1. There is no de jure officer claiming for the salary OR
2. Assumption was made in good faith.
FLORES VS DRILON
SC: Gordon should not be made to reimburse for such emoluments.
Otherwise the govt will be unjustly enriched by his services. Gordon was a
de facto officer.
Prescriptive Period to attack a colorable title:
-

1 year from the disposition from office. After 1 year, the de facto
officer will ripen into a de jure one.

REQUIREMENTS OF A DE FACTO OFFICERSHIP


1. Existence of a de jure office (NO such thing as a de facto office, office is
either valid or void)

- qualifications are continuing


a. citizenship
- this is the most important
- only Filipinos may hold public office
b. residence
- only in elective office as an elective official, he/she must serve in a
particulare constituent
In Civil Law, residence and domicile are different. In the said law, a person
may only have several residences but may only have one domicile. In
Ploitical Law, particularly in election law, residence and domicile are the
same.
3 CLASSES OF DOMICILE
1. Domicile of Birth
2. Domicile of Choice
3. Domicile by Operation of Law
MACALINTAL VS COMELEC
At any given point, a person may only have one domicile
Domicile of Origin
-

this is acquired by any person at birth

it is the domicile of the childs parents and not necessarily the place
of birth.

Domicile of Choice
-

take place if one leaves his original domicile, he was able to


establish his physical presence in another locality.

2. Color of title.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

74

Domicile by Operation of Law


-

domicile law attributes to a person; independent to his intention or


residence
EX: woman (resident of Cabanatuan City) marries husband
(resident of Pasig City), woman will adopt the residence of
husband.

IMELDA ROMUALDEZ-MARCOS VS COMELEC

manifested by some act or acts independent of and done prior to filing his
candidacy for elective office in this country. Without such waiver, he was
disqualified to run for any elective office.
The fact was that he is a green cardholder and has acquired the
right to reside in other country. The renunciation of the green card requires
a separate act; the filing of the certificate of candidacy is not renunciation.
What is involved in this case is not citizenship but rather permanent
residency in another country.

Imelda run as a congresswoman in Leyte. For the resident requirement, she


should be a resident thereof for a period of not less than 1 year immediately
preceding the election. Her qualification was questioned on the ground that
under the Civil Code, when the woman gets married, she gets the residence
of the husband by operation of law. Pres. Marcos was a resident of San
Juan. At that time, Family Code does not exist yet.

SC on Argument No (2) -- He never really intended to live there


permanently, for all he wanted was a green card to enable him to come and
go to the U.S. with ease because he had to undergo a regular check-up:

SC: With the death of her husband, her adoption of the San Juan residency
is lost.

OTHER QUALIFICATIONS AS AN ENDOWMENT

CAASI VS COURT OF APPEALS


Miguel Merito ran for mayor in Bolinao, Pangasian.
A
disqualification case was filed against him by Mateo Caasi, a rival candidate
for the position on account of his being a green cardholder. His defense was
that (1) he was voted by the people, hence the defect was cured. Also, he
alleged that (2) he never really intended to live there permanently, for all he
wanted was a green card to enable him to come and go to the U.S. with
ease because he had to undergo a regular check-up.
SC: Argument No.1) he was voted by the people, hence the defect was
cured:
Merito was disqualified. People of Bolinao cannot amend the
Omnibus Election Code (OEC). His election thereto was null and void. The
law applicable to him is Sec. 68 of the OEC 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 such 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.
To be qualified to run for any elective office in the Philippines, the
law requires that the candidate who is a green cardholder must have waived
his status as a permanent resident or immigrant of a foreign country.
Therefore his act of filing a certificate of candidacy for elective office in the
Philippines did not of itself constitute as a waiver of his status as a
permanent resident of U.S. The waiver of his green card should be

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Even if he never really intended to live there permanently, this court


will not allow itself to be a party to his duplicity by allowing him to benefit
from it and giving him the best of both worlds to speak.

c). age
--must be possessed on the day of the election
d). education
--a qualification under Civil Service Law
--true only to appointive officials, in case of elective official, minimum
requirements are that he must be able to read and write
e). civil service eligibility
Religious Affiliations
--cannot be a valid disqualification to hold public office
--No religious test shall be required for the exercise of civil or political rights
Political Affiliation
G.R. Not a valid qualification
Xpn: Can be a valid qualification under:
1. Party-list system
2. Membership in the Commission on Appointments
3. In case of permanent vacancies in the Sanggunian

75

DISQUALIFICATIONS:

4. Those with dual citizenship:

Sec. 40, LGC. Disqualifications. The following persons are disqualified


from running for any elective local position:

- this refers to dual allegiance (Mercado vs Manzano)

1. Those sentenced by final judgment for an offense involving moral


turpitude or for an offense punishable by one year or more of imprisonment
within two years after serving the offense;
2. Those removed from office as a result of an administrative offense;
3. Those convicted by final judgment for violating an oath of allegiance to
the Republic;
4. Those with dual citizenship;
5. Fugitives from justice in criminal or non-political cases here or abroad;

5. Fugitives from justice in criminal or non-political cases here or abroad:


MARQUEZ JR VS COMELEC
In May 1995 election, Rodriguez ran for Governor (Quezon
Province). He won. Marquez, a defeated candidate, filed a disqualification
case against Rodriguez under sec. 40(e) after finding out that Rodriguez had
criminal charges against him of insurance fraud or grand theft of personal
property.
Contention of Rodriguez Not fugitive from justice because he is not yet
convicted by final judgment.

6. 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

SC: No. Fugitive from justice applies not only to those convicted by final
judgment and who absconds to evade punishment BUT also to one, where a
valid criminal information is already filed and he absconded to evade
jurisdiction.

7. The insane or feeble-minded.

RODRIGUEZ VS COMELEC

1. Within two years after serving the offense:

Although there was indeed fraud insurance case before


California court, HE IS NOT A FUGITIVE FROM JUSTICE because
cases were filed 5 months after he has returned to the Philippines,
controlling factor was the intent to evade jurisdiction. He could not have
intent to evade because there is no information yet.

-partial disqualification
Q: What offenses?
A: Those sentenced by final judgment

the
the
the
the

1. Moral turpitude

LIMITATION ON THE TERM OF THE ELECTIVE OFFICIALS

2. Punishable by one year or more of imprisonment

Art. V, Section 8 The term of office of elective local officials, except


barangay officials, which shall be determined by law, shall be three years
and no official shall serve for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he was
elected.

DELA TORRE VS COMELEC


Violation of Anti-Fencing Law constitute an offense involving moral
turpitude.
2. Those removed from office as a result of an administrative offense:
LINGATING VS COMELEC
The administrative case must have attained finality for the
disqualification to apply.
If still pending appeal or on certiorari,
disqualification is not applicable.
If the penalty is removal disqualification shall apply
If the penalty is suspension disqualification not applicable by express
provision of Sec. 66, LGC, as long as he meets the qualifications required.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Term: 3 years except barangay officials


Can serve for three consecutive terms
BORJA VS COMELEC
Borja was first elected as Vice Mayor in 1988 at Pateros. In 1989,
the Mayor died, so he replaced the Mayor. During the 1992 elections, he
ran and won. In 1995, he again ran and won. In 1998, he ran again. His
qualification was questioned.

76

SC: Borja is qualified. 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.
TWO POLICIES EMBODIED HERE:
1. To prevent the establishment of political dynasties
2. To enhance the freedom of choice of the people
TWO CONDITIONS FOR THE LIMITATION TO APPLY (both must
concur):
1. The local official must be elected for three consecutive terms for the
same position.
2. He has fully served the 3 consecutive terms.
If resigned: voluntary renunciation, not considered as an interruption from
office, limitation will apply
If suspended: interruption from office involuntary renunciation
Q: Mayor was elected in 1988. He ran and won again on 1992 and 1995
election. But there was an election protest regarding the 1995 election. On
March 1998, he was removed because of a COMELEC decision. Is he
qualified to run in the 1998 election?
A: YES. He was only elected twice since he eventually lost in the election
protest. In 1995, he is merely a presumptive winner. There is a failure of
the two conditions (LONZANIDA VS COMELEC).

to appeal seasonably. In May 2001, he filed his certificate of candidacy.


The administrative case was not yet decided. Is he qualified?
A: Yes he is qualified to run.
Q: What happens to his pending appeal?
A: It becomes moot and academic because of the Doctrine of Condonation.
The rationale for this is that when the electorate puts him back to the
position, it is presumed that they did so with knowledge of his life, character
and past mistakes.
SOCRATES VS COMELEC (Nov. 10, 2002, En Banc)
Hagedorn was elected as Mayor in 1992, 1995 and 1998 elections.
In the next election, he ran as governor. However, he lost. Meanwhile, the
one elected as Mayor of Puerto Princesa was Socrates. Socrates term
started June 30, 2001. After a year, a resolution calling for a special election
was passed. On the said special election, Hagedorn filed his certificate of
candidacy. His qualification was questioned.
SC: He is qualified. The three term limit is found in Art. X, Sec. 8 and
reiterated in Sec. 43, par. B of LGC.
WHAT IS PROHIBITED IS
IMMEDIATE RE-ELECTION to the SAME OFFICE for a FOURTH
CONSECUTIVE TERM. In this case there is an intervening date.
Q: What if in 2004 and 2007 he wins again, then in 2010, he wants to run
again, is he qualified to run?
A: SC in the same case said that: The service of a recall term shall
constitute one full term. Reason: Elected official in a recall election should
know that the service of recall term shall constitute one full term. (OBITER
DICTUM)
MENDOZA VS COMELEC

Q: X was elected Mayor in 1992 election. In 1995 and 1998 elections, he


ran and won again. In December 2000, as a result of an administrative
case, he was removed. He did not appeal. The administrative case
becomes final. Is he qualified to run in the 2001 election?
A: NO! He is disqualified to run because of Sec. 40 of the LGC and not
because of Art. X, Sec. 8.
LINGATING VS COMELEC The administrative case must have attained
finality before the disqualification to apply. If still pending appeal or
certiorari, disqualification is not applicable.
Q: X was elected in 1992. In 1995 and 1998, he ran and won again. In
2000, as a result of an administrative case, he was removed but he has able

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

In 1992, Tet Garcia won as governor. In 1993, Recall election was


made, Ting Roman won as governor. In 1995 and 1998 elections, Roman
won again. In 2001, Roman ran again. Is he qualified to run?
SC: He is qualified. Recall term is not a full term. Looking at the
Constitutinal records and the Constitution, it can be seen that they both
envision continuance and uninterrupted service of term. The service of
recall term should not be counted in applying the disqualification.
Q: With this ruling, has the ruling in Socrates been abandoned?
A: No. What has been abandoned in Socrates was a mere Obiter Dictum.
No actual controversy yet.

77

Service of recall term will not constitute one full term in applying the
disqualification.

CIVIL SERVICE COMMISSION


One of the Constitutional Commissions
It is the central personnel agency of the government tasked to
administer all the civil service.
COMPOSITION AND QUALIFICATION
Art. IX-B, Sec. 1(1) The civil service shall be administered by the Civil
Service Commission composed of a Chairman and 2 Commissioners who
shall be a natural born citizens of the Philippines, and at the time of their
appointment, at least 35 years of age, with proven capacity for public
administration, and must not have been a candidates for any elective
position in the elections immediately preceding their appointment.
SCOPE
Art. IX-B, sec. 2(1) The Civil Service embraces all branches, subdivisions,
instrumentalities and agencies of the government, including the GOCC with
original charters.

