2019 Political Law Ateneo Summer Reviewer

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~ATENEO VCENTRAL BAR OPERATIONS

20191

JORGE ALFONSO C. MELO Bar Review Coordinator

LEILAS. LIM Bar Review Secretariat

ATENEO CENTRAL BAR OPERATIONS PATRICK EDWARD BALISONG Chairman

KATRINA Y. COSCOLLUELA GENICA THERESE ENDALUZ Administration Cornrnlttee Heads

JONATHAN VICTOR NOEL JOHN STEPHEN PANGILINAN

CZARINA CHER CUERPO BENIGNO ENCISO

Academics Committee Heads

Hotel Operations Committee Heads

ATIY. DIANNA LOUISE DELA GUERRA ATTY. RAMON EREF:IETA ATIY. ALBERTO AGRA POLITICAL LAW Faculty Advisers

JAN DOMINIC CASTRO PAUL RJCO TAN ALYAMNA MARIE MANALANG CZARINA MICHAELLA PLEYTO MARION IYA MERILLES POLITICAL LAW Subject Heads

EUNICE A. MALAYO FRANCES CHRISTINE F. SAYSON Central Bar Operations Academics Understudies

STEPHEN ESPIRITU SELINA MIRANDA VEYAJOSEF PRAM MENGHRAJAN! GE-AN SALUD

GIA MORIJENO MARK VERGARA HIDEYUKI SATO MARJOLAINE DE CASTRO JASON DIZON POLITICAL

FELEO QUIJANO JOHN CARILLO ANTOINEITE DUQUE HAZEL SEGOVIA NICO CALDOZO

LAW Volunteers

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ATENEO CENTRAL BAR OPERATIONS 2019

POLITICAL LAW

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THE PHILIPPINE CONSTITUTION PRELIMINARIES A. Political Law : 1 1. Subjects covered by political law ; ...•....•..•...................••...••... : 1 2. Constitutional Law ...............••..••........ .: ....•....•.... :1 B. Constitution: Definition, Nature and concepts : 1 1. Classes of Constitution .. : 2 2. Basic Principles of Constitutional Construction ; 2 3. Doctrine of Constlt!Jtional Supremacy 2 4. Parts of the Constitution 2 5. Preamble : 2. c. Self-Exec~ting and Non-Self-Executing Provisions 2 1. General Rule and Exceptions 2 D. General Provisions ......•.•.................•..•........••..........•.. : 3 1. Symbols of Nationality ····: 3 2. The Armed Forces of the Philippines _.. .. 3 3. The Police Force .: 3 4. Consumer Protections · !. 3 5. Mass Media and Advertising 3 E. Forms of Government 1. Government : ." 3 2. Administration 3 3. Types of De Facto Government. 4 4. Legislature 4 5. Executive 4 I. !>RELIMINARY PROVISION AND BASIC CONCEPTS TOPIC OUTLINE UNDER THE 2019 SYLLABUS A. National Territory B. Declaration of Principles and State Policies C. Separation of Powers · D. Check and Balances E. State lmmunlty

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5 7 8 9 9

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II. LEGISLATIVE DEPARTMENT

A. Leqlslatlve Power .. 1. Scope and limitatlon 2. Principle of Non-delegability; exceptions .. : B. House of Congress; composition and qualification of members 1. Senate

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TOPIC OUTLINE UNDER THE 2019 SYLLABUS 13 13 17 19 19

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2. House of Representatives va. District representatives and questions of appointment. b. Party-1\st system C. Privileges, Inhibitions, and Disqualiflcations .' D. Discipline of Members E. Process of Law-Making F. Quorum and Voting Majorities G. Appropriation and Re-allqnrnent. : H. Legislative Inquiries and Oversight functions I . l, Power of Impeachment · J. Electoral Tribunal. K. Commission pn Appointments L. Initiative and Referendum I

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31 33 . 36 36 37 38

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m. EXECUTIVE DEPARTMENT

TOPIC OUTLINE bNDER THE 2019 SYLLABUS A. Qualifications, election, and term of the President and Vice-President.. 39 B. Privileges, ln~ibitlon, and Disqualifications 40 C. Powers of the President. 42 1. Executive and Administrative powers in General 42 2. Powe~of Appointment. 43 a. Confirmation and by-passed appointments 44 I . b. Midnight and ad Interim appointments 45 c. Power of Removal 45 D. Power of Cohtrol and Supervision 46 E. Doctrine of Qualified Political Agency , 46 F. Executive departments and Officers 46 G. Local Governn,ent Units 47 1. Militaf,, Powers 47 a. Callin~ out power ,.. 47 b. Declaration of Martial Law and suspension of the privilege of the writ of habeas corpus; requisites and parameters of extension 47 I 2. Executive Clemency 49 3. PoweI1rs pertinent to .Foreign Relations 50 H. Rules of Succession 53

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IV. JUDICIAL DEPARTMENT

TOPIC OUTLINJ UNDER THE 2019 SYLLAB'JS A. Judicial Pow/'er B. Judicial Rev ew 1. Requisit~s : , 2. Political Question Doctrine 3. Moot QuJstions ; • .4. Operative Fact Doctrine C. Safeguards Judicial lndependence 1. Judicial and Bar Council I a. Comppsltion b. Powers

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56 57 57 59 59 59 60

61 61 62

2. Fisca Autonomy L : O. Qualifications of Members of the !Judiciary E. Workings of the Supreme Court .. ~ : ~ 1. En bane and Division cases '. 2. Procedural Rule-maklng l 3. Administrative supervision oJe,· Jower courts 4. Original and Appellate Jurisdiption ,.

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v. CONSTITUTIONAL COMMISSION I

TOPIC OUTLINE UNDER THE 2019 SYLLABUS A. B. C. 0. E.

Common Provisions ; Powers and functions of the csc, COMELEC, and COA Composition and Qualifications of Members Prohibited Offices and lnterests .. ! Review of final orders, Resclutions,: and Decisions

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VI. BILL OF RIGHTS TOPIC OUTLINE UNDER THE 2019 S~LLABUS I

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A. Fundamental Powers of the State.i 79 B. Private Acts and the Bill of Rightsl 83 C. Rights to Life, Liberty and Property · 83 1. Procedural and Substantive Due Process : 84 2. Void-for-Vagueness Doctrine .. '. : 88 3. Hierarchy of Rights .••..........•.. L. 88 D. Equal Protection .: ; : 90 1. Requisites for Valid Classificat'ion 90 2. Rational Basis, Strict Scrutiny,'and Intermediate Scrutiny Tests 92 E. Searches and Seizures .1 ; 93 1. Requisites for a Valid Warrant .i 94 2. Warrantless Searches and Seizure 96 3. Administrative Arrests ; 101 4. E:vidence Obtained through Purely Mec;hanical Acts 102 F. Privacy of Communications and Correspondence 102 1. Private and Public Communications .' 102 2. Intrusion, when allowed; ExcluJionary Rule 102 G. Freedom of Speech and Expressioh 105 1. Prior Restraint and Subsequent1Punishment 106 2. Content-Based and Content-Neutral Regulations 107 3. Facial Challenges and the Overbreadth Doctrine 109 4. Dangerous Tendency, Balancing of Interests, and Clear and Present Danger Tests 1 110 5. States Regulation of Different Types of Mass Media 112 6. Commercial Speech ,l.I 112 7. Unprotected Speech : 114 H. Freedom of Religion : 114

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1. Non-Establishment and Free-Exercise Clauses 2. Benevolent Neutrality and Conscientious Objectors ~- Lemon and Compelling State Interests .. I. Liberty of Abode and Right to Travel •...... " 1. Scope and Limitations 2. Watch-list and Ho lei neparture Orders J. Right to Information 1. Scope and Limitations 2. Publication of Laws and Regulations K. Right of Association L. Eminent Domain 1. Expropriation by Local Government Units 2. Concept of Public Use 3. Just Compensatlon . ' M. Non-Impairment of contracts N. Free Access to Courts and Adequate Legal Assistance 0. Castodial Investigation Rights : P. Rights of the Accused ••..... ,. .' ; Q. Right to the Speedy Disposition of Cases · R. Right Against Self-lncrimination S. Right Against Double Jeopardy T. Involuntary Servltude · ; U. Right Against Excessive Fines, and Cruel and Inhuman Punishments V. Non-Imprisonment for Debts W. Ex post facto Jaw and Bills of Attainder X. Writs of Habeas Corpus, Kalikasan, Habeas Data, and Amparo

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114 116 116 119 120 120 120 120 122 123 124 125 127 128 131 132 133 135 141 141 143 146 146 147 147 148

VII. CITIZENSHIP TOPIC OUTLINE UNDER THE 2019 SYLLABUS

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A. B. C. D. E.

Who are Filipino Citizens Modes of Acquiring Citizenship : Loss and Re-acquisition of Philippine Citizenship Dual citizenship and Dual Allegiance Foundlings VIII. LAW ON PUBLIC OFFICERS

153 153 154 155 155

TOPlC OUTLINE UNDER THE 2019 SYLLABUS . ' ~·

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A. General Principles B. Modes of Acquiring title to public office C. Kinds of Appointment D. Eligibility and qualification requirements E. Disabilities and Inhibitions of public officers F. Rights and Liabilities of public officers G. De Facto v. de Jure Officers H. Termination of Official Relation I. The Civil Servlce

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156 157 159 162 164 167 169 170 171

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Personnel actions .1. Discipllne a. Grounds b. Jurisdlctions .' c. Dismissal, preventive suspension, reinstatement and back salaries d. Condonatlon doctrine 2. Impeachment ~ 3. The Ombudsman .-

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b. Judicial review in penal proceedings 4. Office of the Special Prosecutor 5. The Sandiganbayan

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IX. ADMINISTRATIVE LAW TOPIC OUTLINE UNDER THE 2019 SYLLABUS

A. B.

c.

General principles · Powers of administrative aqencies 1. Quasi-legislative (rule-making) power ; a. Kinds of administrative rules and regulations b. Requisites of validity 2. Quasi-judicial (adjudicatory) power a. Administrative due process b. Administrative appeal and review c. Administrative res judlcata : 3. Fact-finding, Investigative, lic~nsing, and rate-fixing powers Doctrine of Primary jurisdiction and exhaustion of administrative

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185 187 ; 187 188 188 189 191 193 193 194 195

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X. ELECTION LAW TOPIC OUTLINE UNDER THE 2019 SYLLABUS A.

B.

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Suffrage 1. Qualification and Disquallficatlon of voters · 2. Registration of Voters 4. Inclusion and Exclusion Proceedi11gs 5. Local and Overseas Absentee Voting 6. Detainee VotlngCandidacy Candidacy 1. Qualifications and Disqualifications of Candidates 2. Filing of Certificates of Candldacy a. Effect of Filing b. Substitution and Withdrawal of ~andldates : c. Nuisance Candldates ~ d. Duties of the COMELEC · Remedies and Jurisdiction in Election Law 1. Petition to Deny Due Course or Cancel a Certificate of Candidacy

198 199 200 201 202 202 205 205

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2. Petition for Disqualification 3. Failure of Election, Call of Special Electlon 4. Pre-proclamation Controversy 5. Election Protest 6. Quo Warrant<>

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XI. LOCAL GOVERNMENT TOPIC OUTLINE UNDER THE 2019 SYLLABUS A.

B. C.

Principles of local autonomy Autonomous regions and their relation to the National Government Local Government Units · 1. Powers , a. Police Power (General Welfare Clause) b. Eminent Domain c. Taxing Powttr , d. Legislative Power i. Requisites for Valid Ordinance II. Local Initiative and Referendum e. Ultra vlres Acts ....• : : 2. Liability 3. Settlement of Boundary Dlsputes 4. Vacancies and Successlon 5. Recall , 6. Term Limits

233 235 237 237 238 240 245 245 246 247 248 249 250 254 255

XII. NATIONAL ECONOMY AND PATRIMONY TOPIC OUTLINE UNDER THE 2019 SYLLABUS ··:_,

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A. B. C. D. E. F. G. H.

Regalian Doctrine Nationalist and Citizenship Requirement provlslons Exploration, Development, and Utilization of Natural Resources Franchises, Authority, and Certificates for Public Utilities Acquisition, Ownership and Transfer of Public and Private Lands Practice of Professlons Organization and Regulation of Corporations, Private and Public Monopolies, Restraint of Trade, and Unfair Competition

257 258 260 261 263 264 264 264

XIII. SOCIAL JUSTICE AND HUMAN RIGHTS -.

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TOPIC OUTLINE UNDER THE 2019 SYLLABUS

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A. B. C.

Concept. Economic Social and Cultural Rights Commission on Human Rights

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XIV. EDUCATION,

SCIENCE, TECHNOLOGY,

ARTS, CULTURE AND SPORTS

TOPIC OUTLINE UNDER THE 2019 SYLLABUS A.

Academic

Freedom

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XV. FAMILY TOPIC OUTLINE UNDER THE 2019 SYLLABU~ A.

Rights

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XVI. AMENDMENTS

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OR REVISIONS OF THE CONSTITUTION

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TOPIC OUTLINE UNDER THE 2019 SYLLABUS A.

Procedure to amend or revise the Constitution

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XVII. PUBLIC INTERNATIONAL LAW

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TOPIC OUTLINE UNDER THE 2019 SYLLABUS A.

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E.

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Concepts 1. Obligations Erga Omnes 2. Jus Cogens ~ 3. Concept of Ex Aequo et Bono Relationship Between International and National Law Sources of Obligation in International Law Subjects ; 1. States 2. International Organizations 3. lndivlduafs Jurisdiction of States 1. Basis of Jurisdiction : a. Territorlallty Princlpfe b. Nationality Principle and Statelessness c. Protective Principle ; d. Universality Principle e. Passive Personality Principle 2. Exemptions from Jurisdiction a. Act of State Doctrine b. International Organizations and its Officers Ge:neraf Principles of Treaty Law Doctrine of State Responsibility Refugees Extradition Basic Principles of International Human Rights Law 1. Universal Declaration of Human Rights

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278 278 278 279 280 281 284 285 287 288 288 288 288 289 289 289 289 289 289 289 292 296 299 300 302 302

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2. International Covenant on Civil and Political Right.. 302 3. International Covenant on Economic, Social, and Cultural Right 302 Basic principles of International Humanitarian Law 304 1. Categories of armed conflicts : ; 304 a. International armed conflicts 304 b. Internal or non-International armed conflict 305 c. War on national liberation 306 2. R.A. 9851 (Philippine Act on Crimes Against International Law, Genocide, and 1 Other Crimes Against Humanity) 306 3. Core international obligations of states in International Humanitarian Law 310 4. Principles of International Humanitarian Law 311 5. Treatment of Civilians 311 6. Prisoners of War ......•....................•...............•............•....•...•...............•..... 312 7. Law on Neutrality .•.............•.....•...•.................•....•.........••.........••............... 312 Law of the Sea ; .....•.••.•. 313 1. Baselines ..••.. .' 314 2. Archlpelaqlc State '. ,. 314 a. Straight archipelagic baselines 314 b. Archipelagic Waters .............................................•................................ 314 c. Archipelagic sea lanes passage 314 d. Regime of lslands 315 3. Internal Waters , 315 4. Territorial Sea 316 5. Contiguous Zone · 316 6. Exclusive economic zone 316 7. Continental shelf and Extended Continental Shelf 317 8. International Tribunal for the Law of the Sea : 318 Basic Principles of International Environmental Law 319 1. Precautionary Principle 319

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ATENEO CENTRAL BAR OPERATIONS 2019

POLITICAL LAW

l

THE PHILIPPINE CONSTITUTION PRELIMINARIES

Political Law Political law - branch of public law which deals with the organization and operations of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory. (People v. Pedecto, 43 Phil 88 , 1922) Subjects covered by Philippine Political Law a. Constitutional law - guaranties of the constitution to individual rights and the limitations on governmental action b. Adrninlstratlve law- exercise of executive power in the making of rules and the decision of questions affecting private rights c. Election Law - the study of the laws, rules, and procedures involving the conduct of the election of all public officials who will exercise the powers of government as allocated to and within their functions and responsibilitir.s d. The law of public corporations - governmental agencies for local government or for other special purposes e. Law of Public Officers - study of the creation, modification, and dissolution of public office as well as the eligibility of public officers, the manner of their election or appointment and assumption of office, their rights, duties, powers, inhibitio~s and liabilities, and the modes of terminating official relations. Constitutional Law Designates the law embodied in the Constitution and the legal principles growing out of the Interpretation and application of its provisions by the courts in specific cases. It is the study of the maintenance of the proper balance between the authority as represented by the three inherent powers of the State and liberty as guaranteed by the Bill of Rights. CONSTITUTION DEFINITION, NATURE AND CONCEPTS

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Definition of Constitution A written instrument enacted by direct action of the people by which the fundamental powers of government are established, limited, and defined, and by which these powers are distributed among several departments, for their more safe and useful exercise, for the benefit of the body politic (Bernas! 1987 Philippine Constitution, 2009).

The written instrument agreed upon by tile people ... as the absolute rule of action and decision for all departments and officers of the government ... and in opposition to which any net or rule of any department or officer of the government, or even of the people themselves, will be altogether void (Cooley, JI/ Constitutional Umitations,

1868). The Constitution both creates the structures of government and limits their powers. It is the document which serves as the fundamental law of the state; that written instrument enacted by the direct action of the people by which the fundamental powers of the go·1ernment are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise, for the · benefit of the body politic. [Malcolm, Phil. Constitutional Law] Philippine Constitution and Effectivity Dates 1935 Constitution: May 14, 1935 1973 Constitution: Jan. 17, 1973 1986 Freedom Constitution: Mar. 25, 1986 1987 Constitution: Feb. 2, 1987 Classes of Constitution 1. Written and Unwritten (i) A written constitution's precepts are embodied in one document or set of documents. (ii) An unwritten constitution consists of rules which have not been integrated into a single, concrete form but are scattered in various sources, such as statutes of fundamental character, judicial decisions, commentaries of publicists, customs and traditions. (Cruz, Constitutional Law 4-5; Nachura, Outline Reviewer in Political Law 2]

2. Enacted (Conventional) and Evolved (Cumulative) (i) A conventional constitution is enacted formally at a definite time and place following a conscious or deliberate effort taken by a constituent body or ruler. (ii) A cumulative body is the result of political evolution, not inaugurated at any specific time but changing by accretion rather than by any systematic method. [Cruz, id., at 5]

, 3. Rigid and Flexible (i) A constitution is classified as rigid when it may not be amended except through a special process distinct from and more involved than the method of Page 1 of320

ATENEO CENTRAL

POLiTICAL LAW

BAR OPERATIONS 2019

changing ordinary laws. It is supposed that bysuch a special procedure, the constitution is rendered difficult to change and thereby acquires a greater , degree of stability. · (ii) A constitution is classified as flexible when it may be changed in the same manner and through the same body that enacts ordinary legislation. The Constitution of the UK is flexible. · Note: The Philippine Constitution is written, conventional and rigid. Basic Principles of Constitutional Construction f. Verba legis - whenever possible, the wcrds used in the ConstiMion must be given their ordinary meaning except where technical term are employed; g. Ratio legls est anlma - words of the Constitution should be interpreted in accordance with the intent of the framers: h. Ut magis valeat quam pereat - the Constitution should be interpreted as a whole [Francisco v. House of Representatives, 415 SCRA 44 (2003)] In case of doubt, the provisions should be considered self-executing (Manila Prince Hotel v GS/S, GR No 122156, February 3, 1997) ; mandatory rather than directory (Tanada v Cuenco, GR No. L-10250, February 28, 1957) and prospective rather than retroactive (Peralta v Director of Prisons, GR No -49, November 12, 1945) Self-Executing and Non-Self Executing Provisions 1. Self Executing : provisions 'Nhich is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies a sufficient rule by means of which the right it grants may be enjoyed or protected. (Manila Prince· Hotel v GS/8) 2. Non Self Executing: provisions which lays down a general principle Doctrine of Constitutional Supremacy If a law or a contract violates any norm of the Constitution, that law or contract, whether promulgated by the legislative or executive branch of the government or entered into by private persons for private purposes, is null and void, and without any force and effect. Since the Constitution is the fundamental and supreme law of the land, it is deemed written in every statute and every contract. (NACHURA) Parts of the Cor,stitutlon Essential Parts of a Written Constitution

1. Constitution of Liberty - sets forth the fundamental civil and political rights of citizens, and imposing limitations on the powers of government as a means of securing the enjoyment of those rights. (Art. Ill) 2. Constitution of Government - outlines the organization of government, enumerating its powers, laying down rules regarding its administration, and defining the electorate. (Arts. VI, VII, IX) 3. Constitution of Sovereignty- the mode or procedure with which formal changes in the fundamental law may be made. (Art. XVII)

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Preamble An introduction that identifies: the authors of the Constitution (i.e. sovereign Filipino people) their intentions, and its purpose(s) of tt>e document. _SELF-EXECUTING AND NON-SELF-EXECUTING PROVISIONS General Rule: The provisions of the Constitution are considered self-executing, and do not require future legislation for their enforcement. Exceptions: Principles in Article II are not intended to be selt-executinq principles ready for enforcement through the courts. They · are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws (Tondo Medicalv. Courl of Appeals, G.R. No. 167324, 2000). The social and economic rights guaranteed in Article XIII are also non-self-executing provisrons. (Bernas, Constitutional Rights aod Social Demands, 1, 2010). · Exceptions to the Exceptions: Article 11, Sec. 16 - The right to a balanced and healthful ecolcgy is self-executory and does not need an implementing legislation (Oposa v. Factoran, G.R. No. 101083, 199:1). Article II, Sec. 28- The duty of full public disclosure is selfexecutory(Province of North Cotabato v. GRP, G.R. No. 183591, Article II, Sec. 15- The right to health is also self-executing (/mbong v. Ochoa, G.R. No. 204819, 2014).

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NOTE: Whether or not a provision is self-executing depends on the language of the provision. Most of the provisions in Article II are couched in non-self-executing language.

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ATENEO CENTRAL BAR OPERATIONS 2019

POLITICAL LAW

GENERAL PROVISIONS Symbols of Nationality The Philippine Flag (Sec. ·/) Red, white, ar,d blue with a sun and 3 stars The design may be changed only by constitutional amendment. Congress may, by law, adopt a new (Sec. 2): Name for the country National anthem National seal Law takes effect upon ratification by the people in a national referendum. The Armed Forces of the Philippines (Sec. 4 • 5) • Military men cannot ~ngage, directly or indirectly, in any partisan political activity, except to vote. • Members of the AFP in active service cannot be appointed to a civilian position in the government, including GOCCs or their subsidiaries. The Police Force (Sec. 6) The State shall establish and maintain one police force, national in scope and civilian in character. The national police is now governed by RA. No. 6975 which took . effect on January 1, 1991.

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Consumer Protection (Sec. 9) The State shall protect consumers from trade malpractices and from substandard or hazardous products. The protecfionls intended, not only against traders, but also to manufacturers who dump defective products in the market.

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Mass Media and Advertising (Sec. 11) The ownership and management of mass media shall be . limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owr.ed and managed by citizens. Only Filipino citizens or corporations or associations at least 70% of the capital of which is owned by Filipino citizens shall be allowed to engage in the advertising industry. FORMS OF GOVERNMENT GOVERNMENT

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1 Note: On the National tevet, refers to the Legislative, Executive. Judicial departments. On the local level, refers to the regional, provincial, city, muruclpal, and barrio governments.

An element of a state; that institution through which the .,State exercises power; the aggregate of institutions by which an independent society makes and carries out rules of action which are necessary to enable men and women to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them (Bacani v. NACOCO, G.R. L- 9657, 1~56).1 ADMINISTRATION Set of people currently running the government institution. Classification of Government Functions Constituent - Compulsoryfunctions which constitute the very bonds of society. Examples: Keeping order and providing protection to persons and property Fixing of legal relations between husband and wife, parents and children Regulation of the holding, transmission, interchange of property; determination of liabilities for debt or crime Determination of contract rights between individuals Definition and punishment of crime Administration of justice in civil cases Determination of political duties, privileges, and relations of citizens Daalings of the State will I foreign powers: preservation of the State from external danger or encroachment and advancement of international interest Ministrant - Dlscretion.!ry or optional functions Intended to achieve a better life for the community. Principles for determining whether or not government should exercise ministrant functions: Government should do for the public welfare those things which private capital would not naturally undertake. Government should do those things which by Its nature it is better equipped to administer for the public welfare than is any private individual or group oflndividuals. Classmcation According to Legitimacy of Government De Jure - Legitimate; possessing all the legal requisites of govP.rnment. De facto - Lacking one or more of the legal requisites of government. 2 2

Note: A de facto government can be denominated as such only after they are defeated.

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ATENEO CENTRAL BAR OPERATIONS

POLITICAL LAW

2019

Types Of De Facto Governments: (VIP) Government that usurps government and maintains itself against the will of the majority by force or by ~iolence. Government established as an independent government by inhabitants who rise in !nsurrection against the parent state. Government established and maintained by military forces which invade or occupy a territory of the enemy in the course of war; a government of faramount force. Common Forms of Dsmocratlc Government Presidential • Government is characterized by a separation of powers among the Legislative, Executive, and Judiciary. • This system embodies "interdependence by separation and coordination." • The head of State is the President, who likewise presides over the Executive Department. 2. Parliamentary • Government characterized by "interdependence by integration." Here, the ministers of the executive branch get their democratic legitimacy from the legislature and are accountable to that body, such that the executive and legislative branches are intertwined. Essential Features of a Parliamentary System of Government (SCRePS) Members of government. or the cabinet, or the executive are as a rule, §.imultaneously members of the legislature. The government or cabinet is in effect a ,!;.Ommittee of the legislature. · Both government and legislature possess control devices with which each can demand of the other immediate political asponsibility. The government or cabinet has a .l!Yramidal structure at the apex of which is the Prime Minister or his equivalent. · Government or cabinet stays in power only so long as it enjoys the 1upport of the majority of the legislature.

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LEGISLATURE - power to exercise a "vote of no confidence" (censure) whereby government may be ousted. ·

EXECUTIVE - power to dissolve the legislature and call for new elections.

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ATENEO CENTRAL POLITICAL LAW

BAR OPERATIONS 2019

I. PRELIMIN1"RY PROVISIONS AND BASIC c. Treaty of 12 January 1930 between the United States ,-,--"'!'-~'!11-----------------------------,------~------~----------------~~--~ CONCEPTS and Great Britain: Ceding the Turtle and Mangsee Islands. [BERNAS (2003), cited in Justice Velasco's . concurring opinion In Maga/Iona v. Ermita (2011)).

TOPIC OUTLINE UNDER THE SYLLABUS A. National Territory B. Declaration of Prtnctpies and State Policies C. Separation of Powers 0. Checks and Balances E. State Immunity

A. NATIONAL TERRITORY Provision on National Territory The National Territory comprises the Philippine Archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other . submarine areas. The waters around. between, and connecting the islands of the archipelago, reqardless of their breadth and dimension, form part of the internal waters of the Philippines (Art I , Sec. 1 ). · ,;-·

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Archipelagic Doctrine A body of water studded with islands, or the islands surrounded with water, is viewed as a unity of islands and waters together forming one integrated unit. (N.B. Embodied in Art. II, specifically by the mention of the "Philippine archipelago" and the specification on "internal waters."]

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Application to the Philippines The waters around, between, and connecting the islands of the archioeiaqo, regardless of their breadth and dimensions, form part of the internal waters of the Philippines (Art. I, Sec. 1)

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Treaty limits of the Philippine archipelago a. Treaty of.Paris of 10 December 1898: "Spain cedes to the United States the archipelago known as the Philippines Islands, and comprehending the islands lying within the follo\Ving line" Article 3 of the said treaty defines the metes and bounds of the archipelago by longitude and latitude, degrees and seconds. Technical descriptions are made of the scope of the archipelago as this may be found on the surface of the earth. b. Treaty of Washington of 7 November ~900 between the United States and Spain: Ceding Cagayan, Sibuto and Sulu.

Composition of National Territory · (a) Philippine Archipelago, with all the islands and waters embraced therein; (b) Internal Waters : waters around, betwean and connecting the islands of the archipelaqo, regardless of breadth and dimension; and (c) All other territories over which the Philippines has sovereignty or jurisdiction -,

It consists of: (1) Territorial sea, seabed, subsoil, insular shelves, and o.~er submarine areas (2) Terrestrial, fluvial, and aerial domains Future Acquisitions included in Natlonal Territory The clause includes any territory presently belonging or those that might in the future belong to the Philippines through any of the accepted international modes of acquiring territory. Territories belonging to Philippines by historic right or title The clause also includes what was referred to under the 1973 Constitution as territories "belonging to the Philippines by historic right or legal title," that is, territories which, depending on available evidence, might belong to the Philippines (e.g., Sabah, the Marianas, Freedom/and) (Bernas, Constitutional Rights and Social Demands, 8,

2010). Under Article 3 of the UNCLOS, "every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from the baselines" Contl3uous Zone It is an area of water which extends up to 24 nautical miles from the baseline (12 nautical miles from the Territorial Sea). Although not part of the territory, the coastal State may exercise jurisdiction to prevent infringement of customs, fiscal, immigratiJJn, or sanitary laws. Exclusive Economic Zone This refers to the body of water extending up to 200 nautical miles beyond the baseline, within which the state may exercise sovereign rights to explore, exploit, conserve, and manage the natural resources.

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direction of the coast, in order to delineate the internal waters from the territorial waters of an archipelago.

Portion of the continental shelf that lies beyond the 200 nautical mile limit. A coastal state may establish a continental shelf beyond the 200 nautical miles from its coastline.

The Basellne Law (R.A. 9522, 2009) R.A. No. 9522-amended R.A. No. 3046, entitled "An Act to Define the Baselines of the Territorial Sea of the Philippines;" specified that baselines of Kalayaan Group of Islands and Bajo de Maslnloc (Scarborough Shoal) shall be detennined as "Regime of Islands" under the Republic of the Philippines, consistent with the UNCLOS.

The coastal State may establish the outer limits of its· juridical continental shelf wherever the continental margin extends beyond 200 nautical miles by establishing the foot of the continental slope, by me•}ting the requirements of Article 76, paragraphs 4-7, of the UNCLOS. The Philippine archipelago and all other territories consist of the following domains: (TAFA) i. Ierrestrial ii. Aerial iii. fluvial iv. All other territories outside archlpelago over which RP has sovereignty or jurisdiction

R.A. No. 9522 is const!tutlonal: ( 1) it is a statutory tool to demarcate the maritime zone and continental shelf of the Philipptnes under UNCLOS 111, and does not alter the national territory. Basehnes laws are nothing but statutory mechanisms for UNCLOS Ill state parties to delimit with precision the extent of their maritime zones and continental shelves. The law has nothing to do with acquisition, enlargement, or diminution of territory, as States may only acquire (or lose) territory through the following modes: (CAPO) tession, Accretion frescription, and Qccupation (Magaflona v. Ermita. G.R. No. 187167, 2011). (2) The law also does not abandon the country's claim to Sabah, as it does not expressly repeal the entirety of R.A. No. 5446. [Maga/Iona v. Ermita, G.R. No. 187167, 16 July 2011)

Normal Baseline Method The baseline is drawn following the low-water line along the coasts as marked on large-scale charts officially recognized by the coastal State. This line follows the sinuosities of the coast and therefore would normally not consist of straight lines (Section 5, 1982 LOS; Bernas, 1987 Philippine Constltution: A Commentary, 23, 2009). Straight basellne method Territorial Sea

12 nautical miles from baselines 24 nautical miles from baselines

Absolute Sovereignty

consists of drawing straight lines

Enforcement of customs. Contiguous fiscal, Zone immigration, sanitation laws 200 nautical Exploitation Exclusive miles from of living and Economic baselines non-living Zone resources Submerged Sovereign prolongation rights of of the land exploration and Continental territory exploitation Shelf of living and non-living resources of the seabed connecting appropriate points on the coast without departing to any appreciable extent from the general

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The law also does not convert internal waters into archipelagic waters (which allow the right of innocent passage). The Philippines still exercises sovereignty over the body of water lying landward of the baselines including the air space over it and the submarine areas underneath. The political branches of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage (Maga/Iona v. Ermita, G.R. No. 187167, 2011).

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The Baselines Law does not abandon the Philippines' claim over Sabah under RA 5446. The definition of the baselines of the territorial sea of the Philippine Archipelago is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Philippines has acquired dominion and sovereignty (RA 556, Sec. 2).

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Maritime Zones Regime of Islands

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· Under Article 121 of the UNCLOS Ill, any naturally formed area of land surrounded by water, which is above water at high tides, qualifies unc!er the category of "regime of islands" whose islands generate their own applicable maritime zones (e.g., Kalayaan Islands and Scarborough Shoal). Kalayaan Islands has its own Territorial Sea, Contiguous Zone, and Exclusive Economic Zone. BUT Scarborough Shoal ONLY has a Territorial Sea and Contiguous Zone.3 · There can be a Continental Shelf without an EEZ, but not an EEZ without a Continental Shelf. .

B. DECLARATION OF PRINCIPLES AND STATE POLICIES Principles binding rules which must be observed in the conduct of government. Policies guidelines for the orientation of the state.

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Elements of a State (GSPoT) §overnment • institution or aggregate of ir1stitutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them l?overeignty - power of the State to regulate matters within its own territory. . Population - community of persons sufficient in number and capable of maintaining the continued existence of the community and held together by a common bond of law . Ierritory - a definite area over. which the State exercises sovereign jurisdiction. Difference between a unitary and federal form of government UNITARY

Powers are concentrated The central authority and constituent political units in one central authority and some of which are divide and share the merely delegated to other power, where the central units (e.g. delegated government is focused on legislative power to LGUs) more specificfunctions,

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FEDERAL

such as national defense and foreign policy. The consiituent units are given more powers to develop their territories without much intervention by the central government

Generally Accepted Principles of International Law Principles based on natural justice common to most national systems of law. Examples: i. The right of an alien to be released on ball while awaiting deportation when his failure to leave the country is due to the fact that no country will accept him (Mejoffv.Director of Prisons, G.R. No. L-4254, 1951). ii. The right of a country to establish military commissions to try war criminals (Kuroda v. Jalandoni, G.R. No. L-2662, 1949). iii. The Vienna Convention on Road Signs and Signals (Agustin v. Edu, G.R. No. L-49112, 1979). iv. Duty to protect the premises of embassies and legations (Reyes v. Bagatsing, G.R. No. L-65366, 1983). v. Pacta sunt servanda - international agreements must be performed in good falth (Tanada v. Angara, G.R. No. 118295, 1997). (See also: "General Principles of Law" pg. 303) The Philippines renounces aggressive war as an instrument of national policy, but allows for a defensive war. Civilian Authority Article II, Section 3 of the Constitution states that . "[c}ivllian authority Is, at all times, supreme over the military. The Armed Forces of the PhHippines is the protector cf the People and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory." Civilian Authority - The head of the armed forces is a civilian president and the primary purpose of AFP is to serve and protect the people. Mark of sovereignty - Positively, the military is the guardian of the people and of the integrity of the national

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Note: Under Articie 121 of the UNCLOS, rocks which cannot . sustain human habitation or economic life of their own shall

have no exclusive economic zone or continental shelf. Page 7 of320

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territory and therefore ultimately of the majesty of the law. Negatively, it is an expression against military abuses.

Acquisition of Agri-Biotech v. Greonpeece, G.R. No. 209271, 2015)

Freedom from Nuclear Weapons

Elements for the Application of Precautionary Principle: Uncertainty Possibility of irreversible harm Possibility of serious harm (International Service for the Acquisition of Agri-Biotech v. Greenpeace, G.R. No. 209271, 2016)

PROHIBITS Possession, control and manufacture of nuclear weapons; nuclear arms tests

DOES NOT PROHIBIT Peaceful use of nuclear energy

Exception to policy against nuclear weapons may be made by political deoartments, but must be justified by demands of national interest. Social Justice The State shall promote social Justice In all phases of national development. Social Justice has been defined by Justice Laurel as the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated (Calalang v. Williams, 70 Phil. 726, 1910). Protection of the Life of the Unborn It is not an assertion that the unborn is a legal person. It is -. not an assertion that the life of the unborn is placed exactly on the same level of the life of the mother. Hence, when it is necessary to save the life of the mother, the lifo of the unborn may be sacrificed. The Roe v. Wade doctrine allowing abortion up to the 6th month of pregnancy cannot be adopted in the Philippines because the life of the unborn Is protected from the time of conception. Right to a Balance and Healthful Ecology The right to a balanced and healthful ecology is not less important than any of the civil and political rights enumerated in the Bill of Rights. The right to a balanced and healthful ecology carries with it an intergenerational responsibility to care for and protect the environment (Oposa v. Fectoren, G.R. No. 101083, 1993). In environmental cases, the precautionary principle is used when there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect. The precautionary principle, as a principle of last resort, shifts the burden of evidence of harm away from those likely to suffer harm and onto those desiring to change the status quo. (International Service for the

Standing to file an action for violation of environmental laws The enactment of the Rules of Procedure for Environmental Cases enabled litigants enforcing environmental rights to file their cases as citizen suits. It liberalized standing for all cases filed enforcing environmental laws and collapses the traditional rule on personal and direct Interest, based on the principle that humans are stewards of nature. The need to give animals legal standing in environmental cases has been eliminated by the Rules since any Filipino citizen, as a steward of nature, is allowed to bring a suit to enforce environmental laws. (Resident Marine Mammals v. Reyes, G.R. No. 180771, 2015) Requisites fer the lssuance of Writ of Kalikasan 1. There is an actual or threatened violation of the constltufional right to a balance and healthful ecology; 2. The actual or threatened violation arises from an unlawful act or omission of a public official or employee, or private individual or entity; 3. The actual or threatened violation involves or will lead to an environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities of provinces. (LNL Archipelago Minerals Inc v. Agham Party List, GR 209165, 2016)

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C. SEPARATION OF POWERS An allocation of the three great powers of government in the following manrer: legislation to Congress, execution of laws to the Executive, and settlement of legal controversies to the Judiciary. It is also an implicit limitation on their powers, preventinq one from invading the domain of the others, but the separation is not total.

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The principle of separation of powers ordains that each of the three great government branches has exclusive cognizance of and is supreme in concerns falling within its own constitutionally allocated sphere; e.g., the Judiciary as Justice Laurel emphatically asserted "will neither direct nor

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restrain executive (or legislative] action" (Republic v. Bayao, G.R No. 179492, 2013).

p. CHECKS AND

BALANCES

A system operating between and among the three branches of government the net effect of which is that no one department is able to act without the cooperation of at least one of the other departments. Examples: Legislation in the form of an enrolled bill needs final approval from the President to become a law: President must obtain the concurrence of Congress to complete certain acts (e.g. granting of amnesty); Money can be released from the Treasury only by authority of Congress; Appropriation, revenue, tariff, increases In public debt and private bills originate in House of Representatives; SC can declare acts of Congress or the Executive unconstitutional.

E. STATE IMMUNl'fX I

How a State gives Its consent a. Express consent 1. General Law 2. Special Law b. Implied consent 1. When the State commences litigation, it becomes vulnerable to a c!ounterclaim; ( United States of America v. Judge Guinto, 261 Phil. 1n. 790 (1990)) . 2. State enters into a business contract (it is exercising proprietary functions); (United States of America v. Judge Guinto, 261 Phil. 777, 795 (1990)) 3. When it would be inequitable for the State to invoke immunity; 4. In eminent domain cases. State's Business Contracts A State's commercial activity is a descent to the level of individuals and there is a form of tacit consent to be sued when It enters Into business contracts with others.

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BASIS: Art. XVI, Sec. 3: "The state may not be sued without its consent." This is based on the principle of equality of states - par in parem non habet imperium. Doctrine of State Immunity It refers to a principle by which a state, Its agents, and property are immune from the jurisdiction of another state [MAGALLONA]. Principle of Equality of States This principle is premised on the juridical equality of states, according to which a state may not impose its authority or extend its jurisdictlon to another state without the consent of the latter through a waiver qt immunity. Thus, domestic courts must decline to hear cases against foreign sovereigns out of deference to their role as sovereigns. Kinds of Immunity Absolute sovereign immunity - where a state cannot be sued in a foreign court no matter what the act it is sued for; or Restrictive sovereign immunity - where a state is imrnune from suits involving governmental actions (jure imperil), but not from those arising from commercial or nongovernmental activity (jure gestionis).

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Exception - the State consents to be sued;

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Summary General rule- The State cannot be sued.

However, not every contract entered into ts a form of tacit consent to be sued. It depends upon whether the forsiqn state is engaged in the activity in the regular course of business. If not, or if it is in pursuit of a sovereign activity, it falls within the exemption of acts jure imperii especially when not intended for gain or profit. A party who feels transqressed by anyone claiming immunity may ask his own government to espouse his cause through diplomatic channels. Extent of Immunity Immunity from jurisdiction is enjoyed by both the head of , State and by the State itself. The State's diplomatic agents, including consuls to a certain extent, are also exempt from the jurisdiction of local courts and administrative tribunals. Restrictive Application of State Immunity This traditional rule of State immunity which exempts a State from being sued in the courts of another State without the farmer's consent or waiver has evolved into a restrictive doctrine which distinguishes sovereign and governmental acts (Jure imperil) from private, commercial and proprietary acts (Jure gestionis). Under the restrlctive rule of State immunity, State immunity extends only to acts jure lmperii. The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial

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activities or economic affairs (Arigo v. Swift, G.R. No. .206510, 2014). b. Scope of State Immunity Jure lmperii- Immunity is granted only with respect to their governmental acts Jure Gestionis - Immunity is not granted with respect to their commercial acts

c.

Difference between Jure Gestionis and Jure Imperil JURE GESTIONIS

JURE IMPERii

By right of economic or By right of sovereign power, business relation in the exercise of sovereign functions Maybe sued

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May not be sued

Two Conflicting Concepts of Sovereign Immunity: i. Classical or absolute theory - sovereign cannot, witho;Jt Its consent, be made a respondent in the courts of another sovereign. ii. Newer or restrictive theory - the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state but not with regard to · . private acts or acts jure gestionis. A certification executed by the Economic Commercial Office of the Embassy of the People's Republic of China stating that a project is in pursuit of a sovereign activity is not the kind of certification that can establish entitlement to immunity from suit. It unequivocally refers to the determination of the Foreign Office of the state where it is used (China National Machinery Equipmer.t v. · Santa Maria, G.R. No. 18557, 2012). When Suit Is Considered Against the State: (NUO) The Republic is sued by Name Suits against an Ynlnco,porated government agency Suit is against a government Qfficial, but is such that ultimate liability shall devolve on the government It produces adverse consequences to the public treasury in terms of disbursement of public funds and loss of government property. It cannot prosper unless the Staie has given its consent. When not against the state It was held that the suit is not against the State: a. When the purpose of the suit is to compel an officer charged with the duty of making payments pursuant to an appropriation made by Jaw in favor of the plaintiff to make such payment, since the suit is intended to

compel performance of a ministerial duty. [Begoso v. PVA (1970)] When from the allegations in the complaint, it is clear that the respondent Is a public officer sued in a private capacity; When the action is not in personam with the government as the named defendant, but an action in rem that does not name the government in particular.

Test to determine if suit is against the State Will the enforcement thereof (decision rendered against the public officer or agency impleaded) require an affirmative act from the State, such as the appropriation of the needed amount to satisfy the judgment? If so , then it is a suit agalnst the State. (Sanders v. Verdiano, 162

SCRA 88) Duration of Immunity of Head of Stats Immunity oi head of state for private acts lasts while a person is still in office; for public acts, e~en after office. Consent to be sued is given by the state either EXPRESSLY or IMPLIEDLY. EXPRESS The law expressly grants the authority to sue the State or any of its clgencies. a. General Law : Authorizes any person who meets the conditions stated in the law to sue the government in accordance with the procedure in the law (i.e. Money claims arising from contract express or implied ; liaolllty of local government units for torts) . b. Special Law: may come in the form of a private bill authorizing a named individual to bring suit on a special claim. IMPLIED (P BIP) Summary of Instances: a. When the State commences litigation, it becomes vulnerable to counterclaim b. When the State enters into a business contract (in jure gestionis or proprietary functions) c. When it would be inequitable for the State to invoke its immunity d. In instances when the State takes private property for public use or purpose (=minent Domain)

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Specific Rules a. When State Commences Litigation • Exception: When the State intervenes not for the purpcse of asking for any affirmative relief, but only for the purpose of resisting the claim precisely

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because of immunity from suit (Lim v Brownell, GR No. L-8587, March 24, 1960)

Suits against Government Agencies a. Incorporated: If the charter provides that the agency can sue and be sued, then suit will lie, including one for tort. The provision In the charter constitutes express consent on the party of the State to be sued. (PNB v CIR, 81 SCRA 314) b. Unincorporated: I) Performs governmental functions: Not suitable without State consent event if performing propriety funcrion incidentally. Thus, even in the exercise of proprietary functions lncidental to its primarily governmental functions, an unincorporated agency still cannot be sued without its consent II) Performs proprietary functions: Suable except when the proprietary functions are indispensable in · the discharge of its governmental functions (Mobil PHL Exploration \. Customs Arrastre Service, G,~ No. 23139, December 17, 1966)

b. When State enters a Business Contract • Types of Capacities of the State in entering into contracts: 1. Acta jure gestionis - by right of economic or business relations; commercial or proprietary acts. The State may be sued. (US v, Guinto, GR No 76607, February 26, 1990) 2. Acta jum imperil - by right of sovereign power and in the exercise of sovereign functions; there is no implied consent to be sued. (US v Ruiz, GR No. 35645, May 22, 1985) c. When Stale executes and enters private contracts • General Rule: The State may be sued if a private contract is entered into by the proper officer and within the scope of his authority.

Case Law Exceptions when State/Public Officer May be sued without prior consent a. To compel him to do an act required by law; c. To restrain him from enforcing an act claimed to be unconstitutiona I; d. To compel the payment of damages from an ~lready · appropriated assurance fund or to refund tax overpayments from a fund already available for the purpose; e. To secure a judgment that the officer impleaded may satisfy by himself without the State having to do a positive act to assist him; f. Where the government itself has violated its own laws. [Sanders v. Veridiano II, G.R. No. L-46930 (1988)]

• Exception: When the private contract Is incidental to the performance of a govern'!lent function. Suits against Public Officers General Rule: The doctrine of state immunity also applies to complaints filed against officials of the State for acts performed by them in the discharge of their duties within the scope of their authority.

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Exception: The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his (1) private and personal capacity as an ordinary citizen, for (2) acts without authority or in excess of the powers vested in him. [Lansang vs CA (2000)]

Rules regarding Garnishment of Government Funds General Rule: Garnishment of government funds is not allowed. Whether the money is deposited by way of general or special deposit, they remain government funds and are not subject to garnishment.

Rule on Liability of Public Officers a. Acting beyond scope of Authority: When a public officer acts in bad faith, or beyond the scope of his authority, he can be held personally liable for damages. b. Acting in Good Faith: If a public officer acted pursuant to his offlclal duties, without malice, negligence, or bad faith, he is not personally liable, and the suit is really one against the State . c. Ultra Vires Act: Where a public officer has committed an ultra vires act, or where there is a showing of bad faith, malice, or gross negligence, the officer can be held personally accountable even if such acts are claimed to have been performed in connection with official duties (Wylie v. Rarang, G.R. No. 74135, 1992).

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Exceptions: i. Where a law or ordinance has been enacted appropriating a specific amount to pay a valid government obligation, then the money can be garnished. ii. If the funds belong to a public corporation or a GOCC which is clothed with a personality of its own, then the funds are not exempt from garnlshment(NHA v. Guivelando G.R. No. 154411, 2003).

To enforce monetary decisions against the Government, a person may file a claim with the Commission on Audit It ls Page 11 of 320

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settled jurisprudence that upon determination of State liability, the prosecution, enforcement, or satisfaction thereof must still be pursued In accordance with the rules , and procedures laid down in P.O. No. 1445 (Govemmer.t Auditing Code of the Philippines). All money claims aqainst the Government must first be filed with the Commission on Audit, which must act upon it within 60 days. Rejection of the claim will authorize the claimant to elevate the matter to the Supreme Court on certiorari and in effect, sue the State thereby (Department of Agriculture v. NLRC; P.D. 1445, Sections 49-50).

Consent to be sued is not equivalent to consent to liability •

•

The fact that the State consented to being sued does not mean that the State will ultimately be held liable. (US v. Guinto) Even if the case is decided against the State, an award cannot be satisfied by writs of execution or garnishment against public funds. No money shall be paid out of the public treasury unless pursuant to an appropriation made by law.

Payment of Interest By The Government In Money Judgment Against It General Rule: Government cannot be made to pay interests. Exceptions (EEG): 1. gminent domain 2. ~rroneous collection of tax 3. !i,overnment agrees to pay interest pursuant to law

This immunity is for the benefit of the state. Thus, only the state may waive it. Nothing in the complaint would require a court to pass judgment on any official act of the Philippine government. Just as raising the specter of political issues cannot sustain dismissal under the political question doctrine, neither does a general invocation of international law or foreign . relations mean that an act of state an essential element of a 'claim. It cannot be thought that every case touching foreign relations lies beyond judicial cognizance (Provincial Government of Marinduque v. Placer Dome,

is

lnc., G.R. No. 07M1630, 2009). The commission of a crime by a state official, which is an international crime against humanity and jus cogens, is NOT an act done in an official capacity on behalf of the state. As a matter of general customary international law, a head of state will PERSONALLY be liable to account if there is sufficient evidence that he authorized or perpetrated serious international crimes. Individuals who commit international crimes are internationally accountable for them. General Rule: Any person who, in performing an act of the state, commits a criminal offense is immune from prosecution. This applies not only to ex-heads of state and ex-ambassadors but to all state officials who have been involved in carrying out the functions of the state (Immunity Ratione Materiae/Functional lrnmuntty > "Immunity of the official").

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Immunity from Jurisdiction General rule: The jurisdiction of a state within its territory is complete and absolute. Exceptions: 1. Sovereign immunity 2. Diplomatic immunity 3. Hostis Humanis Generis - enemy of all mankind or crimes justiciable by any state anywhere. i.e. Slave Trader, Pirate (Filaitiga v, Pena-Ira/a, 630 F.2d 876,

1980). Acts of State Immunity Every state is bound to respect the Independence of every other sovereign state. and the courts of one country will not sit in judqrnent on the acts of the government of another, done wlthin its. own territory. Redress of grievances by reason of such acts must be obtained through the means open to he availed of by sovereign powers as between themselves.

Exception: Functional immunity of state officials of the foreign state could no longer be invoked In cases of international crimes (Regina v. Bartle and the Commissioner of Police, "Pinochet Casej. Exception to the Exception: When the case is brought against the State itself for liability to damages (i.e. civil proceedings against a State), the rationale for the judgment in the Pinochet case has no bearing.

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Note: A state is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict. The court distinguished between immunity and substantive jus cogens rules of International law and held that a finding of immunity does not equal a finding that a state did not owe reparations (Jurisdictional Immunities of the State: Germany v. Italy, 2012).

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II. LEGISLATIVE DEPARTMENT

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TOPIC OUTLINE UNDER THE SYLLABUS

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A. Legislative Power 1. Scope and limitation · 2. Principle of Non-delegability; exceptions 8. House of Congress; composition and qualification of members 1. Senate 2. House of Representatives a. District representatives and questions of apportionment b. Party-list system c. Privileges, Inhibitions, and Disqualifications · 0. Discipline of Members E. Process of Law-making F. Quorum and Voting Majorities G. Appropriation and Re-alignment H. Legislative inquiries and Oversight functions I. Power of Impeachment J. Electoral Tribunals K. Commission on Appointments L. Initiative and Referendum

A. LEGISLATIVE POWER

1. SCOP~ AND LIMITATION

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Classification of Powers 1. Legislative a. General plenary power · b. Specific power of appropriation (will be discussed in subsection (G)) c. Taxation and expropriation d. Legislative investigations (will be discussed in subsection (H)) e. Question Hour 2. Non-Legislative · a. Canvass presidential elections b. Declare the existence of a state of war c. Delegetiori of emergency powers d. Call special election for President and Vice President e. Give concurrence to treaties and amnesties f. Propose constitutional amendments g. Confirm certain appointments (will be discussed in subsection (K))

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Note: No law shall be passed establlshing a state religion.

Impeach (will be discussed in subsection (1)) Decide the disability of the President In cases where majority of the Cabinet dispute his assertion that he is able to discharge his duties j. ' Revoke or extend proclamation o1 suspension of privilege of writ of habeas corpus or declaration of martial law k. Power with regard to utilization of natural resources h. i.

LEGISLATIVE General plenary power Nature of Legislative Power Legislative power is the authority to make, alter and repeal laws. It is vested by the Constitution in the Congress, except to the extent reserved to the people by the provisions on Initiative and referendum. (CONST. Art. VI, Sec.1) Congress Legislative power is vested in Congress which consists of the Senate and the House of Representatives. General Rule: Conqress cannot delegate its legislative power under the principle of non-delegation (delegata potestas non potest de/egari or delegated power may not be delegated). · Exceptions: (PLATE) To the extent reserved to the feople by the provision on initiative and referendum. Delegation to ,bocal government Delegc1tion of rule-making 'power to 6dministrative bodies Congress may delegate !ariff powers tc the President ~mergency powers delegated by Congress to the President Classification of Legislative Power (COrODe): 1. ~onstituent - The power to propose amendments to the Constitution. 2. Q!:dinary - The power to pass ordinary laws 3. Qriginal - Possessed by the people In their :.overeign capacity, exercised via initiative and referendum. 4. Delegated - Possessed by Congress and other legislative bodies by virtue of the Constitution Limits Substantive - limitations on the content of laws." Procedural - limitations on the manner of passing laws.s Conqress cannot pass irrepealable laws.

5 rfote: Generally, a bill must go throlJl:lh three readings on three separate days. Page 13 of 320

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Local Legislative Local legislative bodies are allowed by our Constitution to legislate on purely public matters. Since what was given to local legislative bodies are not power to make rules and regulations but legislative power, the rules on valid delegation do not apply. However, when what is given to local legislative body is executive power, the rules applicable to the empowerment of administrative agencies also becomes applicable (Rubi v. Provincial Board, G.R. No. L-14078. 1901). Requisites of A Valid Ordinance: (Must NOT CUPPU, Must be GC) Must not fontravene the Constitution or any statute Must not be .!.!.nfair or oppressive Must not be fartial or discriminatory Must not f rohlbit, but may regulate trade Must not be ,Ynreasonable Must be !zeneral and ~onsistenl with public policy (Magtajas v. Pryce Properties. G.R. No. 111097, 1994). I

People's Initiative on Statutes Initiative The power of the people to propose amendments to the Constitution or to propose and enact legislation called for the purpose (RA 6735, Sec. 3(a)). Three Types Of Initiative (CSL) 1. Initiative on the ~onstitution - A petition proposing amendments to the Constitution. 2. Initiative on §tatutes - A petition proposing to enact a national legislation. 3. Initiative on Local ~,egislation - A petition proposing to enact a regional, provincial, city, municlpal, or barnngay law. resolution or ordinance (RA 6735, Sec. 3(a)). Local Initiative Not less than 2,000 registered voters in case of autonomous regions, 1,000 in case of provinces and cities; 100 in case of municipalities, and 50 in case of barangays: may file a petition with the Regional Assembly or local legislative body, respectively, pre.posing the adoption, enactment, repeal or amendment of any law, ordinance or resolution. (RA No 6735, Sec.13)

Those against such action may apply for initiative. (RA · 6735, Sec. 15). · Limitation on Local Legislative Body vis-a-vis Local Initiative . Any proposition or ordinance approved through an initiative and referendum shall not be repealed, modified or amended by the Scinggunian within 6 months from its date of approval, and may be amended, modified, repealed within 3 years thereafter by a vote of 3/4 of nll its members. In case of baranqays, the period shall be 18 months after approval.(LGC, S1:1c.125) Indirect Initiative Exercise of initiative by the people through proposition sent to the Congress or the local legislative body for action· (RA 6735, Sec.3, Par(b)) · ·

a

Referendum . refers to the power of the electorate to approve or reject legislation through an election called for the purpose (RA 6735, Sec. 3(c)). Required Petition 1. Petition should be registered with the Commission on Elections (RA 6735) 2. Should be signed by at least 10% of the total number of registered voters 3. Every legislative district must be represented by at feast 3% of the registered voters thereof The petition lo be signed b~ the people should contain a definite proposal of the amendment of the Constitution; not merely a ge'leral question whether they approve of the amendment or not (Lambino v. COMELEC, G.R. No. 174153, 200(>). Two Classes Of Referendum (RA 6735, Sec. 3(c)) Referendum on statutes - petition to approve or reject an act or law, or part thereof, passed by Congress R'3ferendum on local laws ~ legal processes whereby the registered voters of the focal government units may approve, amend or reject any ordinance enacted by the Sanggunian (LGC. Sec 126). Matters Which May Not Be the Subject of Initiative or Referendum (RA 6735, Sec. 10) A petition embracing more than one subject. Statutes Involving emergency measures.

Limitations on the Power of Local Initiative Should not be exercised more than once a year; Extended only to subjects or matters which are within the legal powers of local legislative bodies to enact; , If the local legislative body adopts the proposition in toto before the initiative is held, the initiative shall be cancelled. Page 14 of 320

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Initiative v, Referendum INITIATIVE REFERENDUM The power of the people to The right reserved to the propose bills and laws, and people to adopt or reject to enact or reject them at any act or measure which the polls independent of has been passed by a the legislative assembly. legislative body and which in most cases would, without action on the part of electors, become a la The President under a Martial Law Rule or in a Revolutionary Government During the period from 1972 to 1987, the laws of the Philippines did recognize the legislative power lodged in the presidency. Today, the 1987 Constitution has not disturbed this fact and. still recognizes the legitimate exercise of legislative power by then President Ferdinand Marcos (Bernas, 1987 Philippine Constitution: A Commentary, 681, 2009). a. Martial Law Powers and Article XVII of the 1973 Constitution Shortly after martial law and the birth of the 1973 Constitution the legislative power in the President, as flowing from his martial law powers and Article XVII, Section 3(2) of the 1'973 Constitution, was rncognized as extraordinary legislative power given to the President to enable him to cope with an extraordinary situation especially at a time when there was no operating legislative body (Aquino, Jr. v, COMELEC, G.R. No. L40004, 1975).

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b. Amendment No. 6 In 1976, Amendment No. 6 clarlfled the legislative power of the President; "Whenever in the Judgment of the President (Prime Minister), there exists a grave emergency or threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders or letters of Instruction, which shall form part of the law of the land." · The legislative power given in Amendment no. 6 is also concurrent with that of the regular Batasang Pambansa (Legaspi v. Minis~er of Finance, G.R. No. L-58289, 1982).

Notes: • The 1973 Constitution provided for two concurrent legislative agencies: (1) Batasang Pambansa and (2) President. . • The legislative power of Batasan was ordinary, while the legislative power of the President was extraordinary. Hence, the President in his judgment may undo what the legislature might have done not to his satisfaction (Bemas. 1987 Philippine Constitution: A Commentary, 684, 2009). Revolutionary Government a. Proclamation No. 3 ,l\fter the 1986 revolution, President Corazon Aquino assumed revolutionary legislative power and, on March 25, 1986 issued Proclamation No. 3, the Provisional Freedom Constitution. Article II, Section 1 vested l&gislative power in the President until a legislature is elected and convened under a new Constitution. b. 1987 Constitution Section 6 of the Transitory Provisions of the 1987 Constitution provides that "The incumbent President shall continue to exercise legislative powers until the first Congress is convened." President Corazon Aquino exercised legislative power alone while President Ferdinand Marcos exercised legislative power concurrently first with the interim Batasang Pamabansa and then witn the regular Batasang Pambansa (Bernas, 1987 Philippine Constitution: A Commentary, 685, 2009). President Corazon Aquino lost her legislative power on July 26, 1987 when Congress was convened. · Power to Tax (Sec. 28 (1)) Limitations: (UP PED) - The rule of taxation should be !J.niform. - Congress should evolve a frogressive system of taxation. The VAT law is constitutional since progressive system of taxation is not a judicially enforceable right. (Tolentino v. Secretary of Finance, G.R. 115455, Augus11 25, 1994). The power to tax must be exercised for a f.ublic purpose because the power exists for the general welfare. - It should be gquitable. - The Que process and equal protection clauses of the Constitution should be observed.

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iii. No specific funds shall be appropriated or

Constitutlonal Tax Exemption - The following properties are exempt from real property taxes (Sec. 28(3)): (MAC3) - Mosques - ~II lands, buildings and improvements actually, directly and exclusively used for religious, charitable, or educational purposes. - £haritable institutions. - &hurches, and parsonages or convents appurtenant thereto. - Non-profit £emeterit,s.

paid for use or benefit of ar.y religion, sect, etc., except for priests, etc. assigned to AFP, penal Institutions, etc. 3. On Taxation i. No law granting any tax exemption shall be passed without · the concurrence of a majority of all the Members of the Congress ii. All money collected on any tax levied for a special purpose shall be treated as a special fund and poid out for such purpose only iii. All revenues and assets ':>f non-stock, nonprofit educational institutions used actually, directly and exclusively for educational purposes shall be exempt from taxes and duties 4. On Constitutional appellate jurisdiction of Supreme Court i. No law shall be passed increasing the appellate jurisdiction of the supreme Court as provided in the Constitution without its advice and concurrence ii. No law granting title of royalty or nobility shall be passed

Other Exemptions Under Article XIV: Ali revenues and assets of non-stock non-profit educational institutions are exempt from taxes and duties provided that such revenues and assets are actually, directly and exclusively used for educational purposes (Sec. 4 (3)). Grants, endowments, donations or contributions used actually, directly and exclusively for educational purposes shall be exempt from tax, subject to conditions prescribed by law (Sec. 4 (4)). Power t.o Fix Rates (Sec. 28 (2)) Delegation of Power to Fix Rates - Congress may, by law, authorize the President to fix the following: (TITO) Iariff rates Import and export quotas Ionnage and wharfage dues Qther duties and imposts within the framework of the national development program

b. Implied Limitations 1. Prohibition against irrepealable laws; and 2. Non-delegatio;, of powers (NACHURA) c. Jurisprudence

Summary of Limitations a. Substantive a. Express Limitations 1. Bill of Rights I. No law shall be passed abridging freedom of speech, of expression, etc. ii. No law shall be made respecting an , establishment of religion or prohibiting the free exercise thereof; iii. No law impairing the obligation of contracts shall be passed; iv. No ex post facto law or bill of attainder shall be enacted 2. On Appropriation i. The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies; ii. Prohibition against use of public money or property for religious purpose;

• Power of Congress to provide Holdover: Congress cannot provide for th~ holdover of elective officers if the same would go beyond their terms fixed by the Constitution (Datu Abas Kida v. Senate, GR No 196271, October 18, 2011) ·

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• Powor of Congre,ss to create new Term and appoint Occupant of Position: Congress cannot create a new term and effectively appoint the occupant of the position for the new term (Id.) • Power to gr.mt franchise for Public Utilities: Congress cannot grant legisla~ive franchises for the operation of publlc utilities which shall be exclusive in character and which shall not · be subject to amendment, alteration or repeal when common good so requires. {Tawang Mufti purpose Coop. v. La Trinidad Water District, GR No 166471, March 22, 2011)

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b. Procedural 1. There must only be one subject to be stated in the title of thf3 bill to prevent hodgepodge or log-rolling legislation. 2. 3 readings on separate days, printed copies of the bill in its final form distributed to members 3 days before its passage, except i~ president certifies to its immediate enactment to meet a public calamity or emergency; upon its tast reading, no amendment allowed and the vote thereon taken immediately and the yeas and nays entered into the Journal 3. Appropriation, revenue, tariff, and bills authorizing the increase of public debts, bills of local application and private bills shall originate exclusively in the House of Representatives NON-LEGISI..ATIVE Informing function The power of Congress, when It investigates, is not limited to oversight or in aid of legislation. Equally important and a fundamental power and duty of Conqress Is its Informing function by way of investigating for the purpose of enlightening the electorate. "The informing function of Congress should be preferred even to its legislative function [for] the only really self-governing people is that people which discusses and interrogates its administration" (Akbayan v. Aquino, G.R. 170516, 2008; J. Azcuna, Separate-Dissenting opinion citing Schlesinger, 10, 76-77 quoting Wilson, Congressiona: Government, 278, 279, 29S, 301, 303).G

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Other non-legislative powers To act as national board of canvassers for President and Vice President (PHIL. CONST. art. VII, § 4). To decide whether the President is temporarily disabled in the event he reassumes his office after the Cabinet, by a majority of vote of its members, declares that he is unable to discharge the powers and duties of his office (PHIL. CONST. art. VII, § 11). To concur in the grant of amnesty by the President (PHIL. CONST. art. VII, § 19). To act as a constituent assembly for the revision or amendment of the Constitution (PHIL. CONST. art. XVII, §1 and §2). To call special election for President and Vice-President (PHIL CONST. art. VII, §10). Delegation of emergency powers (PHIL. CONST. art. VI, §23(2)).

Declare the existence of state of war (PHIL. CONST. art. VI, §23(1)). Confirm certain appointments (PHIL. CONST. art. VII, §16). Revoke or extend proclamation of suspension of privilege of writ of habeas corpus or declaration of martial law (PHIL. CONST. art. VII, §18). Power with regard lo utilization of natural resources (PHIL. CONST. art. XII, §2). To initiate (HOR) and, to try all cases of impeachment {Senate),(PH/L CONST. art. XI,§ 2-3.) 2. PRINCIPLE OF NON-DELEGABILJTY; EXCEPTIONS General Rule: Legislative power is vested in Congress which consists of the Senate and the House of Representatives by the sovereign Filipino people. Congress cannot delegate its legislative power under the maxim defegata potestas non potest delegari (delegated power may not be delegated). Exceptions: (PLAP) Delegation to the feople ·- To the extent reserved to the people by the provision on initiative and referendum. :, Delegation to ,bocal government units- local legislative bodies are allowed by our Constitution to legislate on purely public matters. Since what was given to local legisiative bodies are not power to make rules and regulations but legislative power, the rules on valid delegation do not apply. However, when what is given to local legislative body is executive power, the rules applicable to the empowerment of administrative agencies also become applicable (Rubi v. ProvincialBoard, G.R. No. L-14078, 1901). The BPO issued by the Punong Barangay is not an undue delegation of legislative power for it merely orders the perpetrator to desist from (a) causing physical harm to the woman or her child; and (2) threatening to cause the woman or her child physical harm. Such function of the Punong Barangay is purely executive in nature, in pursuance of his duty under the LGC to "enforce all laws and ordinances,• and to "maintain public order in the barangay." (Garcia v. Drilon, 2013) Delegation of rule-making power to Administrative Bodies - power to issue supplementing rules and regulations provided that the delegation must be complete

6 Note: The dissent is contrary to the majority opinion. '

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and must prescribe sufficient standards. It also includes the determination of the presence of the conditions for the law to take effect. • Rationale: o Increasing complexity of the task of government o lack of technical competence on the part of Congress to provide for specific details of implementation o Administrative agencies may fill up details of the statute for implementation o legislature may pass "contingent legislation "which leaves to another body the business of ascertaining facts necessary to bring the law into action (ABAKADA v. Ermita, G.R. No. 168056, 2005). •

•

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If there was a valid delegation, administrative rules and · regulations are just binding as if it was written in the law. Admlnlstratlve agencies may not issue regulations that contravene the law (Solicitor General v. Metro Manila Authority, G.R. No. 102782, 1991) nor may they add to the standards set by law (Tatad v. Secretary of Energy, G.R. No. 124360, 1997). Administrative rules and regulations may be penal in nature provided that: o such a violation is made a crime by the delegating -, law: o penalty of such is provided in the statutes o the regutation is published. Powers of Congress which are not to be delegated are those that are strictly or inherently legislative. Purely legislative power is the authority to make a complete law - complete as to the time it shall take effect or to whom it shall be applicable and to determine the expediency of the enactment

Delegation to the eresident • Congress may delegate tariff powers to the President o Section 28(2) authorizes Congress to delegate the power to fix tariff rates, import and export quotas, tonnage, wharfage dues, and other duties and impost. • Emergency powers delegated by Congress to the President. Art. VI, Sec. 23(2) authorizes Congress to give the President the power necessary and proper to carry out a declared national policy in times of war or other national emerqency pursuant to law.

Test of Valid Delegation 1. Completeness Test - The law must state the policy that must be carried out or implemented and leave no room for the delegate to legislate; nor allow discretion on their part to say what the law is; there must be nothing left for' the delegate to do but to enforce the law.

2. Sufficiency of Standard - The limits are sufficiently determinate and determinable to which the delegate must conform in the performance of his actions. Examples: Public interest (People v. Rosenthal, G.R. Nos. L-46076 and L-46077, 1939). Fair and equitable employment practices (Eastern Shipping Lines v. POEA, supra) justice and equity public convenience and welfare simplicity, economy, and efficiency. Note: Standards may be expressed or implied from the law taken as a whole (Edu v. Ericta, G.R. No. L-32096, 1970). They can even be gathered in other statute of the same subject matter (Chongbian v. Orbos, G.R. No. 96754, 1995). A law allowing a judge to inflict punishment of imprisonment in its discretion without any designated limits is invalid (People v. vacuycoy, G.R. No. L-45127, 1989). Section 8 of PQ 910 regarding the Malampaya funds provides: "all fees, revenues and receipt. .. under the Petroleum Act of 1949; as well as the government share ... shall form part of a special fund to be used to finance energy resource development and exploitation programs and projects of the government and for such other purposes as may be hereafter provided by the President." This ls not a valid delegation of legislative power. The provision constitutes an undue delegation of legislative power insofar as it does not lay down a :;ufftcient standard to adequately determine the limits of the President's authority (Belgica v. Ochoa, G.R. No. 208566, 2013). Co.ngrcss can only delegate, usually to administrative agencies, rule-making power or law execution. This involves either of two tasks for the administrative agencies: Subordinate legislation: Filling up the details of an otherwise complete statute; or Contingent Legislation: Ascertaining the fact necessary to bring a "contingent" law or provision into actual operation.

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House of Representatives Composition: Not more than 250 members, unless otherwise fixed by law, consisting of: a. District Representatives: elected from legislative districts apportioned among the provinces, cities and the Metropolitan Manila area b. Party-list Representatives: shall constitute 20% of the total number of the members of the House of Representatives lncluc.ing those under the party-list. (RA No. 7941)

Any post-enactment congressional measure should be limited to scrutiny and investigation. In particular, congressional oversight must be confined to the following: (SAHM) .§.crutiny based primarily on Congress' power of appropriation and the budget hearings conducted in connection with it Its power to ask heads. of departments to Appear before and be !::!eard by either of its Houses on any matter pertaining to their departments and its power of confirmation and investlqatlon Monitoring of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. Legislative vetoes fall in this class (Abakada Guro Party List v. Purisima, G.R. No. 166715, 2008).

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Reorganization "involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions." The general rule has always been that the power to abolish a public office is lodged with the legislature. The exception, however, is that as far as bureaus, agencies or offices in the executive department are concerned, tile President's power of control may justify him to inactivate the functions of a particular office, or certain laws may grant him the broad authority to carry out reorganization measures (Malaria Employees v. Romulo, G.R. 160093, 2097). ·

Tenn of Office 3 years, commencing at noon on the 30th day of June next following their election Term Limit . No member of HOR shall serve for more than 3 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. List of Qualifications for both Senators and Members of the House The qualifications of both Senators and Members of the House are LIMITED to those provided by the Constitution. Congress cannot, by law, add or subtract from these qualifications (PHIL. CONST. en. VI, § 3&6) (Pimentel v. COMELEC, G.R. No. 161658, 2008).

B. HOUSES OF CONGRESS (ART. VI}

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Senate Composition: 24 who are elected at large by the qualified voters of the Philippines. (CONST. Art. VI, Sec.2)

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Term of Office 6 years commencing at noon on the 30th day of June following their election (CONST., Art. \II, Sec.4) Term Limit No Senator shall serve for more than 2 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 (CONST. Art VI, Sec.4) .

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Qualifications for Senate and House of Representatives: SENATOR REPRESENTA 1 IVE Natural-born citizen of the Philippines Able to read and write At least 35 years old on At least 25 years old on the DAY OF THE the DAY OF THE ELECTION ELECTION Registered voter Registered voter in the district in which he shall be elected (except party-list representatives) Resident of the Philippines Resident of the said for at least 2 years district for at least 1 year immediately preceding the immediately preceding election election (except party-list representative) Term of 6 years Term of 3 years Commencing at noon on Commencing at noon on June 30, June 30, next following next tollowing their their election election .

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Term limit: no more than 2 consecutive terrns

Term limit: no more than 3 consecutive terms

The standards used to determine the apportionment of legislative districts is meant to prevent 'gerrymandering.'

of

Gerrymandering the formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party

District Representative {Sec. 5) Elected from legislative districts that are apportioned in accordance with the number of inhabitants in each area and on the basis of a uniform and progressive ratio.

(Navarrov. E>cecutiveSecretary, G.R. No. 180050; 2010).

(a) District re;,resentatlves apportionment

and

questions

Qualifications (1) Natural born citizen 6. At least 25 years of age on the day of the election 7. Able to read and write , 8. Registered voler in the district in which he shall be elected 9. A resident of the Philippines for a period of not less than 1 year immediately preceding the day of the election; Creation of Legislative Districts Only Congress can create provinces and cities because the creation of provinces and cities necessarily includes lhe creation of leqlslative dislricts, a power only Congress can exercise under Section 5, Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. The ARMM Regional Assembly cannot create a province without a legislative district because the Constitution mandates that every province shall have a legislative district (Sama v. COMELEC, G.R. No. 177597,

2008). A law converting the municipality of Mandaluyong into a highly urbanized city resulting to conversion of city into congressional district was held to be valid (Tobias v.

Abalos, G.R. No. L-114783, 1994). When a municipality is converted into a city large enough to entitle it to one district, the incidental effect is splitting the district into two. This does not need a consensus. There is no need for plebiscite under Art. X of the Constitution when one district is split into two, because you are not creating new juridical personalities or dividing the territory per se. There is only ,, need for plebiscite if you are creating a new Loc31 Government Unit. The COMELEC cannot correct the imbalance resulting from the increase of districts by transferring districts. The COMELEC must wait for a legislative enactment. Apportionment (Sec. 5 (1, 3-4))

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NOTE: . A province is entitled to at least one representative, with nothing mentioned about population; a city must first meet a population minimum of 250,000 in order to be similarly entitled. Plainly read, Section 5(3) of the Constitution requires a 250,000 minimum population only for a city to be entitled to a representative, but not so for a province

( Senator Aquino II/ and Mayor Robredo v. Commission on E:lections, G.R. No. 1,'39793, 2010) To be entitled to an additional district, a city does not have to increase its population by another 250,000. While Sec. . 5(3), Art. VI requires a city to have a minimum population of 250,000 to be enliUed to a representative, it does not have to increase its population by another 250,000 to be entitled to an additional district. Rules of apportionment of legislative districts c. Under the Constitution 1. Legis~tive districts shall be made in accordance with the number of respective inhabitants on the basis of a unitorrn and progressive ratio 2. Each district shall comprise, as far as practicable, Contiguous, Compact and Adjacent territory. (CCA} 3. Each city with at least 250,000 inhabitants will be · entitled to at least one representative while each province will have at least one re;:,resentative. 4. Each province, irrespective of the number of inhabitants, is entitled to at least i representative 5. Legislative districts shall be re-apportioned by Congress within 3 years after the return of each census. d. Jurisprudence • 250,000 · minimum population requirement for Provinces: There is no specific provision in the Constitution that fixes a 250,000 minimum population that must compose of every legislative district. What the Constitution provides is a 260,000 minimum population only for a city to be entitled to a representative, but not so for a province. (Aquino v.

COME:LEC, GR No. 189793, April,, 2010)

• 250,000 only to create an initial legislative district: The requirement for cities applies only to its Page 20 of 320

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initial legislativ& district. The Constitution does not require a city to increase its population by another 250,000 to be entitled to an additional district (/d.) • Necessity of Confirmation by Plebiscite: The creation of legislative districts does not need confirmation by plebiscite if it does not involve the creation of a local government unit. (Bagabuyo v. COMELEC, GR No. 176970, December 8, 2008) Difference of Re3pportionment In Sec. 5(10), Art. VI and the Creation of LGU In Sec. 10, Art. X. In the former, the purpose is to ensure better access to one's district representative in Congress. No political or corporate unit is created. Thus, there Is no need for a plebiscite in the creation, dissolution, or any other similar action on a legislative district. · In the latter, political and corporate units are created or altered. These possess legal personality and are considered "instrumentalities of the State in carrying out the functions of government". They exercise special functions for the sole benefit of constituents. Thus, the need for a plebiscite to expressly secure the consent of the people affected by the creation, division, merger, abolition or alteration of boundaries of local government units through a plebiscite (Bagabuyo v. COMELEC, G.R. No. 176970, 2008). . Party-list system

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Party-List Representatives (Sec. 5 (2)) Constitute 20% of the total number of representatives (the total includes the party-list representatives). The maximum number of House of Representative members is set at 250, which means a maximum of 50 part-list members are allowed. But this· number can be increased through a passage of a law (Banat v. COMELEC, G.R. Nos. 179271 & 179295, 2009}. However, for 3 consecutive terms after the ratification of the 1987 Constitution (1987-1992, 1992-1995 and 19951998} from February 2, 1987 until 1998, one half of the seats allocated to party-list representatives shall be filled as provided by law, by selection or election from the labor, peasant, urban poor, ·indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector (PHIL. CONST. art. VI, § 5(2)}. J

Under Art. XVIII, Sec. 7, until a !aw is passed, the President may fill by appointment from a :ist of· nominees by the

respective sectors the seats reserved representation.

for sectoral

RA 7941, the Party-List System Act was approved on March 3, 1995. This law put into place the mechanics for a party-iist system of representation based on election and ended the appointment of sectoral representatives by the President as provided in the Transitory Provisions. For the purposes of the May 1998 elections, the first 5 major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the party-list system. Mechanics (RA 7941, Sec. 8) Registered party-lists, organizations, or coalitions shall submit to the COMELEC a list of not less than five (5) nominees in order of priority. • A person may be nominated in one (1) list only. • Only persons who have given their consent in writing may be named in the list. • Candidates for any elective office in the immediately preceding election shall be disqualified from becoming a nominee. • No change of names or alteration of the order of nominees shall be allowed after the same shall have been submitted to the COMELEC, Exceptions: - When the nominee dies, or - Withdraws in writing his nomination, - Becomes incapacitated in which case the name of the · substitute nominee shall be placed last in the list. Incumbent sectoral representatives in the House of Representatives who are nominated In the party-list system shall not be considered resigned. The parties, organizations, and coalitions shall be ranked . from the highest to the lowest based on the number of votes garnered during elections. (Sec. 11, R.A. 7941). Parameters In Party-List Elections 20% of the total number of the membership of the House of Representatives Is the maximum number of seats available to party-list organizations, such that there is automatically . o~e party-list seat for every four existing legislative districts. Garnering 2% of the total votes cast in the party-list ·, elections guarantees a party-list organization one seat. The gu~ranteed seats shall be distributed in a first round

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of seat allocatio11~rties receiving at least two ps-cent of the total party-list votes. The additional seats. i.e. the remaining seats after -, allocation of the guaranteed seats, shall be distributed to the party-list organizations including those that received less than 2% of the total votes. The additional seats shall be distributed to the parties in a second round of seat allocation according to the two-step procedure laid down in the BANAT Decision of 21 April 2009 as clarified in this Resolution. The continued operation of the 2% threshold as it applies to the allocation of the additional seats is now unconstitutional because this threshold mathematically and physically prevents the filling up of the available partylist seats. The three-seat cap is constitutional. The three-seat cap is intended by the Legislature to prevent any party from dominating the party-list system. There is no violation of the Constitution because the 1987 Constitution does not require absolute proportionality for the party-list system. The well-settled rule is that courts will not question the wisdom of the Legislature as long as it Is not violative of the Constitution (Banal v. COMELEC, G. R. No. 119271, 2009). Seat Allocation for the Party-list Representatives Rank all party-lists according to votes received; Determine the 2% qualifiers (divide votes received by party-list by total vote) Determine the additional seats. Deduct the number of guaranteed seats (2% qualifiers} from the maximum allowed seats, ex. e.g. Assume there are 17 with guaranteed seats (2% qualifiers) then 55 is the maximum allowed seats (220 :1 20%) so, 55 - 17 38 seats left; Divide the number of votes received by all parties (qualifiers ar.d non-qualifiers) by the total number of votes cast, as in #2) and multiply the available seats (e.g., 38 seats) Distribute the additional seats (rounded down) In accordance to the ranking. Take note of the three seat cap. (BANAT v. COMELEC, G.R. No. 179271, 2009)

=

A bona fide member of the party or organization he seeks to represent for at least 90 days before the day of the election. A nominee who changes his sectoral affiliation within the same party will only be eligible for nomination under the new sectoral affiliation if the change has been effected at least six months before the elections (Amores v. HRET, G.R. No. 189600, 2010). . Guidelines For The Election df Party List Representatives Three different groups may participate in the party-list system: national parties or organizations, · regional parties or organizations, and sectoral parties or organization (Atong Paglaum v. COMELEC, G.R. No. 203766, 2013). · • Principle of Social Justice: The inspiration of the system is social justice understood in both the economic and political sense. • Participation not Limited to Sectoral Groups: Participation in the system is not limited to the sectors enumerated by the Constitution or law. • Groups must comply with Constitution and other applicable laws: The enumeration of marginalized and under-represented sectors is not exclusive. The crucial element is not whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of the Constitution and RA 7941. Moral disapproval, without more. is not a sufficient governmental interest to justify exclusion of homosexuals from participation in the party-list system (Ang Lad/ad LG£3T Party v. COMELEC, G.R. No. 190582, 2010). · . · • Concept of Economically Marginalized: The enumerated sectors must be economically marginalized because that is what disables them from successfully engaging in the political struggle. • Rule on N:itlonal and Regional Organizations: The national and regional organizations need not be economically marginalized and do not need to organize along sectoral lines but they must be politically or ideologically disadvantaged or marginalized. • Rule on purely Sectoral Parties: purely sectoral parties or organizations may either be 'marginalized and underrepresented' or lacking in 'well-defined political constituencies'. It is enough that their principal advocacy pertains to the special interest and concerns of their sector.

Qualifications of Party List Representatives (RA 7941, Sec. 9) Natural born citizen of the Philippines; Registered voter; Resident of the Philippines for a period of not less than 1 year immediately preceding the day of the election; At least 25 years of age on the day of the election (youth sector nominee must be at least 25 years but not more than 30 years old on cay of election); Able to read and write; Page 22 of 320

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POLITICAL LAW

(a) Marginalized and Underrepresented sectors: (HI FLOW PUV) 1. Handicapped 2. Indigenous Cultural Communities 3. Fisher Folk 4. Labor 5. Overseas Workers 6. Peasant 7. Urban Poor 8. Veterans (b) Sectors that lack 'well defined political constituencies' (PWEY) 1. Professionals 2. Women 3. Elderly 4. Youth • Rule on Political Party Participation: Political parties can participate in party-list elections provided they register under the party-list system and do not field candidates in legislative district elections. A political party, whether major or not, that fields candidates in legislative district elections can participate in party-list elections only through its sectoral wing that can separately register under the party-list system. The sectoral wing is by itself an independent sectoral party, and is iinked to a political party through a coalition. (Along Paglaum v. COMELEG, G.R. No. 203766, 2013) Its nominees must be able to contribute to the formation and enactment of leqislatlon that will benefit the nation (RA 7941, sec. 2) · • Rule on Nominees and Members a) The rule. 011 nominees and members coming from the sector they intent to represent applies ONLY to the sectoral parties or organizations. It is enough that a majority of the members of the sectoral parties or organization must belong to the marginalized and underrepresented sector they represent. The same is true· for those who lack welldefined political constituencies. i. The nominees of sectoral parties or organizations must either be: 1. belong to their respective sectors; or 2. inust have a track record of advocacy for their respective sectors ii. The nominees of national and regional parties or organizations must be bona fide members of such parties or organizations.

b) National, regional ar,d sectoral parties or organizations si1all not be disqualified If some · of their nominees are disqualified, provided that they have at least one nominee who remains qualified.

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Dlsquallflcatlons: The party or organization must not be disqualified under Sec 6, R.A. 7941: religious sector; advocates of violence or unlawful means of seeking its goal; foreign party or organization; receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes; fails to comply with laws, rules or regulations relating to elections; declares untruthful statements in its petition; ceased to exist for at least 1 year; or 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. Note: The word "or" is a disjunctive term signifying disassociation and independence of one thing from the other things enumerated; it should, as a rule, be construed in the sense in which it ordinarily implies, as a disjunctive word. Thus, the plain, clear and unmistakable language of the law provides for two (2) separate reasons for delisting. (Philippine Guardians Brotherhood Inc. v. COMELEC, G.R.No. 19052~ 2010) The party or organization must not be an adjunct of, or a project organized, or an entity funded, or assisted by the foreign government. Who determine whether a party represents marginalized sector? COMELEC has jurisdiction to determine whether an organization applying for the party list system represents marginalized sector. It cannot be challenged by certiorari because the decision is based on facts and the SC does not try facts (v.C. Cadangen v. COMELEC, G.R. 177179, 2003). Sectoral parties are not required to adduce evidence showing their track record that they have undertaken to further the cause of the sector they represent. It is sufficient that their ideals are geared towards the cause of the sector

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they represent (Abang-Ungkod 206952, 2013).

District v. Party List Represeutatlves

v. COMELEC, G.R. No.

Tenn and Tenure: Is the party list system synonymous with that of the sectoral representation? According to Atorg Paglaum Case, the party-list is not synonymous with that of the sectoral representation. The framers of the 1987 Constitution did not intend to leave out non-sectoral parties in the party-list system and exclusively limit it to sectoral groups. Ways by Which Tenure of Members of Congress May Be Shortened: (FRED) forfeiture of his seat by holding any other office or employment in the government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or subsidlaries (PHIL. CONST. art VI,§ 13); Voluntary Benunciation of office: (PHIL. CONST. ari VII, 1f

TERM The period during which the elected officer is to legally authorized assume his office and the powers exercise thereof Cannot be reduced

TENURE The period during which such officer actually holds his position

DISTRICT REPRESENTATIVE

PARTY-LIST REPRESENTATIVE

May be limited by law

As to Election or Selection Elected according to legislative district by the constituents of such district

2). gxpulslon as a disciplinary action fer disorderly behavior (PHIL CONST. art VI,§ 16, 1f 3). Qisqualification as determined by resolution of the electoral tribunal in an election contest (PHIL. CONST. art VI,§ 17). Vacancy and Special Election In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacar.cy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term.7

Elected nationally, with party-list organizations garnering at least 2% of all the votes cast for the party-list system entitled to 1 seat, which is increased according to proportional representation, but is in no way to exceed 3 seats per orqanization.

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As to Residency Requirement Must be a resident of his legislative district for at least 1 year immediately before the election

No special residency requirement in a leg:slative district

As to manner of candidate's election Special Election (R.A. 6645) Special election will be called if vacancy occurs: At least 18 months before the next regular election for the members of the Senate; At least 1 year before. the next regular election for members of Congress The particular House of Congress where vacancy occurs must pass either a resolution if Congress is in session, or the Senate President or the Speaker must sign a certification, if Congress is not in session, Declaring the existence of vacancy Calling for a special election to be held within 45 to 90 days from the date of the resolution or certir1cation The Senator or representative elected shall serve only for the unexpired term.

Elected personally (i.e. by name of candidate)

Voted upon by party or organization. It is the party who designates who will sit as its representative. .

As to effect of change of affiliation during the term Does not lose seat if he/s~e changed party or affiliation

If she/he changes party or affiliation, loses his seat, in which case he/she will be substituted by another qualified person in the party/organization based on the list submitted to the COMELEC.

As to manner of filling vacancies 7

Note: Filling of a vacancy in Congress falls within the discretion of Congress.

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ATENEO CENTRAL BAR OPERATIONS 2019 In case of vacancy. a special election may be held provided that the vacancy takes place at least 1 year before the next election

POLITICAL LAW In case of vacancy, a substitution will be made within the party, based on the list submitted to the COMELEC

As to effect of losing in the previous election A district representative is not prevented from running again as a district representative if he/she lost during the previous election.

A party-list representative cannot sit if he ran and Jost in the previous election.

As to effect of change :>f affiliation prior to election

A change in affiliation within months prior to election does not prevent a district representative from running under his new party.

A change in affiliation within 6 months prior to election prohibits the partylist representative from sitting as representative under his new party/organization.

Requirements to avail of the prlvil~ge of speech and debate i. . that the remarks must be made while the legislature or the legislative committee is functioning, that is, in session; and ii. that they must be made in · connection with the discharge of official duties Inhibitions (Sec. 12) Members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests. .They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors.

All

Therefore, senators and representatives are not prohibited from introducing bills that have conflicts with their interest, as long as they disclose. Disqualifications (Sec. 13 & 14) DISQUALIFICATION

C. PRIVILEGES, INHIBITIONS AND DISQUALIFICATIONS

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Privileges (Sec. 11) Immunity From Arrest- Legislators are privileged from arrest while Congress is in session only (whether regular or special) with respect to offenses punishable by not more than 6 years of imprisonment. The immunity does not extend to the prosecution of criminal of~enses. Privilege Speech - No member shall be questioned or held liable in any forum other than his/her respective Congressional body for any debate or speech in Congress or in any Committee thereof. Limitations: Protection is only against prosecution in any forum other than Congress itself. Hence, the Senate or the House may discipline their respective members. The 'speech or debate' must be made In performance of their duties as members of Congress. Congress need not be in session when the utterance is made, as long as it forms part of legislative action (e.g. part of the deliberative and communicative process used to participate in legislative proceedings In consideration of proposed legislation or with respect to other matters with Congress· jurisdiction)

Cannot hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including GOCCS or their subsidiaries.

During his term. If he does so, he forfeits his· seat in Congress.

Cannot be appointed During the term for whieh to any office which was he was elected created or the emoluments thereof increased Cannot personally appear as counsel before any court of justice, electoral tribunal, quasi-judicial and administrative body.

During his term of office.

Cannot be financially interested directly or indirectly in any contract'. franchise, or special privilege granted by the Government, or any subdivision, agency or instrumentality thereof, including any GOCC or its subsidiary.

During his term of office.

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Member. A penalty of suspension, when imposed, shall not exceed 60 days. (CONST. Art. VI, Sec.16, Par.(3))

Cannot intervene in any During his term of office matter before any office of the government when it is for his pecuniary benefit or where he may be callod upon to act on account of his office.

The disciplinary· action taken by Congress against a member is not subject to judicial review because each House is the sole judge of what disorderly conduct is (Osmeiia v. Pendatun, G.R. Np. L-17144, 1960).

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A congressman cannot buy nominal amount of shares in a corporation in a suit before the SEC and appear in "intervention." This is a circumvention of the constitutional policy (Puyat v. De Guzman, G.R. No. L-51122, 1982). Rules on Increase in $;:)laries (Sec. 10) No increase in their salaries shall take effect until after the expiration of the full term (not tenure) of all the members of the Senate and the House of Representatives approving such increase. Since the Constitution provides for rules on "salaries" and not "emoluments", members of the House may appropriate for themselves other sums of money such as travel allowances, as well as other benefits. A new senator er representative elected through special election is not entitled to the new salary rate because the new members are serving the terms of those who approved the increase. Thus, they are not entitled to the increase. Right of Members to Attend Congressional Sessions Sen. Trillanes, who remained in detention, cannot be allowed to go to the Senate to attend all its official functions. All prisoners whether under preventive detention or serving final sentence cannot practice their profession nor engage in any business or occupation, or hold cfflce, elective or appointive, while in detention. This is a necessary consequence of arrest and detention. The presumption of innocence does not carry with it the full ' enjoyment of civil and political rights (Tri/lanes v. Judge Pimentel, G.R. No 179817, 2008). D. DISCIPLINE OF MEMBERS (SEC. 16}

1. 2.

SUSPENSION - shall not exceed 60 days, with the concurrence of 2/3 of all its members. EXPULSION - concurrence of 2/3 cf all its members.

Nature of Disciplining Authority Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of 2/3 of all its members, suspend or expei a

The parliamentary immunity of members of Congress is not absolute. While parliamentary immunity guarantees the legislator complete freedom of expression without fear of being made responsible before the courts or any other . forum outside of Congressional Hall, it does NOT protect him {her) from responsibility before the. legislative body itself whenever words and conduct are considered disorderly or unbecoming a member thereof. For unparliamentary conduct, members of Congress can be censured, committed to prison, suspended, even expelled by the votes of their colleagues (Osmena v. Pendatun, G.R. No. L-17144, 1960). Is preventive suspension considered an interruption of a term? Preventive suspension is not considered "interruption" of a term under Sec. 8, Art. X and Sec. 43 (b) of RA 7160. A preventive suspension cannot simply be considered an interruption because the suspended official continues to stay in office although barred from exercising the functions and prerogatives of the office within the suspension period. The best indicator of the suspended official's continuity in office is the absence of a permanent replacement and the lack of the authority to appoint one since no vacancy exists (Aldovino v. COMELEC, G.R. No. 184836, 2009).

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( Authority of Sandlganbayan to Suspend A Congressman can be preventively suspended by the Sandiganbayan for violation of Anti-Graft Law notwithstanding the exclusive power of Congress to discipline its members. The suspension contemplated in Article VI, Section 16(3) of the Constitution is a punishment that is imposed by the Senate or House of Representatives upon an erring member. It is distinct from the suspension under Section 13 of the Anti-Graft and Corrupt Practices Act, which is not a penalty but a preventive measure. Since Section 13 of the Act does not state that the public . officer must be suspended only in the office where he is ,illeged to have committed the acts which l>ie has been charged, it applies to any office which he may be holding (Santiago v. Sandiganbayan, GR. No. 128055, 2001).

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E. PROCESS OF LAW-MAKING

It is sufficient that the title expressing the general subject of the bill and all the provisions of the statute are germane to such general subject (Sumufong v. COMELEC, G.R. No. L-48609, 1941).

Bills that mustoriglnate in the House (PuP-TL) 1. Bills authorizing the increase of Public debt. 2. f_rivate bills. 3. Iariff bills. 4. Bills of ,bocal application. (Sec. 24)

Bills passed by either House must pass 3 readings on separate days, and printed copies thereof in its final form distributed to its members 3 days before its passage.

Bills of Local Application A bill of local application, such as one asking for the conversion of a municipality into a city, is deemed to have originated from t~,e Hcuse provided that the bill of the House was filed prior to the filing of the bill in the Senate; even if in the end, the Senate approved its own version (Tolentino v. Secretary of Finance, G.R. No. 115455, 1995). Private Bills One affecting purely private interest, such as one granting a franchise. Tariff Bill One that specifies the rates or duties to be imposed on imported articles Bill Authorizing Increase of the Public Debt One which creates public indebtedness such as bills for the issuance of bonds and other forms of obligations Revenue Bills One specifically designed to raise money or revenue through imposition or levy. • For example, registration fees used for the cor istructon and maintenance of highways. (PAL vs. Edu, G.R. No. L-41383, 1QBB). • The Videogram Regulatory Board Law imposing a tax on video rentals does not make the law a revenue bill because the purpose is primarily r&gulation, and not to raise revenue. (Tio v. Videogram Regulatory Board, G.R. No. L-75697, 1987) . General Limitations (Sec. 26) Every bill shall embrace only one (1) subject, as expressed in the title thereof, which does not have to be a complete catalogue of everything stated in the bill.

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An Act creating the Videogram Regulatory Board included 30% tax on gross receipts on video transactions was held to be valid. Taxation is sufficiently related to regulation of the video industry (Tio v. Videogram Regulatory Board, G.R. No. L-75697, 1987).

FIRST READING - Only the title is read; the bill is passed to the proper committee SECOND READING· Entire text is read and debates are held; amendments introduced. THIRD READING - Only the title is read, no amendments are allowed. Vote shall be taken immediately thereafter and the yeas and nays entered In the Journal. Exceptions: When the President certifies to the necessity of the bill's immediate enactment to meet a public calamity or emergency, the 3 readings can be held on the same day When the offices of the President and Vice-President are both vacant, the bill calling for a special election to elect a ., President and Vice-President is deemed certified. (Art. VU, Set. 10). Specific Limitations No law shall be enacted increasing the Supreme Court's appellate jurisdiction without the SC's advice and concurrence. (Sec. 30) No law shall be enacted granting titles of royalty or nobility. (Sec. 31) Operative Fact Doctrine • The Operative Fact Doctrine is a rule of equity that provides that a law produces effects until it is declared unconstitutional. As such, it must be applied as an exception to the general rule that an unconstitutional law produces no effects. • It can never be invoked to validate as constitutional an unconstitutional act. The unconstitutional law remains unconstitutional. but its effects, prior to its judicial declaration of nullity, may be left undisturbed as a matter of equity and fair play. Exc&ption: The doctrine of operative fact does not always apply, and Is not always the consequence of every declaration of constitutional invalidity. It can be invoked only in situations where the nullification of the effects of what used to be a

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valid law would result in inequity and injustice; but where no such result would · ensue, the general rule that an unconstitutional law is totally ineffective should apply. (Arau/lo v. Aquino Ill, G.R. No. 209287, July 1, 2014) An unconstitutional law is void and produces no rights, duties, and affords no protection. Being void, Fertiphil is not required to pay the levy and all levies paid should be refunded in accordance with !he general civil code principle against unjust enrichment. Post operatlvs fact doctrine cannot be invoked i~ it will constitute an unjust enrichment. In the case of Planters v. Fertiphil, the tax on fertilizers had already been collected and applied to · a private corporation's needs. This was by virtue of the law imposing . the tax. If the operative fact doctrine would be applied in this case it would sanction the enrichment of the Planters Product at the expense of the Fertiphil. (Planters Products, Inc. v. FertiPhi/ Corporation, 548 SCRA 485) BICAMERAL CONFERENCE COMMITTEE - an extraconstitutional creation which is intended to resolve conflicts between House and Senate versions of bills. (Bernas, · 1987 Philippine Constitution: A Commentary, 790, 2009). Scope Of The Bicameral Conference commucee's Powers: (A2R2P) Adopt the Bill entirely; or Amend; or Revise; or Reconcile the House Bill and the Senate Bills; fropose entirely new provisions not found in either the House Bili or the Senate Bill. (Amendments in the nature of a subsntute)

"amendment in the nature of a substitute," so long as such amendment is germane to the subject of the bills before the oommittee. After all, its report was not final but needed the approval of both houses of Congress to become valid as an act of the legislative department (Tolentino v: Secretary of Finance, G.R. No. 115455, 1994). PRESIDENTIAL VETO Every bill passed by Congress shall be presented to the President before it becomes law. To approve, he shall sign it. Otherwise, he shall veto the bill. (Sec. 27 (1)) OVERRIDING A VETO . The President shall transmit to House where the bill origina~ed. If, after such reconsideration, 213 of all the members of such House shall agree to pass the bill, it shall be sent, togethor with the objections, to the other House by which it shall likewise be reconsidered, and if approved by 2/3 of all the members of that House, it shall become law. To override the veto, at least 2/3 of all the members of each House must agree to pass the bill. In such case, the veto is overridden and becomes a law without need of presidential approval. (Sec. 27 (1))

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ITEM VETO General Rule: As a gener2I rule, if the President disapproves vf a provision in a bill approved by congress, he must veto the entire bill. Exception: As an exception, he is allowed in the case of (1) appropriation, (2) revenue, and (3) tariff bills to exercise Item-veto. (Sec. 27 (2)).

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Limitation: So long as the amendment is germane subject of the bill before the Committee.

to the

In a bicameral system, bills are lndependenny processed by both Houses of Congress. It is not unusual that the final version approved by one House differs from what has been approved by the other, The "conference committee," consisting of members nominated from both Houses, is an extra-constitutional creation of Congress whose function is to propose to Congress ways of reconciling conflicting provisions found in the Senate version and in the House version of a bill.

Exceptions to the Exception: DOCTRINE OF INAPPROPRIATE PROVISIONS - A provision that is constitutionally inappropriate for an appropriation bill may be subject to veto even _if it is not an appropriation or revenue "item';. (Gonzalez v. Macaraig, Jr., G.R. No. 87636, 1990J. EXECUTIVE IMPOUNDMENT- Refusal of the President to spend funds already· allocated by Congress for a specific purpose. It is in effect, an "impoundment" of the law allocating such expendlturs of funds. Note: There is no doctrine for or against executive impoundment. It has not been judicially questioned.

It is within the power of ci conference committee to include in its report an entirely new provision that is not found either in the House blll or in the Senate bill. If the committee can propose an amendment consisting of one or two provisions, there is no reason why It cannot propose several provisions, collectively considered as an Page 28 of 320

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Type of Item Bill TYPE OF BILL

ITEM

Revenue/tax bill

Subject of the tax, and tax rate imposed thereon

Appropriations bill

Indivisible sum dedicated to a stated purpose

vETO

OF RIDER - A rider is a provision that does not relate to a particular appropriation stated in an a ppropriation bill. Being an invalid provision under Section 2 5 (2), the President may exercise item veto. nternal Rules As part of their inherent power, each House may determine its own rules. Hence, the courts cannot intervene in the implementation of these rules insofar as they affect the members of Congress.

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Congressional Journals and Records (Sec. 16) General Rule: The Journal is conclusive upon the courts. Exception: An enrolled bill prevails over the contents of the Journal. ENROLLED BILL - The official copy of approved legislation and bears the certifications of the pr9siding officers of each House. Thus, where the certifications are valid and are not withdrawn, the contents of the enrolled bill are conclusive upon the courts as regards the provision of that particular bill.

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ENROLLED BILL.DOCTRINE- The signing of a bill by the Speaker of the House and the President of the Senate and its certification by the secretaries of both Houses of Congress that such bill was passed are conclusive of its due enactment (Arroyo v. De Venecia, G.R. No.127255, 1997).

ENROLLED BILL JOURNAL Official copy of Abbreviated account of daily approved With proceadlnqs in legislation, of Congress certifications presiding officers Submitted to the Provides proof what President for of. J transpired signature, indicating approval during deliberations Insures publicity legislative of proceedings

RECORD Word for word transcript of deliberations in Congress Provides detailed proof what of transpired during deliberations Supports the journal entry

Cases When the Constitution Requires Yeas And Nays To Be Recorded Last and third readings of a bill · Upon 1/5 members' request Re-passing a bill over Presidential veto Adjournment Neither House during the sessions of the Congress, shall without the consent of the other, adjourn tor more than 3 days, nor to any other place than that in which the two Houses shall be sit!ing. (CONST., Art. VI, Sec.16, Par(5)) Types of Adjournment 1. Day to day 2. Yearly 3. Sine die - with no appointed date for resumption 'Place' Refers not to the building but to the political unit where the Houses may be sitting. F. QUORUM AND VOTING MAJORI~ Ses~ions (Sec. 15) Regular sessions - Congress convenes once every year on the 4th Monday of July (unless otherwise provided for . by law). It continues in session for as long as it may determine, until 30 days before the opening of the next regular session, excluding Saturdays, Sundays, and legal holidays. · Special Sessions called by the President at any time when Congress is not in session

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Regular v, Special Session In a special session, the Congress may consider 'general legislation or only such subjects as the President may designate; while in a regular session, the power of the Congress is not circumscribed except by limitations. Kinds of Recess a. Voluntary Recess: takes place before th9 adjournment of Congress like Christmas recess b. Compulsory Recess:: takes place when the Congress adjourns Quorum to do business - Majorit.y of each House shall constitute a quorum. • A smaller number may adjourn from day to day and -, may compel the attendance of absent members. . • In computing a quorum, members who are outside the country and thus outside of each House's coercive Jurisdiction are not included. • Majority in Senate: The basis in determining the existence of a quorum in the Senate is the total number of Senators who are in the country and within the coercive jurisdiction of the Senate (Avelino v. Cuenco, GR. No. L-2821, 1949}. • Majority of the House: means Y2 +1 of the actual membership of the House who are within the coercive jurisdiction of the Congress (within the Philippines}. • Majority of all members of Congress: means majority of the entire composition of Congress regardless of the number of members present or absent during time tho question is brought to the floor as long as there is quorum (i.e. (24/2} +1 for the Senate and (250/2} +1 for the HOR} Voting Majorities of Congress

..iouse OF REPRESENTATIVES Nature of Proceec!ing

Required Votes

Basis

Affirm I Override

1/3 of All

Sec. 3(3~. Art. Xi

Resolution to lrnpeach

COMMON TO BOTH Nature of Proceeding

Required Votes

Basis

2/3 of All

Sec. 16(3)

Majority of All

Sec. 16(1)

Declare the Existence of a State of War

2/3 of Both Houses.voting separately

Sec. 23

Override President's Veto

2/3 of All in the House of Origin

Sec. 27(1)

Quorum to do business

Majority w/in Compulsive Power of the House

Sec. 16(2); Avelino v. Cuenca

Discipline Members Election of Officers

1 /5 of Members Yeas and Nays in the present of each Journal house

Sec. 16(4)

I

SENATE Nature of Proceeding

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Majority of Ali

Sec. 28(4}

Majority of Both Houses, voting separately

Art. VII, Sec. 9

Determination that Pres. Unable to discharge powers & duties

2/3 of Both Houses, voting separately

Art. VII, Sec. 11

To break a tie in presidential election

Majority of All, voting separately

Tax Exemption

Required Votes

Basis

For the cffectivity of treaty or international agreement

2/3 of All

Sec. 21, Art. VII

Conviction in Impeachment

2/3 of Al(

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Confirmation of new VP nominated by President

Sec. 3(6},

Art. XI

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Sec. 4

ATENEO CENTRAL BAR OPE:RATIO~S 2019 Revocation of Proc. Of Martial law/ Suspension of Priv. of Writ of Habeas Corpus

POLITICAL LAW Majority of All, voting jointly

Appropriation Biiis The primary and specific aim Is to apprcpriate a sum of money from the public treasury. (e.g., Budget). A bill creatlnq a new office, and appropriating funds for it is not an appropriation bill.

;

Extension of Proc. Of Majority of All, voling jointly MUSuspension. Of Priv. of WHC

Art. VII, Sec. 18

Majority of All

Art. VII, Sec. 19

To Concurw/ President in granting amnesty

G. APPROPRIATION ANO RE-ALIGNMENT

Art. VII, Sec. 18

General Rule: No money shall be paid out of the National Treasury (Soc. 29).

Instances when Congress is voting Separately 1. Choosing the President (CONST. Art.Vil, Sec.14) 2. Determine President's disability (CONST. Art.VII, Sec.11) 3. Declaring existence of a state of war in joint session CONST. Art. VI, Sec. 23) . 4. Confirming nomination of Vice-President (CONST, Art. VI, Sec. 9) 5. Proposing Constitutional amendments (CONST., Art. XVII, Sec.1) Instances when Congress voting Jointly 1. Revoking or extending proclamation suspending the privilege of writ of habeas corpus (CONST. Art. VII, Sec.18) 2. Revoking or extending declaration of martial law (CONST. Art. Sec. 18)

vn,

Officers of Congress (Sec. 16) Senate President Speaker of the House . Such other officers as it may deem necessary. f

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Election of Officers • By a majority vote of all respective members • The Senate has prerogative to choose how to elect other officers apart from the SenAte President and House Speaker. So the Court cannot de-prodaim Guingona (Tatad v. Guingona, G.R. No. 134577, 1988). • The Senate President or Speaker of the HOR is elected through a majority vote of all its respective Members, and such other officers as may deem necessary. (CONST. Art. VI, Sec.16, Par.(1))

Exception: In pursuance of an appropriation made by law. , • This rule does not prohibit oontinuing appropriations (e.g. for debt servicing). This is because the rule does not require yearly or annual appropriation. Limitations: Cannot increase the appropriations recommended by the President for the operatior,' of the Government as specified in the budget. (Sec. 25 (1)) The provisions must relate specifically to some particular appropriation therein and any such provision or enactment must be limited in its operation to the appropriation to which it relates. (Sec. 25 (2)) : The procedure in approving appropriations for Congress shall strictly follow the procedure for approving ·. appropriations for other departments and agencies. (Sec. 25 (3)) A special appropriations bill must specify the purpose for which It is intended and must be supported by funds actually available as certified by the National Treasurer or to be raised by a corresponding revenue proposal therein. (Sec. 25 (4)) • Spoclal Appropriations Biii: (1) Must specify purpose for which It ls intended; (2) Supported by funds actually available (certified by National Treasurer) OR raised by revenue proposal Appropriations must be for a public purpose Cannot appropriate public funds or property, directly or indirectly, in favor of. (Sec. 29 (2)) Any sect, church, denomination, or sectarian institution, or system of religion, or Any priest, preacher, minister, or other religious teacher or dignitary as such. Exception: if the priest, etc. is assigned to: (APOL) , 1. The Anned Forces 2. Any fenal institution 3. Government Qrphanage

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4. Government !.eprosarium

3.

The government is not prohibited from appropriating , money for a valid secular purpose, even if it incidentally benefits a religion. (e.g. appropriations for a national police force is valid even if the police also protects the safety of clergymen) A valid appropriation may have several related purposes that are by accounting and budgeting practice considered , as one purpose, e.g., maintenance and ,2ther .QPerating 1xpenaes (MOOE), In which case, the related purposes shall be deemed sufficiently specific for the exercise of the President's item veto power. (Be/gica v. Ochoa, G.R. No.

4.

208566, 2013) An appropriation may be validly apportioned into component percentages or values provided that each percentage or value must be allocated for its own corresponding purpose for such component to be considered a proper line-item. (Belgica v. Ochoa, G.R. No. 208566, 2013)

Malampaya and Presidential Social Fund violates the non-delegabil!ty of legislative power (PERLASBERr..lABE) •

The temporary use of public property for religious purposes is valid, as long as the property is available for all religions. Tl1e TRB, by warranting to compensate MNTC for loss of revenue resulting from the non-implementation of the periodic and interim toll fee adjustments, violates the constitutionally-guaranteed act and exclusive power of the Legislature to appropriate money for public purpose from the General Funds of the Government. (Franciscov. Toll

•

RegulatoryBoard, G.R. No. 166910, 2010) Congressional pork barrel Is unconstitutional (PERLAS-BF.RNA BE) 1. Violates the doctrine of separation of powers Congress intrudes in the execution of the project. It grants the legi:-.lators the authority to participate in post-enactment phases of project implementation and the power to identify the project they decided to be funded through 2013 PDAF Articles 2. Violates the non-delegabllity of legislative power - When legislators are given persons lumpsum fund for which they are able to dictate and personally determine the amount of fund to be used anci its beneficiary, the principle of non delegability is violated sfnce the power to appropriate is done by law and lodged with Congress collectively and not with its individual members

Violates Checks and Balance The President cannot exercise his item-veto power because the purpose of the lump-sum discretionary budget is stilt uncertain. Furthermore, it cannot be considered an item because an item is defined in the field of appropriations as the· particulars, details, distinct and severable parts of the appropriation or of the bill. Violates Accountability under Article XI, Section 1 of the Constitution - The fact that individual legislators are given post-enactment roles in the implementation of the budqet makes it difficult for them tu become disinterested "observers when scrutinizing, investigating or monitoring the implementation of the appropriation iaw (Belgica v. Hon. Ochoa, 2013)

Malampaya fund - The phrase "and for such other purposes as may be heroafter directed by the President" under Section 8 of PD 91 O constitutes an undue delegation of legislative power insofar as it does not la}' down a sufficient standard to adequately determine the limits of the President's authority with respect to the purpose for which the Malampaya Funds may be used. (Belgica v. Hon. Ochoa, 2013) Presidential Social Fund - ''to finance the priority infrastructure development projects" under Section 12 of Presidontial Decree No. 1869, as amended by Presidential Decree No. 1993, for both falling the sufficient standard test in violation of the principle of non-cielegability of legislative power. (Be/gica v. Hon. Ochoa, 2013)

Special Funds (Sec. 29 (3)) Money collected on a tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. Once the special purpose is fulfilled or abandoned, any balance shall be transferred to the general funds of the Government. Transfer of Appropriation (Sec. 25 (5)) General Rule: No law shall be passed nuthorizing any transfer of appropriations. Exception: The following may, by law, be authorized to augment any item in the general appropriations law for

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their respective offices from savings in other items of their respective appropriatlons.8 President Senate President Speaker of the House of Representatives Chief Justice of the Supreme Court Heads of the Constitutional Commissions The requisites for the valid transfer of appropriated funds under Sec. 25 (5}: There is a law authorizing the President, Senate President, Speaker, Chief Justice, and heads of the Constitutional Commissions; The funds to be transferred are savings generated from the appropriations for their respective offices; and The purpose of the transfer is to augment an Item in the general appropriations law for their respective offices. Considering the above requisites, the following activities under the OAP are unconstitutional: The withdrawal of unobligated allotments from the implementing agencies and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained. in the General Appropriations Act;

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Unobligated allotments were encompassed by the first part of the definition of "savings" in the GAA, that is, as "portions or balances of any programmed appropriation in this Act free from any obligation or encumbrance." However, NBC No. 541 (Authority of DBM to withdraw unobligated allotments) did not set in dear terms the criteria for the withdrawal of unobllgated allotments. It only specified that. the withdrawal of unubllgated allotments will be for those "slow- moving projects" in order "to fund priority and/or . fast-moving programs/projects." The problern is that such withdrawn money does not satisfy the category of being a saving since it is not technically considered as abandoned or discontinued project Cross-border transfers of savings of the executive department to offices outside the executive department; Funding of projects, activities, programs not covered by appropriations in the General Appropriations Act (Araullo v. Aquino, G.R. No. 209287, 2014). · Savings could be generated only when the purpose of the appropriation is fulfilled, or when the need for the appropriation being no longer existent. However, since information on actual revenue collections and targets are 8

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made available every quarter or at such time as the DBM ,may prescribe, actual revenue surplus may be determined accordingly and release from unprogrammed funds may take place even before year end. The exercise of the powe,· to augment shall be strictly construed by virtue of its bein~ an exception to the general rule that the funding of PAPs shall be limited to the amount fixed by Congress for the purpose. (Arau/lo v. Aquino, G.R. No. 209287, 2015) Discretionary Funds of Particular Officials: - Disbursed only for public purposes - Should be supported by appropriate vouchers - Subject to guidelines as may be prescribed by law ( Sec. 25 (6)). Automatic Re-Appropriation If Congress fails to pass the General Appropriations Bill (GAB) by the end of any fiscal year, the GA law for the preceding fiscal year is deemed reenacted. 1t will remain in force and effect until Congress passes the GAB (Sec. 25 (7)). H. LEGISLATIVE INQUIRIES AND OVERSIGHT FUNCTIONS Scope The power of legislative investigation includes: (1) The power to issue summons and notices; (2) Power to punish or declare a person in contempt (3) The power to determine the rules of its proceedings Legislative Inquiries (Sec. 21} Legislative inquiries must be conducted "in aid of legislation" which does nc1t necessarily mean that there is pending legislation regarding the subject of the inquiry. Hence. the materiality of a question is determined not by its connection to any pending legislation, but by its connection to the general scope of the inquiry . If the investigation is no longer "in did of legislation" but, "in aid of prosecution" where the stated purpose of the investigation is, to determine the existence of violations of the law, it is beyond the scope of congressional powers. The sub judice rule does not apply to inquiries in aid of legislation. The Senate Rules of Procedure Governing Inquiries in Aid of legislation provide that the filing or pendency of any prosecution of criminal or administrative action should not stop or abate any inquiry to carry out a legislative purpose. Hence, no individual can escape the power of the Senate to investigate, even if he or she has a

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pending administrative or criminal case (Sabio v. Gordon, G.R. No. 174340, 2006).

their appearance upon Congr6ss. This is in line with the principle of separation of powers.

ENFORCEMENT - While the Constitution does not expressly vest Congress with the power to punish nonmembers for legislative contempt, the power has nevertheless been invoked by the legislative body as a means of preserving its authority and dignity. (Arnau/t v, Nazareno, G.R. No. L-3820, 1950)

Department heads may appear before Congress in the following instances: . Upon their own · initiative, with the consent of the President (and that of the House concerned} - Upon the request of either House - Written questions shall be submitted to the President of the Senate or Speaker of the House at least 3 days before the scheduled appearance of the department heads. lnterpellations shall not be limited to written questions, but may cover related matters. The inquiry will be conducted in executive session when: > Required by the security of state, or public interest,. and · > When the President so states in writing.

Note: The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is founded upon reason and policy. Said power must be considered implied or incidental to the exercise of legislative power. (Negros Orientai II Electric Cooperative Inc. v. Sangguniang Panlungsod of Dumaguete, G.R. No. L-72492, 1987) The continuance of such incarceration only subsists for the lifetime, or term, of such body. Thus, for each House it lasts for only 3 years; but, if the Senf•te incarcerates a witness, the term is indefinite. The Senate, with its staggered terms, is a continuing body. The exercise by Congress or by any of its committees of its contempt power is based on the principle oi selfpreservation. As the branch of the government vested with the legislative power, independently of the judicial branch, it can assert its authority and punish contumacious acts against it. Such power is sui generis, as it attaches not to the discharge of legislative functions per se, but to the sovereign character of the legislature as one of the three independent and coordinate branches of government. (Standard Chartered v. Senate, G.R. No. 167173, 2007). Limitations: (ADR) 1) The inquiry must be in Aid of legislation. 2) The inquiry must be conducted in accordance with the. 'Q.uly published rules of procedure' of the House conducting the inquiry; and 3) The rights of persons appearing in or affected by such inquiries shall be .Respected. (e.g., right against selfincrimination) (Bemas, 1987 Philippine Constitution: A Commentary, 761, 2009). Oversight Functions (Sec. 22) Question Hour- Appearance of department heads before Congress to give account of their stewardship (Bernas, 1987 Philippine Constitution: A Commentary, 769, 2(:09).

The Permissible Powers o't Congressional Oversight Scrutiny based primarily on Congress' power of appropriation and the budget hearings conducted in connection with it, its power to ask heads of departments to appear before and be heard by either of its Houses on any matter pertaining to their departments and its power of confirmation; and Investigation and monitoring of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation (Be/gica v. Ochoa, G.R. No. 208566, 2013). A third power, the review of implementing rules and regulations, · is unconstitutional. Any provision that empowers Congress or any of its members to play any role in the implementation or enforcement of the law violates separation of powers.

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There is no such thing as a 'question hour' in the Constitution (It ls a parliamentary concept and practice). The distinction in legislative hearings is between investigative function and oversight function. The mere filing of a criminal or an administrative complaint before a court or a quasi-judicial body should not automatically bar the conduct of legislative investigation. The exercise of sovereign legislative authority, of which the power of legislative inquiry is an essential component, cannot be made subordinate to a criminal or an administrative investigation (Standard Chartered v. Senate, G.R. No. 167173, 2007).

Under Section 22, department heads (members of the , It is incumbent upon the Senate to publish the rules for its Executive Department) cannot be compelled to appear legislative inquiries in each Congress or otherwise make before Congress. Neither may department heads Impose the published rules clearly state that the same shall be Page 34 of 320

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effective . in subsequent Congresses or until they are amended or repealed to sufficiently put the public on notice. If it was the intention of the Senate for its present rules on legislative lnquirles to be effective even in the next Congress, it could have easily adopted the same language it had used in its main rules regc:rding effectivlty. Publication in the internet does not satisfy the requirement of publication as provided in the Constitution ( Garci/lano v. House of Representatives, G.R. No. 170388, 2008). Violation of internal procedures of Senate cannot, as a general rule, be subject to judicial supervision since "Each house shall determine the rules of its proceedings." The exceptions are when there is arbitrary and improvident use of power, which ultimately denies due process (Dela Paz v. Senate, G.R. No. 184849, 2009). Question Hour vs. Legislative Investigation Sections 21 and 22, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress. One sr,ecifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress' oversight function. Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless. when the inquiry in which Congress requires their appearance is "in aid of legislation" under Section 21, the appearance is mandatory (Senate v. Ermita, G.R. No. 169777, 2006). QUESTION HOUR (Sec. 22, Article VI) Who may appear

LEG. INVESTIGATION (Sec. 21, Article VI)

Only department heads ·

Any person

Entire body

Entire body or its respective committees

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Who conducts

Subject matter/ Purpose

(\,) i' .... ,

Matters related to Any matter in aid of legislation the department only as an exercise of Congress' oversignt function

Naturo

Exempted Persons

'

Exempted Info

Discretionary

Compulsory

"All heads of

( 1 ) President {2) Supreme Court Justices (3) Members of the AFP if prevented by the President as the Commander-In-Chief (Gudani v. Senga, 2006)

departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress." (EO, 464, Sec. 1)

(1) Executive privilege which must be invoked by the President himself or through the Executive Secretary by authority of the President (Senate v. Ermita, 2006) (2) Privileged information, e.g., national defense, diplomatic, mllltary secrets. (3) Right against self-incrimination

Invocation of Executive Privilege Under Article VI, Section 22, the appearance of department heads in the question hour is discretionary on their part. However, under Section 21, Congress is not bound to respect their refusal to appear in inquiries in aid of legislation, UNLESS a · valid claim of privilege is subsequenUy made, either by the President herself or by the Executive Secretary. (Senate v. Ermita, G.R. No. 169777, 2006) Only the President may invoke this. If it is invoked by somo other person, there must be proof that he or she has Presidential authority. A claim of privilege, being a claim of exemption from an obligation to disclose Information, must, therefore, be clearly asserted. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. Absent then a statement of the specilic basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be respected (Senate v. Ermffa, G.R. No. 169777, 2006).

The President has r.onstitutional authority to prevent any member of the Armed Forces from testifying before a legislative inquiry by virtue of her power as commander-inPage 35 of 320

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BAR OPERATIONS 2019 chief, and that as a consequence a military officer who defies such injunction is liable under military justice. The only way to circumvent this is by judicial order because the President may be commanded by judicial order to compel the attendance of the military officer. Final judicial orders have the force of the law of the land which the President has the duty to faithfully execute (Gudani v. Senga, G.R. No. 170165, 2006).

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Inquiries in aid of leqlslation aim to elicit information that may be used for legislation, while "question hour" pertains to the power to conduct inquiries, the object of which is to obtain Information in pursuit of Congress' oversight function. When Congress merely seeks to be Informed on how department heads are implementing the statutes which it has issued, its right to such information is not asimperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22 of Article VI, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry In which Congress requires their appearance is "in aid of legislation" under Section 21, Article VI, the appearance is mandatory (Senate v. Ermita, G.R. No. 169777, 2006). I. POWER OF IMPEACHMENT Power of impeachment (Article XI) Exclusive Power To Initiate The House of Representatives shall have the exclusive power to initiate all cases of impeachment (Sec. 3 (1)).. • The impeachment proceedings begin with :3 complaint filed with the House of Representatives either by a member of the House or by any citizen supporter' by a resolution of endorsement by any member. The complaint is referred to a Committee which prepares a , report (which can be favorable or unfavorable). In either case, the House by a vote of 1/3 of all its members decides whether complaint should be given due course. (Sec. 3(2-3)). • Referral to the Committee and decision by the House is unnecessary if the complaint is filed by at ieast 1/3 of all the members of the house (Sec 3(4)). Exclusive power to try and decide The Senate shall have the sole power to try and decide all cases of impeachment. No person shall be convicted without the concurrence of 2/3 of all the Members of the Senate (Sec. 3 (6)). Page

The penalty imposable shall be limited to removal from office and . disqualification to hold any office under the Republic of the Philippine (Soc. 3(7)). Officers Sl•bject to Impeachment (Sec. 2j (VSCO-P) fresident . YJce President Members of the §C Members of the ~onstitutio.nal Commissions Qmbudsman · Grounds for Impeachment (Sec. 2) (GOT2 BGC) Culpable violation of the ,Gonstitution !reason §ribery Qraft and Corruption Betrayal of Public !rust Qther high crimes

J. ELECTORAL TRIBUNALS AND THE COMMISSION ON APPOINTMENTS ELECTORAL TRIBUNALS (Sec. 17) . The Senate and the House shall each have an Electoral Tribunal. Composition 3 Supreme Court Justices to be designated by the Chief Justice. 6 Members of the Senate or House, as the case may be. They shall be chosen on the basis of proportional representation from the political parties and party-list organizations. The senior Justice in the Electoral Tribunal shall be its Chairman.

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Nature of Tribunals Non-partisan court. It must be independent of Congress and devoid of partisan influence and consideration. Disloyalty to lhe party and breach of party discipline are not valid grounds for the expulsion of a member. (Bondoc v. Pineda, GR No. 97710, September 26, 1991) Security of Tenure Membership in the HRET may not be terminated except for · a just cause, such as the expiration of the member's congressional term of office, his death, permanent disability, resignation from the political party he represents in the tribunal, formal affiliation with another political party, · or removal for other valid cause. A member may not be expelled by the HOR for 'party disloyalty' short of proof that he has fonrnally affiliated with another political group. (Pimentel v. HRET) 36 of 320

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Jurisdiction (a) Each Electoral tribunal shall be the sole judge of all contests relating to the (ERQ) slection, Beturns and Qualifications of their respective members. · This includes determining the validity or invalidity of a proclamation declaring a particular candidate as the winner. (b) Once a winning candidate has been: proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the COMELEC's jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET's own jurisdiction begins. Ncte: The Constitution provides that a person assumes office "at noon on the 30th day of June". The Oath of Office the petitioner presented is not valid. As far as the court is concerned, she took her oath on 5th of June which is not the one prescribe by the Consti~utiori. Therefore, the COMELEC still has jurisdiction. Before there is a valid taking of the oath, it must be made (1) before the Speaker of the House of Representatives, and (2) in open session. (Ongsiako Reyes v. COMELEC, G.R. No. 207264, 2013) Does the HRET have jurisdiction over pro-proclaimed controversies? No, the Electoral tribunals have no jurisdiction over preproclaimed controversies which come under the jurisdiction of the COMELEC. .

