Carlo Cruz. Finals Transcript

POLITICAL LAW REVIEW

Qualifications prescribed in the Constitution:

Atty. Carlo Cruz

*implicit in all of the qualifications is the possession of none of the disqualifications

October 16, 2019

Senators

LEGISLATIVE POWER The authority to make laws, and to alter and repeal them. It is vested in Congress except to the extent reserved to the people by way of initiative and referendum consistent with Sec. 32 of Art. VI which has been implemented through Republic Act. No. 6735. The basic principle is that Congress is without restriction as to the subjects which it may consider by way of legislation. Anything that is traditionally covered by the concept of legislation can be tackled by the legislature e.g. crimes and imposition of penalties and fines, and exceptions thereto. In the context of separation of powers: The power to grant statutory exemptions from the coverage of penal statutes is with Congress. But the matter of implementing them is within the realm of the executive provided that once a case has been filed based on the penal statute, the case would be under the full custody of the court. Therefore any claim of immunity from the penal statute should be with assent of the court that assumed jurisdiction over the criminal case. In the senate, there are 24 of them. They are provided with staggered terms. Staggered terms are usual in appointive officers to ensure the independence of the entity to which the rotational scheme is applied. In the Senate, the purpose of staggering of terms is to ensure a continuation of legislative policy such that only 12 of the 24, as designed in the Constitution, up for reelection or replacement in every Senatorial election. The other 12 carry on with their terms to the next Congress.

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Sir does not understand why there are additional qualifications in the law. Expressio union est exclusio alterius. The express mention of a thing excludes those

District Reps

Party-list 1 Reps

1. Natural born citizen 2. 35 yrs old on the date of election 3. Resident for at least 2 years before or immediately preceding the election anywhere in the Ph 4. Registered voters 5. Literate- ability to read and write 1. Natural born citizen 2. 25 yrs old on the date of election 3. Resident for at least 1 year where they seek to be election 4. Registered voter 5. Literate I. Constitutional 1. Natural born citizen 2. 25 yrs old on the date of election 3. Resident for at least 1 year in the Ph 4. Registered voter 5. Literate II. Eligibilities and disqualifications under RA 6735 No part-list nominee can be nominated:

President Vice President

1. Without his express, formal and written consent. 2. If he had lost in an election immediately preceding his nomination 1. Natural born citizen 2. 40 yrs old on the date of election 3. Resident for at least 10 years before or immediately preceding the election anywhere in the Ph 4. Registered voters 5. Literate- ability to read and write

which are not mentioned. Nobody has questioned them but he thinks they are reasonable.

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Supreme Court Justices

Lower court judges

1. Natural born citizen 2. At least 40 upon appointment 3. At least 15 years engaged in the practice of law or a judge of a lower court Only required to hold minimum qualifications 1. Philippine citizen 2. Membership in the bar 3. For collegiate court justicesnatural born citizenship

Congress is competent to add to these qualifications. In fact, it has done so already in BP 129. ü Natural born citizenship is now prescribed for all judgeships Constitutional Commissions Uniform qualifications: 1. Natural Born Citizenship 2. Age fixed at 35 upon appointment Uniform disqualifications (none of them may be appointed to the CONCOM) if: 1. They have participated in the elections immediately preceding their appointment 2. None of them can be appointed in an acting or designated capacity Civil Proven Capacity for public Service administration COMELEC College degree holders, majority of them must be lawyers who had practiced law for at least 10 years, including the Chairman. (Meaning 4 of them must be lawyers) COA 1. At no time should the commission be comprised of members coming only from one profession. Two professions are required to be always represented, accountancy and law. 2. Practice of their respective professions for at least 10 years. Understand that all lower court judges are required only, under the Constitution, to possess minimum qualifications, namely Philippine Citizenship and membership in the Bar. I said these are minimum qualifications therefore Congress will be competent to ADD or improve

upon these qualifications. In fact, it has done so already. The present law, B.P. 129, as amended, has added additional qualifications and improved upon existing ones. Natural-born citizenship is now prescribed for all judgeships. B.P. 129 Section 15. Qualifications. – No persons shall be appointed Regional Trial Judge unless he is a natural-born citizen of the Philippines, at least thirty-five years of age, and for at least ten years, has been engaged in the practice of law in the Philippines or has held a public office in the Philippines requiring admission to the practice of law as an indispensable requisite. I should also mention that insofar as collegiate court justices are concerned, understand that they are also lower court judges but there is an additional constitutional qualification for all collegiate court justices, and that is natural-born citizenship. From there, we proceed to the Constitutional Commissions. The uniform qualification would be natural-born citizenship and age: fixed at 35 at the time of their appointment. That is the only area of similarity, well there are disqualifications prescribed uniformly for all of them: 1. None of them may be appointed to the Constitutional Commissions if they have participated in any election immediately preceding their appointment; 2. None of them may be appointed in an acting or designated capacity. The differences between the Constitutional Commissions in terms of qualifications would be these: CSC – the commissioners are not required to be college degree holders. All that is required of them is that they have proven capacity for public administration. COMELEC – Distinguish the above from the COMELEC commissioners who are all required to be college degree holders provided that a majority of them are lawyers (who have practiced law for at least 10 years), including the chairman. So 4 of them must be lawyers. Majority of the lawyers must practice law for 10 years.

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Would it be possible for a lawyer to be appointed as COMELEC Commissioner without practice of law for 10 years? Yes, provided he shall not be counted as part of the required majority.

RESIDENCE and CITIZENSHIP

Is it okay for the COMELEC to be entirely composed of lawyers? Yes, in fact, that would be ideal considering that they will be exercising quasi-legislative and quasi-judicial authority.

There are many foreigners here which are actually permanently residing here, managing businesses in Boracay, etc. But they remain to be a citizen of their State. In the same vein, many Filipinos are green card holders, but that only means that they are permanently residing there. They remain Filipinos for at least 5 years before they actually are naturalized as American citizens.

COA Commissioners In so far as COA commissioners are concerned, the difference is that at no time should that commission be comprised of members coming only from one profession. Two professions are required to be always represented in the COA, these will be accountancy and law, practicing their respective professions for 10 years. Would it be possible that COA is composed of 3 CPA lawyers? Yes. Ombudsman and Deputy Ombudsman They are appointed by the President upon the nomination of the Judicial and Bar Council (JBC). They are all required to be: 1. Natural born citizens 2. At least 40 years of age 3. 10 years in the practice of law (Ombudsman only; not applicable to deputy ombudsman) Qualifications “AGE AT THE TIME OF THEIR ELECTION” History: This was by reason of Marcos’ anger. Espinosa v. Aquino G.R. No. L-11721, March 26, 1958 In this case, Mr. Benigno “Ninoy” Aquino, when he ran for the first time for the position in the senate, he was not yet 35 years old, the age prescribed for membership in the senate, on the date of the election. Elections then were held in November, second Tuesday. But by the time he was proclaimed, he had already turned 35. His birthday is Nov. 27. His proclamation as a winning senator was after Nov. 27. SC: The age qualification, under the 1935 Constitution, should be possessed on the date of the proclamation. This angered Mr. Marcos. Which is why in the 1973 Consitution, replicated in the present Constitution, that phrase appears. 35 years on the date of the election.

You do not equate the two. One does not always go with the other. That is why they are described as different qualifications.

In different cases, it depends who the party is. If you are an Imelda, you are always a resident, anywhere. If you are Jaloslos, you are not a resident. Or a Guingona. If you are Sonny Osmeňa, you are a resident anywhere. You remember this provision in the Family Code, which was also present in the Civil Code, to the effect that when a woman marries her spouse, she takes on automatically the residence of her spouse as her new domicile. Remember the 3 basic principles on residence: (1) Everyone has a residence; (2) No one can have 2 residences, or in the context of political law, domiciles; (3) If you take on a new residence, you necessarily abandon the old one. Here is Imelda, born and bred in Tacloban Leyte. Birthdays, wakes, every celebration is there. She has always voted there. But then she married Ferdinand Marcos who is a resident of Ilocos Norte, Batac. That provision in the Family Code, well Civil Code, was invoked against her. It was not applied to have her considered as NOT a resident of Tacloban. In essence, the Court said that the man she married has many residences. Batac, San Juan Metro Manila, Makati, Malacanang, etc. They went by the basic rule: manendi. The animus manendi and animus revertendi. That is your formula. In any given problem in this regard, always determine the intent of the person. For instance, Raul Roco. Everyone knew he was from QC, White Plains. Everyone knew he has always lived in Metro Manila, he studied here, etc. And yet, he has always been recognized as a resident of Naga City. It is because of the intent: manendi and revertendi.

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But here’s my problem here: that principle was applied to favor Imelda. She was born there, lived there, studied there, partied there, etc. Distinguish the case of Imelda Marcos with Limbona. Limbona v. COMELEC G.R. No. 186006, Oct. 16, 2009 She married her husband and when she sought to run in her former domicile, she was disqualified. The provision in the Civil Code was applied against her. See Art. 68 and 69 of Family Code. Jalover v. Osmeña G.R. No. 209286, Sept. 23, 2014 This involved Sonny Osmeña. The Court referred to the earlier case of Mitra v. COMELEC which explains why the matter of residency is prescribed as a qualification for elective office. •

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From the perspective of the candidate – he must be familiar with the political terrain, the requirements and problems of area/ district where he seeks election. From the perspective of the constituency – there must be a vote to assess the qualifications of the candidate that is only possible if you were actually domiciled in the place where he seeks election.

The former senator Osmena was running as mayor of Toledo City. He did not have a house there. He went there only for political purposes. When he would stay there, he would stay at these apartments or small hotels, etc. He did own property and on that property was being constructed a house. But it was not yet built and he had not yet lived there. SC sustained his claim that he was a resident there because of the manendi and revertendi. Distinguish with Jalosjos v. COMELEC G.R. No. 209286, June 25, 2013. Similarly situated with Osmena: • Political purposes • Owned a property but house still under construction • Stayed at hotels

As a rule, ownership of property is not necessarily an indication of residence. •

If that were so, then property ownership may be considered an additional qualification for an elective officer which is not allowed.

What I prescribe for my students is that if you will be facing a problem on residency, it will all depend on animus manendi and animus revertendi. This can be applied in the case of the Cayetano couple. You cannot be wrong if you rely on animus manendi and animus revertendi. Natural-Born Citizenship The basic definition of natural-born citizenship is prescribed in Article IV of the Constitution. Article IV – Citizenship Section 1. The following are citizens of the Philippines: 1. Those who are citizens of the Philippines at the time of the adoption of this 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; and 4. Those who are naturalized in the accordance with law. Section 2. Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens. The jus sanguinis principle is observed in the Philippines. According to this principle, a child follows the nationality or citizenship of the parents regardless of the place of his or her birth. On the other hand, the doctrine of jus soli determines nationality or citizenship on the basis of place of birth. (Valles v. COMELEC, G.R. No. 137000, August 9, 2000)

But Jalosjos was NOT considered as resident.

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Manners of Acquiring Natural-Born Filipino Citizenship The following are considered natural-born citizens of the Philippines: 1. Those born of Filipino parents (Section 1 (2), Article IV, 1987 Constitution) 2. Those born of a Filipino mother before January 17, 1973, who elect Philippine Citizenship upon reaching the age of majority (Section 1 (3), Article IV, 1987 Constitution) 3. Those who reacquired their Filipino natural-born citizenship through naturalization or repatriation after the enactment of the 1987 Constitution but prior to the promulgation of R.A. No. 9225 (See Bengson III v. HRET) 4. Those who reacquired or retained their of natural-born status pursuant to R.A. No. 9225 5. Foundlings found in the Philippines. Manner of Election (with respect to paragraph 3 of Section 1, Article IV) Election of Philippine citizenship merely requires the taking of the oath of citizenship, making a statement of election, and the registration of both the oath and statement in the proper civil registry. Reacquisition of Natural-Born Citizenship Prior to R.A. No. 9225 Bengson III v. House of Representatives Electoral Tribunal, G.R. No. 142840, May 7, 2001 FACTS: Bengson was a natural born Filipino citizen who enlisted in the United States Marine Corps and without the consent of the Republic of the Philippines, took an oath of allegiance to the United States. As a Consequence, he lost his Filipino citizenship. Prior to the enactment of R.A. No. 9225, Bengson returned to the Philippines and wished to be a Filipino again. He underwent naturalization proceedings for the purpose of repatriating himself. Immediately after he was naturalized back into a Filipino citizenship status, he filed a certificate of candidacy for member of the House of Representatives, a position that requires natural born citizenship. ISSUE: Did Bengson restore his natural-born Filipino citizenship by virtue of the naturalization proceedings? RULING: Yes. The effect of Bengson’s naturalization would be to restore him back to his natural-born citizenship status.

Reacquisition Under Republic Act No. 9225 Under this statute, one who was born a naturalborn Filipino citizen and loses it, shall reacquire such citizenship after taking the oaths prescribed in the said law. Foundlings A foundling is essentially considered to be the offspring of citizens of the state or the country where they are found. (Poe-Llamanzares v. COMELEC, G.R. No. 221697, March 8, 2016) That would fit into the definition of a natural-born citizen. David v. Agbay is the only case that the Supreme Court had made the distinction of the concepts of reacquisition and retention in the context of RA 9225. This particular law is available only to those to begin with are natural born citizens/Filipino citizens. Why is this so? Because the effect of taking either the first or second, otherwise known as the renunciation oath, will be to restore the one who takes that oath back to his original natural citizenship status. Example: A Chinese citizen comes to the Philippines and has himself naturalized as a Filipino. Then he goes to America. Decides to have himself naturalized as an American. May he avail himself of RA 9925 to restore him back to his Philippine citizenship? The answer is no. If he were allowed to take that oath, the effect would be to vest in him natural citizenship. David v. Albay would be essentially founded on Sections 2 and 3 of the Dual Citizenship law. Taken together, there is an interpretation in those provisions to the effect that one who avails himself of the oaths or takes the oaths under 9925 shall be deemed never to have lost his Philippine citizenship. David v. Agbay GR No. 199113, March 18, 2015 We tackle the matter to this natural born Filipino. Who, in 1974, migrated in Canada and after 5 years becomes a naturalized Canadian (1979). He lost his Philippine citizenship before—and this brings us to the reckoning point—2003, because that was the year when R.A. 9225 became effective. So this natural-born Filipino became a naturalized Canadian in 1974 long before 2003. He returned to the Philippines around 2005, decided to retire there and bought beach property 5



with his wife, only to find out later that he cannot buy that property because it is protected property by the DENR. He was legally advised to apply for a Miscellaneous Lease Agreement (MLA) with the DENR, filled out the form, and in the space reserved for citizenship, wrote down “Filipino”— falsification, because at the time he applied, he was a naturalized Canadian. When that fact of falsification alerted him of possible criminal charges, he sought legal advice again and was told to take the oath under R.A. 9225. The lawyer pointed out that if he took that oath, he shall be deemed never to have lost his Philippine citizenship. Therefore, if petitioner would have taken that oath in 2010, that effect of restoration to natural-born citizenship, according to the lawyer, would retroact back to 1974, when he would have lost it because of naturalization in Canada. That would only mean that if he signed that MLA application and indicated that he was Filipino, he would not have told a lie because of the retroactive effect. He was still charged later on, and he sought to prevent the prosecution by raising that point. Justice Peralta addressed this particular contention by saying that at the time petitioner executed the MLA, the crime of falsification had already been consummated. There are two classes of natural-born Filipino citizens who would have lost their Philippine citizenship in the context of David v. Agbay: Two classes of natural born Filipino citizens who would have lost their Philippine citizenship (in the context of David v. Agbay): 1. Those who would have lost their natural born citizenship before 2003. • Because they lost it while R.A. 9225 was not yet effective, that means they would have lost it on the basis of Commonwealth Act No. 63. That law did not provide for any restoration of Philippine citizenship or, much less, a retroactive effect of such restoration. Hence, CA No. 63 governs the loss of that citizenship by these people. 2. Those natural born citizens who would have lost Philippine citizenship after 2003, when R.A. 9225 was already in place. • (According to the SC) It is only those who would have lost Philippine

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citizenship after 2003, when R.A. 9225 was already in place, who shall be considered as having retained their Philippine citizenship. The phrase of Section 3 says that you shall be deemed to not have lost Philippine citizenship, and that you are the only ones who would be covered by the retroactive clause. All those who lost their Philippine citizenship before 2003, when they take their oath under R.A. 9225, shall be considered to have reacquired Philippine citizenship and that acquisition shall produce only prospective effect. The retroactive clause shall not be applicable to them. Those who lost their Philippine citizenship after 2003, they retain their Philippine citizenship and the effect of such restoration of Philippine citizenship shall retroact to the date of the loss of their Philippine citizenship. Hence, the retroactive clause in R.A. 9225 is effective only to them.