TEST: WITH OR WITHOUT ORIGIANL CHARTERS

BOY SCOUTS OF THE PHILIPPINES VS NLRC


The BSP is an instrumentality attached to DECS and no less than
the President himself is the Chief Scout. No less than 7 members of the
Cabinet are members of the BSP. In short, there is so much government
exposure. They are governed Civil Service Laws and not the Labor Code.
CAMPOREDONDO VS NLRC
Baltazar Camparedondo was a chapter administrator of PNRC.
During a field audit, he was found short. His request for a re-audit by an
independent auditor of his account was denied. Thereafter, he filed with
NLRC a complaint for illegal dismissal. PNRC moved to dismiss the
complaint on the ground of lack of jurisdiction over the subject matter,
alleging that it is embraced within the Civil Service rules and regulations,
being a GOCC with an original charter. Camporedendo questioned this
contending that its charter was already amended corverting it to a public
corporation.
SC: Philippine National Red Cross is a GOCC with an original charter under
R.A> 95, as amended. The test to determine whether a corporation is
government owned or controlled or private in nature is simple. Is it created
by its own charter for the exercise of a public function or by incorporation
under the general incorporation law? Those with special charters are
government corporations subject to its own provisions and its employees are
under the jurisdiction of CSC and are compulsory members of the GSIS.
The PNRC was not impliedly converted to a private corporation simply
because its charter was amended.

(1) If a GOCC was created by special law, it is with original charter


- The special law creating it is the charter
- It is governed by the Civil Service law
- In case of illegal termination, it is under the jurisdiction of the
regular courts
Ex: DBP, Land Bank, PCSO, PAGCOR, GSIS

(2) If a GOCC was incorporated pursuant to the General Corporation, it is


without original charter
-It is nor governed by Civil Service Law
-In case of illegal termination, jurisdiction is with the Labor Arbiter or
NLRC, hence governed by Labor Code.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

KINDS OF APPOINTMENTS
1. Permanent extended to one who possesses all the qualifications
including civil service eligibility.
2. Temporary - extended to one who possesses all the qualifications but
without the civil service eligibility.
The law requires publication of all vacant positions in the government. This
is mandatory so that all eligible can apply.
Positions that need not be published include PRIMARILY CONFIDENTIAL
POSITIONS, which are co-terminus with the appointing authority.
Duration of Temporary Appointment
-

one year

but it may even be shorter

78

Q: X was given an extended temporary appointment to a given office. In the


meantime, A took the Civil Service examination and passed. Is the
appointment status of X automatically converted to permanent?
A: NO! There is a need for a new appointment.
Regular employee used in Labor Code only, not in Civil Service

All elective officials occupy non-career positions since no examination is


required to be taken and the tenure is limited to a period specified by law.

HIGHLY TECHNICAL POSITIONS


-

One which requires the possession of skill or training in the


supreme or superior degree

CLASSIFICATION OF __(DI Ko TALAGA MABASA, MALABO COPY


KO)___IN CIVIL SERVICE
1. Career Service
2. Non-career Service

Ex: Scientist in the government service


Professors in the state universities
Q: How do you classify highly technical positions?
A: Career
Q: Are engineers in the government occupy highly technical positions?

BAR Question:
What are the characteristics pf career positions as well as non-career
positions?
1. Career

A: NO! They may possess technical skills or training but not in the supreme
or superior degree, hence non-career.
PRIMARILY CONFIDENTIAL POSITIONS
Q: What are their classifications?

a. Entrance is based on merit and fitness to be determined based


on competitive examination or it is based on highly technical qualifications;

A: Non-Career. There tenure is co-terminous with that of the appointing


authority or subject to his pleasure.

b. There is security of tenure;


c. Opportunity for advancement to a higher position.
2. Non-Career
a. Entrance is based other than those tests of merit and fitness
utilized for the career service;
b. Tenure is:
1. Limited to a period specified by law;
2. Coterminous with that of the appointing authority or
subject to his pleasure; or
3. Limited to the duration of a particular project for which
the purpose for employment was made.

Q:
How do you classify position of members of the Sangguniang
Panlalawigan?
A: Non-career. It is an elective office.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

DEFINITION OF PRIMARILY CONFIDENTIAL POSITIONS


It is one which denotes not only confidence in the aptitude of the
appointee for the duties of the office bur primarily close intimacy which
insures freedom from the intercourse without embarrassment from
misgivings or betrayals of personal trust or confidential matters of state.
GRINO VS CSC
The position of a provincial attorney is both highly technical and
primarily confidential position. But its predominant feature is primarily
confidential. Hence, he can be removed based on loss of trust or
confidence. However his staff is highly technical. He holds the position coterminous with the pleasure of the appointing authority. There is no removal
but only expiration of term.
When pleasure becomes displeasure, the term becomes fixed and
automatically expires. One who is holding a primarily confidential position,
who was removed from in the ground of loss of trust and confidence cannot
complain on the ground that there was a violation of his security of tenure.

79

PROXIMITY RULE

Secretary/head of bureau-CSC-CA

- This is the test to determine whether or not the position is primarily


confidential or not. The distance between the positions of the appointing
authority and the employee is considered.

CSCCA

CSC VS SALAS
Salas was an employee of PAGCOR, a GOCC with an original
charter. He was a supervisor of the dealers in the casino. He was
suspected in engaging in proxy betting. There was a discreet investigation
conducted of his act. He was later removed on the ground of loss of trust
and confidence. His defense was that he cannot be removed from office on
the ground that under the Constitution, no employee of the Civil Service shall
be removed except for causes provided by law. On the other hand,
PAGCOR contends that under its charter, all positions are primarily
confidential and hence may be removed in the ground of loss of confidence.
CSC affirmed his dismissal. On appeal, CA reversed and applied the
proximity rule.
SC: Applying the proximity rule, Salas cannot be removed on the said
ground. The position of Salas as a supervisor is too remote from the
appointing authority, the Chairman. There are so many intermediaries
between them.
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 latters belief that he can share a close intimacy with the
occupant which ensures freedom of discussion without fear of
embarrassment or misgivings of possible betrayal of personal trust or
confidential matters of the State.
Art. IX-B sec. 2 par. 2 Appointment in the Civil Service shall be made only
according to merit and fitness to be determined as far as practicable and
except to positions which are policy-determining, primarily confidential or
highly technical, by competitive examination. (It has nothing to do with the
classification of his position as career on non-career).

Q: Can you bring an administrative case directly with the CSC?


A: Yes. CSC has original and appellate jurisdiction. Under the Civil Service
law, a complaint against a government official or employee may be filed
directly to the CSC (not only to the heads of office).
Q: Under LGC, where do you file?
A: Local Chief Executive
OMBUDSMAN ACT OF 1989 (RA 6770)
-

the charter of the Ombudsman

under this law, the Ombudsman has disciplinary authority overall


public officers whether appointive or elective, national or local,
except:
(1) Impeachable officers Pres, VP, Members of SC, ConCon,
Ombudsman (Justices of the Sandiganbayan not included).
(2) Members of Congress
(3) Members of the Judiciary

Appeal from the decision of Ombudsman in an administrative case


Under the Ombudsman Act - Directly to the Supreme Court
(Remember, the Constitution provides that no law shall be passed
increasing the appellate jurisdiction of the SC without its advice and
concurrence.)
FABIAN VS DESIERTO

ADMINISTRATIVE DISCIPILINARY CASES

Direct appeal to the SC has been declared unconstitutional. Its


enactment was in violation of Art. VI Sec. 30 of the Constitution which
provides that no law shall be passed increasing the appellate jurisdiction of
the SC without its advice and concurrence.
The provision in the
Ombudsman Act has the effect of increasing the appellate jurisdiction of the
SC without its advice and concurrence.

Q: Who has jurisdiction over administrative disciplinary cases?

Now, the rule is: OmbudsmanCA

A: Under the Civil Service Law:

GOVERNOR LITO LAPID VS CA

ORIGINAL: CSC or head of office, agency or bureau


APPEAL: CA under its expanded jurisdiction

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

An administrative case was filed against Lapid by the Ombudsman.


After investigation, it was found that he was guilty. The penalty was
suspension from office for one year without pay. He was able to appeal

80

seasonably. Ombudsman Desierto wanted to execute the decision pending


appeal.

Q: X was charged administratively, she was later on exonerated. May the


complainant appeal?

SC: Under the Ombudsman Act, only the following cases are final and
executory:

A: No. However, with respect to the meaning of party adversely affected,


the ruling under Paredes has already been abandoned. Hence the answer
now is YES.

1. Provisional orders of the Ombudsman;


2. Decision where the penalty is:
a. suspension for not more than 30 days;
b. fine not more than 30 days salary;
c. censure;
d. reprimand;
e. admonition
EXCLUSIO UNIUS EST INCLUSIO ALTERIUS The suspension against
Lapid is clearly not among those enumerated as immediately executory.
The clear import of these provisions, taken together, is that all other
decisions of the Office of the Ombudsman which impose penalty outside
than those which are enumerated are not final and unappealable, hence not
immediately executory.
An appeal timely filed will suspend or stay
immediate execution of the decision.
APPEALS IN ADMINISTRATIVE DISCIPLINARY CASES
Q: Is appeal available in administrative disciplinary cases?
A: Depends on the penalty imposed
1. If the penalty is:
a. demotion;
b. dismissal;
c. suspension for more than 30 days or a fine equivalent to
more than 30 day salary;
Appeal is available.
2. If the penalty is:
a. suspension for not more than 30 days;
b. fine not more than 30 days salary;
c. censure;
d. reprimand;
e. admonition
Appeal will not lie; the decision is final and executory by express
provision of the law.
Appeal is not a constitutional right but merely a statutory right.

PAREDES VS CSC
Appeal is not a constitutional right but merely a statutory right. A
reading of the Civil Service Law will tend to show that appeal is available
only to the party adversely affected by the decision. A further reading of the
law, the party adversely affected by the decision is the respondent who was
found guilty. In fact, even if he was found guilty but the penalty was
suspension or fine for not more than 30 days, appeal cannot be made
because the decision in such a case becomes final and executory. With
more reason that if he is exonerated, no more appeal. In an administrative
case, the real offended party is the government; the complainant is a mere
complaining witness so that he has no personality to pursue the appeal.
Hence, party adversely affected was limited to the defendant.
CSC VS DACOYCOY
Dacoycoy was the head of a government vocational school in
Samar. Two of his sons were extended permanent appointment under his
administrative supervision although he was not the one who neither
appointed nor recommended them. A case was filed against him for
violation of the law on nepotism. CSC found him guilty. The penalty was
dismissal.
As the party adversely affected, he appealed to CA. CA
exonerated him. If we will follow the Paredes ruling, there is no more appeal
and the complainant cannot appeal because is merely a complaining
witness.
SC: CSC can appeal because it was their decision that was reversed by the
CA. To this extent only, CSC became the party adversely affected. By this
ruling, the Paredes Doctrine, up to this extent, is abandoned. The phrase
party adversely affected refers to the government employee against whom
the administrative case is filed for the purpose of a disciplinary action which
may take the form of suspension, demotion in rank or salary, etc. and not
included are the cases where the penalty imposed is suspension for not
more than 30 days or fine in an amount not exceeding 30 days salary.
(PAREDES VS CSC)
PREVENTIVE SUSPENSION (pending investigation)
Nature: Not a penalty. It is imposed while the case is being investigated or
pending appeal. It should be distinguished from dismissal or suspension

Why? Not part of the Constitution

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

81

which may only be imposed upon investigation and subsequent finding of


guilt.

To know what law is applicable in case of a preventive suspension,


determine first if administrative or criminal case.

BEJA, SR VS CA

A. ADMINISTRATIVE CASE

Preventive suspension is not a penalty by itself; it is imposed only


during the pendency of an administrative investigation. 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,
ehilr 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 PD 807. While preventive suspension may be
imposed on a respondent during the investigation of the charges against
him, the removal from office is a penalty which may only be meted out upon
him at the termination of the investigation or the final disposition of the case.

