Political Law Tips 2018 Based on Atty.

Sandoval’s Forecast
Regina Legis et Juris Sorority

Foundling as a Natural- Born Citizen

Q: Is a foundling a Natural Born Citizen?

A: Yes. As held by the Supreme Court in the case of Mary Grace Natividad S. Poe- Llamanzares v.
COMELEC, “To deny full Filipino Citizenship to all foundlings and render them stateless just because there may be a
theoretical chance that one among the thousands of these foundlings might be the child of not just one, but two,
foreigners is a downright discriminatory, irrational and unjust. It just doesn’t make sense. Given the statistical certainty
99.9%- that any child born in the Philippines would be a natural- born citizen, a decision denying foundlings such
status is effectively a denial of their birthright. There is no reason why this Honorable Court should use an
improbable hypothetical to sacrifice the fundamental political rights of an entire class of human beings xxx

As a matter of fact, foundlings are as a class, natural- born citizens. While the 1935 Constitution’s enumeration is silent
as to foundlings, there is no restrictive language which would definitely exclude foundlings either. Because of silence and
ambiguity in the numeration with respect to foundlings there is a need to examine the intent of framers. xxx

The constitutional silence is fully explained in terms of linguistic efficiency and the avoidance of redundancy. The policy
is clear: It is to recognize foundlings, as a class, as Filipinos, under Article IV, Section 1(3) of the 1935 Constitution. This
policy is carried over into the 1973 and 1987 Constitutions.”

Composition of JBC

1. Chief Justice as Ex- Officio Chairman

2. Member of Congress as Ex- Officio Member
3. Secretary of Justice as Ex- Officio Member
4. Regular members- Appointed by the President and may serve for a term of 4 years but their
appointment will require confirmation by the Commission on Appointments:

a.) Retired Justice of the Supreme Court

b.) Representative of the Integrated Bar
c.) Law Professor
d.) Representative of the Private Sector

Chavez. JBC

Q: In 1994, instead of having only seven members, an eighth member was added to the JBC as two
representatives from Congress began sitting in the JBC – one from the House of Representatives and
one from the Senate, with each having one-half (1/2) of a vote. Then, the JBC En Banc, in separate
meetings held in 2000 and 2001, decided to allow the representatives from the Senate and the House
of Representatives one full vote each.

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Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas, Jr. simultaneously sit in the JBC
as representatives of the legislature. Congressman Tupas contends that the phrase “a representative
of congress” refers that both houses of congress should have one representative each, and that these
two houses are permanent and mandatory components of “Congress” as part of the bicameral system
of legislature. Both houses have their respective powers in performance of their duties. Art VIII Sec 8
of the constitution provides for the component of the JBC to be 7 members only with only one
representative from congress.

Is the JBC’s practice of having members from the Senate and the House of Representatives making 8
instead of 7 sitting members to be unconstitutional as provided in Art VIII Sec 8 of the Constitution?

A: Yes. The practice is unconstitutional. the court held that the phrase “a representative of congress” should be
construed as to having only one representative that would come from either house, not both. That the framers
of the Constitution only intended for one seat of the JBC to be allotted for the legislative.

It is evident that the definition of “Congress” as a bicameral body refers to its primary function in government
– to legislate. In the passage of laws, the Constitution is explicit in the distinction of the role of each house in
the process. The same holds true in Congress’ non-legislative powers. An inter-play between the two houses
is necessary in the realization of these powers causing a vivid dichotomy that the Court cannot simply discount.
This, however, cannot be said in the case of JBC representation because no liaison between the two houses
exists in the workings of the JBC. Hence, the term “Congress” must be taken to mean the entire legislative
department. The Constitution mandates that the JBC be composed of seven (7) members only.

Doctrine of Operative Fact

League of Cities vs. COMELEC, GR 176951, August 24, 2010

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair
play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a
determination of unconstitutionality is an operative fact and may have consequences which cannot always be
ignored. The past cannot always be erased by a new judicial declaration. Xxx The doctrine is applicable when
a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law.

Under the operative fact doctrine, the unconstitutional law remains unconstitutional, but the effects of the
unconstitutional law, prior to its judicial declaration of nullity, may be left undisturbed as a matter of equity
and fair play. In short, the operative fact doctrine affects or modifies only the effects of the unconstitutional
law, not the unconstitutional law itself.

Martial Law
Q: Immediately after super typhoon Yolanda struck Tacloban and the other areas in the Visayas,
rampant lootings and criminality were reported. Because of those unwholesome incidents, several
residents of Tacloban urged the President when he visited the area to proclaim martial law in
those areas badly hit by the super typhoon to address the worsening peace and order problem and
restore normalcy. Is the proposal constitutionally sound?