For example, there is a Filipino who became a naturalized American citizen in 2005. He is now not a Filipino and R.A. 9225 was already effective. Say, five years later he misses the Philippines and decided to avail of the benefits of R.A. 9225. He took the (what sir calls as the first oath) oath under R.A. 9225 in 2010. So, as of 2010, he sworn allegiance again to the Republic of the Philippines. He would, again, be a Filipino. The effects of his restoration to that status shall go back to 2010 where he lost his Filipino citizenship. Stated otherwise, from 2010 to 2015, when he took the first oath, he should be considered as having remained a Filipino citizen. Let us talk about his oath. There are two of them prescribed or allowed to taken under R.A. No. 9225. Let's start with what I refer to as the "First Oath." You will note that it is not a traditional citizenship oath. While it requires for the one who takes it to swear allegiance to our republic, it does not require him to renounce any and all other foreign citizenships. Before 2003, he becomes a naturalized American. After 2003, he takes the first oath under R.A. No. 9225. He swears 6



allegiance to the Republic of the Philippines, therefore, he is restored to Philippine citizenship. He did not renounce any foreign citizenship, so he retains that foreign citizenship - dual citizenship. He retains that foreign citizenship. As a dual citizen what they can be first owned under RA 9225 is entitled to own property, real property, is entitled to practice his profession provided it is in compliance with the basic requirements prescribed by professional regulatory board. Petition for Leave to Resume Practice of Law, Benjamin Dacanay (B.M. No. 1678 Dec. 17, 2007) In so far as lawyers are concerned. A lawyer who reacquires Filipino citizenship under RA 9225 can resume his law practice provided he does the following: a) the updating and payment in full of the annual membership dues in the IBP; b) the payment of professional tax; c) the completion of at least 36 credit hours of mandatory continuing legal education; this is specially significant to refresh the applicant/petitioner’s knowledge of Philippine laws and update him of legal developments and d) the retaking of the lawyer’s oath which will not only remind him of his duties and responsibilities as a lawyer and as an officer of the Court, but also renew his pledge to maintain allegiance to the Republic of the Philippines. Are they allowed to be registered as voters? Yes, according to Nicolas-Lewis v. COMELEC (G.R. No. 162759 August 4, 2006) This pertains to registration as a voter. Remember that the qualifications for registration as a voter is prescribed in Article 5, Section 1: Article V Section 1: Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year, and in the place wherein they propose to vote, for at least six months immediately preceding the election.

Nicolas-Lewis v. COMELEC (G.R. No. 162759 August 4, 2006) Facts: A natural-born Filipina who married an American gazillionaire. She became a naturalized American. She heard about RA 9225 and decided she wanted to be a Filipina again. She takes her first oath and then she reads the law and finds out she’s entitled to be registered as a voter but subject to the requirements under the Constitution, laws, rules and regulations. The provision reads: May be registered as a holder subject to the requirements under the Constitution, laws, rules and regulations. What would be the basic qualifications? Article 5, Section 1 SECTION 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. Nicolas-Lewis v. COMELEC G.R. No. 162759 August 4, 2006 Article 5 Section 1 which prescribes in addition to citizenship (to which she is qualified because she is a dual citizen), in addition to age (to which she is qualified, 18 or more), but is she qualified under the residence requirement. When she applied for registration, the COMELEC rejected. She was permanently residing abroad. Therefore, you cannot be a permanent resident here. Remember the 3 rules: 1. There must be one residence. 2. You cannot have two residences. 3. Taking a new residence, you abandon the old. She had abandoned her domicile here when she took up her permanent residence abroad. She went up to the Supreme Court from that rejection. The Court pronounced that she may be registered here as a holder. SC voted 13-0. There was not a single dissent. The Court rationalized this departure from the strict qualifications prescribed for registration as a holder in our Constitution. The Court 7



generously relying on the earlier case of Macalintal v. COMELEC (discussed in joint legislative oversight committee separation of power concepts). This was the Overseas Absentee Voters Act which allowed overseas Filipino to be registered as voters. That law was done by the Congress ostensibly, pursuant to Section 2 of Article 5. Article 5 SECTION 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. Section 2, Article 5 contains a command upon Congress to evolve a system of absentee voting for “overseas Filipinos.” The law included even Filipinos who are permanently residing abroad because these Filipinos abroad were overseas. Hearing the phrase Filipinos impresses on the idea of OFWs. These workers when they work abroad for long-term contracts of 5 or 6 years, do they remain residents of the Philippines? Of course! Because they have every intention to return. They created now with Filipinos who are permanently residing abroad. (Sir does not agree) But that was how the SC ruled. Nicolas-Lewis v. COMELEC G.R. No. 162759 August 4, 2006 Actual SC Doctrine: As may be noted, there is no provision in the dual citizenship law - R.A. 9225 - requiring "duals" to actually establish residence and physically stay in the Philippines first before they can exercise their right to vote. On the contrary, R.A. 9225, in implicit acknowledgment that "duals" are most likely nonresidents, grants under its Section 5(1) the same right of suffrage as that granted an absentee voter under R.A. 9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as much as possible all overseas Filipinos who, save for the residency requirements exacted of an ordinary voter under ordinary conditions, are qualified to vote. In Macalintal: It is clear from these discussions of the … Constitutional Commission that [it] intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin. The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents’ domicile of

origin is in the Philippines and consider them qualified as voters for the first time. It is in pursuance of that intention that the Commission provided for Section 2 [Article V] immediately after the residency requirement of Section 1. By the doctrine of necessary implication in statutory construction, …, the strategic location of Section 2 indicates 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. The Court relying on those extrinsic aids at the senatorial and congressional debates, [inaudidble] they also cited debates in the constitutional commission. Clearly the intention was for Section 2 to be considered as an exception to the residence qualifications prescribed in Section 1. So I repeat, In Nicholas Lewis, relying on Macalintal v. COMELEC, the Court said clearly dual citizenship vests any dual citizen the right to be registered as a voter regardless of his residence. You must have sometimes studied the Absentees Voters Act. May special requirement doon eh. If the one who seeks registration on the basis of that law will be allowed to be registered, he must execute a sworn affidavit of oath to the effect that he will return to the Philippines within 3 years. What is that class if not an indication that residence is important, precisely because the permanent resident Filipino there is still in essence required to come back here. Now here is my point, All of those who register on the basis of the 2001 law and who has executed that sworn undertaking, how many of that have returned to our country? Ano punishment for them imposed under the law if they fail to return? They will be deactivated as voters. Our COMELEC is so efficient, ilan na kaya nadeactivate dun? I’m telling you class they are still active. Remember the principle in Nicholas Lewis v. Comelec, the Court said that if a dual citizen is residing abroad permanently, he would be entitled to register as a voter precisely because of the exceptional clause in Section 2, Article 5.

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Section 4. Derivative Citizenship - The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizenship of the Philippines. Here’s the problem: the title of Sec. 4 is derivative citizenship - can you become a natural born citizen through derivative mode? No. Precisely, you are a naturalized Filipino. Therefore, are the single, legitimate, illegitimate or adopted children considered as natural born or naturalized citizens of the Philippines? To illustrate the problem, let’s go back to that guy who lost his PH citizenship in 2010 and then he took the first oath under RA 9225 in 2015. From that time on, he became a dual citizen, but his restoration to PH citizenship retroacts to 2010, which is the time he lost it due to naturalization in a foreign State. The problem is this: what if in 2011, he had an offspring? Would that offspring be considered as natural born or naturalized, given the very limited definition in Section 4? It might not be a problem today, but someday, that offspring will eventually turn 40 years old and may decide to run for President. How then do you determine his compliance with the qualification that a candidate for the Presidency must be a natural born citizen of the Philippines? That is an issue not addressed in the law. I take the view that the child is a natural born citizen - it is not the child’s fault; it was an accidental birth. Another point, let us say Jepoy who is from Antipolo, learned that in December 2015 he won the lotto with a prize of 100M. And because he idolized Manny Pacquiao, he uses the 100M to buy the lot next to Manny’s to be his neighbor. One reason also that he transfers to Makati is because he learned that Abigail will run for Mayor of Makati. Sir’s example: Jepoy lives in Antipolo. He won in December 2015 in lotto for 100 Million. He buys property in Forbes Park for 99M and reserves 1M for himself. He transfers to Makati because he wants to vote for Abigaile. He establishes his residence there, the manendi is there. They tend to abandon Antipolo, and to adopt Makati. If he applies for registration as a voter in Makati, he will be rejected because he had not resided in Makati for at least 6 months.

Now think of the person born in America in 2011. When he turns 18 on the basis of Nicolas-Lewis, he will be allowed to register as a voter. He had never set foot in the Philippines, but he will be allowed to vote. Meanwhile, Jepoy who had lived here all his life will not be allowed to vote. Sir’s opinion: Jepoy will be told that he can still vote in Antipolo. But that misses the point - Intent! Is that fair? But that is what the law provides, and that is how it had been upheld. Ownership of property, practice of profession, registration as a voter (okay). May a dual-citizen be elected or appointed to public office? No. Relate this essentially to Section 18 of Article 11. Article XI Accountability of Public Officers SECTION 18. Public officers and employees owe the State and this Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law. Section 18 of Article 11 requires for purposes of public officership to maintain allegiance to the Republic of the Philippines. Therefore, it implies the matter of sole allegiance to the Republic of the Philippines. Dual citizenship does not arise only by reason of RA 9225. There are several reasons, highlighted in the case of Edu Manzano, and of the Paranaque Congressman. Edu Manzano was born of Filipino parents in America. So, Jus Sanguinis, Upon birth, dual citizen. When he landed first in the Philippines and ran for Mayor, or Vice Mayor of Makati, he stated that he is of a natural-born citizenship status. The Supreme Court held that although he was born there of Filipino parents, all his life, he lived here, he went to church, he worked here, all his marriages were here. All of these acts indicate that it all happened here and he effectively renounced his American citizenship. He even tore up his American passport in a press conference. Assuming that he is a solely citizen, but do not confuse dual allegiance with dual citizenship. Do not mistake dual allegiance with dual citizenship because dual citizenship may be 9



accidental. Dual allegiance is always voluntary. Dual citizenship will always be found on the ground of loyalty. CORDOGA v. COMELEC G.R. No. 176947, Feb. 19, 2009 I cannot grasp the concept of dual citizenship, much less dual allegiance. The point is, the ordinary gentleman cannot be loyal to two at the same time. Kailangan isa lang. Now, he was considered qualified because he was considered as a natural born Filipino citizen only, having effectively renounced his American citizenship. That was done long before RA 9225. I mentioned the case of Tambunting, because this case arose when RA 9225 was already there. So the contention against Mr. Tambunting was that he cannot be considered as a natural born Filipino simply because he had not take either of the oaths in RA 9225. The SC said that he need not take an oath under RA 9225 precisely because like Edu Manzano, who is similarly situated, all of this acts when collectively taken, constitute a renunciation of his American citizenship. Therefore, a possession only of solely natural born Filipino status. [The third] situation where dual citizenship arises is when a Filipina marries an alien. Recall that under our present charter, a Filipina who marries an alien retains her Philippine citizenship unless she loses it upon express renunciation of the same. What if the laws of the country of her alien spouse makes her ipso facto a citizen of that country? She becomes a citizen of that country while retaining her Philippine citizenship. Hence, she is a dual citizen. In a similar way, if the children of that woman would be considered under the laws of the country of their stepfather as ipso facto citizens of that country, they do not lose that Philippine citizenship as well. Hence, they are dual citizens. The fourth situation is in the case of RA 9225. Let us go back to the basic point. May dual citizens be appointed or elected to public office? The answer is a categorical no. This is rooted upon Section 18 of Article 11 as I have already explained. How then can these dual citizens be qualified or elected to public office? They must take the second oath under RA 9225, otherwise known as the renunciation oath.

forms of citizenship. When he takes the second oath, he is no longer a dual citizen. Now, he is solely a natural born Filipino, making him eligible for appointment and election to public office. Caballero v. Comelec G.R. No. 209835 | September 22, 2015 Petitioner, born and raised in Batanes Islands, migrates to Canada and becomes a naturalized Canadian citizen. Petitioner decides run for mayor in Batanes. Let’s say he decides to run in July 2009. He decides to take the renunciation oath in July. October filing of COC, he files after taking the renunciation oath in July. Is he eligible? No, because because at the time of filing he was a resident of Canada. Remember, for eligibility of local elective office you have to resident for atleast a year. What if he argues that the stamps on his passport indicates that he has been traveling to and from the Philippines even after he was naturalized, will the same count as revertendi? No, because he became a naturalized Canadian citizen and a requirement of that is establishing permanent residence in Canada. He cannot claim to have permanent residence there, and have domicile here. Thus, he was qualified in terms of citizenship, but disqualified in terms of residence. Note: Dual citizens cannot be appointed and elected to public office because the Constitution requires that they maintain continuing sole allegiance to the Philippines.

So this gentleman, Mr. Hernando he became a naturalized American but when he saw the opportunity, he came here. He came home. Walang problema sa residence. He took on his domicile here. He established his domicile long before the election so qualified siya in terms of residence. Wala rin problema sa citizenship. He took straight the renunciation oath. One basic point. I mentioned two oaths. The first oath gives rise to dual citizenship. The second oath, you are solely a filipino citizen. Is the first oath under 9225 a pre-requisite for the second oath? The answer nd is no. You may go through the 2 oath under 9225. And this is what this gentleman did in Makiling vs. COMELEC.

Renunciation Oath is the traditional citizenship oath. It requires the (1) pledging of allegiance to the Philippines and (2) renunciation of any and all 10



Maquiling v. COMELEC G.R. No. 195649, April 16, 2013 Arnado was a natural born Filipino citizen, but lost his citizenship upon naturalization as citizen of United States of America. Sometime on 2008 and 2009, his repatriation was granted and he subsequently executed an Affidavit of Renunciation of foreign citizenship. On November 2009, Arnando filed for a certificate of candidacy and won the said election. But prior from his declaration as winner, a pending action for disqualification was filed by Balua, one of the contenders for the position. Balua alleged that Arnando was not a citizen of the Philippines, with a certification issued by the Bureau of Immigration that Arnando’s nationality is USAAmerican and a certified true copy of computergenerated travel record that he has been using his American passport even after renunciation of American citizenship. A division of the COMELEC ruled against Arnando but this decision was reversed by the COMELEC en Banc stating that continued use of foreign passport is not one of the grounds provided for under Section 1 of Commonwealth Act No. 63 through which Philippine citizenship may be lost. Meanwhile, Maquiling petition that should be declared winner as he gained the second highest number of votes. SC: The use of foreign passport after renouncing one’s foreign citizenship is a positive and voluntary act of representation as to one’s nationality and citizenship; it does not divest Filipino citizenship regained by repatriation but it recants the Oath of Renunciation required to qualify one to run for an elective position which makes him dual citizen. Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil and political rights accorded by the state to its citizens. It likewise demands the concomitant duty to maintain allegiance to one’s flag and country. While those who acquire dual citizenship by choice are afforded the right of suffrage, those who seek election or appointment to public office are required to renounce their foreign citizenship to be deserving of the public trust. Holding public office demands full and undivided allegiance to the Republic and to no other. It is a continuing requirement that must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. Therefore, the Court held Arnando disqualified for any local elective position as provided by express

disqualification under Section 40(d) of the Local Government Code. Popular vote does not cure this ineligibility of the candidate. Otherwise, substantive requirements set by the Constitution are nugatory. Furthermore, there is no second-placer to speak of because as reiterated in the case of Jalosjos v. COMELEC, when the ineligibility was held to be void ab initio, no legal effect is produced. Hence among the qualified candidates for position, Maquiling who garnered the highest votes should be declared as winner. So he ran. Eligible siya. In the polls of the campaign, he continued using his American passport 4 or 5 times. This was established. The Comelec disqualified him. The COMELEC considered his continued use of his American passport as a recantation of the renunciation oath. If there were a recantation of the renunciation oath, what would be the citizen statues of someone who has taken it? He reverts back to the citizen status that he had before the renunciation oath. This case of Arnaldo. Naturalized American siya. He went straight to renunciation oath. Recanted. So he became a naturalized American. If in the meantime he took the first oath and then he is considered to have recanted the renunciation oath, then he goes back to becoming a dual citizen. That’s how it works. The COMELEC’s disqualification was upheld. Disqualified siya. Tama ang Comelec. The renunciation oath is recanted. Here is our problem. He ran for that 2010 to 2013 election. He won. The COC that was the subject of Maquiling v. Comelec was his COC for the 2010 election which he filed in 2009. He came to learn about Maquiling v. Comelec on Apr. 15, 2013. By then, he was already running for reelection. For which nd reason, he filed his 2 COC for his reelection day in October of 2012. Note: When he filed in October 2012, of course he didn’t know yet that he will be finally disqualified because the decision was promulgated on April 2013. It meant that his 2012 COC was also void ab initio. This was again invoked against him when he was reelected for the 2013-2016 term. This was the case of Arnado v. Comelec. He was disqualified when the 2013-2016 term was about to end.