1. Civil Service Law

GLORIA VS CA
Preventive suspension pending investigation is not a penalty. It is
simply a means of preventing the latter from interfering or intimidating the
witnesses against him.
YABOT VS OMBUDSMAN VASQUEZ
An administrative case was filed against Vice-Mayor Yabot by an
American doctor. He was placed under preventive suspension for 60 days.
Yabot contends that he was already suspended and hence, can no longer
be suspended again.
SC: The first suspension that was imposed was not the penalty. It is merely
a preventive suspension. The second suspension was the penalty. The two
suspensions are of different nature. The service of preventive suspension
cannot be credited with the service of suspension as penalty.
LAYNO VS SANDIGANBAYAN
If the preventive suspension, however, becomes indefinite,
so much that the term of the elective official is about to expire and his
suspension is not yet lifted, in effect he was being penalized and considering
that after the investigation is not yet terminated, to that extent, there was a
denial of due process, hence must be nullified.
Also, the right to due
process of the people who voted for him is likewise violated.
A preventive suspension that lasted for 5 years becomes an
indefinite suspension and therefore violative of due process.
A preventive suspension is not an action by itself but merely an
incident to an action.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Period - 90 days
Case Gloria vs CA
2. Local Government Code
Period 60 days for appointive officials

60 or 90 days fro elective officials

3. Ombudsman Act
Period 6 months
Case Hagad vs Gonzales
B. CRIMINAL CASE
1. Anti-Graft and Corrupt Practices Act
Period 90 days applying by analogy
PREVENTIVE SUSPENSION IN AN ADMINISTRATIVE CASE
I. CIVIL SERVICE LAW
If one is charged administratively, while pending investigation, he
can be preventively suspended for a period of 90 days.
If after the lapse of the 90 day period and the investigation has not
been terminated, there will be an automatic reinstatement.
However if one contributed to the delay of the proceedings or has
filed a petition for certiorari, the period of the delay or certiorari will not
be included in the computation of the 90 day period of preventive
suspension.
Q: Who shall impose the preventive suspension?
A: The CHIEF of the office, agency or bureau shall be the disciplinary
authority.
GLORIA VS CA
During the teachers strike, the public school teachers in this case
did not report for work. Accordingly, they were administratively charged
and placed under preventive suspension. The investigation concluded

82

before their 90 day suspension and they were found guilty. On appeal,
Merit Systems and Protection Board, later affirmed by the CSC,
dismissed their claim. Before the CA, they asked that they be paid for
their salaries during their suspension beyond 90 days. This was
granted. Hence, Sec. Gloria questioned this.
SC: The public school teachers are entitled to their salaries computed
from the time of their dismissal or suspension until their actual
reinstatement, for a period of not exceeding 5 years.
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
2. Preventive suspension pending appeal, if the penalty imposed is
suspension or dismissal and after review the respondent is exonerated
on appeal.
Preventive suspension pending investigation is not a penalty. It is a
measure intended to enable the disciplining authority to investigate
charges against the respondent by preventing the latter from
intimidating or in any way influencing witnesses against him. If the
investigation is not finished and the decision is not rendered within the
period, the suspension will be lifted and the respondent will
automatically be reinstated. If after the investigation, the respondent is
found innocent of the charges and is exonerated, he should be
reinstated. However, no compensation was due for the preventive
suspension pending investigation.
In case of a suspension pending appeal, he is entitled to
compensation for the period of their suspension pending appeal if
eventually he is found innocent. Why? It is actually punitive in
character 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.
SIGNIFICANCE OF THE DIFFERENCE:
Pending Investigation not entitled. Why? Not a penalty but is entitled t
reinstatement.
Pending Appeal if on appeal he is exonerated, he is entitled to full
backwages and reinstatement; it is punitive in character.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

II. LOCAL GOVERNMENT CODE


1.) Sec. 85 LGC Preventive Suspension of Appointive Local Officials
and Employees.
a.) The local chief executives may preventively suspend for a
period not exceeding sixty (60) days, any subordinate official or
employee under his authority pending investigation, if the
charge against such official or employee involves dishonesty,
oppression or grave misconduct or neglect in the performance
of duty, or if there is reason to believe that the respondent is
guilty of the charges which would warrant his removal from the
service.
b.) Upon the expiration of the preventive suspension, the
suspended official or employee shall be automatically
reinstated in office without prejudice to the continuation of the
administrative proceedings against him until its termination, if
the delay in the proceedings of the case is due to the fault,
neglect or request of the respondent, the time of the delay shall
not be counted in computing the period of suspension herein
provided.
Q: Maximum period of preventive suspension?
A: 60 days
Q: Who shall impose?
A: the local chief executives
2.) Sec. 63 LGC- Preventive Suspension.
a.) Preventive suspension may be imposed:
(1) By the President, if the respondent is an elective official of a
province, a highly urbanized or an independent component
city;
(2) By the governor, if the respondent is an elective official of a
component city or municipality; or
(3) By the mayor, if the respondent is an elective official of he
barangay
b.) Preventive suspension may be imposed at any time after the
issues are joined, when the evidence of guilt is strong, and
given the gravity of the offense, there is great probability that
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: Provided, that any single
preventive suspension of local elective officials shall not extend
beyond sixty (60)days; Provided further that in the event that

83

several administrative cases are filed against an elective


official, he cannot be preventively suspended for more than
ninety (90) days within a single year on the same ground or
grounds existing and known at the time of first suspension.
c.) Upon expiration of the preventive suspension, the suspended
elective official shall be deemed reinstated in office without
prejudice to the continuation of the proceedings against him,
which shall be terminated within one hundred twenty (120)
days from the time he was formally notified of the case against
him. However, if the delay in the proceedings of the case is
due to his fault, neglect or request, other than the appeal duly
filed, the duration of such delay shall not be counted in
computing the time of termination of the case.
d.) Any abuse of the exercise of the power of preventive
suspension shall be penalized as abuse of authority.
Q: Period?
A: 60 days for every administrative charge
90 days if there are several administrative charges, during a given
year
Q: who shall impose?
A: if respondent isa.) Barangay official mayor
b.) Official of component city or municipality Governor
c.) Official of independent component or highly urbanized city or
province- President
JURISDICTION
Appointive Officials
Q: Where do you file an administrative complaint against local
appointive officials?
A: From Local chief executive Civil Service Commission Court
of Appeals
Elective Officials
Q: where do you file an administrative complaint against local
elective offificals?
A: (1) Barangay official in a
a. Municipality- sangguniang bayan
b. City sangguniang panglungsod
(2) Official of a municipality sangguniang panlalawigan
(3) City official and provincial official Office of the President

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

*Sec. 63 relate to Sec. 62 (c) LGC xxx no investigation shall be held


within ninety (90) days immediately prior to any local election, and no
preventive suspension shall be imposed within the said period. If the
preventive suspension has been imposed prior to the 90-day period
immediately preceding local election, it shall be deemed automatically lifted
upon the start of aforesaid period.
GANZON vs. CA
Ombudsman Act (RA 6770) administrative jurisdiction

The ombudsman or his deputy has the power to preventively


suspend

For a period of 6 months


HAGAD vs. JUDGE GOZO-DADOLE
An administrative case was filed against a Mayor in one of the
towns in Visayas. He was placed under preventive suspension for 6 months.
He argued that being a local elective official his preventive suspension
cannot exceed 60 days as provided in the LGC and the LGC being later
enactment, is deemed to have repealed the Ombudsman Act with respect to
the imposition of the preventive suspension.
SC:
There is nothing in the LGC (RA 7160) to indicate that it has
repealed the pertinent provisions of the Ombudsman Act (RA 6770).
Repeals by implication are not favored. Every statute must be so interpreted
and brought into account with other laws as to form a uniform system of
jurisprudence. Besides, the grounds to impose preventive suspension under
the LGC and the Ombudsman Act are different. The Ombudsman has
concurrent jurisdiction with the officers who have authority to impose
preventive suspension pursuant to Section 63 of LGC.
PREVENTIVE SUSPENSION IN CRIMINAL CASE
Anti-Graft and Corrupt Practices Act (RA 3019)
Section 13 RA 3019 Suspension and Loss of Benefits Any
incumbent public officer against whom any criminal prosecution under a
valid information under this Act or under Title 7, Book II of the RPC or for
any offense involving fraud upon government or public funds or property
whether as simple or as complex offenses and in whatever stage of
execution and mode of participation, is pending in court shall be suspended
from office. Should he b e convicted by final judgment, he shall lose all
retirement or gratuity benefits under any law, but if he is acquitted, he shall
be entitled to reinstatement and to the salaries and benefits which he failed
to receive during the suspension, unless in the meantime administrative
proceedings have been filed against him.
84

Q: Who has the authority to impose preventive suspension?


A: the law is silent. However in LUCIANO vs. PROVINCIAL GOVERNOR,
the Court interpreting Sec.13 held that It is the court where the criminal
case was filed that has the authority to impose preventive suspension
pursuant to Sec. 13. It is not the fiscal or prosecutor nor the Ombudsman. A
court that has acquired jurisdiction will have to exercise jurisdiction also over
the incidence of the case.

SC:
the contention is not correct. The amendatory provisions clearly
states that any incumbent public officer against whom any criminal
prosecution under a valid information under RA 3019 or for any offense
involving fraud upon the government or public funds or property whether as
a simple or as a complex offense and in whatever stage or execution and
mode of participation, is pending in court shall be suspended from office.
Thus by the use of the word office the same applies to any office which the
officer charged may be holding and not only the particular office which he
was charged.

Q: Before what court should the case be filed?


A: Depends
a. Salary grade 27 and over Sandiganbayan
b. Below salary grade 27 RTC or MTC

*Section 13 RA 3019 does not state that the officer concerned must be
suspended only for the office he was charged.

shall be suspended from office

Preventive Suspension is mandatory. The Court has no


discretion whether to place the officer under preventive
suspension or not.

While preventive suspension is mandatory, it is NOT


automatic. The court must conduct a PRE-SUSPENSION
HEARING, the purpose of which is for the court to determine
the validity of the criminal information filed against the accused
public officer. It is only when the court is satisfied that the
criminal information was validly filed that the court will impose
preventive suspension. Only then that the preventive
suspension
becomes
mandatory.
(SOCRATES
vs.
SANDIGANBAYAN)
Q: What is the duration of the preventive suspension?
A: The law is silent. However in GONZAGA vs. SANDIGANBAYAN, the
court held that the Civil Service Law should be applied by analogy since
Sec. 13, RA 3019 is silent as to the duration of the preventive suspension.
Hence, the duration is ninety (90) days. There are no more cases now of
indefinite suspension.
BAYOT vs. SANDIGANBAYAN; SEGOVIA vs. SANDIGANBAYAN;
DELLOSA vs. SANDIGANBAYAN
X was a municipal mayor. He was criminally charged before the
Ombudsman. While the Ombudsman was investigating the criminal
complaint, there was an election. X ran for governor and won. In the
meantime, the Ombudsman filed the criminal case against him with the
Sandiganbayan. The Sandiganbayan issued the preventive suspension
against X. X now contends that he can no longer be preventively suspended
for the acts he did when he is still a mayor.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

*Moreover, should the purposes behind preventive suspension become


manifest, the respondent court is not bereft of remedies or sanctions. The
petitioner may still be suspended but for specifically expressed reasons and
not from an automatic application of Section 13, RA 3019.
SANTIAGO vs. SANDIGANBAYAN/ PAREDES vs. SANDIGANBAYAN
When X was a governor, a criminal complaint against him for
violation of anti-graft was filed. While the Ombudsman was investigating,
there was an election. X ran for Congressman and won. In the meantime,
the Ombudsman filed the criminal information against X before the
Sandiganbayan. The Sandiganbayan issued a suspension order addressed
to the Speaker of the House of Representatives for him to carryout the order.
The Speaker refused to execute because it violated Section 16 par 3 Article
VI of the Constitution (Each House may determine the rules of its
proceedings, punish its own members for disorderly behavior and either the
concurrence of 2/3 of all its members, suspend or expel a member. A
penalty of suspension, when imposed shall not exceed 60 days)
SC:
there is no encroachment here. What is being imposed by the
Sandiganbayan is not a penalty but merely a preventive suspension.
Members of Congress are not exempted from the operation of Section 10,
RA 3019. The law says any incumbent public officer. We are only
interpreting the law as you wrote it. The Speaker of the House was held in
contempt of the Sandiganbayan.
SUSPENSION AS A PENALTY
Q: Can imprisonment of 10 days be imposed if found guilty?
A: No. Administrative cannot impose penalties which involve deprivation of
life and liberty. Hence cannot impose imprisonment,
Doctrine of Condonation only in administrative cases

85

AGUINALDO vs. SANTOS term of elective officials are distinct


from each other and when elected again the public is deemed to have
condoned his past misconduct; he cannot be punished under the new term
of office.