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Is jurisdiction lost upon withdrawal or protest? No. Jurisdiction once acquired, is not lost upon the instance of the parties, but continues until the case is terminated. Mere filing of a motion to withdraw protest, without any action on the part of tho tribunal, does not divest it of jurisdiction. An election protest is Impressed with public interest in the sense that the public is interested in knowing what happened in the elections. Thus, private interest must yield to the common good. (Rcbles v HRET, GR No 86647, February 5, 1990) ELECTION CONTEST - Where a defeated candidate who received the second highest number of votes challenges the qualifications of a winning candidate and claims for · himself the seat of a proclaimed winner. In the absence of an election contest, tne Electoral Tribunal is without jurisdiction. However, each House can expel its owr. members or even defer their oath taking until

their qualiflcatlons are determined. This may be exercised even without an election contest. The power of the HRET to determine the citizenship of a winning candidate does not include looking at the grant of citizenship to the candidate's ascendant. That would boa prohibited collateral attack (Vilando v. HRET, G.R. Nos. 192147 & 192149, 2011). . Since the Electoral Tribunals are indepsndent constitutional bodies: Neither Congress nor the Courts may interfere with procedural matters relating to the functions of the Electoral Tribunals. Its members may not be arbitrarily removed from their positions in the tribunal by the parties that they represent. Neither may they be removed for not voting according to party lines, since they are acting independently of Congress. The mere fact that the members of either the Senate or the House sitting on the Electoral Tribunal are themselves the ones sought to be disqualified (due to the filing of an eleetion contest against them) does not warrant the disqualification of all the members of the Electoral Tribunal. Judicial review of decisions of the Electoral Tribunals. may be had with the SC only on the ground of grave abuse of , discretion, the decision or resolution having been rendered without or in excess of jurisdiction. Rule' Making Power The power of the HRET, as the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives, to promulgate rules and regulations relative to matters within its jurisdiction, including the period of filing election protests before it, Is beyond dispute. It's rule-making power necessarily flows from the general power granted it by the Constitution. (Lazatin v HRET, GR No 84297, December 8, 1998) K. COMMISSION ON APPOINTMENTS (CA) (Sec. 18) Composition - Senate President as ex-officio chairman - 12 Senators - 12 Members of the House Manner of Constltuticn Elected on the basis of proportional representation from the political parties and party-list organizations within 30 days after the Senate and the House of Representatives shall have organized with the election of the Senate

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President and the Speaker of the House (PHIL. CONST. art. VI, § 19). The minimum required number of elected senators belonging to the same political party in order for the party to qualify for a seat in ttie CA is at least 2 elected senators for every seat in the CA. (Guingona v. Gonzales, G.R. No. 106971 March 1, 1993). The Constitution does not require that the full complement of 12 senators be elected to the membership in the CA before it can discharge its functions and that it is not mandatory to elect 12 senators to the CA ( Guingona vs. Gonzales, G.R. No. 106791, March 1, 1993). The two houses have primary jurisdiction on who should sit in the CA. This includes determination of party affiliation and number of party members for purpose of determining proportional representation (Ori/on v. De Venecia, G.R. No. 180055, 2009).

Limitations . Congress cannot by law prescribe that the appointment of a person to an office created by such law shall be subject to confirmation by the CA. . Appointment; extended by the President to the enumerated positions while Congress is not in session shall only be effective until disapproval by the CA, or until the next adjournment of Congress. Since the Commission on Appointments is an independent constitutional body, its rules of procedure are outside the · scope of congressional powers as well as that of the judiciary.

L. INITIATIVE AND REFERENDUM (see discussion on People's initiative on Statute in subsection A of this topic)

Voting - The Commission shall rule by a majority vote of all the Members. - The chairman shall only vote in case of a tie. - The Commission shall act on all appointments submitted to it within 30 session days. - The Commission shall meet only while Congress is in ' session, at the call of i'.s Chairman or a majority of all its members. Jurisdiction Commission on Appointments shall confirm the appointments by the President with respect to the following positions: (E·MA2-C) - Heads of the gxecutlve DepartmentG Exception: Appointment of Vice President as a member . of the Cabinet needs no confirmation (PHIL. CONST. Art VII, §15) - ,8mbassadors, - Other public .Ministers or consuls Officers of the AFP from the rank of Colonel or Naval Captain and above; and · Other officers whose appointments are vested in him by the ~onstitution {e.g. COMELEC members) • Examples: o Chairmen and commissioners of the CSC, COMELEC, and COA o Regular members of the Judicial Bar Council Note: The consent of Commission on Appointments is required only in the 151 sentence enumeration of Art. VII, Section 16. (Sarmiento v. Mison, G.R. No L-79974, 1987) Page 38 of 320

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POLITICAL LAW A. QUALIFICATIONS, ELECTION, AND TERM OF THE PRESIDENT AND VICE-PRESIDENT

Ill. EXECUTIVE DEPARTMENT TOPIC OUTLINE UNDER THE SYLLABUS

Qualifications

A. Qualifications, election, and term of the President and Vice-President B. Privileges, Inhibitions, and Disqualifications . C. Powers of the President 1. Executive and Administrative powers in General 2. Power of Appointment . a. Confirmation and by-passed appointments b. Midnight and ad interim appointments c. Power of Removal 3. Power of Control and suoervtston a. Doctrine of Qualified Political Agency b. Executive departments and Officers c. Local Gcwernment Units 4. Military Powers a. Calling out power b. Declaration of Martial Law and suspension of the privilege of the writ of habeas corpus; requisites and parameters of extension 5. Executive Clemency 6. Powers pertinent to Foreign Relations D. Rules of Succession

of President And Vice-President (Secs.

3-4): PRESIDENT

VICE PRESIDENT

1. Natural-born citizen of the Philippines 2. Registered voter ' 3. Able to read and write 4. At least 40 years old on the day of election 5. Resident of the Philippines for at least 10 years immediately preceding the election 6. Term of 6 years 7. Unless otherwise provided by law, term of offtee commence at noon of June 30 next following the election Single term only; not eligible for any reelection (but can run if no longer incumbent president like President Estrada in May 2010).

Term limitation: 2 successive terms.

Any person who has succeeded as President, and served as such for more than 4 years shall NOT be qualified for election to the same office at any time. Voluntary renunciation of the office for any length of time shall not be considered an interruption in the continuity of service. Term of Office The President and Vice President shall be elected by direct vote of the people for a term of 6 years. (CONST. Art. VII, Sec.4)

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'The president shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than 4 years shall be qualified for election to the same office at any time. (CONST. Art VII, Sec.4, Par(1)) No Vice-President shall serve for more than 2 consecutive terms. (CONST. Art. VII, Sec.4., Par.(2))

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Election 1. Regular: 2nd Monday of May, every 6 years 2. Special (Requisites) a. Death, permanent disability, removal from office or resignation of both President and Vice-President Page 39 of 320

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POLITICAL LAW

Vacancies occur more than 18 months before the next regular presldential election; and A law passed by Congress calling for a special election to elect a President and Vice President to be held not earlier than 45 days nor tater 60 days from the time of such call (CONST. Art. VII, Sec.10)

Congress as Canvassing Board The proclamation of presidential and vice presidential winners is a function of Congress and not of the COMELEC (Macalintal v COMEL£C, GR No. 157013, June 10, 2003) SC as the Presidential Electoral Tribunal (PET) 'The SC, sitting en bane, shall be the sole judge of all contests relating to the election, returns and qualifications of the President or Vice President, and may promulgate its rules for the purpose. (Macalintaf v PET, GR No. 191618, November 23, 2010)

iii. iv.

Participating in any business. Being 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 GOCCs or their subsidiaries. (Art. VII, Sec. 13)

Spouses and Cannot be appointed during :.tth degree president's tenure as: relatives of the 1. Members of the Constitutional President Commissions ( consanguinity 2. Office of the Ombudsman or affinity) 3. Department Secretaries 4. Department Under-secretaries 5. Chairman or heads of bureaus or offices including GOCCs and their subsidiaries. If the spouse, etc., was already in any of the above offices before his/ her spouse became President, he/ she may continue in office. What is prohibited is appolntrnent and reappointment, not continuation in office.

Oath of Office Before they enter on the execution of their office, the President, Vice-President or the Acting President shall take the oath or affirmation (CONST. Art. Vfl, Sec.5)

B. PRIVILEGES. INHIBITIONS, AND DISQUALIFICATJONS Disquallfications:

SUBJECT President Vice-President Cabinet Members Deputies or Assistants of Cabinet Members

SOURCEOF DISQUALIFICATION PROHIBITED FROM: I. Holding any office or employment during their tenure Exceptions: • Otherwise provided in the Constitution. (e.g., Vice President appointed as a member of the Cabinet, Secretary of Justice sits as an ex-officio member on Judicial and Bar Counci) • The positions are ex-officio and they de.! not receive any salary or other emoluments therefor. (e.g., Sec. of Finance is head of Monetary Board) ii. Practicing, directly or indirectly, any other profession during their tenure.

I

Spouses, etc., can ba appointed to the judiciary and as ambassadors and consuls.

The Chief Presidential Legal Counsel (CPLC) has the duty of giving independent and impartial legal advice on the actions of the heads of various executive departments and agencies and to review investigations involving heads of executive departments and agencies, as well as other Presidential appointees. The PCGG is charged with ·the responsibility, under the · President, of recovering ill-gotten wealth. The offices of the PCGG and CPLC are incompatible. Without question, the PCGG is an agency under the Executive Department. Thus, the actions of the PCGG Chairman are subject to the. review of the CPLC (Public Interest Group v. Elma, G.R. No. 138965, 2006).

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performed in the exercise of official duties. (Estrada v. Desierlo, GR No. 146710, March 2, 2001)

Exception to the prohibition on the President and his/her official family from holding any other office or employment if 4th degree relatives are already in office when a President assumes office, the relatives are not thereby ousted from their positions. What is prohibited is appointment or reappointment and not uninterrupted continuance in office

A department secretary, even if an alter ego President, cannot invoke presidential immunity in filed against him because the questioned acts are acts of the President. (Gloria v CA, GR No. 119903, 15, 2000)

2.

Presidential Privilege Executive Privilege is the power of the President to · withhold certain types of information from the court, the Congress. and the public. (Neri v. Semite, G.R. No. 180643, 2008).

Inhibitions No increase in salaries until after the expiration of the term of the incumbent during which such increase was approved (Sec. 6). Shall not, during tenure. directly or indirectly, practice any other professior., participate in any business, or be financially interested in any contract with, or in any franchise, or specla! privilege granted by the Government or any subdivision, agency or instrumentaiity thereof, including GOCCs or their subsidiaries (Sec. 13). Shall not receive any other · emoluments from the government or any other source (CONST. Ari. VII, Sec.6) Shall avoid conflict of interest in conduct of office ( Sec. 13). .......... ,

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For tile presidential communlcations privilege to apply, the following must concur: Communications relate to a "quintessential and non- · delegable power" of the President. (e.g. the power to enter into an executive agreement with other countries without the concurrence ol the Legislature has traditionally been recognized in Philippine jurisprudence) Communir::ations are "recelved" by a close advisor of the President. Under the "operational proximity" test, Secretary NP,ri of NEDA can be considered a close advisor, being a member of President Arroyo's cabinet. There is no adequate showing of a compelling need that would justify the limitation of tho privilege and of the unavailability of the Information elsewhere by an appropriate investigating authority.

Privileges 1. Presidential Immunity Immunity from suit is personal to the President and may be invoked by him alone. The President may waive it impliedly, as when he himself files suit (So/iven v. Makasiar,G.R. No. 8287, 1988). The presidential immunity from suit remains preserved under our system of government, albeit not expressly reserved in the present constitution (Rubrico, et al. v. GloriaMacapagal-Arroyo,et al., G.R. No. 183871, 2010).

Scope of Executive Privilege Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order; including: a. Conversations and correspondence between the President and the public official covered by this executive order (Chavez v Public Estates Authority) b. Military, diplomatic and other national security matters which in the Interest of national security should not be divulged; c. Information between inter-government agencies prior to the conclusion of treaties and executive agreements Chavez v. PCGG, G.R. No. 130716, 1998); d. Discussion in close-door Cabinet meetings (Chavez v. PCGG, G.R. No. 130716, 1998); e. Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 2002).

Unlawful acts of public officials are not acts or' State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser. Once out of office, even before the end of the six-year term, immunity for non-official acts is lost (Estrada v, Desietio, G.R. No. · 146710-15, 2001). r

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Duration After his immunity done by

of Presidential Immunity tenure, the Chief Executive cannot invoke from suit for civil damages arising out of acts him while he was President which were not

of the a case not the August

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Person covered by the Privilege The person covered by the executive privilege is a person in possession of information which is, in the judgment of , the head of office concerned, privileged . ·

Difference between Presidential communlcatlons Privilege and Deliberative Process Privilege

Operational Proximity Not every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege. The privilege should apply only communications authored or solicited and received hy those members of an immediate white house advisor's staff who have broad and significant responsibility for investigation and formulating of the · advice to be given the President on the particular matter to which the communications relate (Neri v. Senate Committee, G.R. Ne. 180643, 2008 citing In re: Sealed, No. 96-3124, 121 F.3d 729,326 U.S. App. D.C. 276, 1997). Presidential communications are presumptively privileged and such presumption can be overcome only by mere showing of public need by the branch seeking access to conversations. The oversight function of Congress rnay be facilitated by compulsory process ONLY to the extent that it is performed in pursuit of legislation" (Neri v. Senate, G.R. No. 180643, 2008). While the final text of the JPEPA may not be kept perpetually confidential - since there should be "ample opportunity for discussion before a treaty is approved" - the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. Dip!omatic negotiations privilege bears a close resemblance to the cellberatlve. process and presidential communications' privilP-ge. Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged character of the deliberative process (Akbayan v. Aquino, G.R. No. 170516, 2008). When To Apply Executive Privilege: Must fall within one of the above. Must be stated with sufficient particularity so the Congress or Court can determine the legitimacy of the claim of privilege. Exception to Executive Privilege: The President's generalized assertion of privilego must yield to the demonstrated, specific need for evidence in a pending criminal trial. (U.S. v. Nixon, 418 U.S. 683, 1974). Executive privilege cannot be used to conceal a crime or a possible wrongdoing. Thus, the specific need for evidence in a pending cdrninat trial outweighs the President's generalized interest in confidentiality (Neri v. Ermita, G.R. No. 169777, 2006).

Presidential communications privilege

Deliberative process privilege

Pertains to communications, documents or other materials that reflect presidential decisionmaking and deliberations

Includes advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies areformulated

Applies to decisionmaking of the President

Applies to decision-making of executive officials (and judiciary)

Rooted in the constitutional principle of separation of powers

Based on common law privilege

Requisites: Requisites: 1. It must involve a 1. Predecisional - it quintessential and precedes, in temporal non-delegable power sequence, the decision of the President to Which it relates. 2. Operational proximity 2. Deliberative - reflects 3. Important and the give and take of the compelling need to be consultative process kept confidential, not such that disclosure merely based on would discourage general interest candid discussion within the agency (In Re: Production of Courl Records and Documents, 2012)

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C. POWERS OF THE PRESIDENT

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Executive Powers, In General The Constitution provides that "[t)he executive power shall be vested in the President of the Philippines." However, it does not define what is meant by executive power although in the same article it touches on the exercise of certain powers by the President, i.e., the power of control over all executive departments, bureaus and offices, the power to execute the laws, the appointing power, the powers under the commander-in-chief clause, the rower to grant reprieves, commutations and pardons, the power to grant amnesty with the concurrence of Congress, the power to contract or guarantee foreign loans, the power to enter into treaties or international agreements, the power to submit the budget to Congress, and the power to address Congress.

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The President's Executive powers are not limited to those set forth in the Constitution. The President has residual powers as the Chief Executive of the country. which. powers include others not set forth in the Constitution (Marcos v. Manglapus, G.R. No. 88211, 1989). Power of Administrative Reorganization The President has the continuing authority to reorganize the national government, which includes the JJOWer to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities and to standardize salaries and materials, if effected in good faith and for the purpose of economy or make the Jureaucracy more efficient. (MEWAP v Executive Secretary, GR No 160093, July 31, 2007) Faithful Execution ctause Until and unless a law is declared unconstitutional, the President has a duty to execute it regardless of his doubts as to its validity. 2. :.. .• )l

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Power of Appointment

(a} In general Nature of the Power to Appoint Executive in nature; while Congress (and tho Constitution in certain cases; may prescribe the qualifications for particular offices, the determination of who among those who are qualified will be appointed is the President's prerogative. In case of vacancy in an 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. Congress, through a law, cannot impose on the President the obligation to appoint automatically the undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds a position of qreat trust and confidence. Congress, in the guise of prescribing qualifications to an office, cannot . impose on the President who her alter ego should be (Pimentel v. Ermita, G.R. No. 16497, 2005).

POLITICAL LAW that the designation was in a temporary capacity. The ..Constitution makes no reference to the nature of the designation (Fune v. Agra, G.R. No. 191644, 2013). Kinds of Presidential Appointments untler Sec.15 a. Appointments made by an acting president b. Midnight appoint -appointment made by a President after the election of his successor and up to the end of his term. This type of appointment is prohibited by the Constitution. c. Appointments for Partisan Political Consideration. Those made 2 months before the next Presidential election. This is prohibited by the Constitution. d. Regular presidential appointments, with or without confirmation by the Commission on Appolntments, and 'recess' or 'ad-interim' appointments. Requisites for Valid Appointment Authority to appoint and evidence of its exercise; Transmittal of the appointment and proof of It; Vacant position at the time of appointment; and Receipt of the appointment and its acceptance by the appointee, who possesses all the qualifications and none of the disqualifications. (Ve/icaria-Garafil v. OP, G.R. No. 203372, 2015). Exceptions to Midnight Appointments Requisites 1. It is necessary to make such appointment 2. Only temporary appointments can be extended 3. Appointments only in the Executive Department (CONST. Art. VII, Sec. 15) The Court held that the rule does not apply to appointments made in the Supreme Court. (De Castro v. JBC, GR No. 191002, Apr/I 20, 2010)

Ad-Interim Appointments (SEC. 16) When Congress Is in recess, the President may still appoint officers to positions subject to CA confirmation. These appointments are effective immediately, but are only effective until they are disapproved by the CA or until the next adjournment of Congress. Applies only to positions requiring confirmation of CA Appointments to fill an office in an 'acting' capacity are NOT ad-interim in nature and need no CA approval. May the President appoint an individual as acting The assumption of office on the basis of the ad interim Solicitor General and acting Secretary of Justice? appointments issued by the President does not amount to The President may not appoint an individual as acting a temporary appointment which is prohibited by§ 1 (2), Art. Solicitor General and acting Secretary of Justice in a IX-C. An ad interim appointment is a µermanent concurrent capacity. The designation of Alberto Agra as appointment because it takes effect immediately and can acting Secretary of Justice concurrently with his position as no longer be withdrawn by the President once the Solicitor General is in violation of the constitutional appointee has qualified Into office. (Matibag v. Benipayo prohibition under Article VII, Section 13. It is of no moment G.R. No. 149036, 2002). Page 43 of 320

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POLITICAL LAW

What Is an ad Interim appointment? An ad interim appointment is a permanent appointment unless otherwise indicated. It is an appointment made by the President v.ihile Congress is NOT in session or during recess. How Ad-Interim Appointments Terminated a. Disapproval of the appointment by the CA; b. Adj0t1rnment by the Congress without the CA acting on the appointment (NACHURA)

Appointments extended by an acting President shall remain effective unless revoked by the elected President within 90 days from assumption of office {PHIL CONST. art. VII, § 14) Two months immediately before the next presidential elections and up to the end of his/her term, a President or Acting President shall not make appointments except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety (PHIL CONST. art. VII, § 15). (b) Commission on Appointments confirmation

Difference between Appointments

Disapproval

and

By-Passed

APPOINTMENTS DISAPPROVED

BY-PASSED APPOINTMENTS

When the Commission disapproves an ad interim appointment, the appointee can no longer be extended a new appointment, inasmuch as the disapproval is a final decision in the exercise of the Commission's checking power on the appointment authority of the President.

When an ad-interim position is by-passed because of lack of time or failure of the Cornmlssion to organize, there is no final decision yet. Absent such decision, the President is free to renew the ad-interim appointment.

Appointments By An Acting President (Sec. 14) These shall remain effective unless revoked by the elected President with,n 90 days from his assumption or re-assumption of office. The

power of the

succeeding

President to revoke

appointments made by the Acting President refers only to appointments in the Executive Department (De Castro v. JBC, G.R. No. 191002, 2010). The Constitutional Limitations on the President's appointing power The President may not appoint his/her spouse and relatives by consanguinity or affinity within the 41h civil degree as members of the: Constitutional Commissions Ombudsman Department Secretaries Undersecretaries Chairmen and heads of Bureaus and Offices ' GOCCs (PHIL CONST. art. VII,§ 13)

Regular Appointments Requiring Consent of CA The following may be appointed by the president, subject to approval by the Commission on Appointments (CA}: - Heads of executive departments - Ambassadors, consuls, and other public ministers - Officers of AFP from the rank of colonel or naval captain Other officers whose appointment is vested in him by the Constitution, such as: > Chairmen and members of tho COMELEC, COA, and

csc. > Regular members of the JBC. > The Ombudsman and his deputies. > Sectoral representatives in Congress, as provided in Transitory Provisions (Sec. 16). Appointments With Prior Recommendation Or Nomir.ation By The JBC Members of the SC and judges of the lower courts; these appointments do not need CA conflrmaton (Phil Const. art. VIII, § 9). Ombudsman and his Deputies (Phil Cons!'. art. XI, § 9). Regular Appointments Without Need Of CA Confirmation All other officers whose appointments are not otherwise provided for by law and those whom he may be authorized by law to appoint do not require CA confirmation. This includes the Chairman and members of the Commission on Human Rights (CHR), whose appointments are provided for by law, and NOT by the Constitution. (SP.c. 16) Congress may, by law, vest in the President alone or in the courts, or in the heads of departments, agencies, . boards or commissions the appointment of other officers lower in rank than those mentioned above. (Sec. 16) However, Congress cannot, by law, require CA confirmation cf the appointment of other officers for offices created subsequent to the 1987 Constitution

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POLITICAL LAW

(Calderor. v. Carale, G.R. No. 91636, 1992). e.g. NLRC Commissioners, Bangko Sentral Governor. PROCEDURE WHEN CA CONFIRMATION NEEDED: 1. Nomination by President 2. Confirmation by CA 3. Appointment by President 4. Acceptance by appointee. • At any time before all four steps have been complied with, the President can withdraw the nomination or appointment. Procedure When No CA Confirmation Needed: 1. Appointment 2. Acceptance Once appointee accepts, President can no longer withdraw the appointment (c) Midnight Appolntments General Rule: Two (2) months immediately before the next Presidential elections and up to the end of his term, the President or Acting President shall not make appcintments. This is to prevent the practice of making "midnight appointments."

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Exception: Temporary appointments to executive positions if continued vacancies will prejudice public service or endanger public safety. • Prohibition does not extend to appointments in the Supreme Court. Had the framers intended to extend the prohibition to the appointment of Members of the Supreme Court, they could have explicitly done so. The prohibition is confined to appointments In the Executive Department. Existence of the JBC also prevents possible abuses in appointment (De Castro v JBC, G.R. No. 191002, April 20, 2010); overturned (In re: Appointment of Valenzuela, AM 98-0501 SC, 1998). • There Is no law that prohibits local elective officials from makinqappolntments during the last days of his . or her tenure'. Prohibition only applies to appointments by the President (De la Rama v. CA, G.R. No. 131136, 2001). • If the President is not satisfied with the list submitted by the JBC, he may ask for another list. But once the appointment is issued by the President and accepted by the nominee, it needs no further confirmation. • President may appoint SC Justice within 60 days prior to election. Article Vil deals entirely with the executive department while Article VIII deals with the judiciary. Had the framers intended to extend the 60-day prohibition contained in Section 15, Article Vil to the

appointment of Membe-s of the Supreme Court, they could have explicitly done so. That such specification was not done only reveals that the prohibition against . the President or Acting President making appointments within two months before the next presidential elections and up to the end of the President's or Acting President's term does not refer to the Members of the Supremo Court. The usage in Section 4 (1), Article VIII of the word shall - an imperative, operating to impose a duty that may be enforced - should not be disregarded. • The framers did not need to extend the prohibition against midnight appointments to appointments In the , Judiciary, because the establishment of the JBC and subjecting the nomination and screening of candidates for judicial positions to the unhurried and deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the Judiciary. JBC intervention eliminates the danger that appointments to the Judiciary can be made for the purpose of buying votes in a coming presidential election, or of satisfying partisan considerations. The creation of the JBC was precisely intended to de-politicize the Judiciary by doing away with the Intervention of the Commission on Appointments (De Castro v. JBC, G.R. No. 191002, 2010). Power of Removal General Rule: The express power of appointment of the President has the corollary lrnpliod power of removal. Hence, the President may remove appointees. Exception: Appointments requiring certain methods for removal (e.g., Impeachment, appointment of judges of inferior courts (Phil Const. art. VIII, § 11; Gonzales Ill vs. Office of the President of the Philippines, G.R. No. 196231, 2012). The succeeding President may not revoke appointments to the Judiciary made by an Acting President. Sec. ~4, Art. VII refers only to appointments in tho Executive Department. It has no application to appointments in the Judiciary because temporary or acting appointments can only undermine the judlciary due to their being revocable at will ... Prior to their mandatory retirement or resignation, judges of the first or second level courts and the Justices of the third level courts may only be removed for cause, but the members of the Supreme Court may be removed only by impeachment (De Castro v. JBC, G.R. No. 191002, 2010).

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The President cannot dismiss the Deputy Ombudsman because it will unde,·mine the independence of the Ombudsman. However, the same rule does not apply to the special prosecutor, which can be dismissed by the President. (Gonzales v. OP, G.R. No. 203372, 2014)

The execution of laws is an OBLIGAT!ON of the President. He cannot suspend theoperation of laws.

Disciplinary Powers The power of the President to discipline officers flows from the power to appoint the officer., and NOT from the power of control.

QUALIFIED POLITICAL AGENCY - Acts of department heads, etc., performed and promulgated in the regular course of business, are presumptively acts of the President.

While the President may remove from office those ·who are not entitled to security of tenure. or those officers with no set terms, such as Department Heads, the officers, and employees entitled to security of tenure cannot be summarily removed from office.

Exceptions: If the acts are disapproved or reprobated by the President. If the President is required to act in person by law or by the Constitution (e.g. the power to grant pardons).

(a) Doctrine of Qualified Political Agency or Alter Ego Principle

(b) Executive Departments and Offices Power of Control The power of an officer to alter, modify, or set aside what a subordinate officer has done in the performance of his duties, and to substitute the judgment of the officer for that of his subordinate.

The President may, by executive or adrninistrative order, direct the reorganization of government entities under the Executive Department. Section 17, Article Vil of the 1987 Constitution, clearly states: "The President shall have control of all executive departments, bureaus and offices." The Administrative Code also grants the President the power to reorganize the Office of the President in · recognition of the recurring need of every President to reorganize his or her office "to achieve simplicity, economy and efficiency" (Tondo Medical v. Court of Appeals, G.R. No. 167324, 2007).

The President's power of control is a self-executing provision. The incurnbent President is free to amend, rescind and modify any political agreements entered into by the previous Presidents (Ocampo v. Enriquez, G.R. No. 225973, 2016). The appeal from the decision of a Department Secretary to the President can be restricted due to the President's power of control. It may be limited by executive order of the President, a law providing for judicial review, and a rule of procedure promulgated by the Supreme Court. (Angeles v. · Gaite, G.R. No. 165276, 2009). Power of Supervision The power of a superior officer to ensure that the laws are faithfully executed by subordinates. ·

' The power of supervision does not include the power of control; but the power of control necessarily includes the power of supervision. The President's power over GOCCs comes not from the Constitution but from statute. Hence. it may similarly be taken away by statute. For Administrative Proceedings, decisions of Department Secretaries need not be appealed to the President in order to comply with the requirement of exhaustion of administrative remedies.

The President may transfer any agency under the Office of the President to any other department or agency, subject to the poiicy in the Executive Office and in order to achieve simplicity, economy and efficiency (Anak Mindanao v. Executive Secretary, G.R. No. 166052, 2007). The creation of the Truth Commission does not fall within the President's power to reorganize. It flows from the faithful-execution clause of the Constitution under Article VII, Section 17 thereof. One of the recognized powers of the President is the power to create ad hoc committees. This flows from the need to ascertain facts and determine if laws have been faithfully executed or guide the President in performing his duties relative to the execution and enforcement of laws. The Truth Commission will not supplant the Ombudsman or the Department of Justice or erode their respective powers. The investigative function of the Commission will complement those of the two offices (Biraogo v. The Philippine Troth Commission of 2010 I Rep. Edee/ C. Lagman, et al. v. Exec. Sec. Paquito N.

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ATENEO CENTRAL BAR OPERATIONS 2G19 Ochoa, Jr., et al., G.R. No. 192935 & G.R. No. 19303, 2010).9 (c) Local Government Units The power of the president over local government units is only of general supervision. He can interfere with the actions of their executive heads only if these are contrary to law. President exercises direct supervision over autonomous regions, provinces, and independent cities. To facilitate the exercise of power of general supervision of local government, the President may merge administrative regions and transfer the regional center to Koronadal City from Cotabato City (Republic v. Bayao, G.R. NO. 179492, 2013). MILITARY/EXTRAORDINARY POWERS

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Scope (Sec. 18) As Commander-in-Chief of the Armod Forces, whenever necessary, the President may call out the Armed Forces to: PREVENT or SUPPRESS 1. Lawless violence 2. Invasion 3. Rebellion He may also: 1. Suspend the privilege of the writ of habeas corpus 2. Proclaim a state of martial law Grounds For The Suspension Of The Prlvileqe Of The Writ Of Habeas Corpus And Declaration Of Martial Law Actual, and not merely imminent Invasion Rebellion; and Public safety requires it

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Effects of Suspension of Writ 1. Proclamation does not affect the right to bail; 2. Suspension applies only to persons facing charges of rebellion or offenses inherent in or directly connected with invasion; 3. Persons arrested must be charged within 3 days, if not they must bereleased: and 4. Proclamation does not supersede civilian authority

POLITICAL LAW While the suspension of the privilege of writ and the proclamation of martial law is subject to judicial reviow, the actual use by the President of the armed forces is not. Thus, troop deployments in times of war are subject to the President's judgment and discretion. Limitations: 1. Suspension or proclamation is effective for only 60 days. 2. W!thin 48 hours from the declaration or suspension. the President must submit a report in person or in writing to Congress. 3. Congress, voting jointly, by a vote of at lsast c1 majority, may revoke the same, and the Fresident cannot set aside the revocation. 4. In the same manner, upon the President's initiative, Congress may extend the proclamation or suspension for a period determined by Congress if: a. Invasion or rebellion persists, and b. Public safety requires it Congress CANNOT extend the period motu proprio. Duty of President to report to Congress Section 18, Article VII, requires the President to report his -, actions to Congress, in person or in writing, within 48 hours of such proclamation or suspension. In turn, the Congress is required to convene without need of a call within 24 hours following the Presidents proclamation or suspension. Clearly, the Constitution calls for quick action on the part of the Congress. Whatever form that action takes, therefore, should give the Court sufficient time to fulfill its own mandate to review the factual basis of the proclamation or suspension within 30 days of its issuance. (Fortun v. Arroyo, G.R. No. 190293, 2012) Supreme Court Review 1. In an appropriate proceeding flied by any citizen; 2. The SC may review the sufficiency of the factual basis of the proclamation or suspension, or the extension thereof. 3. Its decision must be promulgated within 30 days from filing. In reviewing the sufficiency of the factual basis Of the proclamation or suspension, the Court considers only the information and data available to the President prior to, or at tho time of the declaration; it is not allowed to "undertake an independent investigation beyond the pleadings.ff On

9 Note: The main defect seen in tho Truth Commission was the failure in equal protection because the ourpose of Its creation was to focus on acts under GMA's administration. Page 47 of 320

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the other hand, Congrnss may trike into consideration not only data available prior to, but likewise events supervening the declaration. Unlike the Court which does not look into the absolute correctness of the factual basis as will be discussed below, Congress could probe deeper and further; it can delve into th€:l accuracy of the facts presented before it. (Lagman v. Medialdea, G.R. No. 231658, 2017) . Section 18, Article VII itself sets the parameters for determining the sufficiency of the factual basis for the declaration of rnartiai law and/or the suspension of the privilege of the writ of habeas corpus, "namely (1) actual invasion or rebellion, and (2) public safety requires the exercise of such power." Without the concurrence of the two conditions, the President's declaration of martial law and/or suspension of the privilege of the writ of habeas corpus must be struck down. What the President needs to satisfy is only the standard of probable cause for a valid declaration of martial law and suspension of the privilege of writ of habeas corpus. (Id.) Martial Law Does Not Suspend the operation of the Constitution Supplant the functioning of the civil courts or legif,lative assemblies Authorize conferment of jurisdiction on military courts over civilians where civil courts are able to function " Automatically suspend the privilege of the writ of habeas corpus The scope of the Supreme Court's power to review the declaration of Martial Law or suspension of the writ of habeas corpus is limited to a determination of the sufficiency of the factual basis of such declaration or suspension. (Lagman v. Medla/dea, G.R. No. 231658, July 4, 2017) The nature of the Supreme Court's jurisdiction to determine the suffidency of the factual basis for the declaration of martial law and the suspension of the privilege of the writ of habeas corpus by the President is sui generis and granted by Sec. 18, Art. VII of the Constitution. The said provision provides that in case of invasion or rebellion, when public safety requires it, the President may, for a period not exceeding 60 days suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. It does not stem from Sec. 1 or 5 of Art. VIII. (Lagman v. Medislclea, G.R. No. 231658, July 4, 2017)

Judicial Power to Review vs. Congressional Power to Revoke Martial Law and Suspension of the Writ of Habeas Corpus Judicial flower to review

Congressional Power to revoke

Ccngress may take into Court can only refer to information available to the consideration: President prior to or at the • Data available to the time of the declaration President prior to or at the time of the Court is not allowed to declaration and undertake en independent • Events supervening investigation beyond the the declaration pleadings Does not look into the Can probe further and absolute correctness of the deeper, can delve into factual basis accuracy of facts presented before it Passive power

Automatic

Initiated by filing of a petition "in an appropriate proceeding" by a citizen

May be activated by Congress itself at any time after ths proclamation or suspension was made

(Lagman v. At,ed1a/dea, G.R. No. 231658, July 4, 2017) Declaration Of State Rebellion The factual necessity of calling out the armed forces is something that is for the President to decide, but the Court may look into the factual basis of the declaration to determine if it was done with grave abuse of discretion amounting to lack of jurisdiction (IBP v. Zamora, G.R. No. 141284, 2000). Judicial inquiry can go no further than to satisfy the Court not that the President's decision is correct but that the President did not act arbitrarily. Thus, the standard laid down is not correctness, but arbitrariness. PP 1017 is constitutional insofar as it constitutes a call by PGMA on the AFP to suppress :awless violence, which pertains to a spectrum of conduct that is manifestly subject to state regulation, and not free speech. PP 1017 is unconstitutional insofar as it grants PGMA the authority to promulgate "decrees." Legislative power is within the province of the Legislature. She can only order the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence (David v. Gloria Macspagal-Arroyo,G.R. No. 171396, 2006).

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The President does not have the power to take over privately owned public utilities or businesses affected with public interest, without prior legislation. Gen. Order No. 5 is constitutional since it provides a standard by which the AFP and the PNP should implement PP 1017, that is, suppressing lawless violence. However, considering that "acts of terrorism" have not yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is declared unconstitutional (David v. Macapagal-Arroyo, G.R. No. 171396, 2006). The declaration of a state of emergency is merely a description of a situation that authorizes (the President) to call out the Armed Forces to help the police maintain law and order. It gives no new power to her, or to the military, or to the police. Certainly, it does not authorize warranUess arrests or control of media (David v. Ermita, G.R. No. 171409, 2006).

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Presidential proclamation of a state of emergency is NOT sufficient to allow the President to tal<e over any public utility. Since it is an aspect of emergency powers in accordance with § 23 (2). Art. VI of the Constitution, there must be a law delegating sucn power to the President (David v, Macagapal Arroyo, G.R. No. 171396, 2006).

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Ways to Lift the proclamation or suspension 1. Lifting by the President himself; 2. Revocation by Congress; 3. Nullification by the Supreme Court; and 4. By operation of law after 60 days (CONST. Art. VII, Sec.18) ,,.

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The factual necessity of calling out the armed forces is something that is for the President to decide (IBP v Zamora, GR No. 141284, August 15, 2000). PARDONING POWERS (SEC. 19) Nature and Limitation The matter of executive clemency is non-delegable power and must be exercised by the President personally (Villena v, Secretary of the Interior, G.R. No. L-46570, 1939).

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The power exists as an instrument for c:orrecting the infirmities in administration of justice and for mitigating whenever a strict application of the provisions of the law . will result in undue harshness. (Bernas, 1987 Philippine Ccnstitution: A Commentary, 924, 2009).

limitations: Cannot be granted: Before conviction, in cases of impeachment • The President can pardon criminal offenses after an impeachment proceeding such as what happened in 2007 when President Arroyo pardoned former President Estrada after having been convicted by the Sandiganbayan of plunder. • The exercise bf the pardoning power is discretionary in the President and may not be interfered with by Congress or the Court, except only when it exceeds the limits provided for by the Constltutlon (Risos-Vidal v. COMELEC, G.R. No. 206666, 2015). For violations of election laws, 'rules, and regulations without the favorable recommendation of the COMELEC In cases of clvll or legislative contempt Granted only after conviction by final Judgment. (People. v. Sa/le, 250 SCRA 581). 2. As to effect: Does not absolve civil liabilities for an offense Does not restore public offices already forfeited, although eligibility for the same may be restored (Monsanto v. Factoran, G.R. No. 78239, 1989).

4. Forms of Executive Clemency a. PARDON -An act of grace, proceeding from the power entrusted of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed ( United States v. Wilson, 503 U.S. 329, 1992). It is either condltlonal or plenary. b. AMNESTY -An act of grace concurred in by Congress, usually extended to groups of persons who commit pol!tical offenses, which puts into oblivion the offense itself. The President alone cannot grant amnesty for it needs the concurrence by a majority of all the members , of Congress. When a person applies for amnesty, he must admit his guilt of the offense that is subject to such amnesty. If his application is denied, he can be convicted based on this admission of guilt. c. REPRIEVE - postpones the execution of an offense to a day certain (People v. Vera, G.R. No. L-45685, 1937). d. REMISSION OF FINES AND FORFEITURES prevents the collection of fines or the confiscation of forfeited property but it cannot have the effect of retuming the property which has been vested in 3rd parties or money already in the public treasury (Bernas, 1987 Phillppine Constitution: A Commentary, 933,

2009).

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COMMUTATION - a rerrussion of a part of the punishment; it is a substitution of a lesser penalty for the one originally imposed (People v. Vera, G.R. No. L-

prior concurrence of the Monetary Board; and subject to such limita!ions as may be provided by law The Monetary Board shall, within 30 days from the end of every quarter of the calendar year, submit to Congress a complete report on loans to be contracted or guaranteed by the government or GOCCs that would have the effect of increasinq foreign debt.

•

45685, 1937). Amnesty

v. Pardon AMNESlY.

PARDON

Principle of Transformation of International Law (Sec.

Polltical offenses

Ordinary offenses

To a class of persons

To individuals

Need not be accepted

Must be accepted

Requires concurrence of majority of all members of Congress

No need for Congressional concurrence

A public act; subject to judicial notice

Private act of President; it must be proved.

Extinguishes the offense itself

Only penalties are extinguished; May or may not restore political rights; Absolute pardon restores; Conditional, does not. Civil indemnity is not extinguished.

May be granted before or after conviction

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.

TREATIES

Only granted after conviction by final judgment

EXECUTIVE CLEMENCY IN ADMINISTRATIVE CASES: The power to grant clemency includes cases involving administrative penalties. Where a conditional pardon is granted, the determination of whether it has been violated rests with the President. President can extend it to administrative cases but only in the Executive Branch, not Jn the Judicial or Legislative Branches of government (Llamas v. Orbos, GR. No. 99031, 1991). TAX AMNESTY: General pardon to impose penalties on persons guilty of evasion or violation of revenue or tax Jaw (Republic v. /AC, G.R. No. ~9344, 1991). POWERS PERTINENT TO FOREIGN RELATION Power to Contract or Guarantee Foreign Loans (Sec. 20) • The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the

International agreements involving politlcal Issues or changes of national policy and those involving international arrangements of a permanent character

International agreements embodying adjustments of detail carrying out wellestablished national policies and traditions and those involving arrangements of a more or less temporary nature

Power to enter Into foreign relations includes: The power to appoint ambassadors, other public ministers, and consuis. The power to receive ambassadors and other public ministers accredited to the Philippines. - The power to contract and guarantee foreign loans on behalf of the Republic. The power to deport aliens . > This power is vested in the President by virtue of his office, subject only to restrictions as may be provided by legislation· as regards grounds for deportation. In the absence· of any legislative restriction to authority, the President may exercise this power. - The Power to negotiate treaties and other international agreements. However, such treaty or international agreement shall be transmitted to the Senate. with the following options: > Approve it by 213 majority vote ·> Disapprove it outright > Approve it conditionally, with sugges~ed amendments. If re-negotiated and the Senate's suggestions are incorporated, the treaty goes into effect without need of further Senat& approval.

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EXECUTIVE AGREEMENTS

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NOTE: While a treaty is re-negotiated, there is yet no treaty.

Must be Ratified

EXECUTIVE AGREEMENTS Executive agreements are concluded: to adjust the details of a treaty, e.g., EDCA as to VFA; pursuant to or upon confirmation by an act of the Legislature; or in the exercise of the President's independent powers under the Constitution.

Rules In case Of Conflict Between Treaty And Municipal Law, Depending On Venue Philippine court: Provided both are self-executing, the later enactment will prevail, be it treaty or law, as it is the latest expression of the will of the State. International tribunal: Treaty will always prevail. A State cannot plead its municipal law to justify noncompliance with an international obligation

The President may enter into an executive agreement on foreign military bases, troops or facllitles only if the executive agreement is not the instrument that allows the presence of foreign_ military bases, troops or facilities; or merely aims to implement an existing law or treaty. (Saguisag v. Exec. sec., G.R. No. 212426, 2016)

Exception: Vienna Convention on Law of Treaties Art. 46 - Constitutional violation was: .· : > Manifest - Objectively evldent to any State conducting itself in the matter in accordance with normal practice and in good faith. > Concerned a rule of Its inten 1al law of fundamental importance.

Altllough municipal law makes a distinction between international agreements and executive aqreements, with the former requiring Senate approval and the latter not needing the same, under international law, there is no such distinction.

An "exchange of notes" is a record of a routine agreement that has many similarities with a private law contract. The agreement consists of the exchange of two documents, each of the parties being in possession of the one signed by the representative of the o1her. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. An exchange of notes is considered a form of an executive agreement, which becomes binding through executive action without the need of a vote by the Senate or Congress (Abaya vs. Edbane, G.R. No. 167919, 2007).

The President cannot, by executive agreement, undertake an obligation that indirectly circumvents a legal prohibition. The President alone without the concurrence of the Senate abrogated a treaty. Assume that the other country party to the treaty is agreeable to the abrogation provided it complies with the Philippine Constitution. If a case involving the validity of the treaty abrogation is brought to the SC, it should dismiss the case. The Jurisdiction of the SC (other lower courts) over a treaty is only with respect to questions of its constilutionality of validity. It does not pertain to the termination/abrogation of a treaty {Gonzales v Hecnenove. G.R. Na. L-21897, 1963). , '... :J

The Exchange of Notes between Secretary Romulo and the US Ambassador embodying a "No Surrender Agreement'' regarding citizens arrested under the Rome Treaty ie valid. An exchange of Notes is equivalent to an executive agreement and it is a valid form of international agreement. The categorization of agreements in Eastern Sea Trading, is not cast in stone. Neither a hard and fast rule on whether Senate concurrence is needed for executive agreements. (Bayan Muna v. Secretary Romulo, G.R No. 159618, 2011).

Treaty v. E>recutive Agraement10

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TREATY Involves political lssues.' national policy

EXECUTIVE AGREEMENT Involve details carrying out national policy

International agreements More or less temporary in of a pennanent kind character

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No need to be ratified

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VETO POWERS

POWERS RELATIVE TO APPROPRIATION MEASURES ITEM VETO POWER on the basis of: Doctrine of Inappropriate Provisions - A provision ihat is constitutionally inappropriate for an appropriation bill may be subject to veto even if it is not an appropriation or revenue "item." Executive lmpoundment - Refusal of the President to spend funds already allocated by Congress for a specific purpose. It is, in effect, an "impoundment" of the law allocating such expenditure of funds.

Pocket veto vs. Item veto

DELEGATED POWEM Congress may delegate tariff powers to the President. Art. VI, Section 23 (2) authorizes Congress to give the President power necessary and proper to carry out a · declared national policy; Section 28(2) authorizes Congress to deleqate the power to fix tariff rates, import and expert quotas, tonnage, wharfage dues and other duties and impost. (See Supra.) EMERGENCY POWERS can be delegated by Congress to the President. Malampaya and Presidential Social Fund violates the non-delegability of legislative power (PERLAS· BERNABE)

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Malampaya fund - The phrase "and for such other purposes as may be hereafter directed by the President" under r Section 8 of PD 910 constitutes an undue delegation of legislative power insofar as it does not lay down a sufficient standard to adequately determine the limits of the President's authority with respect to the purpose for which the Malampaya Funds may be used. (Belgica v. Hon. Ochoa, 2013) Presidential Social Fund - "to finance the priority infrastructure development projects" under Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No. 1993, for both failing the sufficient standard test in violation of the principle of non-delegability of legislative power as it gives the President the unlimited discretion to determine which projects are considered "priority". (Belgica v. Hon. Ochoa,

2013)

The President must communicate his decision to veto within 30 days from the date of receipt thereof. If he fails to do so, the bill shall become law as if he signed it. This rule eliminates tha possibility of a 'pocket veto' whereby the President simply refuses to act on the bill. In exercising the veto power, the bill is rejected and returned with his objections to the House from which it orlqinated. The House shall enter the objections in the · journal and proceed to reconsider it. ( See earlier comment)

Pocket Veto

Item Veto

When the president is considered to have rejected a bill submitted to him for his approval when Congross adjourns during the period given to the president to approve or reject a bill

Power of a president to nullify or cancel specific provisions of a bill, usually a budget appropriations bill, without vetoing the entire legislative package

Congressional pork barrel violates the President's power to item-veto (PERLAS-BERNABE) • The President cannot exercise his item-veto power because the purpose of the lump-sum· discretionary budget is still uncertain. Furthermore, it cannot be considered an item because an item is defined in the field of appropriations as the particulars, details, distinct and severable parts of the appropriation or of the bill. (Belg/ca v. Hon. ocnoe, 2013) RESIDUAL POWEP.S ,,

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The President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above, or which are not delegated by the President in accordance with law. The textual justification for this under the Constitution is Article VII, Section 17 -to ensure that the laws are faithfully executed - called the Faithful Execution Clause.

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by the Constitution or the laws that the needs of the nation demand. It is a power borne l)y the President's duty to preserve and defend the Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws are faithfully executed (Marcos v Manglapus, G. R. No. 88211, 1989)). EXECUTIVE PRIVILEGE Executive Privilege is the power of the President to withhold certain types of information from the court, the Congress, and the public. (Neri v. Senate, G.R. No. 180643, 2008). . (See portionof PresidentialPrivilege for more comments) Non-Delegable Powers of the President · Commander-in-Chief powers; Appointment and removal power; The power to g,·ant pardons and reprieves; The authority to receive ambassadors and other public officials; and The power to negotiate treaties. (Neri v, Senato, G.R. No. 180643, 2008)

OTHER POWERS

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RULES OF SUCCESSION

Man~er Of Election (Sec. 4): The President and Vice-President shall be elected by the direct vote of the people. Election returns for President and Vice-President, duly certified by th~ Board of Canvassers of each province or city, shall be transmitted to Congress, directed to the Senate President. Upon receipt of the certificates of canvass, the Senate President shall, not later than 30 days after the day of the election, open all the certificates in the presence of both houses of Congress, assembled in joint public session. The Congress, after determining the authenticity and due execution of the certificates, shall canvass the votes. The person having the highest number of votes shall be proclaimed elected. In case of a tie between 2 or more candidates, one shall be chosen by a majority of ALL the members of both Houses, voting separately.

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Borrowing Power: The President may contract or guarantee foreign loans on behalf of the Republic with the concurrence of the Monetary Board, subject to such limitations as rr.ay be provided by law. Deportation Power · Power to Receive Ambassadors and other public ministers duly accredited to the Philippines Informing Power: The President shall address Congress at the opening of its regular session. He may also appear before it at any time. · Call Congress to a special session Emergency Powers: Congress may authorize the President to exercise powers necessary and proper to carry out a declared national policy. • Conditions for the Exercise of the President of Emergency Powers: 10. There must be a war or national emergency; 11. There must be a law authorizing the President to exercise emergency powers; 12. Exercise must be for a limited period 13. Exercise must be necessary and proper to carry out a declared national policy; and 14. Must be subject to Restrictions that Congress may provide Power to Classify an::I Reclassify lands

The Supreme Court en bane shall act as the sole judge over all contests relating to the election, returns, and qualifications of the President or Vice-President and may promulgate its rules for the purpose. I

Congress may delegate countlnq to a committee provided it approves it as a body. Considered as a non-legislative function of Congress. Proclamation of President-Elect & VP-Elect is the function of Congress not the COMELEC's. Limitations: 1. Salaries and emoluments of the President and VicePresident shall be determined by law 2. Shall not be decreased during the tenure of the President and the Vice-President 3. Increases take effect only after the expiration of the term of the incumbent during which the increase was approved. 4. No other emolument from the government or any other source during their tenure may be received.

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POLITICAL LAW Vacancy in the Office of the \'ice-President (Sec.9) Procedure T':> Fill Up Vacancy President will nominate new VP from among the members of either House of Conqress. . . Nominee shall assume office upon confirmation by majority vote of ALL members of both Houses, voting separately. (In effect, nominee forfeits his seat in Congress.) Election of President and Vice-President after vacancy (Sec.10)

Succession of President-elect and Vice-President elect at the Start of the Term (Sec. 7) VACANCY

sUCCESSOR

President-elect fails to qualify or lo be chosen

VP-elect will be Acting President until a President is qualified/chosen

President-elect dies or permanently disabled

VP beco mes President

Both President and VPelect are not chosen, or do not qualify, or both die, or both become permanently disabled

Senate President, or in case of his ina bility, Speaker of the House shall act as Presiclent until a President or a VP shall have been cho sen and qualified.

Death, permanent disability, or inability of Senate President and Speaker of the House as Acting President

Procedure Congress shall convene 3 days after the vacancy in thl:l offices of both the President and the \/P, without need of a call. The convening of Conqress cannot be suspended. Within 7 days after convening, Congress shall enact a law calling for a special election to elect a President and a VP. The special election cannot be postponed.

Congress shall determine, bylaw, who will be the Acting President until a President or VP shall have qual\fied.

The requirement of three readings on separate days under Sec. 26(2), Art VI shall not apply to a bill calling for a special election. The law shall be deemed enacted upon its approval on third reading.

Succession of President and Vice-President During Mid-Term (Sec. 8) VACANCY

SUCCESSOR

President dies/ permanently disabled/ impeached or resigns

VPbecomes President for the une xpired term

Both President and VP die/ permanently disabled/ impeached, or resign

Senate President, or in case of his inability, Speake r of the House shall acl as President until the President or VP shall have been elected and qualifie d.

Death, permanent disability, or inability of Senate President and Speaker of the House as Acting President

The special election shall be held within 45-60 days from the time of the enactment of the law. Limitation: No special election shall be called if the vacancy occurs within 18 months before the date of the next presidential election. Temporary Disability of the President to discharge his duties [Sec. 11 J may be raised In either of two ways: By the President himself, when he sends a written declaration to the Senate President and the Speaker of the House. In this case, the Vice-President will be Acting President until the President transmits a written declaration to the contrary.

Congress shall determine, bylaw, who will be the Acting President until a Preside nt or VP shall have been el ected and qualified, subject to the same restrictions of powers and disquali fications as the Acting President

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When a majority of all Cabinet members transmit to the Senate President and the Speaker of the House their written declaration. The VP will immediateiy assume the powers and duties of the office as Acting President. ·:._;..·

Scenarios After Disability is Relayed in The Congress: If the President transmits a written declaralion that he is not disabled, he reassumes his posltion.

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declaration to the contrary, Congress shall decide the issue. In this event, Congress shall convene within 48 hours if it is not in session, without need of a call. Within 10 days after Congress is required to assemble, or 12 days if Congress is not in session, a 2/3 majority of both Houses, voting separately, is needed to find the President temporarily disabled, in which case, the VP will be Acting President. Presidential Illness (Sec. 12) General Rules: If the President is seriously ill, the public must be informed thereof. ·

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During such illness, the following shall not be denied access to the President: National Security Adviser Secretary of Foreign Affairs - Chief of Staff of the AFP -----

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2019

JUDICIAL POWER

IV. JUDICIAL DEPARTMENT

A.

B.

C.

D.

E.

Judicial Power The authority to settle justiciable controversies or disputes . involving rights that are enforceable and demandable before the courts of justice or the redress of wrongs for violations of such rights and 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 instn.,mentality of the government. (Lopez v. Roxas, G.R. · No. L-25716, 1966). '

TOPIC OUTLINE UNDER THE SYLLABUS Judicial Power Judicial Review 1. Requisites 2. Political Question Doctrine 3. Moot Questions 4. Operative Fact Doctrir!e Safeguards of w1ullicial Independence 1. Judicial and Bar Council a. Composition b. Powers 2. Fiscal Autonomy Qualifications of Members of the Judiciary Workings of the Supreme Court 1. En bane and Division cases 2. Procedural Rule-making 3. Administrative supervision over lower courts 4. Original and Appellate Jurisdiction

Where Vested Vested in the Supreme Court and such lower courts as may be established by law. Hence, they may neither attempt to assume or be compelled to perform non-judicial functions. They may not be charged with adminfstrative functions, except when reasonably Incidental to the fulfillment of their duties (Mera/co v. Pasay Transportation Co., G.R. No. L-37878, 1932). Duties of the courts (Sec. 1) To settle actual controversies involving rights which are legally demandable and enforceable; To determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. · The courts cannot give advisory opinions. Necessity of Applicable Law The courts cannot exercise judicial power when there is no applicable law. In a number of cases decided, the Supreme court ruled that the exercise of judicial power when there is no applicable law is not authorized.

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The court has no authority to entertain an action for judicial declaration of citizenship because there was no law authorizing such proceeding (Channie Tan v. Republic, G.R. No. L-14159, 1960). An award of honors to a student by a board of teachers may not be reversed by a court where the awards are govemed by no applicable law ( Santiago Jr. v. Bautista, G.R. No. L-25024, 1970). Courts cannot reverse the award of a board of judges in an oratorical contest (Felipe v. Leuterio, G.R. No. L-4606,

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ATENEO CENTRAL BAR OPERATIONS 2019 Jurisdiction The power to hear and decide a case. a) Who Definas: Congress shall have the power to define, prescribe and apportion the jurisdiction of the various courts, but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Sec. 5, Art. VIII [Sec. 2. Art. VIII], b) No law shall be passed increasinq the appellate jurisdiction of the Supreme Court as provided in the Constitution without its advice and concurrence [Sec. 30, Art. VI]. i) Scope cf Jurisdiction The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot be the subject of substantial subtraction, for out Constitution vests the entirety of judicial power in one Supreme Court and in such lower courts as may be established by law. (Echagrayv. SOJ, GR No. 132601, January 19, 1999) Limitations of Judicial Power 1. Political Questions: A question, the resolution of which has been vested by the Constitution exclusively In the people, in the exercise of their sovereign capacity, or In which full discretionary authority has been delegated to a co-equal branch of the Government (Tanada v. Cuenca, G.R. No. L-10520, 1957). 2. Separation of Powers : The Supreme Court and its members should not and cannot ne required to exercise 'any power or to perform any trust or to · assume any duty not pertaining to or connected with the administering of judicial functions. (Manila Electric Co. v Pasay Transportation,GR No 37878, November 25, 1932) 3. Not the function of the judiciary to give adviscry opinion : The function of the courts is to determine controversies between litigants. They do not give advisory opinions. (Directorof Prisons v Ang Cho Kio, GR No. 30001, June 23, 1970)

Expanded Jurisdiction and Authority of the Supreme Court Art. VIII; Sec.1, Par.2, of the Constitution expanded the power, authority and jurisdiction of the courts of justice, particularly the Supreme Court, to determine whether any branch of the government has committed grave abuse of discretion amounting to l~ck or excess of jurisdiction.

POLITICAL LAW or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review (Oposa v. Factoran, Jr. GR No. 101083, July 30, 1993) JUDICIAL REVIEW Judicial Review: • ThEI power of the SC to declare a law, treaty, ordinance, etc. unconstitutional (Sec. ·1(2)) • Lower courts may also exercise the power of judicial review, subject to the appellate jurisdiction of the SC. (Sec. 5(2)) • Only SC decisions set precedents. As thus, only SC decisions are binding on all. Requisites of Judicial Review: (REARS) The question Involved must be B.lpe for adjudication, e.g. the challenqed government act must have had an adverse effect on the person challenging it. The question of constitutionality must be raised in the first instance, or at the garliest opportunity. An Actual case calling for the exercise of judicial power. Resolution of the issue of constltutionality is unavoidable or is the very lis mota of the case. The person challenging the governmental act must have ., ·~tanding' (Locus Stand,) Exception: The Court can waive the procedural rule on stanc.iing in cases that raise issues of transcendental importance. Functions of Judicial Review 1. Checking - Invalidating a law or executive act that is found to be contrary to the Constitution 2. Legitimating - upholding the validity of the Jaw that results from a mete dismissal of a case challenging the validity of the law 3. Symbolic - to educate the bench and bar as to the contro!ling principles and concepts on matters of grave public importance for the guidance of and restraint upon t:,e future (Salonga v. Cruz Pano, GR No 59524, February 18, 1985) Doctrine of Judicial Supremacy When the judiciary allocates constitutional boundaries, it neither asserts superiority nor nullifies an act of the Legislature. It only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them.

Under this expanded jurisdiction conferred to the Supreme Court, the political question doctrine is no longer the insurmountable obstacle to the exercise of judicial power Page 57 of 320 ....

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Actual Case Refers to a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial determination. 'Ripe for Adjudication' A constitutional question is ripe for adjudication when the governmental act being challenged has had a direct adverse effect on the individual challenging it. It is also necessary that there be a law that gives rise to some specific rights of persons or property, under which adverse claims are made. (Santiago Jr. v. Bautista, GR No. 25024, march 30, 1970) Elements of Standing (ITR)

a. The petitioner must have personally suffered some actual or threatened Injury which can be legal, economic, or environmental; b. The injury is fairly traceable to the challenged action; and · c. The injury is likely to be redressed by a favorable action (Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. COMELEC, GR No. 132922, April 21, 1998) Requisites for Third Party Standing (jus terti1) (IRf.1): The litigant must have suffered an injury-in-fact, thus giving him or her a "sufficiently concrete interest" in the outcome of the issue in dispute; ' The litigant must have a close Belatlon to the third party; and There must exist some Hindrance to the third party's ability to protect his or her own interests. (White Light v. C.'ty of Manila, 576 SCRA 416, 2009) Rules on the Liberal Approach on Locus Standi In recent years, the SC has been following a liberal approach on standing in high profile issues. The rules may be summarized as follows: 4. For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional 5. For voters, there must be showing of obvious interest in the validity of the election law in question; 6. Forconcerned citizens, there must be showing that the issues raised are of transcendental importance which must be settled 7. For legislators, there must be a claim that the official action complained of infringes their prerogatives as legislators; 8. Government of the Philippines is a proper party to question the validity of its own laws

Epistolary Jurisdiction This concept is a result of the relaxation of the rule on locus standi; where a third party (who may have suffered no damage) can approach the court on behalf of a marginalized affected class.

Guidelines in determining whether or not a matter is of transcendental importance: The character of the funds or other assets involved in the case; The presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent ager.cy or Instrumentality of the government; and . · The lack of any other party with a more direct and specific interest in the questions being raised ( Chamber of Real Estate and Builders' Association, Inc. v. EnergyRegulatory Commission, et al., G.R. No. 174697, 2010). Taxpayer Suits

A taxpayer suit is proper only when there is an exercise of the spending or taxing power of Congress, whereas citizen standing must rest on direct and personal interest in the proceeding. In sum, it bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not establish locus standi. Evidence of a direct and personal interest is key ( Southern Hemisphere Engagement Networr., Inc., et al. v. Anti- Terrorism Council, et al., 2010). Rule on Raising at the Earliest Opportunity General Rule: The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same. (Matibag v Benipayo, GR No. 149036, April 2, 2002) Exceptions: 1. In criminal cases - at any time at the discretion of the court 2. In civil cases - at any stage of the proceedings if necessary for the determination of tne case itself; or 3. In every case (E1cept where there is estoppel) - at any stage if it involves the jurisdiction of the court (People v. Vera, GR No. 45685, November 16, 1937) Justiciable Controversy A definite and concrete dispute touching on the legal relations of parties having adverse legal interests, which may be resolved by a court of law through the application of a law (Cutaran v. DENR, GR No 134958, January 31, 2001)

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ATENEO CENTRAL BAR OPERATIONS 2019 Requirements for Justiclability a. That there be an actual controversy between or among the parties to the dispute; b. That the interests of the parties be adverse; c. That the matter in controversy be capable of being adjudicated by judicial power; and d. That the determinaticn of the controversy will result in practical relief to the complainant. (a) Operative fact Effect of a Declaration of Unconstitutionality - Prior to the declaration that a particular law is unconstitutional, it is considered an "operative fact". Vested rights acquired under such law before it was declared unconstitutional are not prejudiced by the subsequent declaration that the law is unconstitutional.

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A mere administrative practice, not formalized into a rule or ruling, will not suffice because such a mere administrative practice may not be uniformly and consistently applied. An administrative practice, if not formalized as a rule or ruling, will not be known to the general public and can be availed of only by those within the formal contacts witn the government agency. (CIR v. San Roque Power Corporation, G.R. No. 187485, 2013) (b) Moot questions When an action is considered Moot An action is considered MOOT when it no longer presents a justiciable controversy because the issues involved have become academic or dead or when the matter has already been resolved. There is nothing for the court to resolve as the determination thereof has been overtaker. by subsequent events (Atty. Evillo C. Pormento v. Estrada and COMELEC, G.R. No. 191988, 2010). A moot 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. As this Court has time and again declared, the "moot and academic" principle is not a magical formula that automatically dissuades courts in resolving a case.

POLITICAL LAW d. the case Is capable of repetition yet evading review. (Narra Nickel Mining and Development Corp. v. Redmont Consolidation Mines Corp., G.R. No. 195580,

20'15) (c) Political questions doctrine Political Question - A question, the resolution of which has been vested by the C0nstitution exclusively 1. In the people, in the exercise of their sovereign capacity, or 2. In which full discretionary authority has been delegated to a co-equal branch of the Government (Tanada v. Cuenco, G.R. No. L-10520, 1957). While courts can determine questions of legality with respect to governmental action, they cannot review government policies and the wisdom behind such policies. These questions are vested by the Constitution in the Executive and Legislative Departments. "EDSA I involves the exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise,of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President. EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is extra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented a political question; EDSA II involves legal questions" (Estrada v. Desierto, G.R. No. 146710-15, 2001). The Judiciary is NOT precluded from reviewing "political questions". Under the second clause of Sec. 1, Art. VIII , (the power to determine whether or not there has been a grave abuse of discretion) the Courts may now determine whether there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government.

The determination of what constitutes "betrayal of public When Courts still decide even if the case is Moot trust" or "other high crimes" is a political question. A The Court may still take cognizance of an otherwise moot determination of what constitutes an impeachable offense and academic case, if it finds that: is a purely political question, which the Constitution has left a. there is a grave violation of the Constitution; to the sound discretion of the legislature (Ma. Merveditas b. the situation Is of exceptional character and paramount . N. Gutierrez v. The House of Representatives Committee public interest is involved; on Justice, et af., G.R. No. 193459, 2011). c. the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and · . the public; and Page 59 of 320

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The Ombudsman, despite being a constitutionally created body with constitutionally mandated independence comes within the scope of the power of Judicial review which serves as a safety net 1:1gainst capricious and arbitrary acts of any branch or agency of the Government (Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, G.R. No. 135715, 2011). Examples of political questions In jurisprudence. Interpretation of the meaning of "disorderty behavior" and the legislature's power to suspend a member (there is no procedure for the imposition of the penalty of suspension nor did the 1935 Constitution define what "dlsorderty behavior is). The matter is left to the discretion of the legislature (Osmena, Jr. v. Pendatun, G.R. 17144, 1960). Whether the court could intervene in a case where the': House of Representatives was said to have disregarded its own rule. The court was hold to have been without authority to interv&ne (Arroyo v. De Venecia, G.R. No. 127255, 1997). Recognition of diplomatic immunity (International Catholic Migration Commission v. Hon. Calleja, G.R. No. 85750, 1990). Examples of cases ln jurisprudence where the Court . held that there was nu political question involved. · 1. Apportionment of representative districts {because there are constitutional rules governing apportionment) (Bagabuyo v. COMELEC, G.R. No. 176970, 2008). 2. Suspension of the privilege of the writ of habeas corpus because the Constitution sets limits to executive discretion on the matter (Montenegro v. Castaneda, G.R. No. L4221, 1952). . 3. Manner of forming the Commission on Appointments (Daza v. Singson, G.R. No. 86344, 1989; Coseteng v. Mitra, G.R. No. 86649, 1990; Guingona v. Gonzales, G.R. No. 106971, 1992). SAFEGUARDS OF SECURING JUDICIAL INDEPENDENCE 1.

Being a Constitutional body, it may not be abolished by law;

• Creation and abolition of courts - The power to create courts IMPLIES•the power to abolish and even re-orqanlze courts. But this power cannot be exercised in a manner that would undermine the securlty of tenure of the judiciary. If the abolition or re-organization is done in good faith and not for political or personal reasons, it is valid. 2. Members are only removable by impeachment;

3. SC may not be deprived of minimum and appellate jurisdiction; appellate Jurisdiction may not be increased without its advice or concurrence; Congress cannot deprive the Supreme Court of its jurisdiction over cases provided for in the Constitution. Congress can only do the following: • Define enforceabla and demandable rights; prescribing remedies for violations of such rights

4. 5. 6. 7.

• Determine the court with jurisdiction to hear and decide controversies or disputes arising from legal rights SC has administrative supervision over all inferior courts and personnel; SC has exclusive power to discipline judges/ justices of inferior courts; Members of the judiciary enjoy security of tenure; Members of judiciary may not be designated to any agency performing quasi-judicial or administrative

functions; • The Court rejected 'petltloner's claim that the Presidential Electoral Tribunal (PET) exercises quasi-judicial functions contrary to Section 12, Article VIII of the Constitution. When the Supreme Court, as the PET, resolves a presidential or vicepresidential election contest, it performs what is essentially a judicial power (Atty. Macalintal v. Presidential Electoral Tribunal, G.R. No. 191618, 2010). 8. Salaries of judges may not be reduced. • Salaries of SC Justices and judges of lower courts shall be fixed by taw. It cannot be decreased during their continuance in office, but can be increased. Members of the Judiciary are NOT 'exempt from payment of income tax (Nitafan v. CIR, G.R. No. 78780, 1987). 9. SC alone may initiate Rules of Court; 10. SC alone may order temporary detail of judges; 11. SC can appoint all officials and employees of the Judiciary.

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Salaries of Judges and General Income Tax In Nitafan v CIR, the Court held that the salaries of Justices and Judges are properly subject to a general income tax law applicable to all income earners and that the payment of such income tax by Justices and Judges does not fall within the constitutional protection against decrease of their salaries during their continuance in office.

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JUDICIAL RESTRAINT

in the practice of law in the Philippines or has held public office in the Philippines requiring admission to the practice of law as a requisite.

Judicial Restraint This doctrine is well intertwined with the doctrine of separation of powers. The courts should defer to the decisions made by the legislature and executive branches and should not thwart the implementation of these acts unless they are clearly unconstitutional. The Supreme Court exercises judicial restraint where the issue before it has already been mooted by subsequent events.

THE JUDICIAL ANO BAR COUNCIL Composition 1. Chief Justice, as ex-officio chairman 2. Secretary of Justice, as ex-officio member 3. Representative of Congress, as ex-officio member 4. Representative of the Integrated Bar 5. A professor of law 6. A retired member of the SC 7. Private sector representative

Appointments to the Judiciary Qualifications Every prospective appointee to the judiciary must apprise the appointing authority of every matter bearing on his fitness for judicial office including such circumstances as may reflect on his integrity and probity (Office of the Court Administratorv. Estacio,1, Jr., A.M. No. RTJ-87-104, 1990; Gutierrez v. Be/an, A.M. No. MTJ-95-1059, 1998).

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The last four are the regular members of the JBC. The President, with CA approval, appoints regular members who serve for 4 years, in staggered terms. The JBC is composed of 7 members coming from different I sectors. Thus, while we do not lose sight of the bicameral nature of our legislative department, it is beyond dispute that the Constitution is explicit that we have only "a representative". Thus, two (2) representatives from Congress would increase the number of JBC members to eight (8), a number beyond what the Constitution has contemplated. The lone representative of Congress is entitled to one full vote. This eifectively disallows the scheme of splitting the said vote into half between two representatives of Congress.

Until a correction of existing records on one's birth and citizenship, one cannot accept an appointment to the judiciary, as that would be a violation of the Constitution. For this reason, he can be prevented by lnjunction from doing so (Kilosbayan v. Ermita, G.R. No. 177721, 2007}. Qualifications for J11dges and Justices: SUPREME COURT

LOWER LOWER NONCOLLEGIATE COLLEGIATE COURTS (CA, CTA, COURTS Sandiganbayan)

Natural born Philippines

At least years old

citizen

of

40 Possesses

Thus, any inclusion of another member, whether with one whole vote or 1/2 of it, goes against that mandate. Section 8(1 ), Article VIII of the Constitution, providing Congress with an equal voice with other members of the JBC in recommending appointees to the Judiciary is expllcit (Chavez v. JBC, G.R. No. 202242, 2013).

the Citizen of the Philippines (may be a naturalized citizen)

other prescribed by Congress

qualifications

Functions of The ,JBC Primary Function: Recommend appointees to the Judiciary. Secondary Function: It may also exercise such other functions as the SC may assign to it.

At least 15 Member of the Philippine Bar years of experience as a judge or in the practice of law in the Philippines A person of proven competence, integrity, probity and independence

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Rules on Appointments/Clustering of Nominees 1. President shall appoint Members of the Supreme Court and judges of lower courts from a list of al least 3 nominees for each vacancy, as prepared by the JBC. 2. No CA confirmation is needed for appointments to the Judiciary. 3. Vacancies in SC should be filled within 90 days from t~e occurrence of the vacancy.

Note: For the RTC/MTC the age requirements is at least 35/30 years old' has been engaged for at least 10/5 years PagP. 61 of 320

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Vacancles in lower courts should be filled with:n 90 days from submission to the President of the JBC list. 5. Midnight Appointments - Explicit prohibition against , midnight appointments is already unnecessary due to · the intervention of and screening made by Judicial Bar Council (JBC) (De Castro v. JBC, G.R. No. 191002, 2010)

THE SUPREME COURT

4.

Term Members of the SC and ji.;dges of the lower courts hold office during good behavior until: 1. The age of 70 years old 2. They become incapacitated to discharge their duties Note: For judges of the lower courts, the term is the same.

Power to Discipline. . The Supreme Court en bane shall have the power to discipline judges of lower courts OR order their dismissal by a vote of a majority of the Members who actually took part on the issues in the case and voted thereon (CONST. Art. VIII, Sec. 11J Decisions of the SC on disciplinary cases en bane is needed only when the penalty imposed is dismissal of a judge, disbarment of a lawyer, suspension of either for more than 1 year or a fine exceeding 10,000 pesos (People v Gacott, GR No 116049, July 13, 1995)

A Constitutional Court . The Supreme Court is the only constitutional court, all the lower courts being of statutory creation. Composition Of The Supreme Court • Chief Justice,· and • 14 Associate Justices The President cannot appoint a temporary member of the Supreme Court. There can be no doubt that the Chief Justice and Associate Justices required by the Constitution · to compose the Supreme Court are regular members of the Court. A temporary member would be a misnomer, implying a position not contemplated by the Constitution. Thus, a lciw which authorizes the President to designate any judge of the lower court or cadastral judge to act as member of the Supreme Court is void ( Vargas vs. Ril/aroza, G.R. No. L-1612, 1948). The members of the judiciary perform judicial functions. This function is exclusive. They cannot perform nonjudicial functions. For this reason, the Constitution provides that the members of the SLipreme Court and of other courts shall not be delegated to any agency performing quasi-judicial or administrative functions. ( Sec. 12, Art. VIII.)

FISCAL AUTONOMY The entire judiciary shall enjoy fiscal autonomy. Annual appropriations for the Judiciary cannot be reduced below the amount appropriated for 1.ne previous year. Once approved, approprlations shall be automatically and regularly released. Any exemption from the paymert of legal fees granted by Congress to government-owned or controlled corporations and local government units will r.ecessarily reduce the Judiciary Development Fund (JDF) and the Special Allowance for the Judiciary Fund (SAJF). Undoubtedly, such situation is constitutionally infirm for it impairs the Court's gl'aranteed fiscal autonomy and erodes its independence (GS/S v. Heirs of Caballero, et et., G.R. No. 158090, 2010).

Hearing Of Cases In The Supreme Court: Divisions of 3, 5, or 7 members En Banc Primus Inter Pares Literally, first among equals; the maxim indicates that a person is the most sen!or of a group of people sharing the same rank or office. The phrase has been used to describe the status, condition or role of the Chief Justice in many supreme courts around the world. Decisions By The Supreme Court Reached in consultation before being assigned to a member for the writing of the court's opinion. A certification to this effect must be signed by the Chief Justice and attached to the record of the case, and served upon the parties.

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Absence of a certification does not mean that there was no consultation prior to assignment of the case to a member. The presumption of regularity prevails but the erring officer

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will be liable administratively ( Consing v. Court of Appeals, G.R. No. 78272, 1989). Members of the SC who took no part, or who dissented or abstained must state the reasons therefor.

cases Heard By Division: . Decided with the concurrence of a majority of the members who took part in the deliberations and voted thereon Majority vote in a division should be at least 3 members

All lower colleglate courts shall observe the same procedure (e.g., CA, CTA, and Sandiganbayan).

Cases Required To Be Heard En Banc All cases involving constitutionality of a: (UT) - !:.aw - International or executive agreement - Ireaty All cases involving the constitutionality, application or operation of: (POPORI) - f.residential decrees - Qrders - froclamations - Qrdinances - Other _Regulations - [nstructlons

Decisions By The Lower Courts • Decisions must state clearly and distinctly the facts and the law on which they are based. (CONST. Art. VIII, Sec. 14) • Memorandum decisions, where the appellate court adopts the findings of fact and law of the lower court, are allowed as long as the decision adopted by reference is attached to the Memorandum for easy reference. (Oil and Natural Gas Commission v. CA, GR No. 114323, July 23, 1998) Timeframe For Deciding

SUPREME COURT

COLLEGIATE COURTS

LOWER COURTS

24 months from 12 months from 3 months from submission

submission

submission

Periods above commence from the date of submission for decision or resolution. A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading, briaf, or memorandum required by the Rules of Court or by the Court itself. ; •·. ·;. T

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Upon expiration of the period without decision or resolution, a r.ertification stating why no decision or resolution has been rendered shall be issued and signed by the Chief Justice or presiding judge. A copy of the certillcation shall be attached to the record of the case or matter, and served upon the parties.

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The expiration of the period notwithstanding, the court shall decide or resolve the case or matter without further delay. The Sandiganbayan falls under the 3-month rule because it is a trial-court, not a collegiate court (Re: Problemsof Delays in Cases Before the Sandiganbayan,A.M. No. 008-05-SC, 2002). 1. EN BANC AND DIVISION CASES

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All cases required to be heard en bane under the Rules of Court Appeals from Sandlganbayan and from the Constitutional Commissions Cases heard by a division where required r:najority of 3 was not obtained Cases where SC modifies or reverses a doctrine or principle of law laid down by the SC en bane or by a division Administrative cases to discipline or dismiss Judges of lower courts Election contests for President and Vice-President. Other cases outside the ehumeration are heard in Division and decided or resolved with the concurrence of a majority of the members who actually took part in the deliberations on the issues and voted thereon, but in no case without the concurrence of at least 3 such members. Decisions or resolutions of a division of the court, when concurred in by a majority of Its members who actually took part in the deliberations on the Issues in a case and voted thereon is a decision or resolution of the Supreme Court itself. The Supreme Court sitting en bane is not an appellate court vis-a-vis its Divisions, and it exercises no appellate jurisdiction over the latter. Each division of the Court is considered not a body inferior to the Court en bane, and sits veritably as the Gourt en bane itself. The only constraint is that any doctrine or prinr.iple of law laid down by the Court, either rendered en bane or in division, may be overturned or reversed only by the Court sitting en bane. (FirestoneCeramics v. CA, G.R. No. 127245, 2000)

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Sin Perjuico Judgments One that is rendered without a statement of the facts in support of its conclusions, to be later supplemented by the final judgment. The Supreme Courted expressed its disapproval of the practice of rendering of sin prejuico judgments. (NACHURA) PROCEDURAL RULE-MAKING The Supreme Court has the power to promulgate rules concerning the: The protection and enforcement of constitutional rights Pleading, practice and procedure in all courts Admission to the practice of law The Integrated Bar Legal assistance to the underprivileged

ADMINISTRATIVE SUPERVISION OVER LOWER COURTS SC has administrative supervlslon over all inferior courts and personnel: . Temporarily assign lower court judges to other stations in the public interest. Temporary assignment - shall not exceed 6 months without the consent of the judge concerned. Only the SC en bane has jurisdiction to discipline or dismiss judges of lower courts. Disciplinary Action/Dismissal: Majority Vote of SC Justices who took part in the deliberations and voted therein. ORIGINAL AND APPELLATE JURISDICTION

A legislative grant of exemption from the payment of legal fees under RA 8291 was held to be unconstitutional since the payment of legal fees is an integral part of the rules promulgated by the court pursuant to Its rule-making power ' under the Constitution. The separation of powers among the three co-equal branches of our gcvernment has erected an impregnable wall that keeps the powers to promulgate rules of pleading, practice and procedure within the sole province of the Supreme Court. The other branches cannot trespass upon this prerogative by enacting laws or issue orders that effectively repeal, alter or modify any of the procedural rules (Re: Petition for Recognition of the GSIS from Payment of Legal Fees, A.M. No. 08-2-01-0, 2010). However, it was ruled that Congress can amend the Rules of Court in cases where it involves not just procedural elements but also substantve matters (Republic v.

SC has Original Jurisdiction over: 1. Cases affecting: a. Foreign ambassadors b. Other foreign public ministers c. Consuls stationed in the Philippines 2. Petitions for: a. Certiorari b. Prohibition c. Mandamus d. Quo Warranto e. Habeas Corpus .

5. OTHER POWERS OF THE SC • Power to Appoint: SC appointed al officials and employees of the Judiciary in accordance with the Civil Service Law • Temporary Assignments temporarily assign judges stations es public interest exceed 6 months without concerned

Glngoyon, G.R. No. 166429, 2006). Rule-making power also includes the inherent power to suspend its own rules in particular cases in the interest of justice.

of Judges: SC . may of lower courts to other may require and NOT to the consent of the judge

• Order a Change of Venue: SC may order a change of venue or place of trial to avoid miscarriage of justice • Contempt Powers:

Limitations on Judicial Rule-Making: 1. It should provide a simplified and inexpensive procedure for the speedy disposition of cases. 2. It should be uniform for all courts of the same grade. It should not diminish, increase, or modify substantive rights. 3. Order a change of venue or place of trial to avoid a miscarriage of justice.

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SC has Appellate Jurisdiction over: Over final judgments and orders in the following: 1. All cases involving constitutionality of :baw, International agreement or Ireaty (LIT) 2. All cases involving the constitutionality, application or operation of froclamation, Qrder, fresidential decree, Qrdinance, Begulation or Instruction (PP.OPORI) 3. All cases involving the legality of any: !ax, fmpost, Ioll, Assessment or any fenalty imposed in relation thereto (TITAP)

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4. All cases in which the jurisdiction of any lower court is in issue 5. Criminal cases where the penalty imposed is reclusion perpetua or higher. 6. All cases where only errors or questions of law are. involved Judicial Privilege Judicial privilege insulates the Judiciary from an improper intrusion into the functions of the judidal branch and shields justices, judges, and court officials and employees from public scrutiny or the pressure of public opinion that would impair a judge's ability to render impartial decisions. (In Re: Production of Court Records and Documents a.nd the Attendance of Court Officials and Employees as. Witnesses under the Subpoenas of February 10, 2012 and the Various Letters of Impeachment Prosecution Panel dated January 19 and 25, 2012, Notice ot Resolution, February 14, 2012). Court records which are "predecisional" and ''deliberative" in nature are protected and cannot be the subject of a subpoena. A document is "predeclsional" If it precedes, in ternrorai sequence, the decision to which it relates. A material is "deliberative" if it reflects the give-and-take of the consultative process. (In Re: Production of Court Records and Documents and the Attendance of Court Officials and Employees as Witnesses under the Subpoenas of February 10, 2012 and the Various Letters of Impeachment Prosecution Panel dated January 19 and 25, 2012, Notice of Resolution, February 14, 2012).

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Prlvlleged documents or communications not subject to disclosure: Court actions such as the result of the raffle of cases and the actions taken by the Court on each case Included in the agenda of the Court's session on acts done material to pending cases, except where a party litigant requests information on the result of the raffle of the case, pursuant to Rule 7, Section 3 of the Rules of Court of the Supreme Court (IRSC);

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Records of cases that are still pending for decision are privileged materials that cannot be disclosed, except only for pleadings, orders and resolutions that have been made available by court to the general public. The principle of comity or inter-departtnental courtesy demands that the highest officials of each department be exempt from the compulsory processes of the other departments; · These privileges belong to the Supreme Court as an institution, not to any justice or judge in his or her individual -, capacity. Since the Court 1s higher than the individual justices or judges, no sitting or retired justice or judge, not even the Chief Justice, may claim exception without the consent of the Court. Judicial Privilege can be Invoked to 1. Deny access to specific portions of the Court's records to the Members of the House Prosecution Panel and the Senate Impeachment Court; i. Prevent the oral disclosure of specific matters by the Justices or officials of the Supreme Court before the Senate Impeachment Court The Internal Rules of the Supreme Court (IRSC) prohibits the disclosure of: 1. Result of the raffle of cases; 2. Actions taken by the Court on each case included in the agenda of the Court's session; 3. Deliberations of the Members in court sessions on cases and matters pending before it; 4. The privilege against disclosure of these kinds of lnformaUon/communicatlon is known as deliberative process privilege · To qualify for Protection under Deliberative Process Privilege To qualify for protection under the deliberative process privilege . the agency must show that the document is both predecisional and deliberative.

Court deliberations or ths deliberations of the Members of the court sessions on cases and matters pending before the Court;

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Court records which are "pre-decisional" and "deliberative" in nature; Confidential Information secured by justices, judges, court officials and employees in tne course of their official functions mentioned in the 2 preceding enumerations, are privileged even after their term of office; Page 65 of 320

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CONSTITUTIONAL SAFEGUARDS TO ENSURE INDEPENDENCE OF COMMISSIONS

V. CONSTITUTIONAL COMMISSIONS TOPIC OUTLINE UNDER THE SYLLABUS A. Common provisions B. Powers and functions of the CSC, COMELEC, and COA C. Composition and Qualificetions of Members D. Prohibited Offices and Interests E. Review of final orders., Resolutions, and Decisions

Independent Constitutional Commissions · 1. Civil Service Commission (CSC) 2. Commission on Elections (COMELEC) 3. Commission on Audit (COA) Prohibited Offices and Interests (BEEH) No member of a Constitutional Commission shall, during his tenure: (1) f!e financially interested, directly or indirectly, in 'any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies or instrumentalities (2) gngage in the Practice of any profession: (3) gngage in the Active management and control of any business which in any way may be affected by the functions of his office; and (4) Hold any other Office or Employment; What are the Constitutional safeguards to er.sure Independence of the commissions? (a) The commissions are constitutionally created, and may not be abolished by law (Phil Const. art. IX-A, §1) (b) Each is expressly described as 'independent' (c) Each is conferred certain powers and functions by the Constitution which cannot be reduced by statute {Phil Const. art. IX-8, C, and D) (d) The Chairmen and members cannot be removed, except by impeachment (Phil Const. art. XI, § 2) (e) The Chairmen and the members are given a fairly long term of office of 7 years (Phil Const. art. IX-B, C, and

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(f) The Chairmen and members may not be re-appointed or appointed In an acting capacity (g) The salaries of the Chairmen and members are relatively high and may not bo decreased during · continuance in office (Phll Const. art. IX,§ 3; art. XVIII, § 117) (h) The Commissions enjoy fiscal autonomy (Phil Const. art. IX-A, § 5). (i) Each Commission en bane may promulgate its own procedural rules, provided they do not diminish, increase or modify substantive rights (PHIL CONST. art. IX,§ 6) • In case of conflict between the Rules of Court and the Rules promulgated by the commission, the prevailing rule will depend on where the case is filed. If before the commission, the rule of the commission prevails, If before a regular court, the Rules of Court will prevail.

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• The power of the Supreme Court to review the rules of quasi-judicial ngencies does not apply to Constitutional Commissions. · U) The Chairmen and members are subject to certain disqualifications calculated to strengthen their. integrity (PHIL. CONST. art. IX, § 2) (k) The Commissions may appoint their own officials and employees in accordance with Civil Service Law (PHIL. CONST. art. IX,§ 4). What does fiscal autonomy mean? Fiscal autonomy means that there is automatic and regular release as opposed to the fiscal autonomy of the Judiciary, which includes the rule that appropriation may not be less than the previous year. What is the concept of 'Rotational Scheme of Appointments'? The "rotational scheme of appointments" provides that the first appointees shall serve terms of 7, 5 and 3 years, respectively. "There appears to be near unanimity as to the purpose/s of the rotational system, as originally conceived, i.e., to place in the commission a new appointee at a fixed interval (every two years presently), thus preventing a fouryear administration appointing more than one permanent and regular commissioner. or to borrow from Commissioner Monsod of the 1986 CONCOM, 'to prevent one person (the President of the Philippines) from dominating the commissions"' (Funa v. Chairman of COA, G.R. No. 192791, 2012).

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The 2 conditions tor the workability of the "Rotational Scheme" are: The terms of the first batch of commissioners should start on a common date; and Any vacancy due to the death, resignation or disability before the expiration of the term should be filled only for the unexpired balance of the term (Fune v. Chairman of GOA, G.R. No. 192791, 2012 citing Republic v. Imperial, G.R. No. L-8684, 1955). Where rotational scheme of appointments apply: 1. Civil Service Commission (CSC) 2. Commission on Elections (COMELEC) 3. Commission on Audit (GOA) 4. Judicial and Bar Council (JBC)

Promotional Appointment of Commissioner to Chairman Article IX-0, Sec. 1(2) QQes not prohibit a promotional appointment from comrnissloner to chairman as long as: (a) The commissioner has not served the full term of 7 years; and (b) The appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. [Sec. 1(2), Article IX-DJ (c) The promotional appointment must conform to the rotational plan or the staggering of terms in the commission membership. Jurisprudence on Sec.1 (2), Art.IX-Ci (1) Term of Appointment: The appointment of members of any of the three constitutional commissions, after the expiration of the uneven terms of office of the first set of commissioners, shall always be for a fixed term of seven (7) years; an appointment for a lesser period is void and unconstitutional. 7he appointing authority cannot validly shorten the full term of seven (7) years in case of the expiration of the term as this will result in the distortion of the rotational system prescribed by the Constitution. " (2) Rule on Appointment to Vacancies: Appointments to vacancies resulting from certain causes (death, ri:.lslgnation, disability or impeachment) sllall only be for the unexpired portion of the term of the predecessor; such appointments cannot be less than the unexpired portion [as it will disrupt the staggering]. (3) Memoers of Commission who served Full Term: Members of the Commission who were appointed for a full term of seven years and who served the entire period, are barred from reappointment to any position in the Commission. The first appointees in the Commission under the Constitution are also covered by the prohibition against reappointment. (4) Eligibility for Appointment as Chairman of Commissioner who resigns: A commissioner who resigns after serving in the Commission for less than seven years is eligible for an appointment as Chairman for the unexpired portion of the term of the departing chairman. Such appointment is not covered by the ban en reappointment, provided that the aggregate period of the length of service will not exceed seven (7) years and provided further that the vacancy in the position of Chairman resulted from death, resignation, disability or removal by impeachment. This Is not a reappointment, but effectively a new appointment

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(5) Rule on Temporary Appointments: Any member of the Commission cannot be appointed or designated in a temporary or acting capacity. Term of Office of Each Commission Member The terms of the first Chairmen and Commissioners of the Constitutional Commissions under the 1987 Constitution must start on a common date, irrespective of the variations in the dates of appointments and qualifications of the appointees, in orce- th.:1t the expiration of the first terms of seven. five and three years should lead to the regular recurrence of the two-year interval between the expiration of the terms. This common appropriate starting point must be on February 02, 1987, the date of the adoption of the 1987 Constitution. A. Tenn - the time during which the officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another. B. Tenure - term during which the incumbent actually holds the office. The term of office is not affected by the hold- over. The tenure may be shorter than the term tor reasons within or beyond the power of the incumbent. [Gaminde v. Commission on Audit, G. R. No. 140335 (2000)] · POWERS AND FUNCTIONS OF EACH COMMISSION

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CIVIL SERVICE COMMISSION Legal Basis: Art. IX-B, Sec. 3. The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. It shall submit to the President and the Congress an annual report on its personnel programs. Functions of the CSC 1. In the exercise of its powers to implement R.A. 6850 (granting civil service eligibility to employees under provisional or temporary status who have rendered seven years of efficient service), the CSC enjoys a wide latitude of discretion, and may not be compelled by mandamus.(Torregoza v. Civil Service Commission, 211 SCRA 230).

Under the Administrative Code of 1987, the Civil Service Commission has ~he power to hear and decide administrative cases ir.stituted before it directly or on appeal, including contested appointments.· 3. The Commission has original jurisdiction to hear and decide a complaint for cheating in the Civil Service examinations committed by government employees. [Cruz v. CSC, (2001)] 4. It is the intent of the Civil Service Law, in requiring the establishment of a grievance procedure, that decisions of lower level officials (in cases involving personnel actions) be appealed to the agency head, then to the Civil Service Commission. (Olanda v. Bugayong (2003)] 5. As the central personnel agency of the government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness and courtesy in the Civil Service. a. It may revoke a certificate of eligibility motu proprlo and consequently. the power to revoke one that has been given. b. Where the case simply Involves the rechecking of examination papers and nothing more than a re-evaluation of documents already in the records of the CSC according to a standard answer key previously set by it, notice and hearing is not required. Instead, what will apply in such a case is the rule of res ipsa loqultur {Lazo v. Civil Service Commission, G.R. No. 108824, 1994). 6. Strengthen the merit and rewards system 7. l11tegrate all human resources development programs for all levels and ranks 8. Institutionalize a management climate conducive to public accountaollity 9. Submit to the President arid the Congress an annual report of personnel programs Scope of the Civil Servi~e Commission (BIGAS) 1. !!ranches 2. !nstrumentalities 3. GOCCs with original charters 4. ,Agencies of the government 5 . .§ubdivisions (Sec.2(1), Art. IX-B)

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Qualifications (Art.lX·B, Sec.1 (1 )) 1. Natural-born citizens of the Philippines; 2. At the time of their appointment, at least 35 years of age 3. With proven capacity for public administration; and 4. Must not have been candidates for any elective position in the election immediately preceding their appointment Dis qua I ifications 1. No candidate who has iost in any election shall, within 1 year after such election, be appointed to any office in the Government of any GOCC or in any of their subsidiaries. (CONST. Art. IX-8, Sec.6) 2. No elective official shall be eligible for appoint or designation in any capacity to any public office or position during his tenure. (CONST. Art. IX-8, Sec. 7, Par(1)) Exceptions: a. the Vice President may be appolnted as member of the Cabinet b. Member of the Congress is designated to sit in the JBC 3. 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 GOCCe or their subsidiaries. (CONST. Art. IX-8, Sec. 7, Par.(2)) 4. No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign, (CONST. Art.lX-8, Sec.2, Par.(4))

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Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any member be appointed or designated in a temporary or acting capacity. (CONST. M.IX-8, Sec.1, Par(2))

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Appointment and Term Appointed by the President with the consent of the Commission on Appointments. The term is 7 years, without reappointment. The prohibition of reappointment applies even if the Commissioner has served for less than 7 years. (BERNAS)

Classes of Service 1. Career Service: characterized by entrance (a) based on merit and fitness to be determined, as far as practicable, by competitive examinations; or (b) based on highly technical qualifications; with opportunity for advancement to higher career positions and security of tenure. a. Open Career Positions: where prior qualification in an appropriate examination is required b. Closed career positions: scientific or highly technical in nature; c. Career Executive Service: undersecretaries, bureau directors d. Career Officers: other than those belonging to the Career Executive Service who are appointed by the President (e.g. those in the foreign service) e. Positions in the AFP although governed by a different merit system f. Personnel of GOCCs with original charters g. Permanent laborers, whether skilled, semiskilled or unskilled 2. Non-Career Service: characterized by entrance on bases other than those of the usual tests utilized for the career service, tenure limited to a period specific by law, or which is co-terminus with that of the appointing authority or subject to his pleasure, or which is limited to the duration a. Elective officials, and their personal and confidential staff; b. Department heads and officials of Cabinet rank who hold office at the pleasure of the President, and their personal and confidential staff; c. Chairmen and members of commissions and bureaus with fixed terms; ' d. Contractual personnel; e. Emergency and seasonal personnel The CSC cannot disallow an appointment to a position authorized by law but not included in the Index of Occupational Service. Although the CSC rules limit appointments to positions within the Index of Occupational Service, nevertheless, it is limited to the implementation of the laws it is tasked to eniorce. RA 8494 exempted the Trade and Investment Corporation from conforming to the position classification; thus, the appointment is valid ( Trade and Investment v. CSC, G.R.No.182249, 2013) .

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Appcililtments in the Civil Service General Rule: Made only according to merit and fitness to be determined, as far as practicable, by competitive examination Exceptions: (1) Policy determining - Where the officer lays down principal or fundamental guidelines or rules: or formulates a method of action for government or any of its subdivisions; e.g. department head. (2) Primarily confidential - Denoting not only confidence in the aptitude of the appointee for the duties 9f the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayals on confidential matters of state , [De los Santos v. Malla re, 87 Phil 289); OR one declared to be so t,y the President of the .Philippines upon the recommendation of the CSC [Salazar v. Mat hay, 73 SCRA 285] · (3) Highly technical - Requires possession of technical skill or :raining in supreme degree. [De tos Santos v. Mallare, supra] Types of Appointment . 1. Permanent St.atus: A permanent appointment shall be issued to a person who meets all the requirements for the positions to which he is being appointed, including the appropriate oligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof. 2. Temporary Status: In the absence of appropriate eligibles and when it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position to which he is be;ng appointed except the appropriate civil service eligibility; provided that such temporary appointment shall not exceed 12 months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available. CSC may not terminate the employment of a civil servant The CSC may not terminate the employment of a civil servant The CSC is not a co-manager or surrogate administrator of government c!ffices and agencies. Its functions and authority are limited to approving or reviewing appointments to determine their compliance with requlrernents of the Civil Service Law. On its own, the Commission does not have ihe power to terminate employment or drop members from the rolls (UP and Torres v, CSC. G.R. No. 132860, 2001).

Security of Tenure In Civil Service Law The concept of security of tenure in the Civil Service Law is embraced in Section 2(3), Article Xl-8. "No officer or employee of the civil service shall be removed or suspended except for cause provided by law." Classes of non-competitive positions Polley detennlning -where the officer lays down principal or fundamental guidelines or rules or formulates a method of action for government or any of its. subdivisions. (Nachur&, p. 418) Primarily confidential - when the nature of the office requires .close intimacy between the appointee and appointing authority which insures freedom of intercourse without embarrassment or freedom from misgiving of betrayal of personal trust on confidential matters of state. Highly technical - it means something beyond the ordinary requirements of the profession. Hence, its determination is always a question of fact. (CSC v, Javier, G.R. No. 173264, 2008) When Position Primarily Confidential A position is considered primarily confidential if the nature of the office requires close intimacy between the appointee and appointing authority which insures freedom of intercourse without embarrassment or freedom from misgiving of betrayal of personal trust on confidential matters of state. The Guarantee of Security of Tenure for Primarily Confidential Positions They are covered by the guarantee of security of tenure but the termination of their official relation can be justified on the ground of loss of confidence because in that case their cessation from office involves no removal but the expiration of the term of office. The CSC cannot take back-up files in the computer of an employee to determine if he was acting as counsel for employees with cases before the Commission when such employee has a reasonable expectation of privacy. In · determining such, the following factors should be considered: (PAC) The Employee's Belationship to the item seized; Whether the employee took Action to maintain his privacy in the item Whether the item was in the immediate fontrol of the employee; (Pollo v. Constantino-David, G.R. No. 181881,

2011)

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BAR OPERATIONS 2019 Rule on Security of Tenure No officer of employee of the CSC shall be removed or suspended except for causes provided by law. (CONST. Art. IX-8, Sec.2, Par.(3)) Security tenure is available even to positions which are considered highly technical, policydetermining and primarily confidential.

COMMISSION ON ELECTIO~ Composition One Chairman and 6 Commissioners Qualifications (NTCIM) 1. Natural-born citizen; 2. At least 35 years old at the time of appointment; 3. College degree holder; 4. Not a candidate in any election immediately preceding the appointment; and 5. Majority, including the chairman, must be members of the Philippine Bar who have been engaged in the practice of law for at least 10 years (CONST., Art.fXC, Sec.1, Par.(1))

Rule on Partisan Political Activity Joint Circular No.001 d. 2016 of the COMELEC and CSC reiterated Art. IX, Sec.2(4) that no officer or employee in the civil service shall engage, directly or indirectly. in any electioneering or partisan political campaign. However, the prohibition of €ngaging in partisan political activity does not apply tc department secretaries. (Santos v Yetco, GR No. L013932, December ?.4, 1959)

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Right to Self-Organization The right to self-organization shall not be denied to government employees. 3ut employees in the civil service may not resort to strikes, walkouts, and other temporary work stoppages, like workers in the private sector, to pressure the government. to accede to their demands. Thus, their right to organize does not include the right to strike. (SSS v, CA, GR No. 85279, jULY 28, 1989)

Appointment and Term Appointed by the President with the consent of the commission of Appointment, for a term of 7 years, without reappointment. (CONST. ,f'.rt. IX-C, Sec.1, Par(2)) If the appointment was ad interim, a subsequent renewal of the appointment does not vlolate the prohibition on reappointment because no previous appointment was confirmed by the Commission on Appointment. Further, the total term of both appointments must not exceed the 7 year limit. (Matibag v, Benipayo, GR No. 149036, April 2, 2002)

Prohibition against Additional and Double Compensation Rule: No elective or appointive public officer or employee shall receive additional, double, or indirect compensation. unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office or title of any kind from any foreign gover.,m&nt. Note that, pensions or gratuities shall not be considered as additional, double or indirect compensation. (CONST. Art.IX-a, Sec.a) a. Additional Compensation: when for one and the same office for which compensation has been fixed there is added to such fixed compensation an .extra reward in the form of bonus and the like (BERNAS) b. Double Compensation: refers to two sets of compem:ation for two different offices held concurrently by one officer Can ex officio members receive per diems? No, ex officio members of a board are not entitled to per diems. (PEZA v GOA, GR No. 189i67, Jufy 3, 2012)

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Constitutional Powers and Functions Enforce and administer • All laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. e.g., COMEU:C can enjoin construction of public works within 45 days of an election. • The COMELEC can take cognizance of any question on the conduct of plebiscite such as to correct or check what the Board of Canvassers erroneously or fraudulently did during the canvassing, verify or ascertain the results of the plebiscite either through pre-proclamation case or through revision of ballots. The power of the COMELEC to ascertain the results of the plebiscite is implicit in the power to enforce all laws relative to the conduct of plebiscite . • COMELEC can take jurisdiction over cases involving party identity and leadership or controversy as to leadership in the party. Such jurisdiction is sourced from the general power of the Commission to administer laws and rules involving the conduct of election.

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There is no need for a special legislation for the authorization of the conduct of recall elections because It is deemed included in the constitutional .. function of COMELEC, hence, contemplated in its budget in the GAA (Goh v. Bayron, G.R. No. 212584, 2014).

Exercise Exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of elective regional, provincial and city officials Election contests in the Sangguniang J
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• Decisions, final orders, or rulings of the COMELEC contests inrolving elective municipal and barangay offices shall be final, executory, and not appealable. Exception: May be appealed to tho SC EN BANC on questions of law When the decision is brought on a special civil action for certiorari, prohibition, or mandamus under Rule 64 for grave abuse of discretion under Article IX-A Section 7. Contempt powers COMELEC can exercise this power only in relation to its adjudicatory or quasi-judicial functions. It CANNOT exercise this in connection with its purely executive or ministerial functions. If it is a pre-proclamation controversy, the COMELEC exercises quasi-judlclal or administrative powers. Its Jurisdiction over 'contests' (after proclamation) is in exercise of its judicial funcnons.

d. Issue writs of certiorari, prchlbltlon and mandamus in the exercise of its appellate jurisdiction. Decide, except thane involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and Inspectors, and registration of voters. These petitions are cognizable by the Regular Courts {MTC). Deputize, with the concurrence bf the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections. • This power is NOT limited to the election period. • Applies to both criminal and administrative cases. Register political parties, organizations, or coalitions, accredit citizens' arms of the Commission on Elections. • Political parties, etc. must present their platform or program of government. • There should be sufficient publlcation. • Groups that cannot be registered: Religious denominations/ sects Those that seek to achieve their goals through violence or· unlawful means Those that refuse to uphold and adhere to the Constitution. Those supported by any foreign government e.g. receipt of financial contributions related to elections Fiie, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting elections frauds, offonses and malpractices. COME:LEC has exclusive jurisdiction 10 inve:stigate and prosecute cases for violations of election laws. COMELEC can deputize prosecutors for this purpose. The actions of the prosecutors are the actions of the COMELEC. . COMELEC can conduct preliminary investigation on election cases falling within its jurisdiction.

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'"·' Recommend to the Congress effective measures to minimize election spending, including limitation of places . where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies.

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Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision. Submit to the President and the Congress a . comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall. (CONST. Art. IX-C, Sec. 2) The vote requirement for a valid COMELEC en Banc resolution is a majority of the votes of all members, er 4 votes. If the six members are evenly divided, the Commission on Elections should rehear the case (Sevilla v. COMELEC, G.R. 203833, 2013}. Powers not given to COMELEC Decide questions involving the right to vote (placed under jurisdiction of courts); Transfer municipalities from one congressional district to another for the purpose of preserving proportionality. Cases decided by COMELEC subject to judicial review: Decisicns or determinations by COMELEC in the exercise of its administrative (not quasi-judicial) power may be questioned in an ordinary civil action before the trial court. (FilipinasEngineering & Machine Shop v. Ferrer, G.R. No. L-31455, 1985). • · The Court has no power to review on certiorari an interlocutory order or. even a final resolution issued by a DIVISION of the COMELEC. The Court can only review a final decision or resolution of the COMELEC en bane (Cagas vs. COMELEC, G.R. No. 194139, 2012). • COMELEC has jurisdiction to determine the presence of "probable cause" in election cases. The finding of probable cause and the prosecution of election offenses rests in the COMELEC's sound discretion (Baytan v. COMELEC, G.R. No. 153945, 2003}. • The Chief State Prosecutor, who may have been . designated by the COMELEC to prosecute a criminal action, merely derives his authority from the COMELEC. It is beyond his power to oppose the appeal made by COMELEC (Come/ec v. Silva, G.R. No. 129417, 1998). The COMELEC cannot itself, in the same cancellation (of certificate of candidacy) case, decide the qualification or lack thereof of the candidate if such issues are yet undecided or undetermined by the proper authority.

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The provisions in Article IX, C, Section 2, enumerating the powers and functions of COMELEC does not have ' the same exactitude of the provisions of Art. VI, Sec. 17, which provides for the HRET and SET, or that of Art. VII, Sec. 4, which provides that the SC en bane shall be the sole judge of all contest regarding the . Presidency and Vice-Presidency. These tribunals have jurisdiction over the question of qualifications of the President, VP, Senators, and the HoR. o Not one of the enumerated powers of the COMELEC as stated in Article IX C, Sec. 2 of the Constitution grants the commission the power to determine the qualifications of a candidate. • In Fermin v COMELEC, the SC ruled that mere rules could not be sufficient to provide the COMELEC with power to decide on the ineligibility of candidates. • Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 of the COMELEC rules do not allow authorization and do not constitute vestment of jurisdiction for the COMELEC to determine the qualification of a candidate. • The facts of qualification must first be established in a prior proceeding before an authority vested with jurisdiction. Prior determination of qualification may be by statute, by an executive order or by a judgment of a competent court or tribunal. • Lacking this prior determination, the certificate of candidacy cannot be cancelled or denied due course on ground of false representations regarding a candidate's qualifications except if there exists selfevident facts of unquestioned or unquestionable veracity and judicial C<;'nfessions. • In this light the COMELEC cannot cancel Poe's certificate of candidacy lacklng prior determination of her qualifications by a competent body. (PoeUamanzares 11. Come/ec et al, G.R. Nos. 221697 & 221698-700, March 8, 2016) Regulation of Public Utilities, Media and Franchises The COMELEC may, during the election period, supervise or regulate the utilization of all franchises or permits for the operation of transportation and other public utilities, media, all grants, privileges and concessions, granted by the Government. (CONST. Art.lX-C, Sec.4) The aim is to ensure equal opportunity, time, and space, and the right to reply, induding reasonable equal rates for public information campaigns and forums among candidates. (CONST.Art. lX-C, Sec.4)

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Can print media be compelled to allocate free space? No. Print media may not be compelled to allocate free space to the Commission. Such would amount to a taking of property without just compensation. (Philippine Press Institute v. COMELEC, GR No 119694, May 22, 1995) Can the COMELEC regulate expressions made by

private citizens?. No. COMELEC had no legal basis to regulate expressions made by private citizens. As such, COMELEC's order to remove the tarpaulin posted by the Diocese of 8acolod bearing the heading 'Conscience Vote' was unconstitutional. (Diocese of Bacotod v COMELEC, GR No 205728, January 21, 2()15) COMMISSION ON AUDIT Composition 1 Chairman, 2 Commissioners Qualifications 1. Natural born citizen; 2. At least 35 years old at the time of appointment 3. CPAs with at least 10 years auditing experience or members of the Bar with at least 10 years of experience in the practice of law; at no time shall all members belong to the same profession, and 4. Not a candidate in any election immediately preceding appointment (CONST. Art. IX-D,Sec.1, Par(1)) Appointment and Term Appointed by the President with the consent of the Commission of Appointments for a term of 7 years, without reappointment.

Funds cannot be released without auditing in pre-audit while in post-audit, the auditing is done only after the funds are released. To settle government accounts - This means the power to settle liquidates accounts i.e. accounts which may be adjusted simply by an arithmetical process. It does not include the power to fix the amount of an unfixed or undetermined debl To define the scope and techniques for its own auditing procedures; To promulgate accounting and auditing rules i11cluding those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures; Conduct post-audit with respect to the following: - Constitutional bodies, commissions, and offices granted fiscal autonomy - Autonomous state colleges and universities - GOCCs and their subsidiaries incorporated under the Corporation Code - Non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the government, which are required by law, through the granting institution, to submit to such audit. - To decide administrative cases involving expenditure of public funds (CONST. Art. IX-D, Sec.2)

Appointment to any vacancy shall only be for the unexpired portion of the term of the predecessor. In no case shall any member be appointed or designated in a temporary or acling capacity. (CONST. Art. IX-D, Sec.1, Par.(2)) Powers and Duties of the Commission Examine, audit, and settle all accounts pertaininq to: • Revenue and receipts of funds or property • Expenditures and uses of funds or property ownec or held in trust by, or pertain to: a. The Government b. Any of its subdivisions, agencie:3 or instrumentalities c. GOCCs with original charters.

COA is endowed with enough latitude to determine, prevent and disallow irregular, unnecessary, excessive, extravagant or unconscionable expenditures of government funds. In resc.,lving cases brought before it on appeal, respondent COA is not required to limit its review only to the grounds relied upon by a government agency's auditor with respect to disallowing certain disbursements of public funds. In consonance with its general audit power, respondent COA is not merely legally permitted, but is also duty-bound to make its own assessment of the merits of the disallowed disbursement and Mt simply restrict itself to reviewing the validity of the ground relied upon by the auditor of the £,overnment agency concerned. To hold otherwise wou!d render COA's vital constitutional power unduiy limited and thereby useless and ineffective (Yap v. Commission on Audit, G.R. No.158562, 2010).

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If COA finds the internal control system of audited agencies inadequate, COA may adopt measures, including temporary or special pre-audit, as necessary to correct deficiencies.

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Keep the general accounts of the government, preserving vouchers and other supportinq papers pertaining thereto. The functions of COA can be classified as: 1. Examining and auditi,1g all forms of government revenues and expenditures 2. Settling government accounts 3. Promulgating accounting and auditing rules 4. Deciding admlnistrative cases involving expenditures of public funds. COA's non-exclusive power to audit The COA does not have the exclusive power to examine and audit governn:ient entities. As such, public corporations under COA, jurisdiction may employ private auditors. However, COA's findings and conclusions necessarily prevail over those of private auditors, at least Insofar as government agencies and officials are concerned (OBP v COA, GR No. 88435, January ·t 6, 2002) Thus, private auditors can be hired but if there Is a conflict, COA audit prevails. · Prosecutors Power to Review Accounts Settled by COA Prosecutors may still review accounts already settled and approved by COA for the purpose of dstermlninq possible criminal liability. This: is because COA's interest in such accounts is merely adrnlnistrative.

COA is generally accorded complete discretion in the exercise of its constitutional duty and responsibility to examine and audit expenditures of public funds. Only in instances when COA acts without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction shall the Court interfere. Thus, · COA can disallow TESDA from paying a healthcare allowance to their employees. (TESDA v. COA, G.R. No. 196418, Feb 10, 2015) Jurisdiction 1. Of the Commission in General: No law shall be passed exempting any entity of the Government, or any investment of public funds, from the jurisdiction of the ' COA (CONST.Art. IX-0, Sec.3) 2. Over GOCCs: The Constitution vests in the COA audit jt_;risdiction over 'government-owned and controlled corporations with original charters, as well as 3. government owr.ed or controlled corporations without original charters'. GOCCs with original charters are subject to COA pre-audit, while GOCCs without original charters are subject to COA post-audit. The determining factor of COA's audit jurisdiction is government ownership or control of the corporation. 4. Over LGUs: LGUs, through granted local fiscal autonomy are still within the audtt jurisdiction of the COA (Veloso v COA, GR No. 193677, September 6, 2011)

Exclusive Authority to Define Scope of Audit and Examination · Pursuant to its mandate as the guardians of public funds, the COA has the exclusive authority to define the scope of its audit and examination, establish the techniques and methods for such review and promulgate accounting and auditing rules and regulations (Veloso v. Commission on Audit, G.R. No. 193677, 2011).

COA authority in Public Bidding COA has the power to detennine the meaning of 'public bidding' and what constitutes failure of the same when regulations require public bidding for the sale of governmenl property.

Civil Service Commission Scopo: All branches, subdivisions, instrumentalities, agencies of the government, including government owned and controlled corporations with original charters.

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What are Consldered Private Corporations Note that not all corporations, which are not government owned or controlled. are ipso facto to be considered private corporations as there exists another distinct class of corporations or chartered institutions which are otherwise known as "public corporations." These corporations are treated by law as agencies or instrumentalities of the government. As presently constituted, the BSP is a public corporation created t.iy law for a public purpose, and being· such the funds of the BSP fall under the jurisdiction of the Commission on Audit. (Boy Scouts of the Philippines v. GOA, G.R. No. 177131, June 7, 2011)

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Complete Discretion afforded to COA

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JURISDICTION OF EACH CONSTITUTIONALCOMMISSION

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"With Original Charter" means that the GOCC was created by special law or by Congress If incorporated under the Corporation Code, it does not fall within the Civil Service and is not subject to the CSC jurisdiction If previously government-controlled, but is later privatized, it ceases to fall under CSC Jurisdiction is determined as of the time of filing the complaint.

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Commission on Electfons EXCLUSIVE ORIGINAL jurisdiction over all contests relating to the elections, returns, and qualifications of all elective REGIONAL, PROVINCIAL and CITY officials Election contests in the Sangguniang Kabataan (SK) are not under COMELEC jurisdiction but under the jurisdiction of the DILG. • APPELLATE jurlsdlctlon over all contests involving: o ELECTIVE MUNICIPAL officials decided by trial courts of general jurisdiction o ELECTIVE BARA.NGAY officials decided by trial courts of limited jurisdiction . • A petition for certiorari questioning an interlocutory order of a trial court in an electoral protest was within the appellate Jurisdiction of the COMELEC. The Court recognizes the COMELEC's appellate jurisdiction over petitions for certiorari against all acts or omissions of courts in election cases (Bulilis v. Nuez. G.R. No. 195953, 2011). • The COMELEC HAS jurisdiction over intra-party disputes. The ascertainment of the identity of a political party and its legitimate officers is a matter that is well within its authority. The COl'vlELEC has the power to enforce and administer all laws and regulations relative to the conduct of an election. • To resolve the issue, the COMELEC need only refer to the Party Constitution. It need not go as far as to resolve the root of the conflict between the parties. It need only resolve issues as may be necessary in the exercise of its enforcement powers. Commission on Audit COA is endowed with enough latitude to determine, prevent and disallow irregular, unnecessary, excessive, extravagant or unconscionable expenditures of government funds. In resolving cases brought before it on appeal, respondent COA is not required to limit its review' only to the grounds relied upon by a government agency's auditor with respect to disallowing certain disbursements of public funds. In consonance with its general audit power, respondent COA is not merely legally permitted, but is also duty-bound to make its own assessment of the merits of the disallowed disbursement and not simply restrict itself to reviewing the validity of the ground relied upon by the auditor of the government agency concerned. To hold otherwise would render COA's vital constitutional power unduly limited and thereby useless and ineffective (Yap v. Commission on Audit, G.R. No.158562, 2010).

COA has authority not just over accountable officers but also over other officers who perform functions related to accounting such as verification of evaluations and computation nf fees collectible. and the adopUon of internal rules of control. COA has the authority to define the scope of its audit and examination, establish the techniques and methods for such review and promulgate accounting and auditing rules and regulations (Veloso v. Comm;ssion on Audit. G.R. No. 193677, 201'1). The Boy Scout of the Philippines ("BSP") is a governmentowned and controlled corporation under the jurisdiction of COA. The BSP Charter (Commonwealth Act 111 ), entitled "An Act to create a Public Corporation to be Known as the Boy soouts of the Philippines, and to Define its Powers and Purposes" created the BSP as a "public corporation" (BSP v. COA, G.R. No. '177131, 2011). . The Manila Economic and Cultural Office ("MECO") is subject to audit by the COA. The MECO is sui generis. It was established when the Philippines severed diplomatic relations with Taiwan upon recognition of China. None of its members are government officials. It is not a GOCC nor an instrumentality. Its functions are of a kind that would otherwise be performed by the diplomatic and consular offices of the Philippines. Nevertheless, the consular fees · collected by the MEC may be audited by the COA. Water districts are within the coverage of the COA. A water district is a GOCC with a special charter since it is created pursuant to a special law. Thus, COP. has the authority to investigate whether directors, officials or employees of GOCCs receiving allowances and bonuses are entitled to such benefits under applicable laws. ,'·,

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,REVIEW OF FINAL ORDERS. RESOLUTIONS, AND DECISIONS

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How Commission decides Matters or Cases Each commission shall decide matters or cases by majority vote of all its members within 60 days from submission. The rule on majority vote shall apply both in a division or en bane.

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Who constitutes 'majority' This prevision is clear when it says that the voting should be a majority vote of all its members and not only of those · who participated in the deliberation and voted therein.

Effect of Resignation of a Co~missloner When a commissioner resigns, it does not automatically invalidate the decision. So long as the required majority of the commission is still achieved despite the withdrawal of the vote of the one who resigned, the decision shall stand. Page 76 of 320

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Exception: COMELEC may sit en bane or in 2 divisions.

to bring the appeal (PD 807, sec. 37- 39); (CSC v. Dacoycoy, G.R. No. 135805, 1999).

How Election cases are decided on Election cases, including pre-proclamation controversies are decided in division, with motions for reconsideration filed to the COMELEC en bane.

. Enforcement - It has been held that the CSC can issue a writ of execution to enforce judgments, which is deemed final.

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---Majority decision of a Division The SC has held that a majority decision decided by a division of the COMELEC is valid. No One member can decide a case for the Commission As collegial bodies, each commission must act as one, and no one member can decide a case for the entire commission. (e.g. Chairman cannot ratify a decision that would otherwise have been void.) 1.

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Rendered in the exercise of quasi-judicial functions • Decisions, orders or rulings of the COMELEC or the COA may be brought on certiorari to the SC under Rule 64. • Decisions, orders or ruling of the CSC should be appealed to the CA under Rule 43. • Period for appeals is 30 days from receipt of a copy of the decision, order, or ruling. • It is however a requirement, that a motion for reconsideration must first be filed before the commission en bane, before resort to court is taken. • The certiorari Jurisdiction of the court is limited only to cases and matters rendered by a commission In the exercise of its adjudicatory power, or those relating to an election dispute and not to cases and matters purely administr ative or executive in nature .

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Rendered in the Exercise of Administrative Functions Administrative disciplinary cases involving penalty of suspension for more than 30 days, or fine in an amount exceeding 30 days' salary, demotion, transfer, removal, or dismissal from office shall be appealable to the CSC \

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Decision may be executed pending appeal Decision of CSC may be brought on appeal to the CA under Rule 43 Decision of CA may be brought on appeal to the SC under Rule 45.

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Exoneration of officers or employees from administrative charges does nol bar appeal. The CSC is the proper party

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VII. BILL OF RIGHTS TOPIC OUTLINE UNDER THE SYLLABUS A. Fundamental Powers of the State B. Private Acts and the Bill of Rights C. Rights to Life, Liberty, and Property 1. Procedural and Substantive Due Process 2. Void-for-Vagueness Doctrine 3. Hierarchy of Rights D. Equal Protection 1. Requisites for Valid Classification 2. Rational Basis, Strict Scrutiny, and Intermediate Scrutiny Tests E. Searches and Seizures 1. Requisites for a Valid Warrant 2. Warrantless Searches and Seizures 3. Administrative Arrests 4. Evidence Obtained through purely Mechanical Acts F. Privacy of Communications and Correspondence 1. Private and Public Communications 2. Intrusion, when allowed; Exclusionary . Rule G. Freedom of Speech and Expression 1. Prior Restraint and Subsequent Punishment 2. Content-Based and Content-Neutral Regulations 3. Facial Challenges and the Overbreadth Doctrine 4. Dangerous Tendency, Balanclng of Interests, and Clear and Present Danger Tests 5. State Regulation of Different Types of Mass Media 6. Commercial Speech 7. Unprotected Speech H. Freedom of Religion 1. Non-Establishment and Free-Exercise Clauses 2. Benevolent Neutrality and Conscientious Objectors 3. Lemon and Compelling State Interests I. Liberty of Abode and Right to Travel 1. Scope and Limitations 2. Watch-list and Hold Dpearture Orders J. Right to Information I 1. Scope and Limitations 2. Publication of Laws and Regulations K. Right of Association L. Eminent Domain 1. Concept of Public Use

M. N. O. P. Q.

R. S. T. U. V. W. X.

2. Just Compensation 3. Expropriation by Local Government Units Non-Impairment of Contracts Free Acess to Courts and Adequate Legal Assistance Custodial Investigation Right~. Rights of the Accused Right to the Speedy Disposition of Cases Right Against Self·lncriminatior. Right Against Double Jeopardy Involuntary Servitude Right Against Excessive Fines, and Cru~I and Inhuman Punishments Non-Imprisonment for Debts Ex post facto laws and Bills of Attainder Writs of Habeas Corpus, Kallkasan, Habeas Data, and Amparo

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FUNDAMENTAL POWERS OF THE STATE: POLICE POWER, EMINENT DOMAIN, TAXATION CONCEPT, APPLICATION, AND LIMITS The totality of governmental power is contained in three great powers: police power, power of eminent domain and power of taxation. These belong to the very essence of government, without which no government can exist...a constitution does not grant such powers to government: a constitution can only define and delimit them arid allocate their exercise amo.1g various government agencies (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009). REQUISITES FOR VALID EXERCISE • Based on public necessity and the right of the State and of the public to self-protection. For this reason, its scope expands and contracts with changing needs (Baseco v. PCGG, G.R. No. 75885, 1987).

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• It is the power of the State to enact regulations to promote the health, morals, peace and order, and welfare of the society (Ermita-Ma/ate Hotel and Motel Operators v. City Of Manila, G.R. No. L-24693, 1967). These fall under 'public necessity." • Police power has been properly characterized as the most essential, insistent, and the least !imitable of powers, extending as it does to all the great public needs

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Police Power (SM) 1. Reasonable Subiect - The subject of the measure is within the scope of police power, i.e., that the activity or property sought to be regulated affects the public welfare. The interest of the public, generally, as compared to a particular class requires interference by the state . 2. Reasonable Means - the means employed ar~ reasonably necessary for the accomplishment of the purpose, and not unduly oppressive on individuals. Both the end and the means must be legitimate (United States v. Toribio, G.R. No. L-5060, 1910). Nature Legislative but may be delegated to the following: • President • Administrative Bodies • Legislative bodies of Local Government Units

Taxation (PUJ-NO) • Must be exercised for public purpose, it must be uniform and equitable (Sison v. Ancheta, G.R. No. L59431, 1984). • The taking of property without due process of law may not be passed over under the guise of taxing power, except when the latter is exercised lowfully as when (Pepsi-Cola Bottling Company v. Municipality Of Tanauan, Leyte, 69 SCRA 460, 1976):

1. The tax is for a Public purpose; - The right of the legislature to appropriate public funds is correlative with its right to tax and as such the power of taxation may only be exercised for public purposes. In that case, the appropriation of ::,ublic funds for the construction of feeder roads on land owned by a private person is invalid for being made for other than a public purpose (Pascual v, Secretary of Public Works, G.R. No. L-10405, 1960). 2. The rule on Uniformity of taxation is observed; By uniformity, the Constitution does "not signify an intrinsic, but simply a geographic uniformity ... A tax is uniform when it operates with the same force and effect in every place where the subject of it is found'' (Churchill v. Concepcion, G.R. No. 11572, 1916). Uniformity requires that all subjects or objects of taxation similarly situated are to be treated alike or put on equal footing both in privileges and liabilities (Sison v. Ancheta, G.R. No. L-59431, 1984). 3. Either the person or property taxed is within the Jurisdiction of the government levying the tax; and 4. In the assessment and collection of taxes Notice and Opportunity for hearing are provided. Eminent Domain (PU.JU) ·. • The purpose of the taking must be public use. Just compensation· must be given to the private owner (8~:nas, The 1987 Constitution of the Republic of the Philippines, 2009). • The State has a paramount interest in exercising its power of eminent domain for the general welfare and that the superior right of the State to expropriate private property always takes precedence over the interest of private owners, provided that: (a) the expropriation is for public use (b) the exercise of the right to eminent domain complies with the guarantees of due process (Estate of JBL Reyes v. City of Manila, G.R. Nos. 132431 & 137146, 2004).

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1.