11



Recap: It was only in April 2013 that he was finally considered to have recanted his renunciation of which served to disqualified him from the 20102013 election nd

In Arnado v. Comelec, when he filed his 2 COC, he was still considered NOT a natural-born citizen, although he came to know it about only 5 months later, he is again disqualified with respect nd to the 2 COC. Point of this case: He ran again for the 2016-2019 term. Q: May someone whose renunciation has been decreed as recanted, may take it again? Therefore, reacquire PH citizenship? A: YES. There is nothing prohibiting that act. For nd a 2 reelection bid, for the 2016-2019 term, sana naman nagrenunciation oath siya before he filed rd his 3 COC. This is the unfortunate case of Mayor Arnando. With respect to his second re-election bid, he was arrested because of illegal possession of firearms and murder. He continued his term because mere arrest and prosecution does not disqualify a candidate. He would have to be convicted. Q: If he had taken renunciation oath again, he would serve fully the 2016-2019 term. How many more terms he is eligible?

(d) (e)

solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election.

As Title

to

SEC. 68 Petition for Disqualification

SEC. 78 Petition to Deny Due Course or to Cancel a Certificate of Candidacy

Can be filed anytime from filing of the COC up to proclamation.

Can be filed anytime within 25 days from the filing of COC.

A: 2, because the first two terms, he was ousted, there was an involuntary interruption. Section 68 and Section 78 of the Omnibus Election Code Sec. 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a)

given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions;

(b)

committed acts of terrorism to enhance his candidacy;

(c)

spent in his election campaign an amount in excess of that allowed by this Code;

As to Deadline

You can file it before proclamation but it will be decided matagal. It usually happens that the decision or adjudication here would be at the time that the disqualified candidate would have already been an incumbent officer, in which case he would be de jure unless mentioned in that.

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Aratea v. COMELEC G.R. No. 195229 October 9, 2012 (Important Election Law Case) Justice Carpio said that the deadline for Sec 78 petition would be within 25 days from the filing of the COC but not later than 5 days from the deadline for the filing of COCs. For example: The period for filing COCs is from October 1 – 5. If we were to follow section 78 therefore the deadline for filing a sec 78 petition should be up to October 30 (25 days after the filing of the subject COC which was filed October 5 but if we were to follow the requirement added in Aratea, the deadline would be up to October 10 because it was stated “but not later than 5 days from the deadline of filing the COCs.” Sir: This is what you do. You disregard that additional requirement. Why? Because it had long ago been declared unconstitutional for being ultra vires, it was only the COMELEC which added that. This is Fermin v. Comelec, Loong v. COMELEC and another one. Justice Carpio might have overlook this ruling. DISREGARD the additional requirement. Sir: I asked Chairman Brillantes about it, on why it is still retained in the COMELEC rule 7 although it has already been declared as unconstitutional. His response was that it was only for the lawyers to think that it is already the deadline and so the cases filed in comelec would be lessened. (“Hayaan mo nalang yan dyan, di naman yan alam ng abogado, pag nakita nila yan dyan, iisipin nila deadline na so kokonti kaso namin”) Sec. 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country

shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. As to grounds, there are only two grounds for a Sec 68 petition: 1. Collective Ground: Commission of election offenses (e.g. vote buying, overspending, illegal campaigning, premature filing etc) 2. Permanent Residence abroad In Fermin v Comelec, a third ground was added by Comelec, which is the “non-registration as a voter”. Again this is ultra vires, unconstitutional. Fermin v COMELEC G.R. No. 179695, December 18, 2008 Facts: Fermin was a voter of Brgy. Payan, Kabuntalan. He asked for the transfer of his registration records to Brgy. Indatuan where he claims to be a resident for 1 yr and 6 mo. Then North Kabuntalan was created (to which Brgy Indatuan became a component of). Fermin ran as Mayor of North Kabuntalan. A disqualification case was filed against him for not having the required residency. Fermin says that his change of residence even prompted him to apply for the transfer of his voter's registration record from Barangay Payan to Barangay Indatuan. Moreover, the one-year residency requirement under the law is not applicable to candidates for elective office in a newly created municipality, because the length of residency of all its inhabitants is reckoned from the effective date of its creation. Held: The mere filing of a petition and the allegation that a candidate does not reside in the locality is not enough to effect the cancellation of his CoC. Also, the court said that the other provisions of law referring to "disqualification" do not include the lack of the one-year residency qualification as a ground. The petition does not state any of these grounds for disqualification so it cannot be categorized as a "Section 68" petition.

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Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. Sec 78 Petition Ground: Deliberately making a false material misrepresentation as to eligibility The keyword here is “deliberately”. It must be felonious, criminal and with intent to deceive and defraud. The misrepresentation must be material and if not material to the eligibility, then it cannot stand as a ground. What has been acknowledged in jurisprudence as conditions supportive of this ground? Here are some cases: In the case of the Villafuertes in Camarines. This case was about a grandfather and his grandson both vying to be governor. The lolo sued his grandson contending that the name he indicated in his Certificate of Candidacy is not the same as his name in his certificate of live birth. Misrepresentation daw. Sabi ng Supreme Court that's not material. Eligibility is not affected by the name. Misrepresentation as to Citizenship Citizenship? Of course it is a ground. You claim to be a natural-born citizen, but you are not, then you are ineligible/disqualified under Section 78. Misrepresentation as to Age. Here is a senatorial candidate who lists in his Certificate of Candidacy the fact that she is 51 years old but she is actually 64. Can she be disqualified on the basis of Section 78? Would that have been deliberate? Of course, deliberately misrepresented us to her age. But would it be material? The age qualification is not defined. So 51 or 61, she would have been qualified.

But can age be a material misrepresentation? Yes. For instance, you claim you are 21 and therefore eligible to run for councilor but you are not. That is a misrepresentation. Misrepresentation as to Residence Can there be a misrepresentation as to residence? Of course. You claim to be a resident but you are not, then you may be disqualified under Section 78. You claim to be a resident of this municipality where you seek to be a mayor. It turns out you are a permanent a Green Card holder and therefore a permanent resident abroad (in the United States). What should he file, Section 68 or 78? You can file either. You can choose. (But later on because you are my students you will choose 78. I will tell you later why it's better to choose 78) Misrepresentation as to Registration as a Voter Can there be a misrepresentation as to registration as a voter? Yes. That's a qualification. Sabi mo botante ka tapos hindi ka registered, disqualified. These are subjective qualifications. Let's go to other cases. Disqualification as Accessory Penalty You claim to be eligible, but you are actually laboring under an accessory penalty of perpetual absolute disqualification by reason of your conviction in a qualified seduction case. That's misrepresentation. Disqualification COMELEC Cases The candidate claims to be eligible but he has just served 3 consecutive terms, = ineligible, disqualified under Sec. 78. Section 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. Sec. 3 of Art. IX-C if you are going to take a quasijudicial matter to the attention of Comelec, at the 14



first instance, it should be tackled by any Division and not En Banc. The quasi-judicial authority of the EnBanc is only by way of an appeal triggered by a Motion for Reconsideration from the adjudication of either Division. Jalosjos v. COMELEC GR No. 205033, Jun 18, 2013 Facts: Jalosjos was being disqualified under Sec. 78 on the basis of the misrepresentation regarding his accessory penalty. COMELEC EnBanc meets and receives a report, a letter, to the effect that Jalosjos is disqualified on the basis of the 78 petition before a Division of the COMELEC. Jalosjos was perpetually disqualified. COMELEC EnBanc motu propio cancelled his Certificate of Candidacy of Jalosjos. Jalosjos challenged this act by the EnBanc. Issue: Whether the disqualification done by the COMELEC is valid? Yes. Ratio: The COMELEC claimed that when it disqualified Jalosjos by cancelling his Certificate of Candidacy, they were exercising their administrative functions and not their quasijudicial function. The SC sustained the COMELEC. The disregard by the Division proceedings was justified because the COMELEC disqualified on the basis of its administrative functions. he COMELEC's denial of due course to and/or cancellation of a CoC in view of a candidate's disqualification to run for elective office based on a final conviction is subsumed under its mandate to enforce and administer all laws relating to the conduct of elections. A few years earlier we have the case of Cerafica v. COMELEC. Cerafica v. Comelec G.R. No. 205136, 2 Dec. 2014 A girl who is not yet 21 y/o filed a CoC to run for City Councilor. [Sir’s joke: She posted her CoC on social media, and a friend commented to her post saying “Gaga, di ka pa 21.”] She withdrew her CoC and was substituted by a friend, Cerafica, who was of age. Comelec en banc convened and denied the substitution. The basic precept here is that there can be a valid substitution if there is a valid CoC. The Comelec en banc said that the CoC is invalid because the girl made a misrepresentation about her age. When Cerafica questioned the decision of Comelec, the Comelec raised the defense that it was acting on its administrative functions and not

on quasi-judicial functions. The Supreme Court did not sustain the defense of Comelec. The Supreme Court said there should have been a 78 petition that was filed before a substitution can be validly decided upon by the Comelec en banc.

What are the differences between Jalosjos and Cerafica? In Jalosjos, the basis is an accessory penalty for qualified seduction. The conviction is a judicial notice and need not be proved. In Cerafica, the matter of age is not a judicial notice and must be proved. Therefore, it requires a prior proceeding before the Comelec is allowed to act. Ty-Delgado v. HRET G.R. No. 219603, 26 Jan. 2016 There is this person who was convicted of libel, a crime involving moral turpitude. Three years after his service of sentence, he filed a CoC. Should he be allowed to run? No. For a convict to be able to file a CoC, he must wait for five years after he had served his sentence. A 78 Petition is proper in questioning his eligibility. Engle v. COMELEC GR 215995, (Jan. 19, 2016) James Engle was running for vice mayor of Babatngon, Leyte. He submits a Certification of Nomination and Acceptance (CONA). In the course of the campaign, he dies. His wife, Marcelina Her opponent, Menzon filed a petition to deny due course to the COC on the ground of failure to submit on time the Chapter President’s authorization to sign Engle’s (husband’s) CONA. Engle, substituted him and submits a similar CONA. The original CONA was investigated by the law department of the COMELEC (substantially the same CONA submitted by the wife). Wife won and was proclaimed. Law department of the COMELEC handed down the findings of invalidity of the CONA. WN the COMELEC can disqualify Engle on the basis of the defective CONA. NO. The requirements for COC are presecribed in sec. 74 of the Omnibus Election Code. Everything- name, age, everything pertinent to the matter of eligibility. There are substantial and formal requirement. CONA is among the formal requirements.

15



If the COC is challenged on the basis of a formal defect and the adjudication against the COC is handed down before proclamation, the adjudication is fatal to the COC. In other words, it could be invoked to disqualify the candidate. But if the adjudication invalidating the COC on formal defects were to be adjudicated upon after the proclamation, the adjudication is to be disregarded to give way to the sovereign will. Election rules regarding matters of form are mandatory only before the elections and directory after the elections. Note: Formal defects, eg. Notarization. NOT citizenship. I include this case to make a point. Hindi nga nadisqualify yung kandidato but the matter of misrepresentations as to CONA, it can be a ground for a 78 petition. Fugitives From Justice Two cases involving candidates who claim to be eligible but it turns out that there were allegations that they are fugitives from justice. Fugitives from justice would not only include those that evade prosecution but also to those who evade punishment. After proceedings, the Court found that they are not really fugitives from justice. But here is the point, being a fugitive from justice can be a material misrepresentation. Those are all the cases that would be by way of support or explanation on how a 78 petition can proceed. Blanco v. COMELEC G.R. No. 180164, June 17, 2008 Election offenses are dual character. It can be an administrative election offense; it can be a criminal election offence. 68 is an administrative election offense. But these elections offenses can give rise to both administrative and criminal liability. Blanco was caught vote-buying. He was disqualified for that election. Subsequently, when he ran again, that disqualification in the previous election was invoked against him in an effort to disqualify him for the second election. SC said that that was an administrative disqualification and is applicable only for that certain election. If that disqualification was pursued via a criminal case, and there would be a conviction, then the penalty of disqualification, that penalty can be invoked for all subsequent elections.

Effects of disqualification of 68 and 78 68 Considered as a bona fide candidate up to the point of time of disqualification.

78 Certificate of candidacy is void ab initio

For 68: Valid siya as a candidate until the time he is disqualified, out na siya. If he would already be serving at the time of his disqualification, then he would have served as de jure officer. Not de facto. For 78: Produces no effect whatsoever. The same effect shall arise from the disqualification under Section 69: Nuisance candidacies. Sec. 69. Nuisance candidates. – The Commission may motu propio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate. A nuisance candidate’s COC shall also be void ab initio. Election law principle GR: A vote for a nuisance candidate shall not be considered as stray but shall be counted in favor of the bona fide candidate. Question: Does that rule still apply today considering the automation of elections? YES (Dela Cruz v. Comelec, citing Martinez v. Comelec) Despite the automation of our elections, the vote for a nuisance candidate would still be considered as not stray but shall be counted in favor of the bona fide candidate. Explanation: This declaration of nuisance candidacy usually come at a time when the ballots have already been printed. The name of the nuisance candidate is already there. Therefore, the potential for confusion is already there. Therefore, that rule remains. 16



Ex: That rule, however, does not apply in cases involving nuisance candidates with respect to multi slot positions or offices. (Aquino v. Comelec) For example, the position of sangunian, konsehal, provincial board of directors (Bokal). Federico vs. COMELEC G.R. No. 199612, January 22, 2013 Facts: This shows how substitution works. Governor Sanchez was running for governor again in Batangas, his wife Mrs. Sanchez for municipal mayor. There are two deadlines as prescribed by the COMELEC in substitution. 1. December to those COCs filed in October Three grounds for substitution are allowed: a. Death b. Disqualification c. Withdrawal by the candidate of his COC 2. Midday of noon of election day Only two grounds allowed by the COMELEC: a. Death b. Disqualification Governor Sanchez, a few days before election day, was killed. Mrs. Sanchez, therefore, withdrew her COC for municipal mayor because she cannot run for two positions. She substituted her husband. Federico substituted Mrs. Sanchez for the municipal mayor position. Ruling: There were two substitutions. The first was valid because the ground was death of the candidate. The second was invalid because the ground was withdrawal of the COC by the candidate. This ground is no longer allowed in the second deadline. Tagolino vs. HRET G.R. No. 202202, March 19, 2013 Facts: This is the case of Richard and Lucy Gomez. Richard ran for Congressman in Ormoc, claiming to be a resident but he was not. He was disqualified and was substituted by Lucy. Lucy won. She served for about 2 years and 10 months. That’s when the decision of Tagolino vs. HRET was handed down.

Tagolino v. HRET (Gomez case) G.R. No. 202202, March 19, 2013 This was handed down saying that the substitution was invalid because the certificate of candidacy of Gomez was void ab initio on the basis of 78. Final area of distinction, as to who takes of over. In a 68 disqualification, in the context of local elections/ local elective office. Ejercito v. COMELEC G.R. No. 212398, November 25, 2014 The case Ejercito (el presidente) who was disqualified for over spending. The basic rule in Ejercito v. COMELEC, overspending is assessed not only in the basis of the personal expenses of the candidates. It is aggregated with all the contributions and actually spent. Recall that when he was disqualified in the case, who took over? It was the vice-governor. Successional rules were applied because precisely he was a de jure officer. In a 78 petition, who takes over? If the proclaimed winning candidate is disqualified on a 78 petition who takes over? Second placer? For clarification, what is a second placer? Topacio v. Paredes, Labo v. Comelec, Vivaldo v. Comelec (don't take this down, I'm just impressing you) A second placer is not just a second placer. He had been rejected by the electorate. Therefore, the second placer rule tells us that the second placer does not deserve or is not qualified to be proclaimed, instead, if the winning candidate is disqualified. Why? Because he was rejected. The only time the second placer would be eligible to be proclaimed in lieu of the disqualified winning candidate would be if the electorate knew of the disqualification of the winning candidate and such knowledge was of such notoriety that the electorate can be considered as having wasted its vote. That's the only time that the second placer can be actually be proclaimed instead. So you do not say the second placer. I ask again, who takes over in a 78 petition?

Ruling: The substitution was invalid because the COC of Richard was void ab initio on the basis of Section 78.

17



PROCLAIMED WINNING SECOND PLACER

CANDITATE

v.