A: The proposal is not constitutionally sound.

In case of invasion or rebellion, when the public safety requires it, the President may, for a period not
exceeding 60 days, place the Philippines or any part thereof under martial law.

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The worsening peace and order in Tacloban cannot qualify as invasion or rebellion; which are the only
grounds in order for the President to validly declare martial law.

Limitations on the declaration of martial law:

1. It does not suspend the operation of the Constitution;
2. It does not supplant the functioning of the civil courts or legislative assemblies;
3. It does not authorize conferment of jurisdiction to military courts over civilians where civil courts are
able to function;

NOTE: Civilians cannot be tried by military courts if the civil courts are open and functioning (Open Court
Doctrine) (Olaguer v. Military Commission No. 34, G.R. No. L-54558, May 22, 1987).

4. It does not automatically suspend the privilege of the writ of habeas corpus;
5. When martial law is declared, no new powers are given to the President;
6. It must not exceed 60 days unless extended by the Congress.

Appointing Power
Sarmiento v. Mison:

It was clarified in this case that not all appointments made by the President shall require confirmation of
Commission on Appointments unlike in 1935 Constitution. Only those mentioned in Section 16(1), Article
VII require such confirmation. The list is exclusive.

1.) The heads of the executive department Cabinet secretaries;

Exception: The Vice President may be appointed members of the cabinet and his
appointment shall no longer require confirmation by the Commission on Appointment
(Section 3(2), Article VII).
2.) Ambassadors, other public minister and consuls;
3.) Officers of the Armed Forces on the rank of colonel or naval captain;
4.) Other officers whose appointments are vested in thus Constitution like members of Constitutional
Commission, and regular member of JBC.

Officers which no longer require confirmation:

1. All other officers if the government whose appointments are not otherwise provided for by law;
2. Those whom the President may be authorized by law to appoint;
3. Officers lower in rank whose appointments the Congress may by law best in the President alone.

Q: Will the appointment of General Bato require confirmation?

A: No. As clarified in the case of Manalo v. Sistoza, officers of PNP of equivalent rank are not included in
the phrase of “Armed Forces”. Current PNP is placed in Civilian Department of DILG. Ranks in PNP are
considered civilian ranks.

Ad Interim v. Regular Appointment

Ad Interim Regular
Appointment made by the President while It is an appointment made by the President while
Congress is not in session or during recess. Congress is in session.
Appointment takes effect immediately. Appointment does not take immediately.

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Appointee may immediately assume office.
There is a risk of losing both positions upon
assumption of new office. He loses his former
position.
Appointment is made before confirmation of CA
Appointee may not immediately assume office.
No risk involved (Appointee cannot assume until
appointment is confirmed
Appointment is made after nomination is confirmed
by the CA.

N.B. In regular appointment, the President does NOT appoint, he NOMINATES that’s why it
does not take effect immediately.

Q: Let us assume that you are the Regional Director, Department of Education, NCR. Congress was
not in session. You were appointed by the President as the new Secretary of Education. Can you
immediately assume office?

A: Yes, that’s an Ad Interim Appointment.

Q: So you assume office as Secretary of Education. Later on your appointment was not confirmed by
the Commission on Appointments. Can you go back to your position as Regional Director?

A: No. When you assume office of Secretary of Education, you have to vacate the position of Regional Director.
You cannot hold both office simultaneously.

Midnight Appointment
It is an appointment made by an outgoing President wherein before he vacates his office in effect, he filed the
vacancies in the government service so that when the new president assumes his office, he cannot anymore fill
positions for his staff.

Section 15, Article VII is not only directed against midnight appointment made for partisan consideration as
shown by their making and their number. It is also an appointment made for the purpose of buying votes or
influencing the outcome of presidential elections.

Q: How do you know whether the appointment is a midnight appointment or it is an appointment

made for the purpose of buying votes?

A: If the appointment was made by the outgoing President 2 months before election, it is not midnight
appointment, it is an appointment made for the purpose of buying votes or influencing the outcome of
presidential elections.

Midnight appointment is one made by an outgoing President after the election and up to the end of his term.

Freedom of Arrest of Congress:

Elements of the privilege:
1) Congress must be in session, whether regular (sec. 15) or special (supra). It does not matter where
the member of Congress may be found (attending the session, socializing in a private party, or sleeping
at home); so long as Congress is in session, freedom from arrest holds;

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2) The crime for which the member is to be arrested is punishable by 6 years of imprisonment or less.
"Punishable" refers to the maximum possible penalty which a penal statute attaches to the offense. It
follows too that if the crime is punishable by 6 years and1 day of prision mayor or more, the member
can be arrested, even if he is in session in the halls of Congress.