General Rule: President, Vice President, Cabinet Members,


deputies, assistants shall not hold any office or employment
*the provision is new
*the prohibition is broad covers both public and private
position

PROHIBITIONS/ INHIBITIONS/ DISQUALIFICATIONS


1.

Article IX-B, Section 7, par 1 No elective official shall be eligible


for appointment or designation in any capacity to any public office
or position during his tenure.

Exception: Unless otherwise provided in the 1987 Constitution


e.g. 1) Vice President may become member of
the Cabinet
2) Secretary of Justice is an ex-officio
member of JBC

General Rule: No elective official shall be eligible for appointment


or designation in any capacity to any public office or position during
his tenure.

CIVIL LIBERTIES UNION vs. EXECUTIVE SECRETARY


President Aquino issued an executive order (EO284)
allowing her Cabinet members to hold more than 2 offices. The
appointments were challenged by the Civil Liberties Union. Defense
of the Solicitor General, members of the Cabinet are appointive
officials hence Article IX-B sec 7 (2) shall apply and that they fall
under the exception.

Exception: Elective official can hold other positions/ office in an exofficio capacity. The prohibition extends only to public and not to
private positions. (FLORES vs. DRILON)
2.

Article IX-B, Section 7, par 2 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 and controlled corporations or their
subsidiaries.
General Rule: Appointive official not allowed from holding other
position in the government

SC:
this cannot be allowed. The work of the cabinet members
demands full time
work. Their position is sui generis. Article VII,
section 13 is a new provision. The reason is to avoid what happened in the
Marcos era. It is a special provision which applies to Cabinet
members.
Article IX-B sec. 7 (2) on the other hand is a general provision. Hence, the
EO is unconstitutional.
*see also PUBLIC INTEREST CENTER vs. ELMA June 30, 2006

Exceptions: a. allowed by law


b. allowed by the primary functions of their position
(CIVIL LIBERTIES UNION vs. EXECUTIVE
SECRETARY)
3.

Article VII Section 13, par 1 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 duties.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

4.

Article VI section 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 nor the
emoluments thereof increased during the term for which he was
elected.

Prohibition on incompatible and forbidden office

5.

Article XVI, Section 5, par 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
86

6.

Law on Nepotism

Violation results to dismissal with forfeiture of benefits

Found in the Civil Service Law

Under Section 59, Civil Service Law All appointments in the


national, provincial, city, and municipal governments or in any
branch or instrumentality thereof, including government owned
or controlled corporations, made in favor of a relative of the
appointing or recommending authority, or of the chief of the
bureau or office or of the persons exercising immediate
supervision over him, are hereby prohibited.
The word relative and members of the family referred to are
rd
those related within third (3 ) degree of either consanguinity of
affinity.

CSC vs. DACOYCOY


April 1999 En Banc
Under the law on nepotism, a public official 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 bureau or office
d. One who exercises immediate
supervision over the appointee
SC:
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.
EXCEPTIONS TO THE LAW ON NEPOTISM
1. Teachers
2. Physicians
3. Persons employed in a confidential capacity
4. Members of the Armed Forces of the Philippines
5. Member of a family who, after his or her appointment to any
position in an office or bureau, contacts 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.
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

Under Article VII, Section 13 The President may not appoint his
th
spouse or relatives within the 4 civil degree of consanguinity or
affinity to
a. Member of Constitutional Commission
b. Office of the Ombudsman
c. Secretaries and Undersecretaries
d. Chairman, heads of bureau or offices
Prohibited relationships
rd

Under the Civil Service Law = 3 Civil Degree


th

Under the LGC = 4 civil degree SEC. 79. Limitation on


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.
DEBULGADO vs. CIVIL SERVICE COMMISSION
It was contended that the law on nepotism applies only to
original appointments but not to promotional appointments.
SC:
The law on nepotism applies to all kinds of appointment
because the law does not distinguish.
A textual examination of Section 69 at once reveals that
the prohibition was cast in comprehensive and unqualified terms.
Firstly, it explicitly covers all appointments without seeking to
make ay distinction between differing kinds or types of
appointments. Secondly, Section 59 covers all appointments to the
national, provincial, city, and municipal governments, as well as any
branch or instrumentality thereof and all government owned or
controlled corporations. Thirdly, there is a list of exceptions set out
in Section 59 itself, but it is a short list.
Both an original appointment and a promotion are
particular species of personnel action. The original appointment of
a civil service employee and all subsequent personnel actions
undertaken by or in respect of that employee such as promotion,
transfer, reinstatement, reemployment, etc. must comply with the
Implementing Rules including of course the prohibition against
nepotism in Rule XVIII.
The conclusion we reach is that Section 59 Book V, EO
292 means exactly what it says in plain and ordinary language. It
refers to all appointments whether original or promotional in nature.
The public policy embodied in section 59 is clearly fundamental in
importance, and the court has neither authority nor inclination to

87

dilute that important public policy by introducing a qualification or


discretion here.
LAUREL vs. CSC
Laurel who was the governor of Batangas granted his
brother, Benjamin Laurel a promotional appointment as Civil
Security Officer, a position classified as primary confidential by the
Civil Service.
Q: Was there a violation of the law on nepotism?
A: No. It is under the exceptions of the law
Later on, he designated his brother to the position of
Provincial Administrator a position in the Career Civil Service.
Laurel contends that he did not violate the law on nepotism
because he merely designated his brother not appointed him.
Designation presupposes that he has already been appointed and
merely given additional function.
SC:
The appointment or designation as Acting Provincial
Administrator was violative of the prohibition against nepotism, then
embodied in Section 49 PD No. 807. Moreover, the Court
emphatically agrees with the CSC that although what was extended
to Benjamin was merely a designation and not an appointment xxx
the prohibitive mantle on nepotism would include designation
because what cannot be done directly cannot be done indirectly.
We cannot accept petitioners view. His specious and tenuous
distinction between appointment and designation is nothing more
than either a play ingeniously conceived to circumvent the rigid rule
on nepotism or a last ditch maneuver to cushion the impact of its
violation. The rule admits of no distinction between appointment
and designation. Designation is also defined as all appointment or
assignment to a particular office, and to designate means to
indicate, select, appoint, or set apart for a purpose of duty.
*for purposes of the law on nepotism, appointment and designation
are the same.
7. Section 90, LGC Practice of Profession
(a) All governors, city and municipal mayors are prohibited from
practicing their profession or engaging in any occupation other than the
exercise of their functions as local chief executives.
(b) Sanggunian members may practice their professions, engage in
any occupation, or teach in schools except during session hours,
Provided, that sanggunian members who are also members of the Bar
shall not:

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

(1) Appear as counsel before any court in any civil case


wherein a local government unit or any office, agency or
instrumentality of the government is the adverse party;
(2) Appear as counsel in any criminal case wherein an
officer or employee of the national or local government is accused
of an offense committed in relation to his office;
(3) Collect any fee for their appearance in administrative
proceedings involving the local government unit of which he is an
official; and
(4) Use property and personnel of the Government except
when the Sanggunian member concerned is defending the interest
of the government.
(c) Doctors of medicine may practice their profession even during
official hours of work only on occasions of emergency. Provided,
that officials concerned do not derive monetary compensation
therefrom.
Q: Can a mayor practice his profession?
A: No.
Q: Can members of the sanggunian practice their profession?
A: Yes, except during session hours.
Q: Can Vice mayor exercise his profession?
A: Yes. Vice Mayor belongs to the legislative, while sanggunian
members must be interpreted in general terms. There is no
prohibition. Hence, the Vice Mayor can e belongs to the legislative,
while sanggunian members must be interpreted in general terms.
There is no prohibition. Hence, the Vice Mayor can exercise or
practice his profession. However, in case the Vice Mayor becomes
acting mayor or acting governor, he cannot practice or exercise his
profession because in such case then, he exercises an executive
position. (Atty. Sandoval)
JAVELLANA vs. DILG
Atty. Javellana is a member of the Sanggunian
Panlalawigan. Two of the employees of the Provincial Engineers Office
were removed. They asked for his assistance and so Atty. Javellana
appeared in their behalf. He was prohibited from appearing on the
ground that the same is prohibited by the LGC where the adverse party
is the government. He went to the Supreme Court and challenged the
constitutionality of Section 90, LGC on two grounds: 1) the provision is
unconstitutional because it encroached the power of the Supreme Court

88

to regulate the practice of law; and 2) the provision violates the equal
protection clause because the law profession was singled out.
SC:
There is no encroachment on the power of the SC to
regulate the practice of law. Section 90 LGC is a reasonable regulation
designed to ensure that there shall be no conflict of interest in the
exercise of his functions as a sanggunian member and his function as a
lawyer.
There is no violation of the equal protection clause. Under
the equal protection clause, not all classifications are invalid. There is a
substantial distinction between the law profession and the other
professions. Of all the professions, it is this profession that is most likely
to affect the area of public service.
Moreover, Section 90 LGC does not discriminate against
lawyers and doctors. It applies to all provincial and municipal officials in
the professions or engaged n any occupation. It explicitly provides that
Sanggunian members may practice their professions, engage in any
occupation, or teach in schools except during session hours. If there are
some prohibitions that apply particularly to lawyers, it is because of all
the professions, the practice of law is more likely than others to relate
to, or affect, the area of public service.
8. SEC. 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 nonpolitical 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.

VACANCIES AND SUCCESSIONS (Section 44-45, LGC)


Section 44, LGC 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
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

vacancy occurs in the offices of the governor, vice governor, mayor or vice
mayor, the highest ranking sanggunian member shall become the governor,
vice governor, mayor or vice mayor as the case may be. Subsequent
vacancies in the said offices shall be filled automatically by the other
sanggunian members according to their ranking as defined herein.
(b) If a permanent vacancy occurs in the office of the punong
barangay, the highest ranking sangguniang barangay member or in case of
his permanent inability, the second highest ranking sanggunian member
shall become the punong barangay.
(c) A tie between or among the highest ranking sanggunian
members shall be resolved by drawing of lots.
(d) 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, refuse 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 this 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.
*In case of permanent vacancy (section 44) automatic succession applies,
so in case of death of mayor, the vice mayor succeeds, in case of the vice
mayor, the highest ranking sangguniang member succeeds.
Illustration:
District I (10,000)
1.

Pedro

2.

Mario

3.

Jose

District II (8,000)

5,000
4,500
5,000

Q: For purposes of succession, how do you determine ranking?