The proclaimed wining candidate COC is invalidated, void ab initio à meaning he was NEVER a candidate at all. So, the second placer is ACTUALLY the first placer because the proclaimed winning was never a candidate at all. So that’s just it. SECTION 78 & PRIOR FINAL JUDGEMENT, Exceptions Final pointers on Sections 68 & 78

COURT

When this case of Poe-Llamanzares v. COMELEC was promulgated in 2016, I think a lot of people were misled because of the statement of the SC, stating this “The COMELEC gravely abused its discretion because it disqualified Grace Poe on the ground of citizenship in connection with Section 78. The COMELEC is not equipped with such adjudicatory power to disqualify on the basis of 78 without a prior final judgment on the matter. People wonder that is not allowed to petition to COMELEC without a prior final court judgement. HOWEVER, if the ground for the section 78 petition was based on self-evident facts which are of unquestioned and of unquestionable veracity and judicial confessions, then section 78 petition can still be tackled by COMELEC en banc.

held that the COMELEC cannot adjudicate a 78 petition. However, it must be noted that in the case of Poe-Llamanzares, the SC clearly stated that if the 78 petition were founded on selfevident facts which are of unquestionable veracity, all of which are based on selfconfessions, then 78 petitions can proceed with the COMELEC. Q – Is there a petition declaring one as a registered voter in court? There is none. So, this is a self-evident fact. You just check the register of deeds. Thus, COMELEC can decide. As to the matter of residence, is there a petition to file in court what is residence? No. Thus, this is also a self-evident fact. SELF-EVIDENT FACTS MENTIONED BY SIR 1. Registered Voter 2. Residence 3. Three Termer 4. Age (question of looking at Birth Cert) 5. Citizenship 6. Recantations Note – Citizenship, requires prior judicial adjudication. As to recantation, in Maquiling v. COMELEC, is a self-evident fact. This has been affirmed in Francisco v. COMLEC (2018). Francisco v. COMLEC (2018) – COMELEC can still proceed with 78 petitions even without prior court judgments.

The discussion of this was followed by a reference with the case of Marcos v. COMELEC. In Marcos v. COMELEC, SC said that COMELEC is not allowed to have adjudicatory power based on 78 with the following Three Reasons 1. Ineligibility of a candidate should not be tackled by COMELEC unless the candidate is first proclaimed. Question of eligibility becomes important only if the candidate is proclaimed as the winner. 2. A 78 petition is intended to be a summary proceeding. 3. Laws frown upon pre-proclamation controversies. Sir: Those reasons confuses people because of the proclamation in Poe-Llamanzares. Where it 18



POLITICAL LAW REVIEW Atty. Carlo Cruz October 23, 2019 Successional Rules under Art. VII Section 7. The President-elect and the Vice President-elect shall assume office at the beginning of their terms. If the President-elect fails to qualify, the Vice President-elect shall act as President until the President-elect shall have qualified. If a President shall not have been chosen, the Vice President-elect shall act as President until a President shall have been chosen and qualified. If at the beginning of the term of the President, the President-elect shall have died or shall have become permanently disabled, the Vice President-elect shall become President. Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall act as President until a President or a Vice-President shall have been chosen and qualified. The Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or a VicePresident shall have qualified, in case of death, permanent disability, or inability of the officials mentioned in the next preceding paragraph. Section 8. In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and VicePresident, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified. There are essentially 4 situations covered under these provisions: 1 & 2. If the president-elect shall not have been chosen or the president-elect shall not have qualified

The president elect is someone who was proclaimed as the winner but has not yet assumed office because his term of office will start at 12nn, 30th day of June. This particular commencement of the term is fixed by the Constitution and can only be changed by amendment. Distinguish this from the terms of the legislators that are also fixed at 12nn, 30th day of June but these commencements can be changed by law provided the 3 year or 6 year terms are unaltered. Let us say that the canvassing done by the Congress as of at 12nn, 30th day of June had not yet been completed for the president (not: the proclamation of the Vice President can actually precede that of the President). The rule is that the Vice President elect is allowed to act as the President. In a similar vein, if the President elect shall not have qualified as of 12nn, 30th day of June for instance at 10 am papunta pa lang siya sa ceremonial site at nabangga sasakyan niya. He sustains injuries and has to be hospitalized. This would be mean that by 12nn, 30th day of June he would not have qualified because he was not able to take his oath of office which is the qualifying act. In such a situation, the Vice President elect is allowed to act as the President. Understand that President is the President wherever he may be. Wherever he may be outside of our territorial jurisdiction he can exercise all the powers of the presidency. His absence from the territory does not mean that the Vice President acts in his stead. There are only two instances in the Constitution where the Vice President is allowed to act as the President. One of them is these the two categories. The only other time when the Vice President is allowed to act as President is based on Sec. 11 or the inability of the President to discharge his duties upon receipt by the Speaker of the House and the Senate President of the note from the President himself or the majority of the cabinet members. Section 11. Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President. 19



Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate and to the Speaker of the House of Representatives, their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need of call. If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office. Upon receipt of such note, the Vice President acts as the President. He can exercise all the powers of the President. He can pardon, veto or approve a bill, declare martial law and even make permanent appointments.

by the elected President within ninety days from his assumption or reassumption of office. Upon the restoration of power of the elected president, he has 90D to revoke the appointments of the acting VP. In either of those two instances, failure to choose or failure to qualify, the VP elect or if in the mean time, he becomes VP, the VP acts as the President. rd

th

2

3 and 4 cases when VP becomes president 3. When the president dies, the VP becomes president. 4. When president becomes permanently disabled • Problem in “permanent disability”, it’s a very difficult ground o What if he loses his pinky? In the Labor Code, this loss is a permanent disability. Do you apply the same standard? o What if president, during the incumbency, he goes line (coma?), becomes deaf… o But Franklin Eleanor Roosevelt administered a world war while he was strapped to his wheel chair because of polio. o CONCLUSION: Do not apply the standards prescribed in the Labor Code to trigger the successional rules in the presidency. o So when will this rule apply? The closest would be Alzheimer’s disease. The only problem is who would admit to having this disease? ACTUAL SUCCESSIONAL RULES:

Art. VII SEC. 14. Appointments extended by an Acting President shall remain effective, unless revoked

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Art. VII, SEC 7. The President-elect and the Vice-Presidentelect shall assume office at the beginning of their terms. If the President-elect fails to qualify, the Vice-President-elect shall act as President until the President-elect shall have qualified. If a President shall not have been chosen, the Vice-Presidentelect shall act as President until a President shall have been chosen and qualified. If at the beginning of the term of the President, the Presidentelect shall have died or shall have become permanently disabled, the Vice-President-elect shall become President.

Art. VII SEC. 8. In case of death, permanent disability, removal from office, or resignation of the Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives shall act as President until a President or a Vice-President shall have been chosen and qualified. The Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified, in case of death, permanent disability, or inability of the officials mentioned in the next preceding paragraph.

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President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and VicePresident, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified. The Congress shall, by law, provide who shall serve as President in case of death, permanent disability, or resignation of the Acting President. He shall serve until the President or the VicePresident shall have been elected and qualified, and be subject to the same restrictions of powers and disqualifications as the Acting President. Same discussion on death and permanent disability. Resignation as distinguished from abandonment, as a mode of termination of official relations, must be attended to by certain formalities. 1. Resignation letter 2. Submitted to: a. The authority prescribed in the law, authorized to receive it or b. One who is authorized to effect or to fill the vacancy. § Eg. Congress by way of special election, the president by way of appointment Estrada v. Desierto G.R. No. 146710-15 and G.R. No. 146738 2001-03-02 Former President Joseph Estrada was elected during 1998 elections. Sometime in October 2000, however, several allegations of corruption and of receiving millions of pesos from jueteng lords were made against him before the Senate Blue Ribbon Committee. Some Congressmen moved to impeach Estrada which caused several sectors, former Presidents Aquino and Ramos to call for Estrada’s resignation. Some senior advisers of Estrada as well as a number of his cabinet resigned from their positions. Impeachment trial commenced with Chief Justice Davide presiding. The impeachment trial was put to a halt after the public prosecutors tendered their collective resignation before the Impeachment Tribunal

caused by the decision of 11 Senators not to open the second envelope (an alleged secret account of Erap amounting to 3.3B Pesos in the name of Jose Velarde). The next day, EDSA 2 commenced with the PNP and AFP joining the crowd. WN Erap resigned as President- YES. Using the totality test, the Supreme Court held that petitioner resigned as President - which was confirmed by his leaving Malacañang. Facts show that petitioner did not write any formal letter of resignation before he evacuated Malacanang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his acts and omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue. In the press statement,

release

containing

his

final

1. He acknowledged the oath-taking of Arroyo as President of the Republic albeit with reservation about its legality; 2. He emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation. He did not say he was leaving the Palace due to any kind of inability and that he was going to re-assume the presidency as soon as the disability disappears; 3. He expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the people as President; 4. He assured that he will not shirk from any future challenge that may come ahead in the same service of our country. Petitioner’s reference is to a future challenge after occupying the office of the president which he has given up; and 5. He called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the presidency.

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Resignation is a factual question and its elements are beyond quibble: (1) there must be an intent to resignand (2) the intent must be coupled by acts of relinquishment. The validity of a resignation is not governed by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect. A public official has the right not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a public official is facing administrative or criminal investigation or prosecution, such resignation or retirement will not cause the dismissal of the criminal or administrative proceedings against him. He cannot use his resignation or retirement to avoid prosecution. Sir’s point: If Erap would have just boarded the presidential yacht and waived, he could have still insisted that he was president. Upon leaving Malacanang, if he had just waved goodbye he could have still insisted that he was president. But no, he had to issue a press release. He acknowledged the oath taking of Gloria as President. He said that he is not shirking any future challenge that he may face to serve the nation. He said that he is doing that for the purpose of starting the healing process, the national reconciliation. If he could have just left and waved good bye he would still president. Because of that the court concluded in the case that taken altogether all of those statements would indicate his intention to abandon his post. He was considered as having resigned and the court said this is why the presidency is not in “the past tense” (di ko sure kung tama to; di ko marinig). He resigned, Gloria took over, successional rule applied. Ground for Removal Successional rule

in

Triggering

the

Note that it does not say there removal by impeachment. So the basic understanding today in that statement in secition 8 is that any ouster from office. SECTION 8. In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and

Vice-President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified. The Congress shall, by law, provide who shall serve as President in case of death, permanent disability, or resignation of the Acting President. He shall serve until the President or the VicePresident shall have been elected and qualified, and be subject to the same restrictions of powers and disqualifications as the Acting President. Our basic understanding is that the removal here is to be equated with the removal that can arise from an impeachment proceeding. But I will give you situations that would indicate, otherwise… well let us sat that the president, well you know and we have tackled that the f th is not immune from all suits. He may be subject class, he may be a respondent in an impeachment proceeding he is not immune, precisely because of the constitutional provision in this regard. Well he is also not immune from election protests or even quo warranto suits that may be filed against him as acknowledged in Art. 7, Sec. 4 which confers upon the SC sole judgeship over all contests pertinent to the elections, returns, qualifications of the President and Vice President. SECTION 4. xxx The Supreme Court, sitting en banc, 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. Let’s tackle a few situations here. Let us say that a sitting president is subject to an election protest. Well let us liken it to the situation of Bong bong and Leni. Mali ang bilang. Is he immune from that suit? No. Nag bilangan, nag revision of ballots. It turns out mali nga ang bilang. The protestant had obtained the highest number of votes. In essence the President is removed by reason of the adjudication of the electoral tribunal. That is a removal, but it is not a removal which authorizes the Vice President to succeed pursuant to Sec. 8. Who takes over? It is the protestant. SECTION 8. In case of death, permanent disability, removal from office, or resignation of 22



the President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice-President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified. The Congress shall, by law, provide who shall serve as President in case of death, permanent disability, or resignation of the Acting President. He shall serve until the President or the VicePresident shall have been elected and qualified, and be subject to the same restrictions of powers and disqualifications as the Acting President. Let us tackle it from another perspective. Let us say that the election protest launched against the sitting president would be by way of an election offense. He bought votes. It is proved through the SC acting as the Presidential Electoral Tribunal. But he is ousted from the office. You remember our discussion on Section 68. Sec. 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having a. given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; b. committed acts of terrorism to enhance his candidacy; c. spent in his election campaign an amount in excess of that allowed by this Code; d. solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or e. violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.

The disqualification based on that provision the officer disqualified would be considered as a bona fide candidate and during his incumbency a de jure officer. There is in that event also a removal in the generic sense. Well who takes over? This time we apply the successional rule in Section 8. Consistent with the pronouncement in Ejercito v Comelec. Let us say that the election protest is a quo warranto suit launched against the sitting president. Let us say the ground involved in support of that action would be citizenship. He claimed to be a natural born citizen established before the electoral tribunal, the SC, that he is not a natural born citizen. So that would in effect be a Section 78 disqualification. We recall, that Section 78 disqualification result in the reconsideration of the COC’s of the disqualified candidates to be void ab initio. Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. They were never candidates at all. So you see class, in that circumstance, who takes over? Not the vice-president but the one who got the highest number of votes after the disqualification of the President. So that is what I wanted to mention by way of additional discussions with respect to Sec. 68 and 78 as they operate on Sections 7 & 8 of Art. VII. Section 7. The President-elect and the Vice President-elect shall assume office at the beginning of their terms. If the President-elect fails to qualify, the Vice President-elect shall act as President until the President-elect shall have qualified. If a President shall not have been chosen, the Vice President-elect shall act as President until a President shall have been chosen and qualified.

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If at the beginning of the term of the President, the President-elect shall have died or shall have become permanently disabled, the Vice President-elect shall become President. Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall act as President until a President or a Vice-President shall have been chosen and qualified. The Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or a VicePresident shall have qualified, in case of death, permanent disability, or inability of the officials mentioned in the next preceding paragraph. Section 8. In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and VicePresident, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified. The Congress shall, by law, provide who shall serve as President in case of death, permanent disability, or resignation of the Acting President. He shall serve until the President or the VicePresident shall have been elected and qualified, and be subject to the same restrictions of powers and disqualifications as the Acting President. We now proceed to the House of Representatives which consist of two kinds of representatives – district and party-list representation. For district representatives, I enjoin you to remember the adjectives: Compact, Contiguous, and Adjacent, for purposes of establishing a legislative district. The creation of legislative districts apart from those created on the basis of the Constitution as indicated in that ordinance appended to the Constitution, if you want to establish legislative districts, you have to make law. If we have a province which is lawfully created. Is that province automatically one legislative district? The answer is YES. But for the lawfulness of the

creation of that province, we have to reckon with the criteria created in the Local Government Code: Revenue, the matter of alternative requirements (e.g. 2000 sq. km contiguous territory or 250,000 inhabitants. Kung swak with these requirements, valid yung creation ng province therefore it is automatically one legislative district. To create a province, do you require a plebiscite? Yes. So let us say this province now exists. A few years later, a law is passed dividing it into two legislative districts. This is Aquino v. COMELEC. For the validity of that redistricting law, should each of the new districts be comprised of either 250k sq. km contiguous territory or the 250,000 inhabitants? NO. Those are criteria to establish PROVINCES, not districts. Quoting Mariano v. COMELEC: “Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with section 5(3), Article VI of the Constitution for as of the latest survey (1990 census), the population of Makati stands at only four hundred fifty thousand (450,000). Said section provides, inter alia, that a city with a population of at least two hundred fifty thousand (250,000) shall have at least one representative. Even granting that the population of Makati as of the 1990 census stood at four hundred fifty thousand (450,000), its legislative district may still be increased since it has met the minimum population requirement of two hundred fifty thousand (250,000). In fact, Section 3 of the Ordinance appended to the Constitution provides that a city whose population has increased to more than two hundred fifty thousand (250,000) shall be entitled to at least one congressional representative.” The Mariano case limited the application of the 250,000 minimum population requirement for cities only to its initial legislative district. In other words, while Section 5(3), Article VI of the Constitution requires a city to have a minimum population of 250,000 to be entitled to a representative, it does not have to increase its population by another 250,000 to be entitled to an additional district.” There is no reason why the Mariano case, which involves the creation of an additional district within a city, should not be applied to additional districts in provinces. Indeed, if an additional legislative district created within a city is not required to represent a population of at least 250,000 in order to be valid, neither should such 24