Freedom of Speech and Debate of the members of

Congress:
This privilege protects the member concerned from any libel suit that may be filed against him for a speech
made "in" the halls of Congress or in any of its committees. Speech is not confined to traditional speech but
even to the casting of votes, the making of reports, a debate or discussion, even communicative actions, and
any other form of expression.

The speech, however, must be made "in" Congress in the discharge of legislative duty.

Q: Congressman X delivered a privilege speech in the House of the Representatives. In the course of
his privilege speech, he maligned a private person, Mr. Y. Mr. Y sued him for oral defamation. Will it
prosper?

A: It will not prosper because Congressman X will immediately invoke his freedom, from speech and debate.
Remember that it was in a privilege speech in the house. The provision says “he may not be questioned, he may
not be held liable in other place”. And the term phrase “in any other place” will include regular courts.

Pardoning Power in relation to Estrada Case

Q: Former President Estrada was convicted of the crime of plunder by the Sandiganbayan but
subsequently pardoned by President GMA. In the May 2013 elections, he ran for Mayor of Manila. It
was now argued by petitioner that an important consideration in the grant of pardon to him as found
in the WHEREAS Clause of the proclamation by GMA was his intention not to run for any elective
public office, thereby making the pardon conditional, not absolute. Besides, since plunder carries with
it the accessory penalty of perpetual disqualification to hold public office under the Revised Penal
Code, he was not qualified to run for Mayor of Manila. Rule on the merits of the petition.

A: Former President Estrada is qualified to run for Mayor of Manila.

As held in the case of Risos-Vidal vs. Estrada, G.R. No. 206666, Jan. 21, 2015, Former President Estrada,
who was convicted for the crime of plunder by the Sandiganbayan, was granted an absolute pardon that fully
restored all his civil and political rights, which naturally includes the right to seek public elective office. The
wording of the pardon extended to him is complete, unambiguous and unqualified. He is therefore eligible for the
post of Mayor of Manila.

The third preambular clause is not an integral part of the decree of the pardon and therefore, does not
by itself operate to make the pardon conditional or to make its effectivity contingent upon the fulfillment of
the commitment nor to limit the scope of the pardon.

Thus, Atty. Risos-Vidal and former Manila Mayor Lim’s contentions that the said pardon granted was a
conditional pardon as it did not expressly provide for the remission of the penalty of perpetual absolute
disqualification especially the restoration of the right to vote and be voted for public office, as required by the
RPC and that the third preambular clause in the pardon, which states that Estrada had publicly committed to

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no longer seek any elective position or office, disqualifies him from the post of Mayor are untenable (Risos-Vidal
v. Estrada, G.R. No. 206666, Jan. 21, 2015).

Jalosjos Case
Q: While waiting for the result of his appeal inside the penitentiary, there came the May 1998 election
and then he ran for re- election and was re- elected as Congressman. He filed a motion in the Supreme
Court where his appeal was pending. In his motion he said “Please allow me to attend congressional
sessions including committee meetings for 5 days or more in a week so that I can represent my
constituents who overwhelmingly re- elected me to Congress”.

Should his motion be granted?

A: No. Allowing him to attend congressional sessions including committee hearing for 5 days or more in a
week will make him a free man. With all the privileges appurtenant to his position as a congressman, such
situation not only elevates his status to that of a special class and therefore violate of the equal protection
clause. It also would be a mockery of the purpose of connection system.

Disenfranchising Argument in relation to Jalosjos Case

Jalosjos argues, “if you will not allow me, in effect, you will be disenfranchising my voters who overwhelmingly
re- elected me to Congress, who wanted their voices to be heard in the Congress.

Supreme Court however held: “We remain unpersuaded. When the voters of this district elected him to Congress,
they did so with full awareness of the limitations in a speed of action. If voters elect a person with full knowledge that
he is suffering from a terminal illness like cancer, they do so knowingly that anytime, he may no longer service full time
in office.”

Condonation doctrine in relation to Jalosjos Case

Another argument of Jalosjos is the Doctrine of Condonation as held in the case of Aguinaldo v. Santos.
Supreme Court held that the term of office of elective public officers is separate and distinct from each other
so that if during a prior term he was charged administratively and in the meantime, there was an election and
then he ran for re-election and he was re- elected, the re- election serves as a condonation by the people of
whatever influx which he may have committed during a prior term so that in his new term he may no longer
be validly penalized therefore.