Public Use - It means public usefulness, utility, or advantage or what is productive of general benefit, so that any appropriating of private property by the state under its right of eminent domain, for purposes of great advantage to the community, is a taking for public use (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009 citing Gohld Realty Co. v. Hartford, 104 A. 2d 365, 368-9 Conn., 1954). What has emerged is a concept of public use which is as broad as public welfare. The scope of the power of eminent domain has become as broad as the expansive and ever expanding scope of police power itself (Bernas, The 1987 Constitution of the Republic of the Philipr,ines. 2009) 2. "Taking" requires: EPAP-D ' 1. Expropriator must Enter the private property 2. Entrance must not be for a momentary period, must be Permanent 3. Entry must be under warrant or color of legal Authority, 4. Property must then be devoted to a Public use. 5. Utilization of property must Deprive owner of all beneficial enjoyment of the property (Republic v. Vda. Castel/vi. G.R. No. L-20620, 1974). 3. Just Compensation - This includes not only the determination of the amount to be paid (market value) to the owner of the land but also the payment of the land within a reasonable period of time from its taking {MunicipaliCyof Makati v. Court of Appeals, G.R. No. 89898-99, 1990). It also includes interest in case of delay (Republic v, Court of Appeals, G.R. No. 146587, 2002). SIMILARITIES AND DIFFERENCF.S FUNDAMENTAL POWERS (See table above) A. As to authority which exercises the power

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• Police power and taxation may be exercised only by the government or its polllical subdivisions • The exercise of the power of eminent domain may be granted to public service companies or public utilities.

B. As to purpose • In police power. the use of tht' property is "regulated" for the purpose of promoting the general welfare, hence it is not compensable

C. As to persons affected • Police power (usually) operates upon a community or a class of entities or individuals • Eminent domain operates on an entity or an individual as the owner of a particular property. D. As to effect • In police power, there is no transfer of title, at most there is a restraint on the injurious use of the property • In taxation, the money contributed in the concept of taxes becomes part of the public funds • In eminent domain, there is a transfer of the right to property whether it be ownership or to a lesser right (e.g., possession.)

E. As to benefits received • In police power, the person affected receives no direct and immediate benefit but only such as may arise from the maintenance of a healthy economic standard of society and is often referred tc as damnum absque injuria, i.e .. "damage without injury." • In taxation, :t is assumed that the person affected receives the equivalent of the tax in the form of protection and benefits he receives from the government as such. · · • In eminent domain, the person affected receives the market value of the property taken from him. i. .~

F. As to amount of Imposition · • In police power. the amount imposed should not be more than sufficient to cover the cost of the license and the necessary expense of police surveillance and Inspection, examination, or regulation as nearly as can be estimated. • In taxation, there is generally no limit to the amount that may be imposed. • In eminent domain, there is no amount imposed but rather the owner is paid the market value of the property taken.

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• In taxation, the property (generally in the form of money) is taken for the support of government • In eminent domain, the property is "taken" for public use or benefit, hence, it must be compensated. Page 80 of 320

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ATENEO CENTRAL BAR OPERATIONS 2019 DELEGATION Police Power While police power rests primarily with the national legislature, such power may be delegated. Section 16 of the LGC, known as the general welfare clause, encapsulates the delegated police power to local governments (Social Justice Society v. Atienza, G.R. No. 156052, 2007). Taxation The power of taxation is essentially a legislative function. Taxaticn is an attribute of sovereignty. It is the strongest of all powers of the government. There is a presumption in favor of legislati-19 determination. Public policy decrees that since upon the prompt collection of revenue depends the very existence of government itself, whatever determination shall be arrived at by the legislature should not be interfered with, unless there be a clear violation of some constitutional inhibition (Sarasota v. Trinidad, 40 Phil.252, 1919).

POLITICAL LAW implementation which may call for some degree of discretionary powers under a set of sufficient standards expressed by law (Maceda v. Mace1aig, G.R. No. 88291, 1993). Eminent Domain The matter is legislative, however, "once authority is given to exercise the power, the matter ceases to be wholly legislative. The executive authorities may then decide whether the power will be invoked and to what extent (Republic v. Juan, G.R. No. L-24740, 1979). It may be delegated to LGUs, other public entities and public utilities. The scope is narrower and may be exercised only when authorized by Congress, subject to its controi and restraints imposed through the law conferring the power or in other legislations. Thus, the power of eminent domain delegated to an LGU is in reality not eminent but "inferior." The national legislature is still the principal of the LGUs, the latter cannot go beyond the principal's will or modify the same (Beluso v. Municipality of Panay, G.R No. 153974, 2006).

The Legislature is free to select the subjects of taxation and it may determine within reasonable bounds what is necessary for its protection and expedients for its promotion (Lutz v. Araneta, G.R. No. L-7859, 1955). General Rule: The power to tax is purely legislative and it cannot be delegated. Exceptions: I. As to the President - Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government (Phil. Const. art. VI, § 28 ,r 2).

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II. As to Local Government - Under the present Constitution, each local government unit is now expressly given the power to create its own sources of · revenue and to levy taxes, subject to such guidelines and limitations as the Congress may provide, · consistent with the basic policy of local autonomy .. (Phil. Const. art. X, § 5). A A municipal corporation has no inherent right to impose taxes. Its power to tax must always yield to a legislative act which is superior having been passed by the state itself which has the inherent power to tax (Basco v. PAGCOR, G.R. No. 91649, 1991). . Lii. As to Administrative Agencies - When the delegation relates merely to administrative Page 81 of 320

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May be granted to public service companies or public utilities,

May be exercised only by the government' or its · political subdivisions.

The use of the property is "regulated" for the purpose of promoting the general welfare, hence it is not compensable.

The property (generally in the form of money) is taken for the support of government.

The property is "taken" for public use or benefit, hence, it must be compensated.

Operates on an entity or an Individual as the owner of a particular propeny.

Usually operates upon a commur.ity or a class of entities or individuals. There is no transfer of title, at most there is a restraint or. the injurious use of the property.

The money contributed in the concept of taxes becomes part of the public funds.

There is a transfer of the right to property whether it be ownership or to a lesser right (e.g. possession.)

The person affected receives no direct and immediate benefit but only such as may arise from the maintenance of a healthy economic standard of society and is often referred i'.o as damnurn absque injuria, i.e., "damage without injury."

Person affected receives the equivalent of the tax in the form of protection, public improvements, and benefits he receives from the government as such. Therefore, taxation may be used as an implement. of police power (Lutz v. Araneta,

The person affected receives the full and fair market value of the property taken from him.

The amount imposed should not be more than sufficient to cover the cost-of the license and the necessary expense of police surveillance and inspection, examination, or regulation as nearly as can be estimated.

There is g1merally no limit to the amount that may be imposed. ·

Regulates both liberty and property

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PRIVATE ACTS AND BILL OF RIGH..I§. Conceptually, the set of fundamental human rights and freedoms contained in the Bill of Rights, whether civil or political in character, serve as a limitation on the exercise of governmental power. Even in the absence of a Constitution, fundamental human rights may be invoked before the courts for the protection of citizenry. The Bill of Rights governs the relationship between the individual and the state. Its concern is not the relation betw3en individuals, between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder [People v. Marti, G.R. No. 81561 (1991 )]. The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. If the violation is by private individuals, the remedy is found in the Civil Code, or If proper, in the Revised Penal Code. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009) \.. ,/

Human rights have a primacy over property rights. The rights of free expression and of assembly occupy a preferred position as they are essential to the preservation and vitality of civil institutions [Philippine Blooming Mills Employment Organization v. Philippine Blooming Mills, Co., G.R. No. L-31195 (1973)].

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The Bill of Rights governs tho relationship between the individual and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder [People v. Marti, supra).

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DUE PROCESS - THE RIGHTS TO LIFE LIBERTY AND PROPERTY

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No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws (Phil. Const., art. 111, § 1 ) . All natural persons, and artificial persons, only in so far as their property is concerned, are protected by the Due Process clause. (Smith Bell & Co. v, Natividad, G.R. No. 15574, 1919) .

Concept and aspects of Due Process, In General · .Purpose of Due Process Due process evades a precise definition. The purpose of the quaranty is to prevent arbitrary governmental encroachment against the life, liberty, and property of indiv:duals. The due process guaranty serves as a protection against arbitrary regulation or seizure. Even corporations and partnerships are protected by the guaranty insofar as their property is concerned (White Light Corporation v. City of Manila, G.R. No. 122846, 2009). The due process guaranty has traditionally been interpreted as imposing two related but distinct restrictions on governn1ent, "procedural due process" and "substantive due process. (id.). Due process of law, in any particular case, means such an exercise of the powers of the govornment as the settled maxims of law permit and sanction and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. (U.S. v. Ling Su Fan, 10 Phil. Rep., 104, 111, 1908; Moyerv. Peabody, 212 U.S. 78, 1909). Due process of law, in its broad concept, is a principle in our legal system that mandates due protection to the basic rights, inherent or accorded, of every person against harm or transgression without an intrinsically just and valid law, as well as an opportunity to be heard before an impartial tribunal, that can warrant such an impairment. Due process guarantees against arbitrariness and bears on both I . substance and procedure. Substantive due process concerns itself with the law, its essence, and its concomitant efficacy; procedural due process focuses on the rules that are established In order to ensure meaningful adjudications appurtenant thereto. (Separate Opinion of Justice Vitug in Serrano v. NLRC, G. R. No. 11704(), 2000). The Court cannot set the benchmark of due process at the lowest level by considering each pleading submitted by a party as enough to satisfy the requirements of this Constitutional protection. If the Court is to animate the spirit of the Constitution and maintain in full strength the substance of the due process protectloo, it must afford each party the full legal opportunity to be heard and present evidence in support of his or her contentions. A party must, therefore, be given full opportunity to proffer evidence on its claim of ownership over the treasury shares in a proper case before the right court. (Philippine Coconut Producers Federation, inc., et al. v. Republic ot the Philippines, G.R. Nos. 177857-58, .W16)

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Types of Due Process 1. Procedural - Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Procedural due process concerns itself with government action adhering to the established process when it makes an intrusion into the pnvate · sphere. (White Light Corporation v. City of Manila, G.R. No. 122846, 2009). 2. Substantive - If due process were confined solely to Its procedural aspects, there would arise absurd situation of arbitrary government action, provided the proper formalities are followed. Substantive due process completes the protection envisioned by the due process clause. It Inquires whether the government has sufficient justification for depriving a person of life, liberty, or property. (White Light Corporation v. City of Manila, G.R. No. 122846, 2009).

undue deprivation of the right to property. The petitioners argued that the data preservation order that law enforcement authorities are empowered to issue is a form of garnishment of perscnal property in civil forfeiture proceedings and that such order prevents internet users from accessing and disposing of traffic data that essentially belong to them. The court upheld the section explaining that the data that service providers preserve on orders of law enforcement authorities are not made inaccessible to users by reason of the issuance of such orders. The process of preserving data will not unduly hamper the normal transmission or use of the same. (Dlsini v. Sec. of Justice, G.R. No. 203335, 2014). Relatlvity of Due Process The concept of due process is not a static one. "What due process is depends on circumstances. It varies with the . subject matter and the necessities of the situation." (Moyer v. Peabody, Governor of Colorado, 212 U.S. 78, 1909)

The Rights to Life, Liberty, and Property

Life

Procedural and Substantive Due Process

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not just a protection of the right to be alive or to the security of one's limb against physical harm; it is also the right to a good life characterized by "dignity" and "a decent standard of living." Article 2 extends the protection to the life of the unborn. Liberty includes the right to exist and the right to be free from arbitrary personal restraint or servitude.

Property includes all kinds of property in the Civil Code, including vested rights such as a perfected mining claim, or a perfected homestead, or a final judgment, the right to work and earn a living. But does not include mere privileges granted by the government, i.e., licenses. (sernas, The 1987 Constitutior. of the Republic of the Philippines, 2009). When Right Vested "A right is vested when the right to enjoyment has become the property of some particular person or persons as a present interest." (16 C.J.S. 1173). It is "the privilege to enjoy property legally vested, to enforce contracts, and enjoy the rights of property conferred by existing law· (12 C.J. 955, Note 46, No. 6) or "some right or interest in property which has become fixed and established and is no longer open to doubt or controversy" (Downs v. Blount, 170 Fed. 15, 20, cited in Balboa v. Farra/es, 51 Phi/, 498, 502; Yinluvs Trans-Asia, GR 207942, 2015). Section 13 of the Cybercrime Prevention Act on the ' preservation of computer data was assailed for being an

Procedural Due Process Procedural due process refers · to the procedure that government agencies must follow in the enforcement and · application of laws. It contemplates notice and opportunity to be heard before judgment is rendered affecting one's person or property. (Fabe/fa v. Court of Appeals, G.R. No. 110379, 1997). Adversarial proceeding becomes necessary only when there is a need to propound searching questions to unclear witnesses, a procedural right which the employee must ask for. Where the dismissal of the employee from service is due to dishonesty or for a just cause but due process was not observed as no hearing was conducted despite her request, the employer should be held liable for indemnity . in the form or' nominal damages. (Lavador v. "J" Marketing Corporation, G.R. No. 157757, 2005). Three copies of every administrative issuance should be filed in the Office of the National Administrative Reyister (ONAR) of the UP Law Center. Non-compliance makes it invalid and it may not be enforced. This requirement is put into place as a guarantee to the constitutional right to due process. (Republic v. Pilipinas Shell, G.R. No. 173918, 2008). However, not all rules and regulations adooted by every government agency are to be filed with the UP Law Center. Only those of general or of permanent character are to be filed. According to the UP Law Center's guidelines for receiving and publication of rules and regulations,

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Interpretative regulations and those merely internal in nature, that is, regulating omy the personnel of the Adrninlstrative agency and not the public, need not be filed with the UP Law Center. (The Board of Trustees of the Government Service Insurance System v. Albert Velasco, G.R. No. 170463, 201'1).

parties to the proceeding can Know the various issues involved and the reasons for the decision rendered What is required is not actual hearing, but a real opportunity to be heard. The requirement of due process can be satisfied by subsequent due hearing. Notice and hearing are required in judicial and quasi-judicial proceedings, but not in the promulgation of a general rule.

Standards for Different Types of Proceedings TYPE STANDARD i--~~~~-+~~~~~~~~~~~~-·Judicial CODE: (Ju3NO) 1. An Impartial court or tribunal Proceedings clothed with Judicial power to hear and determine the matter before it. 2. Jyrisdiction must be lawfully acquired over the person or subject matter.

., Academic Institutions f School Disl':plinary Proceedings

Service of summons is not only required to give the court jurisdiction over the person of the defendant but also to afford the latter the opportunity to be heard on the claim made against him. Thus, compliance with the rules regarding the service of summons is as much an issue of due process as of jurisdiction (Sarmiento v. Raon, G.R. No. 157219, 2004) 3. Judgment must be rendered upon a lawful hearing. 4. The defendant must be given Notice and an Qpportunity to be heard.

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CODE: (HIP-DESK) 1. The right to a Hearing, which includes the right to present one's case and subrnlt evidence in support thereof. 2. The tribunal or body or any of i_ts judges must act on its or his own Independent consideration of the law and facts of the controversy 3. The decision must be based on the evidence Presented at the hearing or at least contair.ed in the record and disclosed to the parties affected. 4. The Decision must have something to support itself. 5. The tribunal must consider the Evidence presented. 6. Evidence supporting the conclusion must be Substantial. · 7. The board or body should, in all ccntroversial questions, render its decision m such a manner that the

Deportation Proceedings

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CODE: {FACE3) 1. The penalty imposed must be f.roportionate to the offense. 2. The student shall have the right to Answer the charges against him, with the assistance of counsel if desired. 3. The student must be informed in writing of the nature and .Qause of any accusation against them. 4. The student has the right to be informed of the gvidence against him. 5. The student has the right to adduce §vidence in his own behalf. 6. The gvidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. • Proceedinqs in student disciplinary cases may be summary; crossexamination is not essential. • The school has a contractual obligation to afford its students a fair opportunity to complete the course they seek to pursue. Exceptions: 1. Serious breach of discipline 2. Failure to maintain the required academic standard CODE: (Gin-HO) 1. There should be a prior determination by the Board of Commissioners of the existence of, the !zround as charged against the alien. 2. The alien should be Informed of lhe specific grounds for deportation. 3. A .!:!earing should be conducted pursuant to the Rules of Procedure presented by the CID Commissicner .

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POLITICAL LAW

4. Order based on the determination

of the CID commissioner.

GRANTING OF BAIL If bail can be granted in deportation cases, there is no justification why it should not also be allowed in extradition cases. After all, both are administrative proceedings where the innocence or !}uilt of the person detained is not in issue. (Government of Hong Kong v. 0/alia Jr., G.R. No.

Extradition Proceedings

153675, 2007). When Bail may be granted to a prospective extraditee: 1 . Upon a clear and convincing showing that he/she will not be a flight risk or a danger to the community 2. When there exist special humanitarian compelling circumstances. The cancellation of petitioners' bail, without prior notice and hearing, could be considered a violation of petitioners' right to due process tantamount to grave abuse of discretion. (Rodriguez v. Presiding Judge, G.R. No. 157977, 2006). The doctrine in Purganan states that a possible extraditee is not entitled to notice and hearing before the issuance of a warrant of arrest, since notifying him before his arrest only tips him of his pending arrest. Instances when hearing is not necessary: 1. When administrative agencies are exercising their quasi-legislative functions. 2. When administrative agencies are exercising their' quasi-judicial functions if temporary pending hearing.' 3. Abatement of nuisance per se. 4. Granting by courts of provisional remedies. 5. Cases of preventive suspension. 6. Removal of temporary employees in the government. 7. Issuance of warrants of distraint and/or levy by the BIR Commissioner. 8. Cancellation of the passport of a person charged w;th a crime. 9. Suspension 01 a bank's operations by the Monetary Board upon a prima facie finding of liquidity problems in such bank.

Due process standards in student niscipllnary cases The PMA is not immune from the strictures of due process. The statement that "a cadet can be compelled to surrender some civil rights and liberties in order for the Code and System to be implemented" simply pertains to what cadets have to sacrifice in order to prove that they are men or women of integrity and honor, such as th3 right to entertain vices and the right to freely choose what they want to say or do. In the context of disciplinary investigation, it does not contemplate a surrender of the right to due process but, at most, refers to the cadets' rights to privacy and to remain silent. (FirstClass Cadet Aldrin Jeff P. Cudia of the PMA v. The Superintendent of the PMA, G.R. No. 211362, 2015). Publicity and Coverage The right of an accused to a fair trial is not incompatible to a free press. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. (People v, Claudio Teehankee, Jr., G.R. Nos.

111206-08, 1995). The peculiarity of the subject criminal cases is that the proceedings already necessarily entail the presence of hundreds of families. It cannot be gainsaid that the families of the 57 victims and of the 197 accused have as much interest, beyond mere curiosity, to attend or monitor the proceedings as those of the impleaded parties or trial · · participants. It bears noting at this juncture that the prosecution and the defense have listed more than 200 witnesses each. The impossibility of holding such judicial proceedings in a courtroom that will accommodate all the interested parties, whether private complainants or accused, Is unfortunate enough. What more if the right itself commands that a reasonable number of the general public be allowed to witness the proceeding as it takes place inside the courtroom. Technology tends to provide the only solutlon to break the inherent limitations of the courtroom, to satisfy the imperative of a transparent, open and public trial. Thus, the Court partially granted pro hac vice petitioners' prayer for a live broadcast of the trial court proceedings, subject to strict guidelines. (In Re: Petition for Radio and T. V. Coverage Of The Multiple Murder Case Against Zaldy Ampatuan et al., A.M. No. 10-11-5-SC, 2011).

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ATENEO CENTRAL BAR OPERATIONS 2019 Substantive Due Process. 1. Reasonable Subject - The interests of the public generally, as distinguished from those of a particular class, requires the interference by the government 2. Reasonable Means - The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. (US. v. Toribio, G.R. No. L-5060, 1910). Requisites of a valid ordinance: (Must NOT CUPPU, Must be GC) 1. Must not Contraver,e the Constitution or any statute. 2. Must not be Unfair or oppressive. 3. Must not be Partial or discriminatory. 4. Must not Prohibit, but may regulate trade. 5. Must not be Unreasonable. 6. Must be General and Consistent with public policy (Magtajas v. Pryce Properties, G.R. No. 111097, 1994). Publication Due process, which is a rule of fairness, requires that those who must obey a command must first know the command. Thus, Art. 2 of the Civil Code prescribes a 15--dayperiod of publication of laws before they take effect, unless otherwise provided. The rule that requires publication for the effectivity of laws applies not only to statutes but also to presidential decrees and executive orders promulgated by the President. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing laws pursuant also to a valid delepation (Republic v. Pilipinas Shell, G.R. No. 173918, 2008).

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While notice and hearing are required in judicial and quasijudicial proceedings, they are not prerequisites in the promulqation of general rules {in the performance of executive and legislative functions, such as issuing internal rules and regulations, an administrative body need not comply with the requirements of notice and hearing) (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009).

POLITICAL LAW Application of Constitutional v, Statutory Due Process To be sure, the Due Process Clause in Article Iii, Sec. 1 of · the Constitution embodies a system of rights based on moral principles so deeply imbedded In the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our entire history. Due process is that which comports with the deepest notions of what is fair and right and just. It is a constitutional restraint on the legislative as well as on the executive and judicial powers of the government provided by the Bill of Rights. Due process under the Labor Code, like constitutional due process, has two aspects: substantive, (i.E:., the valid and authorized causes of employment termination under the Labor Code) and procedural, (I.e., the manner of dismissal). Procedural due process requirements for dismissal are found In the Implementing Rules of P.O. 442, as amended, otherwise known as the Labor Code of the Philippines in Book VI, Rule I, Sec. 2, as amended by Department Order Nos. 9 and 10. Breaches of these due process requirements violate the Labor Code. Therefore, statutory due process should be differentiated from failure to comply with constitutional due process. Constitutional due process protects the individual from the ,, government and assures him of his rights In criminal, civil or administrative proceedings; while statutory due process found in the Labor Code and Implementing Rules protects employees from being unjustly terminated without just cause after notice and hearing. (Agabon v. NLRC, G.R. No. 158693, 2004). The case of Timber Co. v. Ababon, -':! labor case, is illustrative. Although the closure was done in good faith and for valid reasons, we find that ITC did not comply with the notice requirement. While an employer is under no obligation to conduct hearings before effecting termination of employment due to authorized cause, however, the law requires that it must notify the DOLE and its employees at least one month before the intended date of closure. (Timber Co. v Ababon G. R. 164518, 2006).

The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public . CONSTITUTIONAL AND STATUTOR'f DUE PROCESS accusation of crime, from the trouble, expense and anxiety What is often said about statutory due process is a of a public trial, and also to protect the State from useless procedure created by law, which upholds the constitutional and expensive trials. The right to a preliminary right of a person to due process. investigation is a statutory grant, and to withhold It would be to transgress constitutional due process. However, in order to satisfy the due process clause, it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with Page 87 of 320

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impunity. A prehrnlnary investig:::ition serves not only the purposes of the State. More importantly, it is a part of the guarantees of freedom and fair play, which are birthrights of all who live in our country. (Sa/onga v. Panon, G.R. No. 59524, 1985). JUDICIAL STANDARD FOR REVIEW Jurisprudence has developed three kinds of test depending on the subject matter involved {Bernas. The 1987 Constitution of the Republic of the Philippines, 2009). Tests are also applicable to Equal Protection Cases. 1. Strict scrutiny test • the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest. In terms of judicial review of statutes or ordinances, it refers to the standard for determining the quality and the amount of governmental intorest brought to justify the regulation of fundamental freedoms, it is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights; its scope has been expanded to protect fundamental rights such as suffrage, judicial access, and interstate travel (White Light Corporation v. City of Manila,. G.R. No. 122846, 2009). 2.

Intermediate scrutiny test • classification is at least' substantially related to serving an important state interest. It applied traditionally to suspect classifications tike gender or illegitimacy. It is used in dlscrirnlnatlons based on gender or illegitimacy of children. Under the intermediate scrutiny test, the classification must be substantially related to an important government objective (League of Cities v. COMELEC. G.R. No. 176951, 2008).

VOID FOR VAGUENESS DOCTRINE Void for Vagueness Doctrine · A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the essential of due process of law (Estrada v. Sandiganbayan, G.R. No. 148560, 2001). A vague law is unconstitutional because: • It violates due process for failure to accord persons fair notice of the conduct to avoid. • Law enforr:ers have unbridled discretion in carrying out its provisions. · The RH Law is not void under the void for vagueness doctrine merely due to insufficiency of definition of some terms. In determining whether the words used in a statute are vague, words must not only be taken in accordance with their plain meaning alone, but also in relation to other parts of the statute. It is a rule that every part of the statute must be interpreted with reference to the context, that is, every part of it must be construed together with the other parts and kept subservient to the general intent of the whole enactment (lmbong v. Ochoa, G.R. 204819, 2014). BERNABE: Verily, the objective of curbing unbridled enforcement is not the sole consideration in a void for vagueness analysis; rather, petitioners must show that this perceived danger of unbridled enforcement stems from an ambiguous provision In the law that allows enforcement authorities to second-guess if a particular conduct Is prohibited or not prohibited. in this regard, that amhiguous provision of law contravenes due process because agents of the government cannot reasonably decipher what conduct the law permits and/or forbids.

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3. Rational basis test· classification is rationally related to serving a legitimate state interest. This is the most liberal test. It is often used to all subjects other than those listed above. (Bernas, The 1987 Constitution of the Republic of the Philippines. 2009). Overcome the presumption of constitutionality To overcome the presumption of constitutionality, it must be demonstrated explicitly that the classification is hostile, oppressive and discriminatory against particular persons and classes and that there is no conceivable basis, which might support it.

Here, petitioners fail to point out any ambiguous standard in any of the provisions of the Curfew Ordinances, but rather, lament the lack of detail on how the age of a suspected minor would be determined. Without any correlation to any vague legal provision, the Curfew Ordinances cannot be stricken down under the void for vagueness doctrine (SPARK v. QC, G. R. No. 225442. 2017). Overbreadth Doctrine A government purpose may not be achleved by means, which sweep unnecessarily broadly and thereby invade the area of protected freedoms (Estrada v. Sandiganbayan, G.R. No. 148560, 2001).

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ATENEO CENTRAL BAR OPERATIONS 2019 Analytical tools developed for testing "on their faces" statutes The doctrines of strict scrutiny, overbreadth, and. vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases ... With respect to such statute, the established rule is that 'one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly :t might also be taken as applying to other persons or other situations · in which its application might be unconstitutional.' As has been pointed out, 'vagueness challenges in · the First Amendment context, like overbreadth challenges typically produce facial invalidation, whlle statutes found vague as a matter of due process typically are invalidated only 'as applied' to a particular defendant (Romualdez v. Sandlganbayan, G.R. No. 152259, 2004).

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Facial Invalidation an examination of the entire law, pinpointing its flaws and defects, not only on the basis of Its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities. (Southern Hemisphere Engagement Network, Inc., et al. v. Ami-Tetrorism Council, et a!.; KMU, et al. v. Hon. EduardoErmita, et al. G.R. Nos. 178552, 178554, 2010).

POLITICAL LAW chances as in the area of free speech (Estrada v. Sandiganbayan, G.R. No. 148560. 2001). "Aiding or abetting" in the commission of any offense or "attempting" to commit any offense punished in the Cybercrime Prevention is overbroad. A user can post a statement, a photo or a video on Facebook. If the post is made available to the pub'lc, anyone can react by clicking "Like.• "Comment" enables him to post his feelings or views. "Share• makes the post visible to his friends in the social network. Except from the original author of the assailed statement, the rest are knee-jerk sentiments of readers who may think little or haphazardly of their response to the posting. Unless the law takes into account the unique circumstances and culture of cyberspace, such a law will create a cl,illing effect on those who express themselves through cyberspace. Thus, Section 5, which punishes "aiding or abetting" libel on cyberspace Is void (Dislniv. Sec. of Justice, G.R. No. 203335, 2014). Void For Vagueness v. Overbreadth 1. Vagueness and overbreadth are distinct from each other; a vaque law must lack clarity and precision, while an overbroad law need not. 2. It ;s submitted that while the defect of overbreadth as an analytical tool is applicable only to cases involving speech, this is not so about vagueness (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009).

When facial challenge allowed VOID FOR VAGUENESS OVERBREADTH A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of a possible Unconstltutlonal "chilling effect" upon protected speech. The theory is that Statute or act Government regulation "[w]hen statutes regulate or proscribe speech and no of free speech readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the Lacks comprehensible Means sweep transcendent value to all society of constitutionally standards unnecessarily broadly protected expression is deemed to justify allowing attacks People guess at its Not necessarily unclear on overly broad statutes with no requirement that the me~ming; differ in person making the attack demonstrate that his own application conduct could not be regulated by a statute drawn with Violates due process; Invades protected narrow specificity." The possible harm to society in creates unbridled discretion freedoms permitting some ur.protected speech to go unpunished is outweighed by the possibility that the protected speech of (Bernas, The 1987 Ccnstitution of the Republic of the others may be deterred and perceived grievances left to Philippines, 2009). fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general In terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be , prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take Page 89 of 320

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-,---1-i-lE-=R_A_R_C_H_Y __O_F_R~l"'!'G~H~T~S--------::S~ec-t:'!"'ion-6:-o~f -:-:th-e~C-.yb ...e...re ...r.,...im"""e~P... re'."."v::e::nt:;:io:-:n-A:".c::,t~i::m::po:'.s:;".in::g Primacy of human rights over property rights is . recognized. While the Bill of Rights also protects property rights, the primacy of human rights over property rights is recognized. Property and property rights can he lost thru prescription; but human rights are imprescriptible. The superiority of these freedoms over property rights is underscored by the fact that a mere reasonable or rational relation between the means employed by the law and its object or purpose that the law is neither arbitrary nor discriminatory nor oppressive - would suffice to validate a law which restricts or impairs property rights. (Phi/fppine Blooming •Mills Employment Organization v. Philippine Blooming Mills Co., G.R. No. L-31195, 1973).

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penalty one degree higher than that provided in the RPC for acts committed by, through and with the use of . information and communlcatlons technologies was assailed for violating equal protection. The Court upheld the section and explained that Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. There exists a substantial distinctlon between crimes committed through the use of information and communications technology and similar crimes committed using other means. In using the technology in question, the offender often evades identification and is able to reach far more victims or cause greater harm. The distinction, therefore, creates a basis for higher penalties for cybercrirnes (Disini v. Secretary of Justice, G.R. No. 203335, 2014).

EQUAL PROTECTION CONCEPT The Equal Protection clause guarantees equality of all persons before the law. It does not demand absolute equality. It merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. Protection against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to orohibit legislation which is limited either [by} the object to which it is directed or by [the} territory within which it is to operate. It does not demand absolute equality among residents; it m".lrely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced (lchong v. Hernandez, G.R. No. L-7995, 1957). · Not a guaranty of equality The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely · as such, but on persons according to the circumstances surrounding them. It guarantee:. equality, not identity of rights (Victoriano v. Elizalde Rope Wor.l<ers' Union, G.R. No. L-25246, 1974).

The OAP was challenged as "unfair as it [was] selective" because tho funds released under the OAP was not made available to all the legislators, with some of them refusing to avail themselves of the OAP funds, and others being unaware of the availability of such funds. The Court held that the challenge based on the contravention of the Equal Protection Clause, which focuses on the release of funds under the OAP to legislators, lacks factual and legal basis. · The denial of equal protection of any law should be an issue to be raised only by parties who supposedly suffer it, and, in · these cases, such parties would be the few legislators claimed to have been disc, iminated against in the releases of funds under the OAP. The requirement was not rnet here (Arau/lo v. Aquino Ill, G.R. No. 209287, 2014). REQUISITES FOR VALID CLASSIFICATION: (GEES) 1. Be Qermane to the purposes of the law · 2. Not limited to Existing conditions only 3. Applied Equally to all members of the same class. 4. Rest on Substant!al distinctions (People v. Cayat, G.R. No. L·45987, 1939). Validity of Classification freeze provision The classification freeze provision does not violate the equal protection and uniformity of taxation. Even though it failed to promote fair competition among the players in the industry, the classification freeze provision was not precipitated by a veiled attempt or hostile attitude on the part of Congress to unduly favor older brands. Since the provision was done in good faith and is germane to the purpose of the law, the Court cannot declare it unconstitutional nor question its wisdom. (British American Tobacco v. Camacho, G.R. No. 163583, 2009).

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Cityhood Laws The Cityhood laws were constitutional. Based on the deliberations by Congress on RA 9009, Congress intended that those with pending cityhood bills during the 11th.Congress would not be covered by the new and higher income requirement of P100 million imposed by RA 9009. The exemption clauses found in the individual Cityhood Laws are the express articulation of that intent to exempt respondent municipalities from the coverage of RA 9009. Such Cityhood Laws are, therefore, also amendments to the LGC itself. In the enactment of the Cityhood Laws, Congress merely took the 16 municipalities covered thereby from the disadvantaqed position brought about by the abrupt increase in the income requirement (from 20 million to 100 million) of RA 9009, acknowledging the "privilege" that they have already given to those newiy-converted component cities, which prior to the enactment of RA 9009, were undeniably in the same footing or "class" as the respondent municipalities. But in effect, the Cityhood Laws granted to 33 municipalities amended RA 9009 through the exemption clauses found therein (League of Cities of the Phil. et al. v. COMELEC, et al. G.R. Nos. 176951, 177499, 178056, 2011). Is VAWC violative of the equal protection clause? RA 9262 (An Act Defining Violence Against Women and Their Children - VAWC) is not violative of the equal protection clause. There is a valid classiflcation. The unequal power relationship that women are mom likely to be victims of violence and the widespread gender bias and prejudice against women make for real differences justifying the classification. Th~ distinction Is germane to the purpose of the law to address violence committed against women. The law applies to women and children who suffer violence and abuse (Gare/av.Hon. Ori/on, G.R. No. 179267, 2013). Is the RH law violative of EPC? The RH Law, in providing that the poor are to be given priority in the government's reproductive health care program, does not violate the equal protection clause. In fact. it is pursuant to Section 11, Article XIII of the Constitution which recognizes the distinct necessity to address the needs of the underprivileged by providing that they be given priority in addressing the health development of the people. It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who are suffering from fertility issues and desire to have children (lmbong v. Ochoa, G.R. 204819, 2014).

granting the PWDs a 20% discount on the purchase of medicine, and a tax deduction scheme was adopted wherein covered establishments may deduct the discount granted from gross income based on the net cost of goods sold or services rendered. The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable foundation or rational basis and not arbitrary. With respect to R.A. No. 9442, its expressed public policv is the rehabilitation, self-development and self-reliance of PWDs. Persons with disability form a class separate and distinct from the other citizens of the country. ·Indubitably. such substantial distinction is germane and intimately related to the purpose of the law. Hence, the classification and treatment accorded to the PWDs fully satisfy the demands of equal protection. Thus, Congress may pass a law providing for a different treatment to persons with disability apart from the other citizens of the country. (Drugstores Association of the Philippines, Inc and Northern Luzon Drug Cotporeiioo v. National Council on Disability Affairs. et a/.,1G.R. No. 194561, 2016) Distinction between elective and appointive officials There is a substantial distinction between elective and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office ir, a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. (Eleazar P. Quinto and Gerino A. Tolentino, Jr., vs. COMELEC, G.R. No. 189698, 2010). Doctrine of Relative Unconstitutionality A statute valid at one time may become void at another time because of altered circumstances. Thus, if a statute in its practical opemtion becomes arbitrary or confiscatory, its validity, even though affirmed by a former adjudication, is open to inquiry and investigation in the light of changed conditions. This doctrine was invoked in a case to invalidate RA 7653, which started as a valld measure of legislative power applicable to Central Bank employees, but, with the enactment of subsequent laws exempting all rank and file employees of all GFls from the Salary Standardization Law, was rendered void on account of a violation of the equal protection clause (Central Bank Employees Association, Inc. v. Bangko Sentral ng , Pilipinas, G.R. No. 148208, 2004).

The Supreme Court upheld the constitutionality of RA No. 9442 or the Magna Carta for Persons with Disability

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means to protect such interest (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009).

Standards of Judicial Review of the constitutionality of , a classification imbued in a statute The equality guaranteed by the Equal Protection Clause is not a dlsernoodied equality. It recognized that inherent in the right to legislate is the right to classify. The problem is one of determining the validity of the classification made by law. Jurisprudence has developed three kinds of test depending on the subject matter involved (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009).

Strict scrutiny test, which is used to review laws dealing with freedom of the mind or restricting the political process, focuses on the presence of . • Compelling governmental interest; and on • The absence of less restricting means for achieving such interest. (White Light Corporation v. City of Ma,1ila, G.R. No. 122846, 2009).

Rational Basis Scrutiny The challenged classification needs only be shown to be rationally related to serving a legitimate state interest (Bernas, The 1987 Constitution of the Republic pf the Philippines, 2009). Rational basis examination, which is used to review economic legislation, is a test to see if laws or ordinances rationally further a legitimate governmental interest. (White Light Corporation v. City of Manila, G.R. No. 122846, 2009). The rational basis test was properly applied to gauge the constitutionality of the assailed law in the face of an equal protection challenge. Under the rational basis test, it is sufficient that the legislative classification is rationally related to achieving some legitimate State interest. (British American Tobacco v. Camacho, G.R. No. 163583, 2009). Middle Tier or Intermediate Scrutiny The government must shov, that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest (Bernas, The 1987 Constitution of the Republic of the Philippines, 200S'). Immediate scrutiny test, which is used to review classifications based on gender and legitimacy, extensively examines governmental interest and the availability of less restrictive measures is considered (White Ught Corporation v. City of Manila, G.R. No. 122846, 2009). Strict Judicial Scrutiny A legislative classlf'cation which impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class is presumed unconstitutional, and the burden is upon the government to prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive

BERNABE: Jurisprudence holds that compellinq State interests include constitutionally declared policies. The Court has ruled that children's welfare and the State's mandate to protect and care for them as parens patrlae constitute · compelling interests to Justify regulations by the State. It is akin to the paramount interest of the state for which some individual liberties must give way. Althouoh treated differently from adults, the foregoing standard applies to regulations on minors as they are still accorded the freedom to participate in any legitimate activity, whether it be social, religious, or civic. Thus, in the present case, each of the ordinances must be narrowly tailored as to ensure minimal constraint not only on the minors' right to travel but also on their other constitutional rights: In this case, two ordinances were declared· unconstitutional for do not account for the reasonable · exercise of tho minors' rights of association, free exercise of religion, rights to peaceabty assemble, and of free expression, among others. (SPARK v. QC, G.R. No. 225442, 2017). A differentiated rule of computation of the money claims of illegally dismissed OFWs based on their employment periods violates the Equal Protection Clause because one category is singled out which . includes those whose contracts have an unexpired portion of one year or more and have their monetary awards limited to their salaries for 3 months or for the unexpired portion, whichever is less. Imbued with the same sense of "obliqation to afford protection to labor," the Court in the present case also employs the standard of strict judicial scrutiny, for it perceives in the subject clause a suspect classification prejudicial to OFWs {Serrano v. Gallant Maritime Service, G.R. No. 167614, 2009).

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BAR OPERATIONS 2019 BERNABE: Considering that the right to travel is a fundamental right in our legal system guaranteed no less by our Constitution, the strict scrutiny test is the applicable test. It should be emphasized that minors enjoy the same constitutional rights as adults; the fact that the State has broader authority over minors than over adults does . not trigger the application of a lower level of sci utlny (SPARK V. QC, supra).

Search Warrant v. Warrant of Arrest:

SEARCHES AND SEIZURES

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Scope of Right The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determine:d personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the person or things to be seized (Phil. Const., art. Ill,§ 2)

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WARRANT REQUIREMENTS Coda: PDEP it must be based on Probable cause; Probable cause must be Determined personally by a jt!dge; 3. The judge must Examine under oath or affirmation the complainant and the witnesses he may produce; 4. The warrant must Particularly describe the place to be searched and the person or things to be seized (Phil. Const., art. Ill, § 2)

· .1. 2.

CONCEPT Section 2 protects the privacy and sanctity of the person and of his house and other possessions against arbitrary intrusion by the State. "A man's home is his castle." It is therefore a guarantee against unlawful arrests and other forms of restraint on the physical liberty of the person. It is not' a prohibition of all searches and seizures but only of "unreasonable" searches and seizures. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009). No presumption of regularity There is no presumption of regularity. Normally, searches and seizures are "unreasonable" unless there is a valid warrant issued. A liberal construction in search and seizure cases is given !n favor of the individual (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009). Section 19 of the Cyhercrime Prevention Act on Restricting or Blocking Access to Computer Data was assailed for violating the right against unreasonable searches and seizures. The SC agreed and held that the Government, in effect, seizes and places the computer data under its control and disposition without a warrant. The Department of Justice order cannot substitute for judicial search warrant (Disini v. Sec. of Justice, G.R. No. 203335, 2014).

SEARCH WARRANT

WARRANT OF ARREST

The Applicant must show The Applicant must show that the items sought are Probable cause, i.e. in fact: • That an offense has • Seizable by virtue of been committed and being connected • The person to be with criminal arrested has committed activity. it. • Will oe found in the place> to be searc:hed. The judge must personally examine the complainant or applicant and the witnesses under oath or affirmation in the form of searching questions. The applicant must have personal knowledge of I the facts. The place to be searched and the things to be seized must be described with particularity. One search warrant for one specific offense (ROC, Rule 126, § 4-6).

The judge is not required to personally examine the complainant and his witnesses. Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor or he may disregard the prosecutor's report and require the submission of supporting affidavits of witnesses. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause (Soliven v. Makasiar, G.R. No. 82585, 1988).

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Prescribes in 10 days

Until served

Searches and Seizures General Rule: Searches and seizures are unreasonable. Exception: Unless authorized by a validly issued search warrant or warrant of arrest (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009).

Page 93 of 320

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POLITICAL LAW WITHOUT A VALID WARRANT

WITH A VALID WARRANT

CODE: WIPE MS CACP 1. ~aiver of righUWith Consent

CODE: JPEPO 1. The existence of probable cause is determined personally by the Judge. ,

2. Incidental to arrest

a l;3wful

2. It must be issued upon

The judge must, before issuing the search warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. (ROC, Rule 126, §

frobable cause.

3. flain view doctrine

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3. The judge must ~xarnine

4.During sxigent and emergency situations

Note:· In issuing a warrant of arrest, the judge is not required to examine personally the complainant and the witnesses. He is only required to determine probable cause personally. He may satisfy himself by fiscal reports, if not, he may require submission of affidavit of witnesses.

under oath the complainant and the witnesses he may produce.

5. Moving vehicle

4. The warrant must farticularly describe the place to be searched and person or things to be seized. 5. II must be in connection with Qne specific offense.

6. §top and frisk rule

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(Soliven v. Makasiar, G.R. No. 82585, 1988).

7. Seizure of goods concealed to avoid &ustoms duties (does not c.'pply If the place to be searched is a dwelling house) . 8 Airport searches 9. &heckpoints 1. Warrantless search by a Private individual The Commissioner of Immigration may order the arrest of an alien in order to carry out a final deportation order.

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place to be searched and the things to be seized which may be anywhere in the Philippines (ROC, Rule 126, § 4)

Probable Cause . Refers to such facts and circumstances, which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested (warrant of arrest) or that the objects sought In connection with the offense are in the place to be searched (search warrant). Probable cause is concerned with probability, not ebsolute or moral certainty (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009). Searches with Warrant A search warrant shall not Issue except upcn probable cause in connection with one specific offense to be determined personally by the judge after examu :ation under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the .,

Warrant must particularly describe the place to be searched and the person or things to be seized Section 2, Article Ill of the 1987 Constitution requires that a search warrant should particularly describe the things to' be seized. "The evident purpose and intent of the requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant to leave the officers of the Jaw with no discretion regarding what artides they should seize, to the end that unreasonable searches and seizures may not be made and that abuses may not be committed." (People v. Go,

G.R. No. 144639, 2003). General Wa1Tants Do not allege any specific acts or omissions constituting the offense charged in the application for the issuance of the warrant. It contravenes the requisite that the things to be seized be particularly described (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009). Effect of a General Warrant It will be considered void (Nolasco v.

Pano, G.R. No. L-

69803, 1985).

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Exception: The whole warrant will not be voided if other items were particularly described (Uy v. BIR,

G.R. No. 129651, 2000).

Requirement of particularity A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow or when the description expresses a conclusion of fact - not of law - by which the warrant officer may be guided in making the search and seizure or when the things described are limited to those which bear a direct relation to the offense Page 94 of 320

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for which the warrant is being issued (Bache and Co. v. Ruiz, G.R. No. 32409, 1971; Worldwide Web Corporation v. People, G.R. 161106, 2014). A personal description, or descriptio personae is sufficient to meet the requirement of particularity (People v. Rubio, G.R. No. L-35500, 1932). The principle is applicable mutatis mutandis to search warrants (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009). John Doe warrant A John Doe warrant, in order to be valid, must contain a descriptio personae such as to enable the officer to identify the accused. (People v. Veloso, G.R. No. L-23051, 1925). A total of 42 search warrants were issued against the petitioners and corporations of which they are officers for violation of Central Bank Laws, etc. The warrants mandated the seizure of all papers and documents pertaining to the said businesses, regardless of the legality of the transactions, in the offices and residences of petitioners. There was no specific offense charged and no reference to any particular provision of the law that was violated. The SC held that the warrants were general, and general warrants are outlawed by the Bill of Rights. Particular acts must be alleged and the things to be seized must also be particularly described. A search warrant shall only issue upon probable cause in connection with one specific offense. The SC held the warrants were a fishing expedition, making the evidence obtained from the said search inadmissible (Stonehill v. Oiokno, G.R. No. L19550, 1967).

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Extent of Specificity Required The description is required to be specific only so far as the circumstances ordinarily allow and where, by the nature of the goods to be seized, their description must be rather general, it is not required that a technical description be given, as this would mean that no warrant could issue. A description substantially complies with the legal provisions when the officer of the law who executed the warrant was placed in a position enabling him to identify the articles to be seized. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009). Test of sufficiency of an affidavit for a search warrant The test of sufficiency of an affidavit for a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon and the affiant could be held liable for the damages caused (Alvarez v. CF/, G.R. No. L45358, 1937).

The offense of illegal poseession of firearms is malum prohibltum but it does not follow that the subject thereof is necessarily illegal per se. Motive is immaterial in mala prohibita but the subjects of this kind of offense may not be summarily seized simply because they are prohibited. A search warrant is still necessary (soouses Veroy v. Layague, G.R. No. L-95630, 1992). Requirement is primarily meant to enable the law enforcers serving the warrant to: • Readily identify the properties to be seized and thus prevent them from seizing the wrong items; • Leave said peace officers with no discretion , regarding the articles to be seized and thus prevent unreasonable searches and seizures , (People v. Tee, G.R. Nos. 140546-47. 2003). Process of Search, Required presence of the lawful occupant No search of a house, room or any other premise shall be made except in the presence of the lawful occupant thereof qr any member of his family or in the absence of the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the same locality (ROG, Rule 126, § 8). This requirement is mandatory to ensure requtarity in the execution of the search warrant. The Rules of Court clearly and explicitly establishes a hierarchy among the witnesses in whose presence the search of the premises must be conducted. Thus, Section 8, Rule 126 provides that the search should be witnessed by "two witnesses of sufficient age and discretion residing in the same locality" only in the absence of either the lawful occupant of the premises or any member of his family (People v. Go, G.R. No. 144639, 2003). When any court may Issue search warrant ln certain cases when no criminal action has yet been filed, any court may issue a search warrant even though It has no jurisdiction over the offense allegedly committed, provided that all the requirements for the issuance of such warrant are present. (People v. Hon. Edmar P. Castillo, Sr., G.R. No. 204419, 2016) /· "Knock and Announce" Principle in the Service of a Search Warrant Police officers are obliged to give notice, show their authority, and demand that they be allowed entry. They may only break open any outer or inner door or window of a house to execute the search warrant If, after such notice and demand, such officers are refused entry to the place

Page 95 of 320

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Waiver of Right The SC held that the right to be secure from unreasonable searches and seizures may be waived, expressly or impliedly, so long as it is made voluntarily. inteffiqentfy.. and knowingly. Mere passive conformity and failure to object to unlawful entry cannot be construed as a waiver of the right against unreasonable search and seizures. (People v. Compacion, G.R. No. 124442, 2001)

of directed search. This is known as the "knock and announce· principle which is embodied in AnglerAmerican Law. The method of entry of an officer into a dwelling and the presence or absence of such notice are as important considerations in assessing whether subsequent entry to search and/or arrest is constitutionally reasonable (People v. Huang Zhen Hua, G.R. No. 1393C1, 2004) Unannounced intrusion into the premises is permissible when: 1. A party whose premises or who is entitled to the possession thereof refuses, upon demand, to open it; 2. When such person in the premises already knew of the identity of the officers and of their authority and persons; 3. When the officers are justified in the honest belief that there is an imminent peril to life or limb; and 4. When those in the premises, aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engage:d in activity which justifies the officers to believe that an escape or the destruction of evidence is being attempted. (Id.)

Requisites: (EKI) 1. The right Exists. 2. The person had actual or constructive Knowledge of the existence of such right. · 3. There is an actual Intention to relinquish such right (People v. Tudtud, G.R. No. 144037, 2003) While it is doctrinal that the right against unreasonable searches and seizures is a personal right, which may be waived expressly or impliedly, a waiver by implication cannot be presumed. There must be clear and convincing evidence of an actual intention to relinquish it to constitute a waiver thereof. (People v. Aruta, G.R. No. 120915, 1998).

Suspects have no constitutional right to destroy evidence or dispose of evidence. However, the exceptions above are not exclusive or conclusive. Indeed, there is no formula for determination of reasonableness. Each case is to be decided on its own facts and circumstances (People v. Huang Zhen Hua and Jogy Lee G.R. No. 139301, 2004).

The right against unreasonable searches and seizures

may be waived only by: 1. 2.

the person whose rights are injured or the one who is expressly authorized to make the waiver in his behalf. (People v. Damaso, G.R No. 93516, 1992).

WARRANTLESS SEARCHES Incidental to a lawful arrest General Rule: The arrest must precede that search; the process cannot be reversed. (People v. Tudtud, G.R. No. 144037, 2003). .

The Rule that searches and seizures must be supported by a valid warrant is not an absolute rule. (Bernas, The . 1987 Constitution of the Republic of the Philippines, ·

2009). Warrantless Searches are allowable in the following circumstances: WIPE MS CACP 1. ~ofright 2. Incidental to a law~ul arrest 3. Plain view doctrine 4. During exigent and Emergency situations 5. Moving vehicle 6. ~ and frisk rule 7. Seizure of goods concealed to avoid Customs duties 8. Airport searches

9. Checkpoints 10. Warrantless search by a Private individual (Note: This

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Exception: A search substantially contemporaneous with an arrest can precede the arrest if the.police have probable cause to make the arrest at the outset of the search. (People v. Bu/en Mariacos, G.R. No. 188611, 2010).

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Scope of Warrantless Search Limited Area The scope of allowable warrantless search is limited to the area within which the person arrested could reach for a weapon or reach for evidence to destroy it. (Chimel v. California, 395 U.S. 752, 1969).·

Moreover, in lawful arrests, it becomes both the duty and the right of the apprehending officers to conduct a warrantless search not only on the person of the suspect, is found in Sec. 5, Rule 113 of the Rules of Court where a private person may arrest a person without a but also in the permissible area within the latter's reach. Otherwise stated, a valid arrest allows the seizure of warrant) (Peop/€; v. Aruta, G.R. No. 120915, 1998) evidence or dangerous weapons either on the person of Page 96 of 320

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ATENEO CENTRAL BAR OPERATIONS 2019 the one arrested or within the area of his immediate control. The phrase "within the area of his immediate control" means the area from within which he might gain possession of a weapon or destructible evidence (People v. Calantiao, G.R. No. 203983, 2014). The better established rule is a strict application of the exception provided in Rule 126, Sec. 12 (now Sec. 13) and that is to absolutely limit a warrantless search of a person who is lawfully arrested to his or her person at the time of and incident to his or her arrest and to "dangerous weapons or anything which may be used as proof of the commission of the offense." (Nolasco v. Pano, G.R. No. L69803, 1987). An officer making an arrest may take from the person: 1. Any mor.ey or property found upon his person which was used in the commission of the offense; or 2. Was the fruit thereof; or 3. Which might furnish the prisoner with the means of committing violence or escaping; or 4. Which may be used in evidence in the trial of the case. Plain View Doctrine Requisites: (VIAJ) 1. There was a prior Valid intrusion. 2. The evidence was Inadvertently discovered. 3. The evidence is immediately Apparent. 4. Plain view is Justified seizure without further search (People v. Compacion, G.R. No. 124442, 2001) .

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The immediate requirement means that the executing officer can, at any time of discovery of the object or the facts therein available to him, determine probable cause of the object's incriminating evidence. Probable cause must be the direct result of the officer's Instantaneous sensory perception of the object. The immediately apparent test does not require an unduly high degree of certainty as to the incriminating character of the evidence. (United Laboratories, Inc. v. Isip, G.R. No. 163858, 2005).

POLITICAL LAW passports and immigration documents which they discovered in the course of their search. (People v. Go, G.R. No. 144639, 2003). During Exigent and Emergency Situations (e.g., war, prevailing chaos, disorder or ongoing coup d'etat) In the event of a coup d'etat conducted by the "Reform the Armed Forces Movement Soldiers of the Filipino People", · the EUROCAR Building was put unoer surveillance pursuant to an intelligence report that it housed large quantities of ammunition. During the operations, the car of the surveillance team was fired upon by 5 persons from a crowd within the vicinity of the EUROCAR Building. The team proceeded to the building without a warrant and was able to seize de Gracia and plenty of explosives and ammunition. The SC held that the arrests were impelled by the exigencies of the situation, which concerned the very survival of society and the government. In this case, the military operatives had reasonable ground to believe that a crime was being committed. The team had no opportunity to apply for a search warrant from the courts, as the court with jurisdiction, at that time, was closed due to disorder. (People v. De Gracia, G. R. Nos. 102009-10, 1994). ·, Moving Vehicle - limited to visual search Requisites: (EP) 1. This exception is based on Exigency. If there is time to obtain a warrant in order to search tne vehicle, a warrant must first be obtained. (Coolidge v. New Hampshire, 403 U.S. 443, 1971). 2. Must still be based on Probable cause (applies only to extensive search of a moving vehicle). (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009). Limited to visual search - in checkpoint (Caballes v. CA, G.R. No. 136292, 2002) A warrantless search of a vehicle that can be quickly moved out of the locality or jurisdiction 1s valid. (Paople v. CF/, G.R. No. L-41686, 1980).

The seizure of the passports, bankbooks, checks, typewriter, check writer, dry seals and stamp pads and other assorted documents does not fall within the "plain A confidential informer tipped the police that a Gemini car view" exception. The assertions of the police officers that was going to deliver shabu. When they stopped the car, said objects were "inadvertently" seized within their "plain they saw a gun tucked in Tuazon's waist. He did not have view" are mere legal conclusions which are not supported any documents, which strengthened the police's suspicion. _by any clear narration of the factual circumstances leading After he was told to step out of the car, they found plastic to their discovery. The supposed illegal character of the sachets containing shabu on the driver's seat. These items claimed to have been seized within the "plain view" circumstances are sufficient to establish probable cause of the policemen was not readily and immediately for the warrantless search of the car. Hence, the sachets apparent. Rather, the suspicions of the policemen appear of shabu may be admitted as evidence. (People v. Tuazon, to have been aroused by the presence of the numerous G.R. No. 175783, 2007). · Page 97 of 320

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Stop and Frisk Rule When a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person ne believes to be armed and dangerous, regardless of whether he has probable cause to arrest the person or the absolute certainty that the individual is armed. Although as a general rule, a warrant should first be secured, the said procedure cannot be followed where swift action based upon on-the-spot observations of the officer is required. (Terry v. Ohio, 392 U.S. 1, 1968).

such searches. However, the SC held that the search of dwelling houses, even for the enforcement of Customs Laws, requires a warrant. The SC · recognized that jurisprudence has held that there is a difference between a) a search of a dwelling house and b} a search of a ship, motorboat, wagon. or automobile for contraband goods, where it is not practicable to secure a warrant because the vehicle can quickly escape. Thus, search of motor vehicles is likewise valid without a search warrant. The SC further held that vehicles are, after all, not actively used within the home, where the sanctity of privacy is more safeguarded, but instead is used in public places such as roads and may facilitate commission of crimes. (Papa v. Mago, G.R. No.

L-27360, 1968). "While probable cause is not required to conduct a 'stop and frisk,· (Malac:at v. Court of Appeals, G.R. No. 123595. 1997) a genuine reason must exist in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him." (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009). · Requisites: (URIRA) 1. Police Officer observes Unusual conduct. 2. ReasonabM suspicion that person is engaged in «orne type of criminal activity in light of experience. 3. Identifies himself as a policeman upon approach. ' 4. Makes Reasonable inquiries. 5. There is reasonable fear for one's own, or others' safety. Thus, he is entitled to conduct a limited search of the outer clothing of such persons in an Attempt to discover weapons that might be used for assault (Terry v. Ohio, 392 U.S. 1, 1968). Even before an arrest, an officer justified in believing that the individual whose suspicious behavior he · is investigating at close range is presently dangerous, he may conduct a limited protective search. (Malacat v. Court of Appeals, G.R. No. 123595. 1997). The more pressing interest of safety ar,d self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpected and fatally be used ag3inst the public officer. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009).

lnc!udes searches at borders and ports of. entry. An exception to this exception is the search of a dwelling house. Airport Searches This search was made pursuant to routine airport security procedure, which is allowed under Section 9 of RA 6235 . reading as follows: SEC. 9. Every ticket issued to a passenger by the airline or air carrier concerned shall contain among others the followir.g condition printed · thereon: "Holder hereof and his hand-carried luggage(s) are subject to search for, and seizure of, prohibited materials or substances. Holder refusing to be searched shall not be allowed to board the aircraft," which shall constitute a part of the contract between the passenger and the air carrier. To limit the action of the airport security personnel to simply refusing her ontry into the aircraft and sending her home. and thereby depriving them of "the ability and facility to act accordingly,· including to further search without warrant, in light of such circumstances, would be to sanction impotence and ineffectivity in law enforcement, to the detriment of society." Thus, the strip search in the ladies' room was justified under the circumstances. (People v. Canton, G.R. No. 148825, 2002). Checkpoints Requisites: (No body LAV) 1. Passengers !:J91. subjected to body search 2. Limited to visual search 3. Abnormal times 4. Vehicle not searched (Valmonte v. General De Villa, G.R. No. 83988, 1989).

Seizure of Goods Concealed to Avt;>ld Customs Duties The SC held that the Tariff and Customs Code explicitly does not require warrants for customs officers to board and search vessels, beasts, or persons suspected of introducing contraband merchandise into the Philippines. In this case, the PNP Chief, having been deputized by the Commissioner of Customs, Is, thus. authorized to carry out Page 98 of 320

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To limit the search to visual searches would defeat the aim of the COMaEC to effect the gun ban. In this case. the method employed by authorities consisted of merely stopping cars they deemed suspicious, such as those whose windows are heavily tinted just to see if the passengers thereof were carrying guns. At best they merely directed their flasl 1lights inside the cars they would stop, without opening the car's doors or subjecting its passengers to a body search. There is nothing discriminatory in this as this is what the situation demands (People v. Escano, G.R. Nos. 129756-58, 2000).

day. The apprehending officer was able to identify the markings and was able to explain how it was made. (People v. Montevirgen y Ozaraga, G.R. No. 189840, 2013). WARRANTLESS ARRESTS Arrest with Warrant v. Warrantless Arrest ARREST WITH WARRANT

1. The Warrantless Searches by a Private Individual The rule that searches and seizures must be supported by a valid warrant of arrest is not an absolute rule. What is prohibited are "unreasonable searches and seizures." Thus, a search made incidental to an arrest Is not prohibited. The purpose of this exception is to protect the arresting officer against physical harm from the person who is being arrested who might be armed 'Nith a concealed weapon and also to prevent the person arrested from destroying evidence within his reach. (Moreno v. Ago Chi, G.R. No. L-4680, 1909). If the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of a private individual. not tho law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government. (People v. Marti, G.R. No. EJ1561. 1991). ;

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Admissibility/Exclusionary Rule "Any evidence obtained In violation of the search and seizure clause, whether or no: it is also self-incriminating testimonial evidence, is inadmissible for any purpose in any proceeding." (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009).

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3.

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WARRANTLESS ARREST

existence of 1. probable cause is determined personally by the judge. It must be issued probable upon cause. 2. The judge must examine under oath the complainant and the witnesses he may produce. The warrant must particularly describe the person to be arrested. It must be in 3. connection with one specific offense.

When the person to be arrested has committed, is actually committing, or is about to commit an offense in the presence of the arresting officer. When an offense has in fact just been committed and the arrestinq officer has probable cause to believe based on personal knowledge of facts and circumstances indicating that the person to be arrested has committed it. When the person to be arrested is a prisoner who has escaped.

Arrest with Warrant Procedure Within 10 days from the flllng of the complaint or Information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. ' He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he fihds proc.ible cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence witt,in five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint or information (ROC, Rule 112, §6).

Buy-bust operations ~ There was a failure of officers to comply with the IRR regarding RA 9165 regarding the physical inventory and photograph of seized items. Thus, the accused argue that the evidence is inadmissible. It is still admissible provided · that' that the integrity and evidentlary value of the evidence have been preserved. The apprehending officer marked the seized evidence in front of the appellant, barangay captain and members of the buy bust team. It was delivered to the investigator and subsequently sent to the PNP Crime Laboratory for examination in the same · Page 99 of 320

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with particularity of description and examination discussed under Searches with Warrants The judge is not required to personally examine the complainant and his witnesses or to await the submission of counter affidavits from an accused. Following established doctrine and procedure. the judge shall: 1. Personally evaluate the report and supporting documents submitted by the prosecutor regarding the existence of probable cause, and on the basis thereof, he may already make a personal determination ot the existence of probable cause; and 2. If he is not satisfied that probable cause exists, hr. may disregard the prosecutor's report and require the . submission of supporting affidavits of witnesses to aid , him in arriving at a conclusion as to the existence of probable cause. (Bernas, The 1987 Constitution ot the Republic of the Philippines, 2009). Warrantless Arrests The rule on valid warrantless arrests is found in Section 5, Rule 113 of the Rules of Court, which provides:

· A peace officer or private person may, without a warrant, arrest a person: A. When, in his presence, the person to be arrested has committed, is actually committing, or attempting to commit an offense; • In Flagrante Delicto - when the illegal act was committed in the presence of the arresting officers, a warrar.tless arrest may be effected. An offense is committed in the presence of an officer when the officer sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene of the crime. Police officers have personal knowledge of the actual commission of the crime when they had earlier conducted surveillance activities of the accused (People v. Suero, G.R. No. 93239, 1991). • In buy-bust operations, the arresting officers catch the malefactor in flagrante delicto. But tho arresting officers must neither instig:;1te nor induce the arrestee to commit <1 crime. Entrapment is the employment of such ways and means for the puroose of capturing a lawbreaker from whose mind the criminal intent originated. In such cases, a search warrant is not necessary because a search pursuant to a buy-bust operation is one made incldental to a lawful arrest the arrestee is caught in flagrante delicto (People v. De La Cruz. G.R. No. 101315, 1993). Page 100

Stop and Frisk - When a policeman observes susptclous activity, which leads him to believe that a crime is about to be committed, he can investigate the suspicious looking person and may frisk him for weapons as a measure of self-protection. Should he find, however, a weapon on the suspect, which is unlicensed, he can arrest such person for having committed an offense in his presence. B. When an offense has in fact been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; • Hot Pursuit - The pursuit of the offender by the arresting officer must be continuous frorn the time of the commission of the offense to the time of the arrest. There must be no supervening event which breaks the continuity of the chase. To fall under the exception that an offense had just been committed and the officer has personal knowledge of the facts ir.dicating that the person to be arrest has committed it, the arrest must immediately follow the commission of the crime. In other words, there is no valid warrantless arrest if the crime had not "just boen committed". (People v. Go, G.R. No. 144639, 2003). Manlulu was arrested without a warrant for allegedly having killed another person at around 1 :OOAM in the morning. The warrantless arrest was made around 7:00PM or about 19 hours later. The SC held that for there to be a lawful warrantless arrest, the arresting officer must have personal knowledge of the offense, which has in fact just been committed. In other words, the arrest has to · immediately follow the commission of the offense. If a sufficient amount of time lapses as to allow him to procure a warrant, then the police officer must do so. Ir. this case, not only was the arrest 19 hours after the alleged crime. but the arresting officer also did not have any personal knowledge of the facts. The SC also held that personal gathering of information is different from personal knowledge. (People v. Manlulu, G.R. No. 102140, 1994) . The SC held that personal knowledge must be based on probable cause, which means an actual belief or reasonable grounds of suspicion. Reasonable suspicion means when, in the absence of actual belief. the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts that are supported by circumstances sufficiently strong in of 320

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themselves. (People v. Escordia/, G.R. Nos. 138934-35, 2002).

case, the petitioner cannot invoke It for other persons. (Valmonte v. General De Vil:a, G.R. No. 83988, 1989).

C. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgmsnt or temporarily confined while his case is pending or has escaped while being transferred from one confinement to another

ADMINISTRATIVE ARRESTS

D. Continuing Offenses. Arrest of the accused without a warrant is justified as it can be said that he was committing an offense when arrested. Involves crimes of: rebellion, subversion, conspiracy or proposal to commit crimes in furtherance thereof (In the Matter of the Petition for Haoeas Corpus of Roberto Umll, Rolando Dural, et al. v. Ramos, et al., G.R. No. 81567, 1991 ). When to Question Validity Old rule: Any obiection Involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of the accused must be made before he enters his plea, otherwise the objection is deemed waived." The accused must move for the quashing of the information against him before arraignment. Otherwise, he is estopped from cuestloninq the validity of the arrest

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Current rule: Under Section 26, Rule 114 of the Rules of Court, an application for bail or admission to bail by an accused is not considered a waiver of his right to assail the warrant issued for his arrest or the legalities or irregularities thereof, provided that he raises them before entering his plea. An application for or admission to bail shall not bar the accused from chall~nging: the validity of his arrest, the legality of the warrant issued therefor, the regularity or questioning the absence of a prelirr,inary investigation of the charge against him. The rule is a new one, Intended to modify previous rulings that an application for bail or the admission to bail by the accused shall be considered as a waiver of his right to essan the warrant issued for his arrest on the legalities or irregularities thereon. Doctrine of the Waiver of Rights The constitutional immunity from unreasonable searches and seizures, being a personal one, cannot be waived by anyone except the person whose rights are invaded or cne who is expressly authorized to do so in his or her behalf. (People v. Damaso, G.R. No. 93516. 1992). Who May Challenge The constitutional right against unreasonable searches and seizures is a personal right capable of being invoked only by those whose rights have been infringed. In this Page

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POLITICAL LAW

Deportation proceedings Section 37 of the Immigration Law, empowering the Comrnissloner of Immigration to issue warrants for the arrest of overstaying aliens is constitutional. The arrest is a step preliminary to the deportation of the aliens who had violated the condition of their stay in this country. The requirement of probable cause, to be determined by a Judge, does not extend to deportation proceedings. There need be no "truncated" recourse to both judicial and administrative warrants in a single deportation proceeding. (Harvey v. Miriam Defensor Santiago, G.R. No. 82544, 1988). DRUG, ALCOHOL, AND BLOOD TEST The Court acknowledged ,that compelled urinalysis was a form of search but its "reasonableness" must be judged by balancing the intrusion on the individual's interests against the promotion of legitimate government interests. What was essential was the school's custodial responsibility and authority, the nature of the intrusion, the confidentiality of the test results and the legitimate government interest. (Vernonia School District v. Acton, 515 U.S. 64, 1995; Board of Education v. Earls, 536 U.S. 22, 2002). The Philippine courts followed the ruling in Vernonia when it decided a case involving the mandatory drug testing of candidates for publlc office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain offenses. The SC held that the right to privacy has been accorded as a facet of the right to unreasonable searches and seizures. On the case of mandatory drug testing provided for in the Dangerous Drug Act, the Supreme Court held the following: 1: Candidates for Constitutional Offices Unconstitutional A law cannot provide additional qualifications other than those outlined in the Constitution. 2. Employees - Constitutional The random drug testing would be undertaken in such a manner as to protect the privacy of the employees ·, involved. Also, the privacy interest in an office Is circumscribed by the company's work policies, CBAs, and · the· ,right of the employer to maintain discipline and efficiency in the workplace. The right to privacy must yield 101 of 320

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to the necessary and reasonable requirements of plice power. 3. Students - Constitutional It is within the prerogative of schools to require compliance with reasonable school regulations, as a condition for admission or enrollment. The court found: · a. Schools and their administrators stand in loco parentis with respect to their students; b. Minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; c. Schools, acting in loco parentls, have a duty to safeguard the health and well-being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and d. Schools have the right to impose conditions on applicants for admission that are fair, just, and nondiscriminatory. 4. Persons charged before the public prosecutor's office - Unconstitutional . · Defendants in a criminal complaint are not randomly picked; neither are they beyond suspicion. Certain persons are singled out and are impleaded against their will, making a medical test a tool for criminal prosecution. (Social Justice Society v. Dangerous Drugs Board, G.R. Nos. 157870, 158633, 16165~ 2008). Evidence Obtained Through Purely Mechanical Acts The constitutional right of an accused against selfincrimination proscribes the use of physical or moral compulsion to extort comrnuni« ations from the accused and not the Inclusion of his body In evidence when it may be material. Purely mechanical acts are not included in the prohibition as the accused does not thereby speak his guilt, hence the assistance and guiding hand of counsel is not required. The essence of the right against self~ incrimination is testimonial compulsion, that is, the giving of evidence against himself through a testimonial act. Hence, it has been held that: 1. A woman charged with adultery may be cornpeued to submit to physical examination to determine her pregnancy: 2. An accused may be compelled to submit to physical examination and to have a substance taken from his body for medical determination as to whether he was suffering from gonorrhea which was contracted by his victim; 3. To expel morphine from his mouth;

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4. To have the outline of his foot traced to determine its identity with bloody tootprints: and 5. To be photographed or measured, or his garments or shoes removed or replaced, or to move his body to .enable the foregoing things to be done. (People v. Gallarde, G.R. No. 133025, February 17, 2000}

PRIVACY OF COMMUNICATIONS AND CORRESPONDENCE Concept • The privacy of communication .and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. • Any evidence obtained in vi~lation of this or the preceding section shall be inadmissible for any purpose in any proceedir,gs. (Phil. Const., art. 3, § 3). • The privacy right is an aspect of the right to be secure in one's person. PRIVATE AND PUBLIC COMMUNICATIONS Forms of communication considered private and protected by this provision include letters, messages, telephone calls, telegrams and the like. (Bernas, The 1987 Philippine _Constitution: A Comprehensive Reviewer, 59, 2011 ). Private communications can be made public Private communications can be made public where a secret involves public questions which the State should and ought to know, the State may infringe that privacy of communication by some process or by appealing to the Court for the purpose of determining whether or not the privacy should be maintained. The court may allow Intrusions on privacy of communication and correspondence only on the ground of probable cause. (Bernas, The 1987 Constitution of the Republlc of the Philippines, 2009).

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INTRUSION, WHEN ALLOWED It is allowed "upon 1awful order of the court, or when public safety or order requires otherwise as prescribed by law." (Phil. Const., art. 3, § 3). General Rule: Intrusion requires court order. Exception: When public safety or order requires it, the executive may intrude into the privacy of an individual but only in accordance with an existing law allowing such

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ATENEO CENTRAL BAR OPERATIONS 2019 intrusion. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009). Requisites of an intrusion without an order It should be based upon a governmeint official's assessment that public safety and order demand such intrusion, as provided by law. It is not only that the discretion of the executive officer is !imitable by law but also that a public officer who exercises this power must be able to point to a law under which he acts. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009). Public order and safety The security of human lives, liberty, and property against the activities of invaders, insurrectionists, and rebels." (1971 Constitutional Convention, Nov. 25, 1972). RA 10175 (CYBERCRIME LAWl

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Certain Cybercrime Offenses under RA 10175 were assailed for violating both the right against unreasonable searches and seizures and the right to privacy. The court held that relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a "constitutional right" and "the right most valued by . clvllized men," but also irom our adherence to the UDHR which mandates that, "no one shall be subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of the law against such interference or attacks." Thus, the two constitutional guarantees create these zones of privacy: A. the right against unreasonable searches and seizures, which is the basis of the right to be let alone, and B. the right to privacy of communication and correspondence. In assessing the challenge that the State has impermissibly intruded into these zones of privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion. The usual identifying information regarding a person includes his name, his citizenship, his residence address, his contact number, his place and date of birth, the name of his spouse, If any, his occupation, and similar data. The law punishes those who acquire or use such identifying inform~tion without right, implicitly to cause damage. Petltioners failed to show how government Page 103

POLITICAL LAW effort to curb computer-related Identity theft violates the \ight to. privacy and correspondence as well as the right to due process of law. However. Section 12 on real-time collection of traffic data was declare::l unconstitutional for the authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of their sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked information or. worse, to extortion from certain bad elements in these agencies. Section 12, of course, limits the collection of traffic data to those "associated with specified communications." But this supposed limitation is no limitation at all since, evidently, it is the law enforcement aqencies that would specify the target communications. The power is virtually limitless, enabling law enforcement authorities to engage in "fishing expedition," choosing whatever specified communication they want. This evidently threatens the right of individuals to privacy. (Disini v. Sec. of Justice, G.R. No. 203335, 2014). The employee has a burden of proving that he has legitimate expectation of privacy either in his office or computer files. He can prove this by alleging and demonstrating the following: he used a password on his computer, did not share his office with co-workers and kept the same locked. However, the existence of a workplace privacy policy may limit or erode the reasonable expectation of privacy. {Pollo v. Constantino-David, GR No. 181881, 2011) Test of Reasonable Expectation Of Privacy • Subjective: A person has exhibited an actual expectation of privacy; and • Objective: The expectation be one that society is prepared to recognize as reasonable (Pollo v. Constantino-David, supra) Before one can have an expectation of privacy in his or her Online Social Network activity, it is first necessary that said user manifest the intention to keep certain posts private. In the cyber world, utilization of privacy tools is the manifestation of the user's invocation of his or her right to informational privacy. (Vivares v. St. Theresa's College, G.R.No.20266~ 2014)

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That the photos are viewable by "friends only" does not necessarily bolster the petitioners' contention. In this regard, the cyber community is agreed that the digital images under this setting still remain to be outside the confines of the zones o! privacy in view of the following: 1. Facebook "allows the world to be more open and connected by giving its users the tools to interact and share in any conceivable way"; 2. A good numher of Facebook users "befriend" other users who are total strangers; 3. The sheer number of "Friends" one user has,' usually by the hundreds; and 4. A user's Facebook friend can "share" the formers post, or "tag" others who are not Facebook friends with the former, despite its being visible only to his or her own Facebook friends. Setting a post's or profile detail's privacy to "Friends" is no assurance that it can no longer be viewed by another user who is not Facebook friends with the source of the content. (Vivares v. St. Theresa's College, G.R. No. 202666, 2014.)

R.A, 4200 (AtJTI-WIRETAPPING ACT)

POLITICAL LAW secretly intercepting or recording private communication. (Gaanan v, /AC, G.R. No. L69809, 1986). EXCLUSIONARY RLILE Any evidence obtained shall be inadmissible for any purpose in any proceeding. However, in the absence of governmental interference, the protection against unreasonable search and seizure cannot be extended to acts committed by private individuals. The constitutional proscription against unlawful searches and seizures applies as a restraint directed only against government and its agencies tasked with the enforcement of the law. Thus, It could only be invoked against the State to whom the restraint against arbitrary and unreasonable· exercise of power is Imposed. (People v. Marti, G.R. No. 81561, 1991). This does not mean however that private individuals cannot be held liable. Almost all these liberties are also guaranteed by Article 32 of the C!vil Code, making private violations actionable even if the violation does not have a constitutional consequence such as the applicability of the exclusionary rule. (Bernas, The 1987 Cons.titution of the Republic of the Philippines, 2009 ).

a. Only protects letters, messages, telephone calls, telegrams and the like. b. The substance of the conversation need not be specifically alleged in the information. c. Under Section 3 of R.A. 4200, a peace officer, who is Exclusionary rule will not apply if the recipient of the authorized by a written order of the Court, may execute message granted access to the message(s) sent. (Office any of the acts declared to be unlawful in the said law of the Court Administrator v. Judge Eliza 8. Yu, A.M. No. in cases involving the crimes of: MTJ-12-1813, 2017) 1. Treason 2. Espionage WRIT OF HABEAS DATA 3. Provoking war and disloyalty in case of war A remedy available to any person whose right to privacy in 4. Piracy and mutiny in the high seas life, liberty or security is violated or threatened by an 5. Rebellion (conspiracy and proposal to commit; unlawful act or omission of a public official or employee, or incltmg to commit) of a private individual or entity engaged in the gathering, 6. Sedition (conspiracy to commit and inciting to· collecting or storing of data or information regarding the commit) person, family, home and correspondence of the aggrieved 7. Kidnc1pping party. (A.M. No 08-1-16-SC, Sec. 1). 8. Violations of C.A. No. 616 (punishing espionage and other offenses against national Who may file: (P-SCP-R) security) 1. Person whcse right to Privacy is threatened d. R.A. 4200 does not distinguish between a party to 2. In case of extrajudicial disappearance or killings: the private communication or a third person. (a) Spouse, Children and Parents Hence, both could be held liable under RA 4200 · (b) Any ascendant, descendant or collateral Relative of if they commit any of the prohibited acts under RA the aggrieved party within the fourth civil degree of 4200. (Rnrnirez v. CA, G.R. No. 93833, 1995). consanguinity or affinity in default of those e. The use of a telephone extension to overhear a mentioned in the preceding paragraph. (A.M. No private conversation is not a vlotatlon of R.A. 4200 08-1-16-SC, Sec. 2). because it is not similar to any of the prohibited , devices under the law. Also, a telephone extension is not purposely installed for the purpose of Page 104 of 320

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ATENEO CENTRAL BAR OPERATIONS 2019 Where to file: (RGP) 1. Residence of petitioner or respondent, 2. Place wnere the data is Gathered or stored 3. In case of actions involving public data of government offices: · (a) Supreme Court (b) Court of Appeals (c) Sandiganbayan {A.M. No 08-1-16-SC, Sec. 3). Contents of the petition: 1. The personal circumstances of the petitioner and the respondent; 2. The manner the right to privacy is violated or threatened and how it affects the right tc life, liberty or security of the aggrieved party; 3. The actions and recourses taken by the petitioner to secure the data or information; 4. The location of the files registers or databases, the government office, and the person in charge, In possession or i,1 control of the data or information, if known; 5. The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of; and 6. Such other relevant reliefs as are just and equitable (A.M. No 08-1-16-SC, Sec. 6}.

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Court shall immediately order the Issuance of the writ The Court shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court and served within 3 days from its issuance. Cases of Urgt1nt Necessity In case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. {A.M. No 08-1-16-SC, Sec. 7). Date and time for summary hearing - not be later than 10 working days from the date of Its issuance. (A.M . No 08-1-16-SC, Sec 7).

POLITICAL LAW independently from those provided under prevailing Rules. Writs of Amparo and habeas data will not issue to protect purely property or commercial concerns nor when the grounds invoked in support of the petitions therefor are vague or doubtful. Employment constitutes a property right under the context of the due process clause of the Constitution. It is evident that respondent's reservations on the real reasons for her transfer - a legitimate concern respecting the terms and conditions of one's employment - are what prompted her to adopt the extraordinary remedy of habeas data. (Manila Electric Company v. Lim, G.R. No. 184679, 2010}. FREEDOM

OF SPEECH AND EXPRESSION

CON~EPT AND SCOPE No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. (Phil. Const., art. 3, § 4 ). Freedom of Speech Formulated primarily for the protection of "core" speech, (i.e., speech, which communicates political, social, or religious ideas). These enjoy the same degree of protection. Commercial speech, however, does not. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009). Section 19 of the Cybercrime Prevention Act on Restricting or Blocking Access to Computer Data was assailed for violating freedom of speech. The court declared the provision unconsntutional and held that the content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may, within constitutional bounds, declare certain kinds of expression as illegal. But for an executive cfficer to seize content alleged to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such content violates some law, for to do so would make him judge, jury, and executioner all rolled into one. Not only does Section 19 preclude any judicial i17tervention, but it also disregards jurisprudential guidelines established to determine the validity of restrictions on speech. Section 19, however, merely requires that the data to be blocked be found prima facie in violation of any provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made to apply in relation to any penal provision. It does not take into consideration any of the three tests. (Disini v. Sec. of Justice, G.R. No. 203335, 2014; See case for other

Rationale why Writ was conceived It bears reiteration that like the Writ of Amparo, habeas data was conceived as a response, given the lack of effective and available remedies, to address the extraordinary rise in the number of killings and enforced disappearances. Its intent is to address violations of or threats to the rights to life, liberty or security as a remedy Page 105 of 320

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provisions relating to freedom of speech, which were upheld by the court).

Any prior restraint upon the freedom of the press bears a heavy presumption against its constitutionality. In other words, the government must clearly make out a case to overcome this presumption, which it failed to do in this · case. The word "security" is so broad that it should not be used to abrogate the fundamental law. The publication would not cause an inevitable, immediate, and direct event that would imperil the safety of the American forces, such that there was no grave and irreparable danger. The US SC also held that the 1st Amendment does not tolerate prior restraints predicated upon beliefs that untoward consequences may result therefrom. The press must be left free to publish news, whatever the source, without censorship or restraint because only a free and unrestrained press can effectively expose government deception to the people. (New York Times v. United States, 403 U.S. 713, 1971).

The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interes! or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with lhe exigencies of their period (Chavez v. Gonzales, G.R. No. 168338, 2008). Freedom of Expression Prohibits: a. Prior Restraint (Censorship) Offlclal governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009). The Session Law of Minnesota mandated the abatement, as public nuisances, of malicious, scandalous, and defamatory publications. After publishing articles that criticized certain lorn! public officials and personalities, The Saturday Press, owned by the petitioner Near, was enjoined from further publication. The court held that the operation and e~ect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter... and unless the owner or publisher is able to disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is of the essence of censorship. (Near v. Minesota, 283 U.S. 697, June 1, 1931; Bernas, The 1987 Constitution ofthe Republic of the , Philippines, 2009). Some Forms of Prior Restraint • System of licensing administered by an executive officer. (e.g., movie censorship) Judicial prior restraint (an injunction against publication) • License taxes or flat license fees General Rule: There is always a presumption of unconstitutionality on any system of prior restraint - thus, the Government has the "burden of showing justification for the enforcement of such a restraint." (Bernas, Th1:11987 Constitution of the Republic of the Philippines, 2009). Page

Exception: When Comelec is exercising the power granted by Art.9, C(4) to ensure equal opportunity, time, space, and the "right to reply'' as well as uniform and reasonable rates of charges for the use of such media facilities for "public information campaigns and forums . among candiJates." In such cases, there is no presumption of invalidity (National Press Club v. Comelec; Bernas, The 1987 Constitution of the Republic of the Philippines, 2009). Freedom of expression is not an absolute Freedom of expression is not an absolute nor it ls an unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom (Chavez v. Gonzales, G.R. No. 168338,2008) When the Prohibition Does Not Apply: (WOS) 1. Wheil the nation is at War. (Chavez v. Gonzales, G.R. No. 168338, 2008) (e.g., The govc!mment can prevent publication about the number or location of its troops) 2. Obscene publications 3. Security of community life may be protected against incitements to acts of violence or overthrow by force of orderly government. (Near v. Minesota, 283 U.S. 697, 1931).

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(b} Subsequent punishment The iree speech and press clause also prohibits systems of subsequent punishment, which have the effect of unduly curtailing expression. For, indeed, if prior restraint were all that the constitutional guarantee prohibited and government could impose subsequent punishment without restraint, freedom of expression would be a mockery and a delusion. (Bernas, The 1987 Constitution of ttie Republic of the Phiiipplnes, 2009). 106 of 320

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POLITICAL LAW assessing content-based restrictions on free speech, as well as for laws dealing with freedom of the mind or restricting the political process, oi laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection. The immediate implication of the application of the "strict scrutiny" test is that the burden falls upon respondents as agents of government to prove that their actions do not infringe upon petitioners' constitutional rights. As content regulation cannot be done in the absence of any compelling reason, the burden lies with the government to establish such compel!ing reason to infringe the right to free expression. (Newsounds BroadcastingNetwork v. Dy, G.R. Nos. 170270 & 179411, 2009).

Since freedom of expression ranks in the hierarchy of constitutional rights higher than property, the norms for the regulation of expression place more stringent limits on state action. Jurisprudence has evolved three tests: 1. Dangerous Tendency test; 2. the Clear and Present Danger test. 3. the Balancing of Interests test. Of these, the second and third are favcred. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011 ). Symbolic Speech When "speech" and "r,on-speech" elements are combined in the same course of conduct, a sufficiently Important government interest in regulating the non-speech eiement can justify incidental limitations on free speech.

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Government Regulation is Justified if: (WI-FU-UN-NO) 1. It is within the constitutional power of the government 2. It furthers a substantial govern,nent interest 3. The governmental interest is unrelated to the suppression of free expression 4. The incidental restriction is !!2 greater than essential to the furtherance of the interest. (Osmena v. COMELEC, 351 Phil. 692, 717, citing Adiong v. COMELEC, G.R. No. 103956, 1992). The test was formulated in U.S. v. O'Brier, (391 U.S. 367, 1968), which was deemed appropriate for restrictions on speech, which are content-neutral.

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CONTENT -BASED AND CONTENT -NEUTRAL REGULATIONS Content-Based Regulations The restriction Is based on the subject matter of the . utterance or speech. Content-based laws are generally treated as more suspect . than content-neutral laws because of judicial concern with discrimination in the regulation of expression. (Newsounds Broadcasting Network v. Dy, G.R. Nos. 170270 & 179411, 2009).

Scope of Protection PROTECTED SPEECH

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There are certain well Every form of expression defined and narrowly limited (oral, written, tape or classes of speech, the disc recorded). prevention and punishment of which has never been It includes motion thought to raise any pictures as well as what constitutional problems. is known as symbolic speech such as the These are: wec::ing of an armband 1. Libel as a symbol of protest. 2. Obscenity Peaceful picketing has also been included It has well been observed within the meaning of that such utterances are not speech.(Bernas, The essentlai part of any 1987 Constitutionof the exposition of ideas, and are Republic of the of such slight societal value Philippines,2009). as a step to truth that any

Content-Neutral Regulations It is merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well-defined standard. Content-neutral regulations of speech or of conduct that may amount to speech, are subject to lesser but still heightened scrutiny.

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UNPROTECTED SPEECH

The Court is of the position that the actions of the respondents warrant heightened or strict scrutiny from the Court. the test which we have deemed appropriate in Page 1 07 of 320

benefit that may be derived from them is clearly outweighed by the social interests in order and moralily. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009 citing Chaplinsky v. New Hampshire). Thus, in dealing with them there is no call for the application of the clear and present danger rule, the

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,...---------------...--------------------,-~--:s~ta~t~e:m:e:nt;-:in~t;h:e~c:a:se~·~w:o;u~ldihha;v:e;;--;a~c;h~illijrin;g~e~ dangerous tendency rule, or them. This makes the law overbroad and therefore in the balancing of interests violation of freedom of expression. (Disini v. Secretary of test because these are Justice, G.R. No. 203335, 2014) essentially methods of weighing competing Publication vis-a-vis Libel legitimate values. But there Publication means "making the defamatory matter, which still remains the is written, known to someone other than the person to complicated task of whom it has been written" (Ledesma v. CA, G.R. No. discovering the norms for 113216. 1997). determining what speech is libelous or what speech is However, a defamatory speech is protected if it is made in . obscene. (Bernas, The good faith on any subject . matter in which the 1987 Constitution of the communicator has an interest, or concerning which he has Republic of the Philippines, a duty. e.g., Reporting a defamatory matter to a superior is 2009). not libelous. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009). Libel A libel is a public and malicious Imputation of a crime or of Contempt Is akin to a case of libel a vice or a defect, re;3I or imaginary, or any act, omission, Contempt is akin to a case of libel for both constitute condition, status, or circumstance tending to cause the limitations upon freedom of the press or freedom of dishonor, discredit. or contempt of a natural or juridical· expression guaranteed by our Constitution. What is person, or to blacken the memory of one w~o is dead. considered a privilege in one may likewise be considered ',_ (Revised Penal Code, Art. 353). in the other. The principle of privileged communications can also be invoked in contempt charges. {Atty. Raymund Elements of libel: (APIM) P. Palad v, Lolit Solis, et al., G.R. No. 206691, 2016) 1. The Allegation of a discreditable act or condition concerning another.

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2. Publication of the charge. 3. ·Identity of the person defamed. 4.

Existence of Malice.

Malice is bad faith or bad motive. It is the essence of the crime of libel. Proof that statement was false In the absence of proof that the defendant knew that the statement was false or published with reckless disregard of whether or not it was true, the defendant cannot be held liable for libel. (Guingguing v. Court of Appeals, G.R. No.

128959, 2005). When Is there Malice There is malice when the author of the imputation is prompted by ill-will or spite and speaks not in response to duty but merely to injure the reputation of the person who claims to have been defamed (Alonzo v. CA, G.R. No.

110088, 1995). Original author of the statement should be prosecuted for libel. Only the original author of. the statement should be prosecuted for libel. Because of the unique culture of cyberspace, the inclusion of those who just shared the

When a lawyer has become a public figure for being involved in a public lssue, the controversy involving such individual becomes a matter of public interest. Therefore, the media has the right to report the disciplinary case as legitimate news. Such will not be considered as a violation of the confidentiality rule In disciplinary proceedings · against lawyers. (Atty. Raymund P. Palad v. Lolit Solis, et al., G.R. No. 206691, 2016)

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Privileged Communications

· 1. Absolute- Privileged communication may be absolute {like statements made by legislators in Congress) which are never actionable. 2. Qualified - Those which are not actionable, if found to have been made in good faith or for justifiable motive (Borja! v. CA, G.R. No, 126466, 1999). While (Jenerally every defamatory imputation is presumed malicious, if the communication is privileged, the presumption does not arise. The plaintiff assumes the burden of proving malice. {Bernas, The 1987 Constitution of the Republic of the Philippines, 2009).

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summary of the petition. (GMA Network v. Bustos, G.R. . No. 146848, 2006).

Privileged Qualifiedly Requisites for a Communication: (DAG) 1. The person wno made the communication had a legal, moral, or social Duty to make the communication, or at least, had an interest to protect, which interest may either be his own or of the one to whom it is made; 2. The communication is Addressed to an officer or a board, or superior, having some interest or duty in the matter, and who has the power to furnish the protection sought; 3. The statements in the communication are rnade in Good faitti and without malice.

indecency Not conforming with generally accepted standards of behavior or propriety. Obscenity Appeals to lascivious thoJghts or desire or tends to arouse sexual desire. Test for obscenity (Milter Test) codified in BP 880: 1. Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest. 2. Whether the work depicts or describes, in a patentiy offensive way, sexual conduct specifically defined by the applicable state law. 3. Whether the work, taken as a whole Lacks Serious Literary, Artistic, Political, or Scientific value (Code: LSLAPS) (Miller v. California, 413 US. 15, 1973).

Libel Against Public Officials and Public Figures A public officlal cannot recover damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'. Actual malice means there was knowledge that it was false or with reckless disregard of whether it was false or not. (NY Times v. Sullivan, 376 U.S. 254, 1964).

Relative Obscenity The Court noted that there was "no perfect definition of obscenity" and that ultimately therefore "obscenity is anissue proper for judicial determination and shouid be treated un a case to case basis and on the judge's sound discretion." (Soriano v. Laguardia, G.R. No. 164785, 2009.).

General Rule: Libel is presumed to be malicious even if true. Exception: if the object is a public official, there is no presumption of malice. · With respect to public personalities (politicians, actors, anyone with a connection to a newsworthy event), opinions can be aired regarding their public actuations. However, if the utterances are false, malicious, or . unrelated to a public officer's performance of his duties, or irrelevant to matters of public interest Involving public figures, the same may give rise to .criminal and civil liability. Fair Commentaries These are privileged and constitute a valid defense in an action for libel or slander. When the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order for it to be actionable, it must either be a false allegation of fact or a comment based on a false supposition.

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If the comment is an expression of opinion based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred. The insertion of an old picketing footage in a news report was not libelous because it did not convey anything derogatory in nature, and it was actually simultaneously voiced over by the narration of the news report. The report was also merely quoted from the contents and allegations in the petltion and is merely a Page 109

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Procedure for Seizure 1. Authorities must apply for issuance of search warrant 2. Court must be convinced that the materials are obscene (apply clear and present danger test) 3. Judge determines whether they are "obscene" 4. Judge will issue a search warrant 5. Proper action should be filed under Art. 201 of the RPC (Immoral documents, obscene publications and exhibitions, and indecent shows) 6. Any conviction is subject to appeal. The appellate court may assess whether or not the properties seized are indeed "obscene". (Pita v. CA, G.R. No. 80806, 1989) FACIAL CHALLENGES DOCTRINE

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OVERBREADTH

Overbreadth Doctrine The doctrine provides that a government purpose rnay not be achieved by means that sweep unnecessarily broadly and thereby invade the area of protected freedoms . . The overbreadth doctrine only applies to those Involving free speech. Criminal statutes generally have in terrorem effect resulting from the very existence, and, if facial of 320

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challenge is allowed for this reason alone, the State may be prevented from onacting laws against socially harmful 'conduct. A plain reading of P.P. No. 1017 shows that it is not prima,ily directed at speech, rather, it covers a spectrum of conduct. It is a call upon the AFP to prevent or suppress all forms of lawless violence. Facial invalidation on the ground of overbreadth is a manifestly strong medicine, to be used sparingly and only as a last resort. Petitioners did not show that there is no instance wherein P .P. No. 1017 may be valid (David v. Arroyo, G.R. No. 171396 2006).

Facial Challenge . Prohibiting placing of campaign decals on private cars is ,

overorcad, and thus invalid prohibition. (Adiong v. COMELEC, G.R. No. 103956, 1992). Banning the publishing of survey results is also overbroad because It does not meet the O'Brien test, since it suppresses one type of expression while allowing others like editorials. (SWS v. COMELEC, G.R. No. 147571, 2001). A facial challenge is allowed against vague or overbroad statutes because of possible ffchilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a aingle prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." This rationale does not apply to penal statutes. (Estrada vs. Sandiganbayan, G.R. No. 148560, 2001 ). The facial challenge has expanded its scope to cover

statutes not only regulating free speech, but also those involving religious freedom, and other fundamental rights because of the expanded scope of judicial power. (lmbong v. Ochoa, GR No. 204819, 2014) .

overbreadth or vagueness of the statute. (Disini Secretary of Justice, GR No. 203335, 2014)

v.

TESTS The freedom of expression and the right to freely associate are not absolute. The standards to test the validity of regulations that curtail the freedom of speech, of the press, and of peaceful assembly are:

1. Dangerous tendency doctrine This is used for statements against the Supreme Court and permits the application of restrictions when: (a) There is a rational connecticn between the speech and the danger apprehended; (b) The tendency of one to create the other is shown. (Gonzales v. COMELEC, G.R. No. L-27833, 1969). Citizen Perez made this remark at a political discussion at a town municipio: "and the Filipinos, like myself, must use bolos for cutting off Wood's head for having recommended ·. a bad thing for tho Philippines." The court held that criticism, no matter how severe, on the Executive, the Legislature, and the Judiciary, is within the range of liberty of speech, unless the intention and effect be seditious. In this case, Malcolm found a seditious tendency which could easily produce disaffection among (he people and a state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws. (People v. Perez, G.R. No. L-21049, 1923; Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer,

2011 ). If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. it is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts he advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring . about the substantive evil the utterance be to bring about the substantive evil which the legislative body seeks to prevent (Cabansag v. Fernandez, G.R. No. L-8974, 1957).

In an "as applied" challenge, ,the constitutionality of a statute can be chauenqed only by one who asserts a violation of his own rights. It cannot be challenged based 2. Clear and present danger rulo solely on the violation of the rights of third persons not This test Is used for statements against lower courts. The before the court. An exception to this rule is the concept of question is whether the words are used in such facial challenge. A petitioner may mount a 'facial" circumstances and are of such a nature as to create a clear challenge to the constitutionality of a statute even if he and present danger that they will bring about substantive claims no violation of his own rights under the assailed evils :hat Congress has a right to prevent. It must be st.atute where it involves free speech on grounds of present and inevitable. It is a question of proximity and Page 110 of 320

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··.··· ATENEO CENTRAL BAR OPERATIONS 2019 degree. Clear connotes a causal connection with the danger of the substantive evil arising from the utterance questioned. Present refers to the time element that is identified with imminent and immediate danger. (Gonzales v. COMELEC, G.R. No. L-27833, 1969); Radio station DYRE was summarily closed for national security reasons because it allegedly aired subversive programs. The SC held that all forms of media are entitled to the protection of the freedom of speech and expression clause. The clear and present danger test may be applied to test the limits of free speech. That the words are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Corqress has a right to prevent. The SC recognized that the government also has a right to be protected against broadcasts that incite the listeners to violently overthrow it. .

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However, the clear and present danger test is not an allembracing interpretation that is applicable to all utterances i:i all forums. Freedom of television and radio broadcasting is lesser in scope than the freedom accorded to newspaper and print media. Radio broadcasting receives the most limited protection from the free expression clause. Broadcast media have a uniquely pervasive preser.ce in the lives of all citizens - it reaches even the privacy of the home. Broadcast media is uniquely accessible to all, even children - selectivity is more difficult in radio and TV. In other words, the aurliences of radio and TV have lesser opportunity to cogitate, analyze, and reject the utterances. (Eastern Broadcasting v. Dans Jr., G.R. No. L· 59329, 1985). .

POLITICAL LAW (Bernas, The 1987 Phflippine Constitution: A Comprehensive Reviewer, 2011 ed. citing Gonzales v. COMELEC, G.R. No. L-27833, 1969). The dangerous tendency rule and the clear and present danger rule were evolved in the context of prosecution for seditious speech. They are thus couched in terms of degree of ,=wil and proximity of the evil. But not all evils easily lend themselves, like sedition to measurement of proximity and degree. For legislation therefore whose object is not the prevention of evil measurable in terms of proximity and degree, another test had to be evolved. The balancing of interests serves this purpose. It is used, for instance, for commercial speech. (People v. Perez, G.R. No. L-21049, 1923; Bernas, The 1987 Philippine .Constitution: A Comprehensive Reviewer, 2011). The SC held that the dangerous tendency doctrine and the clear and present danger rule were fashioned in the course of testing legislation that l,imited speech expected to have deleterious consequences en the security and public order of the community. The clear and present danger rule is not one of universal applicability and validity (Gonzales v. COMELEC, G.R. No. L-27833, 1969). Summary TEST

Dangerous Tendency

There should be a rational connection between the speech and tne evil apprehended. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011). 2~ Focus on content.

Clear and Present Danger

1. The words when used under such circumstances are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the state has a right to prevent (Bernas, The 1987 Philippine Constffution: A Comprehensive Reviewer, 2011). 2. Focus on content & context.

1.

3. Balancing of interest test

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Represents a wholJy pragmatic approach .. .it rests on the theory that it is the Court's function in the case before it when it finds public interests served by legislation on the one hand and First Amendment freedoms affected by it on the other, to balance the one against the other and to arrive at a judqrnent where the greater weight shall be placed. !f on balance, it appears that the public interest served by restrictive legislation is of such .a character that it outweighs the abridgement of freedom, the Court will find the legislation valid. (Bernas, The 1987 Philippine Constitution: A Comprehensive Review€r, 2011 ).

CRITERION

Republic Act 4880 among other things prohibits the too early nomination of politlcal candidates and limits the Balancing of period for partisan political activity. Its purpose is to prevent , Interests the debasement of the political process. In determining the validity of the law, free speech as a social value must be weighed against the political process as a social value. Page 111 of 32.0

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The courts should balance the public Interest served by legislation and the freedom of speech (or any other constitutional right).

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2. The courts will then decide where the greater weight should be placed. 3. Focus on weighing government and private interest. STATE REGULATION OVER DIFFERENT TYPES OF MASS MEDIA • A speech that may endanger public safety may be censored and disapproved for broadcasting. • The freedom of broadcast media is lesser in scope than the press because of their pervasive presence in the lives of the people and because of their accessibility to children. (Radio and TV). • Movies may be requlated by an administrative body subject only to judicial review by the courts. • Live TV coverage of a criminal case may be allowed ... "mere fear of possible undue influence is not tantamount to actual prejudice resulting in the deprivation of the right to a fair trial" (In Re: Petition For Radio And TV Coverage Of The Multiple Murder Case Against Zaldy Ampatuan et al., A.M. No. 10-11-5-SC, 2011 ). • The right to privacy or "the right to be left alone" is not an absolute right. A limited intrusion into a person's privacy has long been regarded as permissible when that person is a public figure and the information sought to elicited from him or to be published about him constitute matters of a public character. The right of privacy cannot be invoked to resist publication and dissemination of matters of public interest. The interest sought to be protected by the right of privacy is the right to be free from "unwarranted" publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern (Ayer Productions v. Capulong, G.R. No. 82380, 1988). (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009). A. Cannot prohibit columnists from using their columns or programs to campaign against or for a plebiscite choice, since the authority given by the Constitution is over holders of franchises and to give candidates equal opportunity and equal access to media - not restrain free dlscussion. (Sanidad v. COMELEC, G.R. No. 90879. 1990). B. Cannot ban exit polls because the evils envisioned are merely speculative. (ABS CBN v, COMELEC, G.R. No. 133486, 2000). C. MTRCB has power to review both religious shows like the INC program, as well as public affairs and

documentary programs like The Inside Story. (MTRCB v. ABS-CBN, G.R. No. 155282, 2005). -,

The content of the computer data can also constitute speech. In such a case, Section 19 of RA 10175 (Cybercrime Law) operates as a restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may, within constitutional bounds, declare certain kinds of expression as illegal. But for an executive officer to seize content alleged to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such content violates some law, for to do so would make him judge, jury, and executioner alt rolled into one. Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines established to determine the validity of restrictions on speech. {Disini v. Sec. of Justice, G.R. No. :203335. Feb. 11, 2014; See case for other provisions relating to freedom of speech, which were upheld by the court). COMMERCIAL SPEECH Concept Communication which no more than proposes a commercial transaction. Even an individual advertisement, though entirely "commercial," may be of general public interest. Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price. So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private decisions. To this end, the free flow of information is indispensable. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009). J

Requirements for Protection of Commercial Speech (FSDO) 1. The speech must not be False or misleading or proposing an illegal activity; 2. The governmental interest sought to be served by the regulation must be Substantinl; 3. The regulation must Directly advance the government's Interest; 4. The requlation must not be Overboard. (Central Hudson Gas v, Public Service Commission, 447 U.S. 557, 1980)_

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PRIVATE v, GOVERNMENT SPEECH TEST.

CRITERION ·

1.

Dangerous Tendency

There should be a rational connection between the speech and the evil apprehended. (Bemas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011). 2. Focus on content. · 1.

Clear and Present Danger

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The words when used under such circumstances are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the state has a right to prevent (Bernas, The 1987 Philippine Constitution: A Comprehensive Revie't'.er, 2011). Focus on content & context.

1.

Balancing of Interests

The courts should balance the public interest served by legislation and the freedom of speech (or any other constitutional right). 2. The courts will then decide where the greater weight should be placed. 3. Focus on weighing government and private interest.

HECKLER'S VETO It involves situations in which the government attempts to ban protected speech because it might provoke a violent response. The mere possibility of a violent reaction to protected speech is simply not a constitutional basis on which to restrict the right to speak. (Roe v. Crawford, No. 06-3108, 2008).

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to peaceable assembly is a right ccgnate to those of free and free press and is equally fundamental. (Bernas, The 1987 Philippine Constitution: A Comprehenslve Reviewer, 2011, citing de Jonge v. Oregon).

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In Feiner v. New York (340 US 315, 1951 ), petittoner was neither arrested nor convicted for the making of the speech or the content of his speech, but for the reaction which it actually engendered. The Court held that the police cannot be used as an instrument for the suppression of unpopular views; but, when 3 speaker passes the bounds of argument or persuasion and undertakes incitement to riot, the police are not powerless to prevent a breach of the peace. The Right of Ass.embly and Petition Concept · The right of petition is the primary right. the right peaceably to assemble a subordinate and instrumental right, as If the provision read: "The right of the people peaceable to assemble" in order to "petition the government". The righi

"Assembly" Means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It is a necessary consequence of our republican institution and complements the right of speech. As in the case of freedom of expression. this right is not to be llmited, much less denied, except on a showing of a clear and present danger of a substantive evi! that Congress has a right to prevent. In other words, like other rights embraced in the freedom of expression, the right to assemble is not subject to previous restraint or censorship.' It may not be conditioned upon the prior Issuance of a permit or authorization from the government authorities except, of course, if the assembly is intended to be held in a public place, a permit for the use of such place, and not for the assembly itself, may be validly required. (David v. Arroyo, G.R. No. 171396, 2006). The standards for allowable impairment of speech and press also apply to the right of assembly and petition. Rules on Assembly in Public Place 1. Applicant should inform the licensing authority of the date, the public place where and the time when the assembly will take place. 2. The application should be filed ahead of time to enable the public official concerned to appraise whether there are valid objections to the grant of the permit or to its grant, but in another public place. The grant or refusal should be based on the application o'Nhe Clear and Present danger test. 3. If the public authority is of the view that there is an Imminent ar.d grave danger of a substantive evil, the applicants must be heard on the matter. 4. The decision of the public authority, whether favorable or adverse, must be transmitted to the applicants at the earliest opportunity so that they may, if they so desire, have recourse to the proper judicial authority. (Reyes v. Bagatsing, G.R. No. L-65366, 1983). General Rule: Permit is necessary to assemble in a public space.

Exception: No permit is necessary when: (PCF) 1. Private place; 2. Campus of government school; 3. Freedom park. Page 113 of 320.

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FREEDOM OF RELIGION Rule on Assembly in Private Places Only the consent of the owner of the property or person entitied to possession thereof is required. B.P. 880 or the Pub I le Assembly Act of 1985 Sets forth the requirements and procedure which· are necessary to regulate the time, place and manner of public assemblies. It is a content-neutral legislation. It refers to all · kinds of public assemblies that would use public places. The reference to "lawful cause" does not make it contentbased because assemblies really have to be for lawful causes; otherwise they would not be "peaceable" and entitled to protection. The Calibrated Preemptive Response (CPR) issued In lieu of the "Maximum Tolerance" for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally. The existence of freedom parksis an essential part of the law's system of regulatlon of the people's exercise of their right to peacefully assemble and petition. No prior permit may be required for the exercise of such right in any public park or plaza of a city or municipality until that city or municipality shall have established or designated such freedom parks. For without such alternative forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be given to the authorities to ensure proper coordination and orderly proceeding.

No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be ailowed. No religious test shall be required tor the exercise of civil or political rights. (Phil. Const., art. 3, § 5). Freedom of Religion includes: 1. Non-establishment clause . 2. Free exercise clause Non-Establishment ctause and Frfie Exercise Clause NON-ESTABLISHMENl' . , CLft:USE

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.

1.

Does not depend on any showing of direct vernmental compulsion.

It is violated by the nactment of laws which tablish an official religion hether those laws operate irectly to coerce nonservlnq individuals or not.

1. In order t.o show a violation of this clause, the person affected must show the coercive effect of tile legislation as it operates against him in the practice of his religion.

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2.

While the non-estabtishment clause is absolute, the moment such belief flows over into action, it becomes subject to government regulation.

The use of the term CPR should be discontinued, since it does not mean anylhing other than the maximum tolerance policy set forth in B.P. 880. (Bayan v. Ermita, G.R. No. 169838, 2006). The Mayor possesses "reasonable discretion to determine or specify streets or public places to be used for the assembly in order to secure convenient use thereof by others and provide adequate and proper policing to minimize the risks of disorder and maintain puhlic safety and order." (Navarro v. Villegas, G.R. No. L-31687, 1970).

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NON-ESTABLISHMENT CLAUSE ..

concept and basis

Demonstrations, rallies, and other similar activities within a radius of 200 meters from the outer boundary of the Supreme Court Building, any Hall of Justice, and any other building that houses at least one court sala are prohibited (In re: Petition to Annul 98-7-02 SC}.

UNPROTECTED SPEECH - See discussion on Contentbased and Content-Neutral Regulations.

FREE EXE:RCISE CL~USE' .

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There is substantial agreement on the values nonestablishmenl seeks to protect: 1. Voluntarism - the growth of a religious sect as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular society will benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage and, 2. Insulation of the politicai process from interfaith · dissension. (Bernas, Tiie 1987 Philippine Constitution: A Comprehensive Reviewer, 2011 ).

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The Constitution does not authorize the appropriation, use, or applir.ation of public money for the use, benefit, or support of a particular sect or church (Aglipay v. Ruiz, 64 Phil. 201). The non-establishment clause was intended to afford protection from sponsorship, financial support, and active involvement of the sovereign in religious activity. (Lemon v. Kurtzman, 403 U.S. 602, 1971}. The government should be neutral. The State cannot forbid the exercise of religious funcUons and aid in the performance of the same. Legislation requiring the ceremonial reading from the Bible and reciting The Lord's Prayer before class is clearly an exercise of religion and to require the same would violate the rights of the students. But the US SC also held that objective study of the Bible for academic purposes, such as for its historic or literary qualities, may be part of the curriculum as a secular activity. (School District v. Schempp, 374 U.S. 203, 1963).

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The holding of Catholic masses at the basement of the QC Hall of Justice is not a case of estaolisbrnent, but merely accommodation. 1. There is no law, ordinance or circular issued by any duly constitutive authorities expressly mandating that judiciary employees attend the Catholic masses at the basement. 2. When judiciary employees attend the masses to profess their faith, it is at their ow., initiative, without any coercion from the judges or administrative officers. 3. No 'government funds are be!ng spent because the lightings and air conditioning . continue to be operational even if there are no religious rituals there. 4. The basement has neither been converted into a Roman Catholic chapel nor has it been permanently appropriated for the exclusive use of its faithful. 5. The allowance of the masses has not prejudiced other religions 6. In no case shall a particular part of a public building be a permanent place for worship for the benefit of any and all religious groups. There shall also be no permanent display of religious icons in all halls of justice in the country. In case of religious rituals, religious icons and images may be displayed but their presentation is limited only during the celebration of such activities. After any religious affair, the icons and images shall be ·hidden or concealed from public view. (Re: letter of _Tony Valenciano, 2017)

Non-establishment clause requires government neutrality in all religious matters. The following acts are proscribed because such preference would violate voluntarism and breed dissension: I. Government must not prefer one religion over another or religion over lrrellgion 2. Government funds must not be applied to religious purooses for the same reason 3. Government action must not aid religion for the same reason 4. Government action must not result _In excessive entanglement with religion (Bernas. The 1987 ' Constitution of the Republic of the Philippines, 2009). Aglipay. of the Philippine Independent Church sought to prohibit the issuance and sale of ouch stamps commemorating a Catholic Eucharistic Congress for vlolatinq the command that no public money should be appropriated to support any system of religion. The SC held that the statute contemplates no religious purpose. The stamps were not sold for the benefit of tl1e catholic Church, but merely to advertise the Philippines as the seat of the Eucharistic Gongress. Thus, the resl!itii;ig propaganda possibly in favor of the Catholic Church is merely incidental and should not frustrate the main purpose of the law, which is to generate profit and boost tourism. (Aglipay v. Ruiz, G.R. No. L-45459, 1937). Government programs that neutrally provide benefits to a broad class of citizens and without reference to religion do not violate the non-establishment clause, as when government furnishes a disabled child enrolled in a sectarian school with a sign language interpreter to facilitate his education because the service is part of a general government program that neutrally distributes benefits to any child qualifying as disabled under the IDEA, without regard to the sectarian or non-sectarian or public or non-public nature of the school the child attends. Neither does the IDEA create a financial incentive for parents to choose a sectarian school. Most cases, where governmental aids were struck down, challenged programs which gave direct grants of government aid, relieving sectarian schools of costs they otherwise would have borne. In this case, Jthe child is the primary beneficiary and whatever benefits that may accrue to the school is merely incidental. (Zobrest, et al. v. Cata!ina Foothills School District, 509 U.S. 1, 1993)

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FREE EXERCISE CLAUSE

Tests 1. Abjnqton v. Schempp test requires that the statute should have: (SP) 1. A Secular legislative purpose 2. Primary effect of which neither advance~ nor inhibits religion.

It embraces two concepts: 1. freedom to believe (absolute) and 2. freedom to act on one's belief (may be regulated by· the state}.

If the purpose and primary eff13c! is the advancement or inhibition of religion. then the enactment exceeds the scope of legislative power as crcumscrlbed by the . constitution. (Bernas, The 1987 Constitution of the Republic of the Philippines, 352, 2009).

The absolute freedom to believe carries with it the corollary that the government, while it may look into the good faith of a person, cannot inquire into a person's religious pretensions. The moment however, belief flows over into action, it becomes subject to government regulation. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011 ).

2. Lemon v. Kurtzman test developed 3 requisites for statutes to be consistent with the non-establishment · clause: (SNF) 1. The statute must have a Secular legislative purpose 2. The principal effect of the statute must Neither advance nor inhibit religion 3. The statute must not Foster excessive entanglement of the government with religion (regarding government aid}.

Benevolent Neutrality The Constitution adheres to the benevolent neutrality approach that gives room for accommodation of religious exercises as required by the Free Exercise Clause. Although morality contemplated in laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests (Estrada v. Escritor AM. No. P-

02-1651, 2006).

To determine excessive entanglement, the following must be taken into consideration: 1. The character and purposes of the benefitted institutions, 2. The nature of the aid that the State provides, 3. The resulting relationship between the government and religion (Agostini, et al. v. Felton et al, 521

us:

Legislation whose effect or purpose is to impede the observance of one or all religions Any legislation whose effect or purpose is to impede the observance of one or all religions, or to discriminate invidiously between the religions, is invalid, even though the burden may be characterized as being only indirect. But if the State regulates conduct by enacting, within its power, a general law which has for its purpose and effect to advance the states secular goals, the statute is valid despite its indirect burden on religious observance, unless the state can accomplish its purpose without imposing such burden (Victoriano v. Elizalde Rope Workers' Union, G.R. No. L-25246, 1974)

203117, 1997). 3. Mitchell v. Helms (530 U.S. 793, June 28, 2000) found that the primary criteria to determine if governmental aid has the effect of advancing religion: . 1. If the aid results in governmental Indoctrination. i.e., whether or not the governmental aid program subsidizes religion 2. If the aid defines its recipients by reference to religion ' 3. If the aid creates an excessive entanglement The US SC further held that under the neutrality principle, aid that is offered to a broad range of groups or persons without regard to religion are valid. One way to assure the said neutrality is through the principle of private choice, wherein the government is not considered to have provided any support of religion when aid to schools, even if direct, is a} neutrally available and b) before reaching or benefitting any religiou3 school, first passes through the hands of numerous private citizens who are free to direct the aid elsewhere. (Mitchell v. Helms, 530 US 793, 2000)

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Although the State rr.ay not, by statute, wholly deny the right to preach or disseminate religious views, it may, by non-discriminatory legislation, regulate the times, the places, and the manner of soliciting upon its streets. (Cantwell v. Connecticut, 310 U.S. 296, 1940).

A law advancing a legitimate governmental interest is not necessarily invalid as one interfering with the free exercise of religion merely because it also has an incidental and detrimental effect on the same. (Centeno v. VillalonPornillos, G.R. No. 113092, 1994).

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The government cannot certify food as halal - only the religion can do this. (Islamic Da'wah Council of the Philippines, Inc. v. Office of tho Secretary, G.R. No. 153888, 2003). The non-establishment clause calls for government neutrality in all religious matters and governmental reliance on religious justification is prohibited. Recognizing the religious nature of the Filipinos and the elevating influence of religion in society, the Philippine Constitution's religion clauses prescribe a benevolent neutrality and not a strict one. Benevolent neutrality recognizes that the government must pursue its secular goals and interests, but at the same time, strive to uphold religious liberty to the greatest extent possible within flexible constitutiona! limits. Lawbased morality is secular, but benevolent neutrality could allow for accommodation of religion-based morality, provided that doing so would not offend compelling state interests. (Ang ladlad v. COMElEC, G.R. No. 190582, 2010). . State-sponsored distribution of contraceptives under the RH law does not violate the guarantee. of religious freedom.

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Matters dealing with "faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church ... are unquestionably ecclesiastical matters which are outside the province of the civil courts." The jurisdiction of the Court extends only to public and secular morality. Stated otherwise. while the Court stands without authorny to rule on ecclesiastical matters, as vanguard of the Constitution, it does have authority to determine whether the RH law contravenes the guarantee of religious freedom . While the Constitution prohibits abortion. laws were enacted allowing the use of contraceptives. To some medical practitioners, however, the whole Idea of using contraceptives is an anathema. Consistent with the principle of benevolent neutrality, their beliefs should be respected, · ·

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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 governnient 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, esteblishlnq a state religion.

However, the RH law violates the guarantee of religious freedom by compelling medical health practitioners, hospitals, and health care providers, under pain of penalty, to refer patients to other institutions despite their conscientious objections. 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 has written, "at the basis of the free exercise clause is the respect for the inviolability of the human conscience." (lmbong v. Ochoa, G.R. No. 204819, 2014). The Supreme Court denied the motion to lift the TRO and upheld the TRO it previously issued in June 2015 which barred the Department of Health (DOH) from acquiring and distributing contraceptive products lmplanon and lmplanon NXT and ordered the FDA to determine whether the aforementioned drugs are safe and non-abortifacients. (Alliance for the Family Foundation, Philippines, Inc. "(ALFI), et al. v. Hon. Janette L. Garin, et al., G.R. No. 217872, 2016) TESTS 1. Clear and Present Danger Test TI1e only justification for a. restraint or limitation upon religious freedom is the presence of a clear and present danger of a substantive evil to public safety, peace, or order. The State has a right to prevent and punish activities that would incite violence and breach the peace in order to protect others of their equal right to exercise their liberties. (Cantwell v. Connecticut 310 U.S. 296, 1940; also discussed in Ebralinag v. Superintendent, G.R. No. 95770, 1993).

2. Benevolent Neutrality - Com::,elling State Interest Test Government actions that substantially burden a religious practice must be justified by a compelling governmental interest. (Employment Division v. Smith, 494 U.S. 872, 1990). Using the compelling state Interest test from a benevolent neutrality stance The state has the burden to justify any possible sanction. This step involves three steps: (SPL)

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The courts should look into the Sincerity of the religious belief wit:,out inquiring into the truth of the belief The State has to establish that its fy_rposes are legitimate and compelling The State used the Least intrusive means possible

3. Conscientious Objector Test A person who for moral or religious reasons is opposed to participating in any war, and who may be excused from military consc:riptlon but remains subject to service in civil work for the nation's health, safety or interest. (Black's Law Dictionary, 9th ed).

In the above circumstances, the State undertakes the burden of presenting evidence of its compelling interest to override respondent's religious belief. Further, the State has to show that the means it has adopted in pursuing the said interest is the least restrictive to respondent's freedom. (Estrada v. Escrltor, A.M. No. P-02-1651, 2003).

Escritor was the court interpreter at the RTC of Las Pinas. A complaint for disgrnceful and immoral conduct under the Revised Administrative Code was filed against Escritor because of living with a man not her husband. As a defense, she asserted that this conjugal arrangement was in conformity with her religious congregation which was the Jehovah's witnesses. In discussing the Free Exercise Clause, the court tackled United States v. Seeger, which involved four men who claimed "conscientious objector" status in refusing to serve in the Vietnam War. One cf the four, Seeger, was not a rr.ember of any organized religion opposed to war, but when specifically asked about his belief in a Supreme Being, Seeger stated that "you could call (it) a belief in a Supreme Being or God. These just do not happen to be the words that I use." . Forest Peter, another one of the four claimed that after considerable meditation and reflection "on values derived from the Western religious and philosophical tradition," he determined that it would be "a violation of his moral code to take human life and that he considered this belief superior to any obligation to the state." The Court avoided a constitutional question by broadly interpreting not the Free Exercise Clause, but the statutory definition of religion in the Universal Military Training and Service Act of 1940 which exempt from combat anyone "who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form." (Estrada v. Escritor A.M. No. P-02-1651, 2.006. See also Gerena v. Secretary of Education, G.R. No. L-13954, 1959).

1.

2. 3.

The free exercise of religion enloys a preferred position in the hierarchy oi rights. The State's broad interest in protecting the institutions of marriage and the family is not a compelling Interest enforcing the concubinage charges. (Estrada v. Escritor, A.M. No. P-02-1651, 2003). · The free exercise clause does not relieve one of the obligation to comply with a law that incidentally forbids {or requires) the performance of an act that his religious belief requires (or forbids}: A. If the law is not specifically directed to reli~ious prac:tlce B. If the law is constitutional as applied to those who , engage in the specified act for non-religious purposes If the law is not specifically directed to religious practice . and is applied equally to all, regardless of whether they do the act for religious or non-religious purposes, it does not offend the free exercise clause. The balancing of interests test, whereby government actions that substantially burden a religious practice must be justified by a compelling governmental Interest, is inapplicable to an across-the-board criminal prohibition of a particular form of conduct. Otherwise, this would create an extraordinary right to Ignore general laws in the name of religion for as long as no compelling St::ite interest intervenes. (Employment Division v. Smith, 494 U.S. 872, 1990). The US SC held that under the free exercise clause, a law that burdens religious practice need not be justified by a compelling governmental interest, if it is a) neutral and b) of general applicability. However, when the law is not neutral or not of ge;,eral application, the same must undergo the most riqorous of scrutiny: 1) It must be justified by a compelling governmental interest 2) It must be narrowly tailored to advance the said interest (Church of The Lukumi Babalu Aye, Inc., et al. v, City Of Hialeah, 508

U.S. 520, 1993).

Conscientious Objection to Military Service As seen in U.S. v. Seeger, supra, it may also be used as a ground for exemption from compulsory military service. It also Includes those with a sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption.

Other Doctrines To allow the Muslim employees in the Judiciary to be excused from work from 10:00 a.m. to 2:00 p.m. every Friday during the entire calendar year would mean a diminution of the prescribed government working hours. The performance of religious practices should not prejudice the court and the public. The remedy of the Muslim employees, with respect to their request to be Page 118 of 320

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excused from work is legislative. (Re: Request of Muslim Employees in Different Courts in lligan City (Re: Office Hours) AM. No. 02-2-10-SC, 2005). Where the complete separation of civil and ecclesiastical authority is insisted upon, the civil courts must not unduly intrude in matters of · an ecclesiastical nature .. The excommunication of members of a religious organization is a matter best left to the discretion of the officials, laws, and canons of the said organization. It is not for the courts to exercise control over Church authorities in the performance of their discretionary and official functions. In disputes · involving religious institutions, one area that courts should not touch is doctrinal and disciplinary differences. The power of excluding from the church those allegedly unworthy of membership is unquestionably an ecclesiastical matter that is outside the province of civil courts. (Taruc v, Bishop, G.R. No. 144801, 2005). A case involving a minister who failed to account fo, funds and was dismissed is not an ecclesiastloal affair since it did not involve doctrines or religious teachings. (Austria v. NLRC, G.R. No. 124382, 1999).

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Other Constitutional Provisions Expressing NonEstablishment 1. Art VI, Sec 29 - no public money or property given to religious sect, minister or religious personnel (except· for those assigned to Army, penal institution, government orphanage or leprosarium) 2. Art 11, Sec 6 - Separation of church and State is inviolable 3. Art IX-C, Sec 2(5) - No religious sects can be registered as political parties · Constitutional Exceptions to · Non-Establishment Clause · 1. Art VI, Sec. 28(3) - charitable institutions, churches, etc., and all lands, btJildings, improvements actually, directly and exclusively used for religious, charitable, or educational purposes exempt from taxation 2. Art VI, Sec. 1(2) - Cited above: the Armed Forces, penal institution, government orphanage or leprosarium 3. Art XIV, Sec 3(3) -At the option in writing of parents or guardians, religion can be taught in public elementary and HS within regular class hours 4. Art XIV, Sec 4(2) - usually there is citizenship requirement for ownership of educational institutions (30%), but not for those established by religious groups and mission boards

The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety or public health, as, may be provided by law. (1987 Const, art. 3, §6) LIMITATIONS CONDITIONS CURTAILMENT

RIGHT Liberty of• abode

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Right travel

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FOR

VALID

Lawful order of the court; and Within the limits prescribed by law. Lawful order of the court; or May only be done on the basis of the interest of national security, public safety, or public health Must be provided by law.