A: For purposes of succession, 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 (sec 44, LGC last par)
*Therefore Mario is the highest ranking member.

89

Q: Who is ranking between Pedro and Jose?


A: A tie between or among the highest ranking Sanggunian members shall
be resolved by the drawing of lots. (Sec. 44 par c, LGC)
Q: Let us assume that 8 sanggunian members, the last ranking died. What
happens?
A: Apply sec. 45 LGC, not the rule on automatic succession.
Section 45, LGC Permanent vacancies in the Sanggunian (a)
Permanent vacancies in the sanggunian where automatic successions
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 sanggunian
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 herein after
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 therein mentioned, a
nomination and 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 ground for administrative action against the official
responsible therefor.
(c) In case the 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.

Governor
Sangguniang PAnglungsod in component cities
(2) Sangguniang Panglungsod of Highly Urbanized Cities
Sangguniang Panglungsod of Independent Component
President
Sangguniang Panlalawigan

Cities

*If one who will be replaced belongs to a political party, the successor must
come from the same political party.
If he does not belong to a political party then apply Sec. 45(c)
Q: Who shall appoint?
A: Local chief executive upon the recommendation of the sanggunian
concerned.
FARIAS vs. BARBA
The last ranking sanggunian bayan member who did not
belong to any political party resigned. To fill the vacancy, both the mayor and
the governor appointed their own choice.
SC:
Neither of the two appointees should assume position.
Sec 45 (c) LGC must be read together with Sec 45 (a). Since this is a
municipality, the governor should appoint but with the recommendation of
the sanggunian concerned which is the sanggunian bayan where the
vacancy took place.
NAVARRO vs. CA
Composition of the municipal government:
Mayor Lakas
NUCD
Vice Mayor. Lakas
NUCD
st
th
1 to 5 sanggunian member.. Reporma
th
6 Sanggunian Member.. Lakas NUCD
th
7 Sanggunian Member.. Reporma
th
8 Sanggunian Member.. Lakas NUCD
Therefore in the Sanggunian, there were 6 Reporma and 2 Lakas.
The mayor died. The Vice mayor became the Mayor. The last ranking
position became vacant so the governor appointed someone from Reporma.
Lakas protested because the vacancy came from Lakas.

Q: Who shall appoint?


A: (1) Sangguniang Bayan
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

90

SC:
Governor is correct. What is crucial is the interpretation of Sec. 45
(6). The reason behind the right given to the political party to nominate a
replacement is to maintain the party representation as willed by the people in
the election.
With the elevation of Tamayo (Reporma) as the Vice Mayor it
diminished the Repormas representation in the Sanggunian. Hence, the one
appointed should come from Reporma.

maintenance of public order, protection and security of life and property, or


the maintenance of a desirable and balanced environment and any
barangay member who comes to the aid of persons in authority shall be
deemed agents of persons in authority.

GAMBOA JR. vs. AGUIRRE JR.


July 20, 1994
The governor went abroad. He was away for 3 months. Governor
issued an administrative order designating the Vice governor as acting
governor. The acting governor wants to preside in the session of the
sanggunian.

GARCIA vs. COMELEC

There is no need for a criminal charge before a recall may be


initiated.

There is only one ground, loss of confidence

SC:
Being the acting governor, he cannot simultaneously exercise the
functions of his office. The power of the vice governor to preside over
sanggunian session is suspended as long as he is the acting governor.
The creation of temporary vacancy in the office of the governor
creates a corresponding vacancy in the office of the vice governor.
Q: Then who will preside in the meantime?
A: Under sec. 49 (b) LGC 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. Hence, the members present
and constituting a quorum shall elect from themselves the temporary
presiding officer. Do not apply the rule in permanent vacancy.
Q: Who appoints the barangay treasurer, secretary and other appointive
officials of the barangay?
A: Punong barangay appoints barangay secretary, treasurer, and other
appointive official with the approval of the majority of the members of the
sangguniang barangay. (ALGUIZOLA vs. GALLARDO)
The power of appointment is exercised with approval of sanggunian,
therefore in removing or replacing an appointive official, there must also be
approval of the majority of sanggunian barangay members.
Sec. 388, LGC Persons in authority For purposes of the RPC,
the punong barangay, sanggunian barangay members and members of the
lupong tagapamayapa in each barangay shall be deemed as persons in
authority in their jurisdiction, while other barangay officials and members
who may be designated by law or ordinance and charged with the
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

RECALL

Provided in Section 69-75, LGC. This is a mode of removing a


local elective official before the expiration of his term.

EVARDONE vs. COMELEC


A recall is a political question not subject to judicial review. It is a
political question that has to be decided by the people in their sovereign
capacity.
2 STAGES
1. Initiatory
2. Special Recall Election
*The official sought to be recalled becomes a candidate automatically.
Hence, he is prohibited from resigning.
* There is only one way of initiating a recall through a petition signed by at
least:
25% of registered voters below or 20,000 total registered voters
of LGU concerned
20% of registered voters more than 20,000 but less than 75,000
total registered voters
of
LGU
concerned
15% of registered voters more than 75,000 but less than 300,000
total registered
voters
of
LGU concerned
10% of registered voters more than 300, 000 total registered
voters of LGU concerned
*The PREPARATORY RECALL ASSEMBLY (PRA) has been REPEALED.
(RA 9244)
ANGOBUNG vs. COMELEC
A was a mayor, a year after his election was sought to be recalled.
There was a recall process initiated by only one person. The COMELEC
91

approved the petition and assigned a signing day. Angubong went to the SC
alleging grave abuse of discretion.
SC:
The petition for recall signed by only one person is a violation of the
25% statutory requirement. The law is plain and unequivocal as to what
constitutes a recall proceeding.
LIMITATION ON RECALL (SEC.74)
a. An elective official can be subjected to recall only once
b. No recall shall take place within one year from the assumption of
office or one year immediately preceding a regular local election.
PARAS vs. COMELEC
Paras was a punong barangay. There was a petition for recall. The
SK election was scheduled during that year when the petition was filed. The
contention of PAras was that there would be a regular election; hence the
recall cannot push through.
SC:
The term regular local election refers to one where the position of
one sought to be recalled is actually to be contested and filled by the
electorate.
ANGOBUNG vs. COMELEC
The limitation on recall shall not apply if the official sought to be
recalled is a Mayor and the forthcoming election is a barangay election.
CLAUDIO vs. COMELEC
The issue in this case is the interpretation of within one year from
the date of assumption to office. Claudio was elected as Mayor. His term
started 30 June 1998. On 19 May 1999, members of the then Preparatory
Recall Assembly convened on their plans to initiate a petition for recall
against Claudio. On 29 May 1999, majority of the members of the PRA
adopted a resolution calling for the recall of Mayor Claudio. It was submitted
2 July 1999. The Comelec scheduled a special recall election.
SC:
the resolution was validly adopted. The recall refers to the election
itself wherein the voters themselves decide whether or not to retain the
official concerned. It does not refer to the initiation proceedings.
SOCRATES vs. COMELEC
On May 2001, the governor elected was Socrates. 2 July 2002,
members of the Preparatory Recall Assembly adopted a resolution calling
for the recall of Governor Socrates. 24 September 2002 there would be a
recall election. On 15 July 2002, there was a barangay election. Most of the
members who signed the recall resolution lost in the election. Hence, it was

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

contended that those who signed have no mandates because they lost in the
election.
SC:
The contention is not correct, when the members adopted the
resolution, their term of office have not yet expired. They were still de jure
officers with no legal disqualification to participate.
AFIALDO vs. COMELEC
Miranda was elected Mayor. On the other hand, Navarro was
elected the Vice Mayor. Members of the Preparatory Recall Assembly
adopted a resolution calling for the recall of Vice mayor Navarro. Mayor
Miranda was removed by SC. The Vice mayor assumed office.
SC:
The recall elections become moot and academic. It is clear from
the resolution that they wanted to remove him from being a vice mayor.
AFIALDO vs. COMELEC
Before vice mayor Amelita Navarro assumed mayorship, Joel
Miranda was still mayor. Decision in MIRANDA vs. ABAYA was not yet
promulgated. When she was vice mayor, the members of the PRA of
Santiago City adopted a resolution calling for the recall of vice mayor. This
resolution was submitted to Comelec. A special recall election was then
scheduled. Meanwhile the decision in the Miranda vs. Abaya was
promulgated. Vice mayor Navarro assumed the mayorship upon the removal
of Joel Miranda as mayor. What happens now to the special recall election
for vice mayor?
SC:
it has been rendered moot and academic. It is clear from the
resolution of the members of the preparatory center of Santiago City that
they wanted to recall her as vice-mayor. They got what they wanted. She is
no longer the Vice-mayor. She is now the Mayor.
LOCAL
GOVERNMENT
ADMINISTRATIVE REGIONS

UNITS/

AUTONOMOUS

REGIONS/

Article X, Section 1 The territorial and political subdivisions of the


Republic of the Philippines are the provinces, cities, municipalities, and
barangays. There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as herein after provided.
AUTONOMOUS REGIONS
Article X, Section 15 There shall be created autonomous regions
in Muslim Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and distinctive
historical and cultural heritage, economic and social structures, and other
relevant characteristics within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of the
Philippines.
92

ADMINISTRATIVE REGIONS
Mere grouping of provinces for administrative purposes. They are
not considered as political and territorial subdivision. There is a need for a
plebiscite to be a political subdivision.
E.g. Region 1
Q: Who has the power to create administrative regions?
A: It has been traditionally exercised by the President in line with his
supervisory powers over the LGUs.
LIMBORA vs. MARGELIN
Concept of Local Autonomy
Decentralization of Administration
Decentralization of Power

Central government
delegates
administrative power
to local government in
order to broaden the
base
of
the
government.

Abdication of political
power in favor of LGU;
free to chart its own
destiny.

Q: What kind of autonomy is contemplated by the Constitution?


A: Only decentralization of administration, as not to make the LGU sovereign
within the state. But with regards to autonomous region, decentralization of
power which contemplates grant of political autonomy.
METROPOLITAN POLITICAL SUBDIVISION
Article X Section 11 The Congress may, by law, create special
metropolitan political subdivisions, subject to a plebiscite as set forth in
section 10 hereof. The component cities and municipalities shall retain their
basic autonomy and shall be entitled to their own local executives and
legislative assemblies. The jurisdiction of the Metropolitan Authority that will
thereby be created shall be limited to basic services requiring coordination.
Q: Is MMDA a special metropolitan political subdivision?
A: No! The creation of MMDA was not subject to a plebiscite. Also MMDA
has no police or ordinance power. It is purely administrative.
MMDA vs. BEL-AIR VILLAGE
In view of the traffic congestion, Bel-Air was compelled to open its
village to the public.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

SC:
This cannot be done. The MMDA is not a political unit; not a LGU;
nor a metropolitan political subdivision. The chairman was not elected by the
people. It is the LGU that possesses legislative and police power.
DUAL NATURE OF LGU
1. Body politic
2. Body corporate
DUAL FUNCTION OF LGU
1. Acting as body politic- governmental
2. Acting as a corporate entity representing
proprietary

the

inhabitants-

TWO KINDS OF PROPERTY OF LGU


1. Properties for public service owned in the governmental capacity
e.g. streets
2. Patrimonial property owned in their proprietary capacity e.g. north
cemetery
DACANAY Case
Property owned for public service cannot be a subject of a contract.
CONDITIONS BEFORE A PROPERTY OWNED FOR PUBLIC SERVICE
BE CONVERTED TO PATRIMONIAL PROPERTY
1. Continuous non use for public service
2. Positive act from legislative branch withdrawing use of property
from public service
MAKASIANO vs. COMELEC
In this case, there was a positive act from Congress but the same is
not enough because the two requirements must be met.
CREATION, DIVISION, MERGER, ABOLITION, OR SUBSTANTIAL
ALTERATION OF BOUNDARY
Article X, Section 10 No province, city, municipality, or barangay
may be created, divided, merged, abolished, or its boundary substantially
altered, except in accordance with the criteria established in the Local
Government Code and subject to approval by a majority of the votes cast in
a plebiscite in the political units directly affected.
TWO REQUIREMENTS
1. It must be according to the criteria established in the LGC.
Criteria established under the LGC:
Veritable indicators
93

2.

a. income
b. population
c. land area
Subject to the approval by a majority of the votes cast in a
plebiscite in the political units directly affected.