be needed for an additional district in a province, considering moreover that a province is entitled to an initial seat by the mere fact of its creation and regardless of its population. For the validity of a redistricting law, do you require the conduct of a plebiscite? The answer is NO. because there is no change in the territorial configuration. Plebiscites will be required only if there is a merger, creation, abolition, division. Here, there is only a creation of a NEW legislative district. So, the matter of a plebiscite – not required. Now, on CITIES. Would the city, like a province, once lawfully created on the basis of the criteria established in the LGC, would that also be automatically one legislative district? NO. For it to qualify as one legislative district, we have to follow the dictum in the Constitution. It must have a ?population?, it must have inhabitants of 250,000. A city established lawfully on the basis of the requirements of the LGC, even if it does not have 250,000 inhabitants, it will be a validly created city, but it will NOT be one legislative district. It will become a legislative district only if it is shown that it has 250,000 inhabitants. Navarro v. Ermita: Re: Dinagat islands, it is an island province. Because these are islands grouped together considered as one province, hindi compliant with the 250,000 sq km rule. Because for it to qualify automatically as one legislative district, we have to follow the dictum in the Constitution: 1. It must have a population; 2. It must have inhabitants of 250,000 So a city established lawfully on the basis of the requirements of the Local Government Code even if it does not have 250,000 inhabitants, it will be a validly created city but it will not be a legislative district. It will become a legislative district if it is shown that it has 250,000 inhabitants. A little discussion on Navarro vs. Ermita pertaining to this Province of Dinagat Islands. Well it’s an Island Province Navarro vs. Ermita. You will note class, because Islands to grouped together and considered as one province, hindi compliant with the 2,000 square kilometer contiguous territory. But it was shown that neither was this Province compliant with the 250,000 inhabitant requirement. And yet you will recall that in this case, on third motion for reconsideration. The Court considered its creation as valid despite

the non-compliance with either of the alternative requirements. This is how the Court finally resolved it. Justice Nachura looked at the Local Government Code. He saw that there are exemptions to the contiguous territorial requirement and the exemption would be when the LGU is comprised of Islands. The problem is, the Province is not expressly included as among those exempted from the contiguous territory requirement. Cities lang and municipalities. Let’s go to the implementing rules and regulations. He found in the IRR, Provinces are included among those exempted. He invoked the IRR for purposes of validating the creation of the Province of Dinagat Islands. And that is the ruling in Navarro vs. Ermita. You will recall that the fundamental dicta in administrative law, that administrative rule cannot amend law. And that exactly was done here. The exemption in the rule was invoked despite the absence of the exemption in the law. Explanation: The matter of exclusion of the Province in the law, was an oversight on the part of the Congress which was happily, readily, in the Implementing Rule of the Local Government Code. That’s the explanation in that very unusual case. Class you will recall that this is among, the cases which have been included in the discussions in the impeachment efforts against the late Chief Justice Corona which was pre-empted because of the supervening events. The importance of these concepts of compact, contiguous, and adjacent, a little attention here because the matter of gerrymandering was discussed in a fairly recent decision: Belgica vs. Executive Secretary. What is gerrymandering: It is the reconfiguration of a legislative district so as, and usually done by the incumbent legislator for purposes of insuring that only the areas where he would be assured of victory in the polls would be included in the district. Historically, this involved Mr. Mr Rich Gerry. A Congressman in the United States. He was able to maneuver the promulgation of such a measure when his district as reconfigured was drawn on a map, it was in the shape of a salamander. Thats why “Gerry” “mandering.” To avoid this from recurring, there are these contiguous, compact, adjacent, requirements precisely to avoid this pernicious political maneuver. We are done with the matter of District Representatives, a little discussion now on the 25



part of party-lists. I enjoin you to draw your attention to two major case here: 1. Atong Paglaum vs. COMELEC 2. Banat vs. COMELEC I will start with Atong Paglaum although it is the later case. Basic pronouncements of the Court from this case: Atong Paglaum, Inc. vs. COMELEC Basic pronouncement of the court from this case: There are three kinds of party lists — national, regional and sectoral. 1. National party list if majority of the regions would make up the membership of the party. 2. Regional party list if majority of the provinces in the region would comprise the regional party. 3. Sectoral party lists if it represents a. the marginalized or the underrepresented or b. those who lack well-defined constituencies. Of the three, it is only the sectoral party that is required to represent either the marginalized or the underrepresented or those who lack welldefined constituencies. Stated otherwise, the national and regional parties need not represent the marginalized or those underrepresented or those who lack well-defined constituencies. Marginalized/underrepresented - these are the fisherfolks, the farmer, the urban poor Lacking well-defined constituencies - they are the youth, women, the professionals, among the samples cited in the case of Atong Paglaum. Essentially though, these three kinds of party-list, they are barred by one certain essential ingredient — there must be commonness among its members in terms of attributes, government polices, platforms or programs to be pursued. The element of commonness particularly in the context of attributes is important. Is it possible for a major political party (like the Liberal or Nacionalista) to participate in party list election? If it feels, district representative, then it is not allowed, as a general proposition. Is it possible for a major political party which feels district representatives to still be allowed to participate in party list election? YES, provided it participates only through its sectoral wings, which are required to be separately registered and

accredited. (To better remember, think of the word “daya”) Why? These sectoral wings of major political parties would be favored by the political machineries already in place with nationwide effectivity. They will be competing against the other party-lists who are not as blessed as these sectoral wings of major political parties. The national and regional party-lists can nominate only persons who are bona fide members of these organizations. But those sectoral party-lists can nominate (1) those who belong to the sector or (2) even if they do not belong to the sector, if it can be shown that they have a proven track record of advocacy for the cause pursued by the sector. After a year #2 worried about his continued tenure in his life, approaches #1 – when he got #1’s attention, he shot him. If #2 is not caught having shot and killed #1 – he automatically takes over or fills the vacancy. #2 now sitting Congressman and does a happy dance. Then suddenly slips and dies, who takes over? #3. #3, inside his office, caught by the wife having an affair and stabs the former. #3 dies, who takes over? #4. On his way to Batasan, #4 alights from his bus – got hit by car and dies. #5 takes over. #5 while seated also dies. All nominees are dead, who takes over? The party is entitled to nominate another one because the intent is to keep the seat filled. (All in the period of 3 years.) That’s the reason why there are 5 nominees. It is obligatory and not discretionary. The party-list can’t say “di ko na feels”, they must submit 5 names. Atong Paglaum v. COMELEC G.R. No. 203766 April 2, 2013 If one (or more) of the nominees would be disqualified, in terms of possessing the qualifications and eligibilities, that would not necessarily result in the disqualification of the party so long as at least one of the nominees remain eligible or qualified. Banat v. COMELEC 26



592 SCRA 294 Remember: To create a legislative district requires a law. Let’s say that there are 4 new laws creating 4 new legislative districts. You remember the rule in Sec. 5, Art. VI: 20% of the membership of the House shall be reserved for the party-list. Art. VI, Section 5 (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, 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. For every 4 new legislative districts, there must be one additional party-list seat. (20% or 1/5) Do you need a law to establish that additional party-list seat? No. It automatically arises by operation of the Constitution. All that is needed is for the COMELEC to acknowledge that additional seat in the awarding/allocation of seats after party-list elections. Is the filling of all party-list seat mandatory? No. The explanation offered by the SC is mathematical. Let’s us say: there are only 10 party-lists which participate, under RA 7941 the maximum number of representatives or nominees for each party-list shall be 3. Do the mathematics: 10x3 = 30. What if there were 50 party-list seats, where do you get the other 20? In that sense, not mandatory. nd

But as pronounced in the 2 Banat v. COMELEC. Every effort must be exerted that as much as possible all party-list seats are filled which is nd why the SC relaxed in the 2 Banat v. COMELEC that the application of the very difficult formula prescribed in the cases of Tan v. COMELEC and Veterans v. COMELEC. As pronounced in the second Banat ruling of the Court, every effort must be exerted to, as much as possible, see to it that all partylist seats are

filled. Consequently, the Court relaxed in the second Banat v. COMELEC pronouncement the application of that very difficult formula prescribed or brainstormed by Chief Justice Panganiban in the very difficult cases of Tan v. COMELEC and Veterans v. COMELEC. Four Parameters in Partylist Elections 1. Twenty percent (20%) of the seats in the House are reserved for partylists (Constitutional) 2. All partylists which obtained at least two percent (2%) of the votes cast for all partylists are guaranteed one (1) seat each (Consitutional, but also pursuant to R.A. No. 7941) a. These partylists are called the “two percenters” b. This constitutes the first allocation of seats confined to the two percenters. 3. The third parameter pertains to the manner of filling the remaining available seats if there would still be remaining available seats after the allocation of one seat each to the two percenters. a. Example: There are 50 seats available for partylists. The two percenters are 30. That means that there are 20 remaining available seats. How do you fill those seats? You apply the third parameter which prescribes the formula for the filling of the remaining available seats after the two percenters shall have each receive one guaranteed seat. This is the second allocation. b. N.B.: In the second allocation, you still include the two percenters in the computations precisely because each of these parties would be entitled to a maximum of three seats. c. FORMULA: i. Get the votes of each partylist. The votes of each partylist will be the “numerator”. ii. Get the total votes cast for all partylists. This will be the “denominator”. iii. Divide. You will come up with a “quotient”.

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iv. Multiply the quotient with the number of remaining available seats. You will get the “product”. v. Each of the products for each partylist will be listed in accordance with their priority from highest to lowest. Then, it will only entail the matter of allocating one seat to each partylist in accordance with their appearance in the order of priority until all the remaining available seats are filled. This is the second allocation. 4. Each partylist should have a maximum of three representatives. Each of these products for each of the party-lists, you list them in accordance with their priority from highest to lowest. It will only entail now the matter of allocating one seat to each party-list in accordance with their appearance in the order of priority until all remaining available seats are filled. This is the second allocation. The fourth parameter is that, and this is consistent with the limitation in RA 7941, each party-list shall have only a maximum of three representatives. This is constitutional. The matter of two-percenters: You will see that because of this new fourth parameter, even those who do not obtain at least 2% of the votes may be entitled to a seat. This change in the Banat pronouncement had an effect on the basic ground for the cancellation or denial of due course of applications of accreditation of party-lists or petitions to cancel the certificates of registration or accreditation of party-lists. There are 8 grounds [under Sec. 6 of R.A. 7941] for refusal/cancellation of the registration of any national, regional or sectoral party, organization or coalition: 1. It is a religious sect or denomination, organization or association, organized for religious purposes; 2. It advocates violence or unlawful means to seek its goal; 3. It is a foreign party or organization;

4. It is 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; 5. It violates or fails to comply with laws, rules or regulations relating to elections; 6. It declares untruthful statements in its petition; 7. It has ceased to exist for at least one (1) year; or 8. It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered. The eighth paragraph essentially lists two sets of grounds: i) failure to participate in two consecutive party-list elections and ii) if you do not garner 2% of the votes cast in two consecutive party-list elections. This second ground was declared unconstitutional in Banat v. COMELEC. So, the only remaining ground there is non-participation in two consecutive party-list elections. Sec. 6 of R.A. 7941 presents grounds for two acts that may be done by the COMELEC: i) to deny due course to the application for registration; and ii) to cancel an existing registration or accreditation. Dayao v. COMELEC G.R. No. 193643, Jan. 29, 2013 This involved a party-list for LPG dealers. A petition to cancel the certificate of registration of that party-list was filed against it. This was the basic contention of the party: that ground should have been invoked when we applied for registration. There was no objection when we applied for registration; therefore, all of these grounds should be considered as waived. Ruling: wrong. That’s why the title of Sec. 6 is “petition to deny due course or to cancel.” So, if a subsequent ground on the basis of any of the eight would arise after accreditation, then certainly, the COMELEC may still cancel. So, the party-list lost. Once accredited, the party-list need not be accredited each time that it will participate in a party-list election. All it needs to do would be to submit a manifestation of intent to participate. 28



Abang Lingkod v. COMELEC G.R. No. 206952 Oct. 22, 2013 Let’s tackle this case: a party-list submitted a manifestation of intent to participate. In its submission, there were administrative attachments as required by the COMELEC. It turned out that one of the attachments was proved to be falsified or fake. Digital copies of photos depicting its conduct, let’s say, of medical missions, by way of establishing its track record of advocacy. COMELEC disqualified it for such falsification. The party-list appealed to the SC. Ruling: disqualification reversed. That was for purposes of establishing track record for advocacy. This element no longer applies to party-lists, but only to nominees who are not members or who do not belong to sectoral partylists. Track record of advocacy is no longer prescribed as a requirement for party-lists but only upon nominees. Therefore, that representation [is] immaterial and could not have led to the disqualification. But what about the fact that it submitted untruthful statements? This is a separate ground in Section 6 (par. 6: it declares untruthful statements in its petition) and was never discussed in the case. Amores v. House of Representative G.R. No. 189600 June 29, 2010 This pertains to eligibility. This incumbent youth sectoral party-list realized that, in the next congress, he is not anymore considered as youth. He changed his affiliation (from youth sector to overseas Filipino workers and their families sector).

Supreme Court held that under Section 15 of the said law, if you changed your party or sectoral affiliation does not matter, so long as you changed your affiliation you will forfeit your seat or if you do it within 6 months before an election, you will not eligible for nomination by your new party. Excerpt from the case: What is clear is that the wording of Section 15 covers changes in both political party and sectoral affiliation. And the latter may occur within the same party since multi-sectoral party-list organizations are qualified to participate in the Philippine party-list system. Hence, 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. Again, since the statute is clear and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. Lokin v. COMELEC G.R. Nos. 179431-32 June 22, 2010 There are three grounds under R.A. 7941 (Section 8) for the withdrawal of nominations [three instances in which the party-list organization can substitute another person in place of the nominee whose name has been submitted to the COMELEC]: 1. when the nominee dies; 2. when the nominee withdraws in writing his nomination; and 3. when the nominee becomes incapacitated.

Under R.A. 7941, Section 15, changing of affiliation can have two effects:

The COMELEC added a fourth withdrawal by the party-list of a nomination. It was ultra vires; therefore, unconstitutional.

1. Any elected party-list representative who changes his political party or sectoral affiliation during his term of office shall forfeit his seat; 2. If he changes his political party or sectoral affiliation within six (6) months before an election, he shall not be eligible for nomination as party-list representative under his new party or organization. He claimed that he was not covered by these consequences prescribed under the law because although he changed his sectoral affiliation, he remained under the same party.

Lico v. COMELEC G.R. No. 205505 September 29, 2015 There are two important facets in this case. First, the matter of membership in a party-list being a continuing qualification. Loss of membership should result in forfeiture of the seat. Here, there was a leadership struggle on the basis of amended By-laws within the partylist. This particular group won the contest ostensibly and proceeded to expel a sitting member, a party-list representative member of the Congress. When it was challenged before the 29