Rights Guaranteed 1. Freedom to choose ar.d change one's place of abode 2. Freedom to travel within the country and outside ·. . The UDHR and ICCPR treat the right to freedom of movement and abode within the territory of a state,- the right to leave a country, and the right to enter one's country as separate and distinct rights. The Declaration speaks of the "right to freedom of movement and residence within the borders of each state". It would therefore be inappropriate to construe the limitations to the right to return to one's country in the same context as those i::,ertainir,g to the liberty of abode and the right to travel. (Marcos v. Manglapus, G.R. No. 88211, 1989). The Mayor of a rr.unlcipality does not have the right to force citizens of the Phlllppines to change their domicile from one locality to another, even if they are considered women of "ill repute." (Villavicencio v. Lukban, G.R. No. L- 14639, 1919). RIGHT TO TRAVEL (a) Watch-Lists and Hold Departure Orders A person facing criminal charges may be restrained by the Court from leaving too country or, if abroad, compelled to return. Article 111, Section 6 of the 1987 Constitution should be interpreted to mean that while the llberty of travel may be impaired even without Court Order. the appropriate executive officers or administrative authorities ore not armed with arbitrary discretion to impose limitations. They

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can impose limits only on the basis of "national security, public safety, or public health" and "as may be provided by law." a limiting phrase which did not appear in the 1973 text. Article 111, Section 6 of the 1987 Constitution should by no means be construed as delimiting the inherent power of the Courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxillary writs, process and other means necessary to carry it into effect may be employed by such Court or officer. Petitioner is facing a criminal charge. He has posted bail but has violated the conditions thereof by failing to appear before the Court when required. Wai':ants for his arrest have been issued. Those orders and processes would be rendered nugatory if an accused were -, to be allowed to leave or to remain, at his pleasure, outside the territorial confines of the country. Holding an accused in a criminal case within the reach of the Courts by preventing his departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be dealt with in accordance with law. The offended party in any criminal proceeding is the People of the Philippines. It is to their best interest that crirninat prosecutions should run their course and proceed to finality without undue de'ay, with an accused holding himself amenable at all times to Court Orders and processes. (Silverio v. CA, G.R. No. 94284, 1991). Department Circular Mo. 41 was bereft of legal basis because of the absence of a law authorizing the Secretary . of Justice to issue Hold Departure Orders (HOO), Watch List Orders (WLO), or Allow Departure Order (ADO). The issuance of DOJ Circular No. 41, without a law to justify its action, is an unauthorized act of the DOJ of empowering Itself under the pretext of dire exigency or urgent necessity (Genuino v. De Lima, G.R. No. 197930, 2018). RETURN TO ONE'S COUNTRY The right to return to one's own country guaranteed under International Law is separate and distinct from fhe constitutional right to liberty of abode and travel. The Bill of Rights makes no mention of the right to return to one's own country. Such guarantees are not inflexible and may be subject to limiti:ltion should the paramount national interest so require. The President po.sesses residual powers inherent in her duty to protect the general welfare. The extent of her powers is not limited to those expressly conferred by the Constitution. (Marcos v. Manglapus, G.R. No. 88211, 1989).

RIGHT TO INFORMATION The right of the people to information on matters of public concern shall be recognized. (Phil. Const., art. 3, § 7). LIMITATIONS Rights Guaranteed 1. Right to information on matters of public concern 2. Right of access to official records and documents The people have the right to information on matters of public concern, and access to official records shall be allowed to citizens as may be provided by law. It is a selfexecuting provision. The :ight to information is a public right - and every citizen is entitled thereto. Civil service eligibility is a matter of public concern; there is nothing secret about it. (Legaspi v. CSC, G.R. No. L-72119, 1987). Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to official records," the Constitution does not accord them a right to compel custodians of official records to prepare lists, abstracts, summaries and the like in their desire to acquire information on matters of pubhc concern. Only access to the records is permitted. Otherwise, they would unduly burden the agencies with the preparation of their requested lists or summaries. (Valmonte v. Belmonte, G.R. · No. 74930, 1989).

Limitations The government has discretion with respect to the authority to determir.e what matters are of public concern and the authority to determine the manner of access to them.

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A distinction has to be made between the discretion to refuse outright the disclosure of or access to a particular information and the authority to regulate the manner in which the access is to be afforded. • The first is a limitation upon the availability of access to the information sought, which only the Legislature may impose. • The second pertains· to the government agency charged with the custody or public records. Its authority to regulate access is to be exercised solely to the end that damage to, or loss of, public records may be avoided, undue interference with the duties of said agencies may be prevented, and more im!)Ortantly, that the exercise of the same constitutional right by other persons shall be assured.

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While the manner of examining public records may be subject to reasonable regulation by the government agency in custody thereof, the duty to disclose the information of publlc concern, and to afford access to public records cannot be discretionary on the part of said agencies. Certainly, its periormance cannot be made contingent upon the discretion of such agencies. (Legaspi v. CSC, G.R. tJo. L-72119, 1987). In every case. the availability of access to a particular public record must be circumscribed by the nature of the information sought, i.e., (a) Being cf public concern or one that involves public interest. and, (b) Not being exempted by law from the operation of the . constitutional guarantee. The threshold question ts, therefore, whether or not the information sought is of public interest or public concern. In determining whether or not a particular information is of public concern there is no rigid test which can be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to d.etermine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. (Legaspi v. CSC, G.R. No. L-72119, 1987).

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Exceptions (BENT DISC) 1. Banking transactions 2. Executive Sessions 3. National Security matters 4. Trade secrets 5. Diplomatic correspondence 6. Intelligence information 7. Suprem3 Court deliberations 8. Closed Door cabinet meetings

The chemical composition of special lubricants is a trade secret. The ingredients constitute the very fabric of the company's business. To compel its disclosure is to cripple their business and to place It at an undue disadvantaqe. Trade secrets should receive greater protection from discovery because they deserve economic value from being generally unknown and not readily ascertainable by the public. (Air Philippines v. Pennswell, Inc, G.R. No. 172835, 2007). The COMELEC may not deny a request to disclose the names of the nominees of participating party-lists in an election. The COMELEC may not show the names of the nominees in the "Certified List." However, nothing in RA 7941 prohibits the COMELEC from disclosing or even [)Ublishing through mediums other than the "Certified List." The identity of candidates for an elective office is a matter of public interest. (Bantay Republic Act or BA-RA 7941 v. COMELEC, G.R. No. 177271, 2007). I

It is always necessary, given the highly important and complex powers to fix tariff rates vested in the president, that recommendations submitted for the President's consideration be well-thought out and well-deliberated. The Court has expressly recognized in Chavez v. Public Estates Authority that "a frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power." In Almonte v.. Vasquez the Court has stressed the need for confidentiality and privacy, stating thusly: "A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately." Without doubt, therefore, ensuring and promoting the free exchange of ideas among the members of the committee tasked to give tariff recommendations to . the President were truly imperative. (Sereno v. Committee on Trade and Related Matters of the National Economic and Development Authority, G.R. No. 175210, 2016).

It is the general policy of the State to adopt full public disdosure of all transactions involving matters of public interest. The very existence of the MTRCB is public in nature - thus, there can be no valid claim to privacy. The decisions of the board are made in the exercise of public functions; hence they assume a public character. The right " to privacy belongs to the individual acting in his private capacity and not to· a governmental agency or officers tasked with, and acting in, the discharge of public duties. As a matter of public right, access to information or official Page 121 of 320

There are certain classes of information which may be withheld from the public and even from Congress. These are national security matters or confidential diplomatic matters, trade secrets and banking transactions, the identity of informants in criminal investigations, confidential or classified matters which come to the knowledge of public officials by reason of their office. (Chavez v. PCG~. G.R. No 130716, 1998).

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records cannot tie made dependent upon the discreti on of the agency involved, unless the law itsetf provides otherwise. (Aquino-Sarmiento v. Morato, G.R. No. 92541,,

1991). PUBLICATION OF LAWS AND REGULATIONS The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette ... • The word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the people lo be informed on matters of public concern is to be given substance and · reality. The law itself makes a list of what should be published in the Official Gazette. It Is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. Publication is necessary to apprise the public of the contents of [penal] regulations and make the said penalties binding on the persons affectedthereby. (Tanada v. Tuvera, G.R. No. L-63915, 1985). ACCESS TO COURT RECORDS Pleadings and other documents filed by the parties are not matters of public concern or interest. Access to court records may be permitted at the discretion and subject to the supervisory and protective powers of the court. Only those who are "interested persons" who have a legitimate reason for accessing the recorc s may ask the courts to access pleadings. (Hilado v. Judge Reyes, G.R. No. 163155, 2006). Limitation on access to court records coverts other matters in connection with the transaction of any official business by the court, and includes all evidence it has received in a case. In determining whether a particular information is of public concern. there is no right test. In the final analysis, it is for the courts to determine on a case to case basis whether the matter at issue is of interest or importance as it relates to or affect the public. (Hilado v. Judge Reyes, G.R. No. 163155, 2006).

invoke the privilege, there must be a showing that the document is both predeclsional and deliberative. Court records which can be shown to possess both these qualities cannot be the subject of subpoena. (In Re: Production of Court Records and Documents and the Attendance of Court officials and employees as witnesses under the subpoenas of Feb 10,2012 and the various letters for the Impeachment Prosecution Panel dated Jan 19 ar.d 25, 2012, 2012).

A. Predecislonal - refers to communications made in the B.

attempt to reach a final conclusion Deliberative - refers to information whose disclosure would discourage candid discussion within the agency

Presidential Cornmunicatlons Privilege Applies to decision-making of the President; rooted in the constitutional prindple of separation of power and the President's unique constitutional role; applies to documents in their entirety, and covers final and postdecisional materials as well as pre-deliberative ones; meant to encompass only those functions that form the core of presidential authority. Requisites: 1. The communications relate to a "quintessential and non-delegable power" of the President 2. The communications are "received" by a close advisor of the President. 3. There is no adequate showing of a compelling need that would justify the limitation of the privilege and cf the unavailability of the information elsewhere by an appropriate investigating authority. (Neri v. Senate Committee, G.R. No. 180643 2008). RIGHT TO INFORMATION RELATIVE TO: (a) Government contract negotiations {See: Chavez v. PCGG under Right to Information) (b) D!plomatic neqotiatlons • It is clear that while the final text of the JPEPA may not be kept perpetually confidential - since there should be "ample opportunity for discussion before a treaty is approved" - the offers axchanged by the parties during the negotiations continue to be privileged even after the JPl:PA is published. It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that "historic confidentiality" would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. (Akbayan v. Aquino, G.R. No. 170516, 2008).

Court deliberations are traditionally recognized as privileged s.ommunicatlons (deliberative process privilege). This privilege may be Invoked by judges and also by court officials and employees who are privy to these deliberations. It is understood that the rule extends to documents and other communications which are part of or are related to the deliberative process, However, to Page 122 of 320

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Chavez seeks to compel the Public Estates Authority to disclose information regarding its negotiations with potential holders of the said estates even prior to final agreement. The PEA refuses to disclose the information claiming that the right to information does not include intraagency communications and recommendations. Chavez filed a case to compel the PEA to divulge the same. The Court held that while evaluations and reviews are ongoing, there are still no official acts, transactions, or decisions. However, the moment the committee makes its "official recommendation." there is now a definite propositlon, and the right to information begins to attach. It does not require that the contracts be consummated first . · before the right to information to be invoked. (Chavez v. Public Estates Authority, G.R. No. 133250, 2002). Information regarding negotiations for treaties and executive agreeme.nts prior to conclusion of the agreement is privileged information. (Senate v. Ermita, G.R. No. 169777, 2006). An office who gave out information has no obligation to give a · summary of such information. (Valmonte v, Belmonte, G.R. No. 74930, 1989). The right to information is paramount, and that the wiretapping issue is subservient to this right. The "Hello Garci" tapes should be played, because prohibiting its airing would be prior restraint.

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Other Constitutional µrovislons related to right to Information Article II, Sec 28 - Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions Involving public Interest. Other Types of Information According to the case of Chavez v. PEA, G.R. No. 133250, 2002, the right tc information also does not cover the following: 1. Matters recognized as privileged information under the separation of powers; · 2. information on military and diplomatic secrets 3. Information affecting national security; 4. Information on investigations of crimes by law enforcement agencies before the prosecution of the accused. The right may also be subject to other limitations that Congress rnay impose by law (Chavez v. PEA, supra).

RIGHT TO ASSOCIATION The right of the people, Including those employed in the publi,;- and private sectors, to form unions, associations, or societies for purposes not contrary to law, shall not be abridged. (Phil. Const., art. 3, § 8) • The right to form associations shall not be impaired without due process of law and is thus an aspect of the right of liberty. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011 ). • It is also an aspect of the freedom of contract. In addition, insofar as the associations may have for their object the advancement of beliefs and ideas, the freedom of association is an aspect of the freedom of speech and expression, subject to the same limitation. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011 ). • The right also covers the right not to join an association. (Be, nas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011 ). • The right to unionize or to form organizations is now explicitly recognized and granted to employees in both the governmental and the private sectors. Specifically with respect to government employees, the right to unionize is recognized in Paragraph (5), Section 2, Article IX-B which provides that "(t)he right to selforganization shall not be deniec to government employees."(TUCP v. NHC, G.R. No. L-49677, 1989). General Rule (Public v, Private Employees): The right to strike Is not essential to the right of association. To grant employees of the public sector the right to strike, there must be a clear and direct legislative authority therefor. In the absence of any express legislation allowing government employees to strike, recognizing their right to do so, or regulating the exercise of the right, employees in the public service may not engage in strikes, walkouts and temporary work stoppages like workers in the private sector. (Bangalisan v. CA, G.R. No. 124678, 1997).

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In cases of CSC employees (e.g., SSS): It is relevant to state at this point that the settled rule in this jurisdiction is that employees in the public service may not engage in strikes, mass leaves, walkouts, and other forms of mass action that will lead in the temporary stoppage or disruption of public service. (Soclal Se.curity System Emplcyees Association {SSEA) v. Court of Appeals, G.R. No. 85279, 1989).

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A closed shop agreement is legal since it is a valid form of union security. (Villar v, Inciong, G.R. No. L-50283-84, 1983). Prohibiting managerial employees from forming unions is valid because the legal prohibition has a valid purpose which is ensuring freedom of unions. The Constitution only intended to restore the right of supervisory employees to form unions. The rationale supposedly was that managerial employees act in a confidential capacity and may thus lead to conflict of interest; the unions might also become company-dominated. (United Pepsi Cola v. Laguesma, G.R. No. 122226, 1998). This Court's decision in Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, upholding the right of members of the IGLESIA NI KRISTO sect not to join a labor union for being contrary to their religious beliefs, does not bar the members of that sect from forming their own union (Kapatiran sa Meat and Canning Division v. Ferrer Calleja, G.R. No. 8291·\., 1988). Compulsory membership of all lawyers in the Integrated Bar of the Philippines does not violate the right of association (In Re: Edillon, A.M. No. 1928, 1978). Other constitutional provision related to the right to association: A:1. XIII, Sec. 3 ,r 2- The State shall guarantee the rights of all workers to self-organization, collective barfJaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law.

EMINENT DOMAIN CONCEPT Private property shah not be taken for public Lise without _iust compensation. (Phil. Const., art. 3, § 9). The State has the inherent power of eminent domain. It means the ultimate right of the soverelqn power not only over public property but also over the private property of all citizens within its territorial sovereignty. Section 9 is NOT a grant of this power to the State but rather a limitation to it. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011 ). In the hands of Congress the scope of the power is, like the scope of legislative power itself, plenary. It is as troac as the scope of police power itself. It can thus reach every form of property, which the State might need for public use. -, (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011).

Power of Eminent Domain · The right of the soverelqr- power to app~~priate, ~o~ only public but even private property of all c1t1zen~ within t~e territorial sovereignty for public purposes. This power is exercised by the national government but may be delegated to local governments and public utilities. Th~ power of eminent domain is available only when the owner does not want or opposes the sale of his property. Thus if a valid contract exists between the government and the owner, the government cannot exercise the power of eminent domain as a substitute to the enforcement of the contract. Where the lar.downer agrees voluntarily to the taking of his property by the government for public use, he th~r~by waives his right to the institution of & formal expropna~1on proceeding covering such property. Fai'ure for a Ion~ t1~e of the owner to question the lack of expropriation proceedings covering a property that the government had · taken constitutes a waiver of 'his right to gain back possession. The landowner's remedy in such case is an action for the payment of just compensation, not ejectment. {Republic of the Philippines v. Primo Mendoza and Maria Lucero, G.R. No. 185091, 2010). The exercise of the power of eminent domain by a local government unit is now ·governed by Section 19 of Republic Act 7160. For properties under expropriation, the law now requires the deposit of an amount equivalent to fifteen percent {15%) of the fair market value of the property based on its current tax declaration. (Knecht v. Municipality of Cainta, G.R. No. 145254, 2006). f ..'~

t __.: Expropriation is not limited to the acquisition of real property with a corresponding transfer of . titl~ . or possession. The right-of-way easement resulting m a restriction or limitation on property rig:-its over the land · traversed by transmission lines also falls within the ambit · of the term expropriation. The ownership of land extends to the surface as well as to the subsoil under it. Underground tunnels impose limitations on the own~r·s use of tr.e property for an indefinite period and deprive them of its ordinary use. Notwithstanding the fact that N PC only occupies the sub-terrain portion, it is liable to pay not merely an easement fee but rather the full compensation for land. The nature of the easement deprives the owners of its normal beneficial use. (NPC v. Lucman Ibrahim, G.R. No. 168732, 2007).

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The power of eminent domain is not an unlimited power. Section 9, Article Ill of the 1987 Constitution sets down the essential limitations upon this inherent right of the State to take private property, namely: (a) that the taking must be for a public purpose: and (b) that just compensation must be paid to the owner. The State must first establish that the exercise of eminent domain is for a public purpose, which, here, is already settled. What remains to be determined is the just compensation. (EPZA v. Estate of Salud Jimenez, G.R. No. 188995, 2011). The owner is entitled to legal interest from the time of the taking of the property until the actual payment in order to place the owner in a position as good as, but not better than, the position he was in before the taking occurred. (EPZA v. Estate of Salud Jimenez, G.R. No. 188995, 2011). Who May Exercise (CELPQ) 1. Congress 2. Executive, pursuant to legislation enacted by Congress 3. Local government units, pursuant to an ordinance enacted by their respective leglslativP-bodies (under LGC) 4. Public corporations, as may be delegated by law 5. Quasi-public corporations e.g .. PNR, PLOT, Meralco. The delegated power of eminent domain of local government is strictly speaking not a power or eminent but of inferior domain--a share merely in eminent domain. Hence, it is only as broad as the authority delegated to it. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011).

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The exercise of the right of eminent domain, whether directly by the State or by its authorized agents, is necessarily in derogation of private rights. It is one of the. harshest proceedings known to the law. Consequently, when the sovereign delegates the power to a political unit or agency, a strict construction will be given against the agency asserting the power. The authority to condemn is to be strictly construed in favor of the owner and against the condemnor. When the power is granted, the extent to which it may be exercised is limited to the express terms or clear implication of the statute in which the grant is contained. Corollarily, the respondent, which is the condemnor, has the burden of proving all the essentials necessary to show the right of condemnation. It has the burden of proof to establish that it has complied with all the requirements provided by law for the valid exercise of the

power of eminent domain. (Jesus is Lord School v. Municipality of Paslg, G.R. No. 152230, 1974). Heirs of JBL Reyes filed a case for unlawful detainer against Abiog & Maglonso; they obtained a writ of execution. However, during the pendency of the case, the City of Manila sought to expropriate the same properties. The CA issued protective orders, requiring the parties to maintain the status quo untll the expropriation is resolved. The heirs question the legality and validity of the expropriation. The Local Government Code and the Charter of the City of Manila empower the same to expropriate private property for its urban land reform and -, housing program; however, there are other laws to be complied with. RA No. 7279 (Urban Development & Hou~,ing Act) lays down the mandatory priority in the acquisition of lands: 1. Those owned by the government 2. Alienable lands of the publlc domain 3. Unregistered, idle, or abandoned lands 4. Those within declared Areas of Prior:ty Development, Zonal Improvement, Slum Improvement, or Resettlement Program sites Bagong Lipunan lmpro·,ement Sites and Services (BLISS) w/c have not been acquired 5. Privately owned lands (last in the priority) Further, the same Act provides that expropriation is to be resorted to only when other modes of acquisition (community mortgage, land swappinp, land assembly or consolidation, land banking, donation, joint venture, negotiated purchase) have already been exhausted. The City of Manila failed to comply with any of the aforesaid requirements. The exercise of eminent domain cannot override the guarantees of due process conferred upon the property owners. (Heirs of JBL Reyes v. City of Manila, G.R. Nos. 132431 & 137146, 2004). Requisites: (TaPuCom) 1. There is a I1!l!.i!lil. of orivate property 2. Taking is for Public use 3. Payment of just Compensation

Requisites before an LQU can exercise the power of eminent domain (OPJO): 1.

An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property . 2. The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless. Page 125 of 320

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3. There is payment of just compensation, as required 4.

under Section 9, Article Ill of the Constitution, and other pertinent laws. A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted.

There Is Taking of Private Property The power of eminent domain n'ust be distinguished from police power. When the State exercises "police power," property is merely "regulated." There is no transfer of ownership. By eminent domain, property Is "taken." There is transfer of ownership. "Regulotion" is not compensable but "taking" must be compensated. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011 ). The power to regulate does not include the power to prohibit or confiscate. It does not include the power to take private property for public use. If property is to be taken under the authority of the police power, it must be for the purpose of being destroyed for the protection of the public welfare. (City Government of QC v. Judge Ericta. G.R. No. L-34915, 1983). Elements of Taking (BEAPP) 1. Utilization of the property must be in such a way as to oust the owner and deprive him of the Beneficial enjoyment of his property. 2. The expropriator Enters the property 3. Entry is made under warrant or color of legal Authority 4. Property is devoted to Public use 5. The entrance must be Permanent (Republic v. Vda. de Castellvi, G.R. No. L-20620, 1974). While the power of erninent domain often results in the taking of properly, "taking" may include trespass w:·:hout actual eviction of the owner, material impairment of the value of the property or prevention of the ordinary uses for , which the property was intended such as the establishment of an easement. A regulation which substantially deprives the owner of his proprietary rights and restricts the beneficial use and enjoyment for public use amounts to compensable taking. (Didipio Earth Savers et ai. v. Secretary, G.R. No. 157882, 2006). An ordinance which permanently restricts the use of property such that it can no longer be used for any reasonable purpose is beyond regulation and constitutes · taking of property. (People v. Fajardo, G.R. No. L-12172,

The c;onstruction of floodwalls causes the deprivation and dispossession of the property. True, no burden was imposed, and title still belonged to the owner. But the nature and eHect of floodwalls would deprive the owner of. the normal use of the remaining areas. It would prevent ingress and egress to the property. (Republic v. Andaya, G.R. No.160656, 2007). . In totally prohibiting respondents from collecting parking fees from the public for the use of the mall pal"king facilities, the State would be acting beyond the bounds of police power. [Thus. in this case, there was "taking" on the part of the State.) (Office of the Solicitor General vs. Ayala Land, Incorporated, G.R. No. 177056, 2009). There is "taking" when the expropriator enters private property not only for a momentary period but for a more permanent duration, or for the purpose of devoting the property to a public use in such a manner as to oust the owner and deprive him of all beneficial enjoyment thereof. In this context, there was taking when the MIAA occupied , a portion thereof for its expanded runway. (MIAA v. Rodriguez, G.R. No. 16183, 2006). There was a 'ull taking on the part of NPC, notwithstanding that the owners were not completely and actually dispossessed. It is settled that the taking of private property for public use, to be compensable, need not be an actual physical taking or appropriation. NPC constructed a tunnel underneath the land of the Heirs of Macabangkit without going through formal expropriation proceedings and without procuring their consent or at least informing them beforehand of the construction. NPC's construction adversely affected the owners' rights and interests because the subterranean intervention by NPC prevented them from introducing any developments on the surface, and from disposing of the land or any portion of it, either by sale or rnortqaqe, (NAPOCOR v. Heirs of Macabangkit Sangkay, G.R. No. 165828, 2011). Compensable takin~1 includes destruction, restriction, diminution, or interruption of the rights of ownership or of the commcn and necessary use and enjoyment of the property in a lawful manner, lessening or destroying its . value. It is neither necessary that the owner be wholly deprived of the use of his property, nor material whether the property is removed from the possession of the owner, or in any respect changes hands. (NAPOCOR v. Heirs of Mabangkit Sangkay, G.R. No. ·165828, 2011).

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· Matters reviewed by courts insofar as expropriation is concerned: (AdNePub) 1. The adeguc1cy of the compensation 2. The necessity of the taking 3. The "public use" character of the taking LGUs v. National Government LG Us

NATIONAL GOVERNMENT

On the part of local Thus, pursuant to Section government units, 2 of Rule 67 of the 1997 expropriation is also Revised Rules of Civil governed by Section 19 of Procedure the Local Government (See also: Robern Code. Development Corporation v. Quitain). 1.

2.

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The filing of a 1. complaint for expropriation sufficient in form and substance; and The deposit of the 2. amount equivalent to 15% of the falr market value of the property to be expropriated based on its current tax 3. declaration (lioilo v. Legaspi, G.R. No. 154614, 2004).

The filing of a complaint for expropriation sufficient in form and substance; and The making of a deposit equivalent to the assessed value of the property subject to expropriation. Upon compliance with the requirements the issuance of the writ of possession becomes "ministerial'' (Biglangawa v. Baca/la, G.R. Nos. 13992'/ and 139936, 2000).

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General Rule: In the case of LGUs, entry into the property may be made before payment provided that a deposit is made in an amount set by the court (15%).

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Taking is for public use Public use - synonymous with public welfare as the latter term is used in the concept of police power (e.g., land reform and socialized housing).

EXPANSIVE MEANING OF PUBLIC USE Public use, as an eminent domain concept, has now acquired an expansive meaning to include any use that is of "usefulness, utility, or advantage, or what is productive of general benefit of the public." (Ouano, et. al. v. Republic, G.R. No.168770, 2011). · The term "public use" has acquired a more comprehensive coverage. To the literal import of the term signifying strict use or employment by the public has been added the broader notion of indirect public benefit or advantage, Specifically, urban ren€:wal or redevelopment and the construction of low-cost housing is recognized as a public purpose, not only because of the expanded concept of public use but also because of specific provisions in the Constitution. (Sumulong v. Guerrero, G.R. No. 48685, 1987). Public use means "public usefulness, utility or advantage, or what is productive of general benefit: so that any appropriating of private property by the State under its right of eminent domain for purposes of gret:Jt advantage to the community, is a taking for public use." (Gohld Realty Co. v. Hartford, 104 A. 2d 365, 368-9 Conn., 1954; Bernas, The ·· 1987 Philippine Constitution: A Comprehensive Reviewer, 2011 ). Effect If public use for the taking ceases If the genuine public necessity - the very reason or condition as it were - allowing, at the first instance, the expropriation of a private land ceases or disappears, then there is no more cogent point for the government's retention of the expropriated land. The same legal situation should hold if the government devotes the property to another publlc use very much different from the original or deviates from the declared purpose to benefit another private person. It has been said that the direct use by the state of its power to oblige landowners to renounce their productive possession to another citizen, who will use it predominantly for that citizen's own private gain, is offensive to our laws.

A conc1emnor should commit to use the property pursuant Urban renewal or redevelopment and the construction of to the purpose stated in the petition for expropriation, low-cost housing is recognized as a public purpose, not failing which it should file another petition for the new only because of the expanded concept of public use but purpose. If not, then it behooves the condemner to return also because of specific provisions in the Constitution. the said property to its private owner, if the latter so Housing is a basic human need. Shortage in housing is a desires. We suggested as much in Heirs of Moreno and in Tudtud and more recently in Lozada, Sr. Expropriated matter of state concern since it directly and significantly lands . should be differentiated from a piece of land, affects public health, safety, the environment and in sum, the general welfare. (Manapat v. CA, G.R. No. 110478, ownership of which was absolutely transferred by way of 2007) . an unconditional purchase and sale, contract freely entered Page 127 of 320

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BAR OPERATIONS 2019 by two parties. on;;m1out obliqafion to buy and the other without the duty to sell. In that case, the fee simple concept really comes into play. There is really no occasion to apply the "fee simple concept" if the transfer is conditional.

location, and the tax declarations thereon. The measure is not the taker's gain but the owner's loss. To be just, the compensation must be fair not only to the owner but also to the taker.

The taking of a private land in expropriation proceedings is always conditioned on its continued devotion to its public purpose. As a necessary corollary, once the purpose is terminated or peremptorily abandoned, then the former owner, if he so desires, may seek its reversion, subject of course to t're return, at the very least, of the just compensation received. (Ouano, et. al. v. Republic, G.R. No.168770, 2011).

To determine just compensation, the trial court should first ascertain the market value of the property, to which should be added the consequential damages after deducting therefrom the consequential benefits which may arise from the expropriation. If the consequential benefits exceed the consequential damages, these · items should be disregarded altogether as the basic value of the property should be paid in every case. The award of consequential damages is not tantamount to unjust enrichment. (Republic v. CA, G.R. No. 160379, 2009).

JUST COMPENSATION (a) DETERMINATION It is just if the owner receives a sum equivalent to the market value of his property and if it is paid within a reasonable period, Market value is generally defined as the fair value of the property as between one who desires to purchase and one who desires to sell. If municipal property is acquired in its corporate or private capacity, the State must pay just compensation. But ·.tit is any other property such as public buildings or held by the municipality for the State in trust for the inhabitants, the , State is free to dispose of it at will, without any compensation. (Land Bank v. Spouses Orilla, G.R. No. 157206, 2008). Just cornpensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. The measure is not the taker's gain, but the owner's loss. The word "just" is used to intensify the meaning of the word "compensation" and to convey thereby the idea that the equivalent to be rendered for the property to be taken shall be real, substantial, full and ample. (Republic of the Philippines, represented by the National Irrigation Administration v. Rural Bank of Kabacan Inc., G.R. No. 185124, 2012). Just compensation is the fair market value of the property. Fair market value is that "sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price to be given and received therefor." (NAPOCOR v. Ong Co, G.R. No. 166973, 2009).

The general rule is that the just compensation to whlch the owner of the condemned property is entitled to is the market value. The general rule, however. is modified where only a part of a certain property is expropriated. In such a case, the owner is not restrlcted to compensation for the portion actually taken, he is also entitled to recover the consequential damage, if any, to the remaining part of the property. In thi3 case, petitioner contends that BPl's building was "never taken" by petitioner, and that to award consequential damages for the building was unfounded and without legal basis. Petitioner's contention Is unmeritorious. No actual taking of the remaining portion of the real property is necessary to grant consequential damages. If as a result of the exproprtatlon made by petitioner, the remaining lot of private respondent suffers from impairment or decrease in value, consequential damages may be awarded to private respondent. (DPWH v. BPI, G.R. No. 203039, 2013). The tax benefit granted to the establtshmsnts can be deemed as their just compensation for private property taken by the State for public use. The taxation power can also be used as an implement for the exercise of the power of eminent domain. (Commissioner of Internal Revenue v. Central Luzon Drug Corporation, G.R. No. 159647, 2005). The Court also upheld the CA ruling, which deleted the incluslon of the value of the excavated soil In the payment for jus! compensation. There is no legal basis to separate the value of the excavated soil from that of the expropriated properties. In the context of expropriation proceedings, the soil has no value separate from that of the expropriated land. Just compensation ordinarily refers to the value of the land to compensate for what the owner actually loses. Such value could only be that which prevailed at the time of the taking. (Republic of the Philippines, represented by

Among the factors to be considered in arriving at the fair market value of the property are the cost of acquisition, the current value of like properties, its actual or potential uses, and in the particular case of lands, their size, shape, Page 128 of 320

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the National Irrigation Administration v. Rural Bank of Kabacan lnc., G.R. No. 1.85124, 2012). The determination of "just compensation" in eminent domain case is a judicial fur.ction. The executive department or the legislature may make the initial . determinations, but when a party claims a violation of the guarantee in the Bill of Rights that private property may not be taken for public use without just compensation, no statute. decree, or executive order can mandate that its own determination shall prevail over the court's findings. Much less can the courts be precluded from looking into the "just-ness" of the decreed compensation. (Land Bank v. Dumlao, et. al., G. R. No. 167809, 2009). The formula for determination of just compensation to landowners doesn't include the factor for inflation rate, as inflation is properly accounted for through payment of interest on the amount due to the landowner. and through the award of exemplary damages and attorney's fees in cases where there was irregularity in tho taking of property. (National Power Corporation v. Manalastas, G.R. No. 196140, 2016). Reckoning period The value of the property must be determined either as of the date of the taking of the property or the filing of the complaint, "whichever came first." (Eslaban v. De Onorio, G.R. No. 146062, 2001).

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The time of the taking may be reckoned on October 24, 1994, the date of the filing of the complaint. Although the plaintiff took possession of the property in 1991, due to a lease contract executed between plaintiff and defendant, the intention to expropriate was manifested only upon the filing of the complaint. (PNOC v. 11.Aaglasang, G.R. No. 155407, 2008).

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Just compensation in agrarian cases In determining just compensation, the cost of acquisition of the land, the current value of like properties, its nature, actual use and income, the sworn valuation by the owner, the tax declarations, and the assessment made by government assessors, shall be considered. The social and economic benefits contributed by the farmers and the farm workers and by governr,ent to the property as well as the non-payment of taxes or loans secured from any govt;imment financing institution on the said land shall be considered as additional factorsto determine its valuation. (RA 6657, sec. 17. otherwise known as Comprehensive Agrarian Reform Law of 1988).

LAW

Effect of non-payment of just compensation Non-payment of just compensation does not entitle the private landowners to recover possession of their expropriated lot. But, th~ prolonged occupation of the government without instituting expropriation proceedings will entitle the landowner to damages. Such pecuniary loss entitles him to adequate cornpensat'on in the form of actual or compensatory darnaqes, which in this case should be the legal interest (6%) on th~ value of the land at the time of taking, from said point up to full payment. (City of lloilo v. Besana, G. R. No. 168967, 2010). While the prevailing doctrine is that "the non-payment of just compensation does not entitle the private landowner to recover possession of the expropriated lots, however, in cases where the government failed to pay just compensation within five (5) years from the finality of the judgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property. This is in consonance with the principle that "the government cannot keep the property and dishonor the judgment." To be sure, the five-year period limitation will encourage the government to pay Just compensation punctually. This is in keeping with justice and equity. After all, it is the duty of the government, whenever it takes property from private persons against their will, to facilitate the payment of just compensation. We defined just compensationas not only the correct datermination of the amount to be paid to the property owner but also the payment of the property within a reasonable time. Without prompt payment, compensation cannot be considered "just." (Republic v. Lim, G.R. No. 161656, 2005). New System of Immediate Payment under R.A. 8974; application of the rule RA 8974 requires that the Government make a direct payment to the property owner betore the writ may issue ·. for cases involving national government Infrastructure government projects. Moreover, such payment is based on the zonal valuation of the BIR in the case of land, the value of the improvements or structures under the replacement cost method, or if no such valuation is available in case of utmost urgency, the proffered value of the property to be seized. Thus if expropriation is engaged in by the national government for purposes other than national infrastructure projects, the assessed value standard and deposit mode still applies.

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Action to Recover Just Compensation Damages ACTION TO RECOVER ACTION JUST COMPENSATION DAMAGES Also known as inverse condemnation, has the objective to recover the value of property taken in fact by the governmental defendant, even though no formal exercise of tha power of eminent domain has been attempted by the taking agency

v. Action for FOR

Seeks to vindicate a legal wrong through damages, which may be actual, moral, nominal, temperate, liquidated, or exemplary When a right is exercised in a manner not conformable wlth the norms enshrined in Article 19 and like provisions on human relatfons in the Civil Code, and the exercise results to the damage of another, a legal wrong is committed and the wrongdoer is held responsible.

The two actions are radically different in nature and purpose. The action to recover Just compensation is based on the Constitution while the action for damages is predicated on statutory enactments. (NAPOCOR v. Heirs · of Mabangkit Sangkay, G.R. No. 165828, 2011). The fact that the owner rather than the expropriator brings the action for recovery of just compensation does not change the essential nature of the suit as an inverse condemnation, for the suit is not based on tort, but on the constitutional prohibiticn against the taking of property without just compensation. It would very well be contrary to the ctsar language of the Constitution to bar the recovery of just compensation for private property taken for a public use solely on the basis of statutory prescription.

Effect of delay While confirming the State's Inberent power and right to take private property for public use, this provision at the same time lays down the limitation in the exercise of this power. When it takes property pursuant to Its inherent right and power, the State has the corresponding obligation to pay the owner just compensation for the property taken. For compensation to be considered "lust," it must not only be the full and fair equivalent of the property taken; it must

LAW

also be paid to the landowner without delay. (APO v. Land Bank, G.R. No. 164195, 2011 ). Without prompt payment, compensation cannot be considered "just'' inasmuch as the property owner is made to suffer the consequences of being immediately deprived of his land while being made to wait for a decade or more before actually receiving the amount necessary to cope with his loss. (Land Bank v. Spouses Orilla, G.R. No. 157206, 2008). The Court imposes interest of 12% per annum until payment of just compensation whenever the expropriator has not immediately delivered the just compensation. (EPZA v. Pulido, G.R. No. ~88995, 2011). The concept of delay does not pertain to the ·length of time that elapsed from the filing of the Complaint until its resofution. Rather, it refers to the fact that property was taken for public use before compensation was deposited with the court having jurisdiction over the case. There will be delay if the property was taken for public use before compensation was paid or deposited with the court. Hence, between the taking of the property and the actual payment, legal interests accrue in order to place the owners in a position as good as the position they were in before the taking occurred. (National Power Corporation v. Heirs of Gregorio Ramoran, G.R. No. 193455, 2016)

':

ABANDONMENT OF INTENDED USE AND RIGHT OF REPURCHASE If the property ceases to be used for a public purpose, the property reverts lo the owner in fee simple. (Bernas, The 1987 Constitution: A Comprehensive Reviewer 2006). We now expressly hold that the taking of private property, consequent to the Government's exercise of its power of eminent domain, is always subject to the condition that the property be devoted to the specific public purpose for which it was taken. Corollarily, if this particular purpose or· intent is not initiated or not at all pursued, and is peremptorily abandoned, then the former owners, if they so desire, may seek the reversion of the property, subject to the return of the amount of just compensation received. In such a case, the exercise of the power of eminent domain has become improper for lack of the required factual justification. (Mactan-Cebu International Airport v. Lozada, G.R. No. 176625, 2010).

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ATENEO CENTRAL BAR OPERATIONS 2019 MISCELLANEOUS APPLICATION Expropriation by local governments The power of eminent domain is not a valid substitute for the enforcement of a contract. (Bernas, The 1987 Constitution: A Comprehensive Reviewer 2006). Essential requisites so LGU can exercise the power of eminent domain 1. The power of eminent domain is exercised for Public use, purpose or weifare, or for the benefit of the poor and the landless. 2. There is Payment of just compensation, as required under Section 9, Article Ill of the Constitution, and other pertinent laws. 3. A valid and definite Offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted. 4. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf cf the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property. l ~':

Limitations on the exercise of the eminent domain powers of LGUs • Order of priority in acquiring iand for socialized housing: Private lands rar,k last in the order of priority for purposes of socialized housing. • Other modes of acquisition must first be exhausted.

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An LGU like the Municipality of Paranaque, cannot authorize an expropriation of private property through a mere resolution of its lawmaking body. The Local Government Code expressly and clearly requires an ordinance or a loCRI law for the purpose. A resolution that merely expresses the sentiment or opinion of the Municipal Council will not suffice. On the other hand, the principle of res judicata does not bar subsequent proceedings for the expropriation of the same property when all the legal requirements for its valid exercise are complied with. (Municipality of Paranaque v. V.M. Realty Corporation, G.R. No. 127820, 1998).

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Judicial review Matters that may be reviewed by the courts (ANP): 1. The Adequacy of the compensation 2. The Necessity of the taking 3. The "Public Use" character of the taking If the expropriation is pursuant to a specific law passed by Congress, the courts cannot question the public use character of the taking. Any law fixing the amount of just Page

POLITICAL LAW compensation Is not binding on the courts because it is a question of fact which is always subject to review by the courts. General Rule: The value must be that as of the time of the filing of the complaint for exproprtation. Exceptions: 1. When the filing of the case comes later than the time of taking and meanwhile the value of the property has increased because of the use to which the expropriator has put it, the value is that of the time of the earlier taking. 2. Where this Court fixed the value of the property as of the date it was taken and not the date of the commencement of the expropriation proceedings. (NPC v. Lucman Ibrahim, G.R. No. '168732, June 29. 200"/) Exception to the Exceptl,on: • If the value increased independently of what the expropriator did, then the value is that of the FILING of the case. • Even before compensation is given, entry may be made upon the property condemned by depositing the money or an equivalent form of payment' such as government bonds. NON-IMPAIRMENT OF CONTRACTS No law impairing the obligation of contracts shall be passed. (Phil. Consl, art. 3, § 10) What constitutes Impairment: 1. If it changes the terms and conditions of a legal contract either as to the time or mode of performance 2. If it imposes new conditions or dispenses with those expressed . 3. If it authorizes for its satisfaction $Omething different from that provided in its terms. A mere change in procedural remedies which does not change the substance of the contract, and which still leaves an efficacious remedy for enforcement does not impair the obligation of contracts. The non-impairment clause of the Constitution must yield ta the loftier purposes targeted by the Government. Tlrns ·. and again, this Court has said that contracts affecting public interest contain an implied reservation of the police power as a postulate of the existing legal order. This power can be activated at any time to change the 131 of 320

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provisions of the contract, or even abrogate it entirely, for the promotion or protection of the general welfare. Such an act will not militate against the impairment clause, which , is subject to and limited by the paramount police power. (Chavez v. Cornelec, G.R. No. 162777, 2004).

(Pryce Corporatlon v. China Banking Corporation, G.R. No. 72302, 2014).

Zoning regulations are superior to contractual restrictions on the use of property. (Ortigas and Co. v. FEATI Bank, G.R No. L-24670, 1979). ..

Police power is superior to the right to contract. (Bernas, the 1987 Philippine Constitution: A Comprehensive Reviewer, 2009).

There is nothing in Section 5 © of P.D. No. 902-A (Rehabllitation Act) authorizing the change or modification of contracts entered into by the distressed corporation and its creditors. It merely provides that "all actions for claims against corporations, partnerships or associations under management or receivership pending before any court, tribunal, board or body shall be suspended accordingly." (Leca Realty v. Manuela Corporation, G.R. No. 166800, 2007).

The parties to a contract cannot, through the exercise of prophetic discernment, fetter the exercise of the taxing power of the State. For not only are existing laws read into contracts in order to fix obligations as between parties, but the reservation of essential attributes of sovereign power is also read into contracts as a basic postulate of the legal order. The policy of protecting contracts against impairment presupposes the maintenance of a government, which retains adequate authority to secure the peace and good order of society. In truth, the Contract Clause has never been thought as a limitation on the exercise of the State's power of taxation save only where a tax exemption has been granted for a valid consideration. (Tolentino v. Secretary of Finance, G.R. No. 115455, 1995).

Even granting that the "agreement'' between the two governments or their representatives creates a binding obligation under intemauonet law, it remains incumbent for each contracting party to adhere to its own internal !aw in the process of complying with its obligations. The promises made by a Philippine president or his alter E:!gos to a foreign monarch are not transubstantiated by divine right so as to ipso facto render legal rights of private persons obviated. (Kuwait Airways v. Philippine Airlines, G.R. No. 156087, 2009). License agreements are not contracts within the purview of the due process and the no.ti-impairment of contracts clauses enshrined in the Constitution. (Republic v. Pagadian City Timber, G.R. No. 159308, 2008). Timber licenses, permits, and license aqreernents are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. It cannot be denied that they merely evidence a privilege granted by the State, and it does not vest a permanent or irrevocable right. They are not deemed contracts within the due process of law clause. (Oposa v Factoran, G.R. No. 101083, 1993; C&M Timber Corporation v. Alcala, G.R. No. 111088, 1997).

CONTEMPORARY APPLICATION OF THE CONTRACT CLAUSE

FREE ACCESS TO COURTS AND ADEQUA 1 E LEGAL ASSISTANCE Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. (Phil. Const., art. 3, § 11 ). Indigent litigants: 1. whose gross income and that of their immediate family do not exceed four thousand (P4,000.00) pesos a month if residing in Metro Manila, and three thousand (P3,000.00} pesos a month if residing outside Metro Manila, and 2. Who do not own real property with an assessed value of more than fifty thousand (P50,000.00) pesos shall be exempt from the payment of legal fees (Sec. 19, Rule 141, Rules of Court).

The non-impairment clause does not apply to court decisions. In a corporate rehabilitation case, the Supreme Court upheld the validity of an RTC order that a creditor be paid by dacion en pago, without its approval. The nonimpairment clause may be invoked against a law or executive issuance declaring the modification of contracts.

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RIGHTS OF SUSPECTS UNDER CUST..QQ!Ab INVESTIGATION 1.

2.

3.

4.

I

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Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. The law shcill provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. (Phil. Const., art. 3, § 12).

Rights of persons under custodial investigation or Miranda Rights (SCIP) 1. The right to remain Silent- Unlike Section 17 where the absolute right to remain silent is available to an . accused, Section 12 gives a person under investigation the right to refuse to answer any question. 2. The right to gompetent and independent counsel, preferably of his own choice - Right to independent counsel is to ensure an !mpartial lawyer to inform the accused of his rights, as against experiences during the Marcos regime (Bernas, the 1987 Philippine Constitution: A Comprehensive Reviewer, 2009). When is one not an independent counsel? - Special counsel, public or private prosecutor, counsel of the police, municipal attorney, mayor, barangay captain, and any other whose interested may be adverse to accused (Bernas, the 1987 Philippine Constitution: A Comprehensive Reviewer, 2009). 3. Right to be Informed of these rights Contemplates the transmlsslco of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. (People v. Rojas, G.R. Nos. L-46960-62, 1987). 4. Right to be Provided with the services of counsel if he cannot afford the services of one. (People v. Reyes, 581 SCRA 691, 2009).

Custodial investigation involves any questioning initiated 'by law enforcement officers after a person has been taken Into custody or otherwise deprived of his freedom of actior. in any significant way and begins to operate only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, such that the suspect Is taken into custody, and the police carries out a process of interrogations that lends itse!fto eliciting incriminating statements (People v. Marra, G.R. No. 108494, 1994). AVAILABlLITY The right becomes available where the "investigation is no longer a general Inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogation that lends itself to eliciting incriminating statements." (Escobedo v. Illinois, 378 U.S. 478, 1964). It commences when a person is taken into custody and singled out as a suspect in the commission of a crime under investigation. (People v. Reyes, G.R. No. 178300, 2009). RA 7438 however, has extended the guarantee to individuals who have not been formally arrested but has been merely "Invited for questioning." (Bernas, The 1987 Philippine Constitution: A Comprehansive Reviewer, 2011 ). Scope APPLIES TO Testimonial compulsion

DOES NOT APPLY TO Body of the accused when it is proposed to be examined. e.g., urine sample, photographs, measurements, garments (People v. Gamboa, GR 91374, '/991).

Non-availability The rights are not available before govemment investigators become involved {Bernas, The 1987 Philippine Constitution: A Comprohensive Reviewer, 2011): 1. Admissions made in administrative investigations . conducted by the Philipplne Airlines {People v. Judge Ayson, G.R. No. 85215, 1989). 2. Admissions made to private individuals (People v. Tawat, G.R. No. L-62871, 1984 ).

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5.

6.

7.

8.

9. 10.

11.

POLITICAL LAW

Persons undergoing audit (Navallo v. Sandiganbayan, G.R. No.97214, 1994) . Verbal admissions made to a radio announcer who was not part of the investigation (People v. Ordono, G.R. No. 132154, 2000). Admissions made to a mayor who is approached not as mayor but as confidante (People v. Zuela, G.R. No. 112177, 2000). An interview recorded on video in the presence of newsmen, but the court warned that trial courts should admit similar confessions with extreme caution. (People v. Endino, G.R. No. 133026, 2001 ). Persons who voluntarily surrender, where no written confession was sought to be presented in evidence as a result of a formal custodial investigation (People v. Taylaran, G.R. No. L-49149, 1981). Spontaneous statements, not elicited through questioning by the authorities, but given in an ordinary manner whereby the accused orally admits having committed the crime (People v. Baloloy, G.R. No. 1407 40, 2002). Person in a police line-up not entitled to counsel. (Gamboa v. Judge Cruz, 162 SCRA 642, 1988). Administrative proceedings (First Class Cadet Aldrin Jeff P. Cudia of the PMA v. The Superintendent of PMA, G.R. No. 211362, 2015) Signing of arrest reports and booking sheets. It is not an extra-judicial statement and cannot be the basis of a judgment of conviction. The Booking Sheet is merely a statement of the accused's being booked and of the date which accompanies the fact of an arrest (People v. Morico, G.R. No. 92660, 1995 citing People v. Bandin, G.R. No. 104494, 1993).

Summary WHEN AVAILABLE

WHEN NOT AVAILABLE

1 . After a person has 1. During a police line-up been taken into Exception: Once there custody is a move among the 2. When a person is investigators to elicit deprived of his freedom admissions or of action in · any confessions from the significant w'3y suspect. 3. When a person is 2. During administrative merely "invited" for investigations. questioning (R.A. No. 3. Confessions made · by 7438) an accused at !he time 4. The investigation is he volunldrily being conducted by the surrendered to the government with police or outside the respect to a criminal

offense (police, NBI)

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context of a formal investigation. 4. Statements made to a private person. · 5. Signing of arrest reports and booking sheets.

The criminal process includes . 1. the investigation prior to filing of charges, 2. the preliminary examination 3. investigation after charges are filed, and 4. the period of trial. The Miranda rights when the inquiry is under the control of police officers (first 3) because the psyc.hological if not physical atmosphere of custodial investigations, in the absence of proper standards, is inherently coercive. As an exception. even after charges are filed, the police might stiil attempt to extract confessions or admissions from the accused outside of judicial supervision. Outside this exception, Sections 14 and 17 ere applicable. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011 ). REQUISITES The rights under this section are available to "any person under investigation for the commission of an offense". These rights, following the ruling in Escobedo v. Illinois, were seen as beginning to be available only when "the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements". Although the 1986 deliberations. together with the Ga Iman case, leads to the conclusion that the rights are available if a person is already In custody as a suspect, or if the person is the suspect, even if he is not yet deprived in any significant way of his liberty, jurisprudence under the 1987 Constitution has consistently upheld the stricter view pronounced in Escobedo. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011). r

The rights are available "after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (People v. Loveria, G.R. No. 79138, 1990). The moment a police officer tries to elicit information from the suspect, a counsel should at that juncture, assist the suspect, unless he waives this right in writing and in the

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presence of counsel. If the participanon of the lawyer was limited to notarization of a suspect's confession, in legal contemplation, that is not considered to be fhe kind of legal assistance that should be accorded to the suspect. (People v. Rapeza, G.R. No. 169431, 2007). Exclusionary rule Any confession or admission obtained in violation of this section shall be inadmissible in evidence against the accused. (Section 12, par. 3) Any evidence obtained by virtue of an illegally obtained confession is also inadmissible, beinq the fruit of a poisonous tree.

1. 2.

Made in Writing Made with the Assistance of competent and independent counsel 3. Voluntary 4. Must be Express 5. Signed, or if the confessant does not know how to read and write, thumb marked by him (People v. Olivarez, Jr., G.R. No. 77865. 1998).

Under Section 12, par. 2, torture, force, etc. are prohibited because they: • Vitiate truth

Infractions of the so-called Miranda rights. render inadmissible only the extrejudicial confession or admission made during custodial investigation. (People v. Malimit, G.R. No. 109775, November 14, 1996)

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Provision covers both admissions and confessions: • Admission - act, declaration, or omission of a party as to a relevant fact • Confession - declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily ir,cluded therein (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Anent appellant's claim of denial of due process allegedly because he was not assisted by counsel during the investigation and inquest proceedings, the Court cannot accord credence to the same. Ascorrectly observed by the CA, this issue cannot be raised for the first time on appeal without offending the basic rules of fair play, justice and due process. Besides, the fact that he was not assisted by counsel during the investigation and Inquest proceedings does not in any way affect his culpability. It has already been held that "the Infractions of the so-called Miranda rights render inadmissible only the extrajudlcial confession or admission made during custodial investigation." Here, appellant's conviction was based not on his alleged uncounseled confession or admission but on the testimony of the prosecution witness (People v. Bio, G.R. No.195850, 2015), .

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WAIVER Requisites of a valid waiver: (WIP) 1. Waiver should be made in Writing 2. Made voluntarily, knowingly and Intelligently 3. Waiver should be made in the Presence of counsel (Morales v. Enrile, 121 SCRA 538, 1983).

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Requisites (WAVES)

of

a valid

extra-Judicial

confession:

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Are an assault on the dignity of the person

RIGHTSOF lHE ACCUSF.D 1. CRIMINAL DUE PROCESS 1. 2.

No person shall be held to answer for a criminal offense without due process of law. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in· his behalf. However, after arraignrner,t, trial may proceed notwithstanding the absence of the accused provided that he has been duly notfied and his failure to appear ls unjustifiable. (Phil. Const., art. 3, § 14).

Concept As to procedural due process, the requirement that no person shall be held to answer for a criminal offense without due process of law simply requires that the procedure established by law be followed. If that procedure fully protects life, liberty and property of the citizens in the state, then it will be held to be due process of law. (U.S. v. Ocampo, G.R. No. L-5527, 1910). This presupposes that the penal law being applied satisfies the substantive requirements of due process. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011). Another aspect of due process is the right to be tried by an impartial judge (cold neutrality of an independent, whollyfree, disinterested and impartial tribunal) (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011).

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Rights of a person charged with a criminal offense: (FISHI-CD)

1. Right to Face the witnesses 2. Right to be presumed Innocent 3. Right to have a Speedy, impartial and public trial a.

4. 5. 6.

7.

The right to speedy trial is considered violated only when the proceeding is attended by vexatious, capricious and oppressive delays. ' I Courts are required to do more than a mathematical computation of the number of postponements of the scheduled hearings of the case and to give particular regard to the facts and circumstances peculiar to each case. (Nelson Imperial, et al. v. Maricel M. Joson, et al.; Santos 0. Francisco v. Spouses Gerard and Maricel Joson Nelson; Imperial, et al. v. Hilarion C. Felix, et al., G.R. Nos. 160067, 170410, 171622, 2010}. Right to be Heard by himself and counsel . Right to be Informed of the nature and cause of the accusation against him Right to have Compulsory process 'to secure the attendance of witness and the production of evidence In his behalf . Right to Due process of law (Phil. Const., art. 3, § 14 ,r

Exceptions: 1.

2.

Persons charged with offenses punishable by reclusion perpetua, life imprisonment and .death, when evidence of guilt is strong Persons who are members of the AFP. facing a court martial

If convicted by the trial court, bail is only discretionary pending appeal (See Magno v. Abbas, 13 SCRA 233,. 1965; Comendador. et al. v. Villa,·GR 93177, 1991). Under Section 13, Article 3, before conviction, bail is either: A. A matter of right: When · the offense charged is punishable by any penalty lower than reclusion perpetua. To this extent, the right is absolute. B. A matter of discretior.: When the offense charged is punishable by reclusion perpetua, it shall be denied if the evidence of guilt is strong. Once it is determined that the eviden.:::e of guilt is not strong, bail becomes a matter of right. (People v, Nltcha, G.R. No. 113517, 1995). . • Discretion refers to the court's discretion to . determine whether or not the evidence of guilt is strong.

2).

• Do not confuse interpretation of Bail under Bill of Rights with the interpretation of Bail under Rule 114 of the Revised Rules of Criminal Procedure as to: A. Bail as a Matter of Right (Sec 4 ), 8. Bail as a Matter of Discretion {Sec 5), C. Non-Bailable offenses (Sec 7).

2. BAIL All persons. except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, be•ore conviction, be ballablo by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even · when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. (Phil. Const., art. 3, § 13).

Purpose'

The main purpose of bail is to relieve an· accused from the rigors of imprisonment until his conviction and secure his appearance at the trial. Thus, as bail is Intended to secure Concept , one's provisional liberty, the same cannot be posted before 1. To honor the presumption of innocence until his guilt is custody over him has been acquired by the judicial proven beyond reasonable doubt authorities, either by lawful arrest or voluntary surrender. 2. To enable him to prepare his defense without being Only those who have been either arrested, detained, or subjected to punishment before conviction (Cortes v. otherwise deprived of their freedom, will ever have the Catral, 270 SCRA 1, 1997). occasion to seek the protective mantle extended by the right to bail. But the person seeking provisional release General Rule: All persons actually detained shall, before · · need not wait for a formal complaint or information to be conviction be entitled to bail. (Phil. Const., art. 3, § 13). filed against him. (?&deranga v. Court of Appeals, G.R. No. 115407, 1995).

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· A person is considered to be "in the custody of law" when: 1.

2.

He is arrested by virtue of a warrant of arrest or by warrantless arrest; He has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities

The SC held that when the person has actually posted a bail bond, which was accepted by the court, he has effectively submitted himself to the jurisdiction of the court over his person. (Pader-anga v. Court of Appeals, G.R No. 115407, 1995). ~trong evidence means evident proof or presumption is great • Evident proof means clear, strong evidence which leads a well-guarded dispassionate Judgment to the conclusion that the offense has been committed as charged, and that the accused is the guilty agent. • Presumption is great when the circumstances testified to are such that the inference of guilt naturally to be drawn therefrom is strong, clear, and convincing to an unbiased judgment and excuses all reasonable probability of any other conclusion. (People v. Judge Cabral, G.R. No. 131909, 1999). Other rights in relation to bail:

1. 2.

The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended; Excessive bail shall not be required (Phil. Const., art. 3, § 13).

Factors to ·be considered in setting the amount of bail: (F3P3 WANC) 0. 1. 2. 3. 4. 5. 6. 7. 8. 9.

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Financial Ability of the accused to give bail Forfeiture of other bail The accused was a Fugitive from justice when arrested Probability of the accused appearing at tile trial Penalty for the offense charged Pendency of other cases where the accused is on bail Character and reputation of the accused Age and health of the accused Weight of the evidence against the accused Nature and circumstance of the offense (ROC, Rule 114,§6).

Where the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive. (De La Camara v, Enage, G.R. Nos. l-32951~2, 1971 ). Waiver (FEJ)

If appellant Escapes from prison or confinement If appellant Jumps bail If appellant Flees to another country during the pendency of the appeal (ROC, Rule 124, § 8; Rule 125, § 1 ). Apart from bail, a person may attain provisional liberty through recognizance, which is an obligation of record entered into by a third person before a court, guaranteeing the appearance of the accused for trial. It is in the nature of a contract between the surety and the state. (People v. Abner, G.R. No. L-2508, 1950) · Since the grant of bail is discretionary and can only be determined by judicial findings, such discretion can only be exercised after evidence is submitted to the court, the petitioner has the right of cross examination and to introduce his own evidence in rebuttal. (Santos v. Judge How, AM./ RTJ-05-1946, 2007). A mere claim of illness is not a ground for bail. Bail is not a sick pass for an ailing or aged detainee or prisoner needing medical care outside the prison facility. (People v. Fitzgerald, G.R. 149723, 2006}. 'BUT SEE: Accordingly, we conclude that the Sandiganbayan arbitrarily ignored the objective of bail to ensus the appearance of the accused durino the trial· and unwarrar.tedly disregarded the clear showing of the fraqile health ancJ advanced age of Enrile. As such, the Sctndiganbayan gravely abused its discretion in denying Enrile's Motion to Fix Bail. (Juan Ponce Enrile v. Sandigar,bayan, G.R. No. 213847, 2015) Bail in deportation proceedings As a general rule, the constitutional right to bail is available only in criminal proceedings. Thus, they do not apply in deportation proceedings, which are administrative in nature. However, see Mejoff v. Director of Prisons where the court applied the general principles ·Jf international law found in the UDHR and ordered reieased under a bond in a Habeas Corpus petition (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011). Ball in extradition cases Our extradition law does not provide for the grant of bail to an extraditee. There Is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. However, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A

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POLITICAL LAW Right to Compulsory process to secure the attendance of witnesses (Bernas. Tho 1987 Constitution: A Comprehensive Reviewer 2011 ).

potential extradltee may be subject to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state followir,g the proceedings. The standard used in granting bail in extradition cases is "clear and convincing evidence." This standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extradilee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and processes of the extradition court, and that there exist special, humanitarian, and compelling reasons for him to be released on bail. (Government of Hong Kong v. Olalia, Jr., G.R. No.153675, 2007).

5. ASSISTANCE OF COUNSEL If the accused appears at the arraignment without counsel, the judge must: Inform the accused that he has a righi to a counsel before arraignment Ask the accused if he desires the aid of counsel If the accused desires counsel, but cannot afford one, a counsel de officio must be appointed If the accused desires to obtain his own counsel, the court must give him reasonable time to get one (U.S. v. Gimeno, 1 Phil. 236, 1905).

3. PRESUMPTION OF INNOCENCE Its principal effect is that no person shall be convicted unless the prosecution has proved him guilty beyond reasonable doubt (Bernas, The 1987 Constitution: A Comprehensive Reviewer 2011 ).

Pre-arraignment duties of judge: (ROC, Rule 116, § 6)

The Constitution does not prohibit the legislature from providing that proof of certain facts leads to a prima facie presumption of guilt, provided that the facts proved have a reasonable connection to the ultimate fact presumed. (U.S. v Luling, 34 Phil. 725, 1916). Presumption of innocence persists even when them is conviction by lower court and case Is still on appeal. Such presumption is not destroyed until there Is prcof that accused is guilty beyond reasonable doubt based on evidence. (Bernas, The 1987 Constitution: A Comprehensive Reviewer 2011 ). Equipoise rule When evidence of parties are evenly balanced, it should tilt in favor of accused Find constitutional presumption of innocence should prevail (Corpuz v. People, G.R. No. 180016, 1991 ). 4. RIGHT TO BE HEARD Includes the right to be present at the trial from arraignment to promulgation of sentence. (U.S. Beecham, 23 Phil. 259, 1972). After arraignment, trial may proceed notwithstanding absence of accused. Elements: (PIC3) Right Right Right Right

to be Present at the trial; to Counsel; to an lrnparttal judge; of Confrontation;

'

Inform accused that he bas the right to have his own counsel before being arraigned After giving such information, to ask accused whether he desires the aid of counsel If he so desires to procure the services of counsel, the court must grant him reasonable time to do so If he so desires to have counsel but is unable to employ one, the court must assign a counsel de officio to defend him (People v. Agbayani, G.R. No. 122770, 1998). 6. RIGHT TO BE INFORMED Purposes of this right: To furnish the accused with a description of the charge against him as will enable him to make his defenses 2. To avail himself of his conviction or acquittal aqainst a further prosecution for the same cause 3. To· inform the court of the facts alleged (U.S. v. Karelsen, 3 Phil. 223, 1904). If the information fails to allege the material elements of the offense, the accused cannot be convicted thereof even if the prosecution is able to present evidence during the trial with respect to such elements.

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POLITICAL LAW

Exception: when it is an essential element of the offense. (Peoplev. Bugayong, G.R. No.126518, 1998).

11. Prejudice caused to the defendant (Bernas. The 1987 Constitution: A Comprehensive Reviewer 2011 ). RP.medy if the right to speedy trial was violated:

When the time given in the complaint is not essential, it need not be proven as alleged. The complaint will be sustained if there is proof that the offense was committed at any time within the period of the statute of limitations and before the commencement. of the action. The date of commission is not an element of rape. The gravamen of rape is carnal knowledge of a woman. (People v. Rafon. G.R.No. 169059,2007) Under Sections 6 and 8 of Rufe 110 of Rules of Criminal Procedure, an information must contain the: Name of the accused Designation given to the offense by statute Statement of acts or omissions constitutlng the offense Name of offended party Approximate time and date of commission of offense Place where offense was committed Void for vagueness and strict scrutiny Cannot apply to criminal statute; prosecution may be hampered if such were to apply, and no prosecutions would be conducted. The courts cannot contemplate a situation as if third parties were before it. (Spouses · Romualdez 11. COMELEC, G.R. No. 167011, 2008).

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In a situation where a court (in a fused action for the enforcement of criminal and civil liability) may validly order an accused-respondent to pay an obligation arising from a contract, a person's right to be noiified of the complaint, and the right to have the complaint dismissed if there Is no cause of action, are completely defeated. If the accusedrespondent is completely unaware of the nature of the liability claimed against him or her at the onset of the case, he is blindsided. It is a clear violation of a person's right to due process. (Gloria S. Oyv. People of the Philippines, GR No. 189081, August 10, 2016) RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TnJAL 7. Right to Speedy Trial Factors used in determining whether the right to a speedy trial has been violated: 7. Time expired from the filing of the information 8. Length of delay involved 9. Reasons for the delay 10. Assertion or non-assertion of the right by the accused

He can move for the dismissal of the case If he is detained, he can file a petition for the issuance of writ of habeas corpus (Bernas, The 1987 Constitution: A Oornprehenslve Reviewer 2011). Dismissal based on the right to speedy trial If the dismissal is valid, it amounts to an acquittal and can be used as basis to claim double jeopardy. This would be the effect even if the dismissal was made with the consent of the accused {Bernas, The 1987 Constitution: A Comprehensive Reviewer 2011 ). Speedy Trial v. Speedy Disposition of Cases The right to a speedy trial Is available only to an accused and is a peculiarly criminal law concept, while the broader right to a speedy disposition of cases may be tapped in any proceedings conducted by state agencies. In this case, the appropriate right involved is the right to a speedy disposition of cases, the recovery of ill-gotten wealth being a civil suit. (Coconut Producers Federation, Inc. et al. v. Republic of the Philippines; Wigberto E. Tanada, et "al., intervenors; Danilo S. Ursua v. Republic of the Philippines, . G.R. Nos. 177857-58 & G.R. No. 178193, 2012). Right to Impartial Trial The accused is entitled to the "cold neutrality of an impartial judge." It is an element of due process. Example: When a judge has previously convicted a person of a crime i.e .• arson, he should disqualify himself from hearing another case involving the same person, but with -, a different crime, i.e., malversation (Ignacio v. Villaluz, G.R. No. L-37527-52, 1979). Right to Public Trial The attendance at the trial is open to all irrespective of their relationship to the accused. However, if the evidence to be adduced is offensive to decency or public morals, the public may be excluded. (Garcia v. Domlngo, G.R. No. L30104, 1973). The purpose is to serve as a "safeguard against any attempt to employ our courts as instruments of prosecution." The knowledge that every trial is subject to the contemporaneous review in the forum of the public opinion is an effective restraint on possible abuse of

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POLITICAL LAW

judicial power. (Garcia v. Domingo, G.R. No. L·30104,

1973). The right of the accused to a public trial is not violated if the hearings are conducted on Saturdays, either with the consent of the accused or if he failed to object thereto. 8. RIGHT OF CONF~ONTATION

Includes: • Right to Secure Attendance of Witnesses • Right to Production of Other Evidence 10. TRIAL IN ABSENTIA Requisitas: (ANU) The accused has been validly Arraiqnedand Accused has been duly Notified · His failure to appear is Unjustifiable. (Parada v. Veneracion, 269 SCRA 371, 1997).

Purposes of this right: To afford the accused an opportunity to cross-exarnlne the witness . To allow the judge the opportunity to observe the conduct or demeanor of the witness (Bernas, The 1987 Constitution: A Comprehensive Reviewer 2011 ). ' ' Exceptions to the right to face witnesses:

This Is allowed to speed up disposition of criminal cases. (People v. Snlas, 143 SCRA 163, 1986) Exceptions:

The admissibility of "dying declarations" Trial in absentia under Section 14(2) With respect to child testimony (Bernas, The 1987 -Constitution: A Comprehensive Reviewer 2011 ).

If the accused, after arraignment, has stipulated that he is indeed the person charged with the offense and named In the information; and that any time a witness refers to a name by which he is known, the wimess .is to be understood as referring to him. The accused may waive the right to be present at the trial by not showing up. However, the court can still compel the attendance of the accused if necessary, for identification purposes.

Notes: • If the failure of the accused to cross-examine a witness is due to his own fault or was not due to the fault of the prosecution, the testimony of the witness should be excluded. • It Is demandable only during trials. Thus, it cannot be availed of during preliminary investigations. • Right of confrontation is available during trial which begins only upon arraignment.

Promulgation of judgment Wh:le the accused is entitled to be present during promulgation of judgment, the absence of his counsel during such promulgation does not affect its validity. ..... Promulgation of judgment in absentia ls valid provided that the essential elements are present:

9 COMPULSORY PROCESS The 1973 and 1987 Constitutions expanded the right to compulsory process wh!ch now includes the right to secure the production of evidence in one's behalf. By . analogy, U.S. v. Ramirez which laid down the requisites for compelling the attendance of witnesses, may be applied to this expanded concept. Thus, the movant must show: A. that the evidence is really rr.aterial: B. that he is not guilt:1 of neglect in previously obtaining the production of such evidence; C. that the evidence will be available at the time desired:

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0. that no similar evidence could be obtained (Bernas, The 1987 Constitution: A Comprehensive Reviewer 2011 ).

•

that the judgment be recorded in ihe criminal docket

•

that a copy be served upon the accused or counsel. Recording the decision in the criminal docket of the court satisfies the requirement of notifying the accused of the decision wherever he may be. (Estrada v. People, G.R. No. 162371, 2005).

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WHEN PRESENCE OF THE ACCUSED IS A DUTY 1. Arraignment and Plea · 2. During Trial, for identification 3. Promulgation of Sentence

Exception: Light offense where accused need not personally appear.

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POLITICAL I.AW

RIGHT TO SPEEDY DISPOSl'(ION OF CASES

RIGHT AGAINST SELF-INCRIMINATION

All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. (Phil. Const., art. 3, § 16).

No person shall be compelled to be a witness against himself. (Phil. Const., art. 3, § 17)

Speedy disposition of cases is a relative term and must necessarily be a flexible concept. Factors to consider are: length of delay, reason for delay, assertion of the right or failure to assert it, and prejudice caused by delay. (Caballero v. Alfonso, Jr., 153 SCRA 153, 1987). The fact finding investigation of the Ombudsman lasted nearly 5 years and 5 months. It is clear that the Ombudsman had taken an unusually long period just to. investigate the criminal complaint and to determine whether cases be filed against the respondents. It is incumbent for the State to prove that the delay was reasonable which it failed. At no time should the progress and success of the preliminary investigation of a criminal case be made dependent upon the ratification of a treaty by the Senate that would provide to the prosecutorial arm of the State, alreedy powerful and overwhelming in terms of its resources, an undue advantage unavailable at the. time of the investigation. To allow the delay under those terms would definitely violate fair play and nullify due process of law. The guarantea of speedy disposition of cases under Section 16 of Article Ill applies to all cases pending before all judicial, quasi-judicial or administrative bodies. Thus, the fact-finding investigation should not be deemed separate from the preliminary investigation conducted by the Ombudsman if the aggregate time spent for both constitutes inordinate and oppressive delay in the disposition of the case. (People v. Sandiganbayan, G.R. Nos. 188165 & 189063, 2013). Speedy Trial

v, Speedy Disposition of Cases

SEC. 14 (SPEEDY iRIAL)

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Only applies to the trial phase of criminal cases

SEC.16 (SPEEDY . DISPOSITION) Covers all phases of judicial, quasi-judicial and administrative proceedings

Concept It was established on the grounds of public policy {if the party were required to testify, it would place the witness under the strongest temptation to commit perjury) and humanity (it would prevent the extorting of confessions by duress). It is the duty of the prosecution, in order to convict one of a crime, to produce evidence showing guilt beyond reasonable doubt. The accused cannot be called upon, either by express words or acts, to assist in the production of evidence. The silence of the accused should not be taken as proof against him. Further, the accused has the right to rely on the presumption of innocence until the · prosecution proves him guilty of every element of the crime with which he is charged. /United States v. Navarro, G.R. No. 1272, 1904). The right against self-incrimination is mandatory, as it secures to a defendant a valuable and substantive right. It is not merely a formal technical rule and the enforcement of which is left to the discretion of tho court. The court may not extract from an admission of guilt from the defendant's own lips and against his will. The court may not resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of the crime. Thus, the accused has: • The right to forego testimony • The right to remain silent, unless he chooses to take the witness stand thr0ugh the exercise of his own free will. The rule may apply even to a codefendant in a joint trial. (Chavez v. Court of Appeals, G.R. No. L-29169, 1968). Scope and coverage Prohibits the use of physical or moral compulsion to extort communications from the accused The Constitutional guarantee does not include the body of the accused as evidence, when the same may be material. Thus, the provision is against legal precesses that extract from the defendant's own lips, against his will, an admission of guilt. The kernel of the privilege is testimonial , compulsion and not any other compulsion. A physical examination for evidence is similar to introducing stolen property taken from the person of the thief. {United States v, Tan Teng, G.R. No. 7081, 1912).

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Prohibits compulsion to perform positive testimonial

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The Constitutional guarantee is not limited to giving of declaration, but extends to other means where one effectively constitutes a witness against himself such as: 1) testifying, 2) furnishing evidence, 3) being a witness. . Thus, the privilege is not limited precisely to testimony or giving of oral testimony, but extends to all fLJrnishing of evidence by other means than by word of mouth. It Includes the divulging of any fact which the accused has a . right to hold secret. Writing is something more than a mechanical act, as it requires application of intelligence and attention. The witness ls compelled to write, create, make, or prepare, by means of the act of writing, evidence which does not yet exist and will be later on used against him as falsifier. Simply put, what is required in the instant case is for the petitioner to perform a positive. testimonlal act. to write and give a specimen of his handwriting for the purpose of comparison, which sets it apart from other cases, where the accused did not have to do anyttiing but be examined.

incrimination now comes within · the right to privacy. (Pascual Jr. v. Board ofExaminfirs, G.R. No. L-25018, May 26, 1969). The right agains"t self-incrimination has been expanded to cover other forms of proceedings or compulsion: 1. It extends to all proceedings sanctioned by law 2. It extends to all cases in which punishment is sought to be visited upon a witness, whether a party or not 3. It extends to both the accused, as well as a mere witnesses in a prosecution 4. It protects equally in civil cases when incriminating questions are asked 5. It applies to all kinds of courts 6. It covers litigious or non-litigious proceedings · 7. It covers proceedings ex parte or otherwise 8. It covers all forms of interrogation before the courts 9. It extends to investigations conducted by legislative bodies 10. it now prohibits rendering incriminatory handwriting specimens (Beltran v. Samson. G.R. No. 32025, 1929). International and Foreign laws

Self-incrimination evidence.

clause

covers

documentary

This does not apply to "records required by law to be kept which are the appropriate subjects of governmental regulation and where restrictions are validly established. (Shapiro v, United States, 335 U.S. 1. 1948). Proceedings for forfeiture of property are doemed criminal or penal and, thus, the right against selfincrimination is applicable. "Forfeiture" is a divestiture of property, without compensation, in consequence of a default or an offense. It Is imposed by way of punishment, not by the mere conviction of the parties, but by the law-making power, to insure a prescribed course of conduct (Cabal v. Kapunan. G.R. No. L-19052. 1962). Unlike the search and seizure clause, which protects both natural persons and corporations, the privilE;ge against self-incrimination is a personal one, applying only to natural individuals (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011 ).

Article 14(3)(g) of the ICCPR states that [no one shall] be compelled to testify against himself or to confess guilt. (UN International Covenant on Civil and Political Rights). No person shall be compelled in any criminal case to be a witness against himself. (5th Amendment, US Constitution). APPLICATION 1. In criminal cases 2. In all other government proceedings, including civil actions and administrative or legislative irwestigations. (Bernas, The 1987 Constitution: A Comprehensive Reviewer 2011 ).

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The right may be invoked from the moment the accused is asked to testify. A witness may assert the right only when an incriminating question is asked. (Bernas, The 1987 Constitution: A Comprehensive Reviewer 2011 ). Only natural persons can invoke the right. Juridical persons are subject to the visitorial powers of the state in order to determine compliance with the conditions of the charter granted to them. {Bernas, The 1987 Constitution: A Comprehensive Reviewer 2011).

The rule has been established that refusal of an accused to be a witness or of a witness to answer should in no manner be used against them The accused has the right to forego testlrnony and remain silent, unless he takes the witness stand out of his own free will The right against selfPage 142 of 320

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POLITICAL LAW 2. Transactional immunity - grants immunity to the witness from prosecution for an offense to which his compelled testimony relates.

Prohibited v. Not Prohibited Examinations PROHIBITED

NOT PROHIBITED

What is prohibited is the use of physical or moral compulsion to extort communication from the witness or to otherwise elicit evidence which would not exist were it not for the actions compelled from the witness.

The right does not prohibit the examination · of the body of the accused or the use of findings with respect to his body as physical evidence.

The accused cannot be compelled to produce a private document in his possession that might tend to incriminate him.

However, a third person in custody of the document may be compelled to produce it.

Obtaining a sample of the handwriting of the accused would violate this right if he is charged for falsification.

Fingerprinting of an accused would not violate the right against selfincrimination.

(See U.S. v. Tan Teng, 23 Phil 145, 1912; People v, Otadora, 86 Phil. 244, 1950; Bernas, The 1987 Constitution: A Ccmprehensive Reviewer 2011 ). Incriminating question

A question tends to incriminate when the answer of the accused or the witness would establish a fact, which would be a necessary link in a chain of evidence to prove the commission of a _crime .by the accused or the witness. (lsabela Sugar Co. v, Macadaeg, 98 Phil. 995, 1953). ·"····'\,

Accused v. Ordinary Witness

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ACCUSED

ORDINARY WITNESS

Can refuse to take the witness stand altogether by invoking tne right against self-incrimination.

Cannot refuse to take the witness stand. He can only rafuse to answer specific would questions that incriminate him in the commission of an offense.

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(Bernas, The 1987 Constitution: A Comprehensive Reviewer 2011 ). IMMUNITY STATUTES 1.

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It is beyond dispute that said law belongs to the first type of immunity statutes (use immunity). It grants merely immunity from use of any statement given before the Board, but not immunity from prosecution by reason or on the basis thereof. Merely testifying and/or producing evidence do not render the witness immune from prosecution notwithstanding his invocation of the right against s&lf- incrimination. He is merely saved from the use against him of such statement and nothing more. Stated otherwise ... he still runs the risk of being prosecuted even if he sets up his right against self- incrimination. The dictates of fair play, which is the hallmark of due process, demands that private respondents should have been informed of their rights to remain sllent and warned that any and all statements to be given by them may be used against them. This, they were denied under the pretense that they are not entitled to it and that the Board has no obligation to so inform them. (Galman v. Pamaran, G.R. Nos. 71208-09 & 71212-13, 1985).

RIGHT AGAINST DOUBLE JEOPARDY No person shall be twice out in jeopardy of punishment for the same offense. If an act is punished by 2 law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. (Phil. Const., art. 3, § 21) 1 Section 7 of RA 10175 which provides for prosecution under both the Revised Penal Code and the Cybercrime Prevention Act was assailed as unconstitutional for violating the rule on double jeopardy. The provision was declared unconstitutional as to Section 4(c)(4) on Libel and Section 4(c)(2) on Child Pornography. However, with respect to the other prohibited acts, the Court left the determination of the correct application of Section 7 to actual cases. In relation to Secticn 4(c)(4) on Libel, the Court said that if the published material on print, said to be libelous, is again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in facl one and the same offense. Charging the offender under both laws would be a blatant violation of the proscription against double jeopardy. As to Section 4(c)(2) on 'Child Pornography, the Court said that Section 4(c)(2) merely expands the ACPA's scope so as to include 143 of 320

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identical activities in cyberspace. As previously discussed, ACPA's definition of child pornography in fact already covers the use of "electronic, mechanical, digital, optical, ' magnetic or any other means." Thus, charging the offender under both Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the constitutional prohibition against double jeopardy. (Disini v. Sec. of Justice, G.R No. 203335, 2014)

Ylagan, 58 Phil. 851, 1993}

Kinds of Jeopardy SAMEOFFESE

SAME ACT

"No person shall be twice put in jeopardy of punishment for the same offense."

"When an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act."

Conviction, acquittal, or dismissal of the case without the express consent of the accused will bar a subsequent prosecution.

Only conviction or acquittal - not dismissal without the express consent of the accused - will bar a subsequent prosecution.

Requisites 1. A first jeopardy must have attached prior to the second. 2 The first jeopardy must have been terminated. 3. The second jeopardy must be for the same offense as that in the first. (Bernas, The 1987 Constitution: A Comprehensive Reviewer, 2011) First jeopardy must have attached

WHEN JEOPARDY WHEN JEOPARDY DOES ATIACHES NOT ATIACH (Code: CICAP) 1. 1. A person is ,g,harged 2. Under a complaint or Information sufficient in form and substance to sustain a conviction 2. 3. Before a court of &,ompetent Jurisdiction 4. After the person is Arraigned 5. Such person enters a valid flea. (People v.

If information does not charge any offense (People v. Judge Cor.sulta, :..-41251,

1976) If, upon pleading guilty, the accused presents evidence of complete self-defense, and the court thereafter acqults him without entering a new plea of not guiity for accused. There is no valid plea here. (People

v. Balisacan, G.R. No. L26376, 1966) 3. If the information for an offense cognizable by th!'} RTC is filed with the MTC. There is no jurisdiction here. (People v. lbasan, Sr., 129 SCRA 695, 1984) 4. If a complaint filed for preliminary investigation is dismissed. (People v. Oaco, L-17212, 1962)

The first jeo:,ardy must have been terminated. 1. Acquittal; 2. Conviction; or 3. Dismissal without the express consent of the accused • • •

• •

Dismissal based on violation of the right to a speedy trial amounts to an acquittal Dismissal based on demurrer to evidence is a dismissal on the merits Dismissal on motion of the prosecution, subsequent to a motior. for reinvestigation filed by the accused Discharge of an accused to be a state witness. This amounts to an acquittal. Dismissal on the merits

If the first dismissal was based on the merits. there should be no second prosecution. If the first dismissal was not based on the merits and was erroneous, one should look at whether the dismissal was with the consent of the accused. If not, there should be no second prosecution. (Bernas, The 1987 Philippine Constitution: A · Comprehensive Reviewer, 2011) The second jeopardy must be for the same offense, one that includes or is necessarily included in the first offense or is an attempt or frustration of the first. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Same Offense 1. Exact identity between the offenses charged in the first and second cases. 2. One offense is an attempt to commit or a frustration of the other offense. 3. One offense is necessarily Included or necessary includes the other.

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4. The situation is different when one act violates two different statutes or two different provisions of a statute. The rule in such a case is that if the 011e act results in two different offenses, prosecution under one Is a bar to prosecution under the other. (Bernas, The 1987 Constitution of the Republic of the Philippines, 2011 ). Same evidence test Whether the evidence needed in one case will support a conviction in the other. (U.S. v. Tan Oco, 34 Phil. 772, 1916) However, this applies only in a more general sense, hence it is the test laid down under Section 9 of Rule 117 of the Revised Rules of Criminal Procedure that should apply. This states that one offense must necessarily be induded in the other, i.e., whether one offense Is identical with the other or whether one offense necessarily includes or is necessarily included in the other. Identity of offenses does not require one-to-one correspondence between the facts and law involved in the two charges. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011)

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Supervening Facts A conviction for an offense will not bar a prosecution for an offense which necessarily includes the offense charged in the former information where: 1. The graver offense developed due to a supervening fact arising from the same act or omission constituting the former charge. · 2. The facts constituting the graver offense became known or were discovered only after the filing of the former information. 3. The plea of guilty to the lesser offense was made without the consent of the prosecutor and the offended party. (ROC, Rule 117, § 7)

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Motions for Reconsideration At any time before a Judgment of conviction becomes final, the court may, upon motion of the accused or at its own instance, but with the consent of tho accused, grant a new trial or reconsideration. (ROC, Rule 121, § 1) "From the phraseology of the rule, it is evident that a motion for new trial or a motion for reconsideration applies when the judgment is one of conviction; and it is the accused, not the prosecution which avails of the same." (Riano, Criminal Procedure, 583, 2014) · Appeals Any :)arty may appeal from a judgment or final order, unless the accused will be placed in double Jeopardy. (ROC, Ruis 122, § 1) General Rule: The prosecution may not appeal an acquittal, and an acquittal is immediately ·,inal. (ROC, Rule 120, § 7) Exception: The prosecution may appeal an order of dismissal when: 1. The dismissal is on motion or with the express consent of the accused. (ROC, Rule 117, § 7) • Exception to the Exception: If motion is based on violation of the right to a speedy trial or on a demurrer to evidence. (People v. Velasco, G.R. No. 140633, 2002)

2. The dismissal does not amount to an acquittal or dismissal on the merits. (People v. Salico, 4 Phil. 722, 1949)

3. The question to be passed upon is purely legal. If the facts could have been discovered by the prosecution but were nm discovered because of the prosecution's incompetence, it would not be considered a supervening event.

t~ ~ -, _,

MOTIONS FOR RECONSIDERATIONAND APPEALS

(People v. Desalisa, L-15516, December 17, 1966)

4. The dismissal violates the rlgh~ of due process of the

5. If the accused appeals his conviction, he waives his right to plead double jeopardy. The whole case will be open to review by the appellate court. It may even increase the penalties imposed on the accused by the trial court. (Trono v. US, 11 Phil. 726, 1905)

prosecution. (People v. Sandiqanbayan et. al., G.R. No. 164577, 2010) The dismissal or acquittal was made with grave abuse of discretion. (People v. Sandiqsnoayan et. al., G.R. No. 164577,2010)

Although, as a rule, rJismlssal of a criminal case may be used to abate an administrative case based on the same facts, the same does not hold true if it were the other way around, that is, the dismissal of the administrative case is being invoked to abate the criminal case. However, if the two actions are based on the same facts and evidence, such as in this case, dismissal in administrative case may

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be used to negate criminal liability. (People Sandiganbayan et. al., G.R. No. 164577, 2010).

v.

Effect of an accused's appeal of his conviction 1. Waiver of right to double jeopardy 2. The appellate court may place a penalty higher than· that of the original conviction. (Trono v. United States, 199 U.S. 521, 26 S.C.T.121, 50 L. Ed. 2920, 1905) DISMISSAL WITH CO~SENT OF ACCUSED General Rule: Equivalent to a waiver of the defense of double jeopardy.

Exceptions: 1. Punishment for a crime. 2. Personal military or civil service in the interest of national defense. . 3. In naval enlistment, a person who enlists in a merchant ship may be compelled to remain in service until the end of the voyage. · 4. Posse Comitatus (every able-bodied person is ultimately responsible for keepinq peace) for the apprehension of criminals. · . 5. Return to work order issued by the DOLE Secretary or the President. Minors under panla potestas are obliged to obey their parents. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 152, 2011)

Exception: When motion is based on: Provisional Dismissal A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. (ROC, Rule 117, § 8). The provisional dismissal of offenses punishable by imprisonment not exc•,eding 6 years or a fine of any amount, or both. shall become permanent 1 year after issuance of th,3 order without the case having been revived. With respect to offenses punishable by imprisonment of morn than 6 years, their provisional dismissal shall become permanent 2 years after issuance of the order without the case having been revived. A motion of the accused for a provisional dismissal of a case is an express consent to such provisional dismissal. If a criminal case is provisionally dismissed with the express consent of the accused, the case may be revived only within the periods provided in the new rule. On the other hand, if a criminal case is provisionally dismissed without the express consent of the accused or over his objection, the new rule would not apply. The case may be revived or refiled even beyond the prescribed periods , subject to the right of the accused to oppose the same on the ground of double jeopardy or that such revival or refiling is barred by the statute of limitations. (People v. Panfilo Lacson, G.R. 149453, 2003)

INVOLUNTARY SERVITUDE

Excessive fines shall not be imposed, ncr cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. (Phil. Const., art. 3, § 19(1 )) "It has been held that to come under the constitutional ban on excessive and inhuman punishment, the punishment must be 'flagrantly and plainly oppressive,' 'wholly disproportionate to the nature of the offense as to shock the moral sense of the community." (Peop!e v. Estoista, 93 Phil. 647, 1953) Cruel and inhuman

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It involves torture or lingering suffering (e.g., being drawn and quartered).

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It exposes a person to public humiliation (e.g., being tarred and feathered, then paraded throughout town). Excessive fine When under any circumstance, the fine is disproportionate to the offense. Guides for detemalning "cruel and unusual":

Involuntary servitude Every condition of enforced or compulsory service of one to another no matter under what form such servitude may be disguised. (Rubi v. Provincial Board, 39 Phil. 660,

1919)

RIGHT AGAINST EXCESSIVE FINES AND CHUEL AND INHUMAN PUNISHMENT

whether a punishment

is

It must not be so severe as to be deg, ading to the dignity of human beings. 2. It must not be applied arbitrarily. 3. It must not be unacceptable to contemporary society. 4. It must not be excessive.

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Note: • It must serve a penal purpose more effectively than a less severe punishment would (Brennan concurring in Furman v. Georgia, 408 U.S. 238, 1972) • R.A. 9346 prohibited the imposition of the death penalty. Only by an Act of Congress can it be reborn. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 154, 2011) Death Penalty Death penalty was abolished because: • • • • •

It inflicts traumatic pain not just on the convict but also on his family, even if the penalty is not carried out. There was no convincing evidence that it is effect!ve as a deterrent of serious crime. Penology favors reformative rather than vindictive penalties. Life is too precious a gift to be placed at the discretion of a human judge. The law itself, by imposing so many safeguards before such is carried out, manifests a reluctance to impose it. (Bernas, The 1987 Philippine Cc,nstitution: A Comprehensive Reviewer, 154, 2011)

NON-IMPRISONMENT FOR DEBTS No person shall be imprisoned for debt or non-payment of a poll tax. (Phil. Const., art. 3, § 20) Debt A contractual obligation, whether express or implied, resulting in any liability to pay money. Thus, all other types of obligations are not within the scope of this prohibition. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 159, 2011) If an accused fails to pay the fine imposed upon him, this may result In his subsidiary imprisonment because his liability is ex delicto and not ex contractu. (Alejo v. Judge lnserto, AM. 1098 CFI, 1976) A debtor may be imprisoned if the fraudulent debt constitutes a crime such as estafa and has been duly convicted. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011)

EX POST FACTO LAWS AND .BILLS OF ATTAINDER

Legislature may re-impose i~. subject to the following conditions: • That Congress defines what is meant by heinous crimes. That Congress specify and penalize by death, only those crimes that qualify as heinous in accordance with the definition set in heinous crimes law or death penalty law. • That Congress, in enacting this death penalty bill, be singularly motivated by "compelling reasons involving heinous crimes." {People v. Echegaray, G.R. No.

No e::.< post facto law or bill of attainder shall be enacted. (Phil. Const., art. 3, §22) Ex post facto law

1. Make~ an action done before the passing or the law,

2. 3.

117472, 1997)

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Under RA 7659: Heinous crimes are those which are grievous, odious, and hateful: and by reason of their manifest wickedness, viciousness, atrocity, and perversity, are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized, and ordered society. (People v. Echegaray, G.R. No. 117472,

4.

5.

1997) 6. The duty of a judge when an accused pleads guilty to a capital offense Is to look into the evidence to see if death is the proper penalty. (People v. Vinuya, G.R. No. 125925.

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1999)

and which was innocent when done, criminal, and punishes such action. Aggravates the crime or makes it greater than when it was committed. Changes the punishment and inflicts a greater punishment than that which the law annexed to the crime when lt was committed. Alters 1he legal rules of evidence and receives less testimony than the law required at the time of the commission of the offense ir: order to convict the accused. Assumes to regulate civi1 rights and remedies but in effect imposes a penalty or deprivation of a right, which when done was lawful. Deprives a person accused of a crime of some lawful protection to which he has become entitled such as the protection of a former conviction or acquittal, or a proclamation of amnesty. (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011)

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The prohibition on ex post facto laws only applies to retrospective penal laws. (Bernas, The 1987 Pnilipp.ne Constitution: A Comprehensive Reviewer. 201 ·1) Characteristics of an ex post facto law:

1. Refers to criminal matters 2. Retrospective 3. Causes prejudice to the accused (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011) Instances when the prohibition ,on ex-post facto laws is inapplicable: 1.

Extradition treaty . 2. Probation law 3. Change of court Jurisdiction 4. House rental law (Wright v. CA, 1994; Fajardo v. CA, 1999; Lacson v, Executive Secretary, 1999; Juarez v. CA, 1992) Bill of attainder An act by the legislature that inflicts punishment without judicial trial. (Cummings v. Missouri, 4 Wall 277, 323 US, 1867) The bill of attainder does not need to be directed. at a specifically named person. It may also refer to easily ascertainable members of a group in such a way as to inflict punishment on them without judicial trial. (Cummings' v. Missouri, 4 Wall 277, 323 US, 1867) Elements (LINaW)"

1 . There must be a Law 2. The law Imposes a penal burden 3. On a Named individual or easily ascertainable members of a group 4. The penal burden Is imposed directly by the law Without judicie.l trial. (Bernas, The 1987 Philippine Constitution: A Comprehensive Re'tiewer, 2011) Petitioners challenge Section 20 of the Cybercrime Prevention Act, alleging that it is a bill of attainder. The argument is that the mere failure to comply constitutes a legislative finding of guilt, without regard to situations where non-compliance would be reasonable or valid. The Section was upheld. Since the non-compliance would be punished as a violation of PO 1829, Section 20 necessarily incorporates elements of the offense which are defined therein. If Congress had intended for Section 20 to constitute an offense in and of itself, it would not have had to make reference to any other statute or provision. Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully." There must still be a

judicial determination of guilt, during which, as the Solicitor General assumes, defense and justifications for noncompliance may be raised. Thus, Section _20 is valid insofar as it applies to the provisions of Chapter IV which are not struck down by the Court. (Disini v. Sec. of Justice, G.R.No.203335,2014) WRIT OF HABEAS CORPUS The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it. (Phil. Const., art. 3, § 15) A writ directed to the person · detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his caption and detention, to do, submit to, and receive whatever the court or Judge awarding the writ shall consider in the behalf (Sombong v. CA, G.R. No. 111876, 1990). Privilege of the writ of habeas corpus The right to have an immediate determination of the legality of the deprivation of physical liberty. The writ is never suspended. It always issues as a matter of course. What is suspended Is the privilege of the writ. It requires deprivation of personal liberty: • Physical compulsion or coercion • Duress • Extsrnel moral compulsion • Founded on groundless fear • Erroneous belief in the existence of an imaginary power of an imposter to cause harm if not blindly obeyed • Any psychclogical element that may curtail the mental faculty of choice or the unhampered exercise of the will Suspension corpus

of the privilege

of the writ of habeas

The President may suspend the privilege for a period not exceeding 60 days. The grounds for the suspension of the privilege are: A. Actual invasion or actual rebellion B. When the public safety requires the suspension

The suspension shali apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. The crimir,al charge has to be filed In court within 3 days because, otherwise, the person shall be released. Thus, the suspension of the privilege will not apply until such persons are placed in the custody of a Page 148 of 320

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judicial officer. Congress is given the power to revoke the suspension and the President may not set aside such revocation. Congress, upon the initiative of the President, may also extend tile suspension. The Supreme Court, upon the initiative of any citizen, may review the sufficiency of the factual basis of the suspension and must promulgate its decision thereon within 30 days from filing.

WRITS

WRIT OF AMPARO A remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or er'itity. (Sec. of Defense v. Manalo, 586 SCRA 42, 2006). The Writ of Amparo does not cover threats to property. To be entitled to a Writ of Amparo, petitioners must prove that their rights to life, liberty, and security are being violated or threatened by an unlawful act or omission. The intrusion into their farm was merely a violation of property rights. (Pador v. Arcayan, G.R. No. 16346, 2013).

The Supreme Court has the power: 1. To determine arbitrariness in the manner of arriving at the suspension 2. To determine the sufficiency or the factual basis of the suspension The SC is empowered to determine whether. in fact, actual invasion and rebellion exists and whether public safety requires the suspension

Examples of property rights not covered are: • Right to be restituted of personal belongings. It is already subsumed under the general rubric of property rights which are no longer protected by the writ of amparo. (Roxas v. Arroyo, G.R. No. 183155, 2010)

Habeas corpus cannot be used when: 1. To question the conditions of confinement; 2. Once charges have been filed in court.

• Merely seeking protection of property rights, like land in possession of the petitioners (Castillo v. Cruz, G.R. No. 182165, 2009)

Limitations to the writ of habeas corpus EXTENDS TO

DOES NOT EXTEND TO

All cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled to it.

Questions of conditions of confinement; but only .to the fact and duration of confinement.

It is not a means for the redress of grievances or to seek injunctive retlef or It is essential to inquire into damages. (Jr. re: Major all manner of involuntary Aquino, G.R. 174994, restraint and to relieve a 2007). person from it if such restraint is illegal.

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DATA,

AND KALIKASAN

What is suspended by the Executive is the privilege of the writ and not the writ itself.

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OF AMPARO, HABEAS

• Violent incidents purely property-related such as acts of terrorism in relation to a disputed land (Tapuz v. Hon. .Judge del Rosario, G.R. No. 182484, 2006) Two-fold Burden for Public Authorities

'

The burden for the public authorities to discharge in these situations, under the Rule on the Writ of Amparo, is twofold. 1. The first is to ensure that all efforts at disclosure and investigation are undertaken under pain of indirect contempt from this Court when governmental efforts r.re less than what lhe individual situations require. 2. The second is to address the disappearance, so that the life of the victim Is preserved and his or her liberty and security restored. (Razon v. Tagitis, G.R. No. 182498, 2009). The remedy of the writ of amparo provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial

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evidence that will require full and exhaustive proceedings. (Razon v. Tagitis, G.R. No. 182498, 2009). The framers of t'le Amparo Rule never Intended Section 5(c) to be complete in every detail in stating the threatened or actual violation of a victim's rights. As in any other initiatory pleading, the pleader must of course state the ultimate facts constituting the cause: of action, omitting the evidentiary details. In an Amparo petition, however, this requirement must be read in light of the nature and purpose of the proceeding, which addresses a situation of uncertainty; the petitioner may not be able to describe with certainty how the victim exactly disappeared, or· who actually acted to kidnap, abduct or arrest him or her, or where the victim is detained, because these Information , may purposely be hidden or covered up by those who caused the disappearance. Section 5(e) merely requires that the Amparo petitioner (the respondent in the present case) allege "the actions and recourses taken to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission." (Razon v. Tagitis, G.R. No. 182498, 2009). The petitioner in an amparo case has the burden of proving by substantial evidence the indispensible element of government participation. (Spouses Mmtin and Santiago v. Tulfo, G.R. No. 205039, 2015). · Elements of an Enforced Disappearance (1) That there be an arrest, detention, abduction or any form of deprivation of iiberty; (2) That it be carried out by, or with the authorization, support or acquiescence of, the State or a political organization; (3) That it be followed by the· State or political organization's refusal to acknowledge or give information on the fate or whereabouts of the person subiect of the amparo petition; and (4) That the intention for such refusal is to remove the subject person from the protection of the law for a prolonged period of time. (Section 3(g) R.A. No. 9851: Mison v. Gallegos, G.R. No. 210759, 2015)

~OF

HABEASDATA

Habeas Data The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting, or storing of

data or information regard:ng the person, family, home and correspondence of the aggrieved party. (Sec.1) Who may File 1. The aggrieved party 2. In cases of extralegal killings and enforced disappearances: . a.' any member of the immediate fmaily of the aogrieved party (spouse, children and parents) b. any ascendant, descendant or collateral relative of thr aggrieved party within the 4th civil degree· of consanguinity or affinity in degault of those mentioned in par.(a) (Sec.2) Where to File RTCwhere: 1. The petitioner resides 2. respondent resides, or 3. that which has jurisdiction over the place where the data or information Is gathered, coliected or stored, at the option of the petitioner 4. Supreme Court 5. Court of Appeals 6. Sandiganbayan Where Writ must be Returned 1. If issued by the RTC or any judge thereof, it shall be returnable before such court or judge 2. If issued by the CA or Sandiganbayan or any of its justices, it may be returnable before such court or any justice thereof, or to any RTC of the place where the petitioner/responC:ent resides, or that which has Jurisdiction over the place where the date or information is gathered, collected or stored 3. If issued by SC or any of its justices, it may be returnable before such court or any justice thereof, or · before the CA, SB or any of its justices, or to any RTC of the place where the petitloneorespcndent resides, or that which has jurisdiction over thr place where the date or information is gathered, collected or stored (Sec.4) Where Enforce::tble Anywhere in the Philippines (Sec.4) Petition I. Verified II. Must contain: A. personal circumstances of the petitioner and the respondent B. manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party C. actions and recourses taken by the petitioner to secure the data or information D. the location of th efiles, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known

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E::. the reliefs prayed for • which may include the updating, rectification, suppression, or destruction of the database or information or files kept by the respondent (in case of threats, the relelf may include a prayer for an order enjoining the act complained of) F. such other relevant reliefs as are just and equitable (Sec.6) Issuance of the Writ Court shall order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court and cause it to be served within 3 days from its issuance, or in case of urgont necessity. the justlce~udge may issue the writ under his own hand, and may deputize any officer or person to serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than 10 work days from the date of its issuance. (Sec. 7) Effect when Writ Refused to Issue or Serve Person who refuses to issue writ after Its allowance or to serve the same, shall be punished by the court, or justice for contempt without prejudice to other disclplinary action (Sec.8) ;, "

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How Writ Is Served Writ shall be served upon the respondent by the officer or person deputized by the court. justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply. (Soc.9)

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Return Respondent shall file a verified written return with supporting affidavits within 5 work days from service of the writ (period may be extended by the Court for justtfiable reasons) The return shall contain: A. lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others; · B. in case of respondent in charge, in possession or in control of the data or information subject of the petition (i) disclosure of the date or information about the petitioner, the nature of such data or information and the purpose for its cotlecdon; (ii) the steps or action taken by respondent to ensure the security and confidentiality of the data or Info (iii)the currency and accuracy of the data or info held· · C. other allegations relevant to the resolution of the proceeding Contempt Court may punish a person who commits contempt by making a false return or refusing to make a return, or

otherwise disobeys the court. (Sec. 11)

or resists a lawful process or order of

When Defenses may be heard In Chambers

A hearing in chambers may be conducted where the respondent invokes the defense that the release of the data or information in question sha,I compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character. (Sec. 12) Filing of Return In case the respondem fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence (Sec. 14) Judgment . After summary hearing the court shall render judgment within 10 days from the time the petition is submitted for decision. (Sec. 16) Return of Service The officer who executed the final judgment shall, within 3 days from its enforcement, make a verified return to the court. The return shall contain a full statement of the proceedings under the writ and a complete inventory of the database or information, or documents and articles inspected, updated, rectified, or deleted, with copies served on the petitioner and the respondent. The officer shall state in the return how the judgment was enforced and complied with by the respondent, as well as all objections of the parties regarding the manner and regularity of the service of the writ. (Sec. 17) Effect of Filing a Criminal Action When a criminal action has been commenced, no separate petition for the writ shall be flied. The reliefs under the writ shall be available to an aggrieved party by motion in the criminal case.(Sec.22) Appeals Any party may appeal from the Judgment or final order to the SC under Rule 45 to raise questions of fact or law or both. The period of appeal shall be 5 work days from date of notice of the judgment or final order. It shall have the same priority as habeas corpus and amparo cases. (Sec. 19) WRIT OF KALIKASAN The writ is a remedy ava!lable to a natural or juridical person, entity authorized by law, people's organization, , non-governmental organization, or any public interest group accreditect by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened

Page 151 of 320

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BAR OPERATIONS 2019 with violation by an unlawful act or omission of a public official or employee. or private individual or entity. Involving environmental damage of such magnitude as to prejudice • the life, health or property of inhabitants in two or more cities or provinces. (A.M. No. 09-06-08-SC Section 1, Rule 7).

Where to file The petition shall be filed with the Supreme Court or with any of the stations of the Court of Appeals. (A.M. No. 0906-08-SC Section 3, Rule 7). ·contents of the petition A. B.

The personal circumstances of the· petitioner; The name and personal circumstances of the respondent or If the name and personal circumstances are unknown and uncertain, the respondent may be described by an assumed appellation; C. The environmental law, rule or regulation violated or threatened to be violated, the act or omission complained of, and the environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more citres or provinces. D. All relevant and material evidence consisting of the affidavits of witnesses, documentary evidence, scientific or other expert studies, and if possible, object evidence;

Reliefs available Within 60 days from the time the petition is submitted for decision, the court shall render judgment granting or denying the privilege of the writ of kalikasan. The reliefs that may be granted under the writ are the following: (5) Directing respondent to permanently cease and desist from committing acts or neglecting the performance of a duty in violation of environmental laws resulting in environmental destruction or damage; (6) Directing the respondent public official, government agency, private person or entity to protect, preserve, rehabilitate or restore the environment; (7) Directing the respondent public official, government agency, private person or entity to monitor strict compliance with the decision and orders of the court; (8) Directing the respondent public official, government agency, or private person or entity to make periodic reports on the execution of the final judgment; and (9) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection, preservation, rehabilitation or restoration of . the environment, except the award of damages to individual petitioners. (A.M. No. 09-06-08-SC Section 15, Rule 7).

E. The certification of petitioner under oath that: (1) petitioner has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency, and no such other action or claim is pending therein; (12) if there Is such other pending action or claim, a complete statement of its present status; (3) If petitioner should learn that the same or similar action or claim has been filed or is pending. petitioner shall report to the court that fact within five (5) days therefrom; and F. The reliefs prayed for which may include a prayer for the issuance of a TEPO. (A.M. No. 09-06-08-SC Section 2, Rule 7).

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Within 3 days from the date of filing of the petition, if the petition is sufficient in form and substance, th& court shall give an order: (a) issuing the writ; and (b) requiring the respondent to file a verified return as provided in Section 8 of this Rule. The clerk of court shall forthwith issue the writ under the seal of the court including the issuance of a cease and desist order and other temporary reliefs effective until further order. (A.M. No. 09-06-08-SC Section 5, Rule 7). . .._.· Page 152 of 320

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POLITICAL LAW

BAR OPERATIONS 2019

VII. CITIZENSHIP TOPIC OUTLINE UNDER THE SYLLABUS A. Who are Filipino Citizens B. Modes of Acquiring Citizenship C. Loss and Re-acquisition of Philippine Citizenship 0. Dual Citizenship and Dual Allegiance E. Foundlings WHO ARE FILIPINO CIJIZENS 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 January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority. 4. Those who are naturalized in accordance with law. (1987 Const, art. 4, § 1) 1.

Rule for an illegitimate child of a foroign mother

..

• If the father is known and is Filipino, the illegitimate child is considered Filipino after proving the paternity. (Tecson v. COMELEC, G.R. No. 161434, March 3, 2004)

MODES OF ACQUIRING CITIZENSHIP 1. Jus Soll - Acquisition cf citizenship on the basis of place of birth. 2. Jus Sanguinis -Acqulsltlon of citizenship on the basis of blood relationship. 3. Naturalization - the legal act of adopting an alien and clothing him with the privilege of a native-born citizen (Tecson v, COMELEC, 424 SCRA 277; Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011 ed.) · ,:

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(.;)

The Philippines follows jus sanguinis and naturalization. Naturalization is a mode for both acquisition (governed by CA 473) and reacquisition (governed by CA 63) of Philippine citizenship. · · Election of Philippine citizenship 1.

Prior to the 1973 Constitution - If a Filipina married an alien, she loses her Filipino citizenship. Hence, her child would have to elect Filipino citizenship upon reaching the age of majority. 2. Under the 1973 Constitution - Children born of Filipino mothers were already considered Filipinos.

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3. Therefore, the provision on election of citizenship under the 1987 Constitution only applies to those persons who were born under the 1935 Constitution. 4. Ir. order for the children to elect Filipino citizenship, the mothers must have been Filipinos at the time of their rnarriaqe.

5. The election must be made within a reasonable period after reaching the age of majority. (Cuenco v. Sec. of Justice, 5 SCRA 108; Bernas, The 1987 Philippine Constitutlon: A Comprehensive Reviewer, 2011) NATURALIZATION AND OENATURALIZATION Who are natural born citizens? 1. Citizens of the Philippines from birth who do not need to perform any act to acquire Philippine citizenship 2. Those who elect Philippine citizenship 3. Repatriated (1987 Const, art. 4, § 2) Effects of naturalization:

If the father is unknown, follow the mother's citizenship. "·.,.

'

1. The legitimate minor children of the naturalized father become Filipinos as well. 2. The wife also becomes a Filipino citizen, provided that she does not have any disqualification which would bar her from being naturalized. Qualifications 1. Not less than twenty-one years of age on the day of the hearing of the petition; 2. Resided in the Philippines for a continuous period of 1 C years or more; 3. Of good moral character; believes In the principles underlying the Philippine Constitution; conducted himself in a proper and irreproachable manner during the entire period of his residence towards the government and community 4. Must own real estate in the Philippines worth P5,000 or more OR must have lucrative trade, profession, or lawful occupation; 5. Able to speak or write English or Spanish or anyone of the principal languages; and 6. Enrolled his minor children of school age in any of the recognized schools where Phhlppine history, government and civics are taught or prescribed as part of the school curriculum, during the entire period of the residence in the Philippines required of him. (Sec. 2, CA 473)

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BAR OPERATIONS 2019

Special Qualifications ANY will result to reduction of the to-vear period to 5 years 1. Having honorably held office under the Government of the Philippines or under that of any of the provinces, cities, municipalities, or political subdivisions thereof; 2. Established a new industry or introduced a useful Invention in the Philippines; 3. Married to a Filipino woman; 4. Engaged as a teacher in the Philippines in a public or recognized private school not established for the exclusive instruction of children of persons of a particular nationality or race. in any of the branches of education or industry for a period of 2 years or more; or 5. Born in the Philippines (Sec. 3, C.A. 473). Direct Naturalization

Derivative Natura llzation

Citizenship is acquired by an Citizenship conferred alien through: on: 1. Judicial naturalization 1. Wife of naturalized under CA 473 husband 2. Administrative 2. Minor children of naturalization under RA naturalized person 9139 3. Alien woman upon 3. Legislative naturalization marriage to a in the form of a law national enacted by Congress, bestowing Philippine citizenship to an alien. LOSS AND RE-ACQUISITION CITIZENSHIP

Modes of re-acquiring citizenship (CoRN): 1. Direct act of Congress 2. Naturalization · . 3. Repatriation (C.A. No. 63, sec. 2) Repatriation Natural-torn Filipinos who are deemed to have lost their citizenship may re-acquire the same via repatriation proceedings. This involves taking an oath of allegiance and fifing the same with the civil registry. (C.A. No. 63, sec. 4) Repatriation is not a matter of right, but it is a privilege granted by the State. The State has the power to prescribe by law the qualifications, procedure, and requirements for repatriation. It has the power to detennine if an applicant for repatriation meets the requirements of the law for it is an inherent power of the State to choose who will be its citizens, and who can reacquire citizenship once it is lost. (Tabasa v. CA, G.R. No. 125793, August 29, 2006) As distinguished from the lengthy process of naturalization, repatriation simply consists of the takir.g of an oath of allegfance to the Republic of the · Philippines and registering said oath in the Local Civil Regi&try of the place. where the person concerned resides or last resided. He would not even need to fife a petition in court. (See Bengson IB v. HRET, G.R. No.142840, 2007) RA 9255

General Rule: The Filipino retains Philippine citizenship Exception: By their act or omission they are deemed, under the law, to have renounced it. (1987 Const, art. 4, §

4) How citizenship is lost: (CANDOR) Cancellation of certificates of naturalization

Citizens who lost their citizenship by rear.on of · their naturalization as citizens of a foreign country are deemed to have reacquired their Philippine citizenship upon taking the oath of allegiance.

2. Serving in the Armed forces of an enemy country 3. Naturalizationin a foreign country 4. Being a Deserter of the armed forces of the country 5. By subscribing to an Oath of allegiance to the laws or constitution of a foreign country ' Page 154 of 320

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v. RA 8171

RA 9225 (Citizen Retention and Re-acquisition Act)

OF PHILIPPINE

Marriage of a Filipino with an alien

1.

6. Express Renunciation of citizenship (C.A. No. 63, sec. 1)

RA 8171 (Repatriation)

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r: The only persons entitled lo repatriation are the following: 1. Filipino women who lost their Philippine citizenship by marriage to aliens 2. Natural-born Filipinos, including their minor children who lost their Philippine citizenship on account of political or economic necessity

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ATENEO CENTRAL BAR OPERATIONS 2019

POLITICAL LAW

Exception to those entitled to be repatriated: (OVM2) R.A. 9225, however, requires that those who acquired dual citizenship must specifically renounce foreign citizenship upon filing of candidacy.

Person Opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing organized government; 2. Person defendinq or teaching the necessity or propriety of Violence, personal assault, or association for the predominance of their ideas; 3. Person convicted of crimes involving Moral turpitude; or 4. Person suffering from Mental alienation or incurable contagious diseases. 1.

Dual Citizenship v. Dual Allegiance

The Court held that the Constitutional Commission provided for an exception to the actual residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote even though they do not satisfy the residency requirement in Section 1, Article V of the Constitution. (Loida Nicolas-Lewis v. COMELEC, G.R. No. 162759, August 4, 2006, citing Macalintal v. COMELEC)

·...

DUAL ALLEGIANCE

Result of the concurrent application of the laws of two or more states, a person is simultaneousiy considered a citizen of those states.

A person simultaneously

Involuntary and legal

Voluntary and illegal

~·

Reckoning point of determining or establishing the domicile of a person who was repatri&ted under R.A. No. 9225

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DUAL CITIZENSHIP

The domicile is not established strictly from the time that a person was repatriated under R.A. No. 9225. The Court said that other evidence may be admitted to determine the time that domicile is established. Also, Issue of residence could be decided particularly on the facts-of-the-case basis, as what would a series of jurisprudence would also dictate. Hence, domicile cannot strictly be established only from a person's repatriation. (Poe-Llamanzares v. Comelec et al., G.R. Nos. 221697 & 221698-700, March 8, 2016) DUAL CITIZENSHIP AND DUAL ALLEGIANCE

owes, by some positive act, loyalty to two or more states.

Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoldable consequence of conflicting laws of different states. (Mercado v, Manzano, G.R. No. 135083. May 26, 1999) The continued use of foreign passport render the renunciation of foreign citizenship nugatory. The renunciation of foreign citizenship must be complete and unequivocal. The requirement that the renunciation must be made through an oath emphasizes the solemn duty of the one making the oath of renunciation to remain true to what he has sworn to. Allowing the subsequent use of a foreign passport because it is convenient for the person to do so is rendering the oath a hollow act. It devalues the act of taking of an oath, reducing it to a msre ceremonial formality. (Maquiling v. COMELEC, G.R. No. 195649, 2013).

Derivative Citizenship The unmarried child {whether legitimate, illegitimate or adopted) below 18 years old of those who re-acquired the citizenship shall likewis3 be deemed as citizens of the Philippines. (RA 9225,.sec. 4)

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R.A. 9225 provides that a Filipino who has previously renounced his Filipino citizenship can reacquire it without renouncing his foreign citizenship. Likewise, a Filipino who acquires foreign citizenship after the effectivity of RA. 9225 retains his Filipino citizenship. R.A. 9225 is a law . about dual citizenship not dual allegiance. (AASJS v. Datumanong, G.R. No. 160869, May 11, 2007)

FOUNDLINGS As a matter of law, foundlings are, as a class, natural-born citizens. While the 193~ Constitution's enumeration is silent as to foundlings, there is no restrictive language which would definitely exclude foundlings either. No such intent or language permits discrimination against foundlings. On the contrary, all three Constitutions (1935, 1973, 1987) guarantee the basic right to equal protection of the laws. All exhort the State to render social justice (Poe-Llamanzares v. COMELEC, G.R. No. 221697 2016).

Page 155 of 320

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ATENEO CENTRAL BAR OPERATIONS 2019

A. B. C. D. E.

F. G. H. I.

J. K.

POLITICAL LAW

VIII. LAW ON PUBLIC OFFICERS

GENERAL PRINCIPLF.S

TOPIC OUTLINE UNDER THE SYLLABUS

Public Office The right, authorily, and duty created and conferred by law,. by which for c: given period, either fixed by law or enduring at the pleasure of the appointing power, an individual is invested with some portion of the sovereign functions of the government, ·to be exercised by him for the benefit of the public. (Agpalo, Administrative Law, Law on Public Officers and Election Law, 247-48, 2005)

General principles Modes of acquiring title to public office Kinds of appointment ' Eligibility and qualification requirements Disabilities and lnhibitlons of public officers Rights and liabilities of public officers De facto vs. de jure officers Termination of official relation The Civil Service Personnel actions Accountability of public officers 1. Discipline a. Grounds b. Jurisdiction c. Di~missal, prevennve suspension, remstatement and back salaries d. Condonation doctrine 2. Impeachment 3. The Ombudsman a. Functions b. Judicial rt.view in penal proceedings 4. Office of the Special Prosecutor 5. The Sa11diganbayan

Law on Public Officers . . This branch of law deals with public office, its creation, modification and dissolution, as well as the eligibility of public officers, the manner of their election or appointment and assumption of office, their rights.· duties, powers, inhibitions, and liabilities and the modes of terminating their official relations. Public Office Refers to Either Two Concepts: 1. Functional unit of government - It is within the framework of government organization, and refers to any major functional unit of a department or bureau including regional office. 2. Position - Held by an individual whose functions are defined by law or regulation (Agpalo, Administrative Law, Law on Public Officers and · Election Law, 247, 2005) Public Office Not ~ Property Right It is not a property right but a protected right. It cannot be taken from its incumbent without due process. It is property In the broad sense since the right to hold office includes everything o~ pecuniary value to its possessor. The right to pu?hc ?ffice rs protected by the right to security of tenure, which rs guaranteed by the Constitution. A public office is personal to the public officer and is not transmissible to his heirs upon his death. No heir may be allowed to continue holding his office in his place. (Segovia v, Noel, 47 Phil. 543, 1925)

'

How created: 1. By the Constitution (e.~. Office of the President) 2. By valid statutory enactments (e.g. Office of the lnsurance Comrnissloner) 3. By authority of the law (e.g. the Davide Commission) Essential characteristics of "public office:" 1. Authority conferred by law; 2. Fixed tenure of office; 3. Power to exercise some of the sovereign functions of government; . 4. Key element of such test is t.hat "officer ts carrying out a sovereign function;" 5. Essential elements to establish public position as "public office" are:

Page 156 of 320

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ATENEO CENTRAL BAR OPERATIONS 2019 a.

POLITICAL LAW amount. (Code of Conduct and Ethical Standards of Public Officers)

Position must be created by Constitution, legislature, or through authority conferred by legislature; Portion of sovereign power of government must be· delegated to position; Duties and powers must be defined, direcUy or impliedly, by legislature or through legislative authority; Duties must be performed independenUy without control of superior power other than law; and · Position must have some permanency.

Employee A person in the service of govemmont 01 any of its agencies, divisions, subdivisions, or instrumentalities. (1987 Administrative Code)

Elements of Public Office: (LSCIP) 1. Created by Law or by authority of law; 2. Possesses a delegation of portion of Sovereign powers of government, for benefit of the public; 3. Powers conferred and duties imposed defined by Constitution, legislature, or by its authority: 4. Duties performed Independently and only controlled by law unless placed under geneml control of superior office or body; · 5. Permanent or continuous. {State v, Taylor, 144 N.W. 2d. 289, 1966; Javier v, Sandlganbayan, G.R. 14702627, 2009).

Public Officer v. Employee, Distinguished An officer is distinguishable from a mere employee in the sense that: 1. Position has greater importance, dignity and independence 2. Required to take an official oath, and to give an official bond; 3. Greater liability to account for mlsteasance or nonfeasance in office; 4. Tenure of office Is usually different from that of an ordinary employee

b. c.

d.

e.

Public Officer v. Employee, Definitions Public Officer A person whose duties, not being clerical in nature, involves the exercise of discretion in the performance of the functions of the government when used with reference to a person having authority to do a pertlcular act or· perform a particular function in the exercise of government power, officer includes any government employee, agent, or body having authority to do so the act or exercise that function. {1987 Administrative Code)

Officer means any person holding any public office in the govt. of the RP by virtue of an appointment, election, or contract (executed bet. private person and government. (RA 7000)

Classifications of Public Officer , 1. Constitutional or statutory 2. National or local 3. Legislative, executive or judicial 4. t-ucratlve or honorary 5. Discretionary or ministerial 6. Appointive or elective 7. Civil or military 8. De jure or de facto

or

MODES ACQUIRING TITLE TO PUBLIC OFFICE

Any person, by direct supervision of the law, popular election, or appointment by competent authority, shall take part in the performance of public functions in the RP or shall perform in said government or for any of its branches public duties as an employee, agent, or subordinate official, of any rank or class. Temporary performance of public function is sufficient to constitute a person a public official. (RPC, art. 203)

Appointment The act of designation by the executive officer, board, or body to whom that power has been delegated, of the individual who is to exercise the powers and functions of a given office. It is to be distinguished from the selection or designation by a popular vote.

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Includes elective and appointive officials and employees, permanent or temporary, whether i11 the classified or unclassified or exempt service (non-career or career). receivirq compensation, even nominal, from the government. (Anti-Graft and Corrupt Practices Act)

Designation The mere imposition of new or additional duties upon an officer to be performed by him in a special manner. It presupposes that the officer is already in the service by virtue of an earlier appointment, performing other functions.

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Includes elective and appointive officials and employees, permanent or temporary, whether In the career or noncareer service, including military and police personnel. whether or not they receive compensation, regardless of

Election The act of selecting or choosing a person by popular vote to occupy the office.

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Page 157 of 320

ATENEO CENTRAL BAR OPERATIONS 2019

POLITICAL

LAW

Commission It is the written evidence of appointment.

4. 5.

Appointment v Desianatlon

Ad interim appointments are made while Congress is NOT in sesston or during its recess, whether such recess is voluntary (before adlournment) or compulsory (when Congress adjourns). The appointment shall cease to be effective upon rejection by the COA, or if not acted upon, at the adjournment of the next session of Congress, whether regular or special. ·

APPOINTMENT

DESIGNATION

As to nature Executive, Irrevocable

Legislative, revocable

As to Effect Selection of an individual who is to exercise the functions of a given office

Mere imposition by law of additional duties on an incumbent official

Results in securlty of tenure when completed

Does not result in security of tenure

Can be subject of a protest before the CSC

Cannot be subject of a protest before the CSC

As to Effectivity connoted permanency

Acceptance by the appointee Oath and assumption

Temporary or acting appointments are those which last until a permanent appointment Is issued. The Commission on Appointments cannot confirm their appointments because conflrrnatlon presupposes a valid nomination or ad-interim appointment. Thus, the appointee has no personality to bring a quo warranto proceedmq because he is not entitled to office. . Steps In an ad-Interim appointment (AIAC) 1. Appointment by the appointing authority 2. Issuance of the commission 3. Acceptance by the appointee 4. Confirmation by the CA

implies temporariness

Nature of Appointments It is essentially a discretionary power and cannot be delegated, it must be performed by the officer upon whom it is vested according to his best lights, the only condition ' bein~ that the appointee should possess the qualifications required be law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred .(Luego v. Civil

Service Commission, GR No 69137, August 5, 1986) Requisites for a Valid appointment 1. Position is vacant 2. The appointing authority must be vested with the power to appoint at the time appointment is made; 3. The appointee should possess all the qualifications including appropriate civil service eligibility and non of the disqualifications; 4. The appointee accepts the appointment by taking the oath and entering into discharge of duty (Garces v. CA,

GR No. 114795, July 17, 1996) Steps in a regular appointment (NCIAO) 1. Nomination by President 2. Confirmation by Commission on Appointments (In case of Presidential appointments, this confirmation applies only to numbers 1 to 5 in the list of Officers that the President shall appoint (see below)) 3. Issuance of the cornmission or the written authority from a competent source given to the officer as his warrantfor the exercise of the powers and duties of the office to which he is commissioned. ·

Steps for appointments that do not confirmation: (AIA) 1. Appointment by the appointing authority 2. Issuance of the commission 3. Acceptance by the appointee .

require

Absolute Appolntment v. Confirmation Required _It Is long settled In the law that where the power of appointment is absolute, and the appointee has been determined upon, no further consent or approval is necessary, and the formal evidence ot the appointment, the commission, may issue at once. However, where the assent or confirmation of some other officer or body is required, the commission can issue or the appointment may be complete only when such assent or confirmation Is obtained. In either case, the appointment becomes complete when the last act required of th& appointing power is performed. Until the process is completed, the appointee can claim no vested right in the office nor invoke security of tenure. (Corpuz v. CA, G.R. 123989, 1998) Whe(e the power of appointment is absolute and the appointee has been determined upon, no further consent or approval is necessary anti the formal evidence of the appointment, the commission, may issue at once. The appointment is deemed complete once the last act required of the appointing authority has been complied with. A written memorial that can render title to public office indubitable is required. This written memorial is known as the commission. For purposes of appointments to the judiciary, therefore, the date the commission has been signed by the President Is the date of the appointment. . Such date will determine the seniority of the members of

Page 158 of 320

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ATENEO CENTRAL POLITICAL LAW

BAR OPERATIONS 2019

~------~----~--------------~----------------------------------------------------· is dependent upon the pleasure of the

the Court of Appeals in connection with Section 3, Chapter I of BP 129, as amended by RA 8246. In other words, the earlier the date of the commission of an appointee, the more senior he is over the other subsequent appointees. (Re: Seniority among the four most recent appointments to the position of Associate Justices of the Court of Appeals, A.M. 10-4-22-SC, 2010)

appointing power. Acquisition of civil service eligibility during tenure of a temporary appointee does not necessarily translate to permanent appointment. A new appointment which is permanent is necessary. (Province of Camarines Surv. CA, G.R. No.104639, 1995) o Power of Priesident to make temporary appointment: The President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch, appointment to which is vested in him by law, when: 1. The officer regularly appointed to the office is unable to perform his duties by reason of illness, absence or any other cause; or 2. there exists a vacancy • Instances of Temporary Appointment 1. appointee does not possess civil service eligibility 2. appointment by the President in an executive office during the absence or incapacity of the incumbent 3. designation as officer in charge 4. appointment held at the pleasure of the appointing power o

Modes and Kinds of Appointment General Rule: Acceptance of appointment is not necessary for the completion or validity of appointment. Exception: Acceptance is necessary to possession of office, and to enable appointee to the enjoyment and responsibility of an office. General Rule: An appointment to an office, once made and complete, is !10t subject to reconsideration or revocation. Exception: An officer is removable at the will of the appointing power. Acceptance may be express when it is done verbally 01· in writing. Acceptance is implied when, without formal acceptance, the appointee enters upon the exercise of the duties and functions of an .office. KINDS OF APPOINTMENT Kinds of Appointment under the Civil Service Law 1. Permanent appointments - Issued to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of the . laws, rules, and standards promulqated in pursuance thereof. 2. .,,_. .

