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Judge Gitos Last Minute Tips in Political Law
Judge Gitos Last Minute Tips in Political Law
POLITICAL LAW
by:
1. What are the crimes which are under the jurisdiction of the
International Criminal Court?
2. What is genocide?
4. What are the condition before the ICC can exercise jurisdiction
over the crimes under the jurisdiction of the ICC?
Before the ICC can exercise jurisdiction, it is required that the State
must be a state party to the convention. It is provided under the
Rome Statute that the State party is considered deemed to have
accepted the jurisdiction of the ICC (Article 12). ICC shall also have
jurisdiction over those cases referred to it by the Security Council
under Chapter VII of the UN Charter.
5. Can the ICC acquire jurisdiction nationals of non-parties?
YES. The ICC may exercise jurisdiction even over nationals of states
that are not parties to the Treaty and have not otherwise consented to
the jurisdiction. Article 12 provides that, in addition to jurisdiction
based on Security Council action under Chapter VII of the UN
Charter and jurisdiction based on consent by the defendant state
nationality, the ICC will have jurisdiction to prosecute the nationals
of any state when crimes within the Court’s subject matter
jurisdiction are committed on the territory of the state party.
Likewise, ICC will have jurisdiction over non-state party, if it
consented to ICC jurisdiction.
9. What are the two ways by which the Constitution may be changed?
11. What are the two (2) tests to determine the kind of change that is
proposed?
19. What are the right of a coastal state over maritime zones?
Territorial sea - The coastal state has sovereignty over the territorial
sea subject to this Convention and to other rules of international law
(Art. 2, UNCLOS III).
Contiguous zone - The coastal state has the right to exercise control
necessary to 1) prevent infringement of its customs, fiscal,
immigration or sanitary laws and regulations within its territory or
territorial sea; and, 2) punish infringement of the above laws and
regulations committed within its territory or territorial sea (Art. 33,
UNCLOS III).
Exclusive economic zone - The coastal state has the sovereign rights
for the purpose of exploring and exploiting, conserving and
managing the natural resources. It has also jurisdiction over the
establishment and use of artificial islands, installations and
structures; marine scientific research; and, the protection and
preservation of the marine environment (Art. 56, UNCLOS III).
NO. From the moment the law becomes effective, any provision of
law that empowers Congress or any of its members to play any role
in the implementation or enforcement of the law violates the
principle of separation of powers and is thus unconstitutional. Under
this principle, a provision that requires Congress or its members to
approve the implementing rules of a law after it has already taken
effect shall be unconstitutional, as is a provision that allows Congress
or its members to overturn any directive or ruling made by the
members of the executive branch charged with the implementation of
the law (ABAKADA vs. Purisima).
Pork Barrel System as the collective body of rules and practices that
govern the manner by which lump-sum, discretionary funds,
primarily intended for local projects, are utilized through the
respective participations of the Legislative and Executive branches of
government, including its members. (Belgica vs. Executive Secretary,
November 19, 2013).
31. Section 17, Article XII provides that “in times of national
emergency, when the public interest so requires, the State may,
during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest.” Can this
provision be legally invoked by the President to temporarily take
over or direct the operation of any privately owned public utility or
business affected with public interest during without authority
from Congress?
NO. Without legislation, the President has not power to take over
privately-owned public utility of business affected with public
interest. In short, the President has no absolute authority to exercise
all the power of the State under Section 17, Article XII in the absence
of an emergency powers act passed by Congress (David vs. Arroyo,
489 SCRA 161).
34. Congress passed a law which provides that all candidates for
elective public office should undergo mandatory drug testing. Law
provides that those who will not undergo drug testing, they will be
allowed to assume the function of the office for which they were
elected, even if they were proclaimed. Is the law valid?
The law is not valid, as it adds the constitutional qualification for
senator which is fixed by the constitution (Social Justice Society vs.
DDB, November 3, 2008).
No. Under the constitution, each province shall have at least one (1)
representative. Thus, the creation of a province carries with it the
creation of legislative district. And only Congress can create a
legislative district. Therefore, only Congress can create a province
(Sema vs. COMELEC).
The sole judge of all contests relating to the election, returns, and
qualifications of the members of the Senate and the House of
Representatives (Section 17, Article VI).
44. When does the jurisdiction of the Comelec over the candidates for
House end and when does the jurisdiction of the Electoral Tribunal
begins?
When the president signs it. When the president vetoes it, but the
veto was overridden by two thirds of all the members of the House.
When the president does not act upon it within thirty days after it
shall have been presented to him.
48. May the President approve some part or parts of the bill and
veto the rest?
55. What are the requisites for the valid transfer of appropriated funds
under Section 25(5), Article VI of the 1987 Constitution?
When Congress exercises its power of inquiry, the only way for
department heads to exempt themselves therefrom is by a valid claim
of privilege. They are not exempt by the mere fact that they are
department heads. Only one executive official may be exempted from
this power — the President on whom executive power is vested,
hence, beyond the reach of Congress except through the power of
impeachment (Senate vs. Ermita).