COMELEC, the COMELEC properly dismissed this aspect of the case because it pertained to a member of the House of Representative, and the rule is if you are a member already of the House of Representative, you will be under the jurisdiction of the Electoral Tribunal and not the COMELEC. Second, the COMELEC, invoked its intra-party conflict jurisdiction [because according to jurisprudence, the authority of the COMELEC to register political parties necessarily entitles it to determine the proper leadership of any party and entitles it to assume jurisdiction over intra-party conflicts]. So, they find the COMELEC proceeding with the case, but purely for purposes of determining the validity of the takeover by the new board on the basis of the amendments to the By-laws of the organization. Here, the SC said that the COMELEC gravely abused its discretion, following this train of thought: If you may tackle that matter, you may eventually uphold the validity of the taking over of the new board, in effect you would be sustaining the validity of the expulsion of this particular sitting party-list representative. That is a matter that pertains exclusively to the Electoral Tribunal; hence, the COMELEC gravely abused its discretion in tackling this particular intra=party conflict. Article VI, Section 10 - Power of legislators to provide for upward salary adjustments in their favor Article VI Section 10. The salaries of Senators and Members of the House of Representatives shall be determined by law. No increase in said compensation shall take effect until after the expiration of the full term of all the Members of the Senate and the House of Representatives approving such increase. I draw your attention to Article VI, Section 10. It entitles the legislators to provide for upward salary adjustments in their favor. Note the constitutional limitation that the effectivity of the salary increase shall upon the expiration of the full-term of legislators who would have approved that increase. Necessarily, this is done by law and therefore the senators would have also approved. The senators, you will recall, have 6-year terms. Hindi yan effective in the next Congress. You will have to wait for at least two Congresses

before the salary adjustments can be effective. Please note that there is no prohibition in the Constitution with regard to the competence of legislators to assign to them salaries, allowances, and other perquisites. The safeguard against this competence of the congress in this regard will be Article VI, Section 20. This requires the annual publication of their expenditures to shame them into exercising a little restraint. It is not really effective this provision in the Constitution. I am particularly alarmed by the fact now we have 22 deputy speakers, each of which shall be entitled to 750 million by way of an annual appropriation for the duties attached to their positions as deputy speakers. We only have one speaker, why do we need 22 deputy speakers? The restoration of this "pork barrel" from 70 million, it is now 100 million each and they are defending it. We are helpless. Yes, we will file suit. Yes, it may be granted, but they would have already spent or benefited from these amounts by allocating to themselves. Article VI, Section 11 - Privileged Speech and Debate & Immunity from Arrest Article VI Section 11. A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof. We go to Article VI, Section 11, which presents two parliamentary immunities. The matter of privileged speech and debate, and this immunity from arrest with respect to offenses punishable by more than 6 years. The converse statement there is that if the offenses imputed or subject of the warrant of arrest were for more than 6 years, then they can be arrested. But in the context of the coverage of the prohibition, understand that the immunity from arrest does not pertain to day to day adjournments. Kunwari tapos na ang session pwede na siyang arestuhin. Understand that the immunity lasts from the duration of the session, which is fixed in Article VI, Section 15, to begin on the 4th Monday of July until 30 days prior to the next commencement of the session of the Congress. Understand the basic principle here that it is to prevent harassment suits from being filed or lodged against members of the Congress. Precisely, the purpose here is to ensure that there 30



is representation for their respective constituencies. This cannot be disregarded or set aside with a simple institution of suits which would be easy to institute by way of harassment. We go to the matter or privileged of speech and debate. The cases are there in your textbook but the bottom line consideration would be this. Remember that this privilege of speech and debate would applicable only in the context of their performance of legislative functions. This would include privileged speeches, debates in plenary session, discussions and remarks made in a legislative committee, proceeding, and legislative investigations. By no means should you include in its coverage the matter of interviews. For example, session privileged speech is delivered, session ended, adjourned that particular day, then here come the press reporters ambushed interviews. They say what they have uttered no longer in the context of legislative functions. May sabit yun. This is the essence of the 2018 pronouncement of the SC in Trillanes v. Hon. Evangeline C. CastilloMarigomen (G.R. No. 223451 March 14, 2018.) They say what they had uttered no longer in the context of their legislative functions In Trillanes v Judge ... (2018) The point is it was an ambush interview, the statements subject of suit for libel against him were not being considered as having been made in the context of performance of legislative functions. Well the libel suit was allowed to proceed by the court. Always in the context of legislative function. No Member shall be questioned nor be held liable in any other place In the place where the utterance was made there can be liability or accountability. Privilege speech if slanderous cannot be held liable for damages in civil proceedings before regular courts but the ethics committee of the particular chamber concerned can hold the speaker accountable invoking the disciplinary authority of either chamber on the basis of Article VI Sec. 16 (3), a matter of disorderly behavior. Disorderly behavior as a concept is a political question. The only thing justiciable around this provision is the vote required for the imposition of the penalty of either expulsion or suspension up to 60 days.

Section 12. All Members of the Senate and the HoR 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. What are they required assumption of office?

to

do

upon

Make a full disclosure of their financial and business interests. Notice must be made if there is any potential conflict of interest arising from filing a bill, Section 13. No Senator or Member of the HoR may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including governmentowned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected. Section 13 must be necessarily discussed together with the general incompatibility office and Section 13 also. I must necessarily relate Section 13 to the general concept of incompatibility of offices particularly also Section 13 of Article 7. Remember the basic rule, an incompatible office is one which would present a contrariety of interests with respect to the original position held. You cannot, at the same time, be a judge and a prosecutor. There is a contradictory of interests In the context of legislators, remember that not every other office should be considered as an incompatible office. For instance, here is the chairman of the senate in the committee of education, if he were designated as the board regent of the board of regents of UP which is a state university so there is a primary relationship between his functions as the chairman of the committee of education and his seat as a regent in UP.

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Similarly, the chairman on the committee of finance, he can’t be ex officio designated to sit... Let’s say, he will seat on the Board of the NTC. There’s a relationship there, ex officio. Incompatibility is not there just because it is another office if there were primary relationship to the functions of the legislator then it can be justified. May a legislator hold an incompatible office? YES. Remember that this proscription of inhibition, if you will, is applicable only during his tenure. The point of this particular prohibition – the foundation of the principles of separation of powers delineating executive from legislative functions. The simple rule is that if a legislator holds another, an appointive office, then he shall be considered as having forfeited his seat in the legislature. This has been illustrated several times in our jurisdiction. For instance, the case of Cayetano. He was appointed a Cabinet position while he was a Senator (this was during the time of Noynoy Aquino). He forfeited his seat in the Senate so you can accept an incompatible office. 3

Similarly, as provided in Art. IX-B, Sec. 7 (1) May local elective officials hold incompatible or other offices? YES. The period of applicability or effectivity this inhibition is limited during the tenure such that when the incompatible office is held, the tenure ends. In this connection, Topacio Nueno v. Angeles distinguished between term and tenure. TERM is the period during which an officer is entitled to remain in office while TENURE is the period of actual incumbency. Let’s go to the matter of forbidden office as stated in Section 13. Section 13. No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been

created or the emoluments thereof increased during the term for which he was elected. Here is a law sponsored by this Congressman, offered by him, providing for the creation of the position of Deputy Prime Minister for the Bangsamoro by way of amendment to the Bangsamoro Act. It is approved. It is now law. Let us say the promulgation as law happens during his second year of his 3-year term. Immediately after it becomes law, the Congressman author of the bill, which is now law, he resigns. He files a certificate of candidacy for Deputy Prime Minister of the Bangsamoro. Should it, as to him, be considered a forbidden office which will serve to render him ineligible to run? NO. The forbidden office is an appointive office. This is an elective office. Therefore, if he resigns, there is nothing to prevent him from running for that particular position. Let’s alter the facts. Let’s say that the position created on the basis of that law sponsored by this Congressman is not an elective but an appointive office. It becomes effective also during the second year of his 3-year term. But he is not appointed during that particular Congress. His term expires, he runs for re-election and he is now on his re-elected term. During his re-elected term, can he now be appointive to this officer or should it be, as against him, still be considered a forbidden office? First is the case of Funa v. Ermita G.R. No. 184740, Feb 11, 2010 Here is this lady, undersecretary of transportation. She was assigned to the maritime branch of the Department of Transportation. There are air, land, maritime branches in DOTR. There are a total of 3 undersecretaries (one for each branch). As maritime undersecretary, she was designated by Gloria Arroyo to concurrently become the officer-in-charge of the Marina (maritime industry authority). Funa challenged on the basis of Article 7 Section 13

3

SECTION 7. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.

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Article VII Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including governmentowned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. 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 and their subsidiaries. The petition was sustained by the Supreme Court. It was against the defense of the good undersecretary with her reliance on the provisions of the second paragraph of Article IXB, Section 7 Article IX-B Section 7 Section 7. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. 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 Governmentowned or controlled corporations or their subsidiaries. Which is essentially the foundation Civil Liberties Union vs. Executive Secretary: SC said in this case that these civil servants, public officers can hold other offices if primarily related to the office or authorized by law. That Article IXB, Section 7 provision is a general provision and cannot prevail as against these stricter prohibition in Article 7, Section13 which is applicable to the officers narrated there.

We now go to the second Funa case. The case of Funa vs. Agra Funa v. Agra G.R. No. 191644 February 19, 2013 Sir’s premise for this case is the earlier case of Public Interest Center vs. Alma: This was a PCGG Chairman who was designated to act concurrently as the chief legal counsel. Clearly, that was an incompatibility of these two offices because the determination of the PCGG are reviewable by the chief legal counsel. There is an incompatibility of offices there; that was not allowed in that case even if there was a rejection of the additional salary for the CLC position. What is important here is that the SC emphasized the enumeration in Article 7, Section 13 includes secretaries, undersecretaries, assistant secretaries. Here’s the problem with our laws. There are many positions created which would indicate that this officer shall have the rank of a cabinet secretary, an assistant secretary. Remember that does not make them cabinet secretaries or assistant secretaries. By analogy, and this is most important, for instance the government corporate counsel, that law creating that position gives him the rank of a Justice of a Court of Appeals. In similar vein, the NLRC Commissioner is given the rank of a Court of Appeals Justice. The SC was emphatic on this – that does not make them justices of the CA, that does not make them members of the judiciary, and (for sir which is the most important) that does not entitle them to be addressed as justices. The latest pronouncement here would be in the case of In re Marcelino Veloso: this guy is now a congressman. He was a former NLRC commissioner, and then he became a Court of Appeals justice. He became a CA justice. The problem was whether he can tack his tenure as NLRC commissioner to his tenure of CA Justice for purposes of computation of his retirement Justice. The SC held that the matter of entitlement of an NLRC commissioner is entitled to all retirement benefits of a court of appeals justice but they are entitled be referred to be as a justice. That principle obtains in the concept of list of enumerations prescribed in Article VII Sec 13.

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Article VII Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including governmentowned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. 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 and their subsidiaries. It only applies to actual cabinet secretaries. This cannot apply to those who only have the ranks. You remember the VP we had where he was also the head of the Boy Scouts of the Philippines? VP Binay. Would that particular concurrent holding of the Boy Scouts of the Philippines be in violation of Art VII Sec 13? Yes. The Boy Scouts of the PH is a government agency, attached to the DepEd, as pronounced in: Boyscouts v NLRC G.R. No. 80767 April 22, 1991 Supreme Court held: While the BSP may be seen to be a mixed type of entity, combining aspects of both public and private entities, considering the character of its purposes and its functions, the statutory designation of the BSP as "a public corporation" and the substantial participation of the Government in the selection of members of the National Executive Board of the BSP, the BSP, as presently constituted under its charter, is a government-controlled corporation within the meaning of Article IX (B) (2) (1) of the Constitution. Also, the Administrative Code of 1987 designates the BSP as one of the attached agencies of the Department of Education. Hence,

the BSP is appropriately regarded as "a government instrumentality" under the 1987 Administrative Code. Boyscouts v Commission on Audit G.R. No. 177131 June 7, 2011 Supreme Court: Since the BSP, under its amended charter, continues to be a public corporation or a government instrumentality, we come to the inevitable conclusion that it is subject to the exercise by the COA of its audit jurisdiction in the manner consistent with the provisions of the BSP Charter. Jesus Falcis filed a case for this. The Supreme Court held that it is moot and academic because of the expiration of the term of the Vice President Funa v Agra G.R. No. 191644 February 19, 2013 He was an acting Solicitor General. Under the law, an OSG is a cabinet position, therefore he is a cabinet secretary. He was designated by Gloria to be the acting secretary justice. SC held that all non-acting, hence nullified yung SOJ position. Supreme Court held: In order to be clear, therefore, the Court holds that all official actions of Agra as a de facto Acting Secretary of Justice, assuming that was his later designation, were presumed valid, binding and effective as if he was the officer legally appointed and qualified for the office. This clarification is necessary in order to protect the sanctity of the dealings by the public with persons whose ostensible authority emanates from the State. Agra's official actions covered by this clarification extend to but are not limited to the promulgation of resolutions on petitions for review filed in the Department of Justice, and the issuance of department orders, memoranda and circulars relative to the prosecution of criminal cases. Over-acting – that particular designation. Sabi ng SC, dun sa Funa v. Ermita, if you had designated him as such ex officio, we would have sustained it. My point is that the Civil Liberties Union case still applies today. Ang kulang lang sa Funa v. Ermita was the word “ex officio”. If it had been designated in that matter, that would have been sustained by the SC following principles upheld in the Civil Liberties Union case. Betoy v NPC G.R. Nos. 156556-57 34



October 04, 2011 Facts: Pursuant to Section 63 of the EPIRA and Rule 33 of the IRR, the NPB passed NPB Resolution No. 2002-124 which, among others, resolved that all NPC personnel shall be legally terminated on January 31, 2003and shall be entitled to separation benefits. As a result of the foregoing NPB Resolutions, petitioner Enrique U. Betoy, together with thousands of his coemployees from the NPC were terminated.

indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office.

Issue: whether or not the designation of secretaries as board of directors of National Power Corporation valid? – YES

Section 15. The Congress shall convene once every year on the fourth Monday of July for its regular session, unless a different date is fixed by law, and shall continue to be in session for such number of days as it may determine until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays, and legal holidays. The President may call a special session at any time.

Held: The delegation of the said official to the respective Board of Directors were designation by Congress of additional functions and duties to the officials concerned, i.e., they were designated as members of the Board of Directors. Designation connotes an imposition of additional duties, usually by law, upon a person already in the public service by virtue of an earlier appointment. Designation does not entail payment of additional benefits or grant upon the person so designated the right to claim the salary attached to the position. Without an appointment, a designation does not entitle the officer to receive the salary of the position. The legal basis of an employee’s right to claim the salary attached thereto is a duly issued and approved appointment to the position, and not a mere designation. The Court, therefore, finds the designation of the respective members of the Cabinet, as ex-officio members of the NPB, valid. By law, or as authorized by law, the Secretary of Energy were designated ex officio to sit in the Board of Directors of the National Power Corporation, a government owned and controlled cooperation. The Court sustained the statutory designation dahil swak na swak - binarily related and energy, trade, NPC, may relationship, and authorized by law since ayon ung batas eh. Ex officio and no additional salaries. That is all for Incompatible Offices. We go back to the legislature. Section 14. No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or

Section 16. (1) The Senate shall elect its President and the House of Representatives its Speaker, by a majority vote of all its respective Members. Each House shall choose such other officers as it may deem necessary. (2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner, and under such penalties, as such House may provide. (3) Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days. (4) Each House shall keep a Journal of its proceedings, and from time to time publish the same, excepting such parts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at the request of one-fifth of the Members present, be entered in the Journal. Each House shall also keep a Record of its proceedings. (5) Neither House during the sessions of the Congress shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.

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Section 14 was tackled when I discussed the Belgica case Section 15 speaks about commencement of the sessions of the Congress, fixed on the fourth Monday of July. Here, you may draw your attention to the special sessions, which may be called by the president at any time. Remember, that is essentially to be considered as a political question. Recall our discussions on Araneta v. Dinglasan, distinguishing between regular and special sessions. In Section 16, I have discussed the first 4 basic paragraphs while we tackled the matter of voting requirements. The only remaining thing in Section th 16 is the 5 paragraph, which simply says that Congress is may not adjourn for more than 3 days, without the concurrence of both chambers. Neither may it hold business in any other place with such concurrence. There is a concurrence here pero essentially Senate is now there in Pasay and Congress in the North. Essentially, Metro Manila yan so in the same area. I imagine there is concurrence here consistent with the requirement. Article VII – Executive Section 4. The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes. Article VIII – Judiciary Section 1. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government Under our Constitution there are only two Electoral Tribunals. The first is the Presidential