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Temporary appointments - issued in the absence of any eligibles, when necessary to public interest, in order to fill a vacancy with a person who meets all the requirements for the position to ·Nhich he/she is being appointed, except the appropriate civil service eligibility. • Appointment in an acting capacity is merely temporary, one which is good only until another appointment is made to take its place • Temporary appointments shall not exceed 12 months. o The appointee may be replaced sooner if a qualified civil service eligible becomes available. o Where a tempcrary appointee acquires civil service eligibility during his tenure as such, his temporary appointment does not thereby automatically become permanent. What is required is a new appointment. o Temporary appointment given to a non-civil service eligible is without a definite tenure and

. 3.

Regular Appol ntment - made by the President while Congress is in session and becomes effective after the nomination is confirmed by the Commission on Appointments.

4.

Provisional appointment - A person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the servlce and there is no appropriate register of eligibles at the time of appointment.

5.

~d Interim Appointment- it is made while Congress is not in session, before confirmation by the CA; it is immediately effective, and ceases to be valid if disapproved or by-passed by the CA or until the next adjournment of the Congress.

6.

Midnight Appointment - made by the President or acting president within 2 months immediately before the next presidential elections and up to the end of his term, whether or not it is confirmed by the Commission.

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ATENEO CENTRAL BAR OPERATIONS 2019

POLITICAL LAW

Officers that the President Shall Appoint: (E-MA2CJC2AR-NL2) 1. Heads of Executive departments 2. Ambassadors 3. Other public Ministers and consuls 4. Officers of the Armed forces from the rank of colonel or naval captain 5. Other officers whose appointment are vested in him in the Constitution a. Regular members of the Judicial and Bar Council b. The Chairman and Commissioners: of the Civil Service Cornmisslon c. The Chairman and Commissioners cf the COMELEC d. The Chairman and Commissioners of the Commission on Audit ' e. Members of the Regional Oonsultatlve Commission 6. Officers whose appointments are Not otherwise provided for by law 7. Officers whom the president may be authorized by Law to appoint 8. Officers Lower in rank whose appointments the Congress, by law, vested in the President

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b. The Office of the Ombudsman. c. Secretary of a Department d. Undersecretary of a Department e. Chairman or Head of Bureaus of Offices f. Any GOCC g. Any GOCC subsidiary · Under the Civil Service Decree, all appointments in the national, provincial, city, and municipal governments or in any branch or instrumentality, including GOCCs, made in favor of the appointing or recommending authority, or of the chief of the bureau of the office, or of persons exercising supervision over him, are prohibited. As used In the Civil Service Law, the term "relative" and members of the family referred to those within the 3rd degree of consenquinlty or affinity.

Exceptions: (CTAP) 1. Persons employed in Confidential capacity 2. Teachers 3. Physicians 4. Members of AFP The restriction shall not be applicable to any member who, after his or her appointment to any position in an office or bureau, contracts marriage with someone in the same office or bureau. In this event, the employment or retention therein of both husband and wife may be allowed.

Constitutional Limitations on the Presidential Power to Appoint: 1. Nepotism (see discussion and exceptions below) 2. Midnight appointments 3. Those relating to an Acting President {Sections 13, 14 and 15 of Art. VII} The constitutional limitations refer to appointments in the executive and not the judicial branch of government. (De Castro v. JBC, C.R. 191002, 2010)

The mere issuance of appointment in favor of a relative within the third degree of consanguinity or affinity is sufficient to constitute nepotism. Also, even if the case is one of falsification of public document, the requirement of disclosure of relationship to the appointing power in the local government units simply aims to ensure strict . enforcement of the prohibition against nepotism. {Galeos v. People, G.R. 174730-37, 2011)

Revocability of Appointment General Rule: Appointment to an office once made and completed, is not subject to reconsideration or revocation because revocation after a complete appointment Is tantamount to removal.

The rule on nepotism also applies to designations made in favor of a relative of the authority making a designation. A designation accomplishes the same purpose · as appointment. (Laurel v. Civil Service Commission, G.R. No. 71562, 1991)

Exception: Where the appointment is temporary. (Ong v. Office of the President, GR No 184219, January 30, 2012)

Nepotism Since a public office is a public trust, created for the benefit and in the interest of the peoole, appointments thereto should be based solely on merit and fitness uninfluenced by any personal or filial consideration. 1. The Constitution prohibits the president from appointing his close relatives (within the 4th civil degree by consanguinity or affinity to the president or his spouse) to high positions In government during his tenure. No relative of the President, within the 4th civil degree, shall be appointed to/as: a. Constitutional Commission

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Vacancy There is a vacancy when an office is empty and without a legally quallfied incumbent appointed or elected to it with a lawful right to exercise its powers and perform its duties. There can be no appointment to a non-vacant position. CAUSES: (I RACED PAR2C) 1. Impeachment 2. Removal from office or resignation of the incumbent 3. Abandonment 4. Conviction of a crime 5. Expiration of term 6. Death 7. Permanent disability 8. Acceptance of incompatible office

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POLITICAL LAW

Reaching the age limit

for judgment or discretion.

10. Recall 11. Creation of a new office For appointments not needing confirmation, removal may be by President or officer designated by law. If the appointment is permanent, removal is allowed only for cause. Pri.nciples of Vacancy 1. A person no matter how qualifiecl cannot be appointed to an office which is not vacant (Costin v Quimbo, GR No 32271, January 27, 1983) 2. · One who is legally dismissed from office is, by fiction of law, deemed not to have vacated his office (Femendez v Cuneta, GR No 14392, May 30, 1960) . Powers and Duties af Public Officers Extent of Powers 1. Expressly conferred upon him by the law under which he has been appointed or elected 2. Expressly annexed to the office by tile law which created it or some other law referring to it 3. Attached to t:,e office as an incident to it

Consequence of Holding Office To hold an office means to possess or to occupy the office, or to be in possession and administration of the office, which implies nothin9 less that" the actual discharge of the functions and duties of the office. (Funa v. Agra, G.R.

191644, 2013)

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Doctrine of necessary implication All powers necessary to the exercise of the power expressly granted are deemed impliedly granted. The fact that a particular power has not been expressly conferred does not necessarily mean that it Is not possessed by the officer claiming it.

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MINISTERIAL POWERS

DISCRETIONARY POWERS

When it is absolute, When it requires the certain, and imperative exercise of reason and involving merely execution discretion in determining of a specific duty arising how or whether the act from fixed and designated shall be done or the course facts. pursued.

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It is susceptible of delegation and can be compelled by judicial action.

General Rule: It cannot be deleqated to another Exception: Power 0f the President to conclude treaties may be assigned to a treaty panel, which can negotiate the treaty on his behalf, under his instructions and subject to his approval.

Ministerial v. Discretionary Powers: Constitutional Duties of Public Officers 1. Tc be accountable to the people, to serve them with utmost responsibility, Integrity, loyalty, and efficiency; to act with patriotism and justice; and to lead modest lives; 1. 498.Submit a declaration under oath of assets, liabilities, and net wort~ upon assumption of officer and thereafter as may be required; 2. 499.0we the State and Constitution allegiance at all times. Duties of Public officers, In General 1. Duty to obey the law 2. Duty to accept and continue ir. office; 3. Duty to accept burden of office; 4. Duty as to diligence and care in the performance of official duties; · 5. Duty in choice and supervision of subordinates; 6. Duty to perform official acts honestly, faithfully, and to the best of his ability; . 7. Duty not to use his official power to further his own interest Territorial Limitation and Duration of Authority The authority of all public officers is limited and confined to that territory over which the law, by virtue of which they claim, has sovereign force. The authority is limited in its exercise to that term during which he is by law invested . with the rights and duties of the office. Alter Ego Principle The acts of the Secretaries of the departments, performed and promulgated in the reqular course of business are , unless disapproved or reprobated by the President, presumptively the acts of the President. (Carpio v Executive Secretary, GR No 96409, February 14, 1992)

Note: The law exacting its Note: . The officer is discharge prescribes and expected to discharge the defines the time, mode, duty directly and not and occasion of its through the intervening performance with such mind of another. certainty that nothing is left Page 161 of 320

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Limits of the Alter Ego Doctrine There are certain powers that are reserved to the President which cannot be exercised by the Secretaries of the -, departments such as: 1. Declaration of Martial Law 2. Suspension of the privilege of writ of habeas corpus 3. Pardoning Power; 4. Purely discretionary powers

Principle of Hold-Over In the absence of any express of implied constitutional or statutory provision to the contrary, the public officer is entiUed to hold office untii his successor shall have been duly chosen and stiall have qualified.( Lecaroz v. Sandiganbayan, GR No 130872, March25, 1999)

order, uniformity, system and dispatch in public business. As to the relationship of the officer to his subordinates 1. Power of Control - power of an officer to manage, direct or govern, including the power to alter or modify or set aside what a subordinate had done in the performance of his duties and to substitute his judgment for that of the latter 2. Power of Supervision - it is the power of mere oversight over an inferior body and does not include any restraining authority over such body. The officer merely sees to it that rules are followed but he himself does not lay down such n.. les, nor does he have the discretion to modify or replace them. ELIGIBILITY AND QUAI.IFICATION REQUIREMENTS

Effect when law fixes specific date for the end of a term When the law fixes a specific date for the end of the term, there is an implied prohlhition against hold-over (Nueno v Angeles. GR no 89, Febn,ary 1, 1946)

Eligibility state of being legally fit to be chosen.

Nature of Officer during Hold-Over During the period of hold-over, the public officer is a de jure officer (Bautista v Fajardo, GR No 1 ~799, September 23, 1918)

Eligible Under the Admln Code, it is used to refer to a person who obtains a passing grade in a civil service examination and whose name is entered in the regbter of eligibles from which appointments must be made. (ADMIN CODE, Book V, TITLE 1-a, sEC.5, pAR. (8))

Classifications of Powers and Duties As to their Nature 1. Ministerial - the law exacting its discharge prescribes and defines the time, mode and occasion of its performance and requires neither judgment nor discretion. This kind of duty is susceptible of delegatton. 2. Dtscretlonary-s- a public officer has the right to decide how and when the duty sh,t1II be performed. A public officer cannot delegate this kind of duty. General Rule: Mandamus will not lie for the performance of a discretionary duty Exceptions: a. When the discretion granted is only as to the manner of its exercise and not the discretion to act or not to act, the court may require a general action b. Grave abuse of discretion

Nature of right to hold Public Office The right to hold public office is not a natural right. It exists only because and by virtue of some law expressly or impliedly creating and conferring it. The qualifications which relate to an office must be complied with by persons seeking that office. An election or appointment to office of a person who is ineligible or unqualified gives him no right to hold the office.

Qualification acts which a person is required to do before entering upon position. Means two things: 1. Endowments, qualities, or attributes that make an individual eligible for public office 2: Act of entering into performance of public office

As to the obligation of the officer to perform his powers and duties . 1. Mandatory-· where the provisions of a statute relating to public officers are intended for the protection of the citizen and to prevent a sacrifice of his property, and by a disregard of such provision, his rights might be and generally would be injuriously affected 2. Permissive - statutes define the time and mode in which the public officers will discharge their duties, and those which are obviously designed merely to secure Pag1:1 162 of 320

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BAR OPERATIONS 2019 Two Meaninas of Qualification: WHEN REFERRING TO WHEN USED IN T~~ THE ACT OF ENTERING SENSE INTO THE ENDOWMENTS, OR PERFORMANCE OF THE QUALITIES FUNCTIONS OF A ATTRIBUTES PUBLIC OFFICE The individual must Failure of an officer to possess the qualifications perform an act required by at the time of appointment law could affect the or election and officer's title to the office. continuously for as long as the official relationship Note: • Prolonged failure or continues. refusal to take the office coul :! result in Note: forfeiture of office. • Property qualiticatlons may not be imposed for • An oath of office taken before one who has no the exercise of the right to run for public office. authority to administer oath is no oath at all. • Loss of any of the qualifications during • Once proclaimed and duly sworn in office, a incumbency will be a public officer is entitled ground for termination. to assume office and to exercise the. functions thereof. The penciency of an election protest is not sufficient basis to enjoin him from assuming office.

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Limits on Legislature's Power to Prescribe Qualifica!ions: 1. The legislature may not reduce or increase the qualifications prescribed in an exclusive manner by the Constitution. 2. The legislature may prescribe only general qualifications. 3. The qualifications must be relevant to the office for which they are prescribed. Where a person is prohibited from holding two offices at the same time, his appointment or election to a second office may operate to vacate the first or he may be ineligible for the second. A person who accepts and qualifies for a second and incompatible office is deemed to vacate, or by implication, to resign from the first office. The same rule obtains where the holding of more than one position is prohibited by constitutional or statutory provision although the second position is not incompatible with the first.

Those Prescribe db>V the POSITION

c ons tltI u ti on QUALIFICATIONS

1.

Only accountable public officers or those who are . entrusted with the collection and custody of public money, and public ministerial officers whose actions may aff~ct the rights and interests of individuals are required to grve an official bond. ·

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All public officers and employees shall take an oath or affirmation to uphold and defend the Constitution. (Phil. Const., art. IX-B, § 4)

In the absence of constitutional inhibition, Congress has the same right to provide disqualifications that it has to provide qualifications for office.

Formal Qualifications: (CAP CARES) 1. Citizenship 2. Age 3. Political affiliation 4. Civil service examination 5. Ability to read and write · 6. Residence 7. Education 8. Suffrage

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An officer who misrepresented his or her qualification, e.g. ·. educational attainment and eligibility for government service, is guilty c,f plain and simple dishonesty as it refers to the act of intentionally making a false statement on any material fact in securing one's appointment. (Momongan v. Surnayo, A.M. No. P-10-2767, 2011)

Improper notarization is not among the grounds for disqualification as stated under the OEC and ~GC. Apart from the qualific;ations provided for in the Constitution, ~he power to prescribe additional qualiflcatlons for elective office and grounds for disqualification therefrom, consistent with the constitutional provisions, is vested in Conqress. (Amara v. COMELEC, G.R. 19228, 2011)

President and Vice President

A natural-born citizen of the Philippines 2. A registefed voter 3. Able to read and write 4. At least 40 years of age on the day of the election; and 5. A resident of the Philippines for at least 10 years immediately preceding such election.

1. Senators

2. 3. 4.

A natural-born citizen of the Philippines On the day of the election, is at least 35 years of age Able to read and write A registered voter; and

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5. · However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law. for at

5. 5. A resident of the Philippines for not less than 2 years immediately preceding the day of the election.

least 10 years.

1.

Members of the House of Representatives

A natural-born citizen of the Philippines 2. On the day of the election, is at least 25 years of agP. 3. Able to read and write the party-list 4. Except representatives, a registered voter in the district in which he shall be elected; and 5. A resident thereof for a period · of not less than 1 year immediately preceding the day of the election. 1. 2.

3. Members of the SC and lower collegiate court

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1. 2. Chairman and the Commissioners of the CSC

3. 4.

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·1. 2. Chairman and the Commissioners of the COA

3. 4.

1. A natural-born citizens of the Phil;ppines the time of their appointment, at least 35 years of age 3. Certified Public Accountants with not less than 1 O years of auditing experience, or members of the Philippine Bar who have been engaged in the practice of law for at least 10 years; and 4. Must not · have been candidates for any elective position in the elections immediately preceding their appoint,nent . 5. At no time shall all Members of the Commission belong to the same profession.

2. At

Chairman and the Commissioners of the COA

A natural-born citizen of the Philippines A Men;iber of the SC must be at lease40 years of age; and Must have been for 15 years or more, a judge of a lower court or engaged in the practice of law in the Philippines. 4. A member of the judiciary must be a person of proven competence, integrity, probity ar.d independence. (1987 Const/, art. VIII, sec. 7(3))

1.

Chairman and Members of the Commission on Human Rights

Natural-born citizens of the Phillppines and At the time cf their appointment, at least 35 years of age With proven capacity for public administration; and 4. Must not have been candidates for any elective position in the elections immediately preceding their appointment. Natural-born citizens of the Philippines and At the time of their appointment, at least 35 years of age Holders of a college deqree; and Must not have been candidates for any elective positions in the immediately preceding elections

LAW

Natural-born citizens of the Philippines; and 2. A majority of whom shall be members of the Bar. 3 The term of office and other qualifications and disabilities of the Members of the Commission shall be provided bylaw.

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CIISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS Disqualification It is the presence of circumstances and qualities which makes an individual ineligible from holding a public office. Lack of disqualifications is it~elf a qualification.

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Disqualifications: (IM RIPE C20RN LG) 1. Mental or physical Incapacity 2. Misconduct or crime 3. Removal or suspension from office 4. Impeachment 5. Previous tenure of office 6. Being an Elective official 7. consecuuve terms 8. Having been a Candidate for any elective position 9. Holding more than One office

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POLITICAL LAW

10. Relationship with the appointing power 11. Office Newly created or the emoluments of which have been increased · 12. Grounds under the Local Government Code General Rule: Appointive and elective officials cannot hold multiple employment or office during their tenure. Exception: Appointive officials may hold other office when allowed by law or by the primary functions of their positions. (Sec 7, Art IX-8) Exception to holding multiple offices:

1. Those provided for under the Constitution, such as:

2.

a. President as head of NEDA (Art XII, Sec. 9) b. · VP may be appointed as Cabinet Member (Art VII, Sec. 3) c. VP as Acting President (Art VII, Sec. 7) d. In and ex-officio capacity (CLU v. Exec. Sec.• G.R. No.83896, 1991)and Posts occupied by Executive officials specified in Section 13, Article VII without addltlonal compensation in ex officio capacities as provided by law and as required by the primary functions of the officials' offices. (Funa v. Agra, G.R. 191644, 2013)

Genaral Disqualifications under the Constitution: 1. No candidate who lost in an election shall, within one year after such election, be appointed to any office in Government. (Phil. Const. art. IX-B, §VI) 2. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. (Phil. Const., art. IX-B, § 7(1)) 3. Unless otherwise provided by law or by the primary functions of his position, no appointive official shall hold any other position in Government. (Phil. Const., art. IX-B, § 7(2))

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Special Disqualifications under the Constitution: 1 . The President, Vice-president, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in the Constitution, hold any other office or employment during their tenure. (Phil. Const. art. VIII, §13) · 2. · 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 hi~ term, without forfeiting his seat. Neither shall he be appointed to any offlce which may have been created or the emoluments thereof increase during the term for which he was elected. (Phil. Const. art. VI,§ 13) 3. The Members of the Supreme Court and of other courts established by law shall not be designated to

an, agency performing quasi-judicial or administrative functions. (Phil. Const. art. VIII, § 12) 4'.: No Member of a Constitutional Commission shall, during his tenure, hold any other office or employment. (Phil. Const. art. IX-A, § 2) The same disqualification applies to the Ombudsman and his deputies. (Phil. Const. art. XI, § 8) 5. The Ombudsman and his Deputies shall not be qualified to run for any office in the election immediately succeeding their cessation from office. (Phil. Const. art. XI, § 11) 6. Members of Constitutional Commissions, the Ombudsman and his deputies must not have been Candidates for any elective position in the elections immediately preceding their appointment. (Phil. Const. art. IX-8, IX-C, IX-0, §. 1; art. XI, § 8) 7. Members of the Constitutional Commissions, the (;mbudsman and his deputies are appointed to a term of soven (7) years, without reappointment. {Phil. Const. art. IX-8, § 1 (2); art. IX-C, § 1 (2); Art. IX-D, §. 1 (2); art. IX, §11) 8. The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman. or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations (Phil. Const.art. VII,§ 13, Art. VII} PD 807, Sec. 49 prohibits the appointment of a Senator or Congressman to any office which may hove been created or emoluments thereof increased during the term tor which he was elected. When the Constitution has attached a disqualification to the holding of any offlce,Congress cannot remove it under the power to prescribe qualifications as to such offces as it may create. The Constitution imposes limitations on the right of certain officials to hold more than one office at the same time. 1. The President, Vice President, Members of the Cabinet, their deputies or assbtants shall not, unless otherwise provided in the Constitution, hold any other office or employment during their tenure. 2. A Senator or Member of the House of Representatives may not hold any office or employment in the Government, or any subdivision, agency, or instrumentality, includ\ng GOCCS or their subsidiaries, during his term (not tenure) without forfeiting his seat. 3. The members or the Supreme Court and of other courts established bylaw shall not be designated to any agency performing quasi-judicial or administrative functions. 4. A member of the Constitutional Commission shall not, during his tenure, hold any other office or employment. 5. During their tenure, the Ombudsman and his deputies are subject to the same disqualiticatlons and

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6.

7.

prohibitions as provided for members of the Constitutional Commissions. . . Unless otherwise allowed by law or by the pnmary functions of his position, no appointive official shall hold any other office or employment in t_he govemm~nt or any subdivision, agency, or instrumentality, including GOCCs or their subsldiaries. . . . No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian po!!ition in the government including GOCCs or any of their subsidiaries.

Soolls Svstems and Political Lame Ducks SPOILS SYSTEM

POLITICAL DUCKS

No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. (1987 Const, art. IX-8, sec. 7)

No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government of any government-owned or controlled corporations or In any of its subsidiaries. ( 1987 Const, Art. IX-8, Sec. 6)

The disqualification subsists only during the tenure in office of the elective official. He may be appointed provided he forfeits his seat Examples of exceptions: 1. The Vice President may be appointed as a Cabinet member 2. A Congressman may sit in the Judicial and Bar Council 3. To be eligible to hold any other office, the elected official must first resign from his office

LAME

Members of the Civil Service shall not have been candidates for any elective position In the elections immediately preceding their appointment. (1987 Const, art. IX-8, sec. 1(1))

in a any of their subsidiaries." (Local Government Code, Sec. 94)

Power of Congress to Prescribe Disqualifications In the absence of constitutional inhibition, Conwess has the same right to provide disqualifications that u has to provide qualifications for office. Restrictions . · 1. Congress may not add disquaiifications where the Constitution has provided them in such a way as to indicate an intention that the disqualifications provided shall embrace all that are to be permitted; and 2. When the Constitution has attached a disqualification to the holding of any office, Congress cannot remove it under the power to prescribe qualifications as to such offices as it may create Divestment When a public official is in a conflict-of-interest situation. Such official must resign from his· position in any private business enterprise within 30 days from his assumption of office and/ or divest himself of his shareholdings or interest within 60 days from such assumption. Duration of Qualification Eligibility to an office should be construed as · of a cor,tinuing nature and must exist at the commencement of the term and during occupancy of the office. The reckoning point in determining the qualifications of an appointee is the date of issuance of the appointment and not the date of Its approval by the CSC or the date of resolution of the protest against it (CSC v de la Cruz, GR No 158737, August 31, 2004) Persons required to take an Oath of Office under the Constitution 1. All public officers and employees 2. President, VP, or the acting President 3. All members of the AFr

appointed to any office in

Oath of Office It is a qualifying requirement for a public office. Only when the public officer has satisfied this prerequisite can his right to enter into the position be considered plenary and complete. Until then, he has none at all and for as long as he has not qualified, the holdover officer is the rightful occupant. Inhibitions . It is a restraint upon the public officer agalns; the doing of certain acts which may be legally done by others.

the Government or any government-owned or controlled corporations or '--~~~~~~~~--..1~~~~~~~~~~

Inhibitions under the Constitution 1. The President, Vice-Fresident, Cabinet Members and their deputies and assistants shal! not, during tenure,

Except for losing candidates in barangay elections no candidate who lost in any election shall, within 1 year after such election, be

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directly or indirectly practice any other profession, participate in any business or be financially interested in any contract with the Government. They shall strictly avoid contlict of interest in the conduct of their office. 2. No Senator or Member of the House may hold any other office or employment in the Government during his term without forfeiting his seat 3. No Senator or Member of the House may personally appear as counsel before any court of justice or before the Electoral Tribunal, or quasi-judicial and other administrative bodies 4. No Senator or Member of the House shall directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government, during his term of office 5. No Member of the Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession or in the active managernent or control of business which in any way may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or · in any franchise or special privilege granted by the Government during his term ot office. This inhiblfion applies as well to the Ombudsman and his deputies. 6. No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign.

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Practice of Profession 1. All governors, city and municipality mayors, are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives; 2. · Sanggunian members may practice their professions, engage in any occupation, or teach in schools, except during session hours • Sanggunian members who are also members of the Bar shall not: a. 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; b. appear as counsel in any criminal case wherein an officer or employee cf the national or local government is accused of an offense committed in relation to his office; c. collect any fee for their appearance in administrative proceeding involving the local government until of which he is an official; and d. use property and personnel of the Government except when the Sanggunian member concerned is defending the interest of the government 3. Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency, provlded that officials concerned do not derive monetary compensation therefrom.

RIGHTS OF PUBLIC OFFICERS RIGHT TO OFFICE - JUST AND LEGAL CLAIM TO EXERCISE POWERS AND RESPONSIBILITIES OF PUBLIC OFFICE: 1. Right to Wages; 2. Right to Preference in Promotion subject to the discretion of the appointing authority; 3. · Right to vacation and sick leave; 4. Right to Maternity Leave; 5. Right to Retirement Pay: o. Other rights: . 1. Right to reimbursement for expenses incurred in due performance of duty (but this does not include transportation allowance for those using government vehicles); 2. Right to be indemnified against liabilities they may incur in bona fide discharge of duties; 3. Right to longevity pay. 4. Right to self-organization Prohibition on Double Compensation The purpose of the prohibition against additional or double compensation for public officials: to manifest a commitment to the fundamental principle that a public office is a public trust. It is exoected of a government official -, or employee that he keeps uppermost in mind the demands of pub:ic welfare. He is there to render public service. He is entitled to be rewarded for the performance of the functions entrusted to him, but that should not be the overriding consideration. The temptation to further personal ends, public employment as a means for the acquisition of wealth, is to be resisted. There must be awareness on the part of the officer or employee of the government that he will receive only such compensation as may be fixed by law. With such a realization, he is expected not to avail himself of devious or circuitous means to increase the remuneration attached to his position. (Veloso v. COA, G.R. 193677, 2011) Claims for double retirement benefits fall under the prohibition against the receipt of double compensation when they are based on exactly the same services and on the same creditable period. (Ocampo v. Commission on Audit, G.R '188716, 2013) . PROMOTION The movement from one position to another with increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay.

DEMOTION There is demotion when an employee is appointed to a position resulting in diminution of duties, responsibilities, status or rank, which may or may not involve a reduction in ·salary. Where an employee is appointed to a position with the same duties and responsibilities but with rank and Page 167 of 320

ATENEO CENTRAL BAR OPERATIONS 2019 salary higher tha,7iho';;e enjoyeJ in his previous position, there is no demotion and the appointment is valid. (Bautista v. CSC, G.R. 185215, 2010) Demotion to a lower rate of compensation is equivalent to removal if no cause is shown for it when it is not part of any disciplinary action. In this case, demotion is not proper. NEXT-IN-RANK RULE The person next in rank shall be given preference in promotion when the position immediately above his is vacated. The concept of next-in-rank does not import any mandatory or peremptory requirement that the person next in rank must be appointed to the vacancy. · The appointing authority has the discretion to fill the vacancy under the next-in-rank rule or by any other method authorized by law (e.g. by transfer). HOLD-OVER When a public officer's term has expired or his services are terminated, but he should continue holding his office until· his successor is appointed or chosen And qualifies. RETIREMENT , Retirement has been defined as a withdrawal from office, public station, business, occupation, er public duty. It involves bilateral act of the parties, a voluntary agreement '· between the employer and the employee whereby the latter, after reaching a certain age, agrees and/or consents to sever his employment with the former. Retirement plans create a contractual obligation in which the promise to pay benefits is made in consideration of the continued faithful service of the employee for the requisite period. Before a right to retirement benefits vests in an employee, he must have met the stated conditions of eligibility with respect to the nature of employment, age, and length of service. This is a condition precedent to his acquisition of rights thereunder. (Reyes v. CA, G.R. 167002, 2011) If retirement benefits have been given to an entit; disqualified to receive the same, there is an obligation to return the amounts under the principle of solutio indebiti (GSIS v. COA, G.R. No. 138381, 2004). LIABILITIES OF PUBLIC OFFICERS General Rule: A public officer is not liable for injuries sustained by another due to official acts done within the scope of his authority.

POLITICAL LAW

Administrative liability is separate from and independent of criminal liability. It is a fundamental principle in the law on public officers that administrative liability is separate from and independent of criminal liability. A simple act or omission can give rise to criminal, civil or administrative liability, each independently of the others. This is known as the threefold liability rule. Thus, absolution from a criminal charge is not a bar to an administrative prosecution, and vice versa. The dismissal of the administrative cases against the petitioners will not necessarily result in the dismissal of the criminal complaints filed against them. (Regidor, Jr. v. People, G.R. 166086-92, 2009; Office of the President v. Cataquiz, G.R. 183445, 2011) Proof of damage or actual injury Proof of damage or actual injury is not required for administrative liability to attach to a public officer. It is enough that the act was contrary to the established norms of conduct for government service. However, an employee of GSIS who altered IP addresses without authority, not in the performance of his duties, will not be guilty of qrave misconduct but conduct prejudicial to the best interest of service. To constitute misconduct. the act or acts must have a direct relation to and be connected with the performance of official duties. {GSIS v. Mayordomo, G.R. No. 191218, 2011) Presumption of good faith in the discharge of official duties. Every public official is entitled to the presumption of good faith in the discharge of official duties. Although a public officer is the final approving authority and the employees who processed the transaction were directly under his · supervision, personal liabllity does not automatically attach to him but only upon those directly responsible for the unlawfOJI expendituras. {Dlmapilis-Baldoz v. Commission on Audit, G.R. 199114, 2013) Concept of public office is a public trust 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 jurisd:ction 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. {Carpio-Morales v. CA and Binay, G.R. 217126-27, 2015}

Exceptions: (BM-NID) 1. Bad faith; 2. Malice; 3. Negligence; 4. Death or Injury to persons or damage to property Page 168 of 320

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POLITICAL LAW also the officer de facto, the lawful title and possession are united.

DE FACTO v DE JURE OFFICERS

Usurper One who take possession of the office and undertakes to act officially without any color of right or authority. either actual or apparent. Note that it is the color of authority not the color of title, that distinguishes an officer de facto from a usurper. It means that !he authority to hold office is by some election or appointment, however irregular or informal.

De Facto Officer One whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons where the duties of the office were exercised: 1. without a known appointment or election, but under circumstance of reputation or acquiescence; 2. with a known and valid appointment or election but the office failed to conform to a legal requirement: 3. With a known appointment or election but void because of: a. ineligibility of the officer; or b. want of authority of the appointing or electing authority; c. irregularity in appointment or election not known to the public; or 4. With known appointment or election pursuant to an unconstitutional law before adjudged to be such

De Jure v De Facto Officer A de jure officer has a legal right to the office but he may not be in possession of the office; v,hile a de facto officer possesses the office becaus eof color of authority. De Facto

DE FACTO OFFICER

Officer under any of the 4 circumstances mentioned.

Legal Effects of Acts of De Facto Officers So far as the rights of a third person are concerned, the lawful acts of a de facto officer if done within the scope and by the apparent authority uf the office, is considered valid and binding as if he were the officer IAgally elected and qualified for the office and in full possession thereof.

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How De Facto Officer Ousted A de facto officer may be ousted in a direct proceeding where the title will be the principal issue, not in a collateral action or in an action to which he is not a party. The proper remedy is to institute quo warranto proceeding under Rule 66 of the ROC. The title to a public office may not be contested except directly, by quo warranto.

One who takes possession of an office and undertakes to act officially without any authority. either actual or appatent.

As to color of authority Has color of authority

Entitlement to Salary General Rule: Rightful incumbent may recover from a de facto officer the salary received by the latter during the time of wrongful tenure even though the latter is in good faith and under colo of title. Exception: When there is no de jure officer, the de facto officer is entitled to salaries for the period when he actually discharged functions. (Civil Liberties Union v. Executive Secretary, GR No 83896, February 22, 1991)

USURPER

As to mode of acquiring possession of office

Requisites 1. Valid and legitimate office; 2. Actual physical possession of the office in good faith; 3. Color of right or general acquiescence by the public

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Has neither lawful title nor color of right or title to office

As to validity of acts

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Acts are valid as to the public until such time as his title to the office is adjudged insufficient

Acts are absolutely void and can be impeached in any proceeding at any time, unless and until he continues to act for so long a time as to afford a presumption of his right to act

As to entitlement of salaries May be entitled to Not entitled compensation for services compensation rendered

De Jure Officer One who has the lawful right to the office in all respects, but who has either been ousted from it, or who has never actually taken possession of it. When the officer de jure is Page 169 of 320

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the first office and his title is thereby terminated without any other act . or proceeding. Public policy considerations dictate against allowing the same individual to perform inconsistent and incompatible duties. The incompatibility contemplated is not the mere physical impossibility of one person's performing the duties of the two offices due to a lack of time or the inability to be in two places at the same moment, but ~at which proceeds from the nature and relations of the two positions to each other as to give rise to contrariety and antagonism should one person attempt to faithfully and impartially discharge the duties of one toward the incumbent of the other. (Canonizado v. Aguirre, G.R. 133132, 2001).

TERMINATION OF OFFICIAL RELATION Modes of Termination: (TAD PAIR CAIRR) 1. Natural causes: (TAD) . a. Expiration of the Term or tenure of office his/her rights and duties ipso facto ceases, unless authorized to holdover. b. Tenure represents the term during which the incurnbent actually holds office. The tenure may be shorter (or, in case of holdover, longer) than the term for reasons within or beyond the power of the incumbent. However, a term, or the time during which the officer may claim to hold the office as of right, is not affected t·y the holdover. (Valle Verde v. Africa, G.R. 151969, 2009) (See discussion on Part N. Term Limits) c. Reaching the Age limit (retirement) - 65 years -, for public officers and employees d. Death or permanent disability 2.

d.

Acts or neglect of officer: (PAIR) a. Prescription of Right to Office - Quo warranto is the proper remedy against a public officer or empioyee for his/her ouster from office which should be commenced within 1 year after the cause of such ouster; otherwise the action shall be barred. b.

Abandonment of Office - the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control tnereof. There are, therefore, two essential elements of abandonment: first, an intention to abandon and second, an overt or "external" act by which the intention is carried into effect. Generally, a person holding a public office may abandon such office by nonuser or acquiescence. Non-user refers to a neglect to use a right or privilege or to exercise an office. However, nonperformance of the duties of an office does not constitute abandonment where such nonperformance results from temporary disability or from involuntary failure to perform. Abandonment may also result from an acquiescence by the officer in his wrongful removal or discharge, for instance, after a summary removal, an unreasonable delay by an officer illegally removed in taking steps to vindicate his rights may constitute an abandonment of the office. (Canonizado v, Aguirre, G.R. 133132, 2001)

c.

LAW

Resignation - Formal renunciation or relinquishment of office. To constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position accompanied by the act of relinquishment. Resignation implies an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce and relinquish the office, end its acceptance by competent and lawful authority. A "courtesy resignation" cannot properly be interpreted as resignation in the legal sense for it is not necessarily a reflection of a public official's intention to surrender his position. Rather, it manifests his submission to the will of the political authority and the appointing power. (Ortiz v. COMELEC, G.R. 78957, 1988) Cessation from office by virtue of intervening resignation did not warrant the dismissal of the administrative complaint against the public officer, for the act complained of had been committed when he or she was still in the service. (Concerned Citizen v. Catena, A.M. OCA IPI 02-1321-P, 2013)

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3. Acts of the govemment or people: (CAIRR) a. Conviction of a crime - termination results

Acceptance of an Incompatible office - It is a well-settled rule that he who, while occupying one office, accepts another Incompatible with the first, ipso facto vacates Page 170 of 320

b. c.

when the penalties of perpetual or temporary absolute dlsqualiticatlon or penalties of perpetual or temporary special disqualification are imposed upon conviction by final judgment in a trial court Abolition of office Impeachment - way of removing the President, Vice President, Members of the Supreme Court and the Constitutional Commissions and the Ombudsman.

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d.

Removal - ouster of the incumbent before the expiration of his/her term Grounds: i. Members of Congress - each House may punish its members for disorderly behavior with the concurrence of 2/3 of ALL its members. Suspension if imposed shall not exceed 60 days .. ii. Civil Service Officers or Employees for causes provided by law

effected. (Biraogo v. The Philippine Truth Commission, G.R. 192935-36, 2010). The extstence of any or some of the following circumstances may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for reinstatement or reappointment by an aggrieved party: 1. Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency conc:erned; 2. Where an office is abolished and others are performing substantially the same functions is created; 3. Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; 4. Where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same function as the original offices: 5. Where the remov;,;I violates the order of separation provided In Section 3 hereof. (Cotiangco v, Province ofBiliran, G.R. 157139, 2011)

As a. matter of law, a department secretary's decision confirming the removal of an officer under his authority is immediately executory, even pending further remedy by the dismissed public officer. (DimapilisBaldoz v. Commission on Audit, G.R.

199114, 2013) e.

Recall - refers to the election itself by means of which voters decide whether they should retain their local official or elect replacement. The ground for recall is "loss of confidence." A petitio,1 for recall should be initiated by at least 25% of the total number of registered voters of the concerned LGU.

Reorganization involves the reduction of personnel, consolidation of offices, or abolitior. thereof by reason of economy or redundancy of functions. It alters the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them to make the bureaucracy more responsive to the needs of the public clientele as authorized by law. It could result in the loss of one's position through removal or abolition of an office. A valid reorganization for the purpose of economy or for making the bureaucracy more efficient must pass the test of good faith; otherwise it is void ab initio. (Pan v. Pena,

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THE CIVIL SERVICE Scope Civil Service Commission (CSC) central personnel agency of the government. Composition • Chairman and 2 comrnissloners • Appointed by the Presldent with consent of the Commission on Appointments for a term of 7 years, without reappointment. . Coverage of the Civil Service All branches, subdivisions, instrumentalities, and agencies of the government including GOCC with original charters.

G.R. 174244, 2009} Authority of the Civil Service Commission 1. Limited to reviewing appointments on the basis of the Civil Service Law. 2. Only allowed to check whether the appointee possesses the appropriate civil eligiuility or the required qualification. CSC has no discretionary power.

If the reorganization was done in good faith. the abolition of positions, which resulted in loss of security of tenure of affected government employees, would be valid. Except those who hold constitutional offices, which provide for special immunity as regards salary and tenure, no one can be said to have any vested right to an office or salary .. (Banda v. Ermita, G.R. No. 166620, 2010)

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The creation of the Truth Commission does not fall within the President's power to reorganize. Section 31 of the Revised Administrative Code refers to reductlon of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. These refer to situations where a body or an office is already existent but a modification or alteration thereof has to be

t.imttatlons to the power to appoint 1. The power does not include authority to make the 2. ' 3.

appointment itself or to direct the appointing authority to change the employment status of an employee. No authority to revoke appointment simply because it believed that another person is better qualified. No power to pass upon the qualifications or tenure of t.he appointing officer or declare the latter's position vacant for an act that produced forfeiture of his office.

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Cannot change the tenure of office grantt·i to appointee such as where the appointing authority indicated permanent appointment but CSC approved as temporary such appointment. -,

Appointments to the Civil Service Classifications 1. Career Characteristics: 1. Entrance based on merit and fitness to be determined by competitive examinations or based on highly technical qualifications; 2. Opportunity for advancement to higher career positions; and 3. Security of tenure Levels of Positions 1. 1st level: clerical, trades, crafts and custodial service positions involving non-professional/sub-professional in a non-supervisory or supervisory capacity requiring less than 4 years of collegiate studies. 2. 2nd level: professional, technical and scientific positions in a non-supervisory/supervisory capacity requiring at least 4 years of college work up to division chief level. 3. 3rd level: career executive service positions

3.

In the case of appointment by transfer, reinstatement, or by original appointment, that the protestant is not satisfied with the written special reasonts) given by the appointing authority.

Meaning of "For Cause" For reasons which the law and sound public policy recognized as sufficient warrant for approval, that is, legal cause, and not merely causes which appointing power in the exercise of discretion may deem sufficient. The cause must relate to and affect the administration of the office, and must be restricted to something substantial in nature. Revocation or Recall of Appclntment General Rule: Appointment once made is irrevocable and not subject to reconsideration. Grounds when CSC has power to recall, on its own initiative, an appointment initially approved: 1. Non-compliance with the procedures/criteria provided in the agency's merit promotional plan 2. Failure to . pass through the agency's selection/promotion board 3. Violation of the existing collective agreement between management and employees relative to promotion 4. Violation of other axisting civil service law, rules and regulations PERSONNEL ACTIONS

The position of department manager is not a third level position which is appointed by the President. For said reason, a PEZA department manager only needs the approval of the PEZA Director-General to validate his appointment or re-appointment. As he need not possess a CESO or CSEE eligibility, the CSC has no valid and legal basis in invalidating his appoir,tment or re-appointment. (Agyao v. CSC, G.R. 182591, 2011) 2. Non-career Characteristics: 1 . Entrance on bases other than those of the usual test of merit and fitnes$; 2. Tenure which is limited to: a. Period specified by law; b. Coterminous with that of appointing authority; c. Subject to appointing authority's pleasure; · d. Limited to the duration of a particular project. 3. They, however, enjoy constitutional guarantee that they cannot be removed except for cause and after due hearing. Oppositions to Appointment Any parson who feels aggrieved by the appointment of a person may file a protest against the appointment.

Personnel action Any action denoting movement or progress of personnel in the civil service. (EO 292, Rule V, § 1, cited in City Mayor Debulgado v. CSC, G.R. 111471, 1994). Includes the following: (PART R2D2) 1. Appointment through certification 2. Promotion 3. Transfer 4. Reinstatement 5. Reemployment. 6. Detail 7. Reassignment 8. Demotion It Is the CSC which is empowered to look into the validity of creation of positions and appointments of personnel appointed by the Mayor which appointments were confirmed by the CSC. There being a valid appointment confirmed by CSC and the concerned personnel having rendered services, payment of their salaries is proper and legal. (Tolentino v. Loyola, G.R. 153809, 2011)

Causes for protesting appointment 1. Appointee not qualified; 2. Appointee is not the next-in-rank;

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BAR OPERATIONS 2019 Valid personnel actions 1. Extending temporary appolntrnent, however, this must not amount to removal. 2. Transfer or re-assignment but this must not involve a reduction in rank, status, and salary, without break in service. 3. Detail must be made in the interest of public service, . absent showing of manifest abuse or improper motive or purpose. Personnel actions amounting to removal 1. Shortening term is removal 2. Control does not extend to removal 3. Demotion 4. Denial of optional retirement and refusal to reinstate While a temporary transfer or assignment of personnel is permissible even without the employee's prior consent, it cannot be done when the transfer is a preliminary step toward his removal, or is a scheme to lure him away from his permanent position, or designed to indirectly terminate his service, or force his renignation. Such a transfer would in effect circurr.vent the provision which safeguards the tenure of office of those who are In the Civil Service. (Garcia v. Lejano, G.R. L-12220, 1960). Waiver of security of tenure Acceptance of temporary appointment or assignment, without reservations is a waiver of security of tenure.

ACCOUNTABILITY OF PUBLIC OFFICERS

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DISCIPLINE Grounds for Discipline: (0000 IPOD MINI MUG) 1. Discourtesy in the course of official duties; 2. Refusal to perform Official duty or render overtime service; 3. Falsification of Official documents; 4. Habitual Drunkenness; 5. lne:fficlency and incompetence in the performance of official duties; 6. Willful refusal to Pay just debts or willful failure to pay taxes due to the ~overnment; 7. Oppression; 8. Dishonesty: 9. Misconduct; 10. Disgraceful and Immoral conduct; 11. Neglect of duty; 12 .. Physical or mental Incapacity due to immoral or vicious habits; 13. Conviction of a crime involving Moral turpitude; 14. Being notoriously Undesirable; 15. Gambling.

NeQligence

v. Dishonesty

NEGLIGENCE

DISHONESTY

In 'the case of public officials, there is negligence when there is a breach of duty or failure to perform the obligation, and there is gro~s negligence when a breach of duty is flagrant and palpable. Failing to comply with his duty to provide a detailed list of his assets and business interests in his SALN and for relying on the family bookkeeper/accountant to fill out his SALN and in signing the same without checking or verifying the entries is negligence. (Presidential Anti-Graft Commission and the Office of the President v. P/eyto, G.R. 176058, 2011)

Dishonesty begins when an individual intentionally makes a false statement in any material fact, or practicing or attempting to practice any deception or fraud in order to secure his examination, registration, appointment or promotion. It should be emphasized only when the accumulated wealth becomes manifestly disproportionate to the employee's income or other sources of income and nls failure to properly account or explain his other sources of income does he become susceptible to dishonesty. (Ombudsman v. Nieto, G.R. 185685, 2011)

Good Faith Good faith is ordinarily used to describe that state of mind denoting honesty of intention and freedom from knowledge of circumstanr.es which ought to put the holder upon inquiry. In other words, good faith is actually a question of intention. Although this ,is something internal, one can ascertain a person's intention not from his own protestation of good faith, which is self-serving, but from evidence of his conduct and outward acts. (Dumduma v. CSC, G.R. 182606,2011) Every public official who signs or initials documents in the course of standard operating procedures does not automatically become a conspirator in a crime that transpired at some stage in which the official had no participation. (Peralta v. Desierto, G.R. 15315.'2, 2005) Even if the dishonest act was committed by the employee prior to entering government service, such act is still a ground for disciplinary action. (Orbase v, Ombudsman, G.R. 175115,2009)

Misconduct in office . refers to "any unlawful behavior by a public officer in relation to the duties of his office, wil:ful in character. The term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act." In grave misconduct, as distinguished from simple misconduct, the elements of Page 173 of 320

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corruption, clear intent to violate the law, or flagrant disregard of established rule must be manifest. Corruption as an element of grave misconduct consists in the act of an official or employee who unlawfully or wrongfully uses his station or character to procure some benefit for himself or for another, contrary to the rights of others. (Gabon v. Merka, A.M. P-11-3000, 2011) Grave misconduct consists in a government official's deliberate violation of a rule of law or standard of behavior. It is regarded as grave when the elements of r::orruption, clear intent to violate the law, or flagrant disregard of established rules are present. In particular, corruption as an element of grave misconduct consists in the official's unlawful and wrorigful use of his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others. Rigging by a public official at a bidding in the organization where he belongs is a specie of corruption. (NPC v. CSC, G.R. 152093, 2012) Simple neglect of duty defined as the failure of an emptoyee to give proper attention to a required task or to discharge a duty due to carelessness or indifference. On the other hand, gross neglect of duty is characterized by want of even the slightest care, or by consclous indifference to the. consequences, and in cases involving public officials, by flagrant and palpable breach of duty. Jt is the omission of that care that even inattentive and thoughtless men never fail to take on their own property. (Land Bank of the Philippines vs. San Juan Jr., G.R. 192890, 2013) When demolition Is proper and when Improper that may constitute liabllit :

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WHEN DEMOLITION IS PROPER

WHEN DEMOUTION IS NOT PROPER

A complaint for damages

If a Sanggunian resolution only authorized a Mayor to file for unlawful detainer in case of resistance to obey the order or to demolish the building using legal means, the act of demolition without legal order is not proper. After all, the present Local Government Code does not expressly provide for the abatement of nuisance. (Asilo v. People of the Philippines, r:;.R. 159017-18, 2011)

and injunction against the members of the Philippine army cannot be held personally accountab!e for the demolition since the act was done in connection with their official duties in carryinq the AFP prograrn of "Oplan Lin is." There was no showing that such acts constitute ultra vires acts nor was there a showing of bad faith on the part of petitioners. (Philippine Army, 5th Infantry Division v, Spouses Pamittan, et. et., G.R. 187326, 2011)

Ultra vlres acts acts which are dearly beyond the scope of one's authority. They are null and void and cannot be given any effect. The doctrine of estoppal cannct operate to give effect to an act which is otherwise null and void or ultra vires. (Acebedo Optical Company v. CA, G.R. No. 100152, 2000) Jurisdiction in Disciplinary Cases 1. Heads of ministries, agencies and instrumentalities, . provinces, cities and municipalities have jurisdiction to investigate and decide matters ir.volv:ng disciplinary action against officers and err.ployees under their jurisdiction. 2. Decision final in case the penalty imposed is suspension of not more than 30 days or fine in an amount not exceeding 30 days salary. 3. Other cases, decision shall be initially appealed to the department head and finally to the Civil Service· . Commission and pending appeal, shall be executory EXCEPT when the penalty is removal, in which case it shall be executory only after confirmation by the department · head. Committee to hear administrative charge against public school teacher representative of the teacher's· organization 4. Civil Service Commission has appellate jurisdiction. Case may be filed directly to it; it may decide on the case or deputize a department or agency Preventive Suspension and Back Salaries PREVENTIVE SUSPENSION Merely a preventive measure, a preliminary step in an administrative investigation. The purpose of the suspension order is to prevent the accused from using his position and the powers and prerogativeo of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him. If after such Investigation, the charge Is established and the person investigated is found guilty of acts warranting his · suspension or removal, then, as a penalty, he is suspended, removed or dismissed. (Villasenor v. Sandiganbayan, G. R. No. 180700, 2008) Two kinds of preventive suspension of government employees charged with offenses punishable by removal or suspension: 1. Preventive suspension pending invesug·ation; and 2. Preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or diamtssal and, after review, the respondent is exonerated.

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Effect of Decision on Suspension When Made Before or Aft er 90 D ays: IF THE CASE DECIDED BEFORc DAYS

IS IF THE CASE 15 9() DECIDED NOT DECIDED WITHIN 90 DAYS

The suspension will last less than 90 days.

The suspension may not exceed the maximum period of 90 days.

Preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation; the purpose thereof is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him. (Ombudsman v. Franctsco, G.R. 172553, 20·11) lt is now settled that Sec. 13 of Repul:)lic Act No. 3019 makes it mandatory for the Sandiganbayan to suspend any public official against whom a valid information charging violation of that law, Book II, Title 7 of the Revised Penal Code, or any offense involving fraud upon government or public funds or property is filed. The court trying a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continuing committing malfeasance in office. (Villasenor v. Sandiganbayan, G.R. 180700, 2008)

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There is no dispute as to the power of the Ombudsman to place a public officer charged with an administrative offense under preventive suspension. That power is clearly confined under Section 24 of R.A. No. 6770. The law sets forth two conditions that must be satisfied to justify the issuance of an order of preventive suspension pending an investigation, to wit: 1. The evidence of guilt is strong; and\ 2. Either the following circumstance co-existing with the first requirement: a. The charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; b. The charge would warrant removal from the service; or · c. The respondent's continued stay in office may prejudice the case filed against him. (Ombudsman v. Valeroso, G.R. 167828, 2007) Prior notice ar.d hearing are not required in the issuance of" preventive suspension order. Settled is the rule that prior notice and hearing are not · required in the issuance of a preventive suspension order. (Carabeo v. CA, G.R. 178000/178003, 2009)

GROUNDS FOR PREVENTIVE SUSPENSION OF POLICE OFFICERS [RA 8551, SEC. 55] (Preventive Suspension Pending Crimlnal Case) The court shall immediately suspend the accused from office for a period not exceeding 90 days from arraignment: 1. Upon the filing of a complaint or information sufficient in form and substance against a member of the PNP; 2. For grave felonies where the penalty imposed by law is 6 years and 1 day or more. Exception: If it can be shown by evidence that the accused is harassing the complainant and/or witnesses, the court may order the preventive suspension of the accused PNP member even if the charge is punishable by ·. a penalty lower than 6 years and 1 day. General Rule: The period of preventive suspension shall not b~ more than 90 days. Exception: If the delay in the disposition of the case is due to the fault, negligence or petitions of the respondent. The preventive suspension may be socner lifted by the court in the exigency of the service upon recommendation of the chief, PNP. Such case shall be subject to continuous trial and shall be terminated within 90 days from arraignment of the accused. Back salaries during preventive suspension General Rule: A public official is not entitled to any compensation if he has not rendered any service. (Reyes v. Hernandez, G.R. No. Apr. 8, 1941) Two conditions before an employee may be entitled to back salaries in preventive suspension cases: 1. The employee must be found innocent of the charges; and 2. His suspension must be unjustified or the official was innocent. (CSC v. Cruz, G.R. 187858, 2011) The reasoning behind these conditions runs this way: although an employee is considered under preventive suspension during the pendency of a successful appeal, the law itself only authorizes preventive suspension for a fixed period; hence, his suspension beyond this fixed period ls unjustified and must be compensated. The rule on payment of back salaries during the period of suspension of a member of the civil service who is subsequently ordered reinstated, is already settled in this jurisdiction. Such payment of salaries corresponding to the period when an empioyee is not allowed to work may be decreed not only if he is found innocent of the charges that caused his suspension (Sec. 35, RA 2260), but also when the suspension ls unjustified. {CSC v. Cruz, G.R. 187658, 2011).

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charge against them. (TanJay Water District v. Quinit, Jr., G.R. 160502,2007)

The mere reduction of the penalty on appeal does not entitle a government employee to back salaries if he was not exonerated of the charge against him. If the exoneration of the employee is relative (as distinguished from complete exoneration), an inquiry Into the factual premise of the offense charged and of the offense committed must be made. If the administrative offense found to have been actually commitled is of lesser gravity than the offense charged, the employee cannot be considered exonerated if the , factual premise for the imposition of the lesser penalty remains the same. (CSC v. Cruz, G.R. No. 187858, 2011). Preventive Aooeal

Suspension

Pending

Investigation

When an official or employee was illegally dismissed and his reinstatement has later been ordered, for all legal· purposes he is considered as not having left his office. · Therefore, he is entitled to all the rights and privileges that accrue to him by virtue of the office he held. (Galang v. Land Bank, G.R. 175276, 2011) A public officer is not entitled to. reinstatement and back salaries, when removal or suspension is lawful. The denial of salary to an employee during the period of his suspension, if he should later be found guilty, is proper because he had given ground for his suspension. It does not impair his constitutional rights because the Constitution itself allows suspension for cause as provided by law and the law provides that an employee may be suspended pending an investigation or by way of penalty. (Bangalisan v. CA, G.R. 124678, 1997)

v.

PREVENTIVE SUSPENSION PENDING INVESTIGA 1"10N

PREVENTIVE SUSPENSION PENDING APPEAL

Not a penalty. It is a measure intended to enable the disciplining authority to investigate charges against respondent by preventing the latter from intimidating or in any way influencing witnesses against him. If the investigation is not finished and a decision is not rendered within that period, the suspension will be lifted and the respondent will automatically be reinstated. If after Investigation, respondent is found innocent of the charges and is exonerated, he should be reinstated. (CSC v. Alfonso, G.R. 179452, 2009)

If the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated.

A public officer is entitled after his acquittal not only to reinstatement but also to payment cf the salaries, allowances, and other benefits withheld from him by reason of his discharge from the service even if there has been valid suspension from the service pending the adjudication of the criminal case. (P/Chief Superintendent Calinisan v. SP02 Roaquin, G.R. 159588, 2010)

No back salaries shall be due for the period of preventive suspension PENDING INVESTIGATION but only for the period of preventive suspension Pt:NDING APPEAL, in the event the employee is exonerated. ( Gloria v. CA, G.R. 131012, 1999)

R'emsta t ement

v.

Bac kwaQ es:

REINSTATEMENT

eACKWAGES

Restoration to a state or condition from which one had been removed or separated. One who is reinstated assumes the position he had occupied prior to the dismissal and is, as an ordinary rule, entitled only to the last salary in that position.

A form Of relief that restores the income that was lost by ·reason of unlawfu' dismissal.

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Illegal dismissal, reinstatement and back salaries Reinstatement the issuance of an appointment to a person who has been previously appointed to a position in the career service and who has, through no delinquency or misconduct, been separated therefrom, or to the restoration of one who has been exonerated of the administrative charges filed against him. (Galang v. Land Bank, G.R. 175276, 2011)

Where to file claims for backwages: The claim for recovery of back salaries involves settlement of accounts or claims against the government and should therefore be filed with the Commission on Audit.

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Amount of Back Salaries An illegally terminated civil service employee is entitled to back salaries limited only to a maximum period of five years, and not full back salaries from his illegDI termination up to his reinstatement. (Ga,ang v. Land Bank, G.R.

. 175276, 2011) . The rule is settled that back salaries may be awarded to civil servants only if t'iey have been illegally dismissed and thenceforth ordered reinstated, or to those acquitted of the Page 176 of 320

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BAR OPERATIONS 2019 Immunity of Public Officers

IMPEACHMENT

Official immunity Only protects public officials from tort liability for damages arising from acts or functions in the performance of their official duties. Public officers may be sued to restrain them from enforcing an act claimed to be unconstitutional. Exceptions: when liability does not devolve ultimately to the State such as: 1. A petition to require official to do his duty; 2. A petition to restrain him from doing an act; 3. To recover taxes from him; 4. Those where the officer impleaded may by himself alone comply with the decision of the court; 5. Where the government itself has violated its own laws. Where a public officer has committed an ultra vlres act, or where there is a showing of bad faith, malice or gross negligence, the officer can be held personally accountable even if such acts are claimed to have been performed in connection with official duties. (Wylie v, Rarang, G.R. 74135, 1992) Immunity from sult cannot institutionalize irresponsibility and non-accountability nor gri:int a privileged status not claimed by any other official of the Republic. (Republic v. Sandoval, G.R. 84607, 1993) Where the public officer is sued in his personal capacity, state immunity will not apply. (Lansang v. CA, G.R. 102667, 2000)

·~.·

CONDONATION DOCTRINE The condonation doctrine is the doctrine that provides that a reelected official should no longer be made accountable for an administrative offense committed during his previous term.

.

BERNABE: In Carpio-Morales, the Court abandoned the "condonation doctrine," explaining that "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."

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The abandonment should be prospectively applied. (Dimapilis v. Commission on Elections, G.R. No. 227158, [April 18, 2017))

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Impeachment the power of Congress to remove a public official for serious crimes or misconduct as provided in the Constitution. It is a mechanism designed to check abuse of power. (Chief Justice Renato C. Corona v, Senate of the Philippines sitting as an Impeachment Court, G.R. No. 200242, 2012) Who may be impeached: (VP-SOC) 1. President 2. Vice President 3. Supreme Court Justices 4. Constitutional Commission members 5. Ombudsman Grounds: (GOT BBC) 1. Graft and corruption 2. Other high crimes 3. Treason 4. Betrayal of public trust 5. Bribery 6. Culpable violation of the Constitution It Is an exclusive list. Congress cannot add to the list of impeachable offenses. These officers cannot be charged in court with offenses that have removal from office as penalty. But after an offici.:il has been impeached, he can be charged with the appropriate offense. . Resignation by an impeachable official does not place him beyond the reach of impeachment proceedings; he can still be impeached. Other public officers and employees They may be removed from office as provided by law but, not by impeachment. Who may initiate Impeachment case The House of Representatives has exclusive power to initiate all cases of impeachment. Procedure: 1. Filing of verified complaint. Can be filed by: a. Any member of the House of Representatives b. Any citizen upon a resolution or endorsement by any Member of the House c. By at least 1/3 of all the Members of the House of Representatives d. If the verified complaint or resolution of impeachment was filed by at least 1/3 of all the Members of the House, it shall constitute the Articles of Impeachment. Trial in the Senate shall proceed.

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1.

Inclusion of complaint in the order of business within 10 session days 2. Referral to proper Committee within 3 session days thereafter 3. Submission of committee report to the House together with corresponding resolution 4. The report should be submitted within 60 days from referral, after hearing, and by a majority vote of all its members. . 5. Calendaring of resolution for consderatlon by the House 6. Should be done within 10 session days. from receipt thereof 7. Vote of at least 1/3 of all the members of the House necessary to: a. Affirm a favorable resolution with the Articles · of Impeachment of the Committee or b. To override its contrary resolution Roles of the 3 branches of Government in impeachment: 1. Senate has sole power to try and decide cases of impeachment; . 2. If the President is on trial, the Chief Justice presides but does not vote; 3. The Supreme Court can determine it' Congress committed grave abuse of discretion amounting t0 lack or excess of jurisdiction (ex. recognizing two impeachment complaints). i. i

For impeachment, judgment of conviction requires the concurrence of 2/3 of all the Members of the Senate. Only one impeachment proceeding should be initiated against an impeachable officer within a period of one year: (Gutierrez v, House Committee on Justice, G.R. 193459, 2011) The SC found it well-within its power to determine whether Congress committed a violation of the Constitution or gravely abused Its discretion in the exercise of its functions and prerogatives that could translate as lack or excess of jurisdiction in taking cognizance of two impeachmer.t complaints that are inquisitorial in function, akin to a preliminary investigation. (Gutierrez v. House Committee on Justice, G.R. 193459, 2011). The 1-year period shall be counted from the time of the filing of the first impeachment complaint. Impeachment proceedings pertain to the proceedings in the House of Representative which commences from the initiation of the complaint, to the referral to proper committees, to submission of the report to the House, subsequent deliberation, and ends with the transmittal of the Article of Impeachment to the Senate. An impeachment case pertains to a trial in the Senate which commences at 'the time the Articles of Impeachment are transmitted to the

Upper House. (Gutierrez v. House Committee on Justice, · .G.~.193459, 2011). Effects of impeachment: (LOR) 1. Removal from office of the official concerned 2. Disqualification to hold any office 3. Officer still Liable to prosecution, trial, and punishment if the impeachable offense committed also constitutes a felony or crime. The determination of sufficiency of fotm and substance of an impeachment complaint is an exponent of the express constitutional grant of rule-making powers or the House of Representatives. In the discharge of that power and in the exercise of its discretion, the House has formulated determinable standards as to the form and substance ot an impeachment complaint. Furthermore, the Impeachment Rules are clear in echoing the constitutional requirements and providing that there must be a "verified complaint or resolution," and that the substance requirement is met if there is "a recital of facts constituting the offense charged and determinative of the jurisdiction of the committee." Questions on what constitutes as an impeachable offense are considered to be purely political questions and thus left to the sound determination of the legislature. (Gutierrez v. House Committee on Justice, G.R. 193459, 2011). · THE OMBUDSMAN Scope GOCCs with original charters and those organized and incorporated under the Corporation Code within the jurisdiction of the Sandiganbayan whenever they are involved in qraft and corruption. (People v. Sandiganbayan, G.R. 147706-07, 2005). · The Ombudsman has the power to grant immunity by itself and even prior to the filing of information in court. RA 6770 fully recognizes this prosecutory prerogative by empowering the Ombudsman to grant immunity, subject to "such terms and conditions" as he may determine. The only textual limitation imposed by law on this authority is the need to take "into account the pertinent provisions of the Rules of Court," - i.e., Section 17, Rule 119 of the Rules of Court. The rule under RA 6770 clarifies that in cases already filed with the courts, the prosecution merely makes a proposal and initiates the process of granting immunity to an accused-witness in order to use him as a witness against his co-accused. If there is any distinction at all between the public prosecutor and the Ombudsman in this endeavor, it is in the specificity of and the higher priority Given by law to the Ombudsman's purpose and objective. This accounts for the Ombudsman's unique power to grant immunity by itself and even prior to the filing 6~ information in court. a power that the public prosecutor himself generally does not enjoy. (Quarto v. Ombudsman, G.R. 169042, 2011 ). •I

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ATENEO CENTRAL BAR OPERATIONS 2019 In the exercise of his duties, the Ombudsman is giv13n full administrative disciplinary authority. His power is not limited merely to receiving, processing complaints, or recommending penalties. He is to conduct investigations, hold hearings, summon witnesses and require production of evidence and place respondents under preventive suspension. This includes the power to impose the penalty of removal, suspension, demotion, fine, or censure of a public officer or employee. The provisions in RA 6770 taken together reveal ihe manifest intent of the lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority. These provisions cover the entire gamut of administrative adjudication which entails the authority to, inter alia, receive complaints, conduct investigations, hold hearings in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension public officers and employees pending an investigation, determine the appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and, necessarily, Impose the said penalty. Thus, it is settled that the Office of the Ombudsman can directly impose administrative sanctior.s. (Cabalit v. COA, G.R. 180236, 2012)

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POLITICAL LAW agencies or instrumentalities, including GOCCs or their subsidiaries. Appointment: 1. Ombudsman and deputies 2. By the president from a list of at least 6 nominees prepared by the Judicial and Bar Council. Vacancies will be filled from a list of 3 nominees. 3. Appointments do NOi• require confirmation 4. All vacancies shall be filled within 3 months after they occur. 5. Appointees have 7-year term without reappointment and are not quallfled to run for any office in the election succeeding their cessation from office. 6. Other ombudsman officials and employees a. By the Ombudsman b. In accordance with Civil Service Law

Functions Powers, Functions and Duties 1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. a. May be done on its own initiative or on complaint in any form. The Office of the Ombudsman is tasked to exercise b. Such may be delegated. disciplinary authority over all elective and appointive c. The power to investigate includes the power to officials, save only for lmpeachable officers. (Alejandro v. impose preventive suspension. But, this is not a Office of the Ombudsman Fact-Finding and Intelligence penalty. Bureau, G.R. 173121, 2013). d. Investigate does not mean preliminary Composition: investigation. 1. OmbudsmanfTanodbayan; e. The complaint need not be drawn up in the usual form. 2. Overall Deputy (at least one Deputy each for Luzon, Visayas and Mindanao). f. The illegal act or omission need not be in 3. Deputy for military establishment may be appointed connection with the duties of the public officer or employee concerned. Qualifications: (Ombudsman and Deputies): g. ANY illegal act may be investigated by the Ombudsman. In this regard, the Ombudsman's 1. Natural born citizen of the Philippines 2. At least 40 years old at time of appointment jurisdiction is concurrent with that of the regular prosecutors. 3. Of recognized probity and independence 4. Member of the Philippine bar -, 2. Direct, upon complaint or at its own instance, any 5. Must not have been candidate for any electlve office in public official or employee of the government, or any the immediately preceding election r.ubdlvision. agency or instrumentality thereof, as well 6. For Ombudsman: He must have been for 10 years or as of any GOCC with original charter, to perform and more: expedite any act of duty required by law, or to stop, a. A judge OR prevent and correct any abuse or impropriety in the b. Engaged in the practice of law in the Philippines performance of duties. a. The Ombudsman has persuasive. power, and may Disqualifications and Prohibitions: require that proper legal stops are taken by the 1. Cannot hold any other ofi'ice or employment during his officers concerned. tenure; b. The public official or employee must be employed 2. Cannot engage in the practice of any profession or in in: the active management or control of any business i. The Government which may be affected by the functions of his office; ii. Any subdivision, agency, or instrumentality 3. Cannot be financially interested, directly or indirectly, iii. GOCCs with original charters in any contract with or in any franchise or privilege c. The Special Prosecutor may prosecute before the granted by the Government, any of its subdivisions, Sandiganbayan, judges accused of gmft and Page 179 of 320

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POLITICAL LAW

corruption. even If they are under the Supreme Court. 3. Direct the officer concerned to take the appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. a. The Ombudsman does not himself prosecute cases against public officers or employees. b. Final say to prosecute still rests in the executive department. c. The Ombudsman or Tanodbayan may use mandamus to compel the fiscal to prosecute. d. The refusat by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, emote, flne, censure, or prosecute an officer or employee who is at fault or > who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer. (RA 6770, Sec. 15 (3); Ledesma v. CA, G.R. No. 161629, 2005; Article 11 Sec. 13(3), 1987 Constitution) 4. Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds of. properties, and roport any irregularity to COA for appropriate action 5. Request any government agency for assistance and intormation necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents and public matters covered by its investigation when circumstances so warrant and with due process. 6. Determine tile cause of mismanagement, inefficiency, red tape, fraud and corruption in the government and make recommendations for their elimination and the observance of hign standards of ethics and efficiency. 7. Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. The Office of the Ombudsman enjoys fiscal autonomy. Its approved annual appropriations should be automatically and regularly released. Doctrines: 1. The Ombudsman has juri15diction over disciplinary cases against government employees, which includes public school teachers. However, Section 9 of the Magna Carta for Public School Teachers provides that it must first go to a committee appointed by the Secretary of Education. (Ombudsman v. Estandarte, G.R. 168670, 2007). 2. The Office of the Ombudsman has the authority to determine the administrative liability of an erring public official or employee, and to direct and compel the head

of the concerned officer or agency to implement the penalty imposed. This power to impose administrative liability is not merely recommendatory but actually mandatory. (Ombudsman v. Delijero, G.R. 172635, 2010). 3. The enumeration of the powers of the Ombudsman in the Constitution is not exclusive. Congress may add additional powers. The Ombudsman Act grants to the Ombudsman fuller authority; he has the power to impose the penalty of suspension. (Ombudsman v. CA, G.R. 160675, 2006). . 4. The doctrine of qualified political agency does not apply to the relationship between the Ombudsman and the Special Prosecutor. The Special Prosecutor may only file an information only when authorized by the Ombudsman. (Perezv. Sandiganbayan, G.R. 166062,

2006). 5.

In administrative case involving the concurrent jurisdiction of two or more disciplining authorities, the body in which the complaint is filed first, and which opts to take cognizance of the case, acquires jurisdiction to tne exclusion of other tribunals exercising concurrent jurisdiction. In this case, since the complaint was filed first in the Ombudsman, and the Ombudsman opted to assume jurisdiction over the complaint, the Ombudsman's exercise of jurisdiction is to the exclusion of the Sangguniang Bayan exercising concurrent jurisdiction. Jurisdiction could no longer be transferred to the Sanggunlang Bayan by virtue of a subsequent complaint filed by the same complainants. (Ombudsman vs. Rodriquez, G.R. 172700, 2010). 6. The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government. governmant-owned or controlled corporations and their subsidiaries. except over officials who may be removed only tiy impeachment or over Members of Congress, and the Judiciary. (RA 7660, sec. 21) However, he Office of the Ombudsman shall have the power to investigate any serious misconduct in the office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment if warranted. (RA No. 6770, Sec. 22) 7. An administrative complaint filed against a public officer before the Ombudsman does not bar an administrative investigation before the Presidential Anti-Graft Commission. The jurisdiction of Ombudsman over administrative complaints are not exclusive, it may be exercised concurrently with an authorized agency. (Lacson v. Executive Secretary, G.R. 165399, 201 ~ ). 8. Appeals from decisions of the Ombudsman in administrative cases do not stay the execution of the penalty imposed. This is in accordance with Section 7 Rule Ill of the Rules of Procedure of the Ombudsman which explicitly states that an appeal shall not stop the

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ATENEO CENTRAL BAR OPERATIONS 2019

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POLITICAL LAW

decision from being executory. No vested right is violated because pending appeal the appellant is considered as preventively suspended and will be paid backwages in case he wins in his appeal In addition, under Section 13(8) Article XI of the Constitution authorizes the Ombudsman to formulate its own rules. (Facura et al. v. CA, et al., G.R. 166495, 2011 ). Section 20 of RA 6770 is merely directory and does not prohibit the Ombudsman from conducting an administrative investigation after the lapse of one year, reckoned from the time the alleged act was committed. Without doubt. even if the administrative case was filed beyond the one (1) year period stated in Section 20(5), the Ombudsman was well withir, its discretion to conduct the administrative investigation. (Ombudsman v. Andutan, G.R. 16467.9, 2011). Although the Ombudsman is not precluded by Section 20(5) of RA 6770 from conducting the investigation, the Ombudsman can no longer institute an administrative case against a resigned public officer because the latter was not a public servant at the time the case was filed. (Ombudsman v. Andutan, G.R. 164679,2011). ' Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision Imposing the penalty of public censure or reprimand, suspension of not more than one (1) month's salary shell be final and unappealable. In the same vein, decision of the Ombudsman absolving a public officer of an administrative charge is final and unappea!able. (Tolentino v, Atty. Roy Loyola et. al., G.R. 153809, 2011). It isworth stressing that the Ombudsman's finding of probable cause does not touch on the issue of guill or innocence of the accused. It is not the function of the Office of the Ombudsman to rule on such issue. Hence, Courts do not interfere in the Ombudsman's exercise of discretion In determining probable cause unless there are compelling reasons. (Ganaden v. Ombudsman, G.R. 170500/170510-11, 2011). It is settled that the Office of the Ombudsman has the sole power to investigate and prosecute on its own or on complaint by any person, any act or omission of any public of:icer or employee, office or agency, when such act or omission appears to be Illegal, unjust, improper or inefficient. The power to withdraw the Information already filed is a mere adjunct or consequence of the Ombudsman's overall power to prosecute. However, while it is the Ombudsman whc has the full discretion to determine whether or not a criminal case should be filed in the Sandiganbayan, cnce the case has been filed with said court, it is the Sandiganbayan, and no longer the Ombudsman, which has full control of the case so much so that tt:e Information may not be dismissed without the approval of said court. Further, it does not matter whether such filing of a motion to dismiss by the prosecution Is done before or after the

arraignment of the accused or that the motion was filed after a reinvestigation. (City of Tuguerarao v, Ting, .G.R. 192435-3, 2011 ). 14. The power of the Office of the Ombudsman to investiyate extends to all kinds of malfeasance, misfeasance, and non-feasance that have been committed during his tenure of office by any officer or employee of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations. (Office of the Ombudsman v. De Leon, G.R. 154083, 2013). 15. A preliminary investigation partakes of an investigative or inquisitorial power for the sole purpose of obtaining information on what future action of a judicial nature may be taken. Even the action of the Secretary of Justice in reviewing a prosecutor's order or resolution via appeal or petition for review cannot be considered a quasi-judicial proceeding. Hence, Section 14, Artiere VIII of the Constitution does not thus extend to resolutions issued by the DOJ Secretary. (Bondoc v. Tan nong, G.R. No. 186652, 2::>10). 16. The second paragrar1h of Section 14 of RA 6770 Is declared invalid, and as such, the CA may Impose provisional injunctive writ over the implementation of prevention suspension order by the Ombudsman. Furthermore, the independence granted to the Ombudsman by the Constitution means freedom from control or supervision of the Executive Department, not the Judiciary. (Carpio-Morales v. CA, G.R. No. 217126-27, 2015) 17. Under such terms and conditions as it may determine, taking into account the pertinent provisions of the Rules of Court, the Ombudsman may grant immunity from criminal prosecution to any person whose testimony or whose possession and production of documents or other evidence may be necessary to determine the truth in any hearing, inquiry or proceeding being conducted by the Ombudsman or under its authority, in the performance or In the furtherance of its constitutional functions and statutory objectives. The immunity granted under this and the immediately preceding paragraph shall not exempt the witness from cnrnlnal prosecution for perjury or false testimony nor shall he be exempt from demotion or removal from office. (RA 6770, Sec. 17(2)) Judicial Review in Administrative P ena IP roce eel'mgs

Proceedings and in

ADMIN.

PEN.~L

Appeals from resolutions of the Office of the Ombudsman in administrative disciplinary cases should t:>e taken to the Court of Appeals via Pel:tion for Review under

Supreme Court is not precluded from reviewing the Ombudsman's action when there is an abuse of discretion, in which case Rule 65 of the Rules of Court. ( GE:rcla-Rueda v.

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Rule 43 of the Rules of Court. (Fabian v. Desierto, G.R. 129742, 1998) Non-Administrative

Pesceslo, G.R. 1997)

11(J-i41,

v. Administrative:

FROM.

APPEAL TO.

Ombudsman (nonadministrative cases)

Supreme Court via Rule 65

Ombudsman (administrative ONLY)

Court of Appeals via Rule 43

cases

OFFICE OF THE SPECIAL PROSECUTOR Under PD 1487, as amended by PD 1607, Tanodbayan was both prosecutor and Ombudsman. Harmonlsation of the laws left the Special Prosecutor to continue to exercise powers of th'3 former Tanodbayan except those specifically passed on to the Ombudsman. Since the power to investigate has been vested to the Ombudsman, the Special Prosecutor can only investigate and prosecute if authorised by the Ombudsman.

Appointment 1. The President selects from a list of at least twenty one (21) nominees prepared by the Judicial and Bar Council 2. From a list of three (3) nominees for each vacancy thereafter, which shall be filled within three (3) months after it occurs, , 3. Each of list shall be published in a newspaper of general circulation. In the organization of the Office of the Ombudsman for filling up of positions therein, regional, cultural or ethnic considerations shall be taken Into account to the end that the Office shall be as much as possible representative of the regional, ethnic and cultural make-up of the Filipino nation. Qualifications 1. Natural born citizens of the Philippines, 2. At least forty (40) years old, 3. Of recognized probity and independence, 4. Member of the Philippine Bar, 5. Must not have been candidates for any elective national or local office in the immediately preceding election whether regular or special.

Removal; Filling of Vacancy . . 1. In accordance with the provisions of Article XI of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. 2 .. The Special Prosecutor, may be removed from office by the President for any of the grounds provided for the removal of the Ombudsman, and after due process. Prohibitions and Disqualifications . • The Special Prosecutor shall not, during their tenure, hold any other office or employment. • 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. • Shall strictly avoid conflict of interest in the conduct of their office. • Shall not be qualified to run for any office in the election · immediately following their cessation from office. • Shall not be allowed to appear or practice before the Ombudsman for two (2) years foliowing their cessation from office. · • No spouse or relative by consanguinity or affinity within the fourth civil degree and no law, business or professional partner or associate the Special Prosecutor within one (1) year preceding the appointment may appear as counsel or agent on any matter pending before the Office of the Ombudsman or transact business directly or indirectly therewith. • This disqualification shall apply during the tenure of the official concerned. This disqualification likewise extends to the law, business or professional firm for the same period. Authority and Responsibllltles • Shall be composed of the Special Prosecutor and his prosecution staff. The Office cf the Special Prosecutor shall be an organic component of the Office of the Ombudsman and shall be under the supervision and control of the Ombudsman. • It shall, under the supervision and control and upon the authority of the Ombudsman, have the following powers: 1. To conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan; 2. To enter into plea bargaining agreements; and 3. To perform such other duties assigned to it by the Ombudsman.

Term The Special Prosecutor, shall serve for a term of seven (7) years without reappointment. Page 182 of 320

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POLITICAL LAW 6.

THE SAND!GANBAYAN

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Jurisdiction in general , 1. Violations of Anti-graft and Corrupt Practices Act; 2. Republic Act No. 1379 3. Chapter II, Section 2, Title VII, Book II of the Revised. Penal Code 4. One or more of the accused are officials occupying the following positions in the government whether in a permanent, acting or interim capacity, at the time of the commission of the offense: a. Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: b. Provincial governors, vice-governors, members of the Sangguniang Panlalawlgan and provincial treasurers, assessors, engineers and other provincial department heads; c. City mayors, vice-mayors, members of the Sangguniang Panlungsod, city treasurers, assessors, engineers and other city department heads; d. Officials of the diplomatic service occupying the · position of consul and higher; e. Philippine army and air force colonels, naval captains. and all officers of higher rank; f. Officers of the Philippine National Police while· occupying the position of provincial director and those holding the rank of senior superintendent or higher; g. City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; h. Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or · foundations; i. Members of Congress and officials thereof classified as Grade 27 and up under the Compensatlon and Position Classification Act of 1989; j. Members of the judiciary without prejudice to the provisions of the Constitution; k. Chairmen ·and members of Constitutional Commissions, without prejudice to the previsions of the Constitution; · I. All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989. 5. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned above in relation to their office.

Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14A, Issued in 1986. (RA 8249, sec. 4(a))

Offenses committed in relation to public office 1. Accused is any one of the Public Officers and Employees in Subsection (a) of Section 4 of RA 8249 or with Salary Grade 27 and above; . 2. Accused commits any other offense/felony, than those spechled in Subsection (a), whether simple or complexed with other crimes; 3. The offender commits such other offense/felony in relation to his office. "In relation to his office" • WIC 1. · It cannot exist Without the office, or 2. If the office is a Constituent element of the crime as defined in the statute, or 3. Must be Intimately connected with the office of the offender Appel!ate jurisdiction Cases decided by the RTC filed against lower level public officials or those classified as Grade 26 and lower, involving: 1. Violations of RA 3019; 2. RA 1379; 3. Direct/indirect bribery and Corruption of Public officials It is tho Sandiganbayan which has jurisdiction over appeals from criminal cases where the accused is a government employee. Pursuant to RA 8249, the Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise o~ their own original Jurisdiction or of their appellate Jurisdiction as herein provided. (Fiiomena v. People, G.R. 188630, 2011) While it is the Ombudsman who has the full discretion to determine whether or not a criminal case should be filed in the Sandiganbayan, once the case has been filed with said court, it is the Sandiganbayan, and no longer the Ombudsman, which has full control of the case so much so that the Information may not be dismissed without the approval of said court. In this case, the Sandiganbayan ordered the Special Prosecutor to conduct a reinvestigation and subsequently granted his motion to withdraw the informations, after finding no probable cause against the latter on reinvestigation. The Sandiganbayan thus gave its approval to the withdrawal of the informations and ordered the dismissal of the cases. Since no appeal was taken by the Special Prosecutor from the order of dismissal within the reglementary period, the same had become final and executory. (C•ty Government of Tuguegarao v. Ting, G.R. 192435·36, 2011) In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the

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POLITICAL LAW

Ombudsman, through its Special Prosecutor, shall represent the People, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A. A private complainant in a criminal case before the Sandiqanbayan is allowed to appeal only the civil aspect of the criminal case after its dismissal by said court. (City Government of Tuguegarao v. Ting, G.R. ·J 92435-36, Sepl.14, 2011)

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The special civil action of certlorari is not the proper remedy to challenge a judgment conviction rendered by the Sandiganbayan. Petitioner should have filed a petition for review on certiorari under Rule 45. Pursuant to Section 7 of Presidential Decree No. 1606, as amended by Republic Act No. 8249, decisions and final orders of the Sandiganbayan shall be appeaiable to the Supreme Court by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court. {lcdang v. Sandiganbayan, G.R. 185960, 2012) The Sandiganbayan has the ::iuthority to order the preventive suspension of an incumbent Senator charged with violation cf the provisions of RA 3019 or the Anti-Graft and Corrupt Practices Act. (Santiago vs. Sandiganbayan, G.R. 128055,2001)

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POLITICAL LAW GENERAL PRINCIPLES

IX. ADMINISTRATIVE LAW TOPIC OUTLINE UNDER THE SYLLABUS A. General principles B. Powers of administrative agencies · 1. Quasi-legislative (rule-making) power a. Kinds of administrative rules and regulations b. Requisites for validity 2. Quasi-judicial (adjudicatory) power a. Administrative due process · b. Administrative appeal and review c. Administrative res judicata 3. Fact-finding, investigative, licensing, and ratefixing powers C. Doctrines of primary jurisdiction and exhaustion of administrative remedies

Administrative Law part of public law that fixes the organization and determines the competence of administrative authorities and indicates to the individual remedies for the violation of his rights (Nachura, Outline Reviewer in Political Law 493 2015). • ' Scope of Administrative Law - (FEG-CP-GRB) 1. Fixes the administrative organization and structure of the government. 2. Executes or enforces that which is entrusted to administrative authorities (all those public officers and organs of the government charged with amplification, application, and execution of the law). 3. Governs public officers 4. Creates administrative agencies 5. Provides the remedies to those aggrieved by these agencies. 6. Governs judicial review 7. Includes Rules, regulations, orders and decisions made by adminisfrative authorities. 8. Includes the Body of judicial decisions/doctrines on any of the above. Plr ncloal Subdivisions LAW OF INTERNAL ADMINISTRATION

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LAW OF EXTERNAL ADMINISTRATION

Treats of the legal Concerned with the legal between relations between the relations government and its administrative authorities administrative officers, and private interests. and of the legal relations that that one administrative officer or organ bears to another. Classification As to source· LAW THAT CONTROLS ADMIN. BODIES

LAW MADE BY ADMIN. AUTHORITIES

Constitution, statutes, judicial decisions, E.O.s, j A.O.s, etc.

General regulations and particular determinations; constitutes delegations of power embodied in statutory administrative law, and imposing and constantly expanding body of law.

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POLITICAL LAW Adm:nlstrative Agencies

ose:

ADJECTIVE or PROCEDURAL ADMIN. LAW Establishes the procedure which an agency must or may follow in the pursuit of its legal purpose.

GENERAL ADMIN. LAW Part that is of a general nature and common to all, or most, admin agencies; chiefly, but not exclusively procedural law.

SUBSTANTIVE ADMIN. LAW Derived from same sources but contents are different in that the law establishes primary rights and duties.

SPECIAL or PARTICULAR ADMIN. LAW Part that pertains to particular agencies: proceeds from the particular statute creating the Individual agency.

Administration of G,>vernment v. Administration of Justice· ADMINISTRATION OF GOVERNMENT

ADMINISTRA110N OF JUSTICE

Administrative officers must determine what is the law in order to determine whether they are competent to act and if it is wise to act.

Work done consists in the decision of controversies between individuals and government officers, as to the applicability in the cases in question: all that judicial officers have to do is determine what law is applicable to the facts brought before them.

ADMINISTRATION

GOVERNMENT.

Refers to the aggregate of persons in whose hands the reins of · the government are entrusted by the people for the time being.

Institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a civilized state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them.

Definition . . Administrative agency - An agency exerc1s1ng. s~n_,e significant combination of executive, legislative and judicial powers. Manner of Creation 1. Established by the Cohstltution • If created by the Constitutbn its~lf, _it ~n only be . altered or abolished by the constitution itself. 2. Created by statute or law .. • Legislature may amend or repeal the law creating it, thereby affecting the agency created by it. 3. By authority of law This is a recognized exception to the principle of nondelegabillty of legl~lative power. As a result of the growing complexity of the modern society, it has become necessary to create more. and mo.re administrative bodies to help in the regu:at1on of lts ramified activities. Specialized in the particular fields assigned to them, they can dea: with the problems thereof with more expertise and dispatch than can be expected from the leglslature or the courts of Justice. This is the reason for the increasing vesture of quasi-legislative and · quasi-judicial powers in what is now not unreasonably called the fourth department of the government. (Solid Homes v. Payawal, G.R. 84811, 1989) Kinds of Administrative agencies (BIG GAP) : 1. Perform some BusinP.ss for the public (e.g. MWSS, PNR,NFA) · 2. Regulate businesses affected with public Interest (e.g.

LTFRB, ERB) 3.

4.

Offer some Gratuity, grant or special privilege (e.g. GSIS, SSS, Philippine Veterans Adminiatration) It is true that under Section 41 (n) of RA 8291 (the GSIS Law), GSIS is expressly granted the p~wer to adop~ a retirement plan and/or financial assistance for its employees, but a closer look at the pr~vision .readily shows that this power is not absolute. It rs qualified by the words "early," "incentive," and "for the purpose of retirement." The retirement plan must be an early retirement incentive plan and such early retirement incentive plan or financial assistance must be f?r th.a purpose of retirement. But, the retirement plan_ in this case is not such retirement plan, thus falls outside the powers granted to the GSIS. (GSIS v. COA, G.R.

162372, 2011) Seek to carry on certain functions of the Government (e.g. BIR, Bureau of Customs, Bureau of Immigration) 6. Seek to Adjust individual controversies because o}f some strong social policy Involved (e.g. NLRC, DAR 7. Seek under Police power to regulate private businesses and ind:viduals (e.g. SEC. MTRCB, Dangerous Drugs Board)

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The MMDA is a development authority created for the purpose of lay;ng down policies and coordinating with various agencies, organizations and the private sector, which may enforce, but not enact ordinances. RA 7924 does not grant the MMDA with the police power. let alone the legislative power, and that all its functions are administrative in nature. (MMDA v. Garin, G.R. 130230, 2005).

d.

Recall that administrative agencies are possessed of specialized knowledge iii. Procedural - Those which describe the method by which the ciQency will carry out its appointed functions iv. Internal - Those issued by a superior admlntsfratlve or executive officer to his subordinates for the proper and efficient administration of law.

Administrative agencies have powers and functions which may be administrative, investigatory, requlatory, quasilegislative, or quasi-judicial, or a mix of the five, as may be conferred by the Constitution or by statute. They have in fine only such powers or authority as are granted or delegated, expressly or impliedly, by law. And in determining whether an agency has certain powers, the inquiry should be from tho raw itself. But once ascertained as existing, the authority given should be liberally construed. (Soriano v, MTRCB, G.R. 165785, 2009) Limitations: 1. Validity of granting statue: completeness and sufficient standard tests 2. Constitutional protections: due process, equal protection and notice 3. Reasonableness 4. Notice 5. Statutory requirements for regulations

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Powers of Administrative Agencies 1. Discretionary - The power· or right conferred upon them by law to act officially under certain circumstances, according to the dictates of their own judgment and conscience, and not controlled by the judgment or conscience of others. 2. Ministerial - Nothing is left to discretion; a simple, definite duty arising under conditions admitted or proved to exist, and imposed by law; a duty performed ln response to what has been imposed by law under conditions specifled by law not being dependent upon the officer's judgment or discretion. POWERS OF ADMINISTRATIVE AGE:NCIES

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Legislative/Substantive Rule a. With force of law b. Needs notice. comment. a.nd publication (Chap 2. Book VII, Administrative Code and Art. 2, Civil Code) c. Examples: (PCS) i. Penal - Those that carry out penal or criminal sanctions for violation of the same. ii. Contingent - Those which determine when a statute will go into effect. Power to ascertain the happening of such facts may be delegated to administrative agencies iii. Supplementary - Those which only supply · details, also known as detailed legislation.

Subordinate Legislation A legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details thereof. In the same way that laws must have the benefit of public hearing, it is ge11erally required that before a legislative rule is adopted !here must be hearing. On the other hand, interpretative rules are designed to provide guidelines to the law which the administrative agency is In charge of enforcing. (CIR v. CA, G.R. No.119761, 1996citing Misamis Oriental Association of Coco Traders Inc. v, Dept. of Finance)

QUASI-LEGISLATIVE CRULEMAKING) POWER Authority delegated by Congress to the administrative body to adopt rules and regulations intended to carry out the provisions of a law, and implement legislative policy. This is a form of delegated legis:ation. Valid regulations have the force and effect of law.

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Exception: When rule affects third persons (Tanada v, Tuvera) Examples: (SIPl) i. Supplementary - Those which supply details, also known as detailed legislation. ii. Interpretative - Those that do no more than to interpret a statute. These are given weight and respect but are not conclusive to the courts.

Kinds of Agency Rules 1. Non-Legislative Rule a. No force of law b. No need for notice, comment and publication

Administrative issuances Administrative issuances partake of the nature of a statute and have in their favor a presumption of legality. As such, court cannot Ignore administrative issuances especially when, as in this case, its validity was not put in issue. Unless an aornlnistratlve order is declared invalid, court has no option but to apply the same. (Alfonso v. Land Bank of the Philippines, G.R. Nos. 181912 & 183347, 2016)

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Special Requisit~ Penal Rules: • (PFPO) 1. The law which authorizes the promulgation of rules and regulations must itself Provide for thEi imposition of a penalty for their violation; 2. The law must Fix or define such penalty; 3. The violation for which the rules and regulations impose a Penalty must be punishable under the law itself; and 4. The rules and regulations must be published in the Official Gazette or Newspaper of General Circulation and archived at the UP Law Center.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the adrnlnlstrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules on guidelines to be followed by their subordinates in the performance of their duties. (VFP v. Reyes,G.R.No. 1~5027,2006) LEGISLATIVE

Rule Publication KIND (Code: SIC

GRANT

PIP)

PUBLICAT ION REQUIRE MENT

Involves tho discretion to Only involves the determine what the law discretion to determine shall be how the law shall he enforced

NOTICE AND COMMENT

Cannot be delegated Suppleme ntary

Express or implied

Yes

lnterpretati

Express or implied

No

No

ve Contingent

Express

Yes

Y~s

Procedural

Express or Yes Implied

No

Internal

Express or implied

No

No

Penal

Express

Yes

Yes

QUASl·LEGISLA TIVE

Can be delegated

Yes/No

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According to the Administrative Code, 3 copies of every rule should be filed in the Office of the National Administrative Register (ONAR) of the UP Law Center. Failure to comply with this makes the administrative issuance ineffective & may not be enforced. (GMA v. MTRCB, G.R. 148579, 2007) This registration requirement is part of publication. Not all rules and regulations adopted by every government agency are to be filed with the UP Law Center. Only those of general or of permanent character are to be filed. Internal rules which are meant to regulate the personnel of the GSIS arc not subject to with the UP Law Center. (Board of Trustees v, Velasco, G.R. 17046, 2011).

Tests of Delegation: 1. Completeness test - The statute must be complete in all i\s terms and conditions when it leaves the legislature such that when it reaches the delegate, the 011ly thinu he will have to do is to enforce it. · 2. Sufficient standard test - The statute fixes a standard, mapping out the boundaries of the agency's authority to which it must conform. The law must offer a sufficient standard to specify the limits of the deleqate's authority, announce the legislative policy and specify the conditions under which it is to be implemented. The two tests must concur. If one or both are absent, any delegation that occurs is undue delegation of legi&lative powers.

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Exceptions (To The Rule Requiring Standards; When Not Required): (SPIRPE) _ 1. Handling of State property or funds 2. When the law does not Involve Personal or property rights 3. Matters of Internal administration 4. Power of the board to make Recommendation 5. Matters involving Privileges (liko use of property, engag:ng in profession) 6. Regulation or Exercise of police power to protect general welfare, morals and public policy

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Note: Still subject to reasonableness standard s,

All that is required for the validity of rules promulgated by administrative agencies is the filing of three (3) certified copies with the University of the Philippine Law Center. Within 15 days of filing, administrative rules become effective. Non-publication does not Invalidate the Department Order. (Quezon City PTCA Federation v, DepEd, G.R.No. 188720, 2016)

Nature of power of the Executive to adopt rules and regulations to execute or Implement the law The inherent power of the Executive to adopt rules and regulations to execute or lmplemer.t the law is different from the delegated legisl<Jtive power to prescribe rules. The inherent power of the executive to adopt rules to execute the law does not require any legislative standards

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for its exercise while the delegated legislative power requires sufficient legislative standards for its exercise. (Cervantes v. Auditor General, G.R. L-4043, ·1952). Appropriation The Administrative Code of 1987 expressly declares void a contract that fails to comply with the two requirements, namely: (1) an appropriation !aw funding the contract and (2) a certification of appropriation and fund availability. The clear purpose· of these requirements is to insure that government contracts are never signed unless supported by the corresponding appropriation law and fund availability. (PNR v. Kanlaon Construction Enterprises Co.· Inc., G.R. 182967, 2011). Requisites tor validity Rules in Rule-M
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Administrative rules mersly interpretative in nature When an administrative rule is merely interpretative in nature, its applicability needs nothing further than its bare issuance for it gives no real consequence more than what the law itself has already prescribed. When, upon the other hand, the administrative rule goes beyond merely providing for the means that can facilitate or render least cumbersome the implementation of the law but substantially adds to or increases the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard, and thereafter to be duly informed, before that new issuance is given the force and effect of law. (CIR v. Court of Appeals, G.R.No. 'I 19761, 1996) The DOH's power under the Milk Code to control information regarding breast milk vis-a-vis breast milk substitutes is not absolute, as the power to control does not encompass the power to absolutely prohibit the advertising, marketing, and promotion of breast milk substitutes. Neither the Milk Code nor the Revised Administrative Code grants the DOH the authority to fix or impose administrative fines. Without any express grant of power to fix or impose such fines, the DOH cannot provide for those fines in the RIRR. The DOH exceeded its authority by providing for such fines or sanctions in the RIRR. (Pharmaceuticals and Health Care Association of the Philippines v. Duque, G.R. 173034, 2007)

The Laguna Lake Development Authority has power to impose fines in the exercise of its function as a regulatory and quasi-judicial body with respect to pollution cases in the Laguna Lake region. (Public Hearing Committee of the Laguna Lake Development Authority v. SM Prime Holding, G.R. 170599, 2010). QUASI-JUDICIAL (.t,pJUDICATORY) POWER Administrative due process Also known as adjudicatory powers, it is the power of administrative authorities to make determinations of facts in the performance of their official duties and to apply the law as they construe it to the facts so found. It partakes of the judicial power, but is exercisea by a person other than a judge. The Presidential Electoral Tribunal (PET) does not exercise quasi-judicial functions. When the Supreme Court, as the PET, resolves a presidential or vicepresidential election contest, It performs what is essentially a judicial power. (Macalintal v. Presidential Electoral Tribunal, G.R. 191618, 2010). The classification of positions in career service is a quasilegislative, not a quasi-judicial, issuance. This distinction determines whether prior notice and hearing are necessary. It was an internal matter which did not need prior publication. It had been issued as an incident of the administrative body's power to issue guidelines for government officials to follow in performing their duties. (Abel:a v. CSC, G.R. 152574, 2004). The fact that the Toll Regulatory Board is exercising its administrative or executive functions such as the granting of franchises or awarding of contracts and at the same time exercising its quasi-legislative and/or quasi-judicial functions (e.g., rate-fixing), does not support a finding of a violation of due process or the Constitution, (Francisco, Jr., et al. vs. Toll Regulatory Board, G.R. ' 166910/169917 /173630/183599, 2010). It is . well settled that findings of fact of quasi-judicial agencies, such as the COA, are generally accorded respect and even finality by this Court, if supported by substantial evidence, in recognition of their expertise on the specific matters under their jurisdiction. (Reyna v. Commission on Audit, G.R. 167219, 2011 ). The doctrine of separate personality of a corporation finds no application in a government agency. Also, tre law states that expenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of the official or employee found to be directly responsible therefore. (Verzosa, Jr. v. Carague, G.R. 157838, 2011).

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Quasi.Jeaislative

v, auasi-iudicial: QUASI· LEGISLATIVE Express Implied (SIC PIP)

Grant

QUASIJUDICIAL

or Express 4.

Parties involved

All/ Sectors

Particular

Adversarial

No

Yes

Controversy

None

Exists

Notice Hearing

No

Yes.

Not applicable

Applicable

Time

Future

PasV Present

Publication

Depends on type of rule (SIC PIP}

Yes

Primary Exhaustion

and J./

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remedied through an Order giving petitioners the right to participate in the hearing of the MR. The opportunity granted by, technically, allowing petitioners to finally be able to file t!1eir comment in the case, resolves the procedural irregularity previously inflicted upon petitioners. (NASECORE v. ERC, G.R. 190795, ~011) The Board of Medicine can properly admit formal offer of evidence to prove that a person's kidneys were in their "proper anatomical locations" at the time she was operated and that the BOM shall determine the probative value thereof, if the original documentary evidence cannot be produced. The rules of evidence are mereiy the means for ascertaining the truth respecting a matter of fact. Rules of evidence are not strictly applied In proceedings before administrative bodies such as the BOM. (Atienza v. Board of Medicine, G.R. 177407, 2011)

Enforcement of decisions It must be in accordance with the manner prescribed by the statute, If there is no provision, resort to the courts is necessary for enforcement.

A.R.

Doctrines: 1. The essence of due process in administrative proceedings is the opportunity to explain one's side or seek ~ reconsideration of the action or ruling complam~d of. As long as the parties are given the opportunity to be heard before Judgment is rendered, the demands of due process are sufficiently met. What is offensive to due process Is the denial of the opportunity to be heard. Nothing is irregular in considering the investigation terminated and submitting the case for resolution based on available evidence upon failure of the respondent to file his counter-affidavit or answer despite giving him ample opportunity to do so. Moreover, Section 14, Article VIII of the 1987 Constitution need not apply to decisions rendered in administrative proceedings. Said section applies . only to decisions rendered in judicial proceedings. It would be error to hold or even imply that decisions of executive departments or administrative agencies are obliged to meet the requirements under Section 14, Article VIII. {Flores v. Montemayor, G.R. 170146, ,'2011} 2. A respondent in an administrative case is not entitled to be informed of the preliminary findings and recommendations; he is entitled only to a reasonable opportunity to be heard, and to the administrative decision based on eubstantlal evidence. {Velasquez v. CA, G.R. No. 150732, 2004) 3. There is no denial of due process if any irregularity in the premature issuance of a decision has been

Characteristics of Quasi-Judicial Proceedings (PJAC} 1. Adversarial in nature; every proceeding is adversary in substance if it may result ir. an order in favor of one person against another. 2. Such proceedings partake of the nature of Judicial proceedings if it involves taking and evaluation of evidence, determination of facts based upon evidence presented and rendering an order er decision supported by the facts proved. 3. Particular proceedmqs before an administrative aqency have been held Civil rather than criminal in nature. 4. The proceeding for forfeiture while administrative in character thus possesses a criminal or penal aspect. (Cabal v. Kapunan, G.R. L-19052, 1962).

Requisites of Quasi-Judicial Proceedings: (JD) 1. Jurisdiction (defined by Jaw/charter) - power and authority given by law to hear and decide a case· consists of lWO elements-jurisdiction over subject: matter arid over the person. Without jurisdiction, acts are void and open to collateral attack. a. Administrative agencies are tribunals of specialized or limited jurisdiction, which is dependent entirely upon the validity and the terms of the statutes reposing power in them. b. An administrative agenc-J cannot enlarge its own jurisdiction nor can jurisdiction be conferred upon an agency by parties before it. c. When a particular statute authorizes an administrative agency to act in a particular situation, it necessarily confers upon such agency authority to determine whether the situation is such as to authorize the agency to act; an Page 190 of 320

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POLITICAL LAW

administrative agency's determination as to its jurisdiction is not conclusive to the courts. · d. Expiration of a statute may be held not to deprive an administrative agency of jurisdiction to enforce the statute as to liabilities incurred while the statute was in force, where a general saving statute continues such liabilities. e. Administrative agencies are creatures of the law and they have no general powers but only such as conferred by law; where the law confines in an administrative officer the power to determine particular questions or matters upon facts presented, the jurisdiction of such office shall prevail over courts. f. In order for the Court to acquire jurisdiction over an administrative case, the complaint must be filed during the incumbency of the respondent. Once jurisdiction is acquired, it is not lost by reason of respondent's cessation from office. (Office of the Court Administrator v. Andaya, AM. RT J-09-2181,

Doctrines: 1. For as long as the parties were given fair and reasonable opportunity to be heard and to submit evidence in support of their arguments before judgment was rendered, the demands of due process are sufficiently met. (Casimiro v, Tandog G.R. 146137,

2005) 2. Procedural due process is the consti'.utional standard

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Due Process - Doctrine of primary jurisdiction. a. If the determination requires the expertise, specialized skills and knowledge of the proper administrative bodies because technical matters or intricate questions of facts are Involved, then relief must first be obtained in an administrative proceeding before remedy will be supplied by the courts. b. Failure to ccmply with this doctrine renders the action open to a motion to suspend pending referral of the issues to the administrative agency.

Administrative Due Process: (HIP DESK) 1. The right to a Hearing, which includes the right to present one's case and submit evidence in support thereof. However, a "trial-type" proceeding is not required. The essence is the opportunity to be heard. 2. The tribunal or body or any of its judges must act on its or his own Independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. 3. The decision must be based on the evidence Presented at the hearing or at least contained in the record and disclosed to the parties affected. 4. The Decision must have something to support itself. 5. The tribunal must consider the Evidence presented. 6. Evidence supporting the conclusion must be Substantial. · 7. The board or body should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can Know the various issues involved and the reasons for the decision rendered. (Ang Tibay v. CIR, G.R. L-46496, 1940)

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5. 6.

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demanding that notice and an opportunity to be heard be give;, before judgment is rendered. As long as a party is given the opportunity to defend his interests in due course, he would have no reason to complain; the essence of due process is In the opportunity to be heard. A formal or trial-type hearing is not always necessary. (Imperial v. GSIS, G.R. 191224, 2011) A decision is void for lack of due process if, as a result, a party is deprived of the opportunity to be heard. A void decision may be assailed or impugned at any time either directly or collaterally by means ot a separate action, or hy resisting such decision in any action or proceeding where it is mvoked. (Uy vs. Court of Appeals, G.R. 109557,. 2000) The rule requiring an administrative officer to exercise his own judgment and discretion does not preclude him from utilizing the aid of his subordinates in the hearing and reception of evidence. When an administrative agency acts as a collegiate body, its power and duties cannot be exercised by the members individually. Procedural due process is the necessity for notlce and an opportunity to be heard before judgment is rendered. As long as a party ts given the opportunity to defend his interests in due course, he would have no reason to complain, for it is this opportunity to be heard that makes up the essence of due process. (Catmon Sales v. Yngson, G.R. 179761, 2010) The essence of due process in administrative proceedings Is the opportunity to explain one's side or seek a reconsideration of the action or ruling complained of. (Antonio v. Villa, G.R. 114694, 2005) There is no denial of due process just because no cross-examination took place. What is Important Is that she was given the opportunity to do so. (Vertudes v. Buenaflor, G.R. 153166, 2005) In administrative proceedings, the filing of charges and g:ving reasonable opportunity for the person charged to answer the accusation against him constitute the minimum requirements of due process. (Cayago v. Lina, G.R. 149539, 2005) Some proceedings are instituted by simple ex parte applications. Others are instituted by filing of a charge or complaint by an aggrieved person. Under other statutes, particular admlnistratlve agencies may institute proceedings on their own initiative, motion, or complaint. Due Process requirements are usually in the statute, t:ut if none is provided, the Constitutional guarantee of due process of law must be upheld. (Notice, to enable

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POLITICAL LAW

a party to be heard and to present evidence, is ;1ot a information to govern action is taken which may mere technicality or a trivial matter in any judicial or future actions, have no affect the parties' rights quasi-judicial proceedings. The service of summons is -, parties, and are not and parties are entitled to a very vital and indisponsable ingredient of Du/3 · proceedings in which be present in person and Process). When an agency fails to afford previous action is taken against by counsel, participate in notice, it may be cured by subsequently giving the the hearing, and entitled to anyone. party an opportunity to be heard. Motion for be furnished a record of reconsideration is a means to cure the defect of notice. the proceedings. 12. Non-ming of any administrative charge against the accused preparatory to his dismissal, and therefore · . The filing of formal charges 'against the respondents the dismissal effected without any administrative without complying with the mandated preliminary complaint, violated the right of the accused to investigation (provided by Jaw) or at least giving the substantive and procedural due process. He is entitled respondents the opportunity to tomment violated their right to reinstatement and to payment of the salaries, · to due process. Accordingly, the formal charges are void allowances, and other benefits withheld from him by reason of his discharge from the service. (Calinlsan v. ab initio and may be assailed directly or indirectly at Roaquin, G.R. 159588, 2010) anytime. (Garcia v. Molina, G.R. 157383/174137, 2010) 13. The subsequent desistance by complainant does not free tho respondent from liability, as tho purpose of an A formal charge is a 'written speciiication of the charge(s) against an employee. While its form may vary, it generally administrative proceeding is to protect the public embodies a brief statement of the material and relevant service based on the time-honored principle that a public officer is a public trust. (Encinas v. Agustin Jr., facts constituting the basis of the charge(s); a directive for G.R. 187317,2013) the err.ployee to answer the charge(s) in writing and under 14. The Revised Rules on Administrative Cases in the Civil oath, accompanied by his/her evidence; and advice for the Service themselves provide that administrative employee to indicate in his/her answer whether he/she elects a formal investigation; and a notice that he/she may investigations shall be conducted without strict recourse to the technical rules of procedure and secure the assistance of a counsel of his/her own choice. evidence applicable to judicial proceedings. (Adalin v. (PAGCOR v. CA, G.R. 185668, 2011) Taninas, G.R. L-198682, 2013) 15. The dismissal of the criminal complaint does not affect In administrative proceedings, the complainant bears the onus of establishing, by substantial evidence, the the administrative case arising from the same incident avennents of his complaint. A complainant cannot rely on which gave rise to said criminal case. (Gabriel v. mere conjenctures and suppositions. (Sasing v. Ramos, A.M. P-06-2256, 2013) Gelboiingo, A.M. No. P-12-3032, 2013; Re: Letter Complaint of Merlita 8. Fabiana Against Presiding Justice Exceptions to Requirement of Notice And Hearing: (UTOS CLAPP) Andres 8. Reyes, A.M. No. CA-13-51-J, 2013) 1. Urgency of immediate action The AMLC's investigation of money. laundering offenses 2. Tentativeness of the administrative action and its determination of possible money laundering . 3. 'Right was previously Offered but not claimed offenses, specifically Its inquiry into certain bank accounts 4. Summary abatement of a nuisance per se allowed by court order, does not transform it into an 5. Cancellation of a passport of a person sought for investigative body exercising quasi-judicial powers. criminal prosecution Hence, Section 11 of the AMLA, authorizing a bank inquiry 6. Summary proceedings of Levy upon properties of a court order, cannot be said to violate SPCMB's delinquent taxpayer constitutional right to procedural process. (Subido Pagente 7. Replacement of a temporary or Acting appointee Certeza Mendoza and Binay Law Offices v. CA, G.R. No. 8. Preventive suspension of a public servant facing 216914,2017) administrative charges 9. Padlocking of filthy restaurants/ theaters showing Rules on adjudication (EO 292, Book VII) obscene movies 1. Compromise and Arbitratlon - every agency shall, in the public interest, encourage amicable settlement, lnvastiaation v. Hearin----.,--~~~------~---~'""'I compromise and arbitration. HEARING INVESTIGATION 2. All parties shall be entitled to notice and hearing; the notice shall be served at least 5 days before the date By government officials, There are parties and of hearing and shall state the date, time, and placo of which may be held in issues of law ana of fact to the hearing. . private are informal be tried and at the 3. Parties shall be given opportunity to present evidence proceedings to obtain conclusion of the hearing, and arqurnent on all issues. Page 192 of 320

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4. Rules on Evidence - May admit evidence commonly accepted by reasonably prudent men. 5. Right to cross-examine witnesses. 6. Agency may make judicial notice to any technical or

2. A petition for review shall be perfected within 15 days

scientific facts within in its specialized knowledge. The agency shall have the power to require the attendance of witnesses or the production of books, papers, documents and other pertinent data; may Invoke the aid of the RTC within whose jurisdiction the contested case falls. 8. Decision - every decision rendered by the agency in a contested case shall be in writing and shall state clearly and distinctly the facts and the law on which it is based; shall decide within 30 days following the submission. 9. Finality of Order - decision shall be final and executory 15 days after the receipt or a copy thereof. 10. Publication and Compilation of decisions - Every agency shall publish and make available for public inspection all decisions and final orders. It shall be the duty of the records officer of the agency to prepare a register or compilation of those decisions or final orders.

Controversies among Government Offices and Corporations All disputes of gover:'lment agencies and corporations are settled administratively in the manner provided by the Administrative Code. {EO 292, Book IV, Chap. 14)

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Perfection of Administrative Appeals Appeals shall be perfected within 15 days after the receipt of a copy of the decision complained of by the party adversely affected. Effect The appeal shall stay tne decision appealed from if the appellate agency does not olrect otherwise ..

Finality of Decision of Appellate Agency becomes final 15 days after receipt of the decision by the parties.

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Judicial Review Agency decisions shall be subject to judicial review. The action may be brought against the agency, its officers, and all indispensible and necessary parties.

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from receipt of the final administrative decision; 1 month's extension may be allowed.

Submission for Decision for Questions Questions of Fact and Law

Perfection of Appeal 1 .. Theappeal shall be perfected by filing with the agency within 15 days from receipt of copy; copies shall be served upon the agency and all parties of records.

of Law v.

QUESTIONS OF FACT AND LAW

QUESTIONS OF LAW Submitted to Secretary of Justice as AttomeyGeneral. His ruling shall be binding on all the parties concerned.

1.

2.

Administrative Appeal and Review Appeal an appeal from a final decision of the agency may be taken to the department head.

Action on Appeal The appellate agency may review record and receive additional evidences.

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LAW

Solicitor-General - if the dispute, claim or controversy involves only depanments, bureaus, offices, and other agencies of the National Government as well as the GOCCs. Secretary of Justice, in ull other cases not mentioned above.

The determination of factual issues may be made by arbitration panel composed of representatives from each parties, presided over by Secretary of Justice. General rule: the decision of Solicitor-General Secretary of Justice is binding and final.

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Exception: When the claim involves 1 million pesos, in which case, the dispute is appealed to the Office of the President. Administrative res judicata Decisions and orders of administrative agencies have upon their finality, the force and effect of a final judgment within the purview of the doctrine of res judicata. The extent of whether an administrative decision operates as res judicata also depends on the interpretation of the enabling statute. The application of the doctrine of res judicata is dependent upon the type of determination and proceedings. It is applicable in administrative actions that have been characterized as "adjudica\ory," "judicial," or "quasijudicial." On the other hand, it is inapplicable in administrative determinations which are of "administrative," "executive," "legislative," or "ministerial" nature.

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BAR OPERATIONS 2019 Example: The pnnciple of res judicata is applicable in labor relations proceedings which are "non-litigious and summary in nature without regard to legal technicalities obtaining in courts of law." (Rules and Regulations Implementing the tabcq Code, Sec. 5, Rule XIII, Book V).

purpose without a judicial warrant authorizing such action; usually without notice and hearing. (e.g. abatement of nuisance, summary restraint, levy of property of delinquent taxpayers)

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Not Applicable 1. When the question of citizenship is resolved by a court or an administrative body as a material issue in the controversy after a full-blown hearing. (Zita Ngo Burca v. Republic, G.R. 122226, 1998; United Pepsi Cola v. Laguesma, G.R. L-24252, 1973) 2. When wee Rereree awards the employee less than what the law provides (BF Goodrich v. wee, G.R. L-42319, ·1978) Principle of res judicata in the mode of "conclusiveness of judgment" The principle of res judicata in the mode of "conclusiveness of judgment" applies when the NLRC ruling was affirmed by the Court of Appeals. It was a judicial affirmation through a decision duly promulgated and rendered final and executory when no appeal vvas undertaken within the reglementary period The jurisdiction of the NLRC, which is a quasi-judicial body, was undisputed. Neither can the jurisdiction of the Court of Appeals over the NLRC decision be the subject of a dispute. The NLRC case was clearly decided on its merits; likewise on the merits was the affirmation of the NLRC by the Court of Appeals. With respect to the fourth element of identity of parties, we hold that there is substantial compliance. The parties in SSC and NLRC cases are not strictly identical. Jurisprudence however does not dictate absolute identity but only substantial identity. There is substantial identity of parties when there is a community of interest between a party in the first case and a party in the second case, even if the latter was not impleaded in the first case. (SSC v. Rizal Poultry and livestock Association, G.R. 167050, 2011) Determinative Powers: (DEEDS) 1. Directing powers • The power of assessment, make awards and corrective powers. 2. Enabling powers • Those that permit the doing of an act which the law undertakes to regulate and would be unlawful without govE?rnment approval. (e.g. Issuance of licenses to engage in a particular business) 3. Equitable powers - Those that pertain to the power to determine the law upon a particular state of facts. It refers to the right to make proper application of the rules of equity. (e.g. power to appoint a receiver, power to issue injunctions) 4. Dispensing powers • Exemplified by the authority to exempt from or relax a general prohibition, or authority to relieve from an affirmative duty. It differs · from licensing power since dispensing power sanctions a deviation from a standard. , 5. Summary powers - Those that apply compulsion or force against person or property to effectuate a legal

FACT-FINDING, INVESTIGATIVE, LICENSING AND RA TE-FIXING POWERS Investigatory Powers The power to inspect, secure, or require the disclosure of in.formati':m by means of accounts, records, reports, statements and testimony of witnesses. This power is implled and not inherent in adrnlnistrative agencies. (Sec. of Justice v. Lantion, G.R. No. 139465, 2000) Inherent v. lmPIII ed v. INHERENT Require disclosure books, etc.

of

Exoresse d: IMPLIED

EXPRESSED

1. Fact-finding 2. Visitcrial powers 3. Ocular inspection

I. Issue a subpoena a 2. Cite person in contempt 3. Search and Seizure 4. Adjudicate 5. Impose coercive measures

The rule is that findings of fact of administrative bodies, if based on substantial evidence, are controlling on the reviewing authority. (Reyna v. COA, G.R. 1672~9. 2011) The SEC Hearing Officer had the optimum opportunity to review the pieces of evidence presented before him and to observe the demeanor of the witnesses. Administrative decisions on matters within his jurisdiction are entitled to respect and can only be set aside on proof of grave abuse of discretion, fraud, or error of law. (Queensland-Toi
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The right to counsel under Section 12 of the Bill of Rights is meant to protect a suspect during custodial investigation. While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the rule under existing laws is that a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of petitioner's capacity to represent hersen, and no duty rests on such body to furnish the person being investigated with counsel. As such, the admissions made by petitioner during the investigation may be used as evidence to justify her dismissal. (Carbone! v. CSC, G.R. 187689, 2010)

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POLITICAL LAW

v. Rate Flxl no:

LICENSING Licensing is a judicial function.

RATE FIXING quasi-

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Quasi-legislative· If the rules and rates are meant to apply to all enterprises of a given kind throughout the country, prior notice and hearing is not required. (General Application) Quasi-judicial - If the rules and rates imposed apply exclusively to a particular party, based upon a finding of fact, prior notice and hearing is required. (Particular Application)

A license may not be withdrawn, except for a violation of pertinent laws, rules and regulation, or when public health and safety requires. An existing license shall not expire if the licensee makes a timely application for the renewa!. Judicial Recourse and Review General Rule: The courts accord groat weight and respect to factual findings of administrative bodies. · .\

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Exceptions: (FIG-SEC) · 1. The finding!; are vitiated by Fraud, mistake, illegality, collusion or imposition; 2. Where the procedure which led to the factual findings is Irregular; 3. When Grave abuse of discretion, arbitrariness or capriciousness is manifest and 4. The findings are not supported by Substantial evidence; 5. Where palpable Errors are committed; 6. When there is a Conflict in the factual findings. The determination of where, as between two possible routes, to construct a road extension is obviously not VJithin the province of the Court. Such determination belongs to the executive branch. There can be no judicial review of a question of executive policy. (Tortecampo v, MWSS, G. R. 188296, 2011) Doctrines: 1. Finality of Administrative Action - The decision of the tribunal must be final fir$! before it may be reviewed by the courts. 2. Primary Jurisdiction - Not concerned with judicial review but determines in some circumstances whether

4.

initial action should be taken by a court or by an administrative agency Exhaustion of Adminlstrntlve Remedies - Designed primarily to control the timing of judicial relief from adjudicative action of an agency. It is customarily applied to adjudication and not to rule-making. Ripeness for Review - The same as that of exhaustion of administrative remedies, except that it applies to the rule making and to administrative action which is embodied neither in rules or regulations nor in adjudication or final order.

DOCTRINE Of PRIMARY ADMINISTRATIVE JURISDICTION Cour:s cannot, and will not, resolve a controversy involving a question which is within tt·.e ju1 isdictlon of an administrative agency, especially where the question demands the exercise of sound administrative discretion · requiring the special knowledge, experience and services of the administrative agency to determine technical and intricate matters of fact. Relief must first be obtained in an administrative proceeding before a remedy will be supplied by the court, even if the matter is within the jurisdiction of a court. (Republic v. Martinez, G.R. No. 158253, 2007)

Exceptions to Doctrine of Primary Jurisdiction:

1. Congress does not intend that the issues be left solely to the administrative agency for Initial detennination; 2. When issues involve questions of law; and 3. When courts and administrative agencies have concurrent jurisdiction. (Republic v, Martinez, G.R. No.

158253,2007) The -Doctrine of Primary Jurisdiction does not apply in a case seeking to enjoin the Senate Committee from conducting further hearings against Senator Villar on the alleged double insertion of P200 million for the C-5 Road Extension Project in the 2008 General Appropriations Act. The issues presented here do not require the expertise, specialized skills and knowledge of respondent for their · resolution. On the contrary, the issues here are purely legal questions which are within the competence and jurisdiction of the Court, and not a11, administrative agency or the Senate to resolve. (Pimentel v. Senate, G.R. No. 187714, 2011) The Supreme Court may defer to the competence and expertise of the SEC if there are supervening events which could have substantially changed the factual backdrop of the case while it was pending before the Court. (Nestle v. Uniwide, G.R. 174674, 2010). However, complaints for criminal violations of the Securities Regulation Code must be filed with the SEC, not DOJ or the courts, because it is

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· POLITICAL LAW

~nsidered a specialized dispute. (Baviera v. Paglinawan, G.R. 168380, 2007). The court may raise the issue of primary jurisdiction motu proprio and its invocation cannot be waived by the failure of the parties to argue it, as the doctrine exists for the proper distribution of power between judicial and administrative bodies and not for the convenience of the parties. In such a case, the CO/Jrt may (1) suspend the judicial process pending referral of such issues to the administrative body for its view, or (2) if the parties would not be unfairly disadvantaged, dismiss the case w/o prejudice. (Euro-Med Laboratories Phil. v. Province of Batangas, G.R. 148106. 2006) DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES General Rule: An administrative decision must first be appealed to the administrative superiors up to the highest level before it may be elevated to a court of justice for review. It is a condition precedent that must be complied with. (Sps. Sadang v. CA, G.R. No. 140138, 2006) The premature invocation of a court's intervention is fatal to one's cause ot action. Exhaustion of administrative remedies is a prerequisite for judicial review. It ls a condition precedent which must be complied with. Where what is assailed is the validity or constitutionality of a rule or regulation issued by the administrative agency in the perforrnance of its quasi-judicial function, the assailing party must exhaust acminlsfratlve remedies before going· to court. However. if the rule or regulation was issued pursuant to the administrative agency's quasi-legislative function, a party need not exhaust administrative remedies. The determination of whether a speclfic rule or set of rules issued by an administrative agency contravenes the law or the constitution is withir. the jurisdiction of the regular courts. {Smart Communications v, NTC, G.R. No. 151908, 2003) Reasons: 1. To enable tt,e administrative superiors to correct the errors committed by their subordinates; 2. Courts should refrain from disturbing the findings of administrative bodies in deference to the doctrine of separation of powers; 3. Courts should not be raddled with the review of administrative cases; 4. Judicial review of admini trative cases is usually done through special civil actions which are available only if there is no other platn, speedy and adequate remedy. 5. Availment of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies

EXCEPTIONS: (OARNN JP LICO DRIED LPS Quo) 1. If it should appear that an irreparable Damage will be suffered by a party unless resort to the court is immediately made. 2. When the respondent is the Alter ego of the President 3. When no administrative Review is provided as a condition precedent for court action . 4. Where insistence on its observance would result in the Nullificatlon of the claim asserted 5. When there was No decision rendered 6. When there are special circumstances demanding immediate Judicial intervention 7. When the administrative remedy is Permissive or concurrent 8. When the question raised is essentially and purely Legal 9. When strong public Interest is involved 10. Where the issue raised is the Constitutionality of the statute, rule or regulation 11. Where it is a civil action for Damages 12. Where the officer acted in utter 'disreqard of Due process 13. When there is no other plain, speedy, adequate Remedy 14. When act complained of is patently Illegal 15. When the administrative body or the person invoking the doctrine is in Estoppel 16. When there is lonq-contlnued and unreasonable Delay 17. When the subject of controversy is private Land 18. When the corsroversv involves Possessory action involving public lands 19. When the claim involved is Small so that to require exhaustion would be oppressive and unreasonable 20. In Quo warranto proceedings A case where the issue raised is a purely legal question, well within the competence and the jurisdiction of the court and not the administrative agency, would clearly constitute an exception. Resolving questions of law, which involve the interpretation and application of laws, constitutes essentially an exercise of judicic'I power that is exclusively allocated to the Supreme Court and such lower courts the Legislature may establish. (Onqsuco v. Malones, G.R. 182065,2009) it bears stressing that the remedies of mandamus and prohibition rnay bs availed of only when there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. Moreover, being extraordinary remedies, resort may be had only in cases of extreme necessity where the ordinary forms of procedure are powerless to affo,d relief. Thus, ir,stead of immediately filing a petition with the CA, pP.titioners should have first brought the matter to the CSC which has primary jurisdiction over the case. (Cabungcal v. Lorenzo, G.R. 160367, 2009)

Page 196 of 320

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POLITICAL LAW

The special civil actions against administrative officers should not be entertained if there are superior administrative officers who could grant relief. (Dimson v. Local Water Utilities Administration, G.R. 168656, 2010)

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The validity and the enforceability of the "Contract of Agreement" entered into by tho parties are questions purely of law and clearly beyond the expertise of the ' Commission on Audit or the DPWH. (Vigilar v. Aquino, G.R. 180388, 2011)

DOCTRINE OF FINALITY OF ADMINISTRATIVE ACTION Courts are reluctant to interfere with actions of an administrative agency prior to its completion or finality. Absent a final order or decision, power has not been fully and finally exercised, and there can usually be no irreparable harm. (Mendiola v. CSC, G.R. No. 100671, 1993) Exceptions: (SPA DIVE) 1. To grant relief to preserve Status quo pending further action by the administrative agency; 2. Essential to the Protection of rifJhts asserted; 3. When Allowed by law; 4. When the order is not reviewable and the complainant will suffer great and obvious Damage if the order is carried out; 5. An Interlocutory order affecting the merits of a controversy; 6 .. An administrative officers acts in Violation of constitution and other laws and 7. To an order made in Excess of power, contrary to specific prohibitions in the statute.