3.

Q: Who shall vote?


A: PADILLA vs. COMELEC
Voters are not limited to the voters of the new area but also the
voters of the parent unit. Since the parent unit is also affected.
*The doctrine under Paredes has been abandoned by TAN vs. COMELEC,
as reaffirmed in the Padilla vs. Comelec.
Q: In the income requirement, should the IRA be included in the
computation?
A: Yes.
ALVAREZ vs. GUINGONA
Congress passed a law creating Santiago. The IRA was excluded.
SC:
The basis of IRA is Article X, Sec 6. This is not self-executing. It is
implemented in the LGC.
LGUs are entitled to 40% of the total national taxes. The
allocations in Sec 285 LGC- Allocations to Local Government Units.- The
share of local government units in the internal revenue allotment shall be
allocated in the following manner:
a. Provinces 23%
b. Cities 23%
c. Municipalities 34%
d. Barangays 20%

Article X, Section 6 Local government units shall have a just


share, as determined by law, in the national taxes which shall be
automatically released to them.
Equitable share in the proceeds of the utilization and development
of national wealth.
Article X, Section 7 Local governments shall be entitled to an
equitable share in the proceeds of the utilization and development
of national wealth within their respective areas, in the manner
provided by law, including sharing the same with the inhabitants by
way of direct benefits.

MUNICIPALITY OF PARAAQUE vs. VM REALTY


The municipality expropriated a property to be converted into a
Youth Center. The issue is: what is required in order for LGU to exercise its
eminent domain powers?
SC:

Under Section 19, LGC, an ordinance is required.


Section 19, LGC Eminent Domain a local government unit,
may through its chief executive and acting pursuant to an ordinance,
exercise the power of eminent domain for public use, or purpose, or welfare
for the benefit of the poor and the landless, upon payment of just
compensation, pursuant to the provisions of the Constitution and pertinent
laws. Provided, however, that the power of eminent domain may not be
exercised unless a valid and definite offer has been previously made to the
owner, and such offer was not accepted; Provided further that the local
government unit may immediately take possession of the property upon the
filing of the expropriation proceedings and upon making a deposit with the
proper court of at least fifteen percent (15%) of the fair market value of the
property based on the current tax declaration of the property to be
expropriated. Provided finally, that the amount to be paid for the
expropriated property shall be determined by the proper court based on the
fair market value at the time of the taking of the property.

Hence, IRAs are regular recurring income. It does not constitute as


a mere transfer. It should be included in the computation. It is an income of
the LGU.

Ordinance vs. Resolution


Ordinance

MAIN SOURCES OF INCOME OF LGUs

-is a law

- merely a declaration of sentiment


or opinion of the lawmaking body

- possesses a general; permanent


character

- temporary

- a third reading on its enactment is


required

- no reading in its enactment is


required unless approved by majority
of sanggunian members

1.

2.

Article X, Section 5 Each local government unit shall have the


power to create its own sources of revenues and to levy taxes,
fees, and charges subject to such guidelines and limitations as the
Congress may provide, consistent with the basic policy of local
autonomy. Such taxes, fees and charges shall accrue exclusively to
the local government.
IRA

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Resolution

94

Q: Do LGUs have inherent powers?


A: None. They are pure creations of the legislative branch.
POWER TO TAX
Of the three powers of the state, the power to tax is constitutionally
delegated power to LGU, subject to guidelines as the Congress may provide
in accordance with Article X sec. 5.

DEVELOPMENTS IN PUBLIC INTERNATIONAL LAW


By:

(1) An individual person as subject of international law


Subject of international law defined

POLICE POWER ; EMINENT DOMAIN


They are delegated by the Congress not by the Constitution
*Police Power: Section 16, LGC General Welfare Every local
government unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers necessary, appropriate, or
incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective
territorial jurisdictions, local government units shall ensure and support,
among other things the preservation and enrichment of culture, promote
health and safety, enhance the right of the people to a balanced ecology,
encourage and support the development of appropriate and self-reliant
scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their
residents, maintain peace and order and preserve the comfort and
convenience of their inhabitants.
*Eminent Domain: SEC. 19. Eminent Domain. - A local government
unit may, through its chief executive and acting pursuant to an ordinance,
exercise the power of eminent domain for public use, or purpose, or welfare
for the benefit of the poor and the landless, upon payment of just
compensation, pursuant to the provisions of the Constitution and pertinent
laws: Provided, however, That the power of eminent domain may not be
exercised unless a valid and definite offer has been previously made to the
owner, and such offer was not accepted: Provided, further, That the local
government unit may immediately take possession of the property upon the
filing of the expropriation proceedings and upon making a deposit with the
proper court of at least fifteen percent (15%) of the fair market value of the
property based on the current tax declaration of the property to be
expropriated: Provided, finally, That, the amount to be paid for the
expropriated property shall be determined by the proper court, based on the
fair market value at the time of the taking of the property.

---- End---Good Luck and God Bless Us all.


Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

Atty. Edwin Sandoval

an entity which has an international personality

an entity has an international personality if it has


rights which may be directly enforced or it has
obligations for which it may be held directly
accountable under international law.

an entity although it has rights, but which can be


enforced only through
another medium is not a
subject. It is merely an object.
* Two views:
a.) Traditional view only states are subject of international law.
- only states have rights which may be directly enforced or
have obligation
for which it may be held directly accountable
under international law.
b.) Modern view not only states are proper subjects of
international law.
proper subjects

- international organizations (ie. United Nations) are also


of international law.

proper subject of

- to a limited extent, the individual is now considered as


international law.

Govt. of HK special administrative region (represented by Phil. DOJ)


vs. Hon. Olalia
- the modern trend in public international law is the primacy place
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 taking root.
- the vulnerable doctrine that the subject of international law are
limited only to states was dramatically eroded towards the second half of the
past century.

95

- for one, the Nurumberg and Tokyo trials after WWII resulted in the
unprecedented spectacle of individual defendants prosecuted for acts
characterized as violations of the laws of war, crimes against
peace, and crimes against humanity.

* Jurisdiction of the International Criminal Court over the


following
offenses:
a.) genocide
b.) crimes against humanity

- recently, under the Nurumberg 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.
when the individuals were held directly accountable for their
crimes, he is no longer regarded as a mere object of international law, he
has become a subject of international law.
the justification for assumption of jurisdiction over the individual
is that crimes against international law are committed by men and not by
abstract entities. It is only by punishing individuals who commit such crimes
can the provisions of international law be enforced.

c.) war crimes


d.) crimes of aggression
common characteristics of the four they are the most serious crimes
of international concern.
terrorism is not included.
ethnic or

to eliminate

another instance when an individual is regarded as subjects of


international
law is in case of human rights violations.
- more often, an individuals human rights is violated by his
own government such that he cannot have a recourse against his own
government.

Genocide the deliberate destruction or annihilation of a racial,


religious group.

* Organization of International Criminal Court


- 18 judges
- subject to increase in number by authority of Article 36 of
its statute

- he may have recourse to the international human rights


body.

Ex. Holocaust during the WWII deliberate policy of Hitler


all the jews in the world.

- organized into: a) appeal division president and four


other judges

(2) Creation/establishment of International Criminal Court

b) trial division three judges

* ICC vs. ICJ

c) pre-trial division three judges

ICJ

ICC

- was created pursuant to the


charter of the UN itself.

- was created by a separate treaty


known as the Rome statute.

- it is the principal judicial organ of


the UN.

- it is a separate body.

- only states may be parties to


disputes in international court of
justice.

- international criminal court will try


persons/individuals, not states, who
commit the most serious crimes of
international concern.

- the judicial functions are carried out by judges in


chambers
- the workload of the court may require more than one trial
chamber or pre-trial chamber
- judges of Appeals chamber shall serve only in that
division
- other organs of the court: a) presidency
b) office of the prosecutor
c) registry (office of clerk
of court)

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

96

Principle of Complementarity

c.) 3

rd

- the international criminal court shall be complementary to


national criminal jurisdiction.
- this gives primacy to national jurisdiction. If the national
court has already assumed jurisdiction, icc can no longer assume
jurisdiction.
- unless, the proceeding in the national court is:
a) for the purpose of shielding the person concerned from liability;

generation of human rights consisting of right to development,


right to peace and right to environment.
* Human rights are either:
a) individual

permanent
resources.

or

International Bill of Rights

b) not conducted independently or impartially.


human rights in

- those liberties, immunities, and benefits which all human


beings should
be able to claim as of right of the
society in which they live by accepted
contemporary values.
- those fundamental and inalienable rights which are
essential for life as a
human being.

- pertain to rights of an individual as a human being which


are recognized
by the international community as a
whole through their protection and
promotion
under
contemporary international law.

b) the international covenant on economic, social


& cultural rights
c) the international covenant on civil & political
rights
Recognition and importance given to Human Rights by
international organizations and states
- on December 10, 1948, the UN General Assembly
adopted the Universal
Declaration of Human Rights in which
the right to life, liberty and all 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.

International Law on Human Rights

* Sources of International Law:

- the law which deals with the protection of individuals and


groups against
violations by government of their internationally
guaranteed rights, and
with the promotion of these
rights.

1) Primary
a) treaties or international conventions
b) international custom

* Classification of Human Rights/ Three Generation of Human


Rights:
st

c) general principles of law recognized by


civilized nations

a.) 1 generation of human rights consisting of civil and political rights


b.) 2

nd

- the term used to designate the three main instrument of


the international plane, which are:
a) the universal declaration of human rights

(3) International Human Rights


Human Rights

b) collective right to self determination of people; the


sovereignty
over
natural

2) Secondary

generation of human rights consisting of economic, social and


cultural rights.

d) judicial decisions
e) teachings of authoritative publicists of various
nations.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

97

Universal Declaration of Human Rights, while not a treaty, has


evolved as an
international custom, a primary source of international law.
The Philippines commitment to uphold the fundamental human
rights as well as the worth and dignity of every person
- commitment is enshrined in Section 2, Article II of our Constitution.
- it provides: The state values the dignity of every human person and
guarantees full respect for human rights.
- The Philippines 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 or the legality of the detention and order their release.
Govt. of HK special administrative region (represented by Phil. DOJ)
vs. Hon. Olalia
- the Philippine authorities are under obligation to make available to
every person under detention such remedies which safeguard their
fundamental right to liberty.

c) Laws of Neutrality govern the relations of third states not parties to the
war with any of the belligerent states. (but the relations of third parties inter
se shall still be governed by the laws of peace)
* Principal legal documents are:
1.) Geneva Convention of 1949 define fundamental rights for
combatants
removed from the fighting due to injury, illness or
capture and for civilians.
a) Geneva Convention for the Amelioration of the
Condition of the
Wounded and Sick in Armed Forces in
the field of August 12, 1949
- first Geneva convention
- applies to armed forces in the field (land)
b) Geneva Convention for the Amelioration of the
Condition of Wounded,
Sick and Shipwrecked Members of
Armed Forces at Sea of Aug 12, 1949
- second Geneva convention

- these remedies include the right to be admitted to bail


- while this court in the Purganan case, limited the exercise of the
right to bail to criminal proceedings, however, in the light of various
international treaties giving recognition and protection to human rights,
particularly the right to life and liberty, a re-examination of this Courts ruling
in the Purganan case is in order.