Electoral Tribunal (PET) which is basically the Supreme Court. This is a special judicial power independent of the judicial power conferred by nd the 2 paragraph of section 1 of Article 8. Macalintal v. Presidential Electoral Tribunal Facts: Here, Macalintal questioned the Supreme Court’s jurisdiction to resolve presidential and vice-presidential elections protest and contest, invoking Section 12 of Article 8, which prohibits any member of the judiciary from being designated to perform or act in any quasi-judicial function or capacity. Macalintal based his argument from the doctrine in BOAC, which provided that the resolution of election protest and contest is a quasi-judicial function. Issue: W/N the resolution of election protest and contest is a quasi-judicial function? NO, it is a judicial function. Ruling: The SC abandoned the doctrine in BOAC, and the resolution of election contest and protest is in essence an exercise of judicial power. This judicial power is specially conferred on the SC by Article 7 Section 4. This is different nd from the judicial power prescribed by the 2 par. of Article 8 Section 1, which describes the traditional concept of judicial power, involving legally enforceable and demandable rights, as opposed to acts which are tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. The conferment of sole judge jurisdiction over election protest pertinent to the President and Vice-President has nothing to do with judicial power in Article 8 Section 1. This is special judicial power conferred under the constitution to the Supreme Court. Until Article 7, section 18, special judicial power is conferred to determine the factual basis, and validity of the factual basis for a declaration of Martial Law or a suspension of the writ of habeas corpus. That is a fourth kind of Judicial Power expressly conferred to the Supreme Court independent of Article 8, Section 1. We go to Article 9-A Section 7. This is the Certiorari jurisdiction specially conferred upon the Supreme Court by way of appellate authority over the adjudication of the Constitutional Commissions. This is another special grave abuse of discretion authority given to the Supreme Court. That grave abuse of authority is only by way of judicial interpretation. You will recall I mentioned already the case of Araullo vs Comelec. Note class that many cases 36



to this effect among them being the case of Petitioners Organization vs Executive Secretary which involve 5 respondents, for instance the UCPB. This is about the use of the coconut levy funds for the purchase of shares of stock in private corporations. You will recall that the petitioners sued on the basis of Rule 65. In Rule 65, you must precede from a prior determination from a board, party or tribunal. But this was a direct proceeding to the supreme court without a prior decision. Therefore, the respondent contended that this is not covered by Rule 65. The SC said that even if there were no prior proceedings, this involves a grave constitutional issue in which case it becomes the right, nay, the duty of the Court to exercise Judicial Power. Petitioners Organization vs Executive Secretary F: In 1976 President Marcos enacted P.D. 961, the Coconut Industry Code, which consolidated and codified existing laws relating to the coconut industry. The Code provided that surpluses from the CCS Fund and the CID Fund collections, not used for replanting and other authorized purposes, were to be invested by acquiring shares of stock of corporations, including the San Miguel Corporation (SMC), engaged in undertakings related to the coconut and palm oil industries. UCPB was to make such investments and equitably distribute these for free to coconut farmers. These investments constituted the Coconut Industry Investment Fund (CIIF). P.D. 961 also provided that the coconut levy funds (coco-levy funds) shall be owned by the coconut farmers in their private capacities. I+R: Does appropriating public funds violate substantive due process? Yes. The coco-levy funds were raised pursuant to law to support a proper governmental purpose. They were raised with the use of the police and taxing powers of the State for the benefit of the coconut industry and its farmers in general. The Court has also recently declared that the coco-levy funds are in the nature of taxes and can only be used for public purpose. Section 2 of P.D. 755, Article III, Section 5 of P.D. 961, and Article III, Section 5 of P.D. 1468 completely ignore the fact that coco-levy funds are public funds raised through taxation. And since taxes could be exacted only for a public purpose, they cannot be declared private properties of individuals although such individuals fall within a distinct group of persons.But the assailed provisions, which removed the coco-levy funds from the general

funds of the government and declared them private properties of coconut farmers, do not appear to have a color of social justice for their purpose. The declarations do not distinguish between wealthy coconut farmers and the impoverished ones. Consequently, such declarations are void since they appropriate public funds for private purpose and, therefore, violate the citizens’ right to substantive due process. That is a different kind of judicial power extraneous to all of the others that I have already mentioned. Then, the cases of Atong Paglaum vs COMELEC and the case of Lambino vs COMELEC. You will recall that in both instances, in Atong, the COMELEC merely followed doctrine. The one set in Bagong Bayani OFW vs Comelec regarding the rules on the accreditation of party-lists. It followed SC doctrine. In Lambino, it followed Santiago vs. COMELEC. 6735 is inadequate ay petition on amendment of the constitution. The Supreme Court ruled in both cases that no grave abuse of discretion existed. And yet, judicial power was exercised. There is so much more to Judicial Power than what is prescribed in Article 8, Section 1. At any rate, sabi ng Supreme Court, by way of abandonment of the BOAC principle to the effect, that the resolution contest is quasijudicial. In a sense it is a Judicial Power. Note the additional statement of the SC. Even the Electoral tribunal, the House and the Senate, when either of them would resolve election protests, they too exercise Judicial Power. That’s a little problematic because remember the membership of the Electoral Tribunal. 6 from either chamber chosen proportionately from a representation in either chamber including, in the lower house, party-lists and then 3 justices of the Supreme Court. Sabi ko sa sarili ko, okay na siguro yan kasi at least merong 3 justices of the Supreme Court exercising judicial power. Court did not stop there, SC said that even Comelec when it resolves election protests, it too in essence exercises judicial power. That would be by way of total abandonment of the BOAC v. Comelec principle to the effect that the resolution of election contests would partake the character of quasi-judicial proceedings. Why is it then that the SC can style itself as the PET?

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•

To distinguish the special judicial power conferred upon it under Art. VII, Sec. 4 from its traditional judicial power indicated in Art. VIII, Sec. 1(2) If it adopted a different name, it is only for that purpose à to distinguish the kind of judicial power that it exercises as the resolver / sole judge of these electoral contests When it styled itself as the PET, it merely followed statutory historical precedent because the first PET was established by law and it designated the SC to be the PET

Bondoc v. Pineda G.R. No. 97710 Sept. 26, 1991 There are always 9 members in SET / HRET. So Most of the time it will be 5 vs. 4. The 4 will constitute the justices of the SC and the minority representative from either chamber. The 5 majority always prevails.

Proceeding to Electoral Tribunals indicated in Sec. 17

The SC held that for a quorum to exist in either Electoral Tribunals, there must always be in attendance of at least one Justice of the SC. Even if there were 5 in attendance but if all 5 are legislators, there is no quorum.

•

•

Art. VI Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. The ETs are not part of the Congress, they are constitutionally independent of the Congress. ETs have their own appropriations and own staff precisely because they are independent. David v. Senate Electoral Tribunal G.R. No. 221538 Sept. 20, 2016 The SC does not have appellate jurisdiction over either ETs. What it may exercise would be jurisdiction over errors of jurisdiction and not errors of law. All references of its adjudications to the SC would be by way of the original action of certiorari (Rule 65) precisely because of the independent character of the tribunal. To mark the independence of ETs, See Bondoc v. Pineda (not yet asked in Bar)

Reyes v. HRET G.R. No. 221103 Oct. 16, 2018 Reyes questions the constitutionality of several provisions of the HRET Rules, specifically, the rule which requires the presence of at least one Justice of the SC to constitute a quorum.

If all Justices of the members of the electoral tribunal inhibit themselves, the SC should designate temporary replacements. This case is also in addition to the matter of incompatible offices. Remember that the legislators are authorized by the Constitution to become members of Electoral Tribunals. In so far as the SC is concerned, they are also authorized to hold this other office of membership in the electoral tribunal. Bondoc v. Pineda G.R. No. 97710 Sept. 26, 1991 Prof’s facts: One of the usual 5 sa majority, sided with the usual form na minority making them 5 now, and the usual majority naging 4. Panalo yung protestant, kaya the incumbent protestee file ng MR. While the MR was pending, the conscience voter dun sa usual majority was replaced, para dun sa resolution ng MR meron ulit silang 5. The SC said that it cannot be done because this clearly undermines the independence of the electoral tribunal. HRET reached a decision on the election contest between Pineda and Bondoc in favor of the latter. Representative Camasura Jr., a member of the majority party and one of the House’s representatives in the HRET was removed from the party for disloyalty. With Camasura’s ouster, the House of Representatives resolved to withdraw his nomination and rescind his election as a member of the HRET. The issue is WON the 38



move of the House of Representatives to change its representative in the HRET is constitutional – NO The SC held that the independence of the HRET would be a myth if the House of Representatives, or the majority party therein, may shuffle and manipulate the political component of the Electoral Tribunal to serve the interest of the party in power. Abayon v HRET G.R. No. 222236 May 3, 2016 *Note: I did not find the 2018 case, but this case has the same facts discussed by the Prof. Abayon and Palparan were duly nominated party list representatives of AAngat Tayo and Bantay, respectively. A quo warranto case was filed before HRET assailing the jurisdiction of HRET over the partylists and its representatives. HRET dismissed proceeding but upheld the jurisdiction over the representatives who now seeks certiorari before the SC. The issue is WON the HRET has jurisdiction over the question of qualifications of petitioners – YES The Court pronounced that the Electoral Tribunal has the competence to declare the nullity of an election. This is consistent with its quasi-judicial authority, the basic purpose would be for it to enable to determine the actual victor in any election or polls. Note: The matter of annulling an election is a quasi-judicial act of the Electoral Tribunal. While the matter to declare a failure of elections is in the exercise of its administrative competence, NOT quasi-judicial.

Sanchez v. COMELEC G.R. No. L-55513 June 19, 1982 4

Atty. Cruz is not sure between 60 days or 6 months. Under Republic Act No. 7166 Section 4, Special Election shall be conducted not earlier than 60 days nor longer than 90 days after occurrence. Sec. 4. Postponement, Failure of Election and Special Elections. - The postponement, declaration of failure of election and the calling of special elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a majority vote of its members. The causes for the declaration of a failure of

The elements of a failure of election as first fleshed out in this case. If you declare a failure of election, you postpone – you contact a special election. It is a failure of election: 1. If the election does not have a time and date specified 2. If it was not completed during the schedule period for the election or 3. If there was a problem in the transmission of the election returns. Any of these three circumstances would have been occasion or attended with false, violence, threat, intimidation, etc. But remember this principle, the COMELEC, even if there were failure of election, is not bound to always declare a failure of election. It has the discretion to or not to declare a failure of election. For instance, 1000 polling precinct, there was fraud and violence in 2 precincts, certainly the outcome of election in those 2 precincts cannot have any material effect on the total outcome in the entire polling area. Therefore, the COMELEC would be correct if it were not to call or declare a failure of election because that is essentially DISCRETIONARY. But if it does so, remember that it could under the law to conduct as soon as possible a special election to complete the election. Understand that the period to conduct a special 4 election is 60 days. But the point is, even if special election is conducted, after a declaration of failure, not within the deadline prescribed under the law, still it can be upheld precisely because of the recognition of the court of the difficulty of conducting special elections particularly the matter of logistical requirements. HENCE, the deadline prescribed is not strict for the conduct of special election after the prior declaration of failure of election. In any case, the HRET is authorized to annul election. That is Quasi-Judicial.

election may occur before or after the casting of votes or on the day of the election. In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term, the Commission shall call and hold a special election to fill the vacancy not earlier than sixty (60) days nor longer than ninety (90) days after the occurrence of the vacancy. However, in case of such vacancy in the Senate, the special election shall be held simultaneously with the succeeding regular election.

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JURISDICTION of the HRET We have to make a determination as to when the COMELEC has authority of the eligibility of the candidate stops and when the authority of the HRET begins. Look at section 17, it speaks of jurisdiction over members of either chamber. We define “member”. SECTION 17. The Senate and the House of Representatives shall each have an Electoral Tribunal, which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. Historically, 1994 case of Marcos v. COMELEC. A member of the house or the senate is: 1. One who is proclaimed as the winning candidate, 2. One who has taken his oath, 3. One who has assumed office. Reyes v. COMELEC (2013) G.R. No. 207264 October 22, 2013 nd The SC changed the 2 requirement. It is now worded “He must have taken the PROPER oath”. You must have seen on newspaper or television coverage, that immediately after proclamation these winning candidates immediately take their oath of office. Please realized na walang katuturan ang mga oath na yun. The oath is a qualifying act for the purposes of assumption into office. You cannot assume an office which is not yet vacant. In the context of Congress, remember th that the vacancy arises NOON 30 day of JUNE. That is the time their term commences as well. NOW: A member of the house or the senate is: 1. One who is proclaimed as the winning candidate, 2. One who has taken the proper oath, 3. One who has assumed office.

This is what happened in the case of Reyes v. COMELEC Reyes v COMELEC G.R. No 207264 October 22, 2013 Facts: The candidate here was not a Filipina. This is about the Reyeses of Marinduque. They talked among each other that they no longer have a candidate for Congress (the old Reyes is retired and the other Reyes is happy with his position in the Toll Regulatory Board). Regina Ongsiako Reyes was a natural American and was then asked to go back home here. She went back home here and worked as a provincial administrator then she ran. Her eligibility was questioned by a petition for disqualification. Adjudication or promulgation of judgment was set at May 9 (*note here that elections were held at May 10). The rule in COMELEC is that if you receive a notice of the promulgation then that is considered as service of the judgment. In which case you have 5 days to go to SC and ask for restraining order. Failing to do so, then the judgment becomes final. Reyes received a copy of the notice of promulgation of May 9 but she did not attend. She was proclaimed as winner on May 15 and immediately after, she took an oath. May 16, she received a copy of the promulgation against her. May 17, she then made an oath this time before Speaker Belmonte. Then June 5, she files a petition to SC seeking to nullify or restrain the enforcement of judgment of disqualification against her saying that because of the events (proclaimed winner and took an oath), she had already became a member of the house therefore only HRET can exercise jurisdiction against her. Her point was that the particular judgement from COMLEC cannot be enforced against her anymore (HRET lang daw!). Held: SC said that if that was the case, then why are you here now in the SC if it were the HRET only which has exclusive jurisdiction over you. SC said she’s not yet a member because the three have not concurred. Yes, she was proclaimed as winner but she has not taken the proper oath. The oath she took twice is not the proper oath. The proper oath is one taken in open session before the Speaker of the House. That time, it was only June 5. Clearly, she has not yet assumed office because she can only assume th office on the 30 day of June. Therefore, the COMELEC still has jurisdiction over her. Also, since she did not go to the SC after May 9, within 40



5 days and she did not obtain a restraining order to stop the enforcement of that adjudication, then that ruling of the court have become final.

legal holidays. The President may call a special session at any time.

Remember the basic pronouncement of the court there is thus:

Let us say 4th Monday of July na. Pwede pa ba mag open session ang Congress then? The answer is NO. Why not? Because none of them has taken the proper oath. Why not? Because they have not yet chosen a Speaker yet before whom they can take their proper oath. Note that the oath in Reyes was taken before Belmonte when he was the Speaker of that Congress, but he is not the Speaker of the next Congress.

For the jurisdiction of the HRET to be triggered, the three requirements must concur: 1. Proclamation as the winning candidate 2. Taking of proper oath 3. Assumption of office In this case, fail siya sa 2. Sir's own observation (but don't be confused daw): The rules of the HRET obtaining at the time of Reyes v. COMELEC are very simple: the deadline for the filing of election protest or quo warranto before the HRET simply states "within 15 days from proclamation period." If we were to follow the pronouncement in Reyes strictly, the petition cannot be lodged with the HRET unless the protestee is a member. When does membership commence? Noon 30th day of June because that is the only time when the proclaimed winning candidate can assume office. By then, the 15 days from proclamation would have already long lapsed. Next point: let us say, it is already noon 30th day of June, pwede na mag-qualify, pwede na magassume into office. Umpisa na yung term, meron nang vacancy. Pwede ba mag proper oath? As defined in Reyes v. COMELEC, proper oath is one done in open session. So pwede na ba mag open session ang Congress at noon of 30th day of June? Sec. 15 says "4th Monday of July ang opening session niya."

Now we go back to the absurd pronouncement of Reyes. 4th Monday of July, hindi sila pwede mag open session because none of them has taken his oath. Why? Because no speaker has been elected. Why have they not elected a Speaker? Because they cannot convene in open session. Why can they not convene in open session? Because they have not taken up proper oath before a Speaker? That is Reyes v. COMELEC. Remember you cannot compel the HRET to change its rules. Independent yan eh. But it has changed its rules now. Look at how the rules have changed. Present HRET Rules: The deadline now is this, based on the 2017 rules: if the winning candidate was proclaimed before noon 30th day of June, the deadline for the election protest would be within 15 days from June 30. But if the proclamation was done after June 30, then the deadline would be within 15 days from the date of the proclamation. That still does not resolve my concerns about the absurdity of that decision. COMMISSION ON APPOINTMENTS

Art. VI Section 15. The Congress shall convene once every year on the fourth Monday of July for its regular session, unless a different date is fixed by law, and shall continue to be in session for such number of days as it may determine until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays, and

SECTION 18. There shall be a Commission on Appointments consisting of the President of the Senate, as ex officio Chairman, twelve Senators and twelve Members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented therein. The Chairman of the Commission shall not vote, except in case of a tie. 41



The Commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. The Commission shall rule by a majority vote of all the Members. The Commission on Appointments (CoA) is adjunct of the Congress, it is part of the Congress although it performs non-legislative functions. When the Congress is in session, the CoA is in operation as well. The membership in CoA from either chamber is chosen proportionately from the representations in either chamber including in the lower house, the party list. Remember, it [CoA] is presided over by the second (?) president who does not vote, except in cases of a tie. The required vote under this provision for the validity of the determinations of the CoA would be an absolute majority vote, a majority of all its members. SECTION 19. The Electoral Tribunals and the Commission on Appointments shall be constituted within thirty days after the Senate and the House of Representatives shall have been organized with the election of the President and the Speaker. The Commission on Appointments shall meet only while the Congress is in session, at the call of its Chairman or a majority of all its Members, to discharge such powers and functions as are herein conferred upon it. Section 19 is merely an organizational provision. SECTION 20. The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses incurred for each Member. Section 20 should be referred in connection with the matter of disclosures in the expenditures of the legislators. LEGISLATIVE INQUIRIES SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons

appearing in or affected by such inquiries shall be respected. Section 21 was discussed in the context of the legislative oversight competence of the Congress. This is not by way of conferment of the authority to conduct legislative investigations because this prerogative is inherent in the Congress (Arnault v. Nazareno). Remember the three limitations. If at all, this section prescribes the limitations in the exercise of the power to exercise legislative inquiry. In aid of legislation, that is one of the limitations. In the case of Dela Paz v. Senate where it was reiterated that the matter of the subjects of legislative inquiries is a political question. Note however the nuisance in some other cases, like the case of Bengzon v. Senate Blue Ribbon Committee which is a peculiar case. Bengzon v. Senate Blue Ribbon Committee G.R. No. 89914 November 20, 1991 Facts: This involves 39 corporations where Mr. Romualdez had shares. All of which were sequestered. Leading to forfeiture proceedings in the Sandiganbayan of the ill-gotten wealth. There were reports to the effect that Mr. Romualdez has sold all of the sequestered shares. The matter was already being investigated by the Sandiganbayan in connection with the ill-gotten wealth case which by the way is a civil proceeding. But it was then made a subject of a resolution of the Senate calling, convening a legislative inquiry committee. Issue: Whether the creation of the legislative inquiry committee was proper? Ruling: The SC argued that there is nothing there which indicates that the particular investigation is in any manner related to, much less in aid of any pending or proposed legislation. In this case, the Court nullified or restrained the continuation of the legislative investigation. Also, the subject of that inquiry is already being tackled by the Sandiganbayan.