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Appeal to the CA is allowed because a quasi-judicial agency is equivalent in rank with the RTC. (Rules of Court, Rule 43) CA has the discretion on whether to allow the appeal or not.

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Factual findings made by quasl-judleial bodies and administrative agencies when supported by substantial evidence are accorded great respect and even finality by the appellate courts. This is because administrative agencies possess specialized knowledge and expertise in their respective fields. As such, their findings of fact are binding upon this Court unless there is a showing of grave abuse of discretion, or where it is clearly shown that they were arrived at arbitrarily or in disregard of the evidence on record. The SSS and CSC found the eviclence for the complainants credible and proved that petitioner committed the acts complained of .. Moreover, the CA sustained these factual findings. The Court finds no reason to disturb these findings, and therefore adopts the same. (Japson v. Civil Service Commission, G.R.189479, 2011). Page 197 of 320

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BAR OPERATIONS 2019

X. ELECTION LAW

A. SUFFRAGE

UNDER

Suffrage - The right to vote in the elections. 1. />.s a Right - The expression of the sovereign will of the people. 2. As a Privilege- Not granted to everybody but to such persons as are most likely to exercise it for the purpose of the public good. It is subject to substantive and procedural requirements. . 3. . As a Duty -- which every citizen owes his country

TOPIC OUTLINE.

THE SYLLABUS

A. Suffrage 1. Qualification and Disqualification of voters 2. Registration of Voters 3. Inclusion and Exclusion Proceedings 4. Local and Overseas Absentee Voting 5. Detainee Voting B. Candidacy . 1. Qualifications and Disqualifications of Candidat(IS 2. Filing of Certificates of Candidacy a. Effect of Filing b. Substitution and Withdrawal of Candidates c. Nuisance Candidates d. Duties of the COMELEC C. Remedies and Jurisdiction In Election Law 1. Petition to Deny Due Course or C3nc61 a Certificate of Candidacy 2. Petition for Disqualification 3. Failure of Election, Call of Special Election 4. Pre-proclamation Controversy 5. Election Protest 6. Quo Warranto

The right to vote is different from the right to register. A person may register even before he is 18 years old, but must be at least 18 years old on the day of the election. Election Election is the means by which the people choose their officials for a definite and fixed period and to whom they entrust for the time being the exercise of tile powers of the government. (Garchitorena v. Crescini, 39 Phil. 258) In elections, the first consideration of f;Very democratic polity is to give effect to the expressed will of the majority. Nature of Suffrage

1.

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It is a right created by law, not a natural right and an expression of the sovereign will of the people. 2. It is a prr,ilege because its exorcise is not granted to everybody but to t'1e persons or class of persons as are most likely to exercise it for the purpose of publlc good. Twc-Fold Object of Suffrage

1. To enable the people to choose their representatives; 2. To determine their will on questions submitted to them through plebiscite, referendum, initiative and recall

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Regulation of Suffrage Congress has unlimited power to er.act laws relative to the right of suffrage and in the exercise of police power, to suppress whatever evils may be incident to the election of public officers.

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Theory of Popular Sovereignty

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The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. (CONST. Art. II, Sec. 1)

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Scope of Suffrage

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Referendum - power of the electorate to approve or reject legislation through an election called for the purpose

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-----------------------------------------------------------------------·~------~ Recall - it is the termination of official relationship of right to vote is reacquired upon expiration of five (5)

2.

a local elective official for loss of confidence prior to the expiration of hi,:; term through the will of the electorate

years after service of sentence.

2. Any person who has been adjudged by final judgment

3.. Initiative - it is the power of the people to propose . amendments to the Constitution or to propose and enact legislations through an election called fer the purpose. It is the people power feature of the Constitution. . 4. Plebiscite - it is the electoral process by which an initiative on the Constitution is approved or rejected by the people. It is also the means by which the voters in affected areas consent or object to the change in the form of local government. .

5.

Election - it is the choice or selection of candidates to public office by popular vote through the use of the ballot. Specifically, it may refer to the conduct of the polls, including the listing of voters, the holding of the electoral campaign and the casting and counting of ballots and canvassing of returns. .

Kinds of Election 1.

2.

Regular or General: provided by law for the election of officers either nation-wide or in certain subdivisions thereof, after the expiration of the full term of the former officers; Special: one held to fill a vacancy before the expiration of the term which the incumbent was elected ·

Election Period

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Unless otherwise fixed by the Commission in special cases, the election period shall commence 90 days before the day cf election and shall end 30 days thereafter. (CONST. Art.lX-C, Sec.9; B.P. Big. 881)

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Qualifications (CD R2 18): 1. ~itizen of the Philippines 2. Not .Qisqualified by law 3. Besident of the Philippines for at least 'i YEAR 4. ,Resident of the place wherein he proposes to vote for at least 6 months immediately preceding the election 5. At least 18 years old

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Note: No literacy, property, or other substantive requirement can be imposed on the exercise of suffrage --:..

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NOTE: These qualifications are continuing requirements. Congress may not add qualifications but can provide for procedural requirements and disqualiflc.ations. However, the disqualifications must not amount to qualifications All these disqualifications presuppose that the person was once qualified, but due to an intervening event, the person became disqualified. The Congress cannot add disqualifications which can be characterized as a prior restraint. Dual Citizenship Law - Former natural-born Filipino citizens who acquired foreign citizenship through naturalization are deemed not to have lost their Philippine citizenship under conditions provided in this act. Derivative Citizenship - The unmarried child, whether legitimate, illegitimate, or adopted, under 18 years of age, of those who re-acquire Philippine citizenship under the Dual Citizenship Law shall be deemed citizens of the Philippines.

1. QUALIFICATION AND DISQUALIFICATION OF VOTERS ·•,

3.

by a competent court or tribunal of having committed any crime involving disloyalty to the duly constituted government such as REBELLION, SEDITION, VIOLATION OF THE ANTI-SUBVERSION AND FIREARMS LAWS, OR ANY CRIME AGAINST NATIONAL SECURllJY a. For (1) and (2): b. Disqualification may be removed by plenary pardon or amnesty. c. Reacquisition of the right to vote upon expiration of 5 years after service of sentence. Insane or incompetent persons as declared by competent authcrity.

Grounds for Disqualification to Vote: 1. Any person who has been sentenced by final judgment to suffer imprisonment for not less than one (1) year, unless pardoned or granted amnesty. However, the

, Requirement for Naturalized Citizens: To vote - swear an oath of allegiance. To be elected to public office - renounce foreign citzenship. To be appointed to public office - swear an oath of allegiance to the Philippines and renounce foreign citizenship. Residence - One's domicile or legal residence. It is where a party actually or constructively has his permanent home, or where he, no matter where he may be found, eventually intends to return and remain. Residency Requirements: Domicile - This is in reference to the 1-year residency requirement in the Philippines.

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Elements: (VARP) 1. fhysical presence in the country 2. Intention to Remain 3. Intention to Abandon the old domicile 4. It must be Yoluntary, must concur. Note: All elements must concur. Temporary Residence - This is in reference to the 6month residency requirement in the place where one wants to vote. In this case, residence can either mean domicile or temporary residence.

shown that a registration requirement rises to the level of a literacy, property or other substantive requirement as contemplated by the Framers of the Constitution-that is, . one which propagates a socio-economic standard which is bereft of any rational basis to a person's ability to intelligently cast his vote and to further the public goodthe same cannot be struck down as unconstitutional.

(Kabataan Partylistvs. COMELEC, G.R. 221318, 2015) The public has been sufficiently apprised of the implementation of RA 10367, and its penalty of deactivation in case of failure to comply. Thus, there was no violation of procedural due process. (Kabataan Partylist

To successfully effect a transfer of domicile, one .nust demonstrate: , • An actual removal or change of domicile; • A bona fide intention of abandoning the former place of residence and e~tablishlng a new one; and • Acts which correspond with that purpose .

vs. COMELEC, G.R. 221318, 2015)

There must be animus manendi coupled with animus non

1.

revertendi.(Asistio v. Canlas, G.R. 191124, 2010). 2, REGISTRATION AND DEACTIVATION Registration - It does not confer the right to vote; it is just a condition precedent to the exercise of the right. · It is the act of accomplishing and filing of a sworn application for the registration by a qualified voter before the election officer of the city or municipality wherein he resides and induding the same in the book of registered voters upon approval by the Election Registration Board (ERB).

(R.A. No. 8189, Sec. 3)

New System m Registration - Continuing registration of voters whereby application for registration of voters shall be conducted daily in the office of the Election Officer during regular office hours and all applications for registration shall be heard and processed on a quarterly basis by the Election Registration Board. List of Voters It refers to an enumeration of names of registered votersin a precinct duly certified by the Election Registration Board for use in the election. (RA No 8189) No Bio-No Boto Biometrics - refers to a quantitative analysis that provides a positive identifica'.io,, of an individual such as voice photograph, fingerprint, signature, iris, and/or such othe~ identifiable features. (Mandatory Biometrics Voter

Registration, sec. 2(b))

However, the power of COMELEC to restrict a citizen's right of suffra;:ie should not be arbitrarily exercised. (Timbol

vs. COMELEC, G.R. 206004, 2015) Who shall submit for biometrics registration? New Voters -

COMELEC

shall

implement

a

mandatory biometrics registration system 2. Registered voters whose biometrics have not been captured Validation It is the process of taking the biometrics of registered voters whose biometrics have not yet been captured. It shall be conducted by the City or Municipal Election Officer. Registration of llliterates/Persor1s With Disabilities Illiterate or PWD voters may register with the assistance of the. Elaction Office, or any member of an accredited citizen's arms; application for registration may be prepared by any relative within the fourth (4th) civil degree of consanguinity or affinity or by the Election Officer or any member of an accredited citizen's arms using the data supplied by the applicant. (R.A. No. 8189, Sec. 14)

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Disqualifications to Register as Voter The same grounds for disqualifications for suffrage. 1. Sentence by final judgment to imprisonment of at least 1 year 2. Conviction by final judgment of any of the following crimes: a. crime involving disloyalty to the government (i.e rebellion, sedition) b. firearms law c. crimes against national security 3. Insanity or incompetence declared by competent court

The biometrics registration requirement is not a "qualification" to the exercise of the right of suffrage, but a mere aspect of the reqistratlon procedure, of which the State has the right to reasonably regulate. umess it is Page 200 of 320

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POLITICAL LAW for the annulment of a book of voters witr. the COMELEC. Last day for filing is within 90 days before an election.

When registration not allowed: 1. 120 days before regular election 2. 90 days before special election Each precinct shall have no more than 200 voters and shall comprise contiguous and compact territories except when precincts are clustered. No Election Officer shall hold office In a particular city/municipality for more than 4 years. COMELEC has the authority to effect transfer. Can COMELEC resolution?

change

registration ·

period

by

. No. The period within which voters may register to vote is set by law and cannot be changed by mere resolution of the COMELEC. Book of voters - Classified as permanent whereby each precinct shall have a permanent list of all registered voters residing within the territorial jurisdiction of that precinct.

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Grounds for Deactivation: (IDl-2LE) Those which would disqualify you as a voter: Convicted by final judgment to suffer Imprisonment of not less than 1 year Disloyalty Insanity Others: 1. Loss of citizenship 2. Failed to vote for 2 successive preceding regular · elections 3. Registration was ordered Excluded by the court Post-Approval Remedies: (AEI) Petition for Inclusion Annulment of Book of Voters Petition for gxclusion

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Guidelines (STERN)

Deactivation - Removal of the registration records of certain persons from the corresponding precinct book of voters and placing the same in tile Inactive file, properly marked "deactivated" and dated in indelible ink, after entering the cause of deactivation. (R.A. No. 8189, Sec. 27)

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Change of Residence (To Another Municipality or City) Any registered voter may apply with the Election Officer of his new residence for the transfer of his registration · records. The application shall be subject to notice and hearing and approval of the ERB. (R.A. No. 8189, Sec. 12) Reactlvation of Registration

Alteration of Book Of Voters: (DECANT) 1. Qeactivation/Reactivatlon 2. Exclusion/lncluslon 3. ~ancellation of registration in case of death 4. Annulment of book of voters 5. ,Mew voters 6. Iransfer of residence

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Grounds for Annulment of Book of Voters (S2NF312B): 1. ,Not prepared in accordance with law 2. Prepared through: • fraud • forgery • force • Intimidation • Impersonation • §.ribery • .§imilar irregularity • Contains data that are .§.totistically improbable

Annulment of book of voters -A voter, election officer, or duly registered political party may file a verified petition

Voter whose registration has been deactivated may file with the Election Officer a .§.worn application for reactivation of his registration in the form of an affidavit stating that the grounds for the deactivation no longer exist; 2. Any _!ime but not later than 120 days before a regular election and 90 days before a special election; 3. Electior. officer shall submit said application to the ERB for appropriate action; 4. In case the application is approved, the Election officer shall retrieve the registration record from the inactive file and include the same In the corresponding precinct book of voters 5. Loe2I heads or representatives of political parties shall be properly nnotifled on approved applications 3. 1.

INCLUSION AND EXCLUSION PROCEEDINGS

The municipal and metropolitan trial courts shall have · original and exclusive jurisdiction over all matters of inclusion and exclusion of voters from the list in their respective municipalities or cities. 2. Decisions may be appealed to the RTC within 5 days from receipt of notice of decision. 3. RTC will decide the appeal within 1 O days. Decision is final and executory. ·. 4. Any voter, candidate or political party that may be affected by the proceedings may intervene.

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INCLUSION CASES

EXCLUSION CASES

May be filed any time, except 105 days before regular elections or 75 days before special elections

May be filed any time, except 100 days before regular elections or 65 days before special elections

Grounds: Grounds: 1. Application for Not qualified or possessing registration has been disqualification disapproved by the board Flying voters 2. Name has been Ghost voters stricken out Requires a sworn petition LOCAL AND OVERSEAS ABSENTEE VOTING Overseas Absentee Voting Act (RA 9189) Ensures equal opportunity to all qualified citizens of the Philippines abroad to exercise their right to vote in the national elections. Domestic Absentee Voting Public officials stationed in places other than the place where he is a registered voter are allowed to vote in tho place of their work. (e.g. police officers, military personnel, school teachers). Overseas Absentee Voting - Qualified Filipinos abroad may be allowed to vote under a system congress will provide. Qualifications of Overseas Absentee Voter under RA

9189:11 (CARA-18) 1.

Filipino C,itizen 2. At least!§. years of age 3. free from disqualifications 4. Must file an ti_ffidavit expressly declaring: a. Intention to resume actual, physical, permanent residence within 3 years from approval of registration b. Has not applied for citizenship in another country 5. Begistered overseas absentee voters 6. Has an Af)proved application to vote in absentia Grounds for Disqualification under RA 9189: (12DRC) 1. Sentenced by final judgment to suffer !rnprisonment not less than 1 year. 2. Adjudged by final judgment by a competent court of having committed any crime involving Qisloyalty to the duly constituted government (e.g., Rebellion or crimes against natio.tal security). a. For ( 1) and (2): 11

i.

Disqualification may be removed by plenary pardon or amnesty Ii. Reacquire the right to vote upon expiration of 5 years after service of sentence 3. Insane or incompetent persons as declared by · competent authority. 4. Those who have lost their Fiiipino ~itizenship. 5. · Those who have expressly Benounced their Philippine citizenship and who have piedged allegiance to a foreign country. 6. An Immigrant or permanent resident, unless he executes an affidavit stating and expressly declaring: a. Intention to resume actual, physical, permanent residence within 3 years from approval of registration. b. Has not applied for citizenship in another country. Act v. Effect ACT

EFFECT

Fallure to undertake affidavit

Removal of name from the list and permanent disqualification

Failure to undertake affidavit yet voted

lmprlsonment of not less than 1 year

Failure to resume residency

Removal of name from list

Failure to resume residency yet voted

Imprisonment of not less than 1 year

A former natural-born Filipino citizen who has reacquired Filipino citizenship under the Dual Citizenship law may vote .even without the required (six months) residence, provided the person files the affidavit as required In the Absentee Voting Law. (Lewis v COMELEC, G.R. 162759,

2006).

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DETAINEE VOTING Detainee voting (either through the special polling place inside jails or escorted voting) may be availed of by any registered detainee whose registration record is not transferred I deactivated I cancelled I deleted.

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Detainee Any person: 1. confined in jail, a. formally charged for any crime/s and b. awaiting/undergoing trial; or

The requirement of actual residency is dispensed with. Page 202 of 320

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ATENEO CENTRAL BAR OPERATIONS 2019 2. serving a sentence of imprisonment for lese than one (1) year; or 3. whose conviction of a crime involving disloyalty to the duly constituted government such as rebellion, sedition, violation of the firearms laws or any crime against national security or for any other crime is on appeal (COMELEC Resolution No. 9371 ); Escorted Voting This is a voting mechanism for 1. detainee voters who are residents/ registered voters of municipalities/cities other than the town/city of incarceration; and/or for 2. detainee voters in jail facilities where no special polling places are established (COMELEC Resolution No.

POLITICAL LAW Manila In a sealed envelope. The votes appearing . in said ballots for national positions, If any, shall be counted. A Special Board of Election Inspectors for counting shall be established for the purpose.

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POLITICAL PARTIES 1.

JURISDICTION OF POLITICAL PARTIES

THE

COMELEC

OVER

Necessity of Registration To acquire juridical personality, to qualify for accreditation, and to be entitled to the rights of political parties, a political party must be registered with COMELEC. (Omnibus Election Code, sec, 20)

9371). Registration and Accreditation NOTE: The pertinent provisions of Comelec Resolution No. 9149, promulgated on February 22, 2011 and other Resolutions as far as the registration period: qualifications and disqualifications of applicants for registration; the procedures for filing, processing and hearing of applications; and notices and publication requirements are adopted (COMELEC Resolution No. 9371). Reckoning Period of Age and Residence Detainees Those who snail be eighteen years of age on the day of election and/or are committed inside the detention centers for at least six (6) months immediately prscedlnq the election day may be reqistered as a voter (COMELEC Resolution No. 9371 ).

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Detainees who are already registered voters may apply for transfer of registration records as warranted by the circumstances.

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DETAINEE VOTERS MAY VOTE FOR NATIONAL POSITIONS ONLY In the case of Aguinaldo v. New Bi/ibid Prison, G.R. No. 221201, April 19, 2016,. the Supreme Court issued a Temporary Restraining Order enjoining the COMELEC from enforcing COMELEC Resolution No. 9371 on the local level. This means that detainee voters may only vote for the national positions.

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a. Registration is the act that bestc:wsjuridical personality for purposes of our election laws; accred'tatton , on the other hand, relates to the privileged participation that our election laws grant to qualified registered parties. b. Accreditation can only be granted to a registered political party, organization or coalition; stated otherwise, a registration must first take place before a request for accreditation can be made . Once registration has been carried out, accreditation is the next natural step to follow ( Magdaia Para sa Pagbabago v. COMELEC, G.R. No. 190793, 12 June 2012 ). COMELEC has the power to: • Register political partles, organizations, or coalitions, and the authority to cancel the same on legal grounds • En Banc has the authority to direct a hearing be conducted on the petition for cancellation of registration of the party list. However, HRET has the jurisdiction for contest relating to the qualifications of nominee or representative. (Alliance for Barangay Concerns Party List v, COMELEC, G.R. 193256, 2011) Issue of validity or invalidity of the expulslon The validity or invalidity of the expulsion of a political party's officers is purely a membership issue that has to be settled within the party. It is an internal party matter over which COMELEC has no jurisdiction. It may intervene in disputes internal to a party only when necessary to the discharge of its constitutional functions, such as resolving an intra-party leadership dispute as an incident of its power to register polltical parties (Atienza v, COMELEC, G.R. 188920, 2010; Alcantara v. COMELEC, G.R. 203646, 2013).

In pursuant to this, the COMELEC issued COMELEC Resolution No. 10112, amending Resolution No. 10057. This provides that: The Board of Election Inspector (BEi) shall instruct the DV, in clear terms, that pursuant to the TRO, he or she can only vote for national candidates namely, candidates for Pres., VP, Senators and Party list, All ballots that ccntain votes for local positions shall be separated and transmitted to COMELEC Page ~O~ of 320

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REGISTRATION The following political parties cannot be registered (UfC-R} Religious sects Thpse which seek to achieve their goals through Y.nlawful means Those which refuse to adhere to the Constitution Those which are supported by any foreign government. ( 1 ~87 Constitution, art. IX-C, sec. 2(5)). Effect when party fails to obtain at least 10% votes case in constituency· . Registration will be forfeited when at least 10% of the votes cast in the constituency In which It nominated candidates is not obtaineo (Omnibus Election Code, sec. 60j Party-list System A social justice tool designed not only to give mere in law to the great masses of our people who have less in life, but, also to enable them to become veritable lawmakers empowered to participate directl'.I in the enactment of laws designed to benefit them. Alms and Purposes: 1. Broaden the base of candidates 2. :Encourage multi-party system 3. :Ensure party loyalty 4. 'Promote proportional representation I

Congress cannot provide for a two-party system because: 1. :This violates the freedom of association as provided in. the Bill of Rights. . 2. 1The Constitution mandates that the Phllippine party system shall be multi-party, open and free. I

Poll,tlcal Party - An organized group of persons pursuing the same ideology, political ideas or p!atforms of govf rnment including its branches and divisions. Criteria to Determine.Type of Political Party (021RA): • !:stablished .Becord of said parties showing in past ~lections • Number of Incumbent elective officials • Identifiable political Qrganizations and strengths • ,Ability to fill and complete slate of candidates • ~her analogous circumstances (RA 7166, sec. 26}. . Types of Parties: 1. Non-Registered Parties 2. RegisterE.:d Parties . Dominant Majority - Entitled to a copy of ER b. Dominant Minority - Entitled to a copy of ER c. Top 3 - Entitled to appoint a principal watcher > and a copy of the COC d. Bottom 3 - Entitled to appoint a principal watcher

a.

National Party ..:..._ Its constituency is spread over the geographical territory of at l~ast a majority of the regions. Regional Party - Its constituency is spread over the geographical territory of at least a majority of the cities and provinces cornprisinq a region. Sectoral Party - An organized group of citizens whose principal advocacy pertains to the special interests and concerns of the following sectors: · 1. Labor 2. Fisher folk 3. Peasant 4. Urban poor. 5. Indigenous 6. Cultural communities 7. Youth 8. Women 9. Handicapped 10. Elderly 11. Overseas workers 12. Veterans 13. Professional workers Unique Characteristics of the Philippine Party-List System: Only In-House • The proportional representation er party-list · system is only available in the House of Representatives. • Plurality formula is used for other elective officials. The 20% Allocation - The combined number of all partylist representatives shall not exceed 20% of the total membership of the House of Representatives, including those elected under the party list. However. this only prescribes a ceiling and is not considered mandatory. {

No. of seats. available to Party-List Reps = (No. of seats available to District Reps/0.80) X 0.20 Two Votes . 1.· 1st vote - For the district representative 2. 2nd vote - For the party-list representative (but it is the name of the party that is indicated in the ballot) The 2% Threshold and 3-Seat Limit 1. The parties shall be ranked from the highest to lowest based on t.he number of votes they garnered. 2. To be entitled to one qualifying seat, a party must obtain 2% of the total ballots cast for qualified party-list candldatos. 3. Votes cast for a party which is not entitled to be voted for should not be counted. The votes they obtained shall be deducted from the canvass of the total votes for the party-list. .

Page 204 of 320

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POLITICAL LAW

4. Rounding-off is not allowed. 5. Parties other than the 1st party (the party that obtained the highest number of votes based on plurality) may be entitled to additional seats based on the following formula: No. of votes of party (No. of votes of 1st party x no. of seats of 1st party Each party is shall be entitled to not more than three se~s. The two percent threshold in computing for the additional seats is unconstitutional, The continued application of the two percent threshold in the application of additional seats in proportion to their total number of votes until all the additional seats will frustrate the attainment of the permissive ceiling that twenty percent of the members of the house of representatives shall consist of party-list representatives (BANAT v. Comelec, G.R. 179271, 2009). Section 6(8) of RA 'i941 provides for two separate grounds tor delisting; these grounds cannot be mixed or combined to support delisting: and the disqualification for failure to garner 2% party-list votes in two preceding elections shoeld now be understood, in light of the Banal ruling, to mean failure to qualify for a party-list seat in two preceding elections for the constituency in whiC:1 it has registered. (Philippine Guardians v. COMELEC, G.R. 190529, 2010).

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Party-list groups garnering less than 2% of the party-list votes may qualify for a seat in the allocation of additional seats depending on their ranking in the second round. The continued operation of the two-percent threshold was deemed "an unwarranted obstacle to the full implementation of Section 5(2), Article VI of the Constitution and prevents the attainment of the "broadest possible representation of party, sectoral or group interests in the House of Representatives," and has been declared ·unconstitutional. The 20% share in rspresentatlon may never be filled up if the 2% threshold is maintained. In the same vein, the maximum representation will riot be achieved if those party-list grouµs obtaining less than one percentage are disqualified from even one additional seat in the second round. (Aksyon Mag:;asaka-ParlidoTinig ng Masa (AKMA-PTM) vs. COMELEC, G.R. 207134, 2015) Qualified Organizations (Along Paglaum v. COMELEC, G.R. 203766, 2013) 1. Sectors enumerated in the Constitution must be marginalized and underrepresented • Only parties and organizations that actually and truly represent the underrepr€sented and marginalized constituencies which are enumerated in the Constitution can participate. • At least a majority of its members should belong to the marginalized.

•

The party must not be an adiunct of, or a project organized or entity funded or assisted by the government. • The nominee must be able to contribute to the formulation of appropriate legislation that will benefit the whole nation. o Must be organic member not synthetic member • General averments that an organization represents the marginalized sectors must be substantiated and shown through its constitution, history, platform, and track record. It must demonstrate that in case of conflict of interests, it is likely to choose the interest of the sectors. ·, 2. Non-traditional • National parties; •. Regional parties Must be incapable of successful participation in district elections. Notes: The inspiration of the system is social justice understood in both the economic and political sense. Participation in the system is not limited to the sectors enumerated by the Constitution or lew. The enumerated sectors must be economically marginalized because that is what disables them from successfully engaging in the political struggle. The national and regional organizations need not be economically marginalized but they must be politically or ideologically disadvantaged or marginalized. Traditional political parties, if they wish to participate, must renounce participation in district elections. Branches of political parties, if they wish to participate, must be separately incorporated and be independent of their originc,11 parties. COMELEC must be guided by what the SC said: "The common denominator between sectoral and non-sectoral parties is that they cannot expect to win in legislative district elections but they can garner in nationwide elections, at least the same number of votes that winning candidates can garner in legislative district elections. The party-Ist system will be the entry point to membership in the House of Representatives for both these nontraditional parties that could not compete 1n legislative district elections." (Atong Paglaum v. COMELEC, G.R. No. 203766, 2013). j

Qualifications of a Party-List Nominee: (ABC-RV-25) A natural-born ~itizen of the Philippines A registered yoter A Resident of the Philippines for a period of not less than 1 year immediately preceding the election day Able to read and write A §.ona fide member of the party he seeks to represent for at least 90 days preceding election day (need not be marginalized persons) At least 25 years of age on election day. Page 205 of 320

ATENEO CENTRAL BAR OPERATIONS 20·19

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In case of the youth sector, he must be at least 25 but not more than 30 years of age on the day of the election. Any youth sectoral representative who reaches the age of thirty 30 during his term shall be allowed to continue in office until the expiration of his term. A list with 5 names should be submitted to COMELEC as to who will represent the party in the Congress. Ranking in the list submitted determines who shall represent party or organization. Disqualification of Party-Lists: (F2V2R-COPS) 1. foreign party or organization 2. Receives foreign support 3. Advocates ViolP.nce 4. Yiolates electicn laws 5. B.eligious sect, denomination, organization 6. £eased to exist for at least 1 year 7. Failed to Qbtain at least 2% of the votes cast under the party-list system in the 2 preceding elections 8. Failed to farticipate In the last 2 preceding elections 9. Untruthful .§.tatements in its petition Cancellation of reqistratlon of a party list may be done by the COMELEC motu p,·oprio or upon verified complaint of any interested party after due notice and hearing. COMELEC may not, through a resolution setting the deadline for registration of political parties, differentiate between political parties, on the one hand, and political organizations and coalitions, on the other. There is no substantial distinction among these entities germane to the act of registration that would justify creating distinctions among them in terms of deadlines. A petition registration as a political coalition filed beyond that deadline Is time-barred, and the COMELEC resolution granting that petition constitutes grave abuse of discretion. · (Liberal Party v, COMELEC, G.R. 191771, 2010).

for

Section 15 of RA 7941 provides that a nominee . of a sectoral party who changes his sectoral affiliation within the same party is not eligible for nomination under the new sectoral affiliation, unless such change occurred at least -, six months before the elections. Section 15 clearly covers changes in both political party and sectoral affiliation within the same party. (Amores v. HRET, G.R. 189600, 2010). Moral disapproval is nor a sufficient governmental interest to justify exclusion of homosexuals from participation in the party-list system. (Ang Laci/ad LGBT Party v. COMELEC, G.R. 190582, 2010).

LAW

2. any of the enumerated grounds for disqualification in Section 6, R.A. No. 7941 exists (Dayao v. COMELEC, G.R. 193643, 2013). Each accredltatlon handed by the COMELEC to party-list organizations can be likened to the franchise granted by Congress, thru the SEC, to corporations or associations created under the Corporation Code. A party-list organization, like a corporation, owes its legal existence to the concession of Its franchise from the State, thru the COMELEC. Being a mere concession, it may be revoked by the granting authority upon the existence of certain conditions. The fact that a franchise/accreditation may be revoked means that it can never be final and conclusive (Dayao v. Comission on Elections, G.R. 193543, 2013) The laws, rules and regulations violated to warrant cancellation under Section 6 must be one that is primarily imputable to the party itself and not one that is chiefly confined to an Individual member or its nominee. ( COCOFED-.0hilippine Coconut Producers Federation, Inc. v. Commission on Elections, G.R. 207026, 2013). The disqualification of some of the nominees shall not result in the disqualification of the party-list group "provided that they have at least one nominee who remains qualified." ( C:OCOFED-Phi/ippine Coconut Producers Federation, Inc. v, Commission on Elections, G.R. 207026, 2013). Dellsting The law provides for 2 separate reasons for the delisting of any natlonal, regional or sectoral party organization or coalition. Section 6(8) of the Party - List system Act provides that the COMELEC may rnotu proprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any national, r~Jional or sectoral party organization or coalition. The grounds are : (a) if it fails to participate in tile last two (2) preceding · elections; or (b) fails to obtain at least two per centum (2%) of the votes cast under the patty list system in the two (2) preceding elections for the constituency in which it was registered ( Philippine Guardians Brotherhood, Inc. (PGBI) v. COMELEC, G.R. No. 190529, 29 April 2010)

For the COMELEC to validly exercise its statutory power to cancel the registration of a party-list group, the law imposes only two (2) conditions: 1. due notice and hearing is afforded to the party-list group concerned; and Page 206 of 320

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8. CANDIDACY

• Use of Foreign Passport: The use of a foreign . passport amounts to repudiation or recantation of the oath of renunciation. Matters dealing with qualifications for public elective office must be strictly complied with. A candidate cannot simply be allowed to correct the deficiency ln his qualification by submtttinq another oath of renunciation {Amado v . COMELEC, G.R. No. 210164, August 18, 2015)

1. QUALIFICATIONS OF CANDIDATES Candidate • A person aspiring for or seeking an elective public office who has filed by himself or through an accredited political party a certificate of candidacy at the start of the campaign period There is no constitutional right to run for or hold public office. What is recognized is merely a privilege subject to limitations imposed by law.

• Dual Citizens: Dual citizens are disqualified from running for any elective local position. They cannot successfully run and assume office because their ineligibility is inherent In them, existing prior to the filing or their certificates or candidacy. Their certificates of candidacy are void ab initio, and votes cast for them will be dlsregard9d. Consequently, whoever gamers the next highest number of votes among the eligible candidates is the parson legally entitled to the position { Arlene Llena Empaynado v . COMELEC, G.R No. 216607, April 5, 2016 ).

The right to run for public office is not inextricably intertwined with the rights of expression and association. One's interest in seeking office, by itself, is not entitled to constitutional protection. One cannot bring one's action under the rubric of freedom of association, absent any. allegation that, by running for an elective position, one is advancing the political Ideas of a particular set of voters. (Quinto v. COMELEC, G.R. 189698, 2010). Note: Congress may not add to the qualifications for elective officials provided in the Constitution. However, they may do so for elective officials net provided in the Constitution.

• Foundlings: As a matter of law, foundlings are as a class, natural - born citizens ( Poe - Llamanzares v . COMELEC, G.R. No. 221697, March 8, 2016 ). When the names of the parents of a foundling cannot be discovered despite a diligent search, but sufficient evidence is presented to sustain a reasonable inference that satisfies the quantum of proof required · to conclude that at least one or both of his o r her parents is Filipino, then this should be sufficient to establish that he or she is a natural • born citizen (Rizalito Y. David v . Senate Electoral Tribunal, G.R. No. 221538, September 20, 2016)

Qualifications

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The Constitution prescribes tt1e qualification s {i.e., age, citizenship, residency, voter registration and literacy) for the following positions: President, Vice • President, Senators and Representatives (District and Party • List) while statutes set the qualifications of local officials. 1. Residence - to be understood as domicile that is, the · place where a party actually or constructively has his permanent home, where he/ she, no matter where may he/ she be round at any given time, eventually intends to return and remain (Japson v. COMELEC , G.R. No. ·180088, 19 January 2009) 2. Registered Voter 3. Citizenship • For national elective positions, the candidate must be a natural - born citizen. For local elective positions, the candidate may be naturalized citizen.

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• Natural - born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country can seek elective office provided they re • acquire Philippine citizenship by taking the oath of allegiance to the Republic prescribed under the Citizenship Retention and Re· acquisition Act of 2003, and make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath.

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Disqualifications Constitution 1.

Three • term limit for local elective officials ( Art. X, Sec. 8 of the Constitution)

• term limit rule is not a ground for a petition for disqualification, however, it is an ineligibility which is a proper ground for a petition to ,jer,y due course to or to cancel a Certificate of Candidacy under Section 78 of the OEC ( Albania v, COMELEC, G.R. No. 226792, 7 June 2017 ). • Two conditions must concur for the application of the disqualification of a candidate based on violation of the three - term limit rule, which are: (1) that the official concern ed has been elected for three consecutive terms in the same local government post, and (2) that

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1.

he has fully served \hree consecutive terms ( Albania v. COMELEC, G.R. No. 226792, 7 June 2017 ). • When it was only upon the favorable decision on his petition for correction of manifest error that a candidate was prodaimed as the duly - elected official, he is deemed not to have served office for the full term of three years to which he was supposedly entitled, since he only assumed the post and served the unexpired term of his opponent ( Albania v. COMELEC, G.R. N0. 226792, 7 June 2017). • . An involuntary interrupted term, as in the case of assumption of office only after winning an election protest, cannot, in the context of the disqualification rule, be considered as one term for purposes of counting the three - term threshold, since prior to winning, the candidate was not the rightful holder of the position ( Abundo v. COMELEC, G.R. No. 201716, 8 January 20 13 ). • A provincial board member's election to the same position for the third and fourth time, but now in representation of the renamed district, is a violation of the three - term limit rule ( Naval v. COMELEC; GR No. 207851, 8 July 2014 ). Omnibus Election Code 1. Any person declared by competent authority insane or incompetent 2. Any person sentenced by final judgment for any of the following offenses: 1. Insurrection, or rebellion 2. Offense for which he was sentenced to penalty of more than 18 months 3. Crime involving moral turpitude ( Sec. 12, Omnibus Election Code ) 3. A permanent resident to or immigrant to foreign country unless he waives such status ( Sec. 68, Omnibus Election Code ) Revised Administrative Code-Municlpc1I Office 1. Ecclesiastics (Parnil v. Teleron, 86 SCRA413) 2. Persons receiving compensation from provincial or municipal funds 3. Contractors for public works of the municipality (Sec. 2175, Revised Administrative code ) .

2. 3. 4. 5. 6.

7.

. Those sentenced by final judgment for an offense ir.volving moral turpitude or an offense punishable by impriscnrnent for at least one year, within 2 years after service of sentence. Those removed from office as a result of an administrative case. Those convicted by final judgment for violating his oath of allegiance to the Republic. Those with dual citizenship. Fugitives from justice in criminal or non - political cases. Permanent residents in foreign country or those who have the right to reside abroad and continue to avail of it (Caasi v. Court of Appeals, 191 SCRA 229). The insane or feeble - minded (Sec. 40, Local Government Code ) .

Conditions For The Three-Term Ban:12 The official has been elected for 3 consecutive terms in the same local government post Fully served 3 consecutive terms Elected in a regular election Service of Full Term: When a municipality has been converted to a city, and the · area and inhabitants of the locality are the same, and the 3-term municipal mayor continued to hold office until such time as city elections are held. When an incumbent mayor loses in election protest but the decision of the RTC was promulgated AFTER the service of the term. Not Service of Full Term: • Fills up a higher office (by succession or operation of law). • Suspended from office (failed to serve full term). • Unseated, in order to vacate by reason of declaration of failure of election or an election protest. • Served unexpired term after winning in the recall

elections •

Assuming a local government post (even if served for 3 consecutive terms) after winning a recall election (since not considered an immediate re-election).

Holdover Principle - The term of all local officials is 3 years, but Sec. 5 of R.A. 9164 authorizes the holdover of incumbent barangay officials until their successors are elected.

Local Government Code

12

Note: The 3-term ban applies only for elective local officials. Page 208 of 320

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2. FILING CERTIFICATES OF CANDIDACY

Certificate of Ca:,didacy A statement of a person seeking to run for a public office certifying that he announces his candidacy for the office, the name of the political party to which he belongs if he belonqs to any, and his oost office address for all election purposes being stated. (Sinaca v. Mula, G8 No. 135691, September 27, 1999) · No person shall be elected into public office unless he files his COC within the prescribed period. (Omnibus Election Code, Sec. 68) The COC shall be filed by the candidate personally or by his duly authorized representative. No COC shall be accepted if filed by mail telegram or facsimile. Upon filing, an individual becomes a candidate. Thus, he is already covered by rules, restrictions and processes involving candidates. The receiving officers shall have the ministerial duty to receive and acknowledge receipt of the COC. A COC will not be cancelled even if It failed to specify the position sought if the information omitted is supplied in the certificate of nomination and amended COC. Prohibition against multiple candidacies No person shall be eligible for more than one office. If he files more than 1 position, he shall not be eligible for all unless he cancels all and retains one. (Sec. 73, Omnibus Election Coce ). (a) General Effect of Filing of CoC Upon filing, such person becomes a candidate. He/she is already covered by rules and regulations, and process involving candidates.

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Effect on Incumbents of Filing of CoC a. Any person holding a public appointivo office or position, including active members of the armed forces, and officers and employees in government-owned or controlled corporations are considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. Said appointed officials would have unfair advantage over their rivals because they might use their office resources for their campaign. ( Quinto v. COMELEC, G.R. 189698, 2.010). b. Elective officials continue, to hold office, whether they run for the same or different position. Who Is a candidate? A "candidate" refers to any person aspiring for or seeking a n elective public office, who has flied a certificate of candidacy by himself (herself) or through an accredited

A candidate is "any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy." Thus, under the law. a person only becomes a cundidate when he/ she has filed a certificate of candidacy and when the campaign period has commenced. Ona is not a candidate, despite having filed a certificate of candidacy, before the start of the campaign period. The law added, •unlawful acts or omissions applicable to a candidate shall take eff~t only upon the start of the aforesaid campaign period.• (Sec. 15, RA 9369) If the certificate of candidacy is void ab initio, the candidate is not considered a candidate from ti re very beginning even if his certificate of candidacy was cancelled after the elections. (H. Sohria Pasagi Diambrang v . COMELEC, G.R. No. 201809, October 11, 2016 Independent Candidates: 1. Not a member of a registered political party 2. Member of an unregistered political party 3. Member of a registered political party but not officially nominated as candidate by said party 4. Nominated by a person who is not the duly authorized representative of a register€d political party 5. Nominated by a registered political party hut such was not submitted to the COMELEC or where such nomination was submitted after the last day of filing of the certificate of candidacy 6. Nominated by a party that nominated in excess of the numoer of persons to be voted for an election position 7. Accepted nominations from more than one registered political party -, Substitution of candidates Grounds for Substitution: (DWD) 1. 1,eath 2. Withdrawal 3. Qisqua:ification (Omnibus Election Code, sec. 77) Substitution is not allowed when the original candidate was disqualified based on: • Ground of material misrepresentation (Fermin v. COMELEC G.R. 179695, 2008) • When the certificate was cancelled because he was running for the fourth consecutive term (Miranda v, Abaya, G.R. 136351, 1999) • Failure to meet one-year residency requirement (Tagolino v. HRET, GR. 202202, 2013)

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N --ot_e_:l_n_th_e_c_s_s_e_o_f-Ta_g_o-lin_o_v-.""."H~R~E~T:--, ~G-:.R:o-.~N-:-o-. ~20;:-;2~2~02~.-~o~f~t7::'.he:-"rc:ro~M"ELEC (Cerafica v. COMELEC, GR. 205136, 2013, the COMELEC first ruled that substitutior. is allowed because it held that a candidate's failure to meet the qualifications is a ground for disqualification. This was adopted by the HRET. However, the Supreme Court ruled that it is actually a cancellation of the certificate of candidacy. Thus. no substitution is allowed. General Rule: No substitution is allowed for an independent candidate. Only candidates who are members of and are nominated by a party can be substituted. Exception: A candidate for a barangay elective office notwithstanding the policy that barangay elections are nonpartisan can be substituted by his/her spouse. (Ru/loda v. -, COMELEC, G.R. 1541P8, 2003). Rules on Substitution: 1. Any candidate may withdraw his candidacy anytime before election day. . ' 2. A person without a valid certificate of candidacy cannot be considered a candidate and therefore cannot ·be substituted. 3. Substitute candidate may file his certificate of candidacy no later than mid-day of election day. . · 4. No person who has withdrawn his candidacy for a position shall be eligible as a substitute candidate for any other position. 5. The substitute candidate must be qualified to hold office and must be a member of and nominated by the same political party. 6. A public office is personal to the public officer and not a property transmissible to the heirs upon death. The Court has allowed substitution and intervention but only by a real party in interest. The Protestant's widow is not a real party in interest to the election protest. 7. The filing of the withdrawal shall not affect the civil, criminal or administrative llablilties the substituted candidate may have already incurred. 8 A candidate who is disqualified under Section 68 of the Omnibus Election Code can be validly substituted pursuant to Section 77 because he remains · a candidate until disqualified; but a person whose certificate of candidacy has been denied due course to and/or cancelled under Section 78 cannot be substituted because he is not considered a candidate (Tagolino vs. HRET, G.R. 26)2202, 2013). Ministerial duty of COMELEC to receive certificate It is the ministerial duty of COMELEC and its officers to receive a certificate of candidacy (Omnibus Election Code. sec. 76) While the COMELEC may look into patent defects in the CoCs, it may not go into matters not appearing on their face. The question of eligibility or ineligibility of a candidate is thus beyond the usual and proper cognizance

2014) · Nuisance candidates · . . One who has no bona fide intention to run for the office: and would thus prevent a faithful determination of the true will of the people. · Factors to Consider: (CROP5-PIPES-IQ) 1. ~apability to wage nationwide campaign 2. Running under a slate · · 3. Qrganization and machinery 4. Performance in previous elections 5. Platform of government 6. oiitical party affiliation and support 7. fopularity 8. froperties 9. f.olitlcal exposure 10. Intention to run for office 11. Profession 12. Educational attaintnent 13. §.imilarity in name causes confusion 14. Income 15. Qualifications and disqualifications

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COMELEC cannot motu proprio deny due course to or cancel an alleged nuisance candidate's certificate of candidacy without providing the candidate his opportunity to be heard. ( Timbol vs. COMEL EC, G.R. 206004, 2015) Petition to deny or cancel certificates of candidacy Who can file: Any Party How: Petition to deny due course or Cancel certificate of candidacy under oath . · When: Any time not later than 25 days from filing of certificate of candidacy . · · Where: COMELEC must decide the case not later than 15 · days before election (period is not mandatory however) !

Exclusive Ground: material misrepresentation (FMD) 1. Must be False. · 2. Must be Material (goes into the qualifications). 3. Must be Qeliberate and there is an intention to defraud the electorate. .

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The COMELEC must determine whether or · not the candidate deliberately attempted to mislead, misinform or hide a fact about his or her residency that would otherwise render him or her ineligible for the position sought. The COMELEC gravely abused its discretion in this case when, in considering the residency issue, it based its decision solely on very personal and subjective assessment standards, such as the nature or design and furnishings of the dwelling place in relation to the stature of the candidate (Mitra v. COMELEC, G.R. No. 191938, 2010).

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Misrepresentation of nickname is not a material misrepresentation because the use of nickname is not a qualification of public office. The proper recourse is to file an election protest and pray that votes be declared as stray votes (Villafuerte v, COMELEC, G.R. 206698, 2014). Material representation contemplated by Section 78 refers to qualifications for elective office, such as the requisite residency, age, citizenship or any other legal qualification necessary to run for a local elective office as provided for in the Local Government Code. Furthermon~. aside from the requirement o~ materiality, the rnlsrepresentation must consist of a deliberate attempt to mislead, misinform, or hide a fact, which would otherwise render a candidate ineligible (Caballero v. COMELEC, G.R. No. 209835, 2015). If a candidate cannot be disqualified without a prior finding that she or he is suffering from a disqualification "provided by 'aw or the Constitution," neither can the certificate of candidacy be cancelled or denied due course on grounds of false misrepresentation regarding his or her qualification, without a prior authoritativefinding that he or she is not qualified. (Poe-Llamanzares v. COMELEC,G.R. 221697, 2016) . · The COMELEC cannot, in the same cancellation case based on the ground of false material representation, decide the qualification or lack thereof cf the candidate. (Poe-L/amanzaresv, COMELEC,G.R. 221697, 2016)

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A CoC may be cancelled on the ground that the "candidate" misrepresented his eligibillty in his CoC because he knew that he had been convicted by final Judgment for libel, a crime involv!ng moral turpitude regardless of the fact that he was merely the publisher of the libelous articles, and that his penalty was merely a fine. (Ty-Delgadov. HRET, G.R. 219603, 2016) If the certificate of candidacy is void ab lnitlo, the candidate is not considered a candidate frcm the very beginning even if his certificate of candidacy was cancelled after the elections. (H. Sohria Pasagi Diambrang vs. COMELEC, G.R. No. 201809, 2016). .

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The summary nature of proceedings under Section 78 only allows it to rule on patent material misrepresentations of facts, not to make conclusions of law that are even contrary · to jurisprudence. (Juliet B. Dano vs. COMELEC, G.R. No. 210200, 2016). No False Material Representation: • When a candidate uses the name of her lor.g-time livein partner or states a false profession. • When the candidate is ac.tually qualified even if the entries In the CoC as filled up by the candidate will show that he is not.

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When the candidate, supported by a preponderance of evidence, believed that he was qualified since there was no intention to deceive the electorate as to one's qualifications for public office.

Effects of Disqualification Any candidate who has been declared by final judgment to be disqualified shall not be voted for. One who is disqualified under Section 68 is still technically considered to have been a candidate, albeit proscribed to continue as such only because of supervening infractions which do not, however, deny his or her statutory eligibility (Tagolino v. HRET, G.R. 202202, 2013). When a person who is not qualified is voted for and eventually garners the hi~hest number of votes, even the will of the electorate expressed through the ballot cannot cure the defect in the qualifications of the candidate. To rule otherwise is to trample upon and rent asunder the very law that sets forth the quatflcatlons and disqualltlcations of candidates. When there are participants who turn out to be ineligible, their victory Is voided and the laurel Is awarded to the next in rank who does not possess any of the disqualifications nor lacks any of the qualifications set in the rules to be eligible as candidates. Knowledge by the electorate of a candidate's disqualification is not necessary before a qualified candidate who placed second to a disqualified one can be proclaimed as the winner (Maquiling v. Ccmmisslonon Elections, G.R. No. 195649, 2013). A person whose COC was cancelled due to ineligibility for failure to prove Filipino citizenship and the one-year residence requirement could not have been a valid candidate, and could not have been validly proclaimed. Thus, she could not have validly assumed her position. ( Velasco v. Belmonte, G.R. 211140, 2016) The purpose of a disqualification proceeding is to prevent the candidate from running or, if elected. from serving, or to prosecute him for violation of the election laws. A petition to disqualify a candidate may be filed pursuant to Section 68 of the Omnibus Election Code. Offenses that are punished in laws other than in the Omnibus Election Code cannot be a ground for a Section 68 petition. (Ejeroito v. COMELEC, G.R. 212398, 2014).

Effect of Re-Election on Administrative Liability 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 lncor.slstent with the idea that an elective local official's administrative liability for a misconduct committed during a Page 211 of 32.0

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prior term can be wiped off by the fact that he was elected to a second term of office, or even another elective post. ElecOon 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. (Carpio-Morales v, Bfnay, G.R. 217126-27, 2015)

d. A petition to deny due course or to cancel a certificate of candidacy must be filed within 25 days from the time of filing of the COC, as provided under Section 78 of the OEC ( Albania v. COMELEC, G.R. No. 226792, 7 June 2017 ). e. A petition for disqualification of a nuisance candidate · should be filed within 5 days from the last day for filing certificate of candidacy ( Fermln v . COMELEC , G.R. No. 179695, 18 December 2008 ).

The COMELEC may suspend the proclamation of a candidate who gets the majority votes, if he has been disqualified before the election but the decision has not yet become final. He will not be proclaimed except where the Judgment of disqualification is finally reversed.

CAMPAIGN·

Exception to non-proclamaticn of candidate with 2nd highest number of votes: 1. The one who obtained the highest number of votes is disqualified; and 2. The electorate is fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate (Grego v. COMELEC, G.R. 125955, 1997). Withdrawal of Candidates Nothing in Section 73 of B.P. No. 881 mandates that the affidavit of withdrawal must be filed with the same office where the certificate of candidacy to be withdrawn was flied. Thus, it can be filed directly with the main office of the COMELEC, the office of the regional election director concerned, the office of the provincial election supervisor I of the province to which the municipality involved belongs, or the office of the municipal election officer of the said municipality (Gov. COMELEC, G.R. 147741, 2001). Distinction between Disqualification and Cancellation· ofCOC a.

A petition for cancellation of a certificate of candidacy is not based on lack of qualification but on false representation, which may relate to lack of qualification, such as residence. A petition for disqualification refers to commission of prohibited acts and possession of permanent resident status in a foreign country. b. A candidate who se certificate of candidacy was cancelled is not treated as a candidate. A candidate who is disquallfled cannot continue as a candidate. c. A candidate whose certificate of candidacy was cancelled could be substituted. A candidate who is disqualified cannot be substituted.

Election Campaign - An act designed to promote the election or defeat of a particular candidate to a public office. (Omnibus Election Code, Sec. 79) Campaign Period 1. President, vice president and senators - 90 days before election day 2. Congressmen, provincial, city and municipal officials. 45 days before election day (Sec. 5, R.A. No. 7166) As a general rule, the period of etection starts at ninety (90) days before and ends thirty (30) days after the election date pursuant to Section 9, Article IX-C of the Constitution and Section 3 of BP 881. This rule, however, is not without exception. Under these same provisions, the COMELEC is not precluded from setting a period different from that provided thereunder, (Aquino vs. COMELEC, G.R. 211789-90, 2015) Not every act of beneficence from a candidate may be considered campaigning. The term "campaigning" should not be made to apply to any and every act which may influence a person to vote for a candidate, for that would stretching too far the meaning of the term. Examining the definition and enumeration of election campaign and partisan political activity found in Comelec Resolution No. 3636, the Comelec is convinced that only those acts which are primarily designed to solicit votes will be covered by the definition and enumeration. The distribution of sports items in line with the sports and education program of the province does not constituta election campaigning since what is prohibited is the release of public funds within the 45-day period before election. (Pangkat Laguna v. Comelec, G.R. 148075, 2002)

2. PREMATURE CAMPAIGNING A candidate is liable for an election offense only for acts done during the campaign period, not before. The law is clear as daylight - any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period. The act of engaging in an election campaign or partisan political Page 212 of 320

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activity to "promote the election or defeat of a particular candidate or candidates", before the start of the campaign period, is what was commonly known as "premature campaigning". Because premature campaigning requires the existence of a "candidate" and because there is no "candidate" to speak of until the start of the campaign period, there is no more premature campaigning (Penera vs. COMELEC, G.R. No. 181613, 2009). Valid Forms of Campaigning: (OHS-SPA) 1. Forming Q.rganizations, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes and/ or undertaking any campaign for or against a candidate. 2. !!olding political caucuses, conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes and/ or undertaking any campaign or propaganda for or against a candidate. 3. Making ~peaches, announcements or commentaries or holding interviews for or against the election of any ' candidate for public office. 4. fublishing or distributing campaign literature or materials designed to support/ oppose the election of any candidate. 5. Directly or indirectly .ioliciting votes, pledges, or support for or against a candidate. 6. ~dv:3rtisements. A candidate is liable for premature campaigning if after" filing his/ her certificate of candidacy, he/she joined a motorcade which broadcasted her filing. (Penera v. COMELEC, GR No. 181613, 2009).

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PROHIBITED CONTRIBUTIONS: (UF2 PLAC2E) 1. Public !J.tilitles or those exploiting natural resources of the nation 2. Public or private financial institutions, except loans to a candidate or political party 3. foreigners and foreign corporations 4. Grantees of franchises, incentives, exemptions, allocations or similar frivileges or concessions by the government 5. Persons who, within 1 year prior to the date of the election, have been granted !,,oans or other accommodations. in excess of P100,000 by the government 6. Members of the Armed forces of the Philippines 7. Officials or employees in the £ivil service 8. Persons with £ontracts to supply the government with goods or services or to perform construction or other wo~s · · 9. ,&ducational lnstitutlons which have received grants of public funds not less than p100,000 by the government Prohibited Means of Raising Funds: (C2L-B3ED) 1. £inematographic, theatrical or other performances 2. £ockfights

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,batteries

'4. §oxing bouts 5. ~ingo 6. ~eauty contests

7. .§.ntertainment and games 8. .Q.ances LAWFUL ELECTION PROPAGANDA 1. letters 2. Writte,n and printed materials (8.5 in. x 14 in.) 3. Posters (2 ft. x 3 ft.) in common-private poster areas 4. Rally streamers (3 ft. x 8 ft.) 5. Use of gadgets and billboards 6. Paid advertisements in print or broadcast media (COMElEC Resolution No. 9615). Public Rallies: 1. The candidate or party must notify election registrar that they Intend to organize and hold within the city/municipality · 2. Submit to eiection registrar a statement of expenses in connection therewith Free Space and Airtime 1. SPACE a. 3 National newspapers - National candidates b. 1 National newspaper - local candidates 2. AIRTIME a. 3 National TV and Radio Networks - National candidates b. 1 Major Broadcasting station • local candidates . There shall be equal allocation for all candidates for 3 · calendar days. I

COMELEC does not have the authority to regulate the enjoyment of the preferred right to freedom of expression exercised by a non-candidate. Regulation of speech in the context of electoral campaigns made by persons who are not candidates or who do not speak as members of a political party which are, taken as a whole, principally advocacies of a social issue that the public must consider during elections is unconstltutlonal. Such regulation is inconsistent with the guarantee of according the fullest possible range of opinions coming from the electorate including those that can catalyze candid, uninhibited, and robust debate in the criteria for the choice of a candidate (Diocese of Bacolod v. COMELEC, G.R. W5728, 2015). However, regulation of election paraphernalia will still be constitutionally valid if it reaches lnto speech of persons who are not candidates or who do not speak as members of a political party if they are not candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal object the endorsement c·f a candidate only. The regulation (a) should be provided by law, (b)

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A TENEO CENTRAL BAR OPERATIONS 2019 reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and considering the primacy of the guarantee of free expression, and (d) demonstrably the least restrictive means to achieve that object. The regulation must only be with respect to the time, place, and manner of the rendition of the message. In no situation may the speech be prohibited or censored on the basis of its content. For this purpose, it will not matter whether the speech is mane with or on private property. (Diocese of Baco/od v. COMELEC, G.R. 205728, 2015; Note: obiter dictum). Election Surveys The names of those who commission or pay for election surveys, Including subscribers of survey firms, must be disclosed pursuant to Section 5.2(a) of the Fair Election Act. This requirement is a valid regulation in the exercise of police power and effects the constitutional policy of "guaranteeing equal access to opportunities for public service.", and neithercurtalls petitioners' free speech rights I nor violates the constitutional proscription against the impairment of contracts. (Social Weather Stations, Inc. et al v. COMELEC, G.R. No. 208062, 2015) When published, the tendency of election surveys to shape voter preferences comes into play. In this respect, published election surveys partake of the nature of election propaganda. it is then declarative speech in the context of an electoral campaign properly subject to regulation. ( Social Weather Stations, Inc. et al vs. COMELEC, G.R. 208062, 2015) While Resolution No. 9674 does regulate expression (i.e., petitioners' publication of election surveys), it does not go so far as to suppress deslred expression. There is neither prohibition nor censorship specifically aimed at election surveys. The freedom to publish election surveys remains. All Resolution No. 9674 does is articulate a regulation as· regards the manner of publication, that is, that the disclosure of those who commissioned and/or paid for, including those subscribed to, published election surveys must be made. (Social Weather Stations, Inc. et al v. COMELEC, G.R. 208062, 2015)

POLITICAL LAW does not represent a trend ( Sec. 5.5, Republic Act No. 9 006 ). . Paid Advertisements 1. PRINT • X page in broadsheet, 3x a week • ~ page in tabloid, 3x a week 2. RADIO (per network) • . Aggregated total of 180 mins. for National candidates • Aggregated total of 90 mins. for Local candidates 3. TV (per network) • Aggregated total of 120 mins. for National candidates . • Aggregated total of 60 mins. for Local candidates TV and radio paid advertisements airtime cannot exceed · . their AGGREGATED TOTAL TIME. (COMELEC Resolution No. 9615). The Fair Election Act does not justify a conclusion that the maximum allowable airtime should be based on the totality of possible broadcast in · all television or 35 radio stations, and the COMELEC has no authority to provide for rules beyond what was contemplated by the law it is supposed to implement ( GMA Network, Inc. v. COMELEC, G.R. 205357, 2014). General Rule: It shall be unlawful for any person or organization to solicit and/ or accept any gift, contribution, food, transportation or donation in cash or in kind from the commencement of the election period up to and including election day. Exception: Normal and customary religious stipends, tithes or collections.

Rules on Election Propaganda: • All registered parties and bona fide candidates shall have the right to reply to charqes published against them. • No movie: cinematograph, documentary portraying the life or biography of a candidate shall be publicly exhibited in a theatre, 1V station, or any public forum during the campaign period. • No movie, cinematograph, documentary portrayed by an actor or media personality who is himself a Exit Polls candidate shall be publicly exhibi!ed in a theatre, TV station or any public form during the campaign period. a: Surveys shall not be conducted within 50 meters from • All mass media entities shall furnish the COMELEC the polling places. with copies of all contracts for advertising, promoting, b. Pollsters shall inform the voters that they may· refuse to or opposing any political party or the candidacy of any answer. person for public office with:n 5 days after its signing. c. The result may be announced after the closing of the e Any media personality who is a candidate or is a polls on election day and must Identify the number of , campaign volunteer for or employed or retained in any respondents and the places where they were taken. capacity by any candidate or political party shall be The announcement must state that it Is unofficial and deemed resigned, if so required by their employer, or Page 214 of 320

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shall take a LOA from his work as such during the campaign period. Prohibited Donations It is prohlbited for any candidate, his spouse, relative within second degree of consanguinity or affinity, a representative to make any contribution for any structure for public use or for use of any religious or civic organization, except tl)f::j normal religious dues and payments for scholarships established and school contributions habitually made before the campaign period ( Sec. 104, Omnibus Election Code). Invalid Forms of Campaignir.g: Display of campaign materials outside authorized common poster areas in public places or private places without the consent of the owner Note: The posting of election campaign material on vehicles used for public transport or on transport terminals is not only a form of political expression, but also an act of ownership - it has nothing to do with the franchise or permit to operate the PUV or transport terminal. ( 1-United Transport Koalisyon (1Utak) v. COMELEC, G.R. 206020, 2015)

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Non-removal of premature campaign materials within 3 days from notice · Note: Failure to remove raises presumption that said candidate was engaged in premature campaigning Print, publish or broadcast election propaganda donated to a candidate without the written acceptances of the candidate Foreign Intervention Campaigning outside campaign periods Removal or destruction of lawful propaganda Removal, confiscation or destruction of prohibited propaganda other than· by COMELEC or its deputized officers Written or broadcast materials that do not bear the inscription: "polltical advertisement paid for" and name/ address of benefiting candidate or party Advertisements beyond the allotted time and space Transportation, food and drinks during and 5 hours before and after public rneetlnqs Movie or video on candidate Cinematography or documentary portraying life or biography of candidate LIMITATIONS ON EXPENSE Authorized Expenses - Multiplied with the total number of registered voters: · 1. P10 - President and Vice President 2. P3 - Other candidates 3. PS - Independent candidates 4. PS - Political parties

Lawful Expenditures 1. Traveling expenses 2. Compensation of campaigners, clerks, stenographers, messengers and other persons actually employed in the campaign 3. Telegraph and telephone tolls, postage, freight and express delivery charges 4. Stationary, printing and distribution of printed matters relative to candidacy 5. Employment of watchers at the polls 6. Rent, maintenance and furnishing of campaign HQ, office, or place of meetings 7. Political meetings and rallies ·, 8. Advertisements 9. Employment of counsel 10. Printing sample ballots 11. Copying and classifying list of voters, i,wcstigating and challt?nging the right to vote oi persons registered in the lists Note: The cost of (9), (10), (11) shall not be taken into account in determining the amount of expenses which a · candidate or political party may have incurred. The phrase "those incurred or caused to be incurred by the candidate" is sufficiently adequate to cover those expenses which are contributed or donated in the candidate's behalf. By virtue of the legal requirement that a contribution or donation should bear the written conformity of the . candidate, a contributor/supporter/donor certainly qualifies as any person authorized by such candidate or treasurer (l.:jercito v. COMELEC, G.R. 212398, 2014). Vote in Absentia Every qualified Filipino citizen abroad previously registered as a voter may file with an embassy, consulate or other foreign service establishment an application to vote in absentia ( Sec. 11.1, Republic Act No. 9189 ) . The application may be med personally or by mail (Sec. 11.2). The application shall be transmitted to COMELEC ( Sec. 11.1, Republic Act No. 9189 ) · A. COMELEC shall act 6n the application not later than 150 days before election day. B. In case of disapproval of the application, the voter or his authorized representative may file a motion for reconsideration personally or by registered mail within 10 days from receipt of notice. . C. The decision of COMELEC is final ( Sec. 12, Republic Act No. 1989).

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2019

STATEMENT OF CONTRIBUTIONS ANO EXPENSES Every candidate and treasurer of the polltical party shall, within 30 days after the day of the election, file in duplicate with the offices of the Commission the full, true and itemized statement of all contributions and expenditures in connection with the election. No person elected to any public office shall enter upon the duties of his office until he hds filed the statement of contributions and expendltures herein required. The same prohibition shall apply if the political party which nominated the winning candidate fails to file the statement required herein within the period prescribed by this Act. BOARD OF ELECTION INSPECTORS AND BOARD OF CANVASSERS 1. COMPOSITION Provincial 1. Provincial election supervisor of lawyer in the mgional office of the COMELEC (Chairman); 2. Provincial fiscal (vice) 3. Provincial superintendent of schools (member) 4. Substitute members (in order): a. Provincial auditor b. Register of Deeds . c. Clerk of Court nominated by executive judge d. Other available appointive provincial officer City 1. City election supervisor or lawyer of COMELEC (chair) 2. City fiscal (vice) . . 3. City superintendent of schools (member) 4. Substitute members - same as provincial

1.

Each certificate of canvass was executed, signed, thumb-marked by the Chair · and transmitted to Congress; 2. Each certificate contains the names of all candidates· and votes in words and figures 3. No discrepancy in authentic copi~s Board of Canvassers for Senators: COMELEC en bane, and not the provincial board. Disqualifications: e . • O. He/his spouse is related within the fourth (4th) civil degree of consanguinity or affinity, to any member of the BEi or to any candidate to be voted for or to the latter's spouse, In the polling place. (COMELEC Resolution No. 9640, Art. 1, Sec. 3) 1. Engaged in any partisan political activity. (Omnibus Election Code, Art. XIV, Sec. 173) POWERS Duty of Board t'f Canvassers: Purely ministerial; to compile and add results as appearing in the results transmitted to it. Grounds to Challenge an Illegal Voter: 1. Not registered 2. Using the name of another 3. Suffering from existing disqualification General Rule: No voter shall be required voter's affidavit on election day. Exception: His identity is challenged.

to present his

Failure to producevoter's affidavit shall not preclude him from voting if: 1. His identity be shown from the photograph, fingerprints or specimen signatures in his approved application in the book of voters. · 2. He is identified under oath by a member of the BEi and such identification shall be reflected in the minutes of the board.

Municipal 1. Election registrar or COMELEC representative (chair) 2. Municipal treasurer (vice) 3. Most senior district school supervisor (member) 4. Or principal of the school, if absent 5. Substitute members: a. Municipal administrator b. Municipal assessor c. Clerk of Court nominated by executivejudge d. Other available appointive municipal officers

Grounds to Challen::1e Based on Illegal Acts:13 1. Vote buying 2. Vote selling 3. Vote betting

Board of Canvassers for President and Vice· President: Congress to determine the authenticity and due execution of certificates of canvass. Must prove:

Buildings Not Valid as a Polling Place:14 1. Public or private building owned, leased or occupied by any candidate of any person who is related to any candidate within the 4th civil degree of consanquinlty

13

14 Note: The chalienqed person sh.311 take a prescribed Note: Where no suitable public building is available, oath before the SE! that he has not committed any of private school buildin9s may be used as polling places the acts alleged in the chall1:mge, after which he will be allowed to vote. Page 216 of 320

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2.

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or affinity, or any officer of the government or leader of any political party Building or surrounding premises under the actual control of a private entity Those located within the perimeter of or inside a military or police camp or reservation or within a prison compound ·

Requisites for valid transfer of venue of counting:15 (BV-NW) Imminent threat of Yiol~nce To Nearest school [see comment] Unanimous vote of ~oard of Inspectors Majority of Watchers

will not affect the result of the elections. (Aksyon Magsasaka-Partido Tinig ng Mesa (AKMA-PTM) v. COMELEC, G.R. 207134, 2015) The manual COCP is the official COMELEC document in cases wherein the canvassing threshold is lowered. In fact, clear from the language of the Resolution is that the winners, in such instances, are proclaimed "by manually preparing a Certificate of Canvass and Prodamation of Winning Candidates," the format for which is appended to COMELEC Resolution No. 9700. (Garcia v. COMELEC, G.R. 216691, 2015) Casting of Votes

If there is actual danqsr, 110 need for the unanimous vote of the BOI and assent of majority of poll watchers General Rule: Voting by proxy is not allowed. Exceptions: 1. Illiterate 2. Handicapped

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General Rule: No ballots other than official ballots shall be used or counted Exceptions:16 Failure to receive the official ballots on time There are no sufficient ballots for all registered voters The official ballots are destroyed at such time as shall render it impossible to prcvide other official ballots Features of Canvassing: 1. The Board of Canvassers (BOC) is a collegial body. 2. The BOC exercises ministerial duty. 3. The BOC exercises quasi-judicial functions. 4. Proceedings before BOC are summary in nature. 5. The BOC convenes at 6pm. 6. Canvassing shall be in public. 7. Proceedings are continuous from day to day, without interruption except to adjourn. 8. No police, army or security officer allowed withir1 50 meters from canvassing room unless called in writing by the BOC to stay outside the room. 9. After proclamation, eoc becomes functus officio. The proviso designating Smartmatic as the joint venture partner in charge of the technical aspect of the counting and canvassing wares does not translate to ceding control of the electoral process to Smartmatic. (Roque v. COMELEC, G.R. 18845~, 2009).

• The chairman of the board of election Inspectors should sign each ballot at the back. (Sec. 24, Republic Act No. 7166). The omission of such signature does not af feet the validity of the ballot ( libanan v. House of Representatives Electoral Tribunal, 283 SCRA 520; Punzalan v. COMELEC , 289 SCRA 702; Pacris v. Pagalllauan, 337 SCRA 638; Malabaguio v. COMELEC , 346 SCRA 699; De Guzman v. Sison, 355 SCRA 69) • A voter who was challenged on the ground t hat he has been paid for his vote or made a bet on the result of the election will be allowed to vote if he takes an oath that hf'. did not comm it the alleged in the challenge ( Sec. 200, Omnibus Election Code). • An illiterate or physically disabled voter may be assisted by a relative by affinity or consanguinity within the fourth degree or any person of his confidence who belongs to the same household or ar.y member of the board of elect ion inspectors ( Sec. 196, Omnibus Election Code, De Guzman v. COMELEC, 426 SCRA 698). • It is unlawful to use carbon paper, paraffin paper or other means for making a copy of the contents of the ballot or to use any means to identify the bal lot ( Sec. 195, Omnibus Election Code ). A ballot prepared under such circumstances should n ot be counted. ( Gutierrez v. Aquino, G.R. No. L ~ 14252, February 28, 1959). • Absentee Voting: • .Members of the board of election inspectors and their substitutes may vote in the precinct where they are assigned ( Sec. 169, Omnibus Election Code).

COMELEC is authorized by law to proclaim wmnmg candidates if the remaining uncanvassed election returns 15

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Note: In the given abovementioned exceptions, the remedy is to use emerqency ballots to be provided hy the city or municipal treasurer. Page 217 of 320

Note: Failure to comply with requisites results in failure of elections. ·

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• Absentee voting for President, Vice President and Senators is allowed for members of the Armed Forces of the Philippines, Philippine National Police and other government employees assigned in connection with the performance of election duties to place s where they are not registered (Sec. 12, Republic Act No. 7166) Postponement of Election When for any senous c.ause such as violence, loss of election paraphernalia, force majeure, and other analogous causes elections cannot be held, COMELEC shall motu proprio or upon petition by any interested party postpone the election not later than 30 days after the cessation o f the cause of the postponement ( Sec. 5, Omnibus Election Code ).

C, REMEDIES 1.

AND JURISDICTION

PETITION TO DENY DUE COURSE TO OR CANCEL A CERTIFICATE OF CANDIDACY

Denial or cancellation of Certificate of Candidacy proceedings involves the issue of whether there is a.false representation of a material fact. The false representation must necessarily pertain not to a mere innocuous mistake but to a material fact or those that refers to a candidate's '• qualification for elective office (Panlaqui v. COMELEC, GR. 188671, 2010) 2. PETITION FOR DISQUALIFICATION COMELEC may motu proprio or upon verified petition of any interested party refuse to give due course or cancel a COG when: · 1 . The COC has been filed to put the election process in . mockery or disrepute 2. Causes confusion among the voters by the similarity of the names of the registered candidates · 3. Other circumstances which clearly demonstrate that the candidate has no bona fide intention to run for the office Aspects of Disqualification Cases: ELECTORAL ASPECT Whether or not the offender should be disqualified from being a candidate or from holding office Proceedings are summery in character and require only a clear preponderance of evidence An erring candidate may be'disqualfled even without prior determination of probable cause in a preliminary investigation CRIMINAL ASPECT

Whether or not there is probable cause to charge a candidate for an election offense . The prosecutor is the COMELEC, through its Law Department which determines whether or not probable cause exists If there is probable cause, the eoMELEC's Law Department files the criminal information before the proper court Proceedings before the proper court demand a full blown hearing and require proof beyond reasonable doubt to convict A criminal conviction shall result in the disqualification of the offender, which may even include disqualification from . holding a future public office Grounds for Disqualification: (LF2-SEND2) 1. .backing qualifications. 2. filing a Coe for more than 1 office 3. False and material representation in the Coe. 4. Qisqualifications under the LGe. 5. Nuisance candidate. 6. Election offenses enumerated under Sec. 68 of the Omnibus Election Code 7. Q~clared insane or incompetent by competent authority. 8. §entencE.'Cf by final judgment for subversion, insurrection, rebellion or an offense which he has been sentenced to a penalty of more than 18 months; or a crime involving moral turpitude, unless given plenary pardon/ amnesty. The use of ,1 foreign passport amounts to repudiation or recantation of the oath of renunciation. Matters dealing with qualifications for public elective office must be strictly complied with. A candidate cannot simply be allowed to correct the deficiency in his qualification by submitting another oath of renunciation (Amado v. COMELEC, G.R. 210164, 2015) The petitioner's continued exercise of his rights as a citizen of the USA through using his USA passport after the renunciation of his USA citizenship reverted him to his earlier status as a dual citizen. Such reversion disqualified him from being elected to public office. (Agustin v. COMELEC, G.R. 207105, 2015)

Disqualifications under the LGC: (MAO-PDF) 1. Sentenced by fi,1al judgment for an offense involving Moral turpitude or for an offense punishable by 1 year or more of imprisonment within 2 years after serving sentence. 2. Removed from office as a result of an Administrative case. 3. Convicted by final judgment for violating the Qat/1 of allegiance to the Republic.. 4. f ugitlves from justice in criminal or non-political cases here or abroad. Page 218 of 320

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5. .Qual allegiance. 6. fermanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right. A candidate is ineligible if he is disqualified to be elected to office, and he is disqualified if he lacks any of the qualifications for elective office. Even if the COMELEC made no finding that the petitioner had deliberately attempted to mislead or to misinform as to warrant the cancellation of his C?C, the COMELEC could still declare him disqualified for not meeting the requisite eligibility under the Local Government Code. (Agustin v. COMELEC, G.R. 207105, 2015)

Petition to Deny Due Course/ Cancel CoC (Before Elections) v. Quo Warranto (After Election Results) PETITION TO DENY DUE COURSE/ CANCEL Coe (BEFORE ELECTIONS) 1.

2.

The qualifications !or elective office are misrepresented in the certificate of candidacy The proceedings must be initiated before the elections.

Petition for Disqualification v. Petition to D~ny Due Course/Cancel CoC: PETITION FOR DISQUALIFICATION

PETmON TO DENY DUE COURSE/ CANCEL cec

Premised on Section 12 or 68 Grounded on a of the Omnibus Election statement of a material Code, or Section 40 of the representation in the said certificate that is Local Govemment Code false.

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A person who is disqualified under Section 68 is merely prohibited to continue as a candidate.

The person whose certificate is cancelled or denied due course under Section 78 :s not treated as a candidate at all, as if he/she never filed a CoC.

Thus, a candidate who is disqualified under Section 68 can validly be substituted under Section 77 of the OEC because he/she remains a candidate until disqualified.

A person whose Coe has been denied due course or cancelled under Section 78 cannot be substituted because he/she Is never considered a candidate. (Tagolino v. HRET, G.R. 202202, '2013)

Note: However, if the candidate is disqualified after assumption of office, he shall vacate the position and succession under LGC shall apply as ruled.

Note: lf the CoC of the candidate was denied or cancelled in due course after he has assumed office, he shall vacate the position and the second placer will be declared as winner.

PETITION FOR QUO WARRANTO (AFTER ELECTION RESULTS) 1. May be brought on the basis of two grounds a. ineligibility or b. disloyalty to the Republic of the Philippines 2. must be initiated within ten days after the proclamation of the election results. 3. A candidate is ineligible if he is disqualified to be elected to office, and he is disqualified if he leeks any of the qualifications for elective office.

A COMELEC resolution declaring a candidate disqualified for the said position is not yet final if a motion for . reconsideration has been timely filed. At that point, he still remains qualified and his proclamation thereafter is valid. As a result, COMELEC's jurisdiction to contest his citizenship ends, and the HRET's own jurisdiction begins (Gonzales v. COMELEC, G.R. 192856, 2011). A party aggrieved by an Interlocutory order issued by a Division of the COMELEC In an election protest may not directly assail the order in this Court through a special civil action for certiorari. The remedy is to seek the review of -, the interlocutory order during the appeal of the decision of the Division in due course. The court may have the power to re~ligw any decision, order or ruling of the COMELEC, limits such power to a final declslon or resolution of the COMELEC en bane, and does not extend to an interlocutory order issued by a Division of the COMELEC. Otherwise stated, the Court has no power to review on certiorari an interlocutory order or even 3 final resolution issued by a Division of the COMELEC. Where the Commission in division committed grave abuse of discretion or acted without or in excess of jurisdiction in issuing interlocutory orders relative to an action pending before it and the controversy did not fall under any of the instances mentioned in Section 2, Rule 3 of the COMELEC Rules of Procedure, the remedy of the aggrieved party is not to refer the controversy to the Commission en bane as

Page 219 of 320

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this is rot permissible under its present rules but to elevate it to this Court via a petition for certiorari under Rule 65 of the Rules of Court (Cagas v. COMELEC, G.R. 194139, 2012). Removal of Disqualification Plenary Pardon The phrase in the presidential pardon which declares that the person "is hereby restored to his civil and political rights" substantially complies with the requirement of express restoration of l1is right to hold public office, or the right of suffrage. Articles 36 and 41 of the Revised i''enal Code should be construed in a way that will give full effect to the executive clemency granted by the President, -, instead of indulging in an overly strict interpretation that may serve to impair or diminish the import of the pardon which emanated from the Office of the President and duly signed by the Chief Executive himself/herself. The said coda! provisions must be construed to harmonize the power of Congress to define crimes and prescribe the penalties for such crimes and the power of the President to grant executive clemency. All that the said provislons impart is that the pardon of the principal penalty does not carry with it the remission of the accessory penalties unless the President expressly includes Said accessory penalties in the pardon. It still recognizes the Presidential prerogative to grant executive clemency and, specifically, to decide to pardon the principal penalty while excluding its accessory penalties or to pardon both. Thus, Articles 36 and 41 only clarify the effect of the pardon so decided upon by the President on the penalties imposed in accordance with law (Risos-Vidal v. COMELEC, G.R. 206666, 2015).

GMA did not intend to restore his right to suffrage (RisosVida/ v. COMELEC and Estrada, G.R. No. 206666, 20:5). The disqualification from running for public office due to libel shall be removed after service of the five-year sentence, which is counted from the date the fineis paid. (Ty-Delgado v. .'-IRET, G.R. No. 219603, 2016)

3. PETITION TO DECLARE FAILURE OF ELECTIONS There is a failure to elect when nobody can he declared as a winner because the will of the majority has been defiled and cannot be ascertained. When Failure of Elections May Be Declared: (SNR) ·j . Election was §uspendcd before the hour fixed by iaw for the ch)sing of the voting 2. Election in any polling place was N,ot held on the date fixed 3. Elections f!esults In a failure to elect (after the voting and during tne preparatlon and transmission of the election returns or in the custody or canvass thereof). Grounds: (V-F2AT) force majeure .Eraud Y,iolence Ierrorism Analogous circumstances Conditions to Annul an Election: (WIG) Winner cannot be determined !!legality must affect more than 50% of the votes cast 2ood votes cannot be distinguished from the bad votes

POSTPONEMENT OF ELECTIONS

A whereas clause In a pardon which states that the person "publicly committed to no longer seek any elective position or office" does not make the pardon conditional. Whereas clauses do not forrn part of a statute because, strictly speaking, they are not part of the operative language of the statute. The whereas clause is not an integral part of t'le ' decree of the pardon, and therefore, does not by itself alone operate to make the pardon conditional or to make its effectlvity contingent upon the fulfillment of the aforementioned commitment nor to limit the scope of the pardon (Risos-Vidal v. COMELl•G, G.R. 206666, 2015). Former President Estrada 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. The fact that the pardon did not specify the specific rights restored does not mean that

Grounds

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Any SERIOUS cause 1.Force majeure of: · Violence Force majeure Fraud Violence Terrorism Terrorism Analogous Loss or destruction of election paraphernalia Analogous

Extent of Cause

Serious and impossibility to have free and orderly elections

Failure to elect and affects· results of elections

Conditions

Grounds must exist before voting

Grounds may occur anytime

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before proclamation Authority

Procedural Requirements

Effect if Petition Granted

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Verified petition by Verified petition any interested person by any or motu propio by interested COMELEC en bane person (may not Due notice be done motu Hearing propio) Due notice Hearing

Grounds in Pre-Proclamation centroverstes:" 1. Illegal composition or proceedings of the board of canvassers a. Filed with the BOC or with COMELEC b. Within 3 days from a ruling (if based on illegal proceedings), or as soon as the Board begins to act. 2. Irregularities in relation to the preparation, transmission, receipt, custody, and appreciation of election returns and certificates of canvass: a. ERs are delayed, lost or destroyed b. Material defects in the ERs c. ERs appear to be tampered with or falsified d. Discrepancies in the ERs · 3. Cenvassed returns are incomplete, contain material defects a. ERs are delayed, lost, destroyed i. In this case, the Board can use any of the authentic copies ii. Or terminate canvass if the missing returns will not affect the results anyway b. Missing requisites i. Board calls for members of the BEi to complete or correct the return. DON'T . EX{::LUDE, if correctable c. ERs are tampered, falsified, altered after these left . the hands of BEi, not authentic, prepared under duress, force, Intimidation, etc. i. Resort to other ERs ii. If all are tampered, can have ballot boxes reopened and counted d. Discrepancies In other authentic copies of the returns or discrepancies in the votes of any candidate in words/figures - and these would affect results of the election i. Order opening of ballot boxes for recount 4. ERs prepared under duress. threats, coercion, intimidation, obviously manufactured • "Obviously manufactured" - According to the Court, when it follows the doctrine of statistical improbabilities or "Statistically improbable data". 5. Subctitute or fraudulent returns in controverted polling places are canvassed, and the results materlatly affect the standing of candidates

Declaration of failure of elections Holding or continuation of elections reasonably close to elections not held, but not later than 30 days from cessation of cause

To resolve the tie, there shall be drawing of lots. Whenever . it shall appear from the canvass that two or more candidates have received an equal and highest number of votes, or in cases where two or more candidates are to be elected for the same position and two or rnore candidates received the same number of votes for the last place In the number to be elected, the board of canvassers, after recording this fact in its minutes, shall by resolution, upon five days notice to all the tied candidates, hold a special public meeting at which the board of canvassers shall proceed to the drawing of lots of the candidates who have tied and shall proclaim as elected the candidates who may favored by luck, and the candidates so proclaimed shall have the right to assume office in the same manner as if he had been elected by plurality of votes. The board of canvassers shall forthwith make a certificate stating the name of the candidate who had been favored by luck and his proclamation on the basis thereof. Nothing in this section shall be construed as depriving a candidate of his right to contest the election. (BP 881, §240; Tugade v, COMELEC, G.R. No. 171063, 2007)

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Pre-proclamation Controversy • Any question pertaining to or affecting the proceedings of the Board of Canvassers which may be raised by any candidate or registered political party, or coalition.

Majority vote of COMELEC en bane

Election is postponed Conduct elections reasonsbly close to elections not held, but not later than 30 days from cessation of 9ause

PRE-PROCLAMATION CONTROVERSY

Note: Grounds fo.r pre-proclamation controversies are exclusive. Page 221 of 320

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---·----------------.,--b-1--------~T~w-o-::O~b~J·e~c~ti~o~n~R~u~l~e--~S~u~b:m:i;t~o~rajl;c;~~e;ci;,io~n~a;n~dr;;:w;.ritttte;;n For national officials, the only grounds avai a e ere: _ Illegal composition or proceedings of the board of objection simultaneously to BOC chairper~n befor~ ERs canvassers -, have been canvassed. There is substantial compliance _ "Manifest Errors" - Matters regarding the preparation, even if the oral objection is filed first, then the written transmission, receipt, custody, and appreciation election objection with evidence is submitted within 24 h~urs. returns shall be brought, in the first instance, before the boards of canvassers, not the COMELEC (Fernandez vs. However, ir. Marabur vs. COMELEC, the Court held that COMELEC, G.R. No. 171821, 2006). there is substantial compliance if despite the absence of a written objection, an offer of evidence is made within the Generai Rule: COMELEC cannot go behind the face of an 24-hour period (Maraburvs. COMELEC, G.R. No. 169513, election return. It is beyono the jurisdiction of COMELEC 2007). to go beyond the face of the returns or investigate electlon irregularttles. · Exception: When there is prima fade showing that the ER Summary Nature: is not genuine. • Pre-proclamation controversies shall be heard e.g., as when several entries have been omitted (Lee vs. summarily by the COMELEC. COMELEC, G.R. No 157004, 2003). • Its decision shall be executory after 5 days from receipt by the losing party of the decision, unless restrained Grounds For Material Defects: by the SC. 1. Omission of name of candidates 2. Omission of votes for candidates General Rule: Pre-proclamation cases are deemed Material Defect v. Falsified/Tampered MATERIAL DEFECT IN THE ERs

ERs HAVE BEEN FALSIFIED/ TAMPERED

BOC needs authority from COMELEC to get copies of the other ERs

BOC needs no prior permission from the COMELEC to get copies of the other ERs

terminated: 1. At ihe beginning of the term of the office involved and the rulings of the BOC concerned deemed affirmed. 2. This is without prejudice to the filing of a regular election protest by the aggrieved party. Exceptions: Proceedings may continue if: 1. COMELEC determines that the petition is meritorious and issues an order fo, the proceedings to continue. 2. The SC issues an order for the proceedings to continue in a petition for certiorari.

Jurisdiction: Contested composition or proceedings of the board • May be initiated in the Board of canvassers or COMELEC Contested ERs • Should be brought in the tst instance before the board of canvassers only

Where a proclamation is null and void, the proclamation is no proclamation at all and the proclaimed candidate's assumption of office cannot deprive the COMELEC of the power to declare such nullity and annul the proclamation. (Federico v. COMELEC, G.R. 19~612, 2013).

General Rule: When the Electoral Tribunal obtains jurisdiction, it precludes the COMELEC from exercising powers over pre-proclamation controversies. Exceptions: (PAPI-Q) 1 . BOC was [mproperly constituted '2. Proclamation was null and void 3. Quo warranto is Ml the proper remedy 4. What was filed was a fetition to annul a proclamation, and not quo warranto or election protest. 5. Election contest expressly made without prejudice to PPC or it was made Ad cautelam (cautionary).

But the remedy of filing a pre-proclamation case is still available after prcclamation if the proclamation should have been suspended because of ccntested election returns (Jainc1f vs. Comelec, G.R. No. 174551, 2007).

In exercising Its powers and jurisdiction, as defined by its mandate to protect the integrity of elections, the COMELEC "must not be straight-jacketed by procedural rules in resolving election disputes." (V/o/ago v. · COMELEC. G.R. 194143, 2011).

Grounds for Recount: 1. Material defects in the ERs 2. ERs are tampered or falsified 3. Discrepancies in the ERs When Recount is Possible: 1. COMELEC order BEi to conduct recount 2. Integrity and identity of ballot box is not violated 3. BEi ascertains that integrity of ballots in box preserved 4. BEi recounts and complete/correct returns

Page 222 of 320

ATENEO CENTRAL BAR OPERATIONS 2019 In regular election contests, the general averment of fraud or irregularities in the counfnq of votes justifies the examination of the ballots and recounting of votes. This process of examination is the revision of the ballots pursuant to Section 6, Rule 20 of the 1993 COMELEC Rules of Procedure. The protests involved herein assailed Iha authenticity of the election returns and the veracity of the counting of lhe ballots. In that regard, the ballots themselves are the best evidence. The only means to overcome the presumption of legitimacy of the election returns is to examine and determine first whether the ballot boxes have been substantially preserved in the manner mandated by law. Hence, the necessity to issue the order of revision" (Tolentino vs. COMELEC, G.R. No. 187958, 20101) Statistically Improbable Data 1. Uniformity of tally in favor of candidates belonging to 1 party. 2. Systematic blanking out of candidates belonging to another party. General Rule: Pre-proclamation cases are NOT allowed in elections for the President, Vice President, Senator and members of the House of Representatives. Exceptions: 1. Manifest Errors in the ERs, or COCs may be corrected motu propio or upon written complaint of any interested person. 2. 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 (RA 7166). · Manifest Errors: 1. Mistake in adding 2. Mistake in copying of figures from ER or Statement of Votes 3. ERs from non-existent precinct canvassed 4. Copy of ER tabulated more than twice 5. 2 or more copies. of ER and COC in 1 precinct counted separately The grounds for manifest errors are inclusive. The allowable margin of error is 60%. {°': ,.___-

It suspends the running of the period within which to file an election protest or quo warranto proceeding.

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POLITICAL LAW Notwithstanding the pende.ncy of any pre-proclamation •. controversy, the Commission may summarily order the proclamation of other winning candidates whose election will r::>t be affected by the outcome of the controversy. An aggrieved party may file a petition for certiorari with the COMELEC whenever a judge hearing an election case has acted without or in excess of his Jurisdiction or with grave abuse of discretion and there is no appeal, nor any plain, speedy, and adequate remedy In the ordinary course of law. (Bu/ilis v. Nuez, G.R. No. 195953, 2011). ELECTION CONTESTS An election contest is any adversary proceeding by which matters invotving title or claim of title to an elective office, made before or after the proclamation of the winner, is settled whether or not contestant is claiming office in dispute. (Javier v. COMELEC, G.R. Nos. L-68379-81, September 22, 1986) Kinds Of Election Contests: 1. Election Protest 2. Quo Warranto Objective: To dislodge the winning candidate from office and determine the true winner. Withdrawal of nomination and substitution by another nominee is neither an election protest nor an action for quo warranto. Petitioner correctly brought before the Supreme Court this special civil action for certiorari under Section 7 of Article IX-A of the 1987 Constitution, notwithstanding the proclamation of, and assumption of office by, the substitute nominee. (Lokin, Jr. v. COMELEC G.R. 179431-32/180443, 2010). COMELEC Jurlstllctlon Over Election Contests: 1. Original Jurisdiction over contests relating to elections, returns, and qualifications of all elective: a. Regional b. Provincial c. City officials 2. Appellate Jurisdiction over contests involving: a. Elective Municipal officials decided by trial courts of general jurisdiction b. Elective Barangay officials decided by trial courts of limited jurisdiction c. COMELEC may issue extraordinary writs of certiorari, prohibition and mandamus A petition for mandamus will lie aqainst the Speaker of the House and the House Secretary General for not

resolving whether 16 of those 44 ballots should be Note: The COMELEC did not commit grave abuse of included in the revision. discretion when it ordered the revision of 44 ballots with the Senate Electoral Tribunal without first Page 223 of 320

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performing their ministerial duties to administer the oath of the second placer and enter his name in the Roll of Members of the House of Representatives, when the winner's COC had been cancelled due to ineligibility. ( Velasco v. Belmonte, G.R. 211140, 2016)

Grounds For Election Protest: (IN MVP) 1. .M,isappreciation · 2. Violence 3. intimidation 4. Ho padlock 5. fadding of votes

Pre-proclamation Controversy v. Election Contest PRE-PROCI.AMATION CONTROVERSY .

ELECTION CONTEST

Before proclamation of After proclamation of candidate candidate ~~~~-+-~~~~~~~-; Jurisdiction of COMELEC is Jurisdiction of administrative or quasi-judicial COMELEC is quasijudicial •

Only real parties In interest can file and pursue election protests.19 Even if It was the 2nd placer who filed the election protest, the 3rd placer may :!.till possibly win.20

Requisites for an Election Protest 1. Filed by candidate who has filed a COC and has been voted upon for the same offic:e.21 2. Filed within 10 days from proclamation of results a. Period to file EP is suspended during pendency of PPC b. A counter-protest must also comply with the reglementc.1ry period 3. On grounds of: a. election fraud/terrorism, and b. irregularities or illegal acts before, dur;ng, or after casting and counting of votes Additional Requirements: 1. Payrnent of docket fee22 2. Certificate of ~Jon-Forum Shopping

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House of Representatives Electoral Tribunal Jurisdiction Over Election Contests The House of Representatives has the jurisdiction to question the qualification of the nominees of party-list organizations. Although party list organizations are voted for in the elections, still it is not the organizations which sit and become members cf the House cf Representatives but their nominees. Subsequently, Section 17, Article VI of the Constitution provides that the HRET shall be the sole judge of all contests relating, among others, to the qualifications · of the members of the House. Thus, since party list nominees are considered as "elected members" of the House, the HRET has jurisdiction to hear and pass upon their qualifications (Abayon v. HRET, G.R. 189466, 2012). General Rule: Ballots are the best and most conclusive evidence in an election contest where the correctness of the number of votes of each candidate is involved (Delos Reyes v. COMELEC, G.R. No. 170070, 2007). Exception: Election returns are the best evidence when the ballots are lost, destroyed, tampered or fake. Exec•Jtion Pending Appeal:23 1. Public interest is involved or will of the electorate 2. Length of time that the election contest has been pending 3. Shortness of the remaining portion of the term of the contested office. (Pecson v, COMELEC, G.R. 182865, 2008). General Rub: The COMELEC cannot proclaim as winner the candidate who obtains the 2nd highest number of votes in case the winning candidate is ineligible or disqualified. When a winner is declared ineligible, the candidate who finished 2nd cannot assume the position (Quizon v. COMELEC, G.R. 177927, 2008) Exception: 1. The one who obtained the highest number of votes is disqualified, and

Note: A real party in interest is the party who would be benefited or injured by the judgment and the party who is entitled to the avails of the suit. e.g. candidate of the same position Note: The case of presidential protest cases, only two persons, the 2nd and 3rd placers, may contest the , election (Poe vs. Macapogal-Arroyo, PET Case No. · 003, 2005).

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Note: Special rule for PET: Only the 2nd or 3rd placer may file the protest 22 Note: Failure to pay is ground to dismiss the case. Except when there is estoppel by the other party, by not raising the ground promptly. 73 Note: A combination of 2 or more will suffice to allow execution pending appeal, but shortness of the remaining period alone is not a ground for execution pending appeal Page 224 of 320

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POLITICAL LAW

The electorate is fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate. (Pundao-c!aya v. COMELEC, G.R. 179313,

to unseat an ineligible person from office Any voter

Only by a candidate who has duly filed a COC to the same office and has been voted for

GROUNDS: Disloyalty Ineligibility

GROUNDS: Election fraud Irregularities in the casting and counting of votes or in the preparation of the ER

2009). A candidate who was elected but was later disqualified for failing to meet the residency requirement was never a valid candidate from the very beginning, and was merely a de facto officer. The eligible candidate who garnered the highest number of votes must assume the office. The rule on succession in the Local Government Code does not apply. (Jalosjos v. COMELEC, G.R. 193314, 2013; TyDelgado v. HRET, G.R. 219603, 2016). Abandonment - A protestant who runs for another office is deemed to have abandoned his protest. This is

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, The respondent may be unseated, but the petitioner may or may not be i-istalled into the office vacated.

The protestee may be unseated and the protestant may be installed into the office vacated.

especia11y true in a case where the protestant pending the election protest, ran, won, assumed the post and discharged the duties as such (Jdulza v. COMELEG, G.R. 160130, 2004). QUO WARRANTO ~

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Requisites of Quo Warranto (VID 10): 1. Filed by any registered Y,oter in th!'! constituency; Grounds: a. !neligibility b. Qisloyalty to the Republic of the Phllippines (i.e. having a green card) 2. Within 10 days from proclamation of results

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General Rule: When proclaimed officer was disqualified by quo warranto, 2nd placer cannot be proclaimed winner. Exception: When the one who got the highest votes has been disqualified and the electorate is fully aware of this fact - but they still voted for him. Execution pending appeal is allowed: must be for urgent reasons. Allowable reasons: 1. Public interest involved 2. Shortness of remaining term 3. Length of time that the contest is pending Quo Warranto v. Election Protest QUO WARRANTO

ELECTION PROTEST

PROSECUTION OF ELECTION OFFENSES Election offenses are committed only as soon as campaign period starts. Any supposed premature campaigning cannot bs prosecuted before start of campaign period: · Some Prohibited Acts: 1. Vote-buying or vote-selling 2. Wagering upon result of the election 3. Threats, intimidation, terrorism, use of fraudulent devise, forms of coercion 4. Appointment of new employee • Except: when there is urg,~nt need; Notice given to COMELEC within 3 days from appointment, creation of new positions, promotion or granting salary increase). 5. Carrying deadly weapon within radius of 100 meters from precinct 6. Transfer or detail of government official or employee without COMELEC approval.24 Any personnel action, when caused or made during the election period, can be used for electioneering or to harass subordinates with different political persuasions. This possibility - of being used for electioneering purposes or to harass subordinates - created by any movement of personnel during the elecdon period is precisely what the transfer ban seeks to prevent. (Aquino v. COMELEC, G.R. 211789-90, 2015)

Strictly speaking, it is not a It is a contest between the contest. It is a proceeding winning candidate and the defeated candidate

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BAR OPERATIONS 20"19 The prohibition on transfer or detail covers any movement of personnel from one station to another, whether or not in the same office or aqency when made or caused during the election period, and includes reassignment. (Aquino v. COMELEC, G.R. 211789-90, 2015)

15. Receiving COC out of allowed !ime and making it appear it was filed on time; or coercing the officer to perform this act 16. Interfering with B.adio or TV broadcast of lawful political program 17. Soliciting votes on election Q.ay

If the reassignment orders are issued prior to the start of the election period, they are automatically rendered beyond the coverage of the pr~hibition and the issuing official cannot be held liable for violation of Section 261 (h) of BP 881. (Aquino v. COMELEC, G.R. 211789-90, 2015)

Under the present law, the COMELEC and other prosecuting arms of the government, such as the DOJ, now exercise concurrent jurisdiction in the investigation and prosecution of election offenses (Arroyo v. Departrr.ent of Justice G.R199082, 2013).

Retention of duties and temporary discharge of additional' duties do not contemplate or involve any movement of personnel, whether under any of the various forms of personnel action enumerated under the laws governing the civil service or otherwise. Hence, they are not covered by the legal prohibition on transfers or detail. (Aquino v. COMELEC, G.R. 211789-90, 2015)

Other Election Offenses Under R.A. No. 6646: 1. Causing the printing of official ballots and election returns by printing establishments not on contract with COMELEC and printing establishments which undertakes unauthorized printing 2. Tampering, Increasing or decreasing the votes received by a candidate or refusing after proper verification and hearing to credit the correct votes or deduct the tampered votes (committ€d by a member of the board of election inspectors) 3. Refusing to issue the certificate of voters to the duly accredited watchers (committed by a member of the BEi) 4. Violating provisions against prohibited forms of election propaganda 5. Failure to give notice of meetings to other members of the board, candidate or political party (committed by the Chairman of the board of canvassers) 6. A person who has been declared a nuisance candidate or is otherwise disqualified who continues to misrepresent himself as a candidate and any publlc offlcer or private individual who knowingly induces or abets such misrepresentation by commission or omission. 7. If the chairman of the BEi fails to affix his signature at the back of the official ballot, in the presence of the voter, before delivering the ballot to the voter.

Elements of Violation of Sec 261 (h) of the Omnibus Election Code (Transfer of Officers and Employees in the Civil Service): 1. Fact of transfer or cJetail within election period; · 2. Transfer or detail made without prior approval of COMELEC. Full List of Election Offenses Under Sec. 68 of the OEC (D2T4R-VS3· P4MC; same grounds for disqualification): · 1. Yote-buying 2. Acts of Terrorism 3. .§.pending in excess of allowable limit 4. §.oliciting. receiving, or making prohibited contributions 5. Campaigning outside feriod 6. Iamper with election propaganda 7. frohibited election propaganda . 8. Coercing §.ubordinates to aid, campaign, or vote.for a candidate 9. Using J:hreat, intimidation, terrorism, fraudulent, devises 10. Soliciting votes or electioneering during registration day and election day within felling place or within 30m radius 11 . Public official or employee who releases, disburses, or expends Eublic funds 45 days before election or 30 days: before special election 12. Political party holds political ~onventions or meetings to nominate official candidates earlier than allowed period 13. Qestroying or cancelling a COC which has not been cancelled 14. Misleading BEi by submitting false or spurious COC to the detriment of a candidate

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Prescription of Election Offenses: 1. Election offenses prescribe after 5 years from the date of their commission. 2. If the discovery of the offense is made in ail election contest proceeding, the period of prescription shall commence on the date which the judgment in such proceedings becomes final and executory. ELECTION AUTOMATION LAW (R.A. NO. 8436 AS AMENDED BY R.A. NO 9369) THE AUTOMATED ELECTION SYSTEM (AES) A system using appropriate technology which has been demonstrated in the voting, counting, consolidating, canvassing, and transmission of election results, and other electoral processes (-Sec. 2, RA. 9369)

Page 226 of 320

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The Automated Election System involves voting, counting, consolidating, canvassing, and transmission but not proclamation (Agm, Philippine Election Laws) ELECTRONIC TRANSMISSION RETURNS ELECTRONIC TRAN MISSION Conveying data in electronic form from one location to another

v. ELECTRONIC

ELECTRONIC RETURNS A document in electronic and printed form directly produced by counting or v0ting machine, showing the: • Date of election province, and the precinct in which it is held • Votes in figures for each car.didate in a precinct where AES is utilized

Human readable instruction that defines what the computer equipment will do RANDOM MANUAL AUDIT Where the AES is used, there shall be a random manual audit in one precinct per congressional district randomly chosen by the Commission in each province and city. Any difference between the automated and manual count

will result in the determination of root cause and initiate a manual count for those precincts affected by the computer or procedural error. (Sec. 29, RA 9369) The COMELEC may conduct automated election even if there is no pilot testing (Information Technology Foundation of the Philippines v. COMELEC, G.R. No. 159139, January 13, 2004)

• The

municipality

PAPER-BASEDELECTION SYSTEM v. DIRECT RECORD ELECTIONSYSTEM PAPER-BASED ELECTION SYSTEM

DIRECT RECORD ELECTRONIC ELECTION SYSTEM

A type of automated election system that uses paper ballots, records and counts votes, tabulates, consolidates/canvasses and transmits electronically the results of the vote count

A type of automated election system that uses electronic ballots records votes by means of a ballot display provided with mechanical or electrooptical components that can be activated by the voter, processes data by means of a computer program, records voting data and ballot images, and transmits voting results electronically

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The Voter Verification Paper Audit Trail_ 0/VPAT} functionality is in the form of a printed receipt and a touch screen reflecting the votes in the vote-counting machine. The WPAT ensures that the candidates selected by the voter in his or her ballot are the candidates voted upon and recorded by the vote-counting machine. ·.. The voter himself or herself verifies the accuracy or the vote. In instances of Random Manual Audit and election protests, the WPAT becomes the best source of raw data for 'votes (Bagumbayan-VNP Moveme11t, Inc. v. COMELEC, G.R. No. 222731, March 8, 2016)

The Commission on Elections may use either a paperbased or a direct recording electronic election system as it may deem appropriate and practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises · SOURCE CODE Page 227 of 320

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2019

GENERAL PRINCIPLES

XI. LOCAL GOVt:RNMENT Corporation

TOPIC OUTLINE UNDER THE SYLLABUS A. Principles of local autonomy B. Autonomous regions and thslr relation to the National Government C. Local Government Units 1. Powers a. Police Power (General Welfare Clause) b. Eminent Domain -.. Taxing Power d. Legislative Power i. Requisites for Valid Ordinance ii. Local Initiative and Referendum e. Ultra vlres Acts 2. Liability 3. Settlement of Boundary Disputes 4. Vacancies and Succession 5. Recall 6. Term Limits

An artificial being created by operation of law having the right of succession, and the powers, attributes and properties expressly authorized by law or incident to its existence. Classes of Corporations according to Purpose Public Corporations- one created by the state either by general or special act for purposes of administration of . local governr:1ent or rendering service in the public interest. It may either be a: Quasi Public Corporation Private Corporation- one established for private purpose, bonefit, aim or end PUBLIC CORPORATIONS 1.

CONCEPT

Public Corporation Juridical entities or agencies formed or organized for the government of a portion of the State.

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Not all corporations, which are not governmer.t owned or controlled, are ipso facto to be considered private corporatior,s as the•e exists another distinct class of corporations or chartered institutions which are otherwise known as "public corporations." These corporations are treated by law as agencies or instrumentalities of the government which are not subject to the tests of ownership or central and economic viability but to a different criteria relating to their public purposes/interests or constitutional policies and objectives and their administrative relationship to the government or any of its departments or offices. As presently constituted, the Boy Scouts of the Philippines is a public corporation created by law for a public purpose, attached to the DECS pursuant to its Charter and the Administrative Code of 1987. It is not a private corporation which is required to be owned or controlled by the government and be economically viable to justify its existence under a special law. The economic viability test would only apply if the corporation is engaged in some economic activity or business function for the government, which is not the case for BSP. Therefore, being a public corporation, the funds of the BSP fall under the jurisdiction of tho Commission on Audit. (Boy Scouts of the Philippines v. COA, G.R177131, 2011).

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Public v. Private v. Quasi-Public PUBLIC Created by the State through the Congress, the President or the Judiciary

PRIVATE Private corporations that are required by law to render public service or supply wants

QUASI-PUBLIC Created by will of incorporators with the recognition of the State.

(a) Distinguished from government-owned and controlled organizations Government-Owned or Controlled Corporations (GOCC) • refer to any agency c,rganized as a stock or nonstock corporation, vested with functions relating to public needs whether gov~rnmental or proprietary in nature and owned directly by the government or through its instrumentalities. GOCCs are 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 at least fifty. one (51) per cent of its capital stock. (Administrative Code, Sec. 2, Par. 13). A GOCC created through a special charter must meet two conditions namely: 1. it must be established for common good: and 2. it must meet the test of economic viability. ($ecfion · 16, Article XII, 1987 Constitution). May be further categorized by the DBM, CSC, and the COA for purposes of the exercise and discharge of their respective powers and functions. They shall be attached to the appropriate department with which they have allied functions or as may be provided by executive order.

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At least 1/3 of the members of the Boards of such corporations should either be a Secretary, Undersecretary or Assistant Secretary.

As a rule, the government and its attached agencies are exempted from appeal bonds because it is presumed that the State is always solvent. This exemption however does not apply to GOCCs. Thus, while a GOCC's majority stockholder, the State, will always be presumed solvent, the presumption does not necessarily extend to the GOCC itself. However, when a GOCC performs a governmental function there is the assurance 'that the government will necessarily fund its primary functions. Thus, a GOCC that is sued in relation to its governmental functions may be, under appropriate circumstances, exempted from the payment of appeal fees. In this case, BBC Is a GOCC performing not a governmental function but a proprietary function which is to engage In commercial television broadcasting. As such, It is not exempted from appeal bonds (Banahaw Broadcasting Corporation v. Pacana, G.R. 171673, 2011). Radio Philippines Network, Inc. (RPN) Is not a GOCC. Under the Administrative Code of 1987, a GOCC is that which refers to any agency organized as a stock or nonstock corporation vested with functions relating to public · needs whether governmental or proprietary in nature, and owned by the government directly or indirectly through its instrumentalities either wholly, or wt:ere applicable as in the case of stock corporations, to the extent of at least 51 % of its capital stock. Although there is a controversy as to the amount of shares transferred to the government, administrative agencies, such as the PCGG and Office of the President agree, that RPN is not a GOCC. Considering that the construction of a statute given by administrative agencies deserves respect, the uniform administrative constructions of the relevant aforementioned laws defining what are GOCCs as applied to RPN is highly persuasive. (Carandang v. Deslerto, G.R. 148076, 2011). The structure of the Philippine National Red Cross is sui ' generis being neither strictly private nor public in nature. (Uban, et al. v. Gordon, G.R. 175352, 2011) 2.

CLASSIFICATIONS

Quasi-Corporations A local water district is a government-owned and controlled corporation with special charter since it is created pursuant to a special law. PD 198 constitutes the special charter by virtue cf which local water districts exist. Unlike private corporations that derive their legal existence and power from the Corporation Code, water districts derive their legal existence and power from PD 198. (Felici.ino v. Gison, G.R. 165641, 2010).

Quasi-corporations - Public corporations created by law as agencies of the State for a narrow and limited purpose. Such quasi-corporations are described as bodies of citizens who have no personal nor private interests to be subserved, but are simply required by the State to do some public work. The State merely clothes one of its agencies or instrumentalities with such corporate powers. It is neither a private corporation but a class of artificial entity.

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benefit and advantage of the community. it is in this character that they are acting as a separate entity for their own purposes and not as a subdivision of the State ·

(J. Padilla Dissent, Fontanilla v. Maliaman, G.R. L55963/61045, 1991). Quasi-corporations are NOT the same as quasi-public corporation Quasi-corporations are NOT the same as quasi-public corporations. Quasi-corporations are classified as public corporations created by the State for a limited purpose, while quasi-public corporations are private corporations that render public service. Quasi-public corporations, on the other hand, is a private corporation which obtained a franchise to supply public needs. An example of a ouasipublic corporation ls PLDT.

Types of Municipal Corporations

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Specie of Private Corporations A quasi-public corporation is a species of private corporations, but the qualifying factor Is the type of service the former renders to the public. If it performs a public service, ther. it becomes a quasi-public corporation. (Philippine Society for the Prevention of Cruelty to Animals v. COA, G.R. No. 169752, September 25, 2007). Municipal Corporation Municipal Corporation - public corporation established by partly as an agent of the State to assist in civil government but chiefly to regulate and administer the local affairs of the city, town or district which is incorporated. ·

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MUNICIPAL CORPORATIONS Elements (LITC): 1. A ,begal creation or incorporation; . 2. A &,orporate name by which the artificial personality or legal entity is known in which all corporate acts are done 3. !nhabitants constituting the population 4. Ierritory Nature and Functions (SID) 1. .§ubordinate branch of the government of the state. 2. tnstrumentality of the state administration. 3. Exercises Qelegated powers cf government Dual Nature of Municipal Corr,oratlons Public/Governmental: it acts as an agent of the State for the government of the territory and the inhabitants within the municipal limits. It exercises by delegation a part of the sovereignty of the State. It includes the us of legislative, executive and judicial powers. Private/Proprietary: it acts in a similar category as a business corporation performing functions not strictly governmental or political, those exercised for the special

Municipal corporation by Prescription - those that exercised their powers from time immemorial without objection from the government, that although no charter exists, it is presumed to have been duly incorporated and had been lost or destroyed When existence presumed the community has claimed and exercised corporate functions; with legislature's knowledgl:3 and acquiescence; and without objection or interruption for a period long enough to afford title by prescription . 1. De Jure Municipal Corporation - those created or · recognized by operation of law 2. De Facto Municipal Corporation - those where the people have organized themselves under color of law, into ordinary municipal bodies exercising their powers, with their rights dependent quite as much as on acquiescence as on the rept;larity of their origin Requisites for creation, conversion, division, merger or dissolution Requisites of a municipal corporation by prescription (CLAW) 1. fommunity claimed and exercised corporate functions 2. With knowledge and ~cquiescence of the Legislature 3. Without interruption or ob;ection 4. For a period .bong enough to afford it title by prescription Requisites of a de facto municipal corporation (GLAC) 1. Valid 1,.aw authorizing incorporation 2. Attempt in !i_ood faith to organize under it 3. £olorable compliance with law 4. ~ssumption of corporate powers ·Municipal corporation by estoppel A municipal corporation by estoppal is a corporation which is so defectively formed as not to be a de facto corporation . but is considered a corporation in relation to someone who dealt with it and acquiesced in its exercise of its corporate functions or entered into a contract with it.

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In a de jure municipal corporation, it is its valid incorporation that makes it impregnable to any attack, direct or otherwise. How validity attacked

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The validity of the incorporation and corporate existence of a municipal corporation may not be attacked collaterally. It may only be challenged by the State in direct proceedings such as quo warranto, which has a prescriptive period of 5 years from the time the act complained of was committed.

Who partlclpates in the plebiscite? A plebiscite for creating a new province should indude the participation of the residents of the mother province in order to conform to the constitutional requirement. (Tan v. COMELEC, GR No. 73155, July 11, 1986)

Authority to create LGUs (Local Government Code, sec. 6) 1. By law enacted by Congress a. Province b. City c. Munic;ipality d. Any other political subdivision e. A barangay may also be created by law (Local Government Code, sec. 386) 2. By an ordinance passed by the Sangguniang Panlalawigan or Panlungsod - Applicable for barangay located within its territorial jurisdiction

When Plebiscite Required When an LGU is created, divided, merged, abolished, or its boundaries substantially altered [LGC, sec. 1 OJ. This includes: Conversion (e.g. from a city to a highly urbanized city) [Sec. 453, LGC; see also Tobias v. Abalos, G.R. No. 114783 (1994 )) _Downgrading (e.g. from an independent component city to a component city) [Miranda v, Aguirre, G.R. No. 133064 (1999), on the downgrading of Santiago, lsabela]

Power of creation is leyislative in nature When Plebiscite not Rer,uired

The authority to a eate municipal corporations is essentially legislative in nature. [Pelaez v, Auditor General, G.R. No. L-23825 (1965)]

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There is no need for any plebiscite in the creation, dissolution or any other similar action on the following: Legislative Districts: Legislative districts are not political subdivisions through which functions of the government are carried out. [Bagabuyo v. COMELEC, G.R. No. 176970 (2008)) Administrative Regior,s: Administrative regions are not territorial and political subdivisions. The power to create and merge administrative regions rs traditionally vested in the President. Hence, the merger ot' provinces that did not vote for inclusion in the ARMM into existing administrative regions does not require a plebiscite. [See Abbas v. COMELEC, G.R. No. 89651 (1989)1

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The enactment of a LGC is not a sine qua non for the creation of a municipality, and before the enactment of such, the power remains plenary except that creation should be approved in a plebiscite. [Torralba v. Sibagat, G.R. No. L-59180 (1987)) ', )

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Plebiscite Requirement In accordance with criteria set by the LGC, no province, city, municipality or barangay may be created, divided, rnerged, abolished or its boundary substantially altered, except in accordance with the criteria established in the LGC and subject to approval by a majority of the votes cast in a plebiscite in the political units affected. (CONST. ART.X, Sec.10}

"Material change" as standard If the creation, division, merger, abolition or substantial alteration of boundaries of an LGU will cause a material change in the political and economic rights of a political unit, the residents of such political unit should have the right to participate in the required plebiscite. [Miranda v. Aguirre (1999)1

The plebiscite must be conducted by COMELEC within 120 days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date. (LGC, Sec.10) (, }" ' ... .;,

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Plebiscite affected"

Hence, in the conversion of a component city to a highly urbanized city, the residents of the province must participate. The conversion of the city will, among others, result in reduction in trucing jurisdiction and reduced economic viability of the province. {Umali v. COMELEC, G.R No. 203974 (2014)1

must be "in the political units directly

When the law states that the plebiscite shall be conducted "in the political units directly affected," it moans that the residents of the political entity who would be economically dislocated by the separation of a portion thereof have the right to vote in said plebiscite. [Padilla v. COMELEC, G.R. No. 103328 (1992)]

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But the inhabitants of a neighboring city (e.g. San Juan) are ~roperly excluded from a plebiscite concerning the

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conversion of a city (e.g. Mandaluyong) to a t;,ghly urbanized city. [See Tobias v. Abalos (1994)1 Indicators for the creation or conversion of LGU (LIP) 1. ,band Area 2. [ncorne 3. f opulation ccnslderauone in the creation of local government units The central policy considerations in the creation of local government units are economic viability, · efficient administration and capability to deliver basic services to constituents. The criteria prescribed by the LGC (income, population, and land area) are all designed to accomplish these results. The primordial consideration in the creation of local government units, particularly a province is economic viability. (Navarro v. Ermita, G.R. 180050, 2011). The creation, division, merger, abolition, or substantial alteration of boundaries of LGU should be approved by a majority of the votes cast in a plebiscite cailed for the purpose in the political unit or units directly affected.

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Commences upon the election and qualification of its chief executive and a majority of members of the Sanggunian, unless some other time is fixed by the law or ordinance creating it. Dissolution of Municipal Corporations Dissolved by a repeal of the charter As a result of: 1. Annexation, 2. Merger, 3. Consolidation, 4. Division. Specific Requirements Income

Population

Average annual income for the last 2 consecutive years

Total number of inhabitants within LGU's territory

Generally, must be contiguous

Compliance attested by

Department of Finance

NSO

land Management Bureau

Province

P20M (1991 Prices)

250,000

2,000 sq.km

Highly Urbanized City

P50M (1991 Prices)

200,000

100 sq.km.

Component City

P100M (2000 prices)

150,000

100 sq.km.

Municipality P2.5M (1991 prices)

25,000

SO sq.km.

2,000 or 5,000 if Metro Manila or HUCSs

No requirement except for contiguity

'Boundaries' "Boundaries" in Sec 10, Art Xis NOT limited to the physical metes and bounds of the LGU, but also to its political boundaries. In one case, a city was converted into an HUC which resulted in material changes in the economic and political rights of the people and LGUs, thus, the plebiscite requirement under Sec 10, Art X should apply. The entire province stands to be directly a~ected by the conversion hence should be included in the plebiscite. (Naval v. COMELEC, 2014) Division and Merger cif LGUs Division shall not reduco the income, population, lanr:I area of the LGU to less than the minimum requirement prescribed. Income classification should not fall below the current income classification prior to division (Local Government Code, sec. 8)

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Abolition of LGU When income, population, or land areas are irreversibly reduced to less than the minimum standards prescribed for creation as certified by the national agencies concerned. The law or ordinance abclishing LGU shall specify the province, city, municipality or barangay with whi<:h the LGU sought to be abolished will be incorporated or merged. (Local Government Code, sec. 9)

No requirement

Land Area

Corporate existence of a municipal corporation Page 232 of 320

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POLITICAL LAW No. The principle of local autonomy under the Constitution 'simply means 'decentralization'. It does not make the local government sovereign within a State or an imperium in lmpeio. (Basco v. PAGCOR, GR No 91649, May 14, 1991)

Which requirement must be satisfied? Province or City 1. 2. Municipality

Barangay

Income and Either population or land area

1. Income 2. Population and 3. Land area 1. Population and 2. Territorial Contiguity

Devolution - it refers to the act by which the national government confers power upon the various LGUs to perform specific functions. It is mandatory under the LGC.

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A. PRINCIPLES OF LOCAL AUTONOMY Section 2, Art. X of the Constitution provides that LGUS "shall enjoy local autonomy." This is decentralization of administration and not decentrallzatlon of power. (Limbona v. Conte Mange/in, G.R. 80391, 1989) Declaration of Policy The territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. The State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The State shall ensure the accountability of local government units through the institution of effective mechanisms of recall, initiative and referendum. All national agencies are required to conduct periodic consultations with the appropriate tGUs, NGOs, people's orqanizations and other concerned sectors before any project or program is implemented in their respective jurisdictions. [Sec. 2, LGC] Local government unit- a political subdivision constituted by law and possessed of substantial control over its own affairs. Local autonomy - can be considered a measure of decentralization of the functions of government. This means that local governments have certain powers given by the Constitution which may not be curtailed by the national government, beyond these, local gcvernments may not enact ordinances contrary to the statute. (BERNAS)

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Decentralization - it is the devolution of national administration, not power, to the local levels, in which local officials rernaln accountable to the central government in the manner the law may provide.

DEVOLUTION Political decentralization

Both are decentralize-lion

Administrative decentralizetion

Transfer of personnel, funds/asset, delivery of basic services, regulatory powers

Both involve transter from national government to LGU

Transfer of powers/ functions only

Recipients of powers: LGU

Both have its source of power from the national government

Recipients of powers: field offices/regional offices of the same agencies

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Powers are specific; LGC enumeration Is exclusive LGU cannot assume a national government power not given to it. It may only do sc when power is delegated (devolved power)

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DECENTRALIZATION

Thf!re must be a law for both

No enumeration of powers needed in the LGC

Both have a deadline for effectivity - 6 months

President or department itself determines what powers will be delegated

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Limitation on LGU's local autonomy

action or step as judgment of the latter for prescribed by law to make that of the former. them perform their duties

The President shall exercise general supervision over local governments Even as the Constitution guarantees autonomy to local government units, the exercise of local autonomy is still subject to the power of control by Congress. (Dadcle v

Officers in control lay down the rules in the performance or accomplishment of an act. If these rules are not followed, they may, in their discretion, order the act undone or redone by their subordinates . or even decide to do it themselves.

GOA, GR No 125350, December 3, 2002) Levels of Decentralization or Kinds of Autonomy 1. Administrative Autonomy or Decentralization of Administrationthe central government delegates administrative powers to the political subdivisions. Purposes for delegatl,:m: (BD-MNR) 1. To ~roaden the local power base 2. To make the units more Responsive and accountable 3. To ensure the full .Qevelopment of LGUs into selfreliant communities 4. To break the .Monopoly of the national government over managing local affairs 5. To relieve: the National g0vernment from the burden of managing local affairs

Supervisory power of National Gov't over LGU National government agencies exercise only supervisory powers over LGUs. The power of review is part of· supervision; if there is no enabling law. no such power of review will be granted to national government agencies.

2. Political autonomy or Decentrnlization of Power involves the abdication of political power in favor of LGUs declared to be autonomous. It would amount to self-immolation because the autonomous government would become accountable to its constituency, not to the central government.

Scope of Power of Supervislon The power of supervision carries with it the power to investigate and discipline to see to it that laws are effectively carried out.

3. Deconcentration - it is the transfer of power, authority or responsibility , or the discretion to plan, ctecide, and manage from central point or local levels, but within the central or national government itself. The nature of the transfer is administrative and the approach is sectoral.

President's power over LGUs The President has only the power of supervision over LGUs. He cannot interfere with the local governments as long as they act within the scope of their authority.

4. Debureaucrati:tation - it is the transfer of some public functions and responsibilities , which the government may perform, to private entities or NGOs, it is people's empowerment or participation in local governance. · Supervision v. Control SUPERVISION

CONTROL

Power of an officer to alter, . modify, nullify or set aside The overseeing or the what a subordinate officer power of an officer to see has done in the that the subordinate performance of his duties officers perform their and to substitute the duties. judgment of the forms. for that of the latter. If subordinate fails, If subordinate fails, superior may take such superior may substitute the

Supervising officials merely see to it that the rules are followed, but they themselves do not lay down such rules, nor do they have the discretion to modify or replace them. If the rules are not observed, they may order the work done or redone, but only to conform to such rules. They may not prescribe their own manner of execution of the act.

The President exercisos direct supervision over provinces, highly urbanized cities and independent component cities. He exercises Indirect supervision over component cities and municipalities through the provinces. He also exercises indirect supervision over barangays through the city or municipality concerned.

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Autonomous regions - created by an organic act and through voting in a plebiscite. Currently the 1987 Philippine Constitution allows for 2 autonomous regions. The President has general supervision over autonomous regions.

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Powers retained by the National Government: 1. National defense and security · 2. Foreign relations 3. Monetary affairs

coordination and delivery of basic, regular and direct services and effective governance of inhabitants within its territorial jurisdiction

Power to create provinces and cities Ordinary statute cannot amend an organic:act. It must be by plebiscite. (Pandi v. CA, G.R. 116850, 2002). Only Congress can create provinces and cities, because creation of such will lead to creation of IP.gislative districts too. The ARMM Regional Assembly cannot create provinces and cities (Sema v. COMELEC, G.R. 177597/178628, 2008). Salient Features of the LGC of 1991 There is devolution of certain national governmental powers to LGU, such as: Public Works Social welfare Construction of school buildings and facilities Health Agriculture and Tourism Functions Increase in national tax share for LGUs from 11 % to 40% starting 1994 Increase in tax power Territorial and Political Subdivisions Autonomy

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it is a cluster of municipalities or municipalities and component cities, and as a political and corporate unit of government, serves as dynamic mechanism for development processes and effective governance of LGU's within its territorial jurisdiction

City

it is composed of more urbanized and . developed barangays, serves as a general purpose government for coordination, and delivery of basic, . regular and direct services . and effective governance of inhabitants within its territorial jurisdiction

{j Municipality

the basic political unit which serves as primary planning and implementing unit of government policies, plans, programs, projects and activities in a community.

Autonomous Reg ton

it consists of provinces, cities, municipalities and geographical areas sharing common and distinctive histoi ical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of the Constltutlon and the national sovereignty as well as the territorial integrity of the Philippines.

Special Metropolitan Political Subdivision

Congress may, by law, create special metropolitan political subdivisions subject to a plebiscite. 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 will hereby be created shall be limited to basic services requiring coordination.

Enjoying Local

Province

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consists of a group of barangays and serves primarily as a general purpose government for

B. AUTONOMOUS REGIONS AND THEIR RELATION TO THE NATIONAL GOVERNMENT

1987 Constitution: ; (Section 15) The autonomous regions provided by the Constitution are: a. Autonomous regions in Muslim Mindanao b. Autonomous regions in the Cordilleras Autonomous regions consist of provinces, cities, municipalities, and gf'3ographical areas sharing: a. common and distinctive historical and cultural heritage,

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c.

economic and social structures, and other relevant characteristics.

(Section 16) The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. (Section 18) An organic act shall be enacted for each autonomous region with the asslstance and participation of the regional consultative coinrnlssion composed of representatives appointed by the President from a list of nominees from multi-sectoral bodies. This would define the basic structure of government for the region, and special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws. To create an auionnmous region, a majority of the votes cast by the consfltuent units in a plebiscite called for the purpose is required. Only those provinces, cities. and geographic areas voting favorably in such plebiscite shall be lncluded in the autonomous re ion. (Section 20) The organic act of autonomous reqionsshall provide for legislative powers over: (1) Administrative organization; · (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for · the promotion of the general welfare of the people of the region.

d.

e.

f. g.

h.