Rationale behind this doctrine:

Garcia v. Mojica, Sept. 1999:

Supreme Court held that the rationale for this holding is that when the electorate put him back into office, it
is presumed that he did so with full knowledge of his life and character including his past misconduct. If and
with such knowledge, he is still re- elected, then such re- election is considered a condonation of his past
misdeeds.

Unfortunately, for Congressman Jalosjos, this doctrine of condonation applies only in ADMINISTRATIVE
CASES involving elective officers who had been re- elected. This finds no application in criminal cases.
His reliance in the ruling in Aguinaldo v. Santos will not extricate him from his predicament. It can be readily

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seen that the Aguinaldo case involves the administrative removal of a public officer for acts that are prior to
his present term of office. It does not apply to imprisonment of criminal law.

Condonation doctrine in relation to Carpio Morales v.

Court of Appeals
Q: In the more recent case of Conchita Carpio Morales v. Court of Appeals (6th Div.), the Supreme
Court abandoned the doctrine of condonation although the abandonment was given prospective
application only. What is the doctrine of condonation, and explained briefly why it was abandoned by
the Supreme Court?

A: The condonation doctrine connotes a complete extinguishment of liability of a public officer or “denying
the right to remove one from office because of misconduct during a prior term”. An elective official’s re-
election cuts off the right to remove him for an administrative offense committed during a prior term.

To begin with, the concept of public office is a public trust and the corollary requirement of accountability to
the people at all times, as mandated under the 1987 Constitution, is plainly inconsistent with the idea that an
elective local official’s administrative liability for a misconduct committed during a prior term can be wiped off
by the fact that he was elected to a second term of office, or even another elective post. Election is not a mode
of condoning an administrative offense, and there is simply no constitutional or statutory basis in our jurisdiction
to support the notion that an official elected for a different term is fully absolved of any administrative liability
arising from an offense done during a prior term. In this jurisdiction, liability arising from administrative offenses
may be condoned by the President in light of Section 19, Article VII of the 1987 Constitution which was
interpreted in Llamas v. Orbos to apply to administrative offenses.

Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline enumerated therein
cannot anymore be invoked against an elective local official to hold him administratively liable once he is re-
elected to office. In fact, Section 40 (b) of the LGC precludes condonation since in the first place, an elective
local official who is meted with the penalty of removal could not be re-elected to an elective local position due
to a direct disqualification from running for such post. In similar regard, Section 52 (a) of the Revised Rules on
Administrative Cases in the Civil Service imposes a penalty of perpetual disqualification from holding public
office as an accessory to the penalty of dismissal from service. Reading the 1987 Constitution together with
the above-cited legal provisions now leads the Supreme Court to the conclusion that the doctrine of
condonation is actually bereft of legal bases.

NOTE: The abandonment of the condonation doctrine should be prospective in application for the reason
that judicial decisions applying or interpreting the laws or the Constitution, until reversed, shall form part of
the legal system of the Philippines (Carpio-Morales v. CA, G.R. No. 217126-27, Nov. 10, 2015).

Search and Seizure

Q: What are the requisites for a valid plain view search?

A:

1. Prior valid intrusion- based on the warrantless arrest in which the police are legally present in the
pursuit of their official duties;

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2. The evidence was inadvertently discovered by the police who have the right to be where they
are;
3. The evidence must be immediately apparent.

Q: What are the requisites for a valid checkpoint search?

A:

1.) The establishment of checkpoint must be pronounced;

2.) It must be stationary, not roaming;
3.) The search must be limited to visual search and must not be an intrusive search.

Q: What are the requisites for a search incident to a lawful arrest>

A:

1.) There must be a valid arrest conducted;

2.) The arrest must precede the search;
3.) The search is limited to the immediate vicinity where the arrest was made.

ICC v. ICJ
The ICC is an independent judicial institution created by the treaty known as Rome Statute with the
power to try and punish individuals for the most serious crimes of international concern:

1. Genocide;
2. Crimes against Humanist;
3. Crimes of Aggression; and
4. War Crimes

International Criminal Court International Court of Justice

As to what created each:
Rome Statute UN Charter
As to jurisdiction:
Has criminal jurisdiction to prosecute individuals Does not have criminal jurisdiction to prosecute
individuals

Impeachable Public Officers

1. President
2. Vice President
3. Members of the Supreme Court
4. Members of the Constitutional Commission
5. Ombudsman

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Grounds for Impeachment

1.) Culpable violation of the Constitution
2.) Treason
3.) Bribery
4.) Graft and Corruption
5.) Other High Crimes, or
6.) Betrayal of Public Trust

All other public officers and employees may be removed from office as provided by law, but not by
impeachment.