- applies to armed forces ate sea (navy)


c) Geneva Convention Relative to the Treatment of
Prisoners of War of
August
12,
1949
- third Geneva convention
- deals with prisoners of war

(4) International Humanitarian Law (IHL)


- used to be called laws of war/ laws of armed conflict (which may
refer to both international armed conflict and internal armed conflict)
- that branch of public international law which governs armed
conflict 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.
* Three Grand Divisions of International Law:
a) Laws of Peace govern relations between and among nations under
normal circumstances.
b) Laws of War govern relations between and among belligerent states
(states at war) during wartime.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Person in time of

d) Geneva Convention to the Protection of the Civilian


war of August 12, 1949
- fourth Geneva convention
- applies to civilians

2.) 1977 Additional Protocols supplement the Geneva


convention
a) Protocol Additional to Geneva Conventions of August
12, 1949 and
Relating to the Protection of Victims of
International Armed Conflicts
- Protocol I of June 8, 1977
b) Protocol Additional to Geneva Conventions of August
12, 1949 and
Relating to the Protection of Victims of
Non-International Armed
Conflicts

98

- Protocol II of June 8, 1977

* Four Categories of Combatants:

IHL encompasses both humanitarian principles and international


treaties that
seek to save lives and alleviate suffering of combatants
and non-combatants
during armed conflict. It is not concerned with the
lawfulness or unlawfulness of
armed conflicts.
* International Humanitarian Law vs. Human Rights Law
IHL

HRL

- applies in situations of armed


conflict

- protects individuals at all times (in


war and peace alike)

- no derogation from certain rights


are permitted because it was
conceived for emergency situations
namely armed conflict

- may permit of some derogation


from certain rights in situations of
public emergency

- aims to protect people who do not


or are no longer taking part in
hostilities

- tailored primarily for peace time;


apply to everyone

the rules embodied in IHL impose


duties on all parties to a conflict

- provides for specific mechanisms


that help its implementation

b) Irregular Forces consists of the guerilla and the militia


- they are treated as lawful combatants, provided:
i) they must be under the command of an officer responsible for the
conduct of his men.
ii) they wear uniforms or insignia recognizable from a distance.
iii) they carry arms openly.
iv) they observe the laws and customs of war in the
their hostilities.

conduct

of

c) Levee En Masse civilians of an unoccupied territories who


upon approach of the enemy forces and
without having
time
to
organize,
spontaneously take up arms to resist the
invading forces.

their principal goal is to protect


individuals from arbitrary behavior
by their own government;

- once captured, they are considered as combatants (not


civilians) and will be treated as a prisoner of war.

HRL does not deal with conduct


of hostilities.

d) Officers and Crew of Merchant marine


vessels who forcibly
resist attack once
captured, they are considered as combatants
and will be treated as prisoners of war.

- human rights in implementing


mechanisms are complex and
includes regional systems.

* Basic Rules of IHL:


(1.) Attacks must be limited to combatants and military targets
members of the

a) Regular Forces members of the armed forces except medical


personnel and chaplain.

Combatants persons taking direct part in hostilities or


armed forces.

Military targets combatants and objects which by their


nature, location,
purpose or use make an effective contribution to
military action and whose
destruction offers a definite military
advantage.
Civilians shall not be attacked!
In case of doubt, a person shall be considered a civilian.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Non-Privileged Combatants although they have rights


(limited/minimal),
when
captured, are not entitled to be treated as
prisoners of war.
- they do not form part of the regular or irregular forces but
actually takes part directly or indirectly in the hostilities as:
a) spies
b) mercenaries soldiers for a fee/ soldiers of fortune
A soldier, not wearing uniform during hostilities, runs
the risk of being
treated as a spy; thus, not to be treated
as a prisoner of war.
BAR 1993:
Reden, Jolan and Andy, Filipino tourists, were in
Bosnia-Herzegovina when hostilities erupted between the Serbs and the

99

Moslems.
Penniless and caught in the crossfire, Reden, Jolan and
Andy, being retired
generals, offered their services to the Moslems
for a handsome salary, which offer was accepted. When the Serbian
National Guard approached Sarajero, the
Moslem civilian population
spontaneously took up arms to resist the invading
troops. Not finding
time to organize, the Moslems wore armbands to identify
themselves,
vowing to observe the laws and customs of war. The three Filipinos
fought side by side with the Moslems. The Serbs prevailed resulting
in the capture
of Reden, Jolan and Andy, and part of the civilian fighting
force.
1) Are Reden, Jolan and Andy considered combatants thus
entitled to treatment as prisoners of war?
NO. Reden, Jolan and Andy are not combatants because
they are mercenaries. They offered their services to the Moslems for a
handsome salary.
They are soldiers of fortune. They are not
members of the armed forces but took part in the hostilities. They are nonprivileged combatants and are not entitled to treatment as prisoners of war.
2) Are the captured civilians likewise prisoners of war?
YES. The captured civilians are prisoners of war. They fall
under the
category of levee en masse. When the Serbian National
Guard approached Sarjero, the Moslem civilian population spontaneously
took up arms and resist the
invading troops without having time to
organize. The Moslems wore armbands to identify themselves, vowing to
observe the laws and customs of war.
Civilian objects may not be attacked.

- it is prohibited to order or threaten that there


shall be no
survivors.
(No
Quarters Order take no prisoners, kill all)
(3) Civilians, wounded combatants and prisoners should be spared
, protected and treated humanely.
Hors De Combat literally means out of combat
- disabled soldiers
(4) Military and civilian medical personnel and facilities (hospitals,
clinics, ambulances, etc.) must be respected and protected and must be
granted all
available help for the performances of their duties.
* Concept of Belligerency
- may be understood in two senses:
a) state of war between two or more states
- the states at war are referred to as belligerent states or
belligerents

simply

- refers to international armed conflict (in this sense)


b) actual hostilities amounting to a civil war within a state
- there is just one single state here
- refers to non-international armed conflict or simply
internal armed conflict
In both instances, IHL applies.

-using civilians to shield military targets is prohibited


- it is prohibited for combatants to pose as civilians
- starvation of civilians as a method of combat is prohibited
the

- it is prohibited to attack objects that are indispensable to


survival of civilian population

- it is prohibited to attack dams, dykes, nuclear power


plants, if such attack may cause severe losses among the civilian
population.
(2.) Attacks or weapons which indiscriminately strike civilian and
military objects and persons. And which cause excessive injury or suffering
are prohibited.
Specific weapons are prohibited.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Belligerency in the sense of actual hostilities amounting


to a civil war
within a state presupposes the
existence of rebel movement within a state.

* Stages of Development of a Rebel Movement within a State


1) Stage of Insurgency - earlier stage/ less developed stage
- there is not much international complication as it is purely a matter of
municipal law.
2) Stage of Belligerancy - higher stage of rebellion, when rebellion
develops and becomes widespread

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- already a matter of international law as there are now international


implications.
- when the rebels attain the higher stage, in effect, you are admitting that
within a single state, there are now two
competing governments legitimate government and rebel government.

2) Ministrant
IHL will not apply to international conflict but also to non-international
conflict.
(5.) The Law on Treaties
Jus Cogens Norm

- conduct of hostilities should now be governed by the laws and customs of


war
- IHL will come into play
- captured rebels are considered combatants and must be treated as
prisoners of war (they have rights)
- third states are to observe strict neutrality in their dealings either with the
rebel government or legitimate government
Non-observance of IHL could lead to sanctions.
* Minimum Conditions Before Rebels may Attain the Status of
Belligerency

- a peremptory norm of general international law


- a norm accepted and recognized by the international community
of states as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general international
law having the same character.
- recognized in the Vienna Convention on the law of
treaties as a ground for invalidity and termination of treaties when they are in
conflict with
such norms.
peremptory means mandatory.
* Examples of norms considered as jus cogens in character

1) if the rebels were able to organize a civil government that shall


have control and direction over the armed struggle they are wagering
against the legitimate government.

a) the prohibition against the use of force under the UN charter

2) if the rebels were able to occupy a substantial portion of the


national territory.

c) the principle of self determination

- occupation must be more or less permanent, such that to be able


to dislodge the rebels, the legitimate the government must use superior force

e) prohibition against slavery and slave trade

3) seriousness of the struggle, such that it must be so widespread


thereby leaving no doubt as to its possible outcome
4) if the rebels were able to observe the laws and customs of war
- willingness on their part to observe
* Two Functions of the Government:
1) Constituent constitute the very bends of society
Ex. Administration of justice
Maintenance of peace and order
Fixing the relations between husband and wife\

b) the law on genocide

d) crimes against humanity

f) piracy
A treaty entered into by two states agreeing to invade another state
would have to be invalidated as it runs in conflict with a jus cogens
norm
the prohibition against the use of force under the UN charter.
Obligation Erga Omnes
- it is an obligation of every state towards the international community as a
whole.
All states have a legal interest for its compliance, and thus all states are
entitled to invoke responsibility for breach of such an obligation.
* Examples of obligations erga omnes
- outlawing acts of aggression
- outlawing acts of genocide

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

101

* Treaty Making Process

* Fundamental Principles Governing Extradition

1) Negotiation- undertaken directly by the heads of states but he now


usually assigns this task to his authorized representatives.

1) a state is under no legal obligation under international law to surrender a


fugitive from justice absent an extradition treaty.

2) Signature - when the negotiations finally decide on the terms of the


treaty, the same opened for signature

2) religious and political offenses are generally not extraditable.

- this step is primarily intended as a means of authenticating the instrument


and for the purpose of symbolizing the good faith of the parties but it does
not indicate the final consent of the state in cases where
ratification of
the treaty is required.

Attentat Clause 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 a political offense and
therefore extraditable.

3) Ratification - power to ratify is vested in the President, subject to the


concurrence of the state

3) a person extradited may only be charged and prosecuted in the


requesting state for an offense which was the basis of the request for his
extradition (Principle of Specialty)

- the role of the senate, however, is only limited to giving or withholding its
consent, or concurrence to the ratification.

4) unless otherwise stipulated in the treaty, the offense must have been
committed in the territory of the requesting state.

- this is the formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representatives.
4) Exchange of the Instrument- signifies the effectivity of the treaty unless
a different date has been agreed upon by the parties

* Two Types of Extradition Treaty


1) Old type contains a list of extraditable offenses
2) Modern type does not contain a list of extraditable offenses

Where ratification is dispensed with, and no effectivity clause is embodied


in a treaty, the instrument is deemed effective upon its signature.

- also called a no-list treaty

Executive Agreements are equally binding obligations upon nations

- it is not even required that the designation of the offense be the same in
both jurisdictions.

- in international law, there is no difference between treaties and executive


agreements in their binding effect upon states concerned, as long as the
functionaries have remained within their powers.
(6.) Extradition- regarded as a form of jurisdictional assistance in
international law
- resorted to by states nowadays to combat transnational crimes
(crimes which
defy national borders drug cases, plunder, etc)
Extradition may not be effected unilaterally.
- there are always two states involved in an extradition
a) requesting state the state where the offenses was alleged to have
been committed
b) surrendering state the state where the fugitive sought refuge
One of the characteristics or our criminal law is territoriality

- it merely provides that the offense must be punishable in both states

- follows the principle of double criminality


Wright vs. CA
- Mr. Wright is an Australian who had been staying in the
Philippines for a long
time already.
- when he first came over, there was no yet extradition treaty
between the Philippines and Australia
- it was only much later when the two states entered into an
extradition treaty
- when Australian government learned that Mr. Wright was in the
Philippines, it requested that Mr. Wright be extradited to Australia to face trial
for his alleged criminal offense therein.
* under PD 1069 (Extradition Law), jurisdiction over
extradition cases is with the RTC.