Section 21. The preservation of peace and order within the regions shall be the responsibllity of the local police agencies which shall be organized, maintained, ' supervised, and utilized in accordance with applicable laws. i. RA 11054: Organic Law for the Bangsamoro Autonomous Region in Muslim Mindanao a. Bangsamoro People, defined: Those who, at the advent of the Spanish colonization, were considered natives or original inhabitants of Mindanao and the Sulli archipelago and its adjacent islands, whether of mixed or of full blood shall have the right to identify themselves, thei; spouses and descendants, as Bangsamoro. b. The present geographical area known as the Autonomous Region in Muslim Mindanao

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Section 3, Article 1/: General Welfare Clause: Section 3. The Bangsamoro Government 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 these which are essential to the promotion of general welfare. Within its territorial jurisdiction, the Bangsamorb Government 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 capabillties, improve public morals, enhance economic prosperity and social justice, promote full employment among Its residents, maintain peace and order, and preserve the comfort and convenience of its inhabitants. The President may suspend the Chief Miriister for a period not exceeding six (6) months for willful violation of the Constitution, national laws, or this Organic Law. This created the National GovernmentBangsamoro Government Intergovernmental Relations Body. hereinafter referred to as "Intergovernmental Relations Body," to coordinate and resolve issues on intergovernmental relations through regular consultation and continuing negotiation in a non-adversarial manner. Unresolved issues shall be elevated to the President, through the Chief Minister. The National Government and the Banasamoro Government shall each appoint representatives to the Intergovernmental Relations Body. The Intergovernmental Relations Bocly shall be supported by a Joint secretariat. Bangsamoro Participation In National Government.As far as practicable, the Bangsamoro Government shall be represented in the departments, offices, commissions, agencies and bureaus of the National Government that implement and enforce policies, programs, and projects of the National Government in the Bangsamoro Autonomous Region. The defense and security of the Bangsamoro Auton9mous Region shall be the responsibility of the National Government. This act also provides for an Annual Block Grant. The National Government shall provide an annual block grant which shall be the share of the Bangsamorc Government in the national internal revenue tax collections of the Bureau of Internal Revenue and collections of the Bureau of Customs. The amount shall be sufficient for the exercise of the powers and functions of the Bangsamoro Government under this Org<1nic Law and in no case shall be less than the last budget

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received by the Autonomous Region in Muslim Mindanao immediately before the establishment of the Bangsamoro Autonomous Region.

a. Police Power (General Welfare Clause) Police power is not Inherent In rr.unicipal corporations. Under the LGC, LGUs exercise police power under the general welfare clause; it refers to the power of regulation.

1. POWERS OF LOCAL GOVERNMENT UNITS Sources of the powers of LGUs: 1. Constitution 2. Statute 3. Those applicable to all municipal corporations or to the class to which it belongs · 4. Special acts of the legislature 5. Charter · Four Categories of Powers Exercised by LGUs:

1. Powers expressly granted 2. Powers necessarily implied therefrom 3. Powers necessary, appropriate, or Incidental for efficient and effective governance 4. Powers essential to the promotion of the general welfare [Sec. 16, LGC) Within their respective territorial jurisdictions, LGUs shall ensure and support:

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(a) Preservation and enrichment of culture (b) Promotion of health and safety (c) Enhancement of the right of the people to a balanced ecology (d) Development of self-reliant scientific and technological capabilities (e) Improvement of public morals (f) Enhancement of economic prosperity and social justice (g) Promotion of full employment among residents (h) Maintenance of peace and order (i) Preservation of the comfort and convenience of its inhabitants [Sec. 16, LGC) Two Branches of General Welfare Clause

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General legislative power - Authorizes municipal councils to enact ordinances and make regulations not repugnant to law and may be necessary to carry into effect and discharge the powers and duties conferred upon it by law Police power proper - Authorizes the municipality to enact ordinances as may be proper and necessary for the health and safety, prosperity, morals, peace, good order, comfort and convenience of the municipality and its inhabitant, and for the protection of their property [Fernando v. St. Scholaslica's College, G.R. No. 161107 (2013))

Requisites for valid exercise of police power 1. Lawful subject: public interest requires interference. 2. Lawful means: means is necessary to accomplish the purpose and not unduly oppressive upon individuals. General Welfare Clause - it is the statutory dP,legation of police power of the state to LGUs. (Local Government Code, sec. 16). Test to Determine Validity of Exercise Police Power 1. The subject matter of the law must be lawful, which means that public interest, as distinguished from those of a particular interest, requires the interference of the State; 2. The means employed to attain the purpose of the law must be reasonably necessary; 3. It must not be unduly oppressive upon individuals. (NTC v, Philippine Veterans Bank. G.R. Nos. 8413233, December 10, 1990). Branches of the General Welfare Clause: General legislative power - authority to enact ordinances and regulations as may be necessary to carry into effect and discharge the powers and duties conferred upon the municipal council by law. Police power proper - authority lo enact ordinances as are necessary and proper to provide for the health and safety, promote prosperity, improve morals, peace, good order etc. Limitation: (DETEC) 1. gxpress grant by law 2. Ierritoriality, meaning power is exercisable only within territorial limits of the local government unit, except for protection of water supply. {Rodriguez, The Local Government Code of 1991 Annotated, 9, 2003). 3. Does not contravene the gqual protection clause 4. Does not contravene Que process 5. Must not be &_ontrary to law . Tests used to detennine validity of the exercise of Police power To invoke the exercise of police power as the rationale for the enactment of an ordinance and to free it from the imputation of constitutional infirtnity, two tests have been used: (1) the rational relationship testthere must be a concurrence of a lawful subject and lawful method. (2) the strict scrutiny test. Under the strict scrutiny test, the focus is on the presence of c.ompelling, rather than

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ATENEO CENTRAL BAR OPERATIONS 2019 substantial governmental Interest and on the absence of less restrictive means for achieving that interest. (Fernando v, St. Scho/astica's College, G.R. 161107, 2013). An ordinance extending burial assistance of P500 to a bereaved family whose gross income does not exceed P2,000 a month, has been upheld by the as a valid exercise of police power. (Binay v. Domingo, G.R. 92389, 1991). · Ordinances regulating waste removal carry a strong presumption of validity. Necessarily, LG Us are statutorily sanctioned to impose and collect such reasonable fees and charges for services rendered. (Ferrer v. Bautista, G.R. 210551, 2015). LGUs can also substantiate its defense of the power to regulate businesses within its ierritorial Jurisdiction. (City of 1/oilo v. Judge Honrado, G.R. 160399, 2015). For local government infrastructure projects, Regional Trial Courts may issue provisional injunctive reliefs against government infrastructure projects only when: . 1. there are compelling and substantial constitutional violations; 2. there clearly exists a right in esse; ' 3. there is a need to prevent grave and irreparable injuries; 4. there is a demonstrable urgency to the issuance of the injunctive relief; and 5. when there are public interest at stake in restraining or enjoining the project while the action is pending that far outweighs a. the inconvenience or costs to the party to whom the project is awarded and b. the public benefits that will result from the completton of the project. The time periods for · the validity of temporary restraining orders issued by trial courts should be stricttf followed. No preliminary injunction should issue unless the evidence to support the injunctive relief is clear and convincing. (Dynamic Builders and Construction Co., Inc. v. Presbitero, G.R. 174201, 2015) A municipality is a real party-in-interest and an indispensable party that stands to be directly affected by any judicial resolution on the case assailing the validity of the loan, considering that: (a) the contracting parties to the loans are the bank and the municipality; and (b) the municipality owns the public plaza as well as the improvements constructed thereon, and must therefore be impleaded In the case. (Land Bank v. Cacayuran, G.R. 191667, 2015). Page 238

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Liabilities arising from construction contracts of LGUs do not partake of loans or forbearance of money but ere in the nature of contracts of service. Hence, the rate of legal interest imposable on the liability to pay for the service is 6% per annum. (WT Construction, Inc. v. The Province of Cebu, GR 208984, 2015) A person is the real party .. in-interest to assail the constitutionality and legality of the ordinances because he is a registered co-owner of a residential property in the city and that he paid property tax which already included the · SHT and the garbage fee: He has substantial right to seek a refund of the payments he made and to stop future imposition. While he is a lone petitioner, his cause of action to declare the validity of the subject ordinances is substantial and of paramount interest to similarly situated property owners in the city. (Ferrer v. · Bautista, G.R. 210551, 2015) The Barangay. Assembly cannot exercise any police power. Under Section 398 of the LGC, it can only recommend to the Sangguniang Barangay the adoption of measures for the welfare of the barangay and decide on the adoption of an initiative. Also, the Lig.i ng mga Barangay cannot exercise legislative powers. It is not a local government unit and its primary purpose is to determine representation of the liga in the sanggunians, to ventilate, articulate and crystallize issues affecting barangay government administration, and to secure solutions for them through proper and legal means. (Onon v, Fernandez, G.R. No. 139813, 2001) b. Eminent Domain Requisites: (POJOC) 1. Expropriatilm should be for a fublic use or purpose or for the welfare of the poor or landless. 2. Qrdinance authorizing the local chief executive to subject a certain property to expropriation 3. Paymant of Just compensation 4. Valid and definite Qffer to pay which was not

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Exercised by the LGU through its thief executive.

Jurisdiction An expropriation suit falls under the Jurisdiction of the RTCs. The subject of an expropriation suit is the government's exercise of eminent domain, a matter that is incapable of pecuniary estlmation. [Barangay San Roque v. Heirs of Pastor, G.R. No. 138896 (2000)] Just Compensation of 320

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POLITICAL LAW

• The determination of "just compensation" In eminent domain cases is a judicial function. Hence, a statutory provision on a fixed formula in the computation of just compensation in cases of acquisition of easements of right of way is not binding upon the Court. [National Power Corp. v. lleto, G.R. No. 169957 (2012)] • Just compensation is determined as of the time of actual taking [Sec. 19, LGCJ Requisites for the Immediate Entry by the LGU Filing of the cornplalnt for expropriation sufficient in form and substance; and Deposit of an amount equivalent to 15% of the fair market value of the property to be expropriated based on the current tax declaration [Sec. 19, LGC] When LGU may take possession of property The LGU may immediately take possession of the property upon the filing of the expropriation proceedlnqs and upon making a deposit with the proper court of at least 15% of the fair market value of the property based on the current tax declaration of the property to be expropriated. Upon compliance with these requirements, the issuance of a writ of possession becomes ministerifil. (lloilo City v, Legaspi,

G.R. 154614, 2004). Amount to be Paid for Expropriation The amount to be paid for the expropriated property shail be determined by the proper court, based on the fair market value at the time of the taking of the property.

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The determination of just compensation is a judicial function and any valuation for just compensation laid down in the statutes may serve only as a guiding principle. It may not substitute the court's own judqmont as to what amount should be awarded and how to arrive at such amount. (Hon. Vergara, in his capacity as City Mayor of Cabanatuan City v. Grecla, G.R. 185638, 2016). Which lands to expropriate

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Private lands rank last in the order of priority for purposes of socialized housing. In the same vein, expropriation proceedings are to be resorted to only after the other modes of acquisition have been exhausted. Compliance with these conditions is mandatory because these are the only safeguards of oftentimes helpless owners of private property against violation of due process when their property is forcibly taken from them for public use. Rule on Socialized housing

Under the Urban Development and Housing Act, expropriation by an LGU for purposes of urban land reform and housing shall occur only as a last resort. It must be shown by the LGU that other rnethods of acquisition (community mortgage, land swapping, land assembly or consolidation, land banking, donation to the Government, joint venture agreements, and negotiated purchase) have been exhausted [Sec. 1 OJ I If all the other metho::ls have been exhausted and expropriation to continue, the LGU shall acquire lands for socialized housing in the following order: Government lands Alienable lands of the public domain Unregistered or abandoned and idle lands Lands within Areas for Priority Development Unacquired BLISS sites Private !ands [Sec. 9] Furthermore, lands of small-property owners are exempt from expropriation for purposes of socialized housing. "Small- property owners" are defined by two elements: They are owners of real property which consists of residential lands with an area of not more than 300 sq. meters in highly urbanized cities, and 800 sq. meters in other urban cities; and They do not own real property other than the same. [Sec. 3(q)] Returning the Property When private land Is expropriated for a particular public use and that purpose is abandoned, there is no "implied contract" that the properties will be used only for the public purpose for which they were acquired. Property is to be returned only when it is expropriated with the condition that when said purpose is ended or abandoned, the former ' owner reacquires the property so expropriated, and not when the expropriation decree gives to the entity a fee sirnp'e which makes thE! land the expropriator the absolute owner of the property. [Air Transportation Office v. Gopuco, G. R. No. 158563 (2005)] Role of supervising LGU - It can only declare the ordinance invalid on the sole ground that it is beyond the power of the lower LGU to issue. Hence, it cannot declare the ordinance invalid on the ground that it is unnecessary. Role of national government - The approval of the national government is not required of local governments to exercise the power of eminent domain.

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Role of judiciary - It can Inquire into the legality of the exercise of the right and determine whether there was a genuine necessity. Procedure for expropriation LGUs

NATIONAL GOVERNMENT

1. The filing of a complaint for expropriation sufficient in form and substance; and

1. The filing of a complaint for expropriation sufficient in form and substance; and

2.

2. The making of a deposit equivalent to the assessed value of 'the ' property subject to expropriation.

The deposit of the amount equivalent to 15% of the fair market value of the property to be expropriated based on its current tax declaration (lloHo v. Legaspi, G.R. 154614, 2004). See: Local Code.sec. 19

See: Rules of Court, Rule 67 and Robern Government Development Corporation v. Quitain, G.R. 135042, 1999

c. Taxing Power Each local government unit shall have the power to create its own sources of revenues and to levy taxes, tees, and charges subject to such guidelines and limitatlons as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments. (1987 Constitution, Art. X, Sec. 5) Principles of Taxation Taxation shall be uniform: Taxes, fees, and charges: (a) Shall be eauitable and based as far as practicable on the taxpayer's ability to pay; (b) Shall be levied and collected only for a public purpose; · (c) Shall not be unjust, excessive, oppressive, or confiscatory; and (d) Shall not be contra;y to law, public policy, national economic policy, or in restraint of trade; Collection shall in no case be left to any private person; Revenue shall inure solely to the benefit of the levying LGU, unless otherwise specified; and Each LGU shall, as far as practicable, evolve a progressive system of taxation [Sec. 130, LGC]

Taxes, fees, and charges which accrue exclusively for their use and disposition Just share In national taxes which shall be automatically and directly released to them Equitable share in the proceeds from utilization and development of national wealth and resources within their territorial jurisdiction [Sec. 18, LGC] LGUs may create their own sources of revenue

All LGUs are empowered to create their own sources of revenue and to levy taxes, fees, and charges subject to the provisions on local taxation consistent with tile basic policy of local autonomy. The Sanggunian concerned through an ordinance has the power to impose a tax, fee, or charge. The procedural requirements of public hearing and publication must be observed for purposes of compliance with the requirements of due process. (Local Government Code, Sec. 18) Powers to generate and apply resources 1. To establish an organization that shall be responsible for the efficient and effective implementation of their development plans, program objectives, and priorities. 2. To create their own sources of revenues and to levy taxes, fees, and charges which shall accrue exclusively for their use and disposition and which shall be retained by tnem. . 3. To have a just share in national taxes which shall be automatically and directly released to them without need for any further action. 4. To have an equitable share in the proceeds from the utilization and development of the national wealth and resources within their respective territorial jurisdictions including sharing the same with the inhabitants by way of direct benefits. 5. To acquire, develop, lease, encumber, alienate, or otherwise dispose of real or personal property held by them in their proprietary capacity and to apply their resources and assets for productive, developmental, or welfare purposes, in the exercise or furtherance of their governmental or proprietary powers and functions and thereby ensure their development into self-reliant communities and active participants in the attainment of national goals.

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in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, that this Court entertains a petition questioning its rulings (Veloso v, GOA, G.R. 193677, 2011).

Requisites of a Tax Ordinance 1. Notice 2. Actual conduct of public hearing When to file appeal to question validity and legality of tax ordinance The law requires that a dissatisfied taxpayer who questions the validity or legality of a tax ordinance must file its appeal to the Secretary of Justice within 30 days from effectivity thereof. In case the Secretary decides the appeal, a period of 30 days is allowed for an aggrieved party to go to Court. But if the Secretary does not act after the lapse of 30 days, a party could already proceed to seek relief in Court. (Reyes et al v. CA, G.R. 118233; Sec. 187, 1991 LGC) Fiscal Autonomy means that local government units have the power to create their own sources of revenue in addition to their equitable share in the tax collection released by the government and the power to allocate resources in accordance with their own priorities. (Pimentel v. Aguirre, G.R. 132988, 2000). Lr

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Nature of Fiscal Autonomy Under existing laws, LGUs enjoy not only administrative autonomy, but also local fiscal autonomy, a. This means that tGUs have the power to create their own sources of revenue in addition to their equltabte share in the national taxes released by the national government, as well as the power to allocate their resources in accordance with their own priorities. . b. It extends to the preparation of their budgets, and local officials in turn have to work within the constraints thereof. They are not formulated at the national level and imposed on local governments, whether they are relevant to local needs and resources or not. [Pimentel v. Aguirre (2000))

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The GOA is endowed with enough latitude to determine, prevent, and disallow irregular, unnecessary, excessive, extravagant,· or unconscionable expenditures of government funds. The Court had therefore previously upheld the authority of COA to disapprove payments which it finds excessive and disadvantageous to the government; to determine the meaning of "public bidding;" and when there is failure in the bidding, to disallow expenditures which it finds unnecessary according to its rules even if disallowance will mean discontinuance of foreign aid; to disallow a contract even after it has been executed and goods have been delivered. Tnus, LGUs, though granted local fiscal autonomy, are still within the audit jurisdiction of the GOA. It is only when the COA has acted without or

Internal Revenue Allotment (IRA) share of LGUs The current sharing is 40% local, 6~)% national. The share of LGUs cannot be reduced, except if there is an unmanageable public sector deficit. The Congress can neither Impose a !imitation on the manner in which IRA is released for the Constitution provides for automatic I release. (Local Government Code, secs. 284 & 285). General Rule: LGUs shall have a 40% share in the national internal revenue taxes based on the collection of the third fiscal year preceding the current fiscal year. [Sec. 284(c), LGC] Exception: When the national government incurs an unmanageable public sector deficit, the President authorized to reduce the allotment to 30%. [Sec. 284, par. 2, LGC]. Requisites for Exception: 1.

Unmanageable public sector deficit;

2. Recommendation of the Secretaries of (a) Finance, (b) Internal and Local Gov't, and (c) Budget and Management; and 3. Consultation with (a) heads of both houses of Congress, and (b) presidents of the liga. [Sec. 284, par. 2, LGC] Automatic Release The share of each LGU shall be released, without need of any further action, directly to the respective treasurer on a quarterly basis within five (5) days after the end of each quarter. and which shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose. [Sec. 286(a), LGC] Can BIR determine applicabllity of local ordinances? The BIR has no authority to determine the applicability of local' ordinances. Besides, even the Bureau itself states

Page 241 of 320

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The absence of the public in the public bidding Impels the City Treasurer to purchase the property in behalf of the city. Reason would therefore dictate that this purchase by the City is the very forfeiture mandated by the law. The contemplated "forfeiture" in the provision points to the situation where the local government ipso facto "forfeits" the property for want of a bidder (The City of Davao v. Intestate Estate of Amado S. Dalisay, G.R. 207791, 2015).

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2019

that the exemption shall not apply if the sand and g'ravel were to be disposed of commercially. An exemption from the requirements of the provincial government should have -, a clear basis, whether In law, ordinance, or even from the contract itself. (Lepanto Consolidated Mining Company v. Ambanloc, G.R. 180639, 2010). Nature of L.GUs power to tax LGUs have no inherent power to tax except to the extent that such power might be delegated to them either by the basic law or by the statute. Under the 1987 Constitution, where there is neither a grant nor a prohibition by statute, the tax power must be deemed to exist althouqh Congress may provide statutory l!mitations and guideline'>. The basic rationale for the current rule is to safeguard the viaoility and self-sufficiency · of local government units by directly granting them general and broad tax powers. Nevertheless, the fundamental law did not intend the delegation to be absolute and unconditional; the constitutional objective obviously is to ensure that, while the local government units are being strengthened and made more autonomous, the legislature must still see to it that (a) the taxpayer will not be over-burdened or saddled · with multiple and unreasonable impositions; (b) each local government unit will have its fair share of available resources; (c) the resources of the national government will not be unduly disturbed; and (d) local taxation will be fair, uniform. and just. (Ferrer v. Bautista, G.R. 210551, 2015). To pass judicial scrutiny, a regulatory fee must not produce revenue in excess of the cost 1,f the regulation because such fee will be construed as an illegal tax when the revenue generated by the regulation exceeds the cost of · the regulation. (Ferrer v. Bautista, G.R. 210551, 2015). While local govemmer.t units are authorized to burden all such other class of goods with "taxes, fees and charges," excepting excise taxes. a specific prohibition is imposed barring the levying of any other type of taxes with respect to petroleum products. (Petron Corporation v. Tiangco, G.R. 158881, 2008; Batangas Cny v. Piliplnas Shell Petroleum Corp., G.R. 187631, 2015) Setting the rate of the additional levy for the special education fund at less than 1% is within the taxing power of local government units. It is consistent with the guiding constitutional principle of local autonomy. The option given lo a local goverrnnent unit extends not only to the matter of whether to collect but also to the rate at which collection Is to be made. The limits on the level of additional levy for the special education fund under Section 235 of the Local

Government Code should be read as granting fiscal flexibility to local government units. (Demaa/a v. COA, G.R. 199752, 2015). By operation of Sec. 151 of the LGC extending to cities the authority of provinces and municipalities to levy certain taxes, fees, and charges, cities may therefore validly levy amusement taxes on cinemas subject to the parameters set forth under the law. (Film Development Council of the Philippines v. City of Cebu et al, G.R. 204418, 2015). · LGUs shall accrue exclusively eannark

to the LGU and to

Taxes levied by LGUs shall accrue exclusively to the LGU and to earmark, If not altoqether confiscate, the income to be received by the LGU from the taxpayers in favor of and for transmlttal to the Fiim Development Council of the Philippines, is repugnant to the power of LGUs to apportion their resources in line with their priorities (Film Development Council of the Philippines v, City of Cebu et al, G.R. 204418, 2015). An injunction case before the RTC is a local tax case. A certicrari petition questioning an interlocutory order issued in a local tax case falls under the jurisdiction of the CTA. ( CE Casecnan Water and Energy Company, Inc. v. The Province of Nueva Ecija, G.R. 196278, 2015). Mayor has the ministerial duty to ensure that all taxes and other revenues of the city are collected The mayor has the ministerial duty to ensure that all taxes and other revenues of the city are collected, and that city funds are applied to the pay,nent of expenses and settlement of obligations of the city, in accordance with law or ordinance. On the other hand, under the LGC, all local taxes, fees, and charges shall be collected by the 'provincial, city, municipal, or ba'rangay treasurer, or their duly-authorized deputies, while the assessor shall take charge, among others, of ensuring that all laws and policies governing the appraisal and assessment of real properties for taxation purposes are properly executed. Thus, a writ of prohibition may be issued against them to desist from further proceeding in the aciion or matter specified in the petition. (Ferrer v. Bautista, G.R. 210551, 2015).

The socialized housing tax charged by the city is a tax which is within its power to impose. Aside from the specific authority vested by Section 43 of the UDHA, cities are allowed to exercise such other powers and discharge such other functions and responsibilities as are necessary, approprlate, or incidental to efficient and effective provislon Page 242 of 320

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BAR OPERATIONS 2019 of the basic services and facilities which include, among others, programs and projects for low-cost housing and other mass dwellings. The collections made accrue to Its socialized housing programs and projects. The tax is not a pure exercise of t3xing power or merely to raise revenue: it is levied with a regulatory purpose. The levy is primarily in the exercise of the police power for the general welfare of the entire city. It is greatly imbued with public interest. (Ferrerv. Bautista. G.R. N210551, 2015). Withdrawal of Local Tax Exemption Privileges Unless otherwise provided in the LGC, tax exemptions or incentives granted to, or enjoyed by all persons, wheiher natural or juridical, including government-owned or controlled corporations were withdrawn upon the effectivity of the LGC. [Sec. 193, LGC] Privileges Retained: Tax exemption privileges of the following were not withdrawn by the LGC: 1. Local water districts; 2. Cooperatives duly registered under R.A. No. 6938; and 3. Non-stock and non-profit hospitals and educational institutions [Sec. 193, LGC; Sec. 234, LGC] Regulation of Activity and Tax The garbage fee is a charge fixed for the regulation of an activity. It is not a tax and cannot violate the rule on double taxation. (Ferrer v. Bautista, G.R. 210551, 2015).

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Mactan Cebu International Airport Authority is an instrumentality of the government, not a GOCC; thus, its properties actually, solely and exclusively used for public purposes, consisting of the airport terminal building, airfield, runway, taxiway and the lots on which they are situated, are not subject to real property tax and the city is not justified in collecting taxes from petitioner over said properties. (Mactan Cebu fnternationaf Airport v. City of Lapu-Lapu, G.R. No. 181756, 2015).

a. Real property owned by the Republic of the Philippines or any of its political subdivisions EXCEPT when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person; a. Cha.ltable institutions, churches, parsonages or convents appurtenant thereto, mosques, nonprofit or religious cemeteries and all lands, buildings, and improvements actually, directly, and exclusively used for religious, charitable or educational purposes; b. All machineries and equipment that are actually, directly and exclusively used by local water districts and government- owned or -controlled corporations engaged in the supply and distribution of water and/or generation and transmission of electric power; c. All real property owned by duly registered cooperatives as provided for under R.A. No . .3988; and d. Machinery and equipment used for pollution control and environmental prctectlon [Sec. 234, LGCJ Other limitations on taxing powers of LGUs Taxes already Imposed by National Government: Generally, LGUs cannot impose taxes that are already imposed by the National Government (e.g. income tax, documentary stamps, estate taxes, customs duties, excise taxes under the NIRC, VAT) (See generally, Sec. 133, LGC] Person!'i exempted: LGUs cannot impose taxes, fees, and charges on (a) countryside and barangay business enterprises: (b) cooperatives duly registered under the Cooperative Code; and National Government, its agencies and instrumentalities, and local government units. [Sec. 133(n)-(o), LGC] • An inrstrumentality of the State or National Government is exempt from local taxation. [Sec. 133(0), LGCJ Hence, the Manila International Airport Authority, being such an instrumentality and not being an GOCC, is exempt from local taxation. [MIM v. CA, G.R. No. 155650 (2006)]

Real Property Taxation (

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tax on real property may be levied by

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• However, GOCCs are [generally] not exempt from local taxation. [MIAA v. CA (2006)]

(1) Province; or (2) City; or (3) Municipality within Metropolitan Manila Area [Sec. 232, LGC]

RECLASSIFICATION OF LANDS Requisites for Reclassification

Exemptions from Real Property Tax The following are exempted from payment of the real property tax: , '

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yia ordinance; After public hearings for the purpose Limited to the following percentages:

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POLITICAL LAW CLOSURE AND OPENING OF ROADS

15% for highly urbanized and independent component cities 10% for component cities and 1st to 3rd class municipalities · 5% for 4th to '3th class municipalities

A LGU may, pursuant to an ordinance, permanently or temporarily close or open any local road, alley, park, or square fam.,g within its Jurisdiction.

• Exception: The President may, when public interest requires and upon recommendation by the NEDA, authorize reclassification in excess of the limits set herein Grounds: The land ceases to be economically feasible and sound for aqricultural purposes as determined by the Department of Agriculture. The land shall have substantially great~r economic value for residential, commercial or industrial purposes as determined by the Sanggunian concerned.

Permanent Closure v. Temporary Closure · PERMANENT CLOSURE

1.

2.

Only cities and municipalities can reclassify agricultural lands through the proper ordlnar!ce after conducting public hearings for the purpose. It cannot be done by mere resolution. (R.A. No. 7160, Sec. 2)

3.

General Rule: Such reclassifica\ion shall be limited to the following percentage of the total agricultural land area at the time of the passage uf the ordinance ( 15% - 10% - 5%) Exceptions: 1. Agricultural lands distributed to agrarian reform beneficiaries shall not be affected by the said reclassification. 2. The President may, when public interest so requires and upon recommendation of the Nation~I Eco.nomic and Development Authcrity, ~uthonze a city or municipality to reclassify lands in excess of the limits set in the next preceding paragraph.

Exception: No freedom park shall be closed permanently without provision for its transfer or relocation to a new site.

Where approval by a national agency is required for reclassification, such approval shal' not be unreasonably withheld. Failure to act on a proper and complete application for reclassification within 3 months from receipt shall be deemed an approval thereof. [Sec;. 20(d). LGC)

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Temporary closure It should NOT be temporarily closed for athletic, cultural, or civic activities not officially sponsored, recognized, or approved by the local government unit concerned. Any city, municipality, or barangay may, by a duly enacted ordinance, temporarily close and regulate the use of any local street, road, thoroughfare, or any other public place where shopping malls, Sunday, flea or night markets, or shopping areas may be established and where goods, merchandise, foodstuffs, corr-mooltles, or articles of commerce may be sold and dispensed to the general public.

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Ordinance must be 1. Should be a National approved by at least or local road, alley, two-thirds (2/3) of all park, or square the members of the 2. Temporarily closure Sanggunian during an actual When necessary, an emergency, or fiesta adequate substitute for celebrations, public the public facility that is rallies, agricultural or subject to closure is industrial fairs, or an provided. undertaKing of public Provisions for the · works and highways, maintenance of public telecommunications; safety shall be made. · and waterworks projects. 3. 3. The duration of which shall be specified by the local chief executive concerned in a written order.

Permanent closure . General Rule: A property permanently ~ithdrawn from public use may be used or conveyed for any purpose for which other real property belonging to the local government unit concerned may be lawfully used or conveyed.

Approval by national agency

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TEMPORARY CLOSURE

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If a freedom park is permanently closed, there must be a provision for its transfer or relocation to a new site. [Sec. 21(a),{b)]

The passage of an ordinance by a local government unit to effect the opening of a local road, can have no applicability to the if the subdivision road lots sought to be opened to decongest traffic in the area have already been donated to, · and the titles thereto alreaoy issued in the name of tne City Government. Having been already donated or turned over to the City Government, the road lots in question have since then taken the nature of public roads which are withdrawn from the commerce of man. (New Sun Valley v. Sangguniang Barangay, G.R. 156636, 2011).

Such property permanently withdrawn from public use may be used or conveyed for any purpose for which other real property belonging to the LGU may be lawfully used or conveyed. [Sec. 21{b}] D. LEGISLATIVE POWER

Road, alley, park or square is National Temporary only.

closuro 1. 2.

Local

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Temporary Permanent closure

Scope of LGIJ's power to close Requisites for Temporary Closure

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Via ordinance; . Maybe done due to: cl. Actual emergency; b. Fiesta celebrations; c. Public rallies; d. Agricultural or industrial fairs; or e. Undertaking of public works and highways, telecommunications, and waterworks projects; Duration of dosure must be specified by the by the local chief executive in a writter. order; and If for the purpose of athletic, cultural, or civil activities, these must be officially sponsored, recognized, or approved by the local government. [Sec. 21, LGC] Note: A City, Municipality, or Barangay may also temporarily close and regulate the use of any local street, road, thoroughfare or any other public place where shopping malls, Sunday, flea or night markets, or shopping areas may be established for the general public. [Sac. 21 (d)] Requisites for Permanent Closure

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Via ordinance approved by at least 213 of all members of the Sanggunian; When necessary, an adequate substitute for the public . facility that is subject to closure should be provided; Such ordinance must have provisions for the maintenance of public safety therein; and

(d) Requisites of a valid ordinance (CUP PUG) 1. Must not ~ontravene the Constitution or any statute 2. Must not be .Ynfair or oppressive 3. Must not be fartlal or discriminatory i.·. Must not frohibit, but may regulate trade 5. Must not be ,!.lnreasonable 6. Must be ~eneral and consistent with public policy An ordinance authorizing the expropriation of parcels of land for the creatlon 0f a freedom park cannot be struck down for the reason that the municipality has an existing freedom park still suitable for the purpose because under Section 55 (c) of the LGC, the Sangguniang Panlalawigan can dedare the ordinance valid only if it is beyond the power of the Sangguniang E3ayan. An ordinance penalizing any person or entity engaged in the business of selling tickets to movies or other public exhibitions, games or performances which would charge children between 7 and 12 years or the full price of tickets instead of only one-half the amount is void because it is unreasonable. It deprives sellers of the tickets of their property without due process. A ticket is a property right and may be sold for such price as the owner of it can obtain. There Is nothing malicious In charging children the same price as adults. (Balacuit v. CFI of Agusan del Norte, G.R. No. L-38429, 1988). Power to enact or repeal an ordinance, or to issue a resolution Genera! rule: The local chief executive has to approve the ordinance enacted by the council. Exception: When the local chief executive is the Punong } Barangay because he is already a member of the Sangguniang Barangay. The Liga ng mga Barangay cannot exercise legislative powers because it is not a local government unit and its primary purpose is to determine representation of the liga in the sanggunians to ventilate, articulate and crystallize issues affecting barangay government administration, and

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POLITICAL LAW The higher council can declare the ordinance or resolution invalid if it is beyond tho scope of the power conferred upon the lower Sanggunian. For barangay ordinances, the higher council can also rule that it is inconsistent with law · or city/municipal ordinances.

to secure solutions for them through proper and legal means. (Onon v. Fernandez, G.R. No.139813, 2001). Grounds for the veto power of the Local Chief Executive 1. Ultra vires 2. Prejudicial to public welfare

Presiding officer

When item veto may be done , 1. Appropriations ordinance 2. Ordinance/resolution adopting local development plan and public investment program 3. Ordinance directmq the payment of money or creating liability.

LEGISLATIVE BODY

The veto must be communicated to the Sanggunian within 15 days for province and 10 days for city or municipality. A municipal resolution correcting an alleged typographical error in a zoning ordinance does not have to comply with the requirements of notice and hearing, which are required for the validity and effectiveness of zoning ordinances. ( The Learning Child, Inc. v. Ayala Alabang Village Association, G.R. 1:14269/134440/144518, 2010).

Has general application; more or less permanent in character.

Temporary in nature

Third reading is required

Third reading not required

Usually used in the exercise of the LGU's governmental functions

Usually used in the LGU's exercise of proprietary functions

Subject to veto

Only some may be subject to veto and review

Sangguniang Pang!ungsod

Vice-Mayer

Sanggunian!~ Bayan

Vice-Mayor

Sangguniang Barangay

Punong Barangay

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Presumptions regarding local legislation (CRV) 1. £onstitutionality 2. .Begularity 3. ~.ilidlty

RESOLUTION Mere opinion

Vice-Governor

A temporary presiding officer shall be elected from and by the members present and constituting a quorum, in the event of the inability of the regular presiding officer to preside at a session, The temporary presiding officer shall certify within 10 days from the passage of ordinances enacted and resolutions adopted by the sanggunian in the session over which he temporarily presided. (Sec. 49, LGC]

Ordinance v. Resolution

Has the force and effect of law

Sangguniang Panlalawigan

The presiding offlcer shall vote only to break a tie.

An act which is outside of the municipality's jurisdiction is considered as a void ultra vires act, while an act attended only by an irregularity but remains within the municipality's power is considered as an ultra vires act subject to ratification and/or validation. Case law states that public officials can be held personally accountable for acts claimed to have been performed in connection with official duties where they have acted ultra vires. (La,1dBank of the Philippines v. Cacayuran, G.R. 17165, 2013).

ORDINANCE

PRESIDING OFFICER

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(o) Local Initiative and referendum Local Initiative - The legal process whereby the registered voters of a LGU may directly propose, enact, or amend any ordinance. It may be exercised by all registered voters of the provinces, cities, municipalities, and barangays.

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A resolution can also be the proper subject of a local initiative (SBMA v. COMELEC, G.R. 25416, 1996}.

::

Procedure for local initiative: 1. Number of voters who should file petition with Sanggunian concerned: ·a. Provinces and cities - at least 1000 registered voters b. Municipality - at least 100 registered voters c. Barangay - at least 50 registered voters 2. Sanggunian concerned has 30 days to act on the petition. If the Sanggunian does not take any favorable

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3.

4. 5.

POLITICAL LAW

action, the proponents may invoke the power of initiative, giving notice to Sanggunian. Proponents will have the following number of days to collect required number of signatures a. Provinces and cities - 90 days b. Municipalities - 60 days c. Barangays -'.30 days Signing of petition . . Date for initiative set by COMELEC 1f required number of signatures has been obtained.

Requisites of valid municipal contracts: (FOLS·ID "false ID") 1. It must comply with formal requirements 2. LGU can exercise such QthP.r powers granted to corporations. subject to limitations in the LGC and other laws . 3. In case entered into by .bocal chief executive on behalf of LGU, prior authorization by Sanggunian concerned is needed. 4. It must comply with ~ubstantive requirements. 5. LGU has express, !mplied, or Inherent power to enter into a particular contract. 6. It must be entered into by the proper .Qepartment, board, committee, or agent.

Effectivity of proposition 1. If proposition is approved by a majority of the votes cast, it will take effect 15 days after certification by the COMELEC as if the Sangyunian and the local chief executive had taken affirmative action. 2. If it fails to obtain required number of votes, it is considered defeated

The doctrine of separate personality of a corporation finds no application in the Cooperative Development Authority which was created by virtue of RA 6939, since it is not a private entity but a government agency. (Verzosa v. Carague, G.R. 157838, 2011).

Limits on propositions: 1. It should NOT be exercised more than once a year. 2. It can only extend to subjects or matters which are within the legal powers of the Sanggunian to enact. 3. If the Sanggunian adopts in toto the proposition presented and the local chief executive approves the same, the initiative shall be cancelled. Limits upon Sanggunlans

· 1. The Sanggunian CANNOT repeal, modify or amend any proposition or ordinance approved through system of initiative/referendum within 6 months from the date of approval thereof .. 2. The Sanggunian can amend, modify or repeal the proposition/ordinance within 3 years thereafter by a vote of :Y. of all its members. · 3. For barangays. the applicable period in 18 months.

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Referendum - The legal process whereby the registerP.d voters of the local government units may approve, amend or reject any ordinance enacted by the Sanggunian.

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The proper courts can still declare void any proposition adopted pursuant to an initiative or referendum on the following grounds: 1. Violation of the Constitution 2. Want of capacity of the Sanggunian concerned to enact the measure

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CORPORATE POWERS: (PSC3)

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1. Have _Qontinuous succession in its corporate name .

2. 3. 4. 5.

Sue and be sued Have and USP, a .Qorporate seal . Acquire and convey real or personal froperty Enter into .Qontracts

'

To Sue and Be Sued LGUs have the power to sue and be sued. (Local Government Cocde, sec. 22(a):2)). Because of the statutory waiver, LGUs are not immune from suit. The OSG may not be compelled to represent local gove:nment units. The LGC vests exclusive authority upon the LGU's legal officers to be counsels of local government units. Even the employment of a special legal officer is expressly allowed by the law only upon a strict condition that the action or proceeding which involves the component city or municipality is adverse to the provincial government or to another component city or municipalit. ( OSG v. CA and Municipal Government of Suguiran, G. R. 199027, 2014). A municipality can be sued for damages arising from injuries sustained by a pedestrian who was hit by a glass pane that fell from a dilapidated window frame of the municipal hall. Under Section 24 of the LGC and Article 2189 of the Civil Code, the municipality is liable for damages arising from injuries to persons by reason of negligance of local government units on the defective condition of the municipal hall, which is under their control and supervision. To Acquire and Sell Property Properties of the public dominion devoted to public use and made available to the public In general are outside the commerce of persons and cannot be disposed of or leased

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concerned for adjustment, amendment or modification; in which case the effectivity of the barangay ordinance is suspended until such time as the revision called for is effected.

by the LGU to private persons, (Macasiano v. Diokno, G.R. 97764, 1992). Pursuant to tha regalian doctrine, any land that has never been acquired through purchase, grant or any other mode of acquisition remains part of the public domain and is owned by the State. LGUs cannot appropriate to themselves public lands without prior grant from the government. (Rural Bank of Anda v. Roman Catholic Archbishop of Lingayen·Dagupan, G.R. 155051, 2007).

2.LIABILITY OF LOCAL GOVERNMENT UNITS Municipal Liability LGUs and their officials are not exempt from liability for death or injury to persons or damage to property. Liability on contracts Municipal COi porations are liable on contracts entered into in their behalf by their duly authorized agents acting within the scope of their authority, provided that the municipal corporations are authorized to enter into said contracts by their charter.

To Enter Into Contracts . Unless otherwise provided in the LGC, no contract may be entered Into by the local chief executive in behalf of the LGU without prior authorization by the Sanggunian concerned. A legible copy of such contract shall be posted at a conspicuous place in the provir.cial capitol or the city, municipal or barangay hall (Local Government Code, sec. 22(c)). Without the council authorization/ ratification, the contract is unenforceable. The prior authorization may be in the form of, an appropriation ordinance passed for the year which specifically covers tha project, cost or contract to be entered into by the LGU (Quisumbing v. Garcia,· G.R. 175527, 2008). Those beyond the powers of the LGU may be subject to veto of the local executive or review of the local legislative for being ultra vires. Review of Ordinances 1. Review of Component City and Municipal Ordinances or Resolutions by the Sangguniang Panlalawigan If the Sangguniang Panlalawigan finds that such an ordinance is beyond the power conferred upon the Sangguniang Panlungsod or Sangguniang Bayan concerned, tt shall declare such ordinance or resolution invalid, whole or in part. The Sangguniang Panlalawigan shall enter its action in the minutes and 5;hall advise the corresponding city or municipal authorities of the action it has taken. 2.

Review of Barangay Ordinances by the Sangguniang Panlungsod or Sangguniang Bayan

If the Sangguniang Panlungsod or Sangguniang Bayan, as the case may be, finds the barangay ordinances inconsistent with law or city or municipal ordinances, the Sanggunian concerned shall within 30 days from the receipt thereof, return the same with its comments and recommendations to the Sangguniang Barangay

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Doctrine of Implied Municipal Liability . A municipality may become obligated upon an implied contract to pay the reasonable value of the benefits accepted or appropriated by it as to which it has . the general power to contract. The doctrine applies to all cases where money or other property of a party is received under such circumstances that the general law, independent cf an express contract, implies an obligation to do justice with respect to the same. The doctrine of estoppel cannot be applied as against a municipal corporation to validate a contract which it has no power to make, or which it is authorized to make only under prescribed conditions, within prescribed limitations, or in a prescribed mode or manner, although the corporation has accepted the benefits thereof and the other party has fully performed his part of the agreement, or has expanded large sums In preparation for performance. A reason frequently assigned for this rule is that to apply the doctrine of estoppal against a municipality in such case would be to enable it to do indirectly what it cannot do directly. Also, where ·a contract Is violative of public policy, the municipality executing it cannot be estopped to assert the invalidity on this ground; nor can it be estopped to assert the invalidity of a contract which has ceded away, controlled, or embarrassed its legislative or government powers. ( San Diego z Municipalityof Naujan, G.R. L-9920, 1960). The government is justified to decline payment of the purchase price of illegally cut lumber delivered by a contractor who won a public bidding for the construction of the Navotas Bridge. All contracts, including government contracts, are subject to the police power of the State. Being an inherent attribute of sovereignty, such

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POLITICAL LAW corporate name, they may sue, be sued, contract and be contracted with. (Torio v. Fontanilla , G.R. L-29993, 1978).

power is deemed incorporated into the laws of the land, which are part of all contracts, thereby qualifying the obligations arising therefrom. Thus, it is an implied condition in the subject contract for the procurement of materials needed in the repair and construction of the Navotas Bridge that petitioner as private contractor would comply with pertinent forestry laws and regulations on the cutting and gathering of the lumber she undertook to supply the provincial government (Guadines v. Sandiganbayan, G.R. 164891, 2011).

A mayor cannot be held personally liable if his actions were dcne pursuant to an ordinance which, at the time of the collection, was yet to be invalidated. (Demaala v. COA, G.R. 199752, 2015). The writ was directed at' the mayor not in his personal capacity, but in his capacity as municipal mayor, so that it is not irregular whether it was served upon him during his earlier term or In his subsequent one. (Vargas v. Cajucom, G.R. 171095,2015)

Liability v. Defense LIABILITY

DEFENSE

LGUs and IQCal officials &re liable in case of: Death Injury, or Damage to property (Local Government Code, sec. 24)

LGUs generally can be sued based on their "charters/lawspower to sue and be sued"

3.SETTLEMENT ..Qf BOUNDARY DISPUTES Situation v. Where to Settle

Generally lirnltcd to The State is responsible in like proprietary functions. manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains. (Civil Coda, art.2180)_

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State/LGUs liable fur death or injuries suffered by reason of defective roads, bridges or other public works under their supervision Provlnces, 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. (Civil Code, art. 2189)

SITUATION

WHERE TO SETTLE

Boundary disputes Involving 2 or more barangays in the same city or municipality.

The sangguniang panlungsod or Sangguniang bayan concerned.

Boundary disputes Involving 2 or more municipalities within the same province

The Sangguniang panlalawigan concerned

Boundary disputes involving municipalities or component cities of different provinces

Jointly referred for settlement to the Sanggunians of the province concerned

Boundary disputes Involving a component city or municipality on the one hand and a highly urbanized city on the other, or two (2) or more hlghly urbanized cities.

Jointly referred for settlement to the respective Sanggunians of the parties

' According to Section 118 of the Local Government Code,

bour.aary disputes between and among municipalities

Special aget;tt - One who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office, so that in representation of the state and being bound to act as agent thereof, he executes the trust confided to him. In tile case where a stage collapsed during a zarzuela, municipal corporations will be liable for the injury sustained by the victims. Under Philippine law, municipalities are political bodies corporate. They are endowed with the faculties of municipal corporations. In their proper

should be referred for settlement to the sangguniang panlalawiqan and not with the Regional Trial Court. (Municipality of Sta. Fe v. Municpality of Artao, G.R. No. 140474, 2007) However, there is no law providing for the jurisdiction of . any court or quasi-judicial body over the settlement of a boundary dispute between a municipality and an independent component city, thus, the Re,gional Trial Court has jurisdiction to adjudicate it. Under Section 19 (6) of the Judiciary Reorganization Act, the RTC has exclusive original jurisdiction in all cases not within the exclusive

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jurisdiction of any court or quasi-judicial agency. (Municipality of Kananga v. Madrona. G.R. No. 141375, 2003) In the event the Sanggunian fails to effect an amicable settlement within 60 days from the date the dispute was referred thereto, it shall issue a certification to that effect. Thereafter, the dispute shall be formally tried by the Sanggunian concerned which shall decide the issue within 60 days from the date of the certification. Within the time and manner prescribed by the Rules of Court, any party may elevate the decision of the sanggunian concerned to the proper Regional Trial Court having jurisdiction over the area in dispute. The Regional Trial Court shall decide the appeal within one year from the filing thereof. Pending final , resolution of the disputed area prior to the dispute shall be maintained and continued for all legal purposes (Local Government Code, sec. 118). The technical description, containing the metes and bounds of the municipality's territory as stated in an executive order creating the said municipality, is binding. (Municipality of Jimenez v. Baz, Jr., G.R. No. 105746, December 2, 1996). SUCCESSION

Member of Sangguniang Panlungsod, Member of Sangguniang Bayan, Punong Barangay, Member of Sangguniang Barangay

Dlsqualificatio,1s for Local Elective Officials: (SCRIPDF) . 1. Those §.entenced by final judgrr.ent for an offense involving moral turpitude, or for an offense punishable by 1 year or more of imprisonment within 2 years after serving sentence. 2. Those Removed from office as a 'result of an administrative case. 3. Those tonvicted by final judgment for violating the oath of allegiance to the Republic. 4. Those with .Qual citizenship. 5. fugitives from justice in criminal or non-political cases here or abroad. 6. fermanent 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. 7. The Insane or feeble minded.

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4.VACANCIES AND SUCCESSION

OF ELECTIVE OFFICIALS

Qualifications: (FR-LAV) 1. f ilipino citizen 2. Registered ~oter in the: a. barangay, municipality, city or province where he intends to be elected · b. district where he intends to be elected in case of a member of the Sangguniang P,mlalawigan, Sangguniang Panlungsod or Sangguniang bayan 3. Besident therein for at least 1 year immediately preceding the day of the election 4. Able to read and write Filipino or any other local ,banguage or dialect 5. Age requirement

Age Requirement POSITION

At least 18 years old

AGE REQUIREMENT

Governor, Vice Governor, Mayor, Vice Mayor, member of SangguniangPanlungsod in highl~, urbanized cities

At least 23 years old on election day

Mayor, Vice Mayor of independent component cities or municipalities

At least 21 years old

Permanent Vacancy Grounds for Permanent Vacancy: (F2VR2-DP) 1. Elective local official fills a higher vacant office 2. Refuses to assume office 3. fails to qualify 4 . .Qi~s 5. Bemoved from office 6. ~oluntarily resigns 7. fermanently Incapacitated to discharge the functions of his office Filling of Vacancy: • Automatic succession • Appointment General Rule: the successor (by appointment) should come from the same political party as the Sanggunian member whose position has beccme vacant. Exception: case of vacancy in the Sangguniang barangay (Local Government Code, sec. 45). Ranking - Determined on the basis or proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election.

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Temporary Vacancy

(i) Elective officials Non-exclusive grounds for temporary vacancy 1. Leave of absence 2. Travel abroad 3. Suspension from office

i.

General Rule: If the position of governor, mayor, or punong barangay becomes temporarily vacant, the vicegovernor, vice-mayor or highest-ranking Sanggunian member will automatically exercise the powers and perform· the duties and functions of the local chief executive concerned. Exception: HE: cannot exercise the power to appoint, suspend or dismiss employees. Exception to the Exception: If the period of temporary incapacity exceeds 30 working days. (Local Government Code, sec. 46). Termination of Temporary Incapacity 1. Upon submission to the appropriate Sanggunian of a written declaration by the local chief that he has reported back to office. 2. ltthe temporary incapacity was due to legal reason, the local chief executive should also submit necessary documents showing that the legal causes no longer exist (Local Government Code, sec. 46). Appointment of OIC The local chief executive can designate in writing an OIC if he is traveling within the country but outside his territorial . jurisdiction for a period not exceeding 3 consecutive days. The OIC cannot exercise the power to appoint, suspend or dismiss employees (Local Government Code, sec. 46). VACANCY

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Grounds (MA3C 020): 1. Commission of any offense involving Moral turpitude or an offense punishable by al least prison mayor 2. ~pplication or acquisition of foreign citizenship or residence or the status of an immigrant of another country 3. Abuse of authority 4. Unauthorized Absence for 15 consecutive working days, ~cept in the case of members of the Sanggunian Panlalawigan, Sangguniang Panlungsod, Sanggunlang Bayan, Sangguniang Barangay. 5. Culpable Vloletlon of the ~onstitution 6. Qisloyalty to the Republic of the Philippines 7. Qishonesty, oppression, misconduct in office, gross negligence, dereliction of duty 8. Qther ground.1. as may be provided by the Code or other laws.

If the incident complained of occurred in another barangay over which a barangay official has no authority and jurisdiction, the Supreme Court ruled that he is liable for abuse of authority on the basis that he participated in the unlawful act as a higher authority that gave a semblance of legality over that act and influenced the actions of his codefendants. Here, petitioner was president of the organization of baraaqay officials i11 his municipality and sat as ex-officio member of the Sangguniang Bayan, which has power to review barangay ordinances and authority to discipline barangay officials. (Bien v. Bo, G.R. 179333, 2010)

SUCCESSOR

Governor, Mayor

Vice-Governor, Vice-Mayor

Governor, Vice-governor, Mayor or Vice-mayor

Highest ranking Sanggunlan member

Highest ranking Sanggunian member (who was supposed to fill the vacant position of governor, etc.)

Second highest ranking Sanggunian member

In the office of the Punong Barangay

Highest ranking Sangguniang Barangay member OR the 2nd highest ranking Sanggunlan member

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Jurisdiction

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Who may preventively suspend

President Elective official of a province, highly urbanized or Independent component city. Governor-· Elective official ofa component city or municipality.

DISCIPLINE OF LOCAL OFFICIALS Page. 251 of 320

APPOINTED

The local chief executive to sny subordinate official or employee under his authority pending investigation.

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Ma yorEl ective official of a barangay.

Sa ngguniang Pa nlalawigan el ective m unicipal 0 fficials.

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A ny :.ingle

Duration of preventive suspension

preventive suspension shall not extend beyond 60 days; if multiple, cannot be suspended for more than 90 days within a single year for tne same ground or grounds existing.

A period not

· exceeding 60 days.

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When to preventively suspend

Governing

law

Where to file ( disciplinary cases)

Disciplinary jurisdiction (disciplinary cases)

Any of the grounds provided under RA 7160, after the issues are joined, when the evidence of guilt is strong and there is great probability that the continuance in office could influence the ' witnesses or pose a threat to the safety and Integrity of the records and other evidence.

Charges for preventive suspension must involve 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 service.

Govomed by RA 7160.

Administrative Discipline Governed by the Civil Service Law.

A verified complaint to: F resident-for provincial, highly urbanized city, independent componentc ity elective officl al.

The local chief executive.

Penalty of suspension shall not exceed his unexpired term, or a period of 6 months for every admlnlstrafive offense. Nor shall said penalty be a bar to the candidacy of the respondent as long as he is qualified. Removal - can only be done by a court of law; the penalty of · removal from office shall be a bar to the candidacy from any elective office. Decisions may, within 30 days from receipt be appealable to:

Appeals (disciplinary cases)

Sangguniang Panlalawigan decisions of component cities' S.Panglunsod and the s.Bayan OP-decisions of the Sangguniang Panlalawigan and

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Except as otherwise provided by law, t.he local chief executive may impose the penalty of:

1.

Removal from service

2.

Demotion in rank

3.

Suspension for not more than 1 year without pay

4. Fine- in an amount not exceeding 6 months salary

. 5. Reprimand

If the penalty Imposed is suspension without pay for not mor~ than 30 days, his decision shall be final· if the penalty imp~sed is heavier, the decision shall be appealable to the Civil servtce Commission which shall decide the appeal within 30 days from receipt thereof.

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Sangguniang Panglungsoc:i of Highly urbanized cities and independent component cities. Decisions of OP are final and executor.

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iii. Preventive suspension Preventive Suspension - merely a protective or preliminary measure; not a penalty and not considered part of the actual penalty if found guilty. · Purpose: to prevent the accused from using his position and powers/prerogatives to influence potential witnesses or tamper with records that may be vital in the prosecution of the case aqainst him. Applies when: After the issues are joined. When the evidence of guilt is strong. There is great probability that the continuance in office could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. IMPOSED BY President

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RESPONDENT LOCAL OFFICIAL Elective official of a province, highly urbanized or independent component city Elective official of a component city or municipality Elective official of a barangay

Duration: • SINGLE preventive suspension should not exceed 60 DAYS. • If SEVERAL administrative cases are filed against an elective official, he cannot be preventively suspended for more than 90 DAYS within a single year on the same ground/s existing and known at the time of the first suspension.

Penalty is not a bar to the candidacy of the respondent suspended as long as he meets the quallflcatlone for the office. However, removal as a result o administrative investigation serves as a bar to the cendtdacy of the respondent for any elective position. Preventive suspension imposed upon a public officer facing administrative charges cannot be credited against the penalty of suspension Imposed upon him. Preventive suspension is not a penalty. Not being a penalty, the period within which one is under preventive suspension is not considered part of the actual penalty of suspension. (Quimbo v. Gervscio, G.R. 155620, 2008).

Civil liability of public officials for public acts General Rule: A public officer is not liable for damages which a person may suffer arising from the just performance of his official duties and within the scope of his assigned tasks. Exception: When the governmental acts are done in bad faith, being outside the scope of authority, such public officer is liable for damages in his/her personal capacity. (Vinzons-Cnatto v. Fortune Tobacco Corporation, G.R. 141309, 2007). iv. Removal An elective local official may be removed by order of the proper court. (Local Government Code, sec. 60). The penalty of remove! from office as a result of administrative investigation shall be considered a bar to . the candidacy of the respondent for any elective position. (Local Government Code, sec. 66 (.::)) Local elective officials cannot be removed by local legislative_ bodies or the Office of the President. Art. 124 (b ), Rule XIX of the Rules and Regulations Implementing the LGC, which states that "an elective local official may be removed from office by order of the proper court or the Disciplining Authority whichever first acquires jurisdiction to the exclusion of the other" is void for being repugnant to Sec. 60, LGC. · If appointive official, Office of the President may remove him or her from the his or her position. (Pabiico v. Villapando, G.R. 147870, 2002).

Suspension should not exceed the unexpired term of the respondant or a period of 6 months for every administrative offense.

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Administrative aooe;.;;.:il;._ RENDERED

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BY

APPEAL TO

Sangguniang Panglungsod of component cities and Sangguniang Bayan Sangguniang Panlalawigan and Sangguniang Panglungsod of highly urbanized cities/ independent component cities

Sangguniang Panlalawigan

Office of the President Final and executory

Office of the Presidenl

local chief executives from making appointments during the last days of their tenure. Appointments of local chief executives must conform to these civil service rules and in order to be valid. (Provincial Government of Aurora v. Marco, G.R. 202331, 2015) That the Province suddenly had no funds to pay for an appointee's salaries despite its earlier certification that funds were available under its 2004 Annual Budget does not affect his appointment, if a Certification that funds were available was issued at the time of the appointment. The appointment remains effective, and the local government unit remains liable for the salaries of the appointee. (Provincial Government of Aurora v. Marco, G.R. 202331, 2015)

Period 30 days from receipt of decision

5. RECALL

Effect Shall not prevent a decision from being final and executory. Respondent is considered to .'1ave been placed under preventive suspension during the pendency of the appeal in the event he wins, and shall be paid his salary arid other emoluments during the pendency of the appeal. The phrase "decision is final and executory" means that the Sanggunian decision is immediately executory, but still may still be appealed to the Office of the President or the Sangguniang Panlatawigan as the case may be. (Don v. Lacsa, G.R. 170810, 2007). vi. Doctrine of Condonatlon (or Aguinaldo Doctrine) The doctrine of condonatlon has been dispensed with by the Court. 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 rs fully absolved of any administrative liability arising from an offense done during a prior term. However, the doctrine of condonation should be, as a general rule, recognized as good law prior to its abandonment. ( Carpio-Morales v. CA and Binay, G.R. 217126-27, 2015).

0) Appointive officials The prohibition on midnight appointments only applies to presidential appointments. It does not apply to appointments made by local chief executives. Nevertheless, the Civil Service Commission has the power to promulgate rules and regulations to professionalize the ' civil service. It may issue rules and regulations prohibiting

Recall - The power of the electorate ·(registered voters) to remove a local elected official fer loss of confidence through the holding of a special/recall election, before the end of term of office. Modes of initiating a recall Adoption of a resolution by the Preparatory Recall Assembly (composed of local officials of the lower/ supervised local government unit). LEVEL Provincial

Mayors, vice-mayors, Sanggunian members of the rnunlcipallties and component cities

City

Punong barangay and Sangguniang barangay members in the city

Legislative district

Electi·.ie municipal/ barangay officials

Municipal

Punong barangay and Sangguniang barangay members in the municipality

Procedure: • A sesslonin a public place to initiate recall proceeding. • A resolution adopted by a majority of all the members of the PRA during the session called for the purpose of initiating recall proceedings. • Petition of at least 25% of the total number of registered voters in tt·.e LGU concerned during the election in which the local official souoht to be recalled was elected. -

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The written petition for recall should be duly signed before the election registrar or his represe:ntative and in the presence of the representative of the petitioner and the official sought to be recalled. It should be signed in e public place. Petition should be filed with COMELEC through its office in the LGU concerned Publication of petition for 10-20 days in order to verify the authenticity and genuineness of the petition and the required percer.tage of voters (Local Government Code, sec. 70).

Conduct of Recall Election: 1. The official sought to be recalled are AUTOMATICALLY considered as duly registered candidates. 2. The date set for the recall election should not be less than 30 days after filing of resolution/ petition in the case of barangay, city or municipal officials and 45 days in the case of provincial officials {Local Government Code, sec. 71).

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Effectivity of Recall 1. Recall will only be effective upon the election and proclamation of a successor. 2. If the official sought to be recalled receives the highest number of votes, confidence in him is affirmed and he shall continue in office (Local Government Code, sec. 72). Limits on Recall • Elective local official can be the subject of a recall election only once during his term of office. • No recall shall take place within 1 year from the date of the official's assumption to office or 1 year immediately preceding a regular local election (Local GovernmentCode, sec. 74).

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For the 3-term rule to apply, the local offlcial must have: 1. fully served the term 2. been elected through a regular election The following are not considered as interruptions in term: 1. Voluntary renunciation of a term. A councilor assuming the office of vice-mayor through succession is not considered a voluntary renunciation of his position as councilor. It is clear therefore that voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time -, short of the full term provided by law amounts to an interruption of continuity of service (Montebon v. COIV,ELEC, G.R. 180444, 2008). The relinquishment of the office of Punong Barangay . during the third term, as a consequence of one's assumption to office as Sangguniang Bayan, is a voluntary renunciation (Bolos v. COMELEC, G.R. 184082, 2009). 2.

Sandiganbayan preventively suspended the officer for 90 days in relation with a criminal case (Aldovino Jr. v. COMELEC, G.R. 184836, 2009).

3.

Munic\pality merged with another municipality to form a new political unit iLeced«, Sr. v. Limena, G.R. 182867, 2008).

When a permanent vacancy occurs in an elective position and an official assumed office under the rules on succession under the LGC, his assumption to said office shall not be considered as one full term (Borja Jr. v. COMELEC)

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The authentication of signatures in a recall pennon is done during the determination of the names, si1Jnatures and thumbmarks of petitioners, not during the determination of the sufficiency of the form and substance of the petition. (Sy-Alvaradov. Come/ec, G.R. 216457, 2015). TERM LIMITS Term of office: 3 years. General Rule: No local elective official shall serve for more than 3 consecutive terms in the same position. Exception: The term of barangay officials and members of the Sanggunian kabataan shall be for 3 years. (R.A. No. 9146)

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An official who was elected for three consecutive terms but who had to assume the position of vice-mayor on his/her second term in view of the incumbent's retirement Is not deemed to have fully served the three consecutive (Montebon v. COMELEC) An elective official who has served for three consecutive terms and who did not seek the elective position for what could be his fourth term, ';lut later won in a recall election, had an interruption in the continuity of the official's service. For, he had become an interim, i.e., from the end of the 3rd term up to the recall election, a private citizen (Adormeo v. COMELECand Socrates v. COMELEC) 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

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does not constitute an interruption since he has managed to serve the term from start to finish (Ong v, Alegre, Rivera v. COMELEC) When a three-term official of a local government unit (which is later converted into a city on the third term of the official) said official cannot seek the same office in the first election as a city considering the area and inhabitants of the locality are the same and tf:11t the official continued to hold office until such time as the city elections are held. The framers of the Constitution intended to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in office. (Latasa v. COMELEC) ---

end of topic ---

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XII. NATIONAL ECONOMY AND PATRIMONY TOPIC OUTLINE UNDER THE SYLLABUS

A. Regalian Doctrine B. Nationalist and C. D. E. F. G.

H.

Citizenship Requirement provisions Exploration, Development, and Utilization of Natural Resources Franchises, Authority, and Certificates for Public Utilities Acquisition, Ownership and Transfer of Public and Private Lands Practice of Professions Organization and Regulation of Corporations, Private and Public Monopc.lies, Restraint of Trade, and Unfair Competition

Three-Fold Goal of the National Economy 1. More equitable distribution of opportunities, income and wealth; 2. Increase of wealth for the benefit of the people, and 3. Increased productivity (CONST, Art.XII, Sec.1) REGALIAN DOCTRINE DOMINIUM

IMPERIUM Government authority possessed by the State which is appropriately embraced in sovereignty.

The capacity of the State to own and acquire property. It refers to lands held by the govtlrnment in a proprietary character.

What is the Regalian doctrine? (Jura Regalia) Universal feudal theory that all lands were held from the Crown. All lands not otherwise clearly appearing to be privately owned are presumed to belong to the State. (Carino v. Insular Government. GR No. 72, February 23, 1909) State Owned: (PWEFFOM) Lands of the fublic domain -, Waters Minerals, coals, petroleum, and other mineral oils All sources of potential gnergy fisheries f crests or timber ~Udlite flora and fauna Qther natural resources (1987 Constitution, arti. XII, sec. 2)

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General Rule: All natural resources cannot be alienated. Exception: Agricultural lands Native Title refers to pre-conquest rights to lands and domains which, as far back as memory reaches, have been held under a claim of private ownership by indigenous cultural communities and indigenous people, have never been public lands and are thus indisputably presumed to have been held that way since before the Spanish conquest. (IPRA, sec. 3(/)).

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P.P. 310, distributing 670 hectares of CMU's property, to the indigenous peoples is unconstitutional. The lands by their character have become inali€0able from the moment President Garcia dedicated them for CMU's use in Page 257 of 320

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BAR OPERATIONS 2019 scientific and technological research in the field of agriculture. They have ceased to be alienable public lands. Besides, when Congress enacted the IPRA or RA 8371 in 1997, it provided in Section 56 that "property rights within the ancestral domains already existing and/or vested" upon its effectivity "shail be recognized and respected." In this case, ownership over the subject lands had been vested in CMU as early as 1958. Consequently, transferring the lands in 2003 to the indigenous peoples around the area is not In accord with the IPRA. (CMU v. Executive Secretary, G'.R. 184869, 2010). Limitations on the cf is position of the State of alienable lands of the public domain 1. Only agricultural lands of the public domain may be alienated; 2. Only Filipino citizens may acquire lands not more than 12 hectares by purchase, homestead or grant or lease no more than 500 hectares. Private corporations may lease not more than 1,000 hectares for 25 years renewable for another 25 years. (CONST. Art.XII, Sec.3) 3. The exploration, development and utilization (EDU) of all natural resources shall be under the full control and supervision of the State either by directly unde!'l::tking such EDU or through co-production. joint venture, or production sharing agreements with qualified persons ... 4. The use and enjoyment of the marine wealth of the archipelagic waters, territorial sea, and the EEZ shall be reserved for Filipino citizens 5. Utilization of natural resources in rivers, lakes, bays and lagoons may be allowed only on a 'small scale' to Filipino citizens or cooperatives- with priority for subsistence fishermen and fish workers. (CONST. Art.XII, Sec. 2)

Exception with respect to rule on EDU For large-scale EDU of minerals, petroleum and other mineral oils, the President may enter into agreements with foreign-owned corporations involving technical or financial assistance. 25-year Limitation All agreements with the qualified private sector (i.e Filipino citizens or corporations or associations at least 60% whose capital is owned by Filipino citizens) may be for only a period not exceeding 25 years, renewable for another 25. Note that the 25-year limit is not applicable to water rights for irrigation, water supply, flsheries, or industrial uses other than the development of power.

NATIONALIST

ANO CITIZENSHIP REQUIREMENT PROVISIONS

Rule on Private Lands General Rulo: Private lands CAN only be conveyed to: 1. Filipino citizens . 2. Corporations or associatlons incorporated in the Philippines, at least 60% of whose capital is owned by Filipino citizens (1987 Constitution, art. XII, sec. 7). Exceptions: In intestate succession, where an alien heir of a Filipino is the transferee of private land. (1987 Constitution, art. XII, sec. 7). A natural-born citizen of the Philippines who has lost his Phiiippine citizenship may be a transferee of private land, subject to limitation provided by law." Hence, land cen be used only for residential purposes. In this case, _he only acquires derivative title. (1987 Constitution, art. XII, sec. 8). However, a former natural born Filipino citizen who became a citizen of other countries may acquire land for business and other purposes. (R.A. No. 8179, Sec. 5) Foreign states may acquire land but only for embassy and staff residence purposes. When Filipino citizenship Required Filipino citizenship is only required at the time the land is acquired. Thus, loss of citizenship after acquiring the land does not deprive: ownership. Scope of Restrir.tlon Restriction against aliens only applies to acquisition of ownership. Therefore: 1. Aliens may be lessees or· usufructuaries of private lands 2. Aliens may be mortgagees of land, as long as they do not obtain possession thereof and do not bid in the foreclosure sale. 3. Land tenure is not indispensable to the free exercise of religious profession and worship. A .religious corporation controlled by non-Filipinos cannot acquire and own land, even for religious purposes. Instance when couple Alien-Filipino buys land When a couple buys land, where one is an alien and one is Filipino, the property does not become part of the conjugal property. It will only be owned by the Filipino spouse (Cheeseman v. /AC, G.R. 74833, 1991).

An alien cannot challenge any act of administration, enjoyment, or alienation of his/her Filipino spouse over a piece of land his/her spouse acquired. (Matthews v. Taylor Spouses, G.R. 154584, 2009). Page 258 of 320

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Court. It reasoned that the provision which mandates preference to Filipinos is only enforceable with respect to "grant of rights, privileges and concessions covering national economy and patrimony," and not all aspects of trade and commerce. (Tanada v. Angara, G.R. 118295, 1997).

Remedies to Recover Private Lands from Disqualified Aliens: ERR . 1. gscheat proceedings 2. Action for Reversion under the Public Land Act 3. An action by the former Filipino owner to B.ecover the land · Although the sale of a lot to an alien violated the constitutional prohibition on ailens acquiring land, the acquisition by succession by Filipino citizens qualified to acquire lands, can no longer be impugned on the basis of · the invalidity of the initial transfer. The flaw in the original transaction is considered cured and the title of the transferee is deemed valid considering that the objective of the constitutional proscription against alien ownership of lands, that is to keep our lands in Filipino hands, has been achieved. (Republic v. Register of Deeds, G.R. 158230, 2008). · Considering that the rights and liabilities of the parties under the Contract to Siell is covered by the Condominium Act wherein petitioner as unit owner was simply a member of the Condominium Corporation and the land remained owned by respondent, then the constitutional proscription against aliens owning real property does not apply to the present case. There being no circumvention of the constitutional prohibition, the Court's pronouncements on the invalidity of the Contract of Sale should be set aside (Hulst v. PR Builders, G.R. 156364, 2008).

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National Economy and Patrimony Investments Powers of Cong, ess: 1. Reserve to Filipino citizens or to corporations or associations at least 60% of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of Investment. This may be done when the national interest dictates. 2. Enact measures to .encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos (1987 Constitution, art. XII, sec. 10). In. the grant of rights, privileges and concessions ccvering the national economy and patrimony, the State shall give preference to qualified Filipinos. This provisicn is self executory. The Supreme Court banked on this to uphold the decision of GSIS to grant the Manila Hotel project to a Filipino corporation, even though a Malaysian firm turned out to be the highest bidder. (Manila Prince Hotel v. GSIS, G.R. 122156, 1997).

LAW

The Retail Trade Liberalization Act of 2000 (RA 8762) is 1foreign constitutional. It allowed nationals to engage in retail trade business in the Philippines. It also allowed natural-born Filipino citizens, who had lost their citizenship and now reside in the Philippines, to engage in the retail trade business with the same rights as Filipino citizens. The mandate for the State to develop a "selt-reltant and independent national economy effectively controlled by , Filipinos" is not self-executory. The control and regulation of trade in the interest of the public welfare is of course an exercise of the police power of the State. A parson's right to property, whether he Is a Filipino citizen or foreign national, cannot be taken from him without due process of law. The Court is not convinced that the implementation of RA 8762 would eventually lead to alien control of the retail trade business. Petitioners have not mustered any concrete and strong argument to support its thesis. The law itself has provided strict safeguards on foreign participation in that business. (Espina v. Zamora, G:R. 143855, 2010).

ACTIVITY

CITIZENSHIP AND/OR EQUITY REQUIREMENTS

Exploitation of natural resources

1. Filipino citizens 2. Domestic Corporations (60% Filipino owned)

Operation of Public Utilities

1. Filipino cltizens 2. Domestic Corporations (60% Filipino owned)

Acquisition of alienable lands of the public domain

1. Filipino citizens 2. Domestic Corporations (60% Filipino owned) 3. Former natural-born citizens of RP (as transferees with certain legal restrictions) 4. Alien heirs (as transferees in case of intestate succession)

Practice of ALL professions

1. Filipino citizens only (natural persons) 2. Congress may, by law, otherwise prescribe

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However, the GA TI Treaty (which placed aliens on the same footing as. Filipinos) was upheld by the Supreme Page 259 of 320

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EXPLORATION. DEVELOPMENT AND UTILIZATION OF NATURAL RESOURCES

1. Filipino citizens 2. Domestic Corporations (100% Filipino owned)

. 1.

1. Filipino citizens 2. Domestic Corporations (70% Filipino owned) 1 . Filipino citizens

2. Domestic Corporations (60% Filipino owned) Educational Institution

Exception: Schools established t:-.v religious groups and mission boards.

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Congress may, by law, increase Filipino requirements for All educational institutions.

Other economic activities

Congress may, by law, reserve to Filipino citizens or to Domestic Corporations (60% Filipino owned or higher) certain investment areas.

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Tests used to determine Nationality of a corporation: 1. Voting Control Test - the ownership threshold must be complied by the voting shares. · 2. Beneficial Ownership Test- the ownership threshold must also apply to the outstanding capital. And "capltal" should be interpreted to include only voting shares. Hence, in the computation for "capital," only common stock will be considered and not preferred shares. (Gamboa, et.e: v. Finance Secretary, G.R. 176579,

2011 ). 'Capital' , The term "capital" in Section II, Article XII of the 1987 Constitution refers only to shares of stock entitled to vote in the election of directors, and thus in the present case only to common shares, and not to the total outstanding capital stock (common and non-voting shares). Pursuant to the Gamboa directive, Section 2 of SEC-MC No. 8 provides: "Section 2. All categories shall, at all times, observe the constitutional or statutory ownership requirement. For . purposes of determining compliance therewith, the required percentage of Filipino ownership shall be applied to BOTH (a) the total number of outstanding shares of stock entitled to vote in the election of directors; and, {b) the total number of outstanding shares of stock, whother or not entitled to vote." (Roy Ill v. Herbosa, G.R. No. 204276, 2016)

Shall be under the full control and supervision of the State MEANS: The state may directly undertake such activities. The state may enter into co-production, joint venture or production-sharing arrangements with Filipino citizens or corporations or associatlons at least 60% of whose capital is owned by such citizens. LIMITATIONS: Period: It should not exceed 25 years, renewable for no more than 25 years Under terms and conditions as may be provided by law 2. In case of water rights, water supply, fisheries industrial uses other than the development of wate power.· 3. The beneficial usemay be the measure and limit of the grant. Under the 1 !387 Constitution, the state must always be involved in the control and supervision of the exploration, development and utilization of inalienable natural resources, even if the person engaged is Filipino.

EO 211 of President Aquino authorized the Secretary of Natural Resources to authorize such EDU agreements entered into under. the 1987 Constitution. Small-scale utilization of natural resources 1. Conqress may, by law, authorize small-scale utilization of natural resources by Filipino citizens. 2. Congressmay also authorize cooperative fish farming with priority given to subsistence fishermen and fish workers in the rivers, lakes, bays and lagoons.

Large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils .1. The President may enter into agreements withforelqn owned corporations involving technical or financial assistance for large-scale exploration, etc. of minerals, petroleum, and other mineral oils. These agreements should be in accordance with the general terms and. conditions provided by law. . 2. They should be based on the real contributions to economic growth and general welfare of the country. 3. In the agreements, the State should promote the development and use of local scientific and technical resources. 4. The President should notify Congress of every contract under this provision within 30 days from its execution. Page 260 of 320

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ATENEO CENTRAL BAR OPERATIONS 2019 5. Management and service contracts are not allowed under this rule.

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POLITICAL LAW in this case through the DENR, to ensure that the terms and conditions of existing laws, rules and regulations, and the IFMA itself are strictly and faithfully complied with. (Ropub/ic v. Pagadlan City·Timber, G.R. 159308, 2008).

Under the 1987 Constitution, the Philippine Government may still enter into service contracts, but only for financial and technical agreements with respect to large scale development of minerals, petroleum, and other mineral resources.

FRANCHISES, AUTHORITY AND CERTIFICATES OF PUBLIC UTILITIES

Management pcwers may be given to a completely foreign corporation with whom the State enters a service contract. But, such power will only be to the extent necessary to carry out the technical and financial agreement.

Power to Grant: 1. Congress may directly grant a legislative franchise. 2. The power to grant franchises may be delegated to appropriate regulatory agencies and/ or LGUs.

A foreign corporation may enter into financial and technical assistance ar:;reement with the government involving the management and operation of a mining enterprise. Section 2, Article XII of the Constitution allows other forms of assistance or activities having to do with technical or financial assistance and it will not prohibit the involvement of foreign corporations in the management of mining ventures. The policy recogn!zes that foreign corporations who will invest in mining will require that they be given a say in the management to ensure its success. The Constitutional Commission understood technical or financial agreements as interchangeable with service contracts. (La Bugat-B'faan Tribal Association, Inc. v. Ramos, G.R. 127882, 2004, affirmed in a MR in 2005).

Public Utility - The undertaking must involve dealing directly with the public.

Also, the grant of such service contracts must be subject to the following safeguards: · 1. it must be in accordance with a general law 2. the President must be the signatory for the government 3. the President must report the executed agreement to Congress within 30 days. (La Bugal B'laan v. Ramos, G.R. No. 127882, 2004, affirmed in a MR in 2005).

Primary Franchise Invests a body of men I with corporate existence

Secondary Franchise The privilege to operate as a public utility after the corporation has already come into being

The Constitution does not prohibit the mere formation of a public utility corporation without the required formation of Filipino capital. What it does prohibit is the granting of a franchise or other form of authorization for the operation of a public utility to a corporation already in existence but without the requisite proportion of Filipino capital (People of the Philippines v. Quasha, G.R. L-6055, 1953}. Operation of a Public Utility

May exist independently and separately from the Protection of Marine Wealth ownership of the 1. The State shall protect its marine wealth in its facilities. archipelagic waters, territorial sea and EEZ. 2. The State shall reserve its use and enjoyment One can own said exclusively to Filipino citizens. · facilities without 3. License Agreement - "a privilege granted by the State operating them as a to a person to utilize forest resources within any forest · public utility, or land with the right of possession and occupation conversely, one may thereof to .the exclusion of others, except the operate a public utility government, but with the corresponding obligation to without owning the develop, protect and rehabilitate the same in facilities used to serve accordance wilh the terms and conditions set forth in the public. said agreement" (PD 705, sec. 3}. 4. Private rights must yield when they come in conflict with this public policy and common interest. They must give way to the police or regulatory power of the State, Page 261 of 320

Ownership of Public Utility Relation in law by virtue of which a thing pertaining to one person is completely subjected to his will in everything not prohibited by law or the concurrence with the rights of another. The exercise of the rights encompassed in ownership is limited b, law so that a property cannot be operated and used to serve the public as a public utility unless the operator has a franchise.

ATENEO CENTRAL BAR OPERATIONS 2019

A Build-Operate-Transfer grantee is NOT a public 1..itility. The grantee merely constructs the utility, and it leases the same to the government. It is the government which ,. operates the public utility (operation separate from ownership). To Whom Granted: Filipino citizens or Corporations or associations incorporated in the Philippines and at least 60% of the capital is owned by Filipino citizens A foreigner or foreign company may own assets of a public · utility corporation. What is not allowed is the grant of the franchise to non-citizens of the Philippines. Rule on Public Utilitle;; Refers to a utility corporation which renders service to the general public for compensation Franchise, cartlficate or any other form of authorization for the operation of :1 public utility may be issued or granted only to Filipino citizens or entities with 60% capital owned by such citizens. Thus, foreign corporations and foreigners MAY own the facilities. (Tatad v. Garcia, GR No 114222, April 6, 1995) Terms and Conditions: Duration: not more than 50 years. Franchise is NOT exclusive in character. Franchise is granted under the condition that it is subject to amendment, alteration, or repeal by Congress when the common good so requires.

Participation of Foreign lnvesfors: 1. Shall be limited to their proportionate share in its capital. 2. Foreigners cannot be appointed as the executive and managing officers because these positions are reserved for Filipino citizens (1987 Constitution, art. XII, sec. 11).

POLITICAL LAW authority that it granted, it cannot do so for an accumulated period exceeding 50 years. Otherwise, it would violate ihe proscription under Article Xii, Section 11 of the 1987 Constitution, which provides that no public utility franchise shall be for a longer period than 50 years. (Francisco v. Toll Regulatory Board, G.R. 166910, 2010). While the Republic of the Philippines appointed petitioner as the exclusive party to conduct petroleum operations in . the Camago-Malampaya area under the State's full control and supervision, it does not follow that petitioner has become the State's "aqent" within the meanir,g of the law. An agent's ultimate undertaking is to execute juridical acts that would create, modify or extinguish relations between his principal and third persons. It is this power to affect the principal's contractual relations with third persons that differentiates the agent from a service contractor. (Shell Philippines Exploration 8. V. v. Efren Jatos, et al., G.R. 179918, 2010). PJIGCOR is no longer exempt from corporate income tax. Under Section 11, Article XII of the Constitution, PAGCOR's franchise is subject to amendment, alteration or repeal by Congress. A franchise partakes the nature of a grant, which is beyond the purview of the non-impairment clause of the Constitution. Also, Article XII, Section 11, of the 1987 Constitution, is explicit that no franchise for the operation of a public utility shall be granted except under the condition that such privilege shall be subject to amendment, alteration or repeal by Congress as and when the common good so requires (PAGCOR v. BIR, G.R. 172087, 2011). Franchises can be granted to companies whose capital is at least 60% Filipino-owned. However, "capital" here should be interpreted to include only voting shares. Hence, in the computation for "capital," only common stock will be considered and not preferred shares. ( Gamboa, et al. v. Finance Secretary, G.R. 176579, 2011).

Administrative agencies may be empowered by the SEC Memorandum Circular No. 8, s. 2013, was issued and provides that: all covered corporations shall, at all times, Legislature by means of a law to grant franchises or similar authorizations. In this case, the Court ruled that the Toll observe the constitutional or statutory ownership Regulatory Board (TRB) is empowered to grant a franchise requirement in that "the required percentage of Filipino for toll road projects. PD 1112 provided further that the ownership shall be applied to BOTH (a) the total number TRB has the power to amend or modify a Toll Operation of outstanding shares of stock entitled to vote in the Certificate that it issued when public Interest so requires. election of directors; AND (b) the total number of Accordingly, there is nothing infirm, much less outstanding shares of stock, whether or not entitled to vote questionable, about the provision in the MNTC (Manila in the election of directors." (Roy Ill v. Herbosa, G.R. No. North Tollways Corp.) Supplemental Toll Operation 204276, 2016) Agreement allowing the substitution of MNTC in case it defaults in its loans. While the TRB Is vested by law with Police Power and Expropriation over Public Utilities the power to extend the admin'stratlve franchise or Page 262 of 320

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1.

Police Power - When public Interest requires, under reasonable terms, the state may temporarily take over the operation of any privately owned public utility or those with pubtic interest (1987 Constitution, art. XII, sec. 17). • The nature and extent of the emergency is the measure of the duration and the terms of the takeover. • Just compensation is not required. • This power is activated only when Congress declares a state of national emergency. • 'Businesses affected with public interest' includes businesses which are quite similar public utilities, such as those having mass-based consumers.

2. Expropriation - The State may, upon payment of just compensation, transfer to public ownership utilities and private enterprises to be operated by the government, in the interest of national welfare or defense. (1987 Constitution, art. XII, sec. 18). · (

ACQUISITION. OWNERSHIP AND TRANSFER OF PUBLIC AND PRIVATE L~NO~ Lands of the public domain are classified into: MAN-F 1. ~riculturnl 2. forest or timber 3. .Mineral lands 4. National Parks (1987 Constitution, art. XJI, sec. 3).

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Rule on Reclassification or Conversion of Lands Reclassification or conversion of lands require the positive act of government, mare issuance of title is not enough. An affirmative act from the executive or legislative is necessary to reclassify property of public dominion. (Laurel

v. Garcia, GR No. 92013, July 25, 1990)

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Reclassification: 1. Public (mineral and agricultural) lands - exclusive prerogative of the executive department. But this is only a delegated power. 2. Forest and national parks - Congress has the sole power to reclassify. Classification is descriptive of the legal nature of the land and NOT what it looks !ike. Thus, the fact that forest land is denuded does not mean it is no longer forest land

(Secretary of DENR v. Yap, G.R. 167707, 2008).

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prerogative has been delegated to it by Congress under ·,CA 141. (Directorof lands v. Court of Appeals,G.R. 58867,

1984). Clas~ification should be categorical; a lard cannot have a mixed classification. For example: an owner of an agricultural land in which minerals are discovered has no right to utilize such minerals. The State may discontinue his/her ownership after just cornpensa'Ion in order to extract such minerals. (Republic v. Court of Appeals, G.R.

L-43938, 1988). Reclassification from forest reserves into non-forest reserves - now exclusively a DENR prerogative. There is no need to wait for Congressional concurrence. (Apex

Mining v. SoutheastMindanao Gold, G.R. 152613/152628, 2009). Limitations Regarding Allenabie Lands of Public Dominion Means by which Land of Public Dominion Becomes Private Land: 1. Acquired from the Government by purchase or grant. 2. Uninterrupted possession by the occupant and his predecessors-in-interest since time immemorial. 3. Open, exclusive, and undisputed possession of ALIENABLE (agricultural) public land for a period of 30 years. a. Upon completion of the requisite period, the land becomes private property ipso jure without need of any judicial or other sanction. b. Possession since 1time immemorial leads to the presumption that the land was never part of public domain. c. In computing 30 years, start from when the land was converted to alienable land, not when it was still forest land d. Presumption is always that land belongs to the State. NHA is an "end-user agency" authorized by law to administer and dispose of reclaimed lands. The moment titles over reclaimed lands based on the special patents are transferred to the NHA by the Register of Deeds, they are automatically converted to patrimonial properties of the State which can be sold to Filipino citizens and private corporations, 60% of which are owned by Filipinos. ( Chavez v. NHA, G.R. 164527, 20Cl7).

Reclaimed foreshore and submerged lands are lands of public domain, and can only be alienated as private Only the President, upon recommendation of the DENR property if it is classified by competent authority as secretary, may now classify lands of public domain. This alienable. (Republic v. Enciso, G.R. 160145, 2005). Page 263 of 320

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POLITICAL LAW 2. The State may either regulate or prohibit monopolies, when public interest so requires.

Perfected mining claims under the Old Mining Law do not entitle claimant to private ownership (Director of Lands v. Kafahi Investments fnc., G.R. 48066, 1989). ·

3. \Nhat are prohibited are combinations in restraint of trade and unfair competition. (1987 Constitution, art. XII, sec. '19) · , Restrictions upon trade may be upheld when not contrary to public welfare and not greater than is necessary to afford a fair and reasonable protection to . the party in whose favor it is imposed • Even contracts which prohibit an employee from engading in business in competition with the employer are not necessarily void for being in restraint of trade. In sum, contracts requiring exclusivity are not per se void. Each contract must be viewed vis-a-vis all the circumstances surrounding such agreement in deciding whether a restrictive practice should be· prohibited as imposing an unreasonable restraint on · competition (Avon v. Luna, G.R. No. 15.3674, 2006).

•

Protection of Indigenous Cultural Communities: 1. The State protects the rights of indigenous cultural communities to their ancestral land subject to: a. Constitutional provisions b. Subject to national development policies and programs 2. In detennining ownership and extent of ancestral domain, Congress may use customary laws on property rights and relations. Ancestral Domain - It refers to lands which are considered as pertaining to a cultural region. This includes lands not yet occupied, such as deep forests. Private corporations 1. They can only hold alienable 1:ands of the public domain BY LEASE. 2. Period: Cannot exceed 25 years, renewable for not more than 25 years 3. Area: Lease cannot exceed 1,000 hectares. Note: A corporation sote is treated llke other private corporations for the purpose of acquiring public lands.

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Filipino citizens Can lease up to 500 hectares Can ACQUIRE not more than 12 hectares by purchase, homestead or grant PRACTICE OF PROFESSION The practice of all profession in the Philippines shall be limited to Filipino citizens save in cases prescribed by law. { 1987 Constitution, art. XII, sec. 14).

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ORGANIZATION AND REGULATION OF CORPORATIONS. PRIVATE AND PUBLIC

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Private Corporations - Congress can only provide for the formation ot private corporations through a GENERAL corporation law. 2. GOCCs - May be created through SPECIAL CHARTERS or a GENERAL corporation law. (1987 Constitution. art. XII, sec. 16) .

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.MQMQPOLIES, RESTRAINT OF TRADE AND UNl'AIR

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COMPETITION 1.

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The Constitution does NOT prohibit the existence of monopolies. Page 264 of 320

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ATENEO CENTRAL· BAR OPERATIONS20t9

POLITICAL LAW CONCEPT OF SOCIAL JUSTICE

XIII. SOCIAL JUSTICE AND HUMAN RIGHTS TOPIC OUTLltJE UNDER THE SYLLABUS A. Concept B. Economic, Social, and Cultural Rights C. Commission on Human Rights

Social Justice Embodiment of the principle that those who have less in life should have more in law. Social Justice is neither communism nor despotism, nor atomism, nor anarchy, but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated ( Ca,alang v. Williams, G.R. 47800, 1940). -, These provisions Congress.

have

to

be

implemented

by

Nature of Policy The policy of social Justice is not intended to countenance wrongdoing simply because it is committed by the underprivileged. At best it may mitigate the penalty but it certainly will not condone the offense. Compassion for the poor is an imperative of every humane society but only when the recipient Is not a rascal claiming an undeserved privilege. Social justice cannot be permitted to be refuge of scoundrels any more than can equity be an impediment to the punishment of the guilty. (International Schoo/ Manila v. /SAE, G.R. No. 167286, 2014) .

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Principal Activities 1. Creation of more economic oppcrtuntties and more wealth 2. Closer regulation of the acquisition, ownership, use and disposition of property in order to achieve a more equitable distribution of wealth and political power. 3. Creation of economic opportunities based on freedom of initiative and self-reliance. ECONOMIC, SOCIAL. CULTURAL RIGHTS Economic, social and cultural rights include the rights to adequate food, to adequate housing, to education, to health, lo social security, to take part in cultural life, to water and sanitation, and to work. (United Nations Human Rights, Office of the High ,'.::ommissioner}

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Labor Section 3 of Article XIII elaborates on the provision in Article II by specifying who are protected by the Constitution, what rights are guaranteed, and what positive measures the state should take in order to enhance the welfare of labor.

Page 265 of 320

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Notes: • The right to organize is giver. to all kinds of workers both in the private and public sectors. • The workers have a right to hold peacef ii concerted activities, except the right to strike, which !S subject to limitation by law. e.g., policemen, firemen, and public school teachers are prohibited from striking. • The workers have the right to participate on matters affecting their rights and berlefits, as may beprovided bylaw. • Participation can be through: 1. Collective bargaining agreements 2. Grievance rnachherles 3. Voluntary modes of settling disputes 4. Conciliation proceedings mediated by the . government. NAMA-MCCH-NFL had not registered as a labor organization. Not being a legitimate labor organization, NAMA-MCCH-NFL is not entitled to those rights granted to a legitimate labor organization under the Labor Code, specifically: 1) To act as the representative of its members for the purpose of collecnve bargaining; 2) To be certified as the exclusive iP-presentative of all the employees in an appropriate collective bargaining unit for purposes of collective bargaining ( Visayas Community Medical Center v. Erma Yballe, et al., G.R. 196156, 2014). Agrarian Reform Must aim at: 1. Efficient production. . 2. Equitable distribution of land which recognizes the right of farmers and regular farm workers who are landless to own the land they till. 3. A just share of other or seasonal farm workers in the fruits of the land. Note: The CARL is an exercise of police power and power , of eminent domain. To the extent that the CARL prescribes retention limits for landowners, there is an exercise of police power. Whore it becomes necessary to deprive owners of their land in excess of the maximum allowed, there is compensable taking and therefore the exercise of eminent domain. Just compensation involves not just value of loss to the owner, but prompt payment. Ownership is transferred upon full payment, and such payment need not be in cash. Scope of Agrarian Reform Extends not only to private agricultural lands, but also to "other natural resources," even including the usa and

enjoyment of "communal marine and fishing resources" and "offshore fishing grounds." Agricultural land held by the church in trust may be subject to land reform. The land reform law does not make a · distinction between the various forms of ownership, whether in trust or absolute title. Urban or rural poor dwellers cannot be evicted, except according to law. Who can be evicted: DIC 1. Persons occupying Qangerous areas 2. When government Infrastructure projects with allocated funding are going to be implemented 3. When there is .~ourt order for eviction and demolition The NHA has authority to order relocation of persons and demolition of their property as part of its mandate to improve blighted areas. Lands acquired by the NHA for resettlement purposes or housing development are exempt from the coverage of agrarian reform laws. Such acquisition converts the land by operation of law from agricultural to residential. The NHA is not bound to pay disturbance compensation to any tenant in possession of the purchased land (National Housing Authority v. Department of Agrarian Reform Adjudication Board, et al., G.R. 175200, 2010). Urban Land Reform and Housing The State shall, by law, and for the common good, undertake, in cooperation with the public sector, a continuing program of urban land reform and housing which will make available at affordable cost decent housing and basic services to underpiivileged and homeless citizens in urban centers and resettlements areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners (Art. XIII, Sec. 9, Phil Const.)

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Urban or rural poor dwellers shall not be evicted nor their dwellings demolished, except in accordance with law and in a just and humane manner. No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be relocated. (Art. XIII, Sec. 10, Phil Const.)

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POLITICAL LAW The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation (Art. XIII, Sec. 14, Phil Const.)

Eviction and demolition "in accordance with law and in a justand humane manner" does not mean that the validity or legality of the demolition or eviction is hinged on the existence of a resettlement area designated or earmarked by the government." Rather, it means that "the person to be evicted be accorded due process or an opportunity to controvert the allegation that his or her occupation or possession of the property involved ls unlawful or against the will of the landowner; that should the illegal or unlawful occupation be proven, the occupant be sufficiently notified before actual eviction or demolition is done; and there be no loss of lives, physical injuries or unnecessary loss of or damage to properties (People v. Leachon, G.R. Nos. 108725-726, 1998).

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COMMISSION ON HUMAN RIGHTS Composition: (5) 1. Chairman and 2. 4 members Qualifications:25 Natural-born citizens of the Philippines Majority of the Commission must be members of the Philippine bar

Health The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. There shall be priority for the needs of the underprivileged sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers. (Art. XIII, Sec. 11, _Phil Const.)

The appointment of the CHR members is not subject to CA confirmation; and the CHR is not of the same level as the COMELEC, CSC, or COA. Powers: (IAC-PE2RM-IRAO) 1. !nvestigate all forms of human rights violations involving civil or political rights, and recommend.26 ' 2. Adopt operational guidelines and rules of procedure. 3. Cite for g,ontempt for violations of its rules, in c,-;cordance with the Rules of Court. 4. frovide appropriate legal measures for the protection of the human rights of all persons, within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection.27 5. .sxercise visitorial powers over jails, prisons and other detention facilities. 6. !;.stablish continuing programs for research, education and information in order to enhance respect for the primacy of human rights.

In the article, there are two principles premised on the understanding that the high level of health of the people and of the country can be attained only through a combination of social, economic, political, and cultural conditions. Integration connotes a unified health delivery system, a combination of private and public sectors, and a blend of western medicine and traditional health care modalities. Comprehensiveness includes health promotion, disease prevention, education, and planning. And all of these are a recognition of the people's right to. health. (Bernas, Comprehensive Reviewer, 2011) · Women

25

Note: The term of office, other qualifications, and disabilities shall be provided by law. 26 Notes: 1. Violations may be committed by public officers or by clvilians or rebels. 2. CHR cannot investigate violations of social rights. 3. CHR has NO adjudicatory powers over cases . involving human rights violations. 4. They cannot investigate cases where no rights are violated. e.g., There is no right to occupy government land (squat). Therefore, eviction therefrom ts NOT a human rights violation.

27

Notes: The CHR can initiate court proceedings on behalf of victims of human rights violations. • The CHR can recommend the prosecution of human rights violators, but it cannot itself prosecute these cases. • The CHR cannot issue restraining orders or injunctions against alleged human rights violators. These must be obtained from the regular courts. •

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7. .Becommend to congress effective measures to promote human rig:its and to provide compensation to victims of human rights violations or their families. 8. .Monitor compliance by the government with international treaty obligations on human rights. 9. Grant Immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any CHR investigation. 10. Request assistance from any department, bureau, office, or agency in the performance of its functions. 11. ~pi:,oint its officers and employers in accordance with law. ----·.end of topic----

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POLITICAL LAW

XIV. EDUCATION, SCIENCE, TECHNOLOGY, ARTS, CULTURE AND SPORTS TOPIC OUTLINE UNDER THE SYLLABUS

A. Academic Freedom Right to Education The State shall protect and promote the right of all citizens to quality education at all levels, and shall take appropriate steps to make such education accessible to all. (CONST. Art.XIV, Sec.1) Duties of the State relative to right to Edur.ation The State shall: 1. Establish, maintain, and support a complete, adequate, and integrated system of education relevant to the needs of the people and society; 2. Establish and maintain, a system of free public education in the elementary and high school levels. Without limiting the natural right-, of parents to rear their children, elementary education is compulsory for all children of school age; 3. Establish and maintain a system of scholarship grants, student loan programs, subsidies, and other incentives which shall be available to deserving students in both public and private schools, especially to the underprivileged; · 4. Enccurage non-formal, informal, and indigenous learning systems, · as well as self-learning, independent, and out-of- school study programs particularly those that respond to community needs; and 5. Provide adult citizens, the disabled, and out-of-school youth with training in civics, vocational efficiency, and other skills. (CONST. Art.XIV, Sec.2) Academic Freedom Constitutional Provision: Academic freedom shall be enjoyed in all institutions of higher learning. ' l ,·

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Freedoms of a University From the standpoint of the institution: to provide that· atmosphere which is most conducive to speculation, experimentation, and creation. The four essential freedoms of a university are: a. Who may teach b. What may be taught c. How it shall teach d. Who may be admitted to study [Garcia v, Faculty Admission Committee, 68 SCRA 277 (1975) citing J. Frankfurter, concurring in Sweezy v. New Hampshire, 354 us 232 (1937)]

Right of School to Decide for Itself Institutional academic freedom inc'udss the right of the school or college to decide fo,· itself, Its aims and objectives, and how best to attain them free from outside coercior. or interference save possibly when the overriding public interest calls for some restraint i

Right to Discipline Students The right to discipline the student likewise finds basis in the freedom "what to teach." Indeed, while it is categorically stated under the Education Act of 1982 that students have a right "to freely choose their field of study, subject to existing curricula and to continue their course therein up to graduation." such right is subject to the established academic and disciplinary standards laid down by the academic institution. [DLSU Inc., v, CA, G.R. No. 127980, December 19, 2007) Requisites of Due Process for Students before Imposition of Disciplinary Sanctions 1. Must be informed in writing of the nature and cause of the accusation against him; 2. Right to answer charges 2gainst him, with the assistance of counsel, if desired; 3. Informed of the evidence against him; 4. Right to adduce evidence in his behalf; and 5. Evidence must be duly considered by the investigating committee or official designated by the school to hear and decide the case (Ateneo de Manila University v. Capulong, GR No. 99327, May 27, 1993) Faculty members have: 1. Full 'freedom In research and In the publication of the results, subject to the adequate performance of their other academic duties. 2. Freedom in the classroom in discussing their subjects, ' but they should be careful not to introduce into their teaching controversial matter which has no relation to t~eir subjects. 3. Freedom from institutional censorship or discipline, when faculty members speak or write in their capacity as citizens. General Rule: Students have the right to enjoy in school the guarantees of the Bill of Rights. Limitations: 1. Dominant police power of the State 2. Social interest of the community

Budgetary Priority Education must be assigned the highest budgetary priority. Page 269 of 320

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XV.FAMILY Integrated System of Education 1. Free movement from one school to another; or public to private and back. So this means there Is the same program. 2. Free public education in elemontary and HS levels. c. Elementary education is compulsory d. But it cannot be subject to penal sanction; It is a moral, not legal compulsion. Free education: a. Elementary b. High School

All educational institutions must include study of -. Constitution in its curriculum. General Rule: FILIPINIZATION Educational schools must be owned solely by citizens of Philippines or corporations with at least 60% Filipino capital, subject to change by Congress. Exception: Those established by religious groups and mission boards. 1. Control and administration vested in Philippine citizens. 2. No school established exclusively for aliens and aliens cannot be more than 1/3 of enrollment in any school. 3 Exception: For schools for foreign diplomats and their dependents, and other temporary foreign residents.

A.

The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development (CONST. Art. XV, Sec.1) Rights of the Family The stet« shall defend The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood; . The right of r.hildren to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development; The right of the family to a family living wage and income; and The right of families or family associations to participate in the planning and implementation of policies And programs that affect them. (CONST. Art. XV. Sec. 3)

Religion may be taught in public schools subject to the following requisites: 1. Express written option by parents and guardians; 2. Taught within regular class hours: · 3. Instructors are designated and approved by the proper religious authorities; and 4. Without additional cost to the government. Historic Sites The Court held that there was no violation of the Constitution when DMIC was allowed to construct a condominium at the back of the Rlzal's monument. No law prohibits the construction. City Ordinance 8119 on historic sites is a mere "guide" but does i'1ot prohibit construction of a building outside a historic side or facility. R.A. 10066 protects the physical integrity of heritage property if there is a danger of destruction or significant alteration from its ongir,al state. (Knights of Rizal v. DMCI Homes, G.R. No. 213948, 2017) ---

TOPIC OUTLINE UNDER THE SYLLABUS Rights

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POLITICAL LAW Each House may separately formulate amendments by a vote of 3/4 of all its members, and then pass it on to the other house for similar process. Nothing is said about joint sessions (Bernas, The 1987 Philippine Constitution: a Comprehensive Reviewer, 544, 2011 ).

XVI. AMENDMENTS OR REVISIONS OF THE CONSTITUTION TOPIC OUTLINE UNDER THE SYLLABUS A. Procedure to amend or revise the Constitution

Even in a joint session, they must still vote separately because Congress is bicameral.

Amendment An alteration of one or a few specific separable provisions of the Constitution. The chanqss brought about by amendments will not affect the other provisions of the Constitution (Bernas, 1987 Philippinf; Constitution: A Commentary, 1345, 2009). An addition or change within the lines of the original constitution as will effect an improvement, or better carry out the purpose for which it was framed; a change that adds, reduces or deletes without altering the basic principles involved; affects only the specific provision being amended. [Lambino v. COMELEC, G.R. No.174153. October 25, 2006 Examples: a change reduc:ing the voting age from 18 years to 15 years; a change reducing Filipino ownership 'Jf mass media companies from 100% to 60%; a change requiring a college degree as an additiona: qualification for election to the Presidency (Lambino v. COMELEC, G.R. No. 174153,

2006).

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Necessary Steps to Give Effect to Amendments Revisions (PSR) 1.

or

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roposal of amendments or revisions by the proper constituent assembly 2. §ubmission of the proposed amendments or revisions to the people 3. Batificat;on Ways of Proposing Amendments:

Constitutional Convention (ConCon) Congress may call a ConCon by a 2/3 vote of all its members, or By a majority vote of all its members, Congress may submit to the electorate the question of calling a ConCon. Notes: The choice of either a constituent assembly or constitutional convention for the purpose of intiating amendments or revisions is left to the discretion of Conqress. In other words,'it is a political question. The manner of calling a ConCon is subject to judicial review, because the Constitution has provided for voting requirements. If Congress, acting as a ConAss, calls for a ConCon but does not provide the details for the calling of such ConCon, Congress -- exercising its ordinary legislative power may supply such details. But in so doing, Congress (as legislature) should not transgress the resolution of Congress acting as a constituent assembly (Bernas, The 1987 Philippine Constitution: a Comprehensive Reviewer, 544-545, 2011). Congress, as a ConAss and the ConCon, has no power to appropriate money for their expenses. Money may be spent from the treasury only pursuant to an appropriation made by law. However, the constitutional convention is free to dispose the funds appropriated by Congress for the Convention's operation (Bernas, The 1987 Philippine Constitution: a Comprehensive Reviewer, 545, 2011).

Constituent Assembly (ConAss) -;

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Acting as a Constituent Assembly, the Congress by itself may propose amendments by 3/4 vote of all its members. The power of Congress to propose amendments is NOT part of its ordinary legislative power. Congress possesses constituer.t power only because it has been specifically given that power by and under the conditions of Article XVII (Bernas, The 1987 Philippine Constitution: a Comprehensive Reviewer, 544, 2011, citing Gonzales v. COMELEC, G.R. No. L-28196, 1967).

People's Initiative For a valid People's Initiative, there must be: 5. Petition to propose such amendments must be signed by at least 12% of all registered voters. 6. Every legislative district must be represented by at least 3% of the registered voters therein. 'While the substance of the proposals made by each type of ConAss is not subject to judicial review, the manner the proposals were made is subject to judicial review.

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Since a ConAss owes their existence to the Constituton, the courts may determine whether the assembly has acted in accordance with the Constitution. like: Whether a proposal was approved by the required nurnber of votes in Congress (acting as a constituent assembly). Whether the approved proposals were properly submitted to the people for ratification. Notes: • The electorate can propose through initiative ONLY amendments, since it would be practically impossible to have an over-all review of the Constitution through action by the entire electoral population. • No amendment through a People's lnltiative shall be authorized within 5 years following the ratiflcatlon of the 1987 Constitution. (February 2, 1987)'nor • More often than once ever/ 5 years. The Congress shall provide for the implementation of the exercise of this right. (Art. XVII, Sec.2) • Revision of the Constitution cannot be effected through initiative and referendum. Formulation of provisions revising the Constitution requires both cooperation and debate which can only be done through a collegial body. (BERNAS) Revision A re-examination of the entire Constitution or of provisions which have over-all implications for the entire Constitution to determine how and to what extent it should be altered. A revision implies substantive change, affecting the Constitution as a whole ~Bernas, 1987 Philippine Consthution: A Commentary, 1345, 2009).

Quantitative test - The court examines only the number of provisions affected and does not consider the degree of the change. Whether the proposed change ts so extensive in its provision as to change directly the "substance entirety" of the Constitution by the deletion or alteration of numerous provisions. 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" (Lambino v. COMELEC, G.R. No. 174153, 2006). Ways of Proposing Revisions By Congress, upon a vote of 3/4 of its members By a Constitutional Convention · Doctrine of Proper Submission A plebiscite may be held on the same day as a regular election [Gonzales v. COMELEC, 21 SCRA 774}. The entire Constitution must be submitted for ratification at one plebiscite only. The people must have a proper "frame of reference". [Tolentino v. COMELEC, 41 SCRA 702]. No "piecemeal submission," e.g. submission of age amendment ahead oi other proposed amendments. [Lambino v. COMELEC, G.R. No.174153. October 25, 2006} N.B. The process of revision is the same in all respects except that it cannot be proposed via a People's Initiative. [See Lambino, supra) Judicial Review of Amendments

A change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances; alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution.

The validity of the process of amendment is not a political question because the Court must review if constituUonal processes were followed. [See Lambino, supra] Ratification of Proposal if made through ConAss or ConCon

Examples: altering the principle of separation of powers or the system of checks-and-balances; a switch from the presidential system to a parliamentary system:

Amer.dments and revisions are valid when ratified by a majority of votes cast in a plebiscite. Plebiscite is held not earlier than 60 days nor later than 90 days from the approval of such amendments or revisions.

a switch from a brcameral system to a unicameral system (Lambino v. COMELEG, G.R. No. 174153, 2006).

Ratification of Proposal _If made through Poople's Initiative

Two-part test in determining whether a proposal involves an amendment or revision.

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Valid when ratified by a majority of votes cast in a plebiscite.

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POLITICAL LAW

Plebiscite is held not earlier than 60 days nor later than 90 days after the certification by GOMELEC of the petition's sufficiency.

·. Exception: When the proposed amendments or revisions · so provide (Bernas, The 1987 Philippine Constitution: a Com:;,rehensive Reviewer, 550, 20·11).

Requisites for Valld Ratification: (PCR) 1.

Date of Effoctivity of an Amendment or Revision

The Constitution does not require that amendments and revisions be submitted to the people in a special election. Thus, they may be submitted for ratification simultaneously with a general election.

Since Section 4 of Article XVII, says that any amendment or revision 'shall be valid when ratified' , the date of effectivity of any amendment or revision should be the same as that of the date of ratification, that is, the day on which the votes are cast. However, the amendments themselves might specify otherwise. (BERNAS) Difference between amendment and revision

Held in a flebiscite conducted under the election law. 2. Supervised by the 5'0MELEC. 3. Where only franchised (Registered) voters take part.

The determination of the conditions under which proposed amendments/revisions are submitted to the people falls within the legislative sphere. That Congress could have done better does not make the steps taken invalid. All the proposed amendments or revisions made by the constituent assemblies must be submitted for ratification in one single plebiscite. There cannot be a piece-meal ratification of amendments/revisions. All the amendments to be proposed by the same Convention must be submitted to the people in a single "election" or plebiscite (Tolentino v. COMELEC, G.R. No. L-34150, 1971). Presidential proclamation is NOT required for effectivity of amendments/revisions.

AMENDMENT

Change In the Constitution Purpose is to improve specific parts

Purpose Is to examine entirety

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Affects only the specific provision amended

Affects several provisions

Adds, reduces, deletes without altering basic principle

Affects basic principles Affects substantial entirety

Ex: extending term limit of House Representatives

Ex: shift from presidential to parliamentary system

., How

Can be done by: Amendments

REVISION

1.Congress (Constituent By a vote of 3/4 of all its members Assembly I ConAss)

Ratification Through a plebiscite, 60-90 days after submission of the amendments

By a 2/3 vote of all the members of Congress; or

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2. Constitutional Convention By a majority vote of all its (Cancan) members. Congress may submit to the electorate the question of calling a ConCon Petition must be signed by at least 12% of all registered voters; and 3. People's Initiative Every legislative district must be represented by at least 3% of the registered voters therein.

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Revision

By a vcte of 3/4 of all its members

1. Congress (ConAss)

2. Constitutional Convention By a 213 vote of all the members (ConCon) of Congress; or By a majority vote of ali its members. Congress may submit to the electorate the question of calling a ConCon Case Title

Facts

Mabanag Resolution of v.Lopez Congress Vito (1947) proposing the Parity Amendment was assailed on the ground that it did not comply with the 314 rule prescrlbe« by the Constitution.

There was a proper the general elections scheduled submission. on Nov. 1967.

Held+ Ratio Petition dismissed.

Proposal of amendments to the constitution is a political question. The enrolled copy of the resolution in which it was certltied that the proposal had been approved by the required vote was conclusive upon the courts.

Tolentino v. COMELEC (1971)

Modified by

Gonzales, and Tolentino Gonzales v. COMELEC (1967)

RBH No. 1 called for an increase in the membership of the HOR; RBH No. 2 called for a Constitutional Convention; and RBH No. 3 called for the amendment of Sec. 1 a, Art.VI to allow members of Congress to become delegates to the CONCON without losing their seats. Petitioners seek to restrain respondents from enforcing the law passed by Congress submitting RBH Nos. 1 and 2 for ratification during

Petition denied. Proposal of amendments is not

a political but a subject to judicial review. Congress may propose amendments and at the same time call for a Constituent Assembly.

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Validity of a CONCON Resolution (submitting, for · ratification, the proposal to lower the voting age to 18) was assailed. The question here is whether piecemeal amendments to the Constitution could be submitted to the people for ratification or rejection.

Planas v. Petitioners seek to COMELEC enjoin respondents {1973) from implementing PD 73, which called for a plebiscite {to be held on January 15, 1373) for the constitution approved by the CONCON on 1972, on the theory that: (a) the power to submit is lodged exclusively in Congress, and (b) there is no proper submission to the people.

justiciable question

Ratification may be done simultaneously with a general election or in a special election called specifically for that purpose.

Throogh a plebiscite, 60-90 days after submission of the amendments

Petition granted. All amendments proposed by the same Constitutional Convention shall be submitted to the people in a single etection.

Petition dismissed.

The issue of validity of e&lling for a plebiscite (submission) is justiciable; BUT, issue became moot.

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ATENEO CENTRAL BAR OPERATIONS2019 Javellana v. Executive Secretary (1973)

Petitioners seek to enjoin the respondents from implementing any of the provisions of the "new constitution" not found in the 1935 Constitution, on the theory that it was not validly ratified in accordance with the provisions of Art.1, Section XV.

POLITICAL LAW Although the question of whether a Constitution was validly ratified is a justiciable question, the question of whether a Constitution has come into force and effect is a political question beyond the competence of the Court to decide.

sovereignty resides according to the Constitution, the courts cannot refuse to yield assent to such a political decision. Lawyers' League v. Aquino (1986)

Petitioners questioned legitimacy of the Aquino government.

Santiago v. COMELEC (1997)

Petitioners seek to COMELEC enjoin respondent permanently COMELEC from enjoined from acting on the entertaining or petition by the taking cognizance of PIRMAgroup any petition for asking for an order initiative until a fixing details on sufficient law shall how to collect have been validly signatures for a enacted to provide people's initiative to forthe amend the implementation of Constitution the system.

' Sanidad v. Petitioners question The amending COMELEC the authority of the process, both as to (1976) President in issuing proposed and several PDs ratification, raises a proposing justiciable question. amendments to the New Constitution In a crisis and calling for a government, the national President shall have referendumthe power to plebiscite for the assume the said amendments. constituent power to propose amendments lodged in the Le9islative body.

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Mitra v. Petitioners argue COMELEC that the 1973 (1981) Constitution never validly took effect, Javellana aside, on the theory that the 1973 Constitution wa& still and is still at the stage of proposal. They ask the Court to order a plebiscite for the ratification of the 1973 Constitution.

Even without valid ratification, a new Constitution could come Into force and effect by the acquiescence of the people. Popular acquiescence to a new Constitution gives the document the force and effect of the Fundamental Law of the Land, regardless of the method of ratification. If it is accepted by the people (as shown by their participation in several elections and referenda since then), in whom Page 275 of 320

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The question of legitimacy of a new government arising from a successful revolution is a political question beyond the pale of review by the courts.

The system of initiative found in Article XVII, Sec. 2 is not self-executory. It needs an enabling law before the right of the people could be exercised. However, an examination of its provisions reveals that RA 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned.

ATENEO CENTRAL

POLITICAL LAW

BAR OPERATIONS 20'19

Estrada v. Desierto (2001)

Estrada quesnons legitimacy of Arroyo government and claims, inter alia, that he did not resign from position and that Arroyo is rnerely an acting I president.

Lambino v, Petitioners seek COMELEC review of (2007) COMELE:C decision denying due course to a people's initiative to amend the 1987 Constitution.

(Legal distinction between EDSA I and EDSA II) The government arising from EDSA I was extra-constltutional, while EDSA II was a constitutional exercise of the right to free speech, freedom of assembly, and to petition the government for redress.

'

The constituent power reserved to people under Art. XVII Sec. :~ Is limited to the power to propose amendments to, not revision of, the Constitution. :

Moreover, "direct proposal by the people" means that the petition signed by the people should contain the full text of the proposed amendments to the Constitution.

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BAR OPERATIONS 2019 XVII. PUBLIC INTERNATIONAL LAW TOPIC OUTLINE UNDER THE SYLLABUS

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A. Concepts 1. Obligations (:rga Omnes 2. Jus Cogens 3. Concept of Ex Aequo et Bono B. Relationship Between International and National Law · C. Sources of Obligation in International Law 0. Subjects · 1. States 2. International Organizations 3. Individuals E. Jurisdiction of States 1. Basi!; of Jurisdicitlon a. Territoriality Principle b. Nationality Principle and Statelessness c. Protective Principle d. Universality Principle e. Passiver Personality Principle 2. Excemptk,ns from Jurisdiction a. Act of State Doctrine b. International Organizations and its Officers F. General Principles of Treaty Law G. Doctrine of State Responsibility H. Refugees I. Extradition J. Basic Principles of International Human Rights Law 1. Universal Declaration of Human Rights 2. lnternationnl Covenant on Civil and Political Right 3. International Covenant on Economic, Social, and Cultural Right K. Basic principles of International Humanitarian Law 1. Categories of armed conflicts a. International armed conflicts b. Internal or non-international armed conflict c. War on national liberation 2. R.A. 9851 (Philippine Act on Crimes Against International Law, Genocide, and Other Crimes Against Humanity) 3. Core international obligations of states in lnternatlonat Humanitarian Lc1w 4. Principles of International Humanitarian Law 5. Treabnent of Civilians 6. Prisoners of War 7. Law on Neutrality L. Law.of the Sea 1. Baselines 2. Archipelagic State a. Straight archipelagic baselines

b. Archipelagic Waters c, Archipelagic sea lanes passage d. Regime of Islands · 3. Internal Waters 4. Territorial Sea 5. Contiguous 7-one 6. Exclusive economic zone 7. Continental shelf and ExtencJed Continental Shelf 8. International Tribunal for the Law of the Sea M. Basic Principles of International Environmental Law 1. Precautionary Principle

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· POLITICAL

PRELIMINARIES

Traditional Definition of Publlc International Law International law is a body of rules and principles of action which are binding upon civilized states in their relations to one another. (Bernas, Public International Law, 2009) Modem Definition of Public International Law International law as the law which deals with the conduct of states and of international organizations and with lheir relations inter se , as well as some of their relations with persons, whether natural or juridical. (Restatement (Third) of Foreign Relations Law of the Unites States) Private International Law or Conflict of Laws Private international law is really domestic law which deals with cases where foreign law lntrudes in the domestic sphere where there are questions of the applicability of foreign law or the role of foreign courts. (Bernas, Public International Law, 2009) . .

PUBLIC.

.

PRIVATE

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Governs the relation of Deals with private sovereign States and other individuals entities with an international personality. ~~~~~~t--~~~~~~---1, They are generally accepted It is really municipal or principles of public international national in character law, giving the subject an because each State international nature. has its own conflict rules. Sanctions may be in the form of Relief prayed for may peaceful remedies (i.e be obtained from diplomatic negotiation, municipal tribunals. mediation, conciliation, arbitration, diplomatic efforts, settlement by the ICJ)

Refers to rules of politeness, convenience, and goodwill observed by States in their mutual lr,tercourse without being legally bound by them. A.CONCEPTS OBLIGATIONS ERGA OMNES The term erga omnes (literal meaning: in relation to everyone) in international law has been used as a legal term describing obligations owed by States towards the community of states as a whole (Romulo v. Vinuya, G.R. 162230, 2010). By their very nature, these are the obligations of a State towards the international community as a whole .. Such obligations derive, for . example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law others are conferred by international instruments of a universal or ouasi-universal character.(Romulo v. Vinuya, G.R. 162230, '2010). Types of Obligations Erga Omnes

ERGA OMNES OMNIUM

General lnternatlonal Law

It is used to describe international instruments that their makers recognize are not treaties, but have as their purpose the promotion of 'norms' which are believed to be goods and therefore should have general or universal application. International Comity (Comltas gent/um)

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Multilateral treaty

To whom owed The international community, in any given

This refers to binding international legal norms or those · which have coercive character. (SARMIENTO) Soft Law

ERGA OMNES PARTES

Basis

All the other States parties to the same treaty. in any given case

case

Hard Law

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LAW

Interest The common values of the international community and concern for compliance

The common values of States parties and their concern for compliance

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In international law, the term "jus cogens" (literal meaning: compelling law) refers to norms accepted and recognized by the international community of States as a whole, that command peremptory authority, superseding conflicting Page 278 of 320

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POLITICAL LAW Equity

treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority (Romu/o v. Vinuya, G.R. 162230, 2010).

When accepted, is an instrument whereby conventional or customary law may be supplemented or modified in order to achieve justice. It has both a procedural and substantive aspect. Procedurally, it means a mandate given to a judge to exercise discretion in order to achieve a determination that is more equitable and fair.

Elements of Jus Cogens: ADS (Article 53, Vienna Convention on Treaties) 1. A norm ~ccepted and recognized by the international community of states as a whole. 2. No Qerogatior. is permitted. 3. It can only be modified by a .§.ubsequent norm having the same character.

Different kinds of Equity' 1.

2. 3.

Status of Later Treaty which I~ Contrary to Jus Cogens A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law or jus cogsns. (Article 53, Vienna Convention on the Law of Treaties)If a new persmptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates. (Jus coqen« > Treaty)

EQUITY V. EX AEQUO ET BONO The power to apply principles of equity in no way restricts the power of the ICJ to decide cases based on Ex Aequo et Bono should the parties so agree that the controversy is to be decided on the said principle.

Jus Cogens and Erga Omnes, Differentiated Jus cogens is different from erga omnes. (One rs not the subset of the other.) Jus cogens pertains to the non· derogability of a norm and the validity of rules and acts that conflict with it. Erga omnes pertains to the legal interest of a State in the violation of a norm. · EX AEQUO ET BONO Literally, justice and fairness. The ancient concept is based upon the idea of 'fundamental fairness' as a guiaeline principle in arbitration and other dispute settlement processes. Under the ICJ Statute, the International Court of Justice is given the authority to decide a 'case ex aequo et bono (according to what is fair and good) provided that the parties expressly agree. (Art.38(~). /CJ Statute)

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Equity intra /egem (within the law) - that is, the law is adapted to the facts of the case: Equity praeter legem (beyond the law) - that is, it is used to fill the gaps within the law; and Equity contra Jegem (against the law) - that is, a refusal to apply the law which ;s seen as unjust.

EQUITY

EX AEQUO ET BONO

When accepted, is an instrument whereby conventional or customary law may be supplemented or modified in order to achieve justice. Procedurally, it means a mandate given to a judge to exercise discretion in order to achieve a determination that is more equitable and fair.

Pertains to the power of the International Court of Justice to decide a case equitably outside the rules of law at the instance of . the parties to the case.

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B.REL6.TIONSHIP EIETWEEN INTERNATIONAL AND DOMESTIC LAW

INTERNATIONAL LAW Scope

The conduct of States and Apply to a single country or international organizations, nation, within a determined their relations with each territory and it.s inhabitants. in certain other and, circumstances, their relations with persons, natural or juridical. [American Third Restatement]

How Made

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Through consent, adopted Issued by a political by States as a common rule superior for observance. of action.

Relations Regulated Regulates relations of Regulates relations · of States and other individuals among international persons themselves or with their own States.

Sources Derived principally from treaties, intematlonal custom and general principles of law. (ICJ, Stat., art. 38(1 ))

Consists· mainly of enactments from the lawmaking authority of each State.

international law and domestic law belong to only one system of law. i. Theory 1: Municipal law subsumes and is superior to international law ii. Theory 2: International law is superior to domestic law 2. Dualism - International law and national iaw are essentially different from each other as tosource (i.e. municipal law is a product of local custom or legislation; whereas sources of international law are treaties and custom grown among states.); as regards the relations they regulate (i.e. municipal law regulated relations between individual persons under the state; whereas international law regulates relations between states); and lastly, as to substance (i.e. municipal law is a law of the sovereiqn over individuals whereas international law is a law between sovereign states) (Bernas, Public

InternationalLaw, 2009) MONISM

DUALISM

Monists have a unitary concept of law and see all laws (both international and municipal law) as an integral part of the SAME SYSTEM. If conflict exists between international law and municipal law, international law must prevail.

Domestic and international law are INDEPENDENT of each other.

Settlement of Disputes By means of State-to-State transactions.

By rneans of local administrative and judicial processes.

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Responsibility Collective responsibility Breach of domestic law because it attaches directly entails individual to the State and not to its responsibility. nationals.

Municipal Law

regulate regulates relations of relations individuals between under a state states

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product of dorived from local custom or such sources legislation as international customs, conventions, genel'al or principles of law law of sovereign individual

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the international over law is a law between sovereign states

NATIONAL LAW -;__. :~

International and National Law, Distinguished

Theoretical Approaches to the Relationship between International Law ancJ National Law 1.

Monism - there is no substantial distinction between international law and municipal law. Under this theory,

Monism v. Dualism Under dualism, no conflict can ever arise between international and municipal law, because the two systems are mutually exclusive. If International law is applied within a state, it Is only because ii has been expressly incorporatert by municipal law. The Philippines is a dualist state.

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ATENEO CENTRAL BAR OPERATIONS 2019 Theories as to Manner of Adopting International Law as Part of the Law of the State 1. Doctrine of Incorporation -A State is, by reason of its membership in the family of nations, bound by the generally accepted principles of international law, the same being considered as part of its own laws. 2. Doctrine of Transformation -This is based on a strict dualist approach. Since the two systems are distinct and operate separately, for international law to become part of domestic law it must be expressly and specifically transformed into domestic law through the appropriate constitutional machinery such as an act of Congress or Parliament. (Bernas, Public lntemational Law, 2009) Types of Transformation Theories 1. Hard Transformation Theory - Only legislation can transform International Law into domestic law. Courts may apply International L.aw only when authorized by legislatlon 2. Soft Transformation Theory - Either a judicial or legislative act of a state can transform International Law into domestic law.