58. Can Congress compel the justices of the Supreme Court to appear
during congressional inquiry?
No. By the same token, members of the Supreme Court are also
exempt from this power of inquiry. Unlike the Presidency, judicial
power is vested in a collegial body; hence, each member thereof is
exempt on the basis not only of separation of powers but also on the
fiscal autonomy and the constitutional independence of the judiciary
(Senate vs. Ermita).
60. For how long can the Congress detain a person cited for legislative
contempt?
The Court finds that the period of imprisonment under the inherent
power of contempt by the Senate during inquiries in aid of legislation
should only last until the termination of the legislative inquiry under
which the said power is invoked (Balag vs. Senate, 2018).
61. The law allows the holder of appointive position in the executive
department hold any other office other than he is presently
holding. Is the law constitutional?
No. Prohibition under Section 15, Article VII does not apply to
appointments to fill a vacancy in the Supreme Court or to other
appointments to the Judiciary (De Castro vs. JBC)
63. The signing of the appointing papers and the transmittal of the
same was made before the ban but the acceptance and oath of
office happened during the ban. Is the appointment valid?
The following are the military powers of the president: 1) calling out
power; the power to suspend writ of habeas corpus; 3) the power to
declare martial law? (Section 18, Art. VI).
68. What are the limitations on the military power of the president?
The following are the limitations on the military power of the
president:
e. The Congress may then, by majority votes of all its members voting
jointly, revoke his action. The revocation may not set aside by the
President.
f. By the same vote and in the same manner, the Congress may,
upon initiative of the President, extend his suspension or
proclamation for a period to be determined by the Congress if the
invasion or rebellion shall continue and the public safety requires
extension.
71. What quantum of proof does the President need to satisfy for the
declaration and/or suspension?
76. Can congress pass a law, increasing the appellate jurisdiction of the
Supreme Court?
77. Can Congress pass a law prohibiting the court from issuing TRO or
Injunction?
NO. This will violate the rule making power of the Supreme Court
under Section 5(5). The issuance of TRO or injunction is a matter of
procedure which is under the exclusive prerogative of the Supreme
Court.
78. In order to decongest the cases pending before the Supreme Court,
the Congress passed a law which provides that the judgement of
the Court of Appeals in criminal cases imposing a penalty of
reclusion perpetua is final and executory and that said decision may
not anymore be questioned by whatever procedural means. Is the
law constitutional?
79. What are the subject of the rule making power of the Supreme
Court?
80. The law provides: SEC 23. Plea-Bargaining Provision. -Any person
charged under any provision of this Act regardless of the
imposable penalty shall not be allowed to avail of the provision on
plea-bargaining. Is the law constitutional?
No. Under Section (3), Article IX-C, the COMELEC can decide all
question relating to election except the right to vote?
91. What is the nature of the taxing power of the local government units?
95. When will the 3 term limit of local elective officials apply?
Two requisites must concur: 1) Official must have been elected to the
same position 3 times; 2) He must have served three full terms.
96. What are the rules on term limits of local government elective
officials?
a. When a permanent vacancy occurs in an elective position and the
official merely assumed the position pursuant to the rules on
succession under the LGC, then his service for the unexpired
portion of the term of the replaced official cannot be treated as one
full term as contemplated under the subject constitutional and
statutory provision that service cannot be counted in the
application of any term limit (Borja, Jr. v. COMELEC, [1998]).
b. If the official runs again for the same position he held prior to his
assumption of the higher office, then his succession to said
position is by operation of law and is considered an involuntary
severance or interruption (Montebon v. COMELEC, [2008]).
g. The break or interruption need not be for a full term of three years
or for the major part of the 3-year term; an interruption for any
length of time, provided the cause is involuntary, is sufficient to
break the continuity of service (Socrates v. Comelec; Lonzanida v.
Commission on Elections).
h. When an official is defeated in an election protest and said
decision becomes final after said official had served the full term
for said office, then his loss in the election contest does not
constitute an interruption since he has managed to serve the term
from start to finish. His full service, despite the defeat, should be
counted in the application of term limits because the nullification
of his proclamation came after the expiration of the term (Ong v.
Alegre, [2006]; Rivera III v. Comelec, [2007]).
The voters of the unit or units directly affected (Tan vs. Comelec,
[1986]).
Gutierrez vs. The House of Representatives, Feb. 25, 2011, rules that
“an impeachment complaint need not alleged only one impeachable
offense.” In fact, multiple complaints may be considered so long as
they would all be simultaneously referred or endorsed to the proper
committee.
All lands are owned by the “Crown.” This is reflected in the 1987
Constitution. Thus: “All lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State.”
No. The minerals are owned by the State under the “regalian
doctrine”. The land is thus converted into mineral land. For the loss
sustained by the owner, he is entitled to compensation (Republic vs.
CA, 160 SCRA 228).