- we can only enforce our criminal laws within our jurisdiction.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

102

- during the extradition proceeding in the Makati RTC, Mr. Wright


questioned the entire proceedings on the ground that it violates his right
against ex post facto laws.
SC:
The prohibition against ex post facto laws under Section
22, Article III
(Bill of Rights) applies only to criminal or penal laws. An
extradition treaty is
neither a criminal nor a penal law. It is a treaty. It
may be given retroactive effect.

investigation, the due process safeguards in the latter may not necessarily
apply during the initial evaluation stage in an extradition proceeding.
- 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.

Secretary of Justice vs. Hon. Ralph Lantion

- the concept of due process is flexible for not all situations calling
for procedural safeguards call for the same kind of procedure.

- Govt. of US requested the extradition of Mark Jimenez coursed


through the
Department of Foreign Affairs.

* Mark Jimenez is not entitled to the documents he was requesting


only at the early stage of the proceeding.

- pursuant to PD 1069, the DFA transmitted the request to the DOJ


for initial evaluation

- eventually he will be furnished those documents at the


of filing of the case before the court

- when Mark Jimenez learned of the request made by the US govt


for his extradition, he now requested the DOJ to furnish him copies of the
basic request
for his extradition and the supporting documents and
evidence so that allegedly he can prepare for his defense.

SC:
(decided January 18, 2000 by a 9-6 vote) Indeed there
was denial of due process. How can you expect him to prepare for his
defense if he will not be furnished copies of the documents he was
requesting. An extradition proceeding is similar to a criminal proceeding.
Likewise, the initial evaluation stage in an extradition proceeding is also
similar to a preliminary investigation in a criminal
proceeding.
* Strong dissenting opinion
- this is no longer a case of due process; it is now a case of overdue process
Extradition

SC:
(decided October 17, 2000 by a 9-6 vote) reconsidered;
controlling
doctrine!!!
- an 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.
- presumption of innocence does not apply
- as an extradition proceeding is not criminal in character and the
evaluation stage in an extradition proceeding is not akin to a preliminary

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

- the court must consider the more compelling state interest


- the court applied the balancing of interest test in resolving

the

issue
* Distinctions between extradition proceedings and criminal
proceedings

-the DOJ refused

- what happens now to our obligations under the US-RP


Treaty.

time

1) 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.
2) an extradition proceeding is summary in nature while criminal
proceedings involve a full blown trial
3) with respect to application of rules of evidence, criminal
proceedings requires
strict adherence to the rules of evidence while
extradition proceedings follow the liberal interpretation rule.
4) in terms of quantum of evidence to be satisfied, criminal
proceedings requires proof beyond reasonable doubt for conviction while a
fugitive may be ordered extradited upon showing of the existence of a prima
facie case (which is even lower than substantial evidence)
5) in a criminal proceeding, judgment becomes executory after
having attained finality while in an extrajudicial proceeding, our courts may

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adjudge an individual to be extraditable but the President has the final


discretion to extradite him.
* Judicial Approaches to Resolve Questions in Constitutional
Law

- the state may be able to show the substantive evil which it is duty
bound to suppress or prevent but such substantive evil is not of a
clear and present danger type.
* BP 880 Public Assembly Act

1) Dangerous Tendency Rule


- for the state to justify the impairment or suppression of individual
freedoms, it is enough that the state is able to point out a substantive evil
which the state is duty bound to prevent or suppress.
- for as long as the speech or the expression has that dangerous
tendency of producing the substantive evil which the state is duty bound to
prevent or suppress, impairment of fundamental freedoms will be justified.
- this rule leans heavily in favor of state power as against
fundamental freedoms.
- abandoned!!!
Ex. Speech ibagsak ang bulok na gobyerno! Magrebolusyon
tayo!
- the speech had a dangerous tendency of producing the
substantive evil which the state is duty bound to prevent or suppress the
resulting revolution, death, injuries, chaos, were the substantive evils, even if
it did not take place.
- the arrest and dispersal of the rally will be justified under this rule.
2) Clear and Present Danger Rule

- under which, the orientation/policy to be observed by police


officers in dealing with rallies and even in the dispersal thereof is maximum
tolerance (the highest degree of restraint)
- we therefore live in the era of clear and present danger rule
Bayan vs. Ermita
- if the CPR (Calibrated Pre-Emptive Response) policy adopted by
the Arroyo administration in dealing with rallies and mass actions means no
more than maximum tolerance as defined by BP 880, then it become a
superfluity (no need for that; the policy has already been laid down by law).
- however, if the CPR policy means more than maximum tolerance
as defined by BP 880, then it becomes unconstitutional.

classic example of Justice Holmes when he formulated the clear


and present
danger test
- when you are inside a movie house and you shouted, fire, fire
naturally you will get arrested.
- when you are in the middle of an open field and you
shouted fire, fire!,
you will not be arrested.

- formulated by Justice Holmes (backed up by Justice Brandeis)


- this is the more libertarian rule
- for the state to be justified in the curtailment or suppression of
undamental freedoms, it is not enough that the state is able to point out the
substantive evil which the state is duty bound to prevent or suppress, but the
substantive evil must be of a clear and present danger type.
- this rule leans heavily in favor of the fundamental freedoms as
against state power.
Ex. A group of demonstrators, unarmed, numbering 10,000
participated in by students, urban poor dwellers and religious
members shouting ibagsak ang gobyerno!
- dispersal of the rally and arrest of the speakers will be unjustified

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

* The presumption now is that any act of the government alleged to


have infringed upon or impaired fundamental freedom, such an act or
measure comes to court with a heavy presumption of unconstitutionality.
- so that the burden of justifying the act lies on the part of
the government.
* Two Requirements for the Government to Justify the Act
1) by some compelling interest
- the government must be able to show a compelling
interest that will justify the impairment.
2) the measure must be narrowly drawn to preclude abuses

104

- it must not be overbroad, does not suffer from vice of


vagueness and it is not unreasonable (doctrine of overbreadth and void for
vagueness doctrine).

Government of USA vs. Judge Purganan


1) before a judge issues a warrant of arrest against a potential extraditee,
prior notice and hearing is not required on two basis:
a) first, statutory basis

JBL Reyes vs. Bagatsing


- Anti-Base Coalition applied for a permit to hold a rally in front of the US
embassy.
- Mayor Bagatsing denied on the ground that it might be infiltrated which
might cause violence.
SC:
Mayor Bagatsing is wrong. Any act of the government alleged to
have
infringed upon fundamental freedoms comes to court with a heavy
presumption of unconstitutionality. So that the burden now is on the part of
the government to justify the act.
3) Balancing of Interest Approach

- under section 6 of PD 1069, once a petition for extradition is filed with the
RTC, the judge will immediately issue a warrant of arrest.
- the word used was immediately
- this word would be rendered nugatory if the issuance of warrant of arrest is
set for hearing.
- arrest subsequent to a hearing is no longer immediate.
- the law could not have contemplated the word immediately as a mere
superfluity but as a means of inferring a sense of urgency.
b) second, constitutional basis

- two equally desirable interest of society are colliding but these interests are
equally desirable to the society.

- under section 2 of the Bill of Rights, prior notice and hearing was never a
requirement for the issuance of a warrant of arrest

Sec. of Justice vs. Hon. Ralph Lantion

- on the contrary, the provision says after examination under oath of the
complainant and the witnesses he may produce, not of the
extraditee.

- there are two compelling state interests:


a) the interest in the observance of due process
b) the interest to comply with our treaty obligation.
SC:
The more compelling state interest must be upheld to
prevent the escape of
potential extraditee which can be precipitated by
premature information of the basis for the request of his extradition.
- especially since, in extradition, an extraditee is always presumed
to be a flight risk
- under PD 1069, the moment the extradition case is filed in court,
the judge will immediately issue a warrant for his arrest.
- only when he is in custody of law will he be entitled to a copy of
the documents.
- this is but a soft restraint on his right to due process on that stage
- there is no denial of due process for as long as fundamental
fairness is observed.

2) during the pendency of an extradition proceeding, a potential extraditee is


not entitled to post bail; no bail rule applies.
- under section 13 of the Bill of Rights and Rule 114 of the Rules of Court on
bail, the word used was conviction
- hence, bail is only available to one who is arrested and detained for
violation of Philippine criminal laws.
- it does not apply in extradition cases where the innocence or the guilt of an
accused is not in issue.
- moreover, the right to bail flows from the presumption of innocence in favor
of an accused in a criminal case.
- however, by way of an exception, bail may be granted for as long as the
following conditions concur:
a) that once granted bail, the extraditee will not be a flight risk or a
danger to the community; and
b) that there exists a special humanitarian and compelling
circumstances that will justify the grant of bail

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

105

- the burden of proving these two requirements lies on the part of


the applicant by clear and convincing evidence.
Govt. of HK special administrative region (represented by Phil. DOJ)
vs. Judge Olalia (En Banc)
- the ruling in Purganan should be re-examined
- these remedies should include the right to bail
- in light of the various international treaties giving recognition and
protection to human rights particularly the right to life and liberty, a reexamination of the courts ruling in Purganan is in order
- especially the trend in international law where an individual is not
merely considered as an object but rather a subject of international law and
also in view of the Universal Declaration of Human Rights and the Covenant
of Civil and Political Rights where the Philippines is a signatory and because
of our commitment to human rights under the Constitution.

- the generally accepted principles of international law


automatically become part of their laws and will no longer require an
enabling act from the legislative body.
- the Philippines subscribe to this doctrine under section 2,
article II of the Constitution, which provides that, the Philippines adopts the
generally
accepted principles of international law as part of the law
of the land.
2) Doctrine of Transformation
- the generally accepted principles of international law
does not automatically become part of their laws and will still require an
enabling act from the legislative body.
* Examples of generally accepted principles of international law
Pacta Sunt Servanda (treaties must be observed in good faith)

- yet, for an extraditee to be allowed to post bail, he ought still the


two requirements:

- under the pacta sunt servanda rule, a state may not advance the
provisions of its own Constitution, as well as that of its laws in order not to
comply with its obligations under a treaty.

a) that once granted bail, he will not be a flight risk or a


danger to the community; and

- a state must make the necessary modifications to its laws in order


to comply with its obligations in a treaty.

b) that there exist a special humanitarian and compelling


circumstance that will justify the grant of bail to him.

Doctrine of State Immunity from Suit - a state may not be sued


without its consent

- the burden of proving these requirements still lies on the part of


the applicant by clear and convincing evidence.
Clear and Convincing Evidence
- a new standard of evidence adopted by the court lower than proof beyond
reasonable doubt required in a criminal case but higher than preponderance
of evidence required in civil case.
- this is applied only in application for bail in extradition proceeding
- in extradition proceedings, mere prima facie evidence is required.
FUNDAMENTALS OF INTERNATIONAL LAW
Relations between International Law and Municipal Law from the view
of practice
* Two Doctrines
1) Doctrine of Incorporation

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Doctrine of Sovereign Equality of all States


- par in parem non habet imperium
- all states are sovereign equals; an equal may not
assume jurisdiction over
another equal.
Rebus Sic Stantibus (things remaining as they are)
- opposite of pacta sunt servanda
Special Thanks To:
ATTY. JOAN LOU P. GAMBOA
For sharing her handwritten lecture notes
in Political Law Review
under Atty. Edwin Sandoval
and for her generous support
throughout the years
to UST Law Batch 2009!!!

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