Amendment and Revision

Amend

Q: President Duterte pushes for a change of present form of our government which is unitary
presidential to federalism. This plan will require the revision of 1987 Constitution. Considering Article
XVII on Amendments or Revision, briefly explain if this may validly effected through any of the
following:

1. People’s Initiative on Constitution

2. Constitutional Convention
3. Constitutional Commission
4. Congress on Constituent Assembly

A:

1, Revision of the Constitution may not be validly effected through People’s Initiative. Article XVII, Section
2 recognizes the right of the people to directly propose amendment through initiative but not revisions. To
change the present form of our government, which is Unitary- Presidential to Federalism will require the
revision of the Constitution. Hence, People’s Initiative is not feasible.

2. Revision of the Constitution may be validly effected through Constitutional Convention. Article XVII,
Section 3 provides that the Congress may, (1) by a vote of 2/3 of all its members, call a Constitutional
Convention, or (2) by a majority vote of all its Members, submit to the electorate the question of calling such
a convention.

Section 4 of the same Article provides that “Any amendment to, or a revision of, this Constitution under Section 1
hereof 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 approval of such amendment or revision.”

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3. The creation of Constitutional Commission is NOT one among the enumerated ways to amend
the Constitution.
4. Revision of the Constitution may be validly effected by Congress as a Constituent Assembly. The
Congress, upon a vote of ¾ of all its Members may propose amendments or revisions to the
Constitution,

The SC recently declared the Priority Development

Assistance Fund (PDAF) adopted by the Aquino
administration on the following grounds

1. Violation of Doctrine of Separation of Powers- The Congress ends upon enactment of the
General Appropriations Act, the implementation function belongs to executive branch. The only
function of Congress is limited to Oversight Function- overseeing whether the budget was being
properly spent by executive branch. In this case however, it is the members of the congressmen
who:

a.) Identify where the money should be spent;

b.) Identify implementing agencies and beneficiaries;
c.) And in effect, they’re the ones who implement the General Appropriations act.

2. Violation of the Non- Delegability of Legislative Power

The power of appropriation was delegated by the Constitution to Congress as BODY and not
individual members of Congress. Under PDAF, it was delegated to individual members of Congress.

3. In so far as it has created a system of budgeting, items are not contextualized in the
appropriation bills, thus, denies the President to veto items.

As the General Rule, the President may not veto a provision in a bill without vetoing the entire bill
itself. Either he signs the bill in toto or denies the bill in toto. Selective veto is not allowed.

Exception is found in Sec. 27(2), Article VI wherein the President has the power to veto any particular
item/s in ART:

a.) Appropriations bill

b.) Revenue bill
c.) Tariff bill

General Appropriations Act is an Appropriations bill which denies the President to veto items since
PDAF is lump sum discretionary funds and NOT ITEMIZED.

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4. System has impaired accountability- To a certain extent, the conduct of oversight would be
tainted as said legislators, who are vested with post- enactment authority, would in effect, be
checking on activities in which they themselves participate.

5. Subverted genuine local autonomy- The gauge of PDAF is based solely on the fact of office,
without taking into account the specific interests and peculiarities of the district the legislator
represents. As a result, a district representative of a highly urbanized metropolis gets the same
amount of funding as a district representative of a far- flung rural province which would be
relatively “underdeveloped” compared to the former. To add, even Senators and Party- list
Representatives, who do not represent any locality, receive funding from the Congressional Pork
Barrel as well.

Disbursement Acceleration Program (DAP) declared to

be unconstitutional by the Supreme Court

The transfer of appropriation funds, to be valid under Section 25(5), must be made upon a concurrence of
the following requisites namely:

1.) There is a law authorizing the:

a.) President;
b.) President of the Senate;
c.) Speaker of the House of Representatives
d.) Chief Justice of the Supreme Court;
e.) Heads of the Constitutional Commissions

To transfer funds within their respective offices;

2.) The funds to be transferred are savings generated from the appropriations for their respective
offices; and
3.) The purpose of the transfer is to augment an item in the general appropriations law for their
respective offices.

The General Appropriations Act of 2011 and 2012 were textually unfaithful to the Constitution for not
carrying the phrase “for their respective offices”.

There were no savings from which funds could be sourced for the DAP. The power to augment was to be
used only when the purpose for which the funds had been allocated were already satisfied, or the need for
such funds had ceased to exist, for only then could savings be properly realized.

Cross- border augmentations from savings were prohibited by the Constitution.

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