107. Are there lands which are not covered by regalian doctrine?
Yes. 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 that to have been held in the same way from before the
Spanish conquest, and never to have been public land (Carino vs.
Insurer, 41 Phil. 935; Cruz vs. DENR).
108. Who are qualified to take part with the State in the exploration,
development and utilization of natural resources?
110. When husband and wife purport to buy land, and the husband is
alien while the wife is Filipino, is the property conjugal such that it
may not be disposed of without the consent of the husband?
The seller may question the sale made to the alien. The principle of
pari delicto is not applicable (Philippine Banking corporation vs. Lui
She, [1967]).
No. The Constitution provides that the CHR has the power to
“investigate, on its own or on complaint by any party, all forms of
human rights violations involving civil and political rights.” (Section
18, Article XIII; Simon, Jr. vs. CHR, [1994]).
It is the power of the State to regulate liberty and property for the
common good. The power of promoting the public welfare by
restraining the use of liberty and property.
118. What are the two (2) tests to determine the validity of the exercise of
police power?
Lawful subject – the interest of the public generally, as distinguished
from those of a particular class, require the exercise of police power.
YES. Section 6, Article XII provides that the use of property bears a
social function, and all economic agents shall contribute to the
common good. Individuals and private groups, including
corporations, cooperatives, and similar collective organizations, shall
have the right to own, establish, and operate economic enterprises,
subject to the duty of the State to promote distributive justice and to
intervene when the common good so demands. Property rights of
individuals may be subjected to restraints and burdens in order to
fulfill the objectives of the government in the exercise of police
power. In this jurisdiction, it is well-entrenched that taxation may be
made the implement of the state's police power (Ferrer vs. Bautista,
2015).
The power to take private property for public use upon payment of
just compensation.
123. What is the remedy of the land owner if the government refused to
pay the just compensation?
124. The Congress passed a law proving for a formula by which the
Court can compute the amount of just compensation. Is the Court
bound by the formula?
The LBP correctly argued that consideration of the valuation factors
under Section 17 of RA 6657 and the formula under DAR A.O. No.
05-98 35 is mandatory in ascertaining just compensation for purposes
of agrarian reform cases. In Land Bank of the Philippines v. Gonzalez, we
held that although the determination of just compensation is
fundamentally a judicial function vested in the RTC, the judge must
still exercise his discretion within the bounds of law.
Otherwise, the judge runs the risk of violating the agrarian reform
law should he choose not to use the formula laid down by the DAR
for the determination of just compensation. The Court reaffirmed this
established jurisprudential rule in Alfonso v. Land Bank of the
Philippines when it categorically gave "full constitutional presumptive
weight and credit to Section 17 of RA 6657, DAR AO No. 5 (1998) and
the resulting DAR basic formulas." (LDP vs. Spouses Esteban, 2017).
125. When does life begin?
Lastly, the rational basis test applies to all other subjects not covered
by the first two tests (Samahan ng mga Progresibong Kabataan vs.
Quezon City, GR No. 225442, August 8, 2017).
In the same breath that the establishment clause restricts what the
government can do with religion, it also limits what religious sects
can or cannot do with the government. They can neither cause the
government to adopt their particular doctrines as policy for
everyone, nor can they not cause the government to restrict other
groups. To do so, in simple terms, would cause the State to adhere to
a particular religion and, thus, establishing a state religion.
The Court is of the view that the obligation to refer imposed by the
RH Law violates the religious belief and conviction of a conscientious
objector. Once the medical practitioner, against his will, refers a
patient seeking information on modern reproductive health products,
services, procedures and methods, his conscience is immediately
burdened as he has been compelled to perform an act against his
beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas)
has written, "at the basis of the free exercise clause is the respect for
the inviolability of the human conscience." (Imbong vs. Ochoa).
135. Angela Tan, a high school student at St. Theresa’s College (STC),
uploaded on Facebook several pictures of her and her classmates
(Nenita Daluz and Julienne Suzara) wearing only their
undergarments. Thereafter, some of their classmates reported said
photos to their teacher, Mylene Escudero. Escudero, through her
students, viewed and downloaded said pictures. She showed the
said pictures to STC’s Discipline-in-Charge for appropriate action.
Is the right of the children to privacy violated?
The State cannot rob him of this right without violating the
constitutionally guaranteed freedom of expression. Unsolicited
advertisements are legitimate forms of expression (Disini vs. DOJ).
YES. In Govt. of Hongkong vs. Olalia, April 19, 2007, the SC ruled
that that the right to bail is granted by the Universal Declaration of
Human rights of which the Philippine is a signatory. While not a
treaty, its principles, including the right to bail, are recognized as
customarily binding upon the members of the community. If the
right to bail is granted to a deportee, there is no reason why the right
should be deprived of the extradite.
146. What are the requisites for the validity of administrative rule with
penal sanction?
149. What is a petition to deny due course the certificate of candidacy and
on what ground?
151. What is the effect if the certificate of candidacy is declared void for
lack of material misrepresentation?
154.