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Conflict Between International and Municipal Law A. International Rule or Conflict Resolved by International TribunalBefore an international tribunal, a state may not plead its own law as an excuse for failure to comply with international law. A State, which has contracted valid international obligations, must modify its laws to ensure fulfillment of its obligations under the treaty, unless the constitutional violation is manifest and concerns a rule of internal law of fundamental importance. National laws must yiela to the laws of nations because international law provides the standards by which legality of State conduct is to be determined. B. Municipal Rule er Conflict Resolved by Local Court-When the conflict comes before a domestic court, domestic courts are bound to apply the domestic law. Rules of international law are given a standing equal, not superior, to national leglslativ€ enactments . Should a conflict arise between an international agreement and the Constitution, the treaty would not be valid and operative as domestic law. It does not, however, lose its character as international law.

POLITICAL LAW declare a treaty unconstitutional. International Law, 2009)

(Bernas,

Public

Conflict between Treaty and Domestic Leglslation When the two instruments relate to the same subject, try to give effect to both; if inconsistent, the later in date will control, provided that the treat} stipulation is selfexecuting. But this rule only applies in the domestic sphere. A treaty, even if contrary to a later statute, is binding in international law. Fitzmaurice Compromise Assumes that since the two systems, international and national law, do not operate in common field, they can never come into conflict. Each one of them is supreme in its own domain, thereby any apparent conflict In the domestic field is automatically settled by the domestic conflict rules of the forum and any conflict in the international field would be resolved by International Law. C. SOURCES OF OBLIGATIONS IN INTERNATIONAL ~

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DOCTRINE OF TRANSFORMATION··~ The generally accepted rules of international law are not per se binding upor, the State but must first be embodied in legislation enacted by the lawmaking body and so transformed into municipal is law. Only when so Incorporation transformed will they recognized by the Constitution. (e.g. become binding upon the customs and general State as part of its principles of international municipal law, (e.g. treaty law)(1987 Constitution, obligations) art. 2, §2)

DOCTRINE OF INCORPORATION The rules of international law form part of the law of the land, and no further legislative action is needed to make such rules applicable in the domestic sphere.

"SOURCES" OF INTERNATIONAL LAW ACCORDING TO ARTICLE 38(1). ICJ STATUTE The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions or treaties, whether general or particutar, establishing rules expressly recoqnizeo by contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations;

Conflict between a State's Constitution and International Law When the constitutional violation is manifest and concerns a rule of internal law of fundamental l-nportance, State may deviate from treaty obligation. Should a conflict arise between an international agreP.ment and the Constitution, ' the treaty would not be valid and operative as domestic law. The Constitution, in Article VIII, Section 5, 2(a) explicitly recognizes the power of the Supreme Court to Page 281 of 320

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d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the ,. determination of rules of law. ·

2. Custom

Primary Sources: TCG

Definition

1.

Treaties: Conventional International Law; International conventio.is, whether general or particular. establishing rules expressly recognized by the contracting states 2. fustomary International Law: International custom, as evidence of a general practice accepted as law; 3. ~neral Principles of Law: General principles of law . recognized by civilized nations. [ICJ Statute, art. . 38(1 )(aHc)] Subsidiary Sources (JT) ('I) Judicial decisions and (2) Teachings of the most highly qualified publicists of the various nations. fJCJ Statute, art. 38(1 )(d)] Notes: • While the primary sources create law, the subsidiary sources constitute evidence of what the law is. • There is no stare decisis: Case law is considered only a "subsidiary means." Even the decisions of the ICJ itself do not create binding precedent, since it only binds the parties and in respect of the particular case [ICJ Statute, art. 59}. • Teachings of publicists may include the work of organizations such as the International Law Commission (a UN body) and private institutions.

General and consister-t practice of States followed by them from a sense of legal obligation. (Restatement (Third) of Foreign Relations Law of the Unites States) Elements of International Custom 1. ·

State Practl~e (DUG) - A consistent ·and uniform external conduct of States. Generally, both what . States say and what they do . are considered state practice. a. .Quratlon of practice b. Yniformity, consistency of practice c. Qenerality (majority of specially affected States) 2. OPIN/0 JURIS S/VE NECESSITAT/S (OPINIO JURIS) - As an element in the formation of customary norm in international law, it is required that States, in their conduct amounting to general practice, must act out a sense of legal duty and not only by the motivation of courtesy, convenience or tradition. Not only must acts amount to a settled practice, but they must also be such or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. (International Court of Justice in the North Sea Continental Shelf ceseo, cited in Mijares v. Ranada, G.R. No. 139325,

2005) Unlike treaties, customary norms are legally binding upon all States regardless of whether they consent, subject to the persistent objector rule [infra].

1. TREATIES Definition of Treaty A treaty is an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments · and whatever its particular designation." [VCL T, art. 2(1 )] Requisites of a Treaty 1. (3) (4} (5)

Under the principle of pacta sunt servanda, a state party to a treaty is bound to comply with the obligations it assumed under such treaty In good faith. [VCLT, art. 26}

Must be concluded between States In written form Governed by International Law Must be embodied in a single instrument or in 'two or more related instruments

Treaty Obligation based on Consent Treaty obligation is based on consent. No state may be bound by a treaty obligation unless it has so consented. [VCL T, art. 34)

No particular length of time is required for the formation of customary norms so long as the existence of the two elements of custom are manifest [North Se,a Continental Shelf Cases {ICJ, 1969)) The number of parties, the explicit acceptance of rules of law, and, in some cases. the declaratory nature of the provisions produces a strong law-creating 9ffect at least as great as the general practice considerer:! sufficient to support a customary rule [BROWNLIE].

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Element of State Practice The practice must be consistent and general. However. consistency requires substantial uniformity and not necessarily complete uniforrnity in practice [Asylum Case (ICJ, 1950)]. Generality likewise does not require universality.

Pacta sunt Servanda

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ATENEO CENTRAL BAR OPERATIONS 2019

POLITICAL LAW

Evidence of State practice The following acts may evidence state practice: (1) Diplomatic correspondence; (2) Policy statements; (3) Press releases; (4) Opinions of official legal advisers; . (5) Official manuals on legal decisions (executive decisions and practices, and government comments on drafts by the ILC); (6) International and national judicial decisions; (7) Recitals in treaties and international instruments; (8) Practice of international organs [HARRIS]. UN General Assembly resolutions are generally just recommendations. However, such resolutions may be an evidence of state . practice that Is relevant in the development of custom. [See Nicaragua Caso (ICJ, 1986}] Element of Opinio Juris sive Necessitates (Opinion of Law or necessity) This refers to the belief on the part of states that a particular practice ls required by law, and not because of courtesy or political expediency [North Sea Continental Shelf Cases (ICJ, 1969)]. It is the exister.ce of opinio juris that distinguishes binding custom from mere usage, from comity, and from courtesy or protocol. Scope Custom may be:

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(1) General, which is binding upon all or most states; or (2) Particular, which is binding only between two or among a few states. • The ICJ has recoqnzed the possibility of regional custom [Asylum Case (/CJ, 1950)) and of bilateral custom {Right of Passage over Indian Territory Case (/CJ, 1960)). Principle of Persistent Objector When a State has continuously objected to a new customary norm at the time when it is yet in the process of formation, by such persistent objection the norm will not be applicable as against that state [MAGALLONA]. Principle of Subsequent Objector The court in the Anqlo-Norwelqen Fisheries case stated, "if a substantial group of states asserts a new rule, the momentum of increased defection, complemented by acquiescence, may result in a new rule... If the process is slow and theither the new nor the old rule has an overwhelming majority of adherents, the consequence is a network of special relations based on opposability, acquiesc~nce and even perhaps historic title.•

Regional Custom · .A practice among states within a particular area for the world which can be sufficiently well established and accepted as law that is binding among the states of that regio,·, but not elsewhere. lnstant Custom (Dirltto Spontaneo} Customary law may emerge even within a relatively short period of time, if within that period, State practice has been uniform and extensive. It comes about as a spontaneous activity of a great number of States supporting a specific line of action. Special or Local Custom A long continued practice between 2 States, accepted by them as regulating their relations that form the basis of mutual rights and obligations. (Right of Passage case Portugal v India) Philippine Context: Customary norms identified by the Supreme Court 1. Rules and principles of land warfare and of humanitarian law under the Hague Convention and the Geneva Convention (Kuroda v. Jalandoni (1949)); . 2. Pacta sunt servanda [La Chemise Lacoste. v. Fernandez (1984)]; 3. Human rights as defined under the Universal Declaration of Human Rights [Reyes v. Bagatsing (1883)]; 4. The principle of restrictive sovereign immunity [Sanders v. Veridiano (1988)); 5. The principle in diplomatic law that the receiving state has the special duty to protect the premises of the diplomatic mission o'.' the sending state [Reyes v. Bagatsing (1983)): 6. The right of a citizen to return to his own country [Marcos v. Manglapus (1989)]; 7. The principle that "a foreign army allowed to march through friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from criminal jurisdiction of the place" [Raquiza v. Bradford (1945)); 8. The principle that judicial acts, not of a political complexion of a de facto government established by the military occupant in an enemy territory, are valid under international law [Montebon v. Director of Prisons (1947)]; 9. The principle that private property seized and used by the enemy in times of war under circumstances not constituting valid requisition does not become enemy property and its private ownership is retained, the enemy having acquired only its temporary use [Noced.i v. Escobar (1950)]; 10. The principle that a State has the right to protect itself and its revenues, a right not limited to its own territory

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BAR OPERATIONS 2019 but extending to the high seas [Asaall v, Commissioner (1968)].

3. General Principles of Law Definition Principles based on natural justice common to most national systems of law. These refer to those general principles in municipal Jaw (particularly those of private law) that may be appropriated to apply to the relations of states [OPPENHEIM]. (e.g., good faith, estoppal, exhaustion of local remedies, unjust enrichment).

4.

Circumstantial evidence is admitted as indirect evidence in all systems of law and its use is recognized by international decisions. Such circumstantial evidence. however, must consist of a series of facts or events that lead to a single conclusion [Corfu Channel Case (ICJ, 1949)). · 5. 'Jurisdictional principles, such as the power of a tribunal to determine the extent of its own jurisdiction {competence de la competence). Secondary Sources:

4. Judicial Decisions.

The ban on enforced disappearance is a generally accepted principle of inlernational law which is considered part of the law of the 'and (Razon v. Tagitis, G.R. No. 182498, 2009). Note, however, that RA 10353 (An Act Defining and Penalizing Enforced or Involuntary Disappearance) was passed on December 21, 2012.

A subsidiary means for the determination of rules of law that are acceptable so long as they correctly interpret and apply international law.

The Yogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual Orientation and Gender Identity) has not yet evirlced an obligatory norm in the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice. (Ang Lad/ad LGBT Party v. COMELEC. G.R. No. 190582, 2010).

Stare Decises does not Apply

The following principles are considered general principles of international law: Roman law principles; 1. Principles such as estoppal, res judicata, res inter alias acta, and prescription; e.g. With respect to estoppel, when Thailand did not object to, and has in fact benefited from, the, Treaty of 1904 for 50 years. it is deemed to have accepted said treaty. It is thereby precluded from questioning Annex I thereof, which showed that the Temple of Preah Vihear was within Cambodian territory [Temple of Preah Vihear Case (ICJ, 1962)). 2. Other substantive principles, such as the duty to make reparations [Chorzow Factory Case (PCIJ, 1927)]. principle of reciprocity, pacta sunt servanda, separate corporate personality [see Barcelona Traction Case

(ICJ, ·1970)); 3.

Procedural rules, such as rules governing the use of circumstantial and hearsay evidence are likewise so considered. e.g. Press reports can be used to corroborate the existence of a fact. WI ien they demonstrate matters of public knowledge which -~ave received extensive press coverage, they can be used to prove a fact to the satisfaction of the court [Nicaragua Case (ICJ, 1986)].

Decisions of riational courts, when applying international law. are acceptable.

The ICJ Statute directs the Court to apply judicial decisions as subsidiary mean for the determination of the rules of. law, but this is made subject to ArL 59 of the same statute, which states that, 'the decisions of the court have no binding force except between the parties and in respect of that particular case".

5. Teachings of the Most Highly Qualified Publicists (/CJ .Statute, art. 38) The word 'publicist' means 'learned writer.' Learned writings, like judicial decisions, can be evidence of customary law, and can also play a subsidiary role in developing new rules of law. Highly-qualified publicists are writers whose main value · depends on the extent to which their books and articles are cited as wo.-ks of scholarship {i.e based on thorough research Into what the law is said to be {lex lata) rather · than comparing the views of other writers as to what they think the law out to be (lex ferenda).

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Requisites For A "Highly Qualified Publicist" 1. Fair and impartial representation of law. 2. Acknowledged authori!y in the field. D.SUBJECTS

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Subjectof InternationalLaw ~ It is an entity that has rights and responsibilities under internationa_ .., law and which has the capacity to maintain its rights by bringin11~; international claims. (NACHURA)

Examples: 1. States 2. Colonies and dependencies Page 284 of 320

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ATENEO CENTRAL BAR OPERATIONS 2019 3.

4. 5.

6. 7.

POLITICAL LAW minimum land area Convention, art. 1)

Mandates and trust territories Belligerent communities International administrative bodies; The United Nations The Vatican and the Holy See

Object of International Law It is a person or thing indirectly vested with rights and obligations in the international order. Subjects and Objects, Distinguished SUBJECT

OBJECT

Has rights and duties Does not hava rights and under international law. duties but are merely the object of subject's rights and duties. Directly governed by the Indirectly governed by the rules of international law. rules of international law. It can be a proper party in transactions involving the application of international law among members of the international community.

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Its rights are received and its obllqatlons imposed the indirectly through instrumentality of an international agency.

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Modes of Acquiring Territory There are four modes of acquiring territory. The first two are original modes while the last two are derivative modes. (1) Occupation Occupation refers not to mere discovery, but to effective exercise of sovereignty over a territory which is terra nullius (i.e., not subject to the sovereiqnty of any other state). It is the acquisition of territory that is terra nullius by any State which has the intention to claim sovereignty and occupies that territory by exercising effective and continued control. (.2) Accession or accretion -Accession or accretion is the natural process of land formation resulting in the increase of territory. (3) cesston - Cession means the transfer of territory from one state to another by treaty (derivative). It is the only bilateral mode of acquiring territorial sovereignty. (4) Prescription - Through prescription, title is acquired by continuous and undisturbed exercise of sovereignty over a period of time. (5) Conquest - the taking of a territory of another sovereign by force of arms. Conquest is generally accepted to have been outlawed as aggression and violative of the prohibition on the use of forece and territorial integrity. (See Definition of Aggression, UN GA Res. 3314 (XXIX) (1974)

States State, as a subject of intemational law, has ln.ernational personalilyissification of States ~hich ~eans that it has the right to have . its claims respected Sovereign States - those enjoying full membership intematlonally. A State has absolute personality. in the international community 2. Neutralized States - those upon which the status of Under the Constitutive Theory, statehood is objective, not permanent neutrality was formally imposed subjective. Recognition does not bestow statehood. A State i1u.a Dependent States - those that have practically state under international law if it meets certain basic criteria. complete control of their domestic affairs while they have been subject to a great1~r or lesser degree of dependence upon another State in respect of their Elements of a State: GSPoT control over their relations with third States 1. s.iQvernment - the physical manifastation of a state. . 4. Confederation and Union - States which are Government must be organized, exercising control associated for certain specific purposes: over and capable of maintaining law and order within its territory · · (a) Real Union-2 or more severally sovereign States have the same monarch and for international 2. §overeignty or the capacity to enter into relations with purposes act as one State other States (b) Federal States - control of the external relations 3. Permanent fQpulation - The population does not of all the member States has been permanently have to be homogeneous racially, ethnically, tribally, surrendered to a ,:;entral aovernment so that the religiously, linguistically, or otherwise. But, it must be a only State which exists for international purposes settled population, although the presence of certain is the State formed by the union nomadic inhabitants does not matter. (c) Confederation - though a central government 4. Defined Ierritory - State territory is that defined exists and exercises certain powers, it does not portion of the surface of the globe which is subjected to control all the external relations of the member the sovereignty of the State. [OPPENl1EIM] A state States, and therefore for international purposes must exercise control over a certain area. It need not there exists not one but a number of States be exactly defined by metes and bounds, so long as there exists a reasonable certainty of identifying it. No Page 285 of 320

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Effective government. General Rule; There must be a central government operating as a political body within the law of the land and in effective control of the territory. [AUST] Exception: The requirement of effective government is not strictly applied when the State, already long-existing, happens to undergo a period of civil strife or internal chaos due to natural disaster or invasion. · Failed State One which has not had a government in control of most of the territory for several years. (Ausn A failed State does not cease to be a State. (See, e.g. Somalia, which has not had an effective government in years, but continues to be recognized by the UN).· Further, some States were deemed States even before their governments were very well-organized (e.g., Poland, Burundi, and Rwanda).

2.

Government de jure: Government from law, that is, one with a color of legitimacy. Government de facto: One that governs without a mandate of law. So long as it is in place, it may command obedience from the inhabitants of the occupied area. The de facto ruler may suspend laws and enact new ones. ·

Kinds of De Facto Governments

1. 2. 3.

Recognition is not a legal duty As a public act of state, recognition is an optional and political act and there is no legal duty in this regard. (Note that this is under the Decfarato,y Schoof) Two views: 1. Declaratory School: Recognition is a mere declaration or acknowledgement of an existing state of law and fact, legal personality having been previously conferred by operation of law, This is the prevailing view. 2. Constitutive School: The political act of recognition is a preconclition to the existence of legal rights of a state. In its logical extreme, this is to say that the very personality of a state depends on the political decision of other states. This is the minority view. Doctrines on Recognition of de Facto Governments

1.

Governments de facto and de Jure

1.

De facto Proper I Government by Revolulion: That which usurps, either by force or the will of the majority, the legal government and maintains control against it; Government by paramount force I Government by Occupation: Results from the occupation of a state or a part thereof by invading forces in time of war; and Government by Secession: Government established as an independent government by lnhabitants of a country whc rise in insurrection against the parent state. [See Co Kim Cham v. Valdez Tan Keh (1945))

Jus Postlimium Acts (executive, legis_lative,and judicial) done under the control of a de facto government, when they are not of a political complexion remain good even upon the restoration of the legitimate government. [See Co Kim Cham v. Valdez Tan Keh (1945)) Recognition Concept

Wilson/Tobar Doctrine: Also known as "Doctrine of Legitimacy" or "Policy of Democratic Legitimacy." Holds that governments which came into power by extra-constitutional means [e.g. revolution, civil war, coup d'etat or other forms of internal violence] should not be recognised, at least until the change had been accepted by the people. [After US President Wilson, 1913 anc Ecuadorian FM Tobar (1907)] 2. Stimson Doctrine: Doctrine of not recognizing any situation, treaty or agreement brought about by nonlegal means. Precludes recognition of any government established as a result of external aggression. [After US Sec. of State Henry Stimson (1932)] · 3. Estrada Doctrine: States should refrain from recognizing governments, as such are superfluous. Change in government does not affect the change in status of a state. This in effect results in the automatic recoqnltion of governments in all circumstances. Posits that dealing or not dealing with the government established through a political upheaval is not a judgment on the legitimacy of the said government. [After Mexican Minister Genaro Estrada (1930)]

[SHAW] 4. Sovereignty v. Independence

5.

Rec:ognition is an act by which a state acknowledges the existence of another state, government or belligerent community and indicates willingness to deal with the entity as such under international law.

Sovereignty and Independence are different. Sovereignty refers to the supreme and uncontrollable power inherent in the state by which the State is governed. Independence refers to the power of a State to manage its external affairs wilhout direction or interference from another state Principle of Auto-Limitation The concept of sovereignty as auto-limitation is the prcperty of State-force cue to which it has the exclusive capacity of legal self determination and selfrestriction. Any State may, by its consent, express or implied . submit to a restrtction of its sovereign rights.

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LAW

ATENEO CENTRAL BAR OPERATIONS 2019 The Concept of Association of States An association is formed when two States of unequal power voluntarily establish durable links. In the basic model, one State, the associate, delegates certain responsibilities to tne other, the principal, while maintaining its international status as a State. However, this concept is not recognized uncJer the present Constitution. The Constitution does not contemplate any State in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence (The Province of North Cotabato v. GRP Panel on Ancestral Domains, G.R. No. 183591, 2008). Principle of State Continuity The State continues as a juristic being notwithstanding the changes in its circumstances, provided only that such changes do not result In the loss of any of its essential elements. · · Rights of States 1. Jurisdiction 2. Equality 3. Individual or collective Self-Defense 4. Independence 5. Legation (the right of the State to send and receive diplomatic missions, which enables States to carry on friendly intercourse) Duties of States '•

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To carry out in good faith all its obligat:ons; To refrain from recognizing any territorial acquisition by another State which resorts to war or to the use of threat or force; To refrain from giving assistance to any State which resorts to war or threat or use of force, or against which the UN is taking preventive or enforcement actions [o conduct its relations with other States in accordance with International Law To ensure that conditions prevailing in its territory do not menace international peace and order To refrain from resorting to war and the threat or use of force To treat all persons under its jurisdiction with respect for human rights and fundamental rights, without discrimination To refrain from intervening To settle its disputes with other States by peaceful means

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International Organizations Definition

POLITICAL LAW have functional personality which is limited to what is necessary to carry out their functions as found In the instruments of the organization. Generally, special personality: The status and powers of an international organization is determined by agreement and not by general or customary international law. They are considered subjects of international law "if their legal personality is established by their constituent instrument." Further, its constituent rights and duties, or capacities and immunities. arE:: limited to those set forth in the treaty creating the International organization. Thus, legal personality in this context is a relative concept. [MAGALLONA] Exception: United Nations: The United Nations has objective international personality. Its personality is binding on the whole international community, including States who are not UN members. [Reparations for Injuries Advisory Opinion (ICJ, 1949)] Preconditions 1. , 2.

3.

for international personality

It must constitute a permanent assodalion of states, with lawful objects, equipped with organs; There must be a distinction, in terms of legal powers and purposes, between the organization and its member states; and ll must have legal powers that it may exercise on the intemational plane and not solely within the national systems of one or more states. [BROWNLIE]

National Societies National societies such as the Philippine National Red Cross act as auxiliaries to the public authorities of their own countries in the humanitarian field and provide a range of services including disaster relief and health and social programmes. National societies were held to be organizations that are directly regulated by international . humanitarian law, in contrast to other ordinary private entities, including NGOs. The auxiliary status of a Red Cross Society means that it is at the same lime a private institution and a public service organization, because the very nature of its work implies cooperation with the authorities, a link with the State. The PNRC, as a national society of the International Red Cross and Red Crescent Movement, can neither "be classified as an instrumentality of the State, so as not to lose its character of neutrality" as well as its independence, nor strictly be as a private corporation, since it is regulated by international humanitarian law and is treated as an auxiliary of the State. (Uban v. Gordon, G.R. No. 175352, 2011)

International orqanlzations are created by sovereign States and whose functioning are regulated by international law. not the law of any given country. They Page 287 of 320

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lndivlduats Under modern international law, an individual has limited personality. The question whether the Philippine government should espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the political branches. In the Comfort Women Case, the Executive Department has decided that it is to the best interest of the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question; thus, said determination by the Executive Department cannot be questioned through a petition for certiorari. (Vinuya v, Romulo G.R. No. 162230, 2010). Special personality Individuals may assume the status of subjects of international law only on the basis of agreernent by states and in specific context, not in accordance with general or customary international law. Examples a. UNCLOS, art. 187(c)-{e) provides for jurisdiction of the Sea-Bed Disputes Chamber of the ITLOS over disputes between parties to contracts relating to the . exploitation of marine resources. Parties to such · contracts may be natural or juridical persons. b. The Claims Settlement Declaration of 1981 between US and Iran provides for direct access to the Iran-US Claims Tribunal to individuals for the settlement of their claims involving more than $250,000 either against Iran or the US. c. The Mixed Claims Tribunals established in the Treaties of Peace concluded at the end of World War I prcvided for locus standi of individuals In actions against states relating to contracts, debts, and property adversely affected by the war. d. The London Agreement of the International Military Tribunal at Nurernberq, relating to crimes against peace, war crimes and crimes against humanity, imposed duties and liabilities upon individuals as well as upon states. e. Convention on the Prevention and Punishment of the Crime of Genocide, art. VI defined "parties charged with genocide" as including individuals. [MAGALLONAJ f. The International Criminal Court has jurisdiction over individuals who commit genocide, crimes against humanity and war crimes, subject to conditions under the ICC Statute. [ICC Stat., art. 25(1} in relation to art.

5}

Corporations "Internationalized contracts" between a foreign corporation and a State gives the corporatio~ limited personality by invoking in international law the rrghts that. may be derived from the contract. Incomplete Subjects 1. Protectorates : Dependent states which have control over their interna! affairs but whose external affairs are controlled by another state. 2. Federal State : Union of previously autonomous entities. The central organ will have personality in lnternational law, but the extent of the international personality of the component entities can be a problem. · 3. Mandate and Trust Territories : Territories placed by the League of Nations under one or other of the victorious allies of WWI. E. JURISDICTION OF STATES · OVERVIEW Definition Jurisdiction means the power of a state under international law to govern persons and property by its municipal law. This may be criminal or civil, and may be exclusive or concurrent with other states. [HARRIS) Kinds of Jurisdictlo» a. Prescriptive jurisdiction refers to the power of a State to make Its law applicable to the activities, relations, or · status of persons, or the Interests of persons in things, whether by legislation, by executive act or order, by administrative rule or regulation, or by determination by a court. b. Adjudicative jurisdiction refers to a State's jurisdiction to subject persons or things to the process of its courts or administrative tribunals, whether in civil or in crimina: proceedings, whether or not the state is a party to the proceedings. c. Enforcement jurisdiction refers to a State's jurisdiction to enforce or compei compliance or to punish noncompliance with its laws or regulations, whether through the courts or by use of executive, administrative, police, or other nonjudicial action. Basis of jurisdiction (a) Territoriality Principle The fundamental source of Jurisdiction is sovereignty over territory. A State has absolute, thouqn not necessarily exclusive. power to prescribe, adjudicate, and enforce rules for conduct within its territory.

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(b) Nationality Principle Every State has jurisdiction over its nationals even when those nationals are outside the State. (c) Protective Principle A State may exercise jL•risdiction over conduct outside its territory that threatens it~ security, as long as that conduct · is generally recognizer! as criminal by the States in the international community. (d) Universality Prlnclple . Recognizes that certain offenses are so heinous and so widely condemned that any State, if it captures the offender, may prosecute and punish that person on behalf of the international community, regardless of the nationality of the offender or victim or where the crime was committed. (e) Passive Personality Principle A State may apply law, particular!y criminal law, to an act committed outside its territory by a person not its national where the victim of the act was its national. This principle has not been ordinarily accepted for ordinary torts or crimes, but is increasingly accepted as applied to terrorist and other crganized attacks on a State's nationals by reason of their nationality, or to assassination of a State's diplomatic representatives of other officials. Conflicts of Jurisdiction More than one State may have a valid claim to jurisdiction. In order to resolve conflict, the following modes may be resorted to: 1. Balancing Test - Employed tripartite analysis to determine whether to assume jurisdiction or not: a. Was there an actual or intended effect on t~e State acquiring jurisdlctlon? b. Is the effect sufficiently large to present a coqnizable injury? c. Are the interest and link to the State sufficiently strong, vis-a-vis those of other nations, to justify an assertion of extraordinary authority? If the answer is yes to all, then the court will assume jurisdiction. (Timberlane Lumber Co. v. Bank of America, 549 .F2d 597, 1976).

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International Comity - If exercising jurisdiction will be unreasonable, the State should refrain from doing so. Unreasonableness is determined by evaluating various factors, such as the link of tt;e activity to the territory of t~e regulating State, the connection, such as nationality and residence. (Hartford Fire Insurance Co. v. California, 509 US 764, 1993). Forum non conveniens - The principle is based on the real unfairness to one of the suitors in permitting

the choice of a forum which is not the natural or proper forum, either on the ground of convenience of trial or the residence or domicile of parties or of its being the locus contractus, or locus solutionis. Its appllcation is discretionary on the part of the court. Forum conveniens presumption is with the plaintiff. (Piper Aircraft Co. v. Reyno, 545 U.S. 235, 1981). • Under the rule of forum non conveniens, a Philippine court orragency may assume jurisdiction over the case if it chooses to do so, provided: (1) that the Philip;,ine court is one to which the parties may conveniently resort to; (2) that the Philippine court is in a position to make an intelligent decision as to the law and the facts; and (3) that the Philippine court has or is likely to have power to enforce its decision. (Manila Hotel v. NLRC, G.R. No. 120077, 2000). Reserved Domain of Domestic Jurisdiction It is the domain of state activities where the Jurisdiction of the state is not bound by international law. The extent of this domain depends on international law and varies according to its development (i.e., when a norm crystallizes into custom). The reservation of this domain is without prejudice to the use of enforcement measures under UN Charter, ch. Vt!'.

EXEMPTION FROM JURISDICTION (a) Act of State Doctrine Courts of one country will not sit In judgment on the acts of the government of another in due deference to the independence of sovereignty of every sovereign State (PCGG v. Sandiganbayan, G.R. No. 124n2, 2007). The Act of State doctrine is one of the methods by which states prevent their national courts from deciding disputes which relate to the internal affairs of another State, the ·, other two being immunity and non-justiciability. It is an avoidance techn.que that is directly related to a State's obligation to respect the independence and equality of other' States by not requiring them to submit to adjudication in a national court or to settlement of their disputes without their consent. It requires the forum court to exercise restraint in the adjudication of disputes relating to legislative or other governmental acts which a foreign State has performed within its territorial limits. (PCGG v. Sandiganbayan, G.R. No. 124772, 2007). (b) International Org,mizatlons and its Officers One of the basic immunities of an international organization is immunity from local jurisdiction, i.e., it is immune from the legal writs and processes issued by the tribunals of the country where it is found. The obvious reason for this is that the subjection of such an

Page 289 of 320

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BAR OPERATIONS 2019 organization to the authority of the local courts would afford a convenient medium thru which the host government may · interfere in their operations or even influence or control its policies and decisions of the organization; besides, such subjection to local jurisdiction would impair the capacity of such body to discharge its responsibilities impartially on behalf of its member-elates. (Southeast Asian Fisheries v. NLRC, G.R. No. 86773, 1992). There are basically three propositions underlying the grant of International immunities to international organizations. These principles, contained in the ILO Memorandum are stated thus: 1. International institutions should have a status which protects them against control or interference by any one government in the performance of functions for the -, effective discharge of which they are responsible to democratically constituted international bodies in which all the nations concerned are represented; 2. No country should derive any national financial advantage by levying fiscal charges on common international funds; and 3. The international orqanzanon should, as a collectivity of States members, be accorded the facilities for the conduct of its official business customarily extended to each other by its individual member States. (International Catholic Immigration Commission v. · Calleja. G.R. No. 85750, 1990) Doctrine of State Immunity It refers to a principle by which a state, its agents, and property are immune from the jurisdiction of another state [MAGALLONA]. This principle is premised on the juridical equality of states, according to which a state may not impose its authority or extend its jurisdiction to another state without the consent of the latter through a waiver of immunity. Thus, domestic courts must decline to hear cases against foreign sovereigns out of deference to their role as sovereigns. Immunity may be: 1.

2.

Absolute sovereign immunity, where a state cannot be sued in a foreign court no matter what the act it is sued for; or ; Restrictive sovereign Immunity, where a state is immune from suits involving governmental actions Gure imperr i), but not from those arising from commercial or non-governmental activity (jure gestionis).

Immunity as a customary norm The principle of sovereign immunity from suits ts a customary norm of International law that holds, unless waived by the state concerned. Such immunity applies even if the claim against the state is for violation of a jus cogens norm in international law. Furthermore, State assets are also lmmune from execution in connection with such claim. [Jurisdictional Immunities of the State Case (ICJ, 2012)1 · Who determines immunity in the Phlllpphres? Under Philippine law, the DFA's function includes the determination of persons and institutions covered by diplomatic immunities. While exclusive to the DFA, the DFA's determination is not conclusive. Even with a DFA certification, however, the court is not precluded from making an inquiry into the intrinsic correctness of such certification. [China Nat'I Machinery & Equipment Corp. (Group) v. Sta. Maria (2012), or the Northrail Case) Criminal Jurisdiction on board merchant ships and government ships operated for commercial purpose The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage. EXCEPTIONS: 1. if the consequences of the crime extend to the coastal State; · 2. if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; 3. if the assistance of the local authorities has been · requested by the master of the ship or by a diplomatic agent or consular officer of the flcig State; or 4. if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.

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Except as provided in Part XII (Protection and Preservation of the Marine Environment) or with respect to violations of laws and regulations adopted in accordance with Part V (Exclusive Economic Zone), the coastal State may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea, if the ship, · proceeding from a foreign port, is only passing through the territorial sea without entering internal waters. [Article 27, UNCLOSJ 'Immunity cannot be Invoked in commercial transactions of ships owned and operated by a State

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in a proceeding which relates to the operation of that ship if, at the time the c.ause of action arose, the ship was used for other than government . non- commercial purposes. {Article 16, United Nations Convention on Jurisdictional Immunities of States and Their Property]

ownership used for the used excluslvely for the purpose of the mission purposes of consular post. including the residence of the head of mission. The consular premises, their furnishings, the property of the consular post and its means of transport shall be immune from any form of requisition for purposes of national defense or public utility. If expropriation is necessary for such purposes, all possible steps shall be taken to avoid impeding the performance of consular functions, and prompt, adequate and effective compensation shall be paid to the senJing State.

Immunity of warships from execution A state's naval vessel may not be proceeded against to answer for said state's financial liabilities to a third party. It stated that, "in accordance with general international law, a warship enjoys immunity" and that "any act which prevents by force a warship from discharging its mission and duties is a source of conflict that may endanger friendly relations among States." [Argentina v, Ghana (ITLOS, 2012)] BASIC PRINCIPLES OF DIPLOMATIC AND CONSULAR LAW Diplomatic And Consular Relations I

DIPLOMATS

CONSULS

Political relatlons of the state

Administrative and economic issues of the state

Right of Legation The right of a state to maintain diplomatic relations with other states. Types 1. Active - right to send diplomatic representatives. 2. Passive - right to receiv~ diplomatic representatives,

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Diplomatic And Consular Immunities • Personal Inviolability • Inviolability/Immunity of premises • Right of protection • Immunity from local jurisdiction on the basis of international custom • Exemption from taxes and personal services • lnviolabil!ty of means of communication • Immunity from search of diplomatic bag DIPLOMATIC IMMUNITY (Vienna Convention on Diplomatic Relations) "Premises of the mission" - Include the buildings or parts of buildings and the land irrespective of

CONSULAR IMMUNlrf (Vienna Convention on Consular Relations) "Consular premises" - Include the buildings or parts . of buildings and the land irrespective of ownership

The agents of the receiving State may not enter the premises except with the consent of the head of the mission.

The agents of the receiving State may not enter the premises except with the consent of the head ·cif consular post. The consent may be assumed in case of fire or other disaster requiring prompt protective action

The diplomatic bag shall The consular bag shall not be not be opened or opened or detained. detained. Authorities may request that the bag be opened in their presence by an authorized representative of the sending state if they have serious reason to believe that the bag contains objects other than articles, documents, correspondence or articles. A diplomatic agent is not Members of the consular post obliged to give evidence may be called upon to attend as a witness. as witnesses. If a consular officer should decline to do so, no coercive measure or penalty may be

applied.

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A diplomatic agent shali enj~y immunity from the

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Members of the consular post shall enjoy immunity from the

ATENEO CENTRAL BAR OPERATIONS 2019 jurisdiction of the receiving State except in case of: 1. Real action relating to private immovable property Exception: He holds it on behalf of the sending State for the purpose of the mission 2. Actions for succession 3. Professional or commercial activity

POLITICAL LAW jurisdiction of the receiving State in respect of acts performed In the exercise of consular function except in case of: 1. Civil action arising out of a contract concluded by a person who did not contract expressly or impliedly as an agent of the sending State 2. Civil action by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or

aircraft Diplomatic v. Consular Immunity The Agreement between the Asian Development Bank and the Philippines only provides officers and staff of the bank immunity from legal process with respect to acts performed by them in their official capacity, except when the Bank waives the immunity. Slander cannot be considered as falling within the purview of the immunity granted since it is not an act performed in an official capacity. (Jeffrey Liang v. People of the Philippines G.R. No. 125865, 2001) The establishment of a diplomatic mission as well as its upkeep and maintenance are acts Jure imperii. Hence, the State may enter into contracts with private entities to maintain the premises, furnishings, and equipment of the embassy and the living quarters of its agents and officials. (Rep. of Indonesia v. Vinzon, G.R.. No. 154705, 2003) State And Dlplomatlc Immunity Immunity General Rule: The juri:.diction of a State within its territory is complete and absolute. Exceptions: Sovereign immunity and diplomatic immunity. State Immunity The State may not be sued without its consent. This is based on the principle of par in parem non habet imperium (an equal has no power over an equal). Scope of State Immunity 1. Absolute 2. Qualified immunity or restrictive application of State lmmunlty.

State immunity now extends only to acts jure imperii. When the proceedings arise out of commercia.1 ~~nsactions of t~e foreign sovereign, its corrrnerclal activities or economic affairs, such are jus gestionis, which are not covered by immunity. However, it does not apply where the contract relates to the exercise of its sovereign functions (USA v Guinto, G.R. No. 76607, 1990}. Doctrine of Sovereign Immunity Immunity from jurisdiction is enjoyed by both the head of State and by the State Itself. Process of Suggestion . In the Philippines, the practice is for the foreign government or the international organization to first secure an executive endorsement of its claim of sovereign or diplomatic immunity. The DFA has made the endorsement through the following: . 1. A letter that the defendant cannot be sued because · it has diplomatic immunity (International Catholic · Migration Comrniselon v. Calleja, G.R. No. 85750, . 1990). 2. A manifestation in Court and memorandum as amicus curiae (Baerv. Tizon, G.R. L-24294, 1974). The fact that the Solicitor General has endorsed a claim of a State's immunity from suit does not sufficiently substitute for the DFA certiflcauon (GTZ v. CA, GR No. 152318, 2009). The determination by the department is considered a political question that is conclusive upon Philippine courts. Immunity of Foreign Armed Forces The rule in international law is that foreign armed forces allowed to enter one's territory are immune from Inca! jurisdiction. except to the extent agreed upon. The Status of Forces Agreements involving foreign military units around the world vary in terms and conditions, according to the situation of the parties involved and thslr bargaining power. (Nicolas v. Romu/o, G.R. No. 175888, 2009).

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F. GENERAL PRINCIPLES Of TREATY LAW Definition It is an international agreement concluded between States in written form and governed by international law, whather embodied in a single instrument or in two or more related instruments, and whatever its particular designation (Vienna Convention on the Law of Treaties, art. 2).

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Under the VCLT, the term "treaty" includes all agreements between states, regardless of how they are called. Thus. for purposes of international law, treaties. executive agreements. exchanges of notes, etc., are all treaties. .r.

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POLITICAL LAW President, but only the Senate (AKBA YAN v. Aquino, G.R. , No. 170516, 2008).

Effect of an Unwritten Treaty

1.

2. 3.

Convention rules on Matters governed by international law independently of convention shall apply; Convention rules apply to the Relations of states as between themselves under international agreement with other subjects as parties; and Has Legal force

Treaty

v, Executive Agreement EXECUTIVE AGREEMENT

TREATY SUBJECT MATTER: (PNP) 1. folitical issues 2. Changes in National policy 3. International arrangements of a f ermanent character

SUBJECT MATTER: (TITA) of 1. Arrangemnnts Iemporary nature 2. Implementation of treaties and statutes 3. Iransitory effectivity 4. Adjustment of details carrying out established national policies and traditions

Must be ratified by 2/3 of the Does not need to be Senate to become valid and ratified by the Senate. effective ( 1987 Constitution, art. 7, § 21).

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There is no hard and fast rule on the propriety of entering, on a given subject, into a treaty or an executive agreement as an instrument of ir,ternational relations. The primary consideration in the choice of the form of agreement is the parties' intent and desire to craft an international agreement in the 1orm they so wish to further their respective interests. The matter of form takes a back seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the parties in an international ag,eement each labor under the pacta sunt servanda principle. (Bayan Muna v.. Romulo, G.R. No. 159618, 2011). Power to Negotiate and Senate Concurrence In the realm oi treaty-making, the President has the sole authority to negotiate with other Slates. It follows that Congress, while possessing vest legislative powers, may not interfere in the field of treaty negotiations. While Article VII, Section 21 provides for Senate concurrence, such pertains only to the validity of the treaty under consideration, not to the conduct of negotiations attendant to its conclusion. Moreover, it is not even Congress as a whole that has been giv1m the authority to concur as a means of checking the treaty-making power of the

The signing of a treaty is composed of two separate and distin'ct processes to which each requires the exclusive prerogative and act of the executive and legislative. One is the signing of the treaty which is handled by the executive department during the negotiation stage. The other is the ratification stage where the president ratifies a treaty but with the concurrence c:,f 2/3 of the Senate. it is within the power of the President to refuse to submit a treaty to the Senate or, having refused its consent for ratification, refuse to ratify it. The Senate's role is limited only to giving or withholding its concurrence to the ratification. The Senate cannot, by mandamus, compel the executive to transmit a treaty for concurrence (Pimentel v. Executive Secretary, G.R. No. 158088, 2005). EDCA remained within the parameters set by the two treaties (the MDT and the VFA). Mere adjustments in detail to impiement the MDT and the VFA can be in the form of executive aqreernents. The "activities" referred to in the MDT are meant to be specified and identified in further agreements. EDCA is an example ~>f such agreement. The President's choice to enter into EDCA by way of executive agreement is in view of the vast constitutional powers and prerogatives granted to him in the field of foreign affairs. (Saguisag v. Executive Secretary, G.R. Nos. 2124~6/212444, 2016) Full Powers The authority granted unto a representative of the state to enter into, negotiate, sign and seal a treaty. This shall be made by the President 01: the Secretary of the DFA, whel delegated. (E.O No. 459) Persons exempted from showing full powers 1. Secretary of the DFA 2. Heads of Philippine diplomatic missions (for the purpose of adopting the text of a treaty or an agreement between the Philippines and the State to which they are accredited): 3. Representatives accredited by the Philippines to an international conference or to an international organization er one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ (EO No. 459) Requisites for Validity

Treaty making capacity, which is possessed by all states as an attribute of sovereignty. International organizations also possess treaty- making capacity, although limited by the organization's purpose; 2. Competence of the representative/organ making the treaty, which may be the head of state, which generally Page 293 of 320

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has full powers, or other persons called plenipotentiaries, which must produce an instrument showing authority to sign a treaty binding their government; 3. Consent freely givf3n by the parties. If consent was given erroneously, or was induced by fraud, the treaty . shall be voidable; 4. Object and subject matter, which must be lawful; 5. Ratification in accordance with the constiMional process of the parties concerned.

its

representative)

(Article

12( 1 ),

VCLOT);

Practice of Alternat Arrangement under which each negotiator is allowed to sign first on the copy of the treaty which he will bring home to his own country, the purpose being to preserve the formal appearance of equality among the contracting states and to avoid delicate questions of precedence among the signatories. Effect of Signature with respect to Ratification

In addition to the constitutional requirement, ratification is necessary under international law when: 1. The treaty provides for consent to be expressed by means of ratification; 2. It is otherwise established that the negotiating states agreed that ratification should be required; 3. The representative of the state has signed the treaty subject to ratification [VCLT, art. 14(1 )], that Is, when the intent was to make it subject to ratification. Treaty-making process

1. 2.

3. 4.

5.

Negotiation. The state representative 1 discuss the terms and provisions of the treaty. Adoption. When the form and content have been settled by the negotiating states, the treaty is adopted. This is only preparatory to (1) the authentication of the text of the treaty and (2) the signing thereof. [VCLT, art. 9} Authentication. A definitive text of the treaty is established as the correct and authentic one; Expression of consent. The state parties express their consent to be bound by the terms of the treaty. The modes of such expression are provided in the VCLT. Registration. The treaty is then registered with the Secretariat of the United 5 Nations. Otherwise, the treaty may not be invoked before any UN organ [UN Charter, art. 102(2)] including the ICJ.

In the Philippines, the negotiation of treaties and their ratification are executive functions, subject to concurrence of the Senate. Consent to be bound by the terms of a treaty may be expressed through: 1. Signature, when the negotiator is authorized to sign the treaty. This signature is sufficient to bind the state under the treaty if: · a. The treaty provides that signature shall have that effect; b. It is otherwise established that the negotiating states agreed that signature should have that effect; or c. The state can be shown to have had the intention to be ' bound by the signature (e.g., based on the powers of

Signature does not create an obligation to ratify. Obligation not to Defeat the Object and Purpose of a Treaty before its Entry Into Force A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: 2. it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or 3. it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. (VCLT, Art.18) 2. Ratification , the formal consent to the treaty given by the head of state, sometimes in conjunction with the legislature; · 1. Exchange of instruments constituting the treaty; 2. Acceptance; 3. Approval; 4. Accession, the method by which a state, becomes a party to a treaty of which it is not a signatory and in the negotiation of which it did not take part; Kinds of Accession 1. Accession proper - non-signatory becomes a party to all the provisions of the treaty 2. Adhesion or Adherence: non-signatory becomes a party in some o'i the provisions of the treaty Interpretation of Treaties 1. Actuality - based on actual text 2. Natural and Ordinary meaning 3. Integration - interpreted as a whole; 4. Effectiveness - based on object and purpose 5. Subsequent Practice 6. Contemporaneity - interpreted in light of linguistic usage current at the time when the treaty was concluded

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A TENEO CENTRAL BAR OPERATIONS 2019 Travaux Preparatolres The 'preparatory work; of a treaty that contains its legislative history. It is used as a supplementary means of interpretation of a treaty. (VCLT, Art. 32) Amendment or modification of treat.y General rule: Consent of all the parties is required. Exception: If the treaty itself so allows, two states may modify a provision only insofar as their relationship inter se. Reservations General rule: A reservation is a unilateral statement made by a state upon entering a treaty and operates to exclude or modify the legal effect of certain provision/s of the treaty in their application to the reserving state. (VCL T, art. 19) Exceptions: A reservation shall not operate to modify or exclude the provisions of a treaty: . 1. Where the treaty expressly prohibits reservations in · general; (6) Where the treaty expressly prohibits · that specific reservation being made; or (7) Where the reservation is incompatible with the object and purpose of the treaty. [Reservation to the Genocide Conventions Advisory Opinion ( ICJ, 1951)]

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Invalid treaties 1. If the treaty violates a jus cogens norm of international law; 2. If the conclusion of a treaty is procured by threat or use of force; 3. Error of tact, provided that such fact formed an essential basis of a state's consent to be bound; 4. If the representative of a state was corrupted to consent by another negotiating state; 5. If consent was obtained through fraudulent conduct of another negotiating state; 6. If th~ representative consented in violaton of specific restnctlons on authority, p r o v i d e d the restriction was notified to the other negotiating states prior to the representative expressing such consent; 7. If consent was given in violation of provisions of internal law regarding competence to conclude treaties that is manifest and of fundamental importance. (VCLT] . Grounds for termination 1. 2.

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POLITICAL LAW 6. 7. 8. 9.

Conclusion of a subsequent inconsistent treaty; Loss of subject matter; · Material breach or vlolation of treaty Fundamental change in circumstance (similar to the customary norm of rebus sic stantibus) such that the foundation upon which the consent of a state to be bound initially rested has disappeared. [VCL T, art. 62). The requisites are: a. The change is so substantial that the foundation of the treaty has altogether disappeared; b. The change was unforeseen or unforeseeable at the time of the perfection of the treaty; c. The change was not caused by the party invoking the doctrine d. The doctrine was invoked within a reasonable time; e, The duration of the treaty is indefinite; f. The doctrine cannot operate retroactively (it must not adversely affect provisions which have already . · been complied with prior to the vital change); 10. Outbreak of war between the parties, unless the treaty relates to the conduct of war; 11. ~~ve:ance of diplomatic relations, if such relationship rs indispensable for the treaty's application; 12. Jus cogens application, or the emergence of a new peremptory norm of general international law which renders void any existing, conflicting treaty. Pacta Sunt Servanda Every treaty in force is binding upon the parties to it and must be performed by them in good faith. (Vienna Convention on the Law of Treaties, art. 26).

A state can avoid performance if the treaty collides with its Constitution, but it cannot escape liability that It may incur as a result of such non-performance. From the perspective of public International law, a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. A party to a treaty is not allowed to Invoke the provisions of Its internal law as justification for its failure to perform a treaty. Nevertheless as far as the Court is concerned, a treaty is always subject to ~ualifi?3tion or amendment by a subsequent law, or that, it rs subject to the police power of the State (Um v. Executive Secretary, G.R. No. 151445, 2002).

' Rebus Sic Stantlbus

Expiration of the term, or withdrawal of a party in General Rule: A fundamental change of circumstances is accordance with the treaty; not a ground for a treaty to be suspended or terminated. Extinction of a party to the treaty, when the treaty rights and obligations would not devolve.upon the successorExceptions: state; 1. The circumstance Is the essential basis of consent. Mutual agreement of parties; 2. The obligation is transformed radically that It becomes Denunciation or. desistance by a party; burdensome or unreasonable. . Supervening impossibility of performance; Page 295 of 320

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· POLITICAL LAW

· Exceptions to the Exceptions: A. If the treaty establishes a boundary; B. If the fundamental change Is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. (Vienna Conventionon the Law of Treaties, art. 62) Rebus sic stantibus is an excepti »n to the rule of pacta sunt servanda.

Grounds for Invalidity of a Treaty: DJ-FEC 1. .P.uress 2. J,us cogens 3. fraud 4. 5rror of fact 5.

as

The characterization of an act of a state internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal !aw. [ASR. art. 4]

Attribution

.Q.orruption

Clean Slate Rule General Rule: When one State ceases to exist and is succeeded by another on the same territory, the newly independent State is not bound to maintain in force, or become a party to, any treaty made by its predecessor although, at the date of succession of States, the treaty was in force with respect to the territory to which the succession of State relates. (Vienna Convention on the Succession of States in Respect of Treaties, art. 16) Exceptions: 1. When the new State agrees to be bound by the treaties made by Its predecessor. 2. Treaties affecting boundary regime (uti possidetis

juris). 3.

Elements . There is an internationaily wrongful act of a stale when the conduct consisting of an action or omission: 1. Is attributable to the State under international law: and 2. Constitutes a breach of an international obligation of a State. [ASR, art. 2].

Customary international law.

G. DOCTRINE OF STATE RESPONSIBILITY Definition State responsibility is a fundamental principle of international law whereby a State, either by an act or omission, has breached an internatlonal obligation in force' and incurs, in the absence of circumstances precluding wrongfulness of its conduct, certain legal consequences for the internationally wrongful act attributable to it, including the obligation to cease the wrongful conduct and make such full reparation of any material and moral damage to the injured State or States as is reasonably adequate depending on the merits of the case in question. (Boczek, The A to Z of International Law, 121, 2010). Every internationally wrongful act of a state entails the international responsibility of that State [Artir,les on State Responsibility ("ASR"), art. 1]

the following acts are attributable to States, i.e. States may be held Internationally responsible for them: 1. Conducts of organs of a state (art. 4 ); 2. French secret service agents conducted undercover operations which led to the sinking of the Dutchregistered Greenpeace ship Rainbow Warrior. France admitted responsibility. (Rainbow Warrior Case); 3. Conducts of persons or entities exercising elements of governmental authority (art. 5); 4. P.. State is responsible for damage suffered by a foreigner as the result of acts or omissions of autonomous institutions exercising public functions of . a legislative or administrative character, if such acts or omissions contravene the international obllqations of the State. {League of Nations, Conference for the Codification of International Law, Bases of Discussion) 5. Conducts of organs placed at the disposal of a state by another state (art. 6); A section of the health service or some other unit placed under the orders of another country to assist in overcoming an epidem!c or natural disaster, or judges appointed in particular cases to act as judicial organs of another State. (Draft articles on Rasponsibllity of States for Internationally Wrongful Acts, with commentaries) 6. Acts done in excess of authority or in contravention of instructions (ultra vires acts) (art. 7); Two Mexican military officers, having failed to extort money from Caire, a French natioral, killed the latter. Such acts were deemed attributable to Mexico. (Caire Case) 7. Conduct directed or controlled by a state (art. 8); The United States was responsible for the •planning, direction and support" given by the United States to Nicaraguan operatives. (Nicaragua Case) 8. Conduct carried out in the absence or default of the official authorities (art. 9); 9. The acts of the Revolutionary Guards or "Komitehs" in performing immigration, customs and similar functions at Tehran airport immediately after the revolution in the Islamic Republic of Iran was attributable to the Islamic Republic of lran, on the basis that, if it was not actually authorized by the Government, then the Guards at least exercised elements of governmental authority in the absence of official authorities, in operations of

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10. 11.

12. 13.

which the new Government must have had knowledge and to which it did not specifically object. (Yeager v Iran) Conductofinsurrectional or other movements (art. 10); An American citizen, employed by an American company in Iran, alleged that he was forcefully expelled from Iran three days before the Islamic Revolutionary Government took office and claimed damages for his loss of employment benefits. The commission affirmed the principle that where a revolution leads lo the establishment of a new government, the state is held responsible for the act of the overthrown government. (Short v Iran) Conduct acknowledged and adopted by a state as its own (art. 11 ). The policy announced by the Ayatollah Khomeini of maintaining the occupation of the Embassy and the detention of its inmates as hostages for the purpose of exerting pressure on the US Government as complied with by other Iranian authorities and endorsed by them repeatedly in statements made in various contexts were attributable to the State. (United States Diplomatic and Consular Staff In Tehran)

Effective Control A state is responsible only for the acts of its organs and per the Nicaragua case, for those non- state actors over which it exercised "effective control," that is, it should have instructions or provided the direction pursuant to which the perpetrators of the wrongful act acted. In the 2007 Application of the Convention on the Prevention and Punishment of the Crime of Ge,,ocide case, the ICJ said the "over-all control test" was only relevant in in so far as the question of the characterization of the Yugoslav conflict as an international armed conflict or whether or not the conflict has been Internationalized; it is not relevant in so far but not to the task of determining whether a state is responsible for the acts of certain nonstate organs involved in that same international armed conflict. · · EFFECTIVE CONTROL

OVER-ALL CONTROL

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Provides a higher Presents lower threshold threshold for attribution. for attribution.

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general situation of There need not be a dependence and support showing of actual or direct would thus be insufficient control. to justify attribution. When dealing with the When dealing with the matter of state matter of individual criminal resoonsibility responsibility and the application of the rules of international humanitarian law (e.g. Prosecutor v Tadic)

. IMPLICATIONS AND CONSEQUENCE RESPONSIBILITY A. Duty to cease the act

STATE

The State responsible for the wrongful act is under the obligation to: 1. Cease the act if it is still continuing; and 2. Offer appropriate assurances and guarantees of non-repetition (ASR, art. 30) ·· ·

._ B. Duty to make reparations The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State. [ASR, art. 31) The responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligations to make reparations. [ASR, art. 32) There are three forms of reparation: a. Restitution b. Compensation c. Satisfaction

Control must have gone

"beyond the mere financing and equipplnq of such

forces" and must have involved "partic'patlon in and the planning of military The private persons or supervision groups must have been operatlcns." mere agents of the state who were told what had to be done at all stages.

Restitution A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to reestablish the situation which existed before the wrongful act was committed, provided and to the extent that restitution: 1. Is not materially Impossible; 2. Does not involve fl burden O!Jt of all proportion to the benefit of the party deriving from restitution instead of compensation. [ASR, art. 35]

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POLITICAL LAW State. This right has a corollary, a duty: the obligation to protect within the territory the :ights of other States, in particular their right to integrity and inviolabllity in peace and ir. war. together with the rights which each Slate may claim for its nationals in foreign territory." [Island of Las Palrnas Arb. (PCA, 1928)]

Compensation The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution. The cornpensaton shall cover any financially assessable damage induding loss of profits insofar as it is ostablished. [ASR, art. 36]

Alien not Preferred over Nationals However, an alien cannot claim a preferred position vis-avis the national of the state. [see Calvo Doctrine, infra]

Satisfaction The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation.

Various forrns of ill-treatment: 1. Mistreatment by judicial or police authorities, 2. Unlawful expropriation of property, 3. Failure to prosecute those who attack foreign nationals. or a denial of justice (der.ial of due process of the law). ·

Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality. Satisfaction shall not be out of proportion to the Injury and may not take a form humiliating to the responsible State. [ASR, art. 37)

Standards for the Protection of Allens NATIONAL TREATMENT/ EQUALITY OF TREATMENT

ADDITIONAL DISCUSSION ON TREATMENT OF ALIENS STANDARD OF TREATMENT

,

Protection Of Aliens As an aspect of sovereignty, no State is obliged to admit aliens into Its territory unless a treaty requires it. However, practically speaking, it is difficult to deny admission to all. Therefore, what a State does is to impose legal standards for admission. Once an alien is admitted into a State, he/she cannot be expelled without due process. They are considered "nationals abroad" and remain under their own State's protection. Practice of proper treatment of aliens is based on the commonality of interests between States, in the expectation that a State's own nationals will be protected when residlng or sojourning abroad. Effect of State Admission of Aliens Once it admits aliens, under the international standard of · justice, which calls for compliance with the ordinary norms of official conduct observed in civilized jurisdictions. aliens should be orotected by certain minimum standards of humane protection, however harsh the municipal laws of a state may be.

MINIMUM INTERNATIONAL STANDARD

Aliens are treated in the same manner as nationals of the State where they reside. It is also known as the doctrine of equality cf treatment.

This is a standard which must be accorded to aliens by all States irrespective of how they treat their own nationals. European powers often upheld this standard in contrast to the In essence, aliens and Latin American States' their property are not assertion of the national entitled to a more favorable treatment principle. treatment than that of the applied to nationals of the host State. Historically rights ahd Thus, a State fulfills its property issues. international obligc1tion on investment the treatment of aliens and However, with the their property by extending development of human equal treatment (Roth, The rights law, individuals are protected Minimum Standards of equally International Law, 62, regardless of nationality. 1949).

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STATE RESPONSIBILITY A state may be held responsible for: 1. Ar, international delinquency; 2. Directly or indirectly imputable to it; 3. Which causes injury to the national of another state. Liability will attach to the state where its treatment of the alien falls below the international standard of justice or where it is remiss in according him the protection or redress that is warranted by the circumstances.

States have concomitant obligations with their rights as sovereigns over their territories 'Territorlal sovereignty[ ... ] involves the exdusive right to display the activities of a Page 298 of 320

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The propriety of governmental acts should be put to the test of international standards. The treatment of an alien, in order to const'tute an international delinquency, should amount to an outrage, to bad faith, to willful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency [Neer Case (PCIJ, 1926)]. For the enforcement of this state responsibility, the following must be complied with: 1. Exhaustion of local administrative remedies; 2. Representation of the alien by his own state in the international claim for damages. Calvo Clause · A stipulation which states that the foreign party must rely exclusively on local remedies and not seek any diplomatic protection. Rationale: 1. Non-intervention; and 2. aliens are entitled only to such rights as are accorded nationals and thus had to seek redress for grievances exclusively in the dornestlc arena. [SHAW] e.g. A stipulation may be made by virtue of which an alien waives or restricts his right to appeal to his own state in connection with any claim arising from a contract with a foreign state and limits himself to the remedies available under the laws of that state. ·

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I. REFUGEES Definition One who, owing to a well-founded fear of being persecuted for reason of race, religion, nationality, membership oi a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country. (1951 Convention Relating to the Status of Refugees, art. 1) Governing Statute The controlling international convention on refugee law is the 1951 Convention relating to the Status of Refugees (1951 Convention) and its 1967 Optional Protocol relating to the Status of Refugees Some persons not covered by the 1951 Convention Relating to the Status of Refugees . 1. 0ne who has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments draw up to make provision in respect of such crimes. .

2.

3.

One who has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee. One who has been guilty ol acts contrary to the purposes and principles of the United Nations. (1951 Convention Relating to the Status of Refugees, art 1).

Rights of Refugees Refugee law and lnternatlenal human rights law are closely intertwined; refugees are tleeing governments that are either unable or unwilling to protect their basic human rights. Additionally, in cases where the fear of persecution or threat to life or safety arises in the context of an armed conflict, refugee law. also intersects with international humanitarian law. 1. Non-Refoulment 2. Freedom of Movement 3. Right to Liberty and Security of Person 4. Right to Family Life 5. Others (rights to education, access to justice, employment, and other fundamental freedoms and privileges similarly enshrined in international and regional human rights treaties. Principle Of Non-Refoulement No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. (1951 Convention Relating to the Status of Refugees, art. 33). It does not distinguish between returning them to the State from which they might have come or to one that will also maltreat them. Internally Displaced Persons People or groups of people who have been forced or obliged to flee or to leave their homes of places of habitual residence, in particular as a result of or in order lo avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human' made disasters, and who have not crossed an internationally recognized State border. (UN Guiding Principles on Internal Displacement, par. 2). !

Statelessness Statelessness is the condition or status of an individual who Is born without any nationallty or who loses his nationality without retaining or acquiring another [CRUZ]. Under the Convention Relating to the Status of Stateless Persons ~1960), a stateless person is entitled to, among others, the right to religion and religious instruction, access to courts, elementary education, public relief and assistance and rationing of products in short supply, as well as treatment of no less favorable than that accorded to aliens.

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Also, under the Universal Declaration of Human Rights: Everyone has a right to the nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Stateless Persons . A person who is not considered as a national by any State under the operation of its law. (1954 Convention Relating to the Status of Stateless Persons, art 1). Types of Statelass Persons

1. De Jure Stateless Persons - Those who have lost their nationality if they had one, and have not acquired a new one. '· 2. De Facto Stateless Persons -Those who have a nationality but to whom protection is denied by their state when out of the state. This is the situation of many refugees. Asylum Seeker A person who has left their country of origin and formally applied for asylum in another country but whose application has not yet been concluded. Foundlings Definition A child, whose parents are both unknown shall have the nationality of the country of his or her birth' A foundling is until the contrary is proved, presumed to have been bor~ on the territory of the State in which he or she was found. (F::~·Llamanzares v, COMELEC, G.R. No. 221697, 2016, c,tmg 1961 Convention on the Reduction of Statelessness art. 2; 1930 Hague Convention on Certair. Question; Relating ~o t~e Conflict of Nationa/J~, Laws, art. ·t4) This presumption in favor of foundlings is a generally accepted principle of international law. (Poe-Llamanzares v. COMELEC, G.R. No. 221697, 2016). While the Philippines is not a party to the 1961 Convention on the Reduction of Statelessness (UNCRS) and the 1930 Hague Convention, it is a signatory to the Universal Declaration on Human Rights (UDHR}. Article 2 of the UNCRS and Article 14 of the Hague Convention merely give effect to Article 15(1) of the UDHR. (Poe-Llamanzares v. COMELEC, G.R. No. 221697! 2016). Citizenship of Foundlings Foundlings are citizens under international law. Article 24 of the International Covenant on Civil and Political Rights provides for the right of every child "to acquire a nationality." The Philippines is obligated under various c?nventions such as the ICCPR to grant nationality from birth and ensure that no child is stateless. This grant of

nationality must be at the time of birth, and it cannot be accomplished by the application of our present naturalization laws, Commonwealth Act No. 473, as amended, and RA 9139, both of which require the applicant to be at least 18 years old. [Poe- Llamanzares v. COMELEC, G.R. No. 221697 (2016)] In a case decided by the Supreme Court, the Chief Justice pointed out that in 166 out of 189 countries surveyed (or 87.83%), foundlings are recognized as citizens. These circumstances, including the practice of jus sanguinis · countries, show that it is a generally accepted principle of international law to presume foundlings as having been born of nationals of the country in which the foundling is found. [Poe-Uamanzares v. COMELEC, G.R. No. 221697

(2016)) J. EXTRADITION Deflnltlon a. The removal of an accused from the jurisdiction of a Host State with the object of placing him at the disposal of foreign aulhcrities to enable the Requesting State or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the Requesting State or Government. b. Extradition means the surrender of a person by one state to another state where he is wanted for prosecution or, if already convicted, for punishment Fundamental Principles General Rule: There can only be extradition if there is a treaty between the States. Outside a treaty, there is no rule in inte,national law compelling a State to extradite anyone. Such may be done, however, as a gesture of cornity. Exception: Even with a treaty, crimes with political and religious cornplexlon are exempted. Exception to the Exception: The assassination of a head of State or any member of his family is not regarded as political offense for purposes of extradition. This is also known as the attendant clause. It also applies for the crime of genocide.

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Principle of Specialty As a general rule, a fugitive who is extradited may be tried only for the crime specified in the request for extradition, and such crime is included in the list of extraditable offenses in the treaty.

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Who may be Extradited Any person may be extradited, whether he be a national of the requesting state, of the state of refuge or of another state.

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Political and Religious Offenders Political and religious offenders are generally not subject to extradition, For the purpose of extradition, genocide and murder of the head of state or any member of his family are not political offenses. Absence of Special Agreement In the absence of special agreement, the offense must have been committed within the territory or against the interests of the demanding state Aut dedere aut judicare (means 'either extradite or prosecute') is a conventional obligation of States found in various treaties. A state subject to this obligation is bound to extradite if it does not prosecute, and prosecute if it does not extradite. Principle of Double Criminality According to this principle, a person may be extradited only when his/her actions constitute an offense In both the Requesting and Requested States. This principle is now commonly accepted by States and is embodied in extradition treaties. A party to an extradition treaty may ask the ether party to extradite a person for a crime committed before the effectivity of a treaty. It does not violate the prohibition against ex post facto laws. The constitutional prohibition applies to penal laws only. An extradition treaty is not a penal law. (Wright v. CA, G.R. No. 113213, 1994).

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Distinguished from deportation (a) Extradition is the "removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities." (PD 1069, §2(a)). It is a form of international iudicial assistance designed to deny criminals a safe haven abroad. It is a formal procedure whereby a,, individual, accused or convicted of a crime under the laws of one State, is arrested in another State and handed over to the former State, at that State's request, for trial or punishment. (Boczek, The A to Z of /ntemational Law, 60, 2010). (b) Deportation is the act or an instance of removing a person to another country (Black's Law Dictionary, 504, 2004). It is exercised by the President to expel or deport aliens whose presence is deemed inimical to the public interest. Deportation is based on the fact that since the aliens are not part of the nation, their admission into the territory is a matter of pure permission and simple tolerance which creates no obligation on the part of the government to permit them to stay. (Djumantan v. Domingo, G.R. No. 99358,

1995). Extradition v De ortation

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Notice and Hearing A person does not have the right to notice and hearing during the evaluation stage of ~he extradition process. Extradition is a proceeding sui generls. It is not a criminal proceeding which will call into operation all the rights of an accused guaranteed by the Bill of Rights. The process of extradition does not Involve the determination of the guilt or innocence of an accused. There Is no deprivation of the right to due process. (Secretary of Justice v. Hon. Lant/on and Mark Jimenez, G.R. No. 139465, 2000).

Procedure For Extradition (Presldent/11/ Decree 1069) 1. Foreign diplomat of the Requesting State or Government requests for extradition with Secretary of Foreign P.ffairs. 2. DFA forwards request to DOJ. 3. DOJ files petition for extradition with RTC. 4. RTC issues summons or Wamint of Arrest to compel the appearance of the individual. 5. Hearing (provide counsel de officio, if necessary). 6. Appeal to CA within 10 days whose decision shall be final and executory. 7. Decision forwarded to DFA through the DOJ. 8. Individual placed at the disposal of the authorities of requesting State. Costs and expenses to be shouldered by Requesting state.

Right to Bail An extraditee should not be deprived of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met. The standard or proof required in granting or denying bail in extradition cases is clear and convincing evidence that the extraditee is not a flight risk and will abide with the orders of the extradition court. ( Government of Hong Kong v. 0/alia,Jr., G.R. No. 153675, 2007). If bail can be granted in deportation· proceedings, there is no justification not to allow it for extradition because both are administrative proceedings where the innocence or guilt of the parties is not in issue.

DEPORTATION

Effected at the request of Unilateral act of the State another state Based on offenses Elased on causes arising in committed in the state or the local state. origin. Calls for the return of the An undesirable alien may fugitive to the requesting be deported to a state other state than his own or the state of origin.

However, aliens may be expelled or deported from the Philippines only on grounds and in the manner provided for Page 301 of 320

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by the Constitution, the Philippine Immigration Act of ; 940, as amended, and administrative issuances pursuant thereto. (Sec. of Justice v. Koruga, G.R. No. 166199, ... 2009). . .

Despite this. the UDHR is considered a normative instrument that creates binding obligations for all states because of the consensus evidenced by the practice of states that the UDHR is now binding as part of international law [CARILLO) .

.K. INTERNATIONAL HUMAN RIGHTS LAW Rights Covered 1. Civil and political rights . 2. Economic, social, and cultural rights

PRELIMINARIES Definition of Human Rights Human rights are those fundamental and inalienable rights which are essential for life as a human being. They 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 lntematlonal law. Classlflcatfon 1. 2.

3.

First generation right5 consist of civil and political rights; Second generation rights consist of economic, social and cultural rights; Third generation rights consists of the ,rights to development, to peace, and to environment. [VasakJ FIRST GENERATION

SECOND GENERATION

ObiigatoryForce Strictly (or objectively) obligatory, whatever the economic or other conditions of the states obligated

Relatively obligatory, states are required to progressively achieve the full realization of these tights "to the maximum of th~ir available resources"

Derogation/Restriciton · May only be derogated in a May be restricted for the public emergency general welfare. with or without an "emergency that threatens the independence or security of a state party." Universal Declaration of Human Rights Overview The UDHR is the basic international statement of the inalienable and inviolable rights of human beings. It is the first comprehensive international human rights instrument proclaimed by an irlternational organization.

The UDHR embodies both first and second generation rights. The civil and political rights enumerated lncluds: 1. The right to life, liberty, privacy and security of person; 2. · Prohibition against slavery; · 3. The right not to be subjected to arbitrary arrest, detention or exile; 4. The right to fair trial and presurnpton of innocence; 5. The right to a nationality; 6. The right to freedom of thought, conscience and religion; 7. The right to freedom of opinion and expression; 8. Right to peaceful assembly and association; 9. The right to take part in the government of his country. The economic, social and cultural rights enumerated include: 1. The right to social security; 2. The right to work and protection against unemployment; 3. The right to equal pay for equal work; · 4. The right to form and join trade unions: 5. The right to rest and leisure. UDHR as Customary Internatlonal Law Rights covered by UDHR are customary international law; hence, even during the times when the Bill of Rights under the Constitution are inoperative, rights under UDHR remained in E3ffect (Republic v. Sandiganbayan, G.R. No. 104768, 2003). . INTERNATIONAL COVENANT POLITICAL f~IGHTS (ICCPR) Overview

ON

CIVIL ·

AND

The ICCPR ls an international covenant and is binding on the respective state parties. It ernbodies the first generation of human rights, although it lists more rights than the UDHR.

Rights Guaranteed 1. Right of the peoples to self-determination It is not a treaty. It has no obligatory character because it 2. Right to an effective remedy was adopted by the UN General Assembly as Resolution 3. Equal rights of men and women in the enjoyment of 217A (Ill). As a resolution, it is merely recommendatory. 'civil and political rightstnon-discrimination on the basis of sex Page 302 of 320

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4. Right to life 5. Freedom from torture or cruel, inhuman or degrading punishment 6. Freedom from slavery 7. Right to liberty and security of person 8. Right to be treated with humanity in cases of deprivation of liberty 9. Freedom from imprisonment for failure to fulfill a contractual obligation 10. Freedom of movement and the right to travel 11. Right to a fair, impartial and oublic trial 12. Freedom from ex post facto laws 13. Right of recognition everywhere as a person before the law 14. Right to privacy 15. Freedom of thought, conscience, and religion 16. Freedom of expression 17. Freedom of peaceful assembly 18. Freedom of association 19. Right to marry and found a family 20. Right of a child to protection, a name and nationality 21. Right to participation, suffrage, and access to public service 22. Right to equal protection before the law 23. Right of minorities to enjoy their own culture, to profess and practice their religion and to use their own language. Nature of the Obligations under ICCPR Obligations under the ICCPR are both positive and negative obligations: positive obligation to perform acts to protect rights of an individual, and negative obligation to prevent acts violative of rights. Obligations of State Parties under the ICCPR

1.

2.

State parties undertake to respect and to ensure to all individuals within their territory the rights enumerated therein, without dlstlnction of any kind, such as race, color. sex, language, rellgion, political or other opinion, national or social origin, birth or other status. State parties are required to take the necessary steps to adopt legislative or other measures that are necessary to give effect to the rights recognized in the ICCPR. . .

3. State parties must ensure that any person whose r : .:.. .f

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rights or freedoms are violated have an effective remedy, notwithstanding that the violation has been committed by persons action in an ofi'icial capacity . State parties must ensure that any person claiming such remedy shall have his right thereto determined by competent judicial, administrative or legislative authority, and that they shall enforce the remedy when granted.

Non-Derogable Rights

-, 1. Right to life 2. Freedom from torture or cruel, inhuman or degrading pnnlshrnent

3. Freedom from slavery 4. Freedom from imprisonment for failure to fulfill a contractual obligation

· 5. Freedom from ex post facto laws 6. Right of rec:ognitioneverywhere as a person before the 7.

law Freedom of thought, conscience, and religion

Even in times of national emergency, no derogation can be made. Lawful Derogation Under ICCPR A state party to the ICCPR may derogate from the treaty in times of public emergency which threatens the security of the nation. Such measures requh ed by the exigencies should NOT be inconsistent with their other obligations under international law and must not involve discrimination solely on the ground of race, sex, religion, etc. Permissible Derogations

1. During a state of emergency threatening the life of the 2.

nation;and subject to compliance with condltlons: iv) Prescribed by Law v) Legitimate Aim vi) Reasonableness vii) Necessity: necessary to protect the invoked legitimate aim viii)Proportionality: it ,is the least intrusive measure available. ix) Compatibility with the aims and provisions of the ICCPR: derogation should not undermine the state's ability to respect and protect other rights found in the ICCPR

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS (ICESCR) The ICESCR, like the ICCPR, is an internationai covenant and is binding on the respective State Parties. It embodies the second generation of human rights, although it lists more r;ghts than the UDHR. Rights Guaranteed 1. Right of self-determination 2. Right to work and accompanying rights thereto 3. Right to social security and other social rights 4. Adequate standard of living Including: 5. Right to adequate housing 6. Right to adequate food 7. Right to adequate clothing

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8. Right to health 9. Right to education

Both will apply simultaneously in times of International & non-international armed conflicts

10. Cultural rights State Parties' Obliqations In ICESCR General Duties/ Obligations Of States 1. Respect - Refrain from interfering with enjoyment of rights. 2. Protect (negative obligation) - Prevent violations by third parties. 3. Fulfill (positive obligation) - Take apptopriate measures (legislative, judicial, etc.) towards the full realization of the rights. Specific Obligations Under Article 2 of the ICESCR 1. Take steps to the maximum extent of available resources, towards the progressive realization of the rights in the covenant. 2. Non-discrimination - States guarantee the exercise of the rights without discrimination.

L. BASIC PRINCIPLES Of INTERNATIONAL

Ensuring a minimum Non-discriminatory treatment to everybody at protection of victims in conflicts by all times (peacetime or armed outlawing excessive war/upheaval} human suffering & materiat destruction in the light of military necessity Wider personal, temporal Less egalitarian in nature, non& material fields of although discrimination is applicability guaranteed with regard to the enjoyment of the rights afforded by this law CATEGORIES OF ARMED CONFLlt;TS When Existing Armed conflict exists if one party used armed force against another party.

HUMANITARIAN LAW Overview International Humanitarian Law (IHL) is the brar.ch of public international law which governs armed conflicts to the end that the use of violence is limited and that human suffering is mitigated or reduced by regulating or limiting the means of military operations and by protecting those who do not or no longer participate in the hostilities. It provides for instances when the use of armed force is justifiable (jus ad be/lum) and it regulates the conduct of armed conflict (jus in be/lo). · Two Branches 1. Law of The Haque: which establishes the rights and obligations of belligerents in the conduct of military operations, and limits the means of harming the . enemy; and 2. Law of Geneva: which is designed to safeguard military personnel who are no longer taking part In the fighting and people not actively engaged In hostilities (i.e. civilians). [International Committee of the Red Cross ("ICRC")]. International Human Humanitarian Law

Rights

Law v.

International

When Armed Conflict considered War For an armed conflict to be considered a war, hostilities must be preceded by a declaration of war or an ultimatum with a fixed limit. This is rarely followed. Usually, it is the victim of the first attack which will be the ones declaring war. In the Philippi:1es, the power to declare the existence. of a state of war is in the legislature, while the power to make war is in the executive .. Types of Armed Conflict IHL distinguishes two types of. armed conflicts, namely: 1. International armed conflicts, opposing two or more States, and 2. Non-international armed contlicts, between governm,.mtal forces and non-governmental armed groups, or between such groups only. An internationalized non-international armed conflict is a civil war characterized by the intervention of the armed forces of a foreign power [GASSER]. A. International Armed Cor.flicts Occur when one or more States have recourse to armed force against another State, regardless of the reasons or the intensity of this confrontation. ( Common Article 2 to the

Geneva Conventions of 1949).

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INTERNATIONAL HUMANITARIAN LAW

Aimed at protecting the individual.

Relevant rules of IHL may be applicable even in the absence of open hostilities. Moreover, no formal declaration of war or recognition of the situation is required.

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The existence of an international armed conflict, and as a consequence, the possibility to apply IHL to this situation, Page 304 of 320 -,

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depends on what actually happens on the ground. It is based on factual conditions. [ICRC] Jus Ad Bel/um - use of armed force General Rule: Under Article 2(4) of the UN Charter, all Member States are bound to refrain from the threat or use of force against the territorial integrity or political independence of a State. Exception: Self-defense Anticipatory Self Defense Article 51 of the UN Charter recognizes the inherent right of States to self-defense if an armed attack occurs. Collective Self-Defense Before a State can be justified in assisting another by way of collective self -defense: 1. The second State must be a victim of an armed attack 2. The second State must request from the first State military assistance Self Defense v. Just War SELF-DEFENSE

JUST WAR THEORY

Permits only the use of force to put an end to an armed attack and to any occupation of territory or other forcible violation of rights which may have been committed.

Once a state has a valid reason for resorting to force, there is no limit on the extent of force which could be employed.

Armed attacks include not only action by regular armed forces across an international border but also sending by or on behalf of the State of armed groups, bands, irregulars or mercenaries. Authorized Military Actions By The UN or Competent Regional Organizations (Such As NATO) ·~~---ii

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Jus In Bello ·· Regulation of the conduct of armed conflict B. Internal or Non-lr.ternational Armed Conflict These are armed conflicts that take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organizes armed groups which, under responsible ccmmand, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations. (Common Article 3 to the Geneva Conventions of 1949).

Does not include interual situations such as riots, Isolated and sporadic acts of violence However, it c1oes r.ot include internal situations such as riots, isolated and sporadic acts of violence, other acts of similar nature. (Additional Protocol II to the Geneva Conventions of 1949). Additional Protocol II requires control over territory. For this reason, the Philippine-NDF conflict is not governed by AP II but by the Common Article 3 to the Geneva Convention of 1949, which requires only minimum humanitarian protection. Common Article 3 main legal sources in this regard are the Common Article 3, Geneva Conventions, and Artide 1, Additional Protocol 11.

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Common Article 3 applies to "armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties." These include armed conflicts in which one or more non-governmental armed groups are involved. Applicability of Com:non Article 3 Article 1 develops Common Article 3. It applies to: 1. All armed conflicts which take place in the territory of a state party; 2. Between its armed forces and dissident armed forces or other organized groups; 3. Which, under responsible command, exercise such control over a part of its territory; 4. As to enable to carry out sustained and concerted military operations and to implement the Protocol. IHL also establishes a distinction between nonintemational armed conflicts in the meaning of Common Article 3, Geneva Conventions of 1949 and nonintemational armed conflicts falling within the definition provided in Article 1, Additional Protocol II. The definition under the Article 1 is narrower than that under Common Article 3: 1. It introduces a requirement of territorial control, by providing that non-governmental parties must exercise . such territorial contra: "as to enable them to carry out sustained and concerted military operations and to implement this Protocol." 2. Additional Protocol II expressly applies only to anned conflicts between State armed forces and dissident armed forces or other organized armed groups. However, Additional Protocol II "develops and supplements" Common Article 3 "without modifying its existing conditions of application" (Article 1, 1st par.). This

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means that the restrictive definition is relevant for the application of Protocol II only, but dces not extend to the law of non-internauonal armed conflict in general. In any case, while Common Article 3 is recognized as a customary norm of international law and binding to all states, Additional Protocol II is a treaty binding only to state parties. Its rules may, however, develop onto customary norms (ICRC).

C. War of National Liberation Armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, Those engaged in such c1 conflict receive combatant status and are entitled to combatant rights and duties. This conflict is considered an international armed conflict under Article 1, 3rd and 4th pars., Protocol 1. (AdditionalProtocol I to the Geneva Conventions of 1949). Wars by peoples against racist, colonial and alien domination "for the implementation of their right to selfdeterrnination and independence is legitimate and in full accord with principles of international law," and that any attempt to suppress such struggle is unlawful (Resoiution 3103 (XXVIII)). When peoples subjected to alien domination resort to forcible action in order to exercise their right to selfdetermination, they "are entitled to seek and to receive support in accordance with the purposes and principles of the Charter." [UN GA Reso. 2625 (XXV)) PHILIPPINE PRACTICE: . R.A. 9851 (PHILIPPINE ACT ON CRIMES AGAINST INTERNATIONAL HUMANITARIAN LAW, GENOCIDE, AND OTHER CRIMES AGAINST HUMANffY) RA 9851 was enacted on December 11, 2009. It 1::. the Philippine act on crimes against international humanitarian law, genocide, and other crimes against humanity. Its .,_ policies are: . 1. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of International law as a part of the law of the land. 2. The state adopts the generally accepted principles of international law, including the Hague Conventions of 1907, the Geneva Conventions on the protection of victims of war and international humanitarian law, as part of the law our nation. 3. The most serious crimes of concern to the intematior.al · community as a whole must not go unpunished and their effective prosecution must be ensured by taking measures at the national levol, in order to put an end to impunity for the perpetrators of these crimes and

thus contribute to the prevention of such crimes, it being the duty of every State to exercise its criminal Jurisdiction over those responsible for international crimes

·

Definition of Terms Apartheid Inhumane acts committed in the context of an institutionalized regime of systematic oppression and domination by one racial group or groups and committed with the intention of maintaining that regime Armed conflict Any use of force or armed violence: a. between States or b. a protracted armed violence between governmental authorities and organized armed groups; or · c. between such groups within that State: Provided, That such force or armed violence gives rise, or may give rise, to a situation to which the Geneva Conventions of 12 August 1949, including their common Article 3, apply. i.

ii.

Armed conflict may be international, that is, between two (2) or more States, including belligerent occupation; or Non-international, that is, between governmental authorities and organized armed gmups or between such groups within a state. It does not cover internal disturbances or tensions such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

Enslavement the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.

''· means the international infliction of conditions of life, inter alia, the deprivation of access to food and medicine, calculated to bring about the destruction of a· part of a population. Hors de Combat A person who: ( 1) is in the power of an adverse party; (2) has clearly expressed an intention to surrender; or (3) has been rendered unconscious or otherwise incapacitated by wounds or sickness and therefore is incapable of defending hlmself: Provided, that in any of these cases, the person form any hostile act and does not attempt to escape.

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Military necessity means the necessity of employir:g measures which are indispensable to achieve a legitimate aim of the conflict and are not otherwise prohibited by International Humanitarian Law Non-defended locality means a locality that fulfills the following conditions: (1) all combatants, as well as mobile weapons and mobile military equipment, must have been evacuated; (2) no hostile use of fixed military installations or establishments must have been made; (3) no acts of hostility must have been committed by the authorities or by the population; and (4) no activities in support of military operations, must have been undertaken. · 'No quarter will be given' means refusing to spare the life of anybody, even of persons manifestiy unable to defend themselves or who clearly express their intention to surrender. Perfidy means acts which invite the confidence of an adversary to lead him/her to believe he/she is entitled to, or is obliged to accord, protection under the rules of International Humanitarian Law, with the intent to betray that confidence, including but not limited to: (1) feigning an intent to negotiate under a flag of truce; (2) feigning surrender; (3) feigning incapacitation by wounds or sickness; (4) feigning civilian or noncombatant status; and (5) feigning protective status by use of signs, emblems or uniforms of the United Nations or of a neutral or other State not party to the conflict.

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(6) a member of the religious personnel who is exclusively engaged in the work of their rnhistry and attached to the armed forces of a party to the conflict, its medical units or medical transports, or non-denominational, noncombatant military personnel carrying out functions similar to religious personnel. Punishable Acts 1. War Crimes or Crimes Against Humanity 2. Genocide 3. Other Crimes Against Humar.ity War Crimes or Crimes AiJalnst Humanity A. For International Armed Conflict: Grave breaches of the Geneva Conventions, namely, any of the following acts against persons or property protected under the Geneva Conventions: 1. Willful killfng 2. Torture or inhuman treatment, including biological experiments 3. Willfully causing great suffering, or serious injury to body or health 4. Extensive destruction and appropriation of property not · justified by military necessity and carried out unlawfully and wantonly; 5. Willfully depriving a prisoner of war or other protected " person of the rights of fair and regular trial 6. Arbitrary deportation or forcible transfer of population or unlawful confinement 7. Taking of hostages 8. Compelling a prisoner a prisoner of war or other protected person to serve in the forces of a hostile power; and 9. Unjustifiable delay in the repatriation of prisoners of war or other protected persons. B. In case of a non-International armed conflict, serious violations of common Article 3 to the four (4) Geneva Conventions of 12 August 1949, namely , any of the following acts committed against persons taking no active · part in the hostilities, including member of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause; (1) Violence to life and person, in particular, willful killings, mutilation, cruel treatment and torture; (2) Committing outrages upon personal dignity. in particular, humiliating and degrading treatment; (3) Taking of hostages; and ( 4) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as

Protect person in an armed conflict means: (1 ). a person wounded, sick or shipwrecked, whether civilian or military; (2) a prisoner of war or any person deprived of liberty for reasons related to an armed conflict; (3) a civilian or any person not taking a direct part or having ceased to take part in the hostilities in the power of the adverse party; (4) a person who, before the beginning of hostilities, was considered a stateless person or refugee under the relevant international instruments accepted by the parties to the conflict concerned or under the national legislation of the state of refuge or state of residence; (5) a member of the medical personnel assigned indispensable. exclusively to medical purposes or to the administration of medical units or to the operation of or administration of medical transports; or Page 307 of 320

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Torture Intentional infliction of severe pain or suffering, whether physical, mental, or psychological Except: those pain or suffering arising only from, inherent in or incidental to, lawful sanctions. Arbitrary deportation of forcible transfer of population Forced displacement by expulsion or other coercive acts of persons from the area in which they are lawfully present, without grounds permitted under domestic or international law. Other serious violations of the law and customs applicable in armed conflict, within the established framework of international law 1. Internationally directing attacks against the civilian population as such or against Individual civilians not taking direct part in hostilities; 2. Intentionally directing attacks against civilian objects: that is, object which are nut military objectives; 3. Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Ger:eva Conventions or Additional Protocol Iii in conformitywith intentional law; 4. ~ntentio~ally directing attacks against personnel, mstallatlons, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in , . accordance with the Charter of the United Nations, as ling as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; 5. Launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be excessive in relation to the concrete and direct military advantage anticipated; 6. Launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or darnaqe to civilian objects, and causing death or serious injury to body or health . 7. Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives, or making nondefended localities or demilitarized zones the object of attack; 8. Killing or wounding a person in the knowledge that he/she is hors de combs; Including a combatant who, having laid down his/her arms or no longer having means of defense, has surrendered at discretion; 9. Making improper use of a flag of truce, of the flag or the military Insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions or other protective signs

under International Humanitarian Law, resulting in death, serious personal injury or capture: 10. Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives. In case of doubt whether such building or place has been used to make an effective contribution to military action, it shall be presumed not to be so used; 11. Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind, or to removal of tissue or · organs for transplantation, which are neither justified by the medical, dental or hospital treatment of the person concerr.ed nor carried out in his/her interest, and which cause death to or seriously endanger the health of such person or persons; 12. Killing, wounding or capturing an adversary by resort to perfidy; · 'i 3. Declaring that no quarter will be given; 14. Destroying or seizing the enemy's property unless such deslruction or seizure is Imperatively demanded by the necessities of war; 15. Pillaging a town or place, even wher. taken by assault; 16. Ordering the displacements of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; 17. Transferring, directly or indirectly, by the occupying power of parts of Its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within · or outside this territory; 18. Committing outrages upon personal dignity, in particular, humiliating and degrading treatments; 19. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions or a serious violation of common Article 3 to the Geneva Conventions; 20. Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; 21. lntentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to . their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions and their Additional Protocols; 22. Jn an internetional armed conflict, compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war;

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23. In an international armed conflict, declarinq abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; 24. Committing any of the following acts: a. Conscripting, enlisting or recruiting children under the age of fifteen ( 15) years into the national armed forces; · b. Conscripting, enlisting or recruiting children under the age of eighleen (18) years into an armed force or group other than the national armed forces; and c. Using children under the age of eighteen (18) years to participate actively in hostilities; and 25. Employing means of warfare which are prohibited under international law, such as: a. Poison or poisoned weapons; b. Asphyxlating, poisonous or other gases, and all analogous liquids, materials or devices; c. Bullets which expand or flatten easily in the human body, such as bullets with hard envelopes which do not entirely cover the core or are pierced with incisions; and d. Weapons, projectiles and material and methods of warfare which are of the nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict.

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Genocide Any of the following acts with intent to destroy, in whole or in part, a national, ethnic, religious, social, or any other similar stable and permanent group 1. Killing members of the group; · 2. Causing serious bodily or mental harm to members of the group; 3. Deliberately inflicting on the group conditions of life calculated to bring about Its physical destruction in whole or in part; 4. Imposing measures intended to prevent births within the group; and · 5. Forcibly transferring children of the group to another group. Also unlawful to directly and publicly incite others to commit genocide.

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Forced Pregnancy Unlawful confinement of women to be forcibly made pregnant, with the intent of affecting the ethnic composition of any population carrying out other grave violations of International law. Other Crimes Against Humanity 1. Committed as part of a widespread/systematic attack 2. Directed against any civilian population

3. With knowledge of the attack

4. Any of the following acts: . a. Willful killing; b. Extermination; c. Enslavement; d. Arbitrary deportation or forcible transfer of population; e. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of International law; f. Torture; g. Rape. sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; h. Persecution against any Identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, sexual orientation or other grounds that are universally recognized as impermissible under international law, in 'connecuon with any act referred to in this paragraph or any crime defined in this Act; i. Enforced or involuntary disappearance of persons; j. Apartheid; and k. Other inhumane acts of a similar character intentionally causing grea~suffering, or serious injury to body or to mental or physical health. Persecution International and severe deprivation of fundamental rights contrary to international law by reason of identity of the group or collectivity Enforced or Involuntary Disappearance The arrest, detention, or abduction of persons authorized by the State or political organization fellowed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, , with the intention of removing from the protection of the law for a prolonged period of time. Prlnclples of Criminal Liability Individual Criminal Responsibility I. Liable as principal a. Commits such a crime, whether as an individual, jointly with or through another regardless of whether that other person is liable b. Orders, solicits or induces the commission of such a crime which occurs or is attempted c. In any other way contributes to the commission or attempted commission by persons in conspiracy: i. With the aim of furthering the criminal activity or criminal purpose of the group

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ii. Be made in the knowledge of the intention of the group to commit the crime. 2. Llable as accomplice Facilitates the commission of a crime; aids, abets or otherwise assists in its commission or attempted commission, including providing the means for its commission 3. Liable for a crime punished under this act Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intention 4. No llablllty · A person who abandons the effort to commit the crime or prevents the completion. if completely and voluntarily -, gave up the criminal purpose. Irrelevance of Official Capacity The provisions of the act shall apply equally to all persons without any distinction based on official capacity. However the following shall be considered: 1. Immunities or special procedural rules that may be attached to the official capacity of a person under P~ilippine law other than the President's immunity from suit, shall not bar the court from exercising jurisdiction over such a person 2. Immunities that may be attached to the official capacity of a person under international law may limit the application of this Act Jurisdiction Requisites to acquire jurisdiction 1. The accused is a Filipino citizen 2. The accused regardless of citizenship or residence, is present in the Philippines 3. The accused has committed the said crime against a Filipino citizen Foreign Accused 1. The Philippine authorities may dispense with the invesligation or prosecution of a crime under this act if another court or international tribunal is already conducting such proceedings. In this case, the authorities may surrender or extradite the accused persons to the appropriate ~tate or Court. . 2. No criminal proceedings shall be initiated against f~reign nationals accused of violating this act, if already tned by a court outside the Philippines with tile same offense and acquitted of it, or convicted and has already served sentence.

CORE INTERNATIONAL OBLIGATIONS OF STATES IN INTERNATIONAL HUMANITARIAN LAW Common Article 1 of all four Geneva Conventions is a key provision when it comes to a state's responsibilities under IHL. It provides that states are responsible to "respect and ensure respect" for the conventions in all circumstances. In general, IHL defines the following obligations:

1. Parties to an armed conflict, together with their armed forces, do not have unlimited choice of methods or means of warfare. They are prohibited from employing weapons or means of warfare that cause unnecessary damage or excessive suffering. 2. Parties to an armed conflict shall, at all times, distingubh between civilian population and the combatants (prindple of distinction). Civilians shall be spared frcm military attacks which shall be directed only against military objectives. 3. Persons hors de combat are those who have been injured in the course of hostile battle. action and are no longer able to directly take part in hostilities. They shall be protected and treated humanely without any adverse distinction. Their right to life and physical and moral integrity shall be respected. 4. It is prohibited to kill or injure an enemy who is hors de combat or who surrenders. 5. The wounded and the sick shall be protected and cared for by the party to the conflict which has them in its power. Protection shall also apply to medical persor.nel, establishments, transports and material. 6. Combatants and civilian who are captured by authority of the party to a dispute are entitled to respect for their right to life, dignity, conviction, and other personal rights. They shall be protected against acts of violence or reprisals. [Legality of the Threat or Use of Nuclear Weapons Advisory Opinion (1990)] The ICCPR, particularly its protection on the right to life, does not determine the legality of the use of nuclear weapons in an armed conflict. What applies is the lex specialis, which is the IHL. It determines whether the taking of life in times of war has been arbitrary. . International Humanitarian Law covers two areas: 1. the protection of those who are not, or no longer, taking part in the fighting; and 2. resfrictions on the means ot' wariare, in particular, weapons and methods of warfare, such as military tactics. Obligations are found primarily in the four Geneva Conventions of 1949 and the Additional Protocols I and II thereto. Other sources include: • 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, and its two protocols;

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1972 Biological Weapons Convention; 1980 Conventional Weapons Convention and its five protocols; · 1993 Chemical Weapons Convention; 1997 Ottawa Convention on anti-personnel mines; 2000 Optional Protoccl to the Convention on the Rights of the Child on the involvement of children in armed conflict. PRINCIPLES ON INTERNATIONAL. HUMANITARIAN LAW

MilitarJ Necessity The oniy legitimate object which parties to an armed conflict should endeavor to accomplish is to weaken enemy forces, Proportionality Bel!igerents or State forces may employ any amount and kind of force to compel complete submission of enemy with least possible loss of lives, time, and money. Principle Of Distinction Requires States and other parties to an armed conflict to distinguish between military objectives (e.g. combatants) and civilian objects (e.g. non-combatants, hors de combat), to direct their attacks only against the former.

Protected Persons Those who enjoy or are entitled to protection under the Geneva Conventions. Including: 1. The wounded, the sick, and shipwrecked; 2. Prisoners of war; 3. Civilians. Civilians For purposes of protection, civilians are further classified as: 1. Civilians who are victims of conflict in countries involved; 2. Civilians in territories of the enemy; 3. Civilians in occupied territories; 4. Civilians internees. Treatment of Civilians Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Neither the civilian population as such nor civilian persons shall be the object of attack. Attacks shall be directed only aqainst military objectives. ·~

It is forbidden to klll or injure an enemy who surrenders or is hors de combat. Collateral damage to a certain extent is allowed but it should not be excessive.

Perfidy This principle prohibits the use of any treacherous means and methods of warfare. Requirement for Humanitarian Intervention 1. There are grave and massive human rights violations 2. The other state is incapable or unwilling to meet the redress 3. There is no other practical alternative than to intervene 4. The action should be limited in time and scope. ....

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Hors de combat Under Article 41(2), Protocol 1, a person is hors de combat if: 1. He is in the power of an adverse party to the conflict; 2. He clearly expresses an intention to surrender; or 3. He has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and is therefore incapable ot defending himself, provided that in any of these cases, he abstains from any hostile act and does not attempt to escape. Persons hors de combat shall be protected and treated humanely without any adverse distinction. Their right to liff3 and physical and moral integrity shall be respected.

Journalists are protected as civilians provided that they take no action adversely affecting their status as civilians. Combatants are not entitled to the rights afforded to civilians. Prisoners of War (POW) Prisoners of war are captured for security reasons and not for punishment. General Rule: A prisoner of war shall not be liable to judicial prosecution even If he has committed to facilitate escape (e.g., theft, drawing of false papers). Exception: When the escapee has used violence against life arid limb during his escape.

Persons belonging to one of the following categories: 1. Members of the armed forces of a party to the conflict, including militias or volunteer corps; 2. Militias or volunteer corps operating in or outside their own territory, even if such territory is occupied provided: ·. 3. They are being commanded by a person responsible for his subordinates; 4. Have a fixed distinctive sign recognizable at a distance; Page 311 of 320

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5.

Carries arms openly; Conducts their operations in accordance with the laws and customs of war; ' 7. Members of regular armed forces who profess allegiance to a government or authority not recognized by the detaining power; 8. Civilians who accompany the armed forces, provided that they have received authorization from the armed forces which they accompany; 9. Members of crews of merchant marine and the crews of civil aircraft of tM parties to the conflict; 10. Inhabitants of a non-occupied territory who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war; 11. Persons oolonging to the armed forces of the occupied territory ·

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Combatants v Non Combatants

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Rights of Prisoners of War: HIT-PNB2-CFR • • • • • • • • • •

To be treated humanely Not subject to torture Allowed to cornrnunicatewith their families Receive food, clothing, religious articles, medicine Bare minimum of information Keep personal belongings Proper burial Grouped according to nationality Establishment of an informed bureau Repatriation for sick and wounded

The wounded and the sick shall be collected and cared for by the party to the conflict which has them in its power. Protection also covers medical personnel, estabbshments, transports and equipment. Combatants Members of the armed forces of a party to a conflict (Article 3(2), Protocol 1 ). They have the right to participate directly and indirectly in hostilities (Art 43(2) Protocol 1 ). Only combatants are allowed to engage in hostilities. . A combatant is allowed to use force, even to kill, and will not be held personally responsible for his acts, as he would be where he to the same as a normal citizen (Gasser). Martens clause/principle of humanity I~ ?!ises not covered by other international agreements, c1V1hans and combatants remain under the protection and .suthority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.

COMBATANTS 1) Armed Forces - all its organized armed forces, groups and units Note: Children below the age of 15 shall not take direct part in hostilities

NON-COMBATANTS 1) With POW Status No Combat Mission Judges Blue-Collar Worker Government Officials Prosecutors Engineers

2) Paramilitary/ Armed Law Enforcement Agencies- e.g. 2) No POW Status when civilian police transforms as part of armed Medical and Religious forces Personnel 3) levee en masseinhabitants of a territory which has not yet been occupied and who, on the approach of the enemy, spontaneously take up arms to resist the Invading troops 4) Spies- no POW status 5) Reconnaissance Forces Law On Neutrality In a conflict, there are some who w:sh to stay out of the way and adopt an attitude of impartiality. Such an attitude must be recognized by the opposinq Party-States and creates both rights and duties in the neutral States. The. decision to employ a neutral stance is dictated by political/internal mechanisms and not Pll. Neutral States must not engage in activities which interfere with the activities of the belligerents whilP. the latter respect the formers rights. Neutral power The Hague Convention Respecting the Rights and Duties of Neutral Powers (1907) governs the status of neutrality by the following rules: . 1. The territory of the neutral power is in-,iolable. . 2. Belligerents are forbidden to move troops or munitions of war and supplies across the territory of a neutral power. 3. A neutral power is forbidden to allow belligerents to use its territory for moving troops, establishing communication facilities, or forming corps of combatants.

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4. Troops of belligerent armies received by a neutral power in its territory shall be interned by away from the theatre of war. 5. The neutral power may supply them with food, clothing or relief required by humanity. 6. If the neutral power receives escaped prisoners of war, it shall leave them at liberty. It may assign them a place of residence if it allows them to remain in its territory. 7. The neutral power may authorize the passage into its territory of the sick and wounded if the means of transport bringing them does not carry personnel or materials of war. The Geneva Convention (Ill) allows neutral powers lo cooperate with the parties to the armed conflict in making arrangements for the accommodation in the forrner's territory of the sick and wounded prisoners of war. Interned persons among the civilian population, in particular the children, the pregnant women, the mothers with infants and young children, wounded and sick, may be accommodated in a neutral state in the course of hostiiities, by agreement between the parties to the conflict. · Protecting power

A protecting power is a state or an organization: 1. Not taking part in the hostilities; 2. Which may be a neutral state; 3.

· 4.

Designated by one party to an armed conflict with the consent of the other; To safeguard or protect its humanitarian interests in the conflict, the performance of which IHL defines specific rights and duties.

Responsibility To Protect The State carries the primary responsibility for protecting populations from genocide, war crimes, crimes against humanity and ethnic cleansing, and their incitement; ·.. ;; l

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The international community has a responsibility to encourage and assist States in fulfilling this responsibility;

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The international community has a responsibility to use appropriate diplomatic, humanitarian and other means to protect populations from these . crimes. If a State is manifestly failing to protect its populations, the international community must be prepared to take collective action to protect popuiations, in accordance with the Charter of the United Nations (UN General Assembly Resolution 60/1, 2005). International Terrorism In international law, it is difficult to criminalize terrorism because of the difficulty in defining the prohibited act. The draft definition at the lnt13rnational Convention for the

Suppression of the Financing of Terrorism (1999) is as -, follows: An act done by any person intended to cause (a) death or serious bodily injury to any person, or (b) serious damage to a State or Government facility with intent to cause extensive destruction of such a place, facility or system, or where such destruction results or is likely to result in major economic loss, when the purpose of such an act is to intimidate a populatior. or to compel a Government or an international organization to do or abstain from doing any act. Criminal acts intended or calculated to provoke a state of terror in the general public, .:. group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them. ( UN General Assembly Resolution 51/210, 1996). Criminal acts, including against civilians, committed with the intent tu cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or In a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offenses within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances ju~tifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature (UN Security Council Resolution 1566, 2004). Right to unilateral s1~cession or external determination under International Law?

self-

General Rule: The people's right to self-determination should not be understood as extending to a unilateral right of secession. Exception: International law, at best, only recognizes the right to external self-determination in situations of {1) former colonies; (2) whore a people is oppressed, as for example under foreign military occupation; or (3) where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development (Province of North Cotabato v. GRP. G.R. No. 183591, 2008). M. LAW OF THE SEA Overvi~w The United Nations Convention on Law of the Sea (UNCLOS) is the body of treaty rules and customary norms governing the use of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes (Magallona).

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It is the branch or public international law which regulates the relations of states with respect to the use of the oceans. BASELINES Definition A baseline is the line from which a breadth of the territorial sea and other maritime zones, such as the contiguous zone arid the exclusive economic zone is measured. Its purpose is to determine the starting point to begin measuring maritime zones boundary of the coastal state. Kinds of Baselines: a.

b.

.

Normal Baseline Method : The territorial sea is drawn from the low-water mark of the coast to the breadth claimed, followlng Its curvatures but excluding the Internal waters In bays and gulfs.(Art. 5, UNCLOS) Straight Baseline Method: Straight lines are made to connect appropriate points on the coast without departing radically from ii~ general direction. The waters inside the lines are considered internal. This is the method used by the Philippines in drawing baselines. (Art.7, UNCLOS) . ARCHIPELAGIC STATES

Definition It is a state made up of wholly one or more archipelagos. It may include other islands [Article 46, UNCLOSJ. Archipelago An archipelago is a group of islands, includi:,g parts of islands, interconnecting wators and other natural features which are so closely related that such islands, waters and natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.

The breadth of the territorial sea, the. contiguous zone, and the exclusive ecor.omic zone is measured from the straight archipelagic baselines. Archipelagic Waters Waters covered by the straight baseline which are areas which had not previously been considered as such. This has a right of innocent passage. Island and Rocks; Distinguished a. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. b. R o c k s which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf. [Article 121, UNCLOSJ Archlpelagic Sea Lanes Passage It is the right of foreign ships and aircraft to have continuous, expeditious and unobstructed passage in sea lanes and air routes through or over the archipelagic waters and the adjacent territorlel sea of the archipelagic state, "in transit between one part of the high seas or an exclusive economic zone." All ships and aircraft are entitled to the right of archipelagic sea lanes passage [Magallona; Article 53(1) in relation to Article 53(3) UNCLOS]. The archipelagic state designates the sea lanes as proposals to the "competent international organization." It is the International Marine Organization (IMO) which adopts them through Article 53(9), UNCLOS, which states that "the Organization may adopt only sea tanes and traffic separation schemes as may be agreed with the archipelagic state, after which such state may designate, prescribe or substitute them."

The archipeiagic state provisions apply only to mid-ocean archipelagos composed of islands, and not to a partly continental state.

Right of Innocent Passage Innocent passage refers to navigation through the territorial sea without entering internal waters, going to internal waters, or coming from internal waters and mc1king for the high seas. It must: 1. Involve only acts that are required by navigation or by distress, and 2. Not prejudice the peace, security, or good order of the coastal state.

Straight Archipelaglc Baseline

Transit Passage

Straight lines are made to connect appropriate poir,·.s on the coast without departing radically from its general direction. The waters inside the lines are considered . internal. This is the method used by the Philippines in · drawing baselines.

Transit passage refers to the right to exercise freedom of navigation and over flight solely for the purpose of continuous and expeditious transit through the straights used for international navigation. The right cannot be unilaterally suspended by the coastal state.

There are two kinds of archipelagos: 1. Coastal, situated close to a mainland and may be considered part thereof (l.e., Norway); 2. Mid-Ocean, situated in the ocean at such distance from the coasts of firm land, (i.e., Indonesia).

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INNOCENT PASSAGE

TRANSIT PASSAGE

Pertains to navigation of ships only

Includes the right of over flight

Requires submarines and Submarines are allowed to other underwater vehicles navigate in "normal mode" to navigate on the surface - i.e. submerged and show their flag.

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Can be suspended but under the condition that it does not discriminate among foreign ships, and such suspension is essential for the protection of its security, · and suspension is effective only after having been duly published

Cannot be suspended

In the designation of sea lanes and traffic separation schemes, the coastal state shall only take into account the recommendations of the competent international organization.

Designation of sea lanes and traffic separation schemes is subject to adoption by competent lnternational organization upon the proposal and · agreement of states bordering the straits.

Other Rights relating to Archlpelaglc Waters 1. Contractual Rights: Rights under existing agreement on the part of third states should be respected by the archipelagic state. 2. Fishing Rights: Within its archipelagic waters, the archipelagic state shall recognize traditional fishing rights and other legitimate activities of immediately adjacent neighboring states. 3. Submarine Cables: The archipelagic state shall res p e c t existing submarine cables laid by other states and "passing through its waters without making a landfall." Under Article 1 of the 1987 Constitution, the archipelagic -, waters of the Philippines are characterized as forming part of "the internal waters of the Philippines." However. under the UNCLOS, archipelagic waters consist mainly of the "waters around, between. and connecting the islands of the archlpelago, regardless of breadth or dimension." Thus, conversion from internal waters under the Constitution into archipelagic waters under the UNCLOS gravely derogates the sovereignty of the Philippine state, because sovereignty over internal waters may preclude the right of innocent passage and other rig;1ts pertaining to archipelagic waters under the UNCLOS.

Also, under Article 47, UNCLOS, it is not mandatory upon concerned states to declare themselves as archipelagic Hot Pursuit states; the Philippines did, under its new baselines law, RA Involves a foreign vessel and where there is good reason 9522 upheld as constltutional [Magallona v. Executive to believe that the ship has violated laws or regulations of · Secretary (2011 )). a coastal State. Rules: Regime of Islands 1. The pursuit must commence when the foreign The "regime of islands" Is: vessel is within the: (CITA) a. an island naturally formed area of land, surrounded by a. ~ontiguous zone water which is above wate,· at high tide, b. [nternal waters b. Except as provided for in the next number, the territorial c. Ierritorial sea sea, the contiguous zone, the exclusive economic zone d. ~rch;pelagic waters of the pursuing State and the continental shelf of an island are determined in 2. It may continue into the high seas if the pursuit has accordance with the provisions of this Convention not been interrupted. applicable to other land territory, 3. If the foreign ship is in the contiguous zone, it may . c. Rocks which cannot sustain human habitation or be pursued only for violations of the rights of the economic life of their own shall have no exclusive coastal State in the contiguous zone (customs. economic zone or cc;ntinental shelf. (UNCLOS, Art. fiscal, immigration, or sanitary). 121) 4. Hot pursuit must stop as soon as the ship pursued enters the territorial waters of its own State or of a INTERNAL WATERS third State. Definition 5. It may be carried· out only by warships or military aircraft, or any other ship or aircraft properly All waters (part of the sea, rivers, lakes, etc.) landwards marked for that purpose. from the baseline of the territory. Sovereignty over these waters is the same In extent as sovereignty over land, and there is no right of Innocent passage. Page 315 of 320

ATENEO CENTRAL BAR OPERATIONS 2019 Where the establishment of a straight baseline in accordance with the method set forth in Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those. waters. (UNCLOS. art. 8) TERRITORlAL SEA Definition Belt of sea outwards from the baseline and up to 12 nautical miles beyond. Sovereignty over these waters (including the airspace above it and the seabed under it) is the same extent as its sovereignty over land. There is a right of innocent passage, and in case of certain straits, to transit passage. Under the UNCLOS, features that are above water at high tide generate an entitlement to at ieast a 12 nauticai mile territorial sea, whereas features that are submerged at high tide generate no entitlement to maritime zones. (The

South China Sea Arbitration, 2013-19, July 12, 2016) CONTIGUOUS ZONE Definition Area of water not exceeding 24 nautical miles from the baseline. It thus extends 12 nautical miles from the edge of the territorial sea. Jurisdiction over Contiguous Zone In the contiguous zone, the coastal State may exercise the control necessary to: . • Prevent infringement of its customs, fiscal, immigration, or sanitary raws and regulations within its territory or territorial sea; • Punish infringement of the above laws and regulat!ons committed within its territory or territorial sea. EXCLUSIVE ECONOMIC ZONE Definition An Area extending not more than 200 nautical miles ·~ beyond the baseline. The coastal State has rights over the economic resources of the sea, seabed and subsoil, but the right does not affect the right of navigation and overflight of other States. ( UNCLOS, art. 55). Jurisdiction over EEZ The UNCLOS gives the coastal State sovereign rights over all economic resources of the sea, seabed and subsoil in an area extending not more than 200 nautical miles beyond the baseline from which the territorial sea is measured (Arts. 55 and 57, UNCLOS).

POLITICAL LAW

The resources covered include living and non- living resources in the waters of the seabed and its subsoil. Obligations of Coastal State The primary obligations of coastal States are: 1. Proper conservation and management measures that the living resources of the EEZ are not subjected to overexploitation; 2. Promote the objective ot "optimum utilization" of the living resources. · The entitlement of a feature to an exclusive economic zone depends on the objective capacity of a feature, in its natural condition, to sustain either a stable community of people or economic activity that is neither dependent on outside resources nor purely extractive in nature. The current presence of official personnel on the features is not enough to establish the right to an EEZ. (The South China Sea Arbitration, 2013-19, July 12, 2016) Coastal states have the responsibillty to utilize, manage and conserve the living resources within their EEZ (i.e., ensuring that living resources are not endangered by overexploitation), and the duty to promote optimum utilization of living resources by determining allowable catch. If after determining the maximum allowable catch, the coastal state does not have the capacity to harvest the entire catch, it shall give other states access to the surplus by means of arrangements allowable under the UNCLOS. The UNLCOS, however, does not specify the method for determining "allowable catch." Within its EEZ, a coastal state may also: 1. Establish and use of artificial islands, installations and structures; 2. Conduct scientific research; 3. Preserve and protect its marine environment. 4. However. under Article 58, UNCLOS, all states enjoy the freedom of navigation, over flight, and laying of submarine cables and pipelines in the EEZ of coastal states. The coastal state has the right to enforce all laws and regulations enacted to conserve and manage the living · . resources in its EEZ. It may board and inspect a ship, arrest a ship and its crew and institute judicial proceedings against them. In detention of foreign vessels. the coastal state has the duty to promptly notif°'J the flag state of the action taken.

Undar the UNCLOS, states have the sovereign right to Conflicts regarding the attdbution of rights and jurisdiction exploit the resources of this zone, but shall share that part in the EEZ must be resolved on lhe basis of equity and in of the catch that is beyond its capacity to harvest. the light of all relevant circumstances, taking into account Page 316 of 320

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When the continental shelf extends beyond 200 nautical miles, the coastal state shall establish its outer limits.

the respective importance of the interests involved to the parties as well as to the international community as a whole (Article 59, UNCLOS).

At any rate, the continental shelf shall not extend beyond 350 nautical miles from the baseline of the territorial sea, or 100 nautical miles from the 2500-meter isobath (i.e., the point where the waters are 2500 meters deep).

Geographically Disadvantaged States Geographically disadvantaged states (i.e., those who have no EEZ of their own or those coastal states whose geographical situations make them dependent on the exploitation of the living resources of the EEZ of other states) and land-locked states have the right to participate, on equitable basis, in the exploitation of the surplus of the living resources in the EEZ of coastal states of the same sub region or region. A coastal state whose economy is overwhelmingly dependent on the exploitation of its EEZ, however, ls not required to share its resources. CONTINENTAL SHELF Definition ' Also known as the archipeJagicor insular shelf which refers to: 1. The seabed and subsoil of the submarine areas adjacent to the coastal State but outside the territorial sea, to a depth of 200 meters, or beyond that limit, to where the depth allows exploitation, and 2. The seabed and subsoil of areas adjacent to islands. (UNCLOS, art. 76). Extended Ccntinental Shelf

~ontinental margin. the submerged prolongation of the land mass of the continental state, consisting of the continental shelf proper, the continental slope, and the continental rise '

Limits of the Continental Shelf The juridical or legal continental shelf covers the area until ?OD nautical miles from baselines.

.. The extended continental shelf covers the area from the 200-mile mark to 350 nautical miles from the baselines depending on geomorphologic or geological data and information.

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It only has sovereign right~ with respect to the exploration and exp!oitation of its natural resources, including the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to the sedentary species. The coastal state has the exclusive right to authorize and regu!ate oil--drillihg on its continental shelf. These rights are exclusive in the sense that when the . coastal state does not explore its continental shelf or exploit ;ts resources, no one may undertake these activities without the coastal state's consent.

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CONTINENTAL SHELF

No duty

Coastal state is obliged to manage and conserve living resources in the EEZ

Rights of the coastal state to natural resources Relate to mineral and other non-living resources of the seabed and the subsoil

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Have to do with natural resources of both waters super adjacent to the seabed and those of the seabed and subsoil

Rights of the coastal state to living resources Apply only to sedentary species of such living resources

Do no' pertain to seoentary species

Continental Shelf and EEZ, Distinguished High Seas All parts of the sea that are not included in the territorial sea or in the internal waters of a State ( UNCLOS, art. 86).

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EXCLUSIVE ECONOMIC ZONE

Duty to manage and conserve living resources

It is part of the Continental Shelf that lies beyond the 200. nautical miles from the coastal baselines. It is the seabed and subsoil of the submarine areas extending beyond the territorial sea of the coastal state throughout the natural prolongation of its lands territory up to: 1. The outer edge of the continental margin; or 2. A distance of 200 nautical miles from the baselines of the territorial sea where the outer edge of the continental margin does not extend. up to that distance.

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Rights of the Coastal State The continental shelf does not form part of the territory of the coastal state.

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BAR OPERATIONS 2019 Allowable Acts in the High Seas 1. Freedom of navigation 2. Freedom of overflight 3. Freedom cf scientific research 4. Freedom to construct artificial islands and structures 5. Freedom of fishing 6. Freedom to lay submarine cables and pipelines (UNCLOS, art. 87). China's "nine-dash linfl" and its claim to resources based on historic right is incompatible with the detailed allocation of rights and maritime zones under the UNCLOS. Even if China had historic rights to resources in the waters of the South China Sea, such rights were extinguished by the entry into force of the Convention to the extent they were incompatible with the Convention's system of maritime zones. Further, China's historical navigation and fishing in the waters of the South China sea represents the exercise of high seas freedom, not the exercise of historic right. (The South China Sea Arbitration, 2013-19, July 12, 2016) Bays Well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked arees and constitute more than a mere curvature of the coast. An indentation shall not be reg.:.rded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the rnouth of that indentation. (UNCLOS, art. 10(2)) ' THE AREA Definition "Area" means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. Legal Status of the Area and Its Resources No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. [Article 137, UNCLOSJ The Area and its resources are the common heritage of mankind. {Article 136, UNCLOSJ Activities in the Area shall be carried out for the benefit of mankind as a whole. [Article 140, UNCLOS] The Area shall be open to use exclusively for peaceful purposes by all States. [Article 141, UNCLOS) INTERNATIONAL SEABED AUTHORITY Definition It is the organization established by UNCLOS which acts on behalf of mankind in governing the regime of resources

in the Area. It organizes, carries out and controls the activities of the Area on behalf of mankind as a whole. Composition The following form the Authority: 1. The Assembly - all state parties to the UNCLOS 2. The Council - the executive organ whose 36 members are elected by the Assembly 3. The Enterprise - the organ directly ·engaged in the exploration and exploitation of the resources of the Area, including the transporting,· processing and marketing of minerals Activities In the Area The Enterprise carries out mining activities on behalf of the Authority: 1. Directly; or 2. By joint ventures with: a. State parties; b. State enterprises; or c. Natural or juridical persons sponsored by state parties. Applicants for license in deep seabed mining are limited to those controlled by states parties to the UNCLOS or by their nationals. INTERNATIONAL TRIBUNAL FOR JHE LAW OF THE SEA {ITLOS) Definition The International Tribunal for the Law of the Sea is an independent judicial body to adjudicate disputes arising out of the interpretation and application of the UNCLOS. It is the proper venue to resolve the issue on the Baselines Law. Jurisdiction of the ITLOS Its jurisdiction comprises all disputes and all applications submitted to it in accordance with the Convention. It also includes all matters specifically provided for in any other agreement which confers Jurisdiction on the Tribunal (UNCLOS, Art. 21). It has jurisdiction to deal with disputes (contentious jurisdiction) and legal questions (advisory jurisdiction) submitted to it. The ·Tribunal, however cannot exercise jurisdiction over certain types of disputes such as disputes over sovereignty over the islands of South China Sea and the delimitation of maritime boundary. (The South China Sea Arbitration, 2013-19, July 12, 2016) Certain preconditions must be present before the Tribunal can exercise jurisdiction. This includes a dispute settlement mechanism entered into by State Parties and an exchange of views between the State Parties on the mear.s of settling their dispute. This requirement was met in the record of diplomatic communications between

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Philippines and China. (The South China Sea Arbitration, 2013-19, July 12, 2016) · Both the Philippines and China are parties to the Convention and bound by its provisions on the settlement of disputes. China's decision not to participate does not deprive the Tribunal of jurisdiction and Philippines' decision to commence arbitration unilaterally was not an abuse of the Convention's dispute settlement procedures. (The South China Sea Arbitration, 2013-19, July 12, 2016) Peaceful Settlement of Disputes Under Article 2, 3rd par., UN Charter, states have the duty to settle disputes by peaceful means. This obligation extends to state parties of the UNCLOS, underscoring the right of the parties to resort to peaceful means of their own choice on which they can agree any time. Compulsory Settlement of Disputes Where no successful settlement can be achieved, or if the parties are unable to agree on the means of settlement of a dispute concerning the application of UMCLOS, such dispute may be governed by the principle of compulsory settlement, where procedures entail binding decisions. The parties may choose, through a written revocable and replaceable declaration, to submit the dispute to: 1. ITLOS; 2. ICJ; 3. Arbitral tribunal; 4. Special arbitral tribunal

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The court or tribunal has jurisdiction over: 1. Any dispute submitted to it concerning the application or interpretation of UNCLOS; or 2. Any dispute concerning the interpretation or applicafion of an international agreement: a. Related to the purposes of the UNCLOS; b. When such dispute is submifted to it in accordance w'th that agreement. N. BASIC PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW

Overview --~.v

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It is the branch of public international law comprising those substantive, procedural, and institutional rules which have as their primary objective the protection of the environment, the term environment being understood as encompassing "both the features and the products of the natural world and those of human civilization" (Sands, Principles of International Environmental Law).

Precautionary Principle In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there arc threats of serious or irreversible damage, lack offull scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation (Principle 15, Rio Declaration). · Factors to be Considered a. Threatening to human life of health or b. Inequity to present or future generations c. Prejudice to the environment without legal consideration of the environmental rights of those affected For purposes of evidence, the precautionary principle should be treated as a principle of last resort, where application of the regular Rules of Evidence would cause in an inequitable result for the environmental plaintiff. (International Service for the Acquisitio."'I of Agri-Biotech Applications v.' Greenpeace, G.R. No. 209271, 2015) The case for the precautionary principle is strongest when the following features coincide: 1. Settings in which the risks of harm are uncertain; 2. Settings in which harm might be irreversible and what is lost is irreplaceable; and 3. Settings in which the harm that might result would be serious. (International Service for the Acquisfflon of Agri-Biotech Applications v. Greenpeace, G.R. No. 209271, 2015) When in doubt, cases must be resolved in f;JVC\r of the constitutional right to a balanced and healthful ecology. Parenthetically, judicial adjudication is one of the strongest fora ir. which the precautionary i:;rinciple may find applicability. (International Service for the Acquisition of Agri-Biotech Applications v. Greenpeace, G.R. No. , 209271, 2015) The precautionary principle only applies when the link between the cause, that is the human aotlvity sought to be inhibited, and the effect, that is the damage to the environmer,t, cannot be established with full scientific certainty. (West Tower Condomimium v. First Philippine Industrial Corporation, G.R. No. 194239, 2015) OTHER CONCEPTS COVERED BY INT'L ENVIRONMENTAL LAW Principle of Common but Differentiated Responsibility States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the earth's ecosystem. In view of the different contributions to

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BAR OPF.RATIONS 2019 global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear In the international pursuit to sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command (Principle 7, Rio Declaration). Sic Utere Tuo Ut Alienum Non Laedas {Principle 21 of the Stockholm Declaration) Principle 21: States have the sovereign right to exploit their own resources pursuant to their own environmental policies, and tha responslbllity to ensure that act;:,ities within their jurisdiction or control do not cause damage_ to the environment of other States or of areas beyond the limits of national jurisdiction. ' Sustainable Development It is development that meets the needs of the present without compromising the ability of future generations to meet their own needs (Case Concerning the GabcikovoNagymaros Project (1997)). · · N~ state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequer.ce and the injury is established by clear and convincing evidence (US v. Canada (Trail Smeltor Case) (1938)). · ·

Some exceptions are allowed. For example, countries can set up a free trade agreement that applies only to goods · traded within the group -- discriminating against goods from outside. Or they can give developing countries special access to their markets. Or a country can raise barriers against products that are considered to be traded unfairly from specific countries. And in services, countries are allowed, in limited circumstances, to discriminate. But the agreements only permit these exceptions under strict conditions. In general, MFN means that every time a country lowers <1 trade barrier or opens up a market, it has to do so for the same goods or services from all its trading partners - whether rich or poor, weai< or strong. National Treatment Clause Imported and locally-produced goods should be treated equally - at least after the foreign goods have entered the market. The same should apply to foreign and· domestic services, and to foreign and local trademarks, copyrights and patents. This principle of "national treatment" (giving others the same treatment as one's own nationals) is also found in all the three main WTO agreements (Article 3 of GATI, Article 17 of GATS and Article 3 of TRIPS), although once again the principle is handled slightly differently in each of these. ----

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ADDITIONAL DISCUSSION: INTERNATIONAL ECONOMIC LAW Overview !ntemational Economic law is international law rslatinq to rnvestment, economic relations, economic development, economic institutions, and regional economic integration

(Black's Law Dictionary, 2004).

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Most Favoured Nation Clause Under the WTO agreements, countries cannot normally discriminate between their trading partners or grant one State party a special favour (such as a lower customs duty rate for one of their products) witr,out extending the same to all other WTO members. It is so important that it is the 11irst article of the General Agreement on Tariffs and Trade {GATI), which governs trade in goods. The clause is also a priority in the General Agreement on Trade in Services (GATS, art. 2) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS, art. 4), although in each agreement the principle is handled slightly differently. Together, those three agreements cover all three main areas of trade handled by the WTO. P_age 320 of 320

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