Sec 23 (2) I already discussed this fully. Emergency powers where we talk about permissible delegations.

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APPROPRIATIONS We’ll now go to the appropriations prerogative of the Congress. For this purpose, I will discuss three basic provisions. SECTION 29. (1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. This is the provision that was breached by Malacanang in the case that we already discussed in Araullo v. Aquino. SECTION 29. (2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. I have already discussed this on the context of freedom of religion. This is the provision for the prohibition against sectarian purposes. SECTION 29 (3) All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government. If there were special laws providing for special projects of the government all amounts unexpended after the completion or the achievement of the goal would return back to the National Treasury. SECTION 24 All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments. The only requirement here is that all the items enumerated must originate from the House of Representatives. There is no requirement that the

final version which will evolve into law shall be the house version. Tolentino v. Secretary of Finance There is such a thing known as amendment by substitution which is usually done by the Senate for purposes of finally having a version as the one which will evolve into law. Remember that the subjects of legislation must originate from the House of Representative. appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills. An example of private bills are bills conferring citizenship upon certain individuals like Gilas Basketball players. There are seven specific constitutional limitations on the power of appropriations. Before I proceed with the seven, I discuss first the two extraconstitutional limitations prescribed on the power of appropriations. Pascual v. Secretary The principle here has been emphasized by the three recent pronouncements of the Supreme Court involving local government units. The two extraconstitutional limitations are that (1) Every appropriations measure must be for a public purpose and (2) The amount appropriated must be specifically determinate or at least determinable. In that context a law providing for an amount of not more than Php 5 Billion is determinable because it is fixed, not more than Php 5 Billion. Section 25. 1. The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law. Mr. Secretary, you must have heard about the recent promulgation of the decision in Belgica v. Executive Secretary. Wala na po kaming 70M. We’re worried of our scholarship programs. Pwede po ba na yung 70M na ginagamit po talaga namin for scholarship, ikakarga namin sa appropriations niyo tapos let’s just execute memoranda of agreements para matuloy ang aming scholarship program.

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That is adding to the appropriations of budget proposed by the executive. UNCONSTITUTIONAL on the basis of Art. 6, Sec. 25(1).

is necessary. Failing which or absence which, that special appropriations measure should indicate some revenue raising measure. If only to ensure that that special appropriations measure would be supported with actual funds.

2. No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates.

Rationale: In the past, before this was installed in our Constitution, our legislators would often go to their constituencies, papakita, ang kapal, o kita niyo yung mga bills na aking sinumite sa Kongreso. Oh unang bill ko, magpapagawa tayo ng tulay diyan. Pangalawang bill, magpapagawa tayo ng ilog sa ilalim ng tulay. Knowing fully well that there are no funds. They are using their appropriations prerogative for campaigning purposes which is why it is now required that for any special appropriations bill, it must be supported by either of those two: 1) certification by the Treasury for the existence of funds or 2) some revenue raising measure.

This the provision prohibiting riders in general appropriations act. We discussed this when we tackled Gonzales v. Macaraig. Garcia v Mata G.R. No. L-33713 July 30, 1975 GAA consists of volumes, it is usually thick. In one of these GAAs, there is this provision which talks about special retirement privileges given to retiring AFP generals. SC: That is a rider in violation of Art.6, Sec. 25 (2). 3. The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies. The third limitation in the third paragraph is to prevent the Congress from approving subrosa, secretly appropriating for itself. The requirement here is whatever process is pursued by the Congress, in handling the appropriations for other branches, that same procedure must be observed with respect to the approval of the appropriations for itself. Para walang secret appropriations in favor of the Congress. 4. A special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposal therein. Special appropriations bill. Public purpose is still required. The matter of the certification from the National Treasury as to the existence of funds supportive of this special appropriations measure

5. No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. The fifth limitation was discussed already when we tackled the matter of separation of powers, principally Araullo v. Aquino. 6. Discretionary funds appropriated for particular officials shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law. The sixth limitation is about discretionary funds which must be subject to requirements of law, supported by vouchers, public purpose. Araullo v Aquino G.R. No. 209287 July 1, 2014 Yung mga tinatawag na calamity fund, intelligence fund and discretionary fund, they are items of appropriations subject to this limitation specified in Art. 6, Sec. 25 (6).

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Intelligence funds and discretionary funds. They are items of appropriation subject to the limitations and prohibitions in Section 25. Finally th the matter of the 7 limitation. Automatic Re-appropriation clause. SECTION 25 (7) If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until the general appropriations bill is passed by the Congress If for any reason the General Appropriations Act for the ensuing fiscal year shall not be approved or evolved into law, the current GAA shall be carried over in its application to the next fiscal year until such time as the new GAA might have been properly approved or evolved into law. No organization can work without a budget that is why there is a continuing need for the appropriation measures to be in place. Section 26: Procedure for approval of bills SECTION 26. (1) Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. The title is not supposed to be a complete specification of the subjects. The importance of this requirements is to prevent surprise or fraud upon the legislators and to prevent hodge-podge or log-rolling. In all of the cases that has tackled this provision, in almost every major law that was challenged this was raised as an objection. So long as the questioned provision is germane to the basic concept of the title then it is allowable. For Example, Giron v. COMELEC G.R. No. 188179 January 22, 2013 It was an amendment to the Fair Elections Act. This amendment repealed Section 27 of the Omnibus Election Code that stated that if run for a position lower than your post, you will be considered as having forfeited your seat. You do

not forfeit it if you run for re-election or for a higher seat. Sabi ng Supreme Court, germane naman, Section 26. 1. Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. Hodge Podge/ Log Rolling Legislation Log Rolling Legislation- refers to the process in which several provisions supported by an individual legislator or minority of legislators are combined into single piece of legislation supported by majority of legislators on quid pro quo basis; one provision may command majority support, but the total package will. Example. There is this Congressman, declaring me to be the most handsome man in the universe. Hindi papasa yon. So, maghahanap siya ng mga ibang tanga. One, declaring you to be the tallest person in the universe. You, declaring you to be the sexiest. Ipagsasamasama ng mga minority bills nila para magkaroon sila ng majority vote. That is log rolling legislation. Section 26. 2. No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed , and vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal. As to the procedure for the passage of a bill, three readings on three separate days. First reading; title and number referred to in the Committee after the deliberations submitted. For the second reading; debates, after the debate, amendments are introduced. Remember that three days before the third reading, final legislation to be distributed to each legislator. On third reading, they vote. Votes are required to be recorded.

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Tolentino vs. Secretary of Finance G.R. No. 115455 October 30, 1995 Remember if there were a presidential certification as to the existence of emergency and national calamity, three readings on three separate days can be set aside as required. Even the printed final version requirement is also set aside. The only other point in Tolentino vs. Secretary of Finance regarding the so called Conference Committee, often referred to as Bicameral Conference Committee. Not provided for in the Constitution but very powerful, provided for by the uniform rules of both chambers. Remember that this Committee comes up with the final version of the bill after reconciliation of the conflicting provisions of either chamber. Here’s my point, once the final version is approved by the Conference Committee, there is no need for that final version to be again subjected to another three separate readings on three separate days. This final version can be approved by simple majority of either chamber, in which case, it becomes an enrolled bill. When does it become an enrolled bill? Upon certification to that effect, signature of the Senate President, and Speaker, coupled with the signatures of their respective secretaries. Once signatures are obtained, it is an enrolled bill. Now, it is competent to be submitted to the president, following the rule on presentment. Casco Chemical vs. Jimenez G.R. No. L-17931 February 28, 1963 Once an enrolled bill has been submitted and acted upon by the president, you cannot change the tenor of the enrolled bill by merely referring in legislative journals. In Casco Chemicals vs. Jimenez, the exception was intended to favor two separate chemicals; urea and formaldehyde. In this enrolled bill which was approved by the president, there was a typo error. The conjunctive word “and” separating urea and formaldehyde was not included. Therefore class, the tax exemption was clearly on the basis of the approved bill which is now a law, extended to urea formaldehyde which is a separate chemical, resulting from the mixture of the two other chemicals of urea and formaldehyde. That is not the intention said the proponents of the law. Look at the legislative journals, it is clear, the word “and” separates the two.

RULING: The remedy is not to rely on legislative journals. The remedy is to amend the law. You cannot change the tenor of the approved bill by merely referring to the legislative journals. Remember the case of Casco Chemical v. Jimenez: CASCO CHEMICAL CO. Inc. v. Jimenez G.R. No. L-17931 February 28, 1963 The exemption was intended to favor two separate chemicals. (1) Urea and (2) formaldehyde. In the enrolled bill which was approved by the President there was a typo error. The conjunctive word “and” separating Urea and formaldehyde was not included. Therefore, the tax exemption was clearly on the basis of the approved bill which is now law extended to Urea formaldehyde which was a separate chemical altogether resulting from the mixture of the two chemicals. That’s not the intention said the proponents of the law! Look at the legislative journal it is clear that the word “and” separates the two! SC: The remedy there is not just to rely on the legislative journals. The remedy there is for you to amend the law. The law is patterned to after the enrolled bill which is the one submitted to the President pursuant to the rules on presentment. ASTORGA v. VILLEGAS G.R. No. L-23475 April 30, 1974 Prinesent yung enrolled bill. But before the President can act, the Congress noted the errors for which reason there was a formal withdrawal of the signatures of the Senate President, the Speaker, and their respective secretaries. Result of the withdrawal of the signatures, there was no enrolled bill. They were free to change it and then submit it again with the proper signatures, a new enrolled bill was given. That was finally approved. Section 27 (We have already tackled the matter of voting procedures as well.) Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to 46



reconsider it. If, after such reconsideration, twothirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had signed it. (2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object. The rule on presentment is indicate it there. Let’s go now to the second paragraph of Section 27. Gonzales v Macaraeg G.R. No. 87636 November 19, 1990 The rule is that when the President vetoes, he vetoes in toto (in total). Ex: If the bill was severable in character as can be gleaned from the separability clause which the Congress will usually indicate. The Express Constitutional exception can be found in the second paragraph of Section 27. The President can effect “partial” veto with respect to appropriation, revenue, and tariff measures. That the matter of the partial veto here was that no an item of appropriation but a provision. Which provision was further considered by the Court as unconstitutional because it contravened the limitation of prohibition against riders in appropriation measures. That provision did not relate to any particular item of appropriation therefore consistent with par 2 of Sec 27. It was considered unconstitutional. Bolinao v Valencia G.R. No. L-20740 June 30, 1964 Appropriation measure providing funds for cetain Mass Media facilities in Provinces. To that item, was attached a condition to wit: If there were in the province already existing such media facilities, then such appropriations shall not be available. That was the condition attached. You will recall that the old Macapagal approved the item but vetoes the condition.

Recall the old Macapagal: The item was approved, but the condition was vetoed. SC: The approval of the item carried with it the necessarily the approval of the condition. Because the condition is NOT item of appropriation, and therefore, cannot be partially vetoed. Section 28. 1. The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. 2. The 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. 3. Charitable institutions, churches and personages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. 4. No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress. Section 29. 1. No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. 2. No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. 3. All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government. Section 30. No law shall be passed increasing the appellate jurisdiction of the Supreme Court as

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provided in this Constitution without its advice and concurrence. Again, remember Carpio-Morales v. CA: st • 1 paragraph – not jurisdiction conferring statute, it undermines the rule making power of the SC – INEFFECTIVE nd • 2 paragraph – UNCONSTITUTIONAL because it violates Section 30. Section 31. No law granting a title of royalty or nobility shall be enacted. How come we have Datus and Sultan? Are they not titles of nobility and Royalty? -

They are not conferred by law, they are culturally conferred! The one that is prohibited is the one conferred by law.

Section 32. The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters thereof. RA 6735: SALIENT FEATURES - INITIATIVES AND REFERENDUM (ART. 6, SEC. 32 TOGETHER ART. 7 AS IMPLEMENTED BY RA 6735) Initiatives on Statutes (national legislation) 1. Must be supported by at least 10% of the total number of registered voters with 3% of each legislative district thereof 2. Features: a. Every petition must only have one proposition which must only have one subject, embraced in the title of the proposition. b. There can be no proposition for the purposes of amending or repealing a law which has been passed by Congress on an emergency basis until after 90 days from the effectivity of such law

Initiatives on Ordinances (local legislation) 1. Features: a. One petition can have more than one proposition provided that each of those propositions should be within the competence of the (pertinent) local legislative council prescribed under the local government code 2. Indirect Initiative a. Lobbying
 b. Any accredited citizens group can file an indirect initiative petition with the Congress by way of recommending (or urging) Congress to pass a law on the basis of that petition. 3. Limitations – If an ordinance were approved in a referendum, the local legislative council concerned is not allowed to amend or repeal such ordinance until after one year from its effectivity. The local legislative council shall have only 3 years within which to repeal it. But with respect to barangays, it is 6 months and 1 year. 4. Nothing in RA 6735 prevents the Congress from amending or repealing a proposition which had been approved by the people through initiative and referendum. (SIR, congress can repeal whatever we approve as national legislation) The matter of the petition would have to be scrutinized or finally approved or rejected in a referendum. The referendum will vary depending on what is being amended or enacted. In either case, if the required percentages to support the petition are met, national (10% + 3%) or local (region, province, city – 10% + 3% but municipality + barangay, only 10% because there are no legislative districts there) The way to approve them is by referendum. (majority vote) It then becomes a law or ordinance.

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Initiatives on Amendment of Constitution Problem of Sir: Can the Congress repeal these propositions that we have approved? Two perspectives 1. The power to make law includes the power to amend or repeal law. Thus, this proposition that we approve (which is now law) is subject to the basic legislative power of the congress which can therefore amend or repeal the law. Sir: Theory that he thinks is right. 2. The law we have approved through initiative is different (from the laws that congress pass) because this is sovereignty resides from the people. Thus, you can submit that these laws we have submitted through initiative is beyond the legislative powers (repealing or amending power) of the Congress. Note – there is no provision, law or jurisprudence on this part.

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POLITICAL LAW REVIEW Atty. Carlo Cruz November 13, 2019 THE EXECUTIVE DEPARTMENT Does the President possess the totality of executive power? No. He does not enforce election laws because this is conferred upon the COMELEC therefore in that sense it is not absolutely his executive power. Another instance where the President is subordinated to the COMELEC: in the exercise of his pardoning power. Recall that Sec. 5, Art. IX-C provides that you cannot pardon for election offenses without the prior favor or recommendation of the COMELEC. Art IX-C Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission. A note on Marcos v. Manglapus: Remember that it was an 8-7 vote. A few months after it was promulgated came the case of Laurel v. Garcia. Laurel v. Garcia G.R. No. 92013 July 25, 1990 The Court indicated that the President Corazon Aquino on her own authority could not, without express authorization, under the law sell our Roponggi property in Japan. So the effect is that the President does not possess the totality of executive power. Review Center Association of the Philippines v. Executive Secretary G.R. No. 180046 April 2, 2009 President Gloria Arroyo on her own authority by Executive Order (EO) sought to impose new standards on review centers. This happened shortly after nagkadayaan sa PRC with the nursing exam. The Court nullified the EO because under the Administrative Code, there is mention of this concept called residual power. The President may only exercise such powers as are expressly conferred upon him either under the Constitution or the law, or those which by

necessary implication can be claimed as well by him. Executive Privilege See previous discussion Bar exam question: The Secretary on his own authority invoked executive privilege for purposes of rejecting the request for him to disclose certain matters which he claims took place in a closed door cabinet meeting. There are two answers: (1) executive privilege pertains to the President only. The facts do not indicate that there was any extension of this privilege in favor of the Secretary or (2) based on Sereno v. Committee of Trade, the executive privilege can attach to the character of the information sought to be disclosed. But you also have to understand that in that particular class, the Court placed the burden on the government to prove that it was really within the context of a closed door cabinet meeting (which it met therefore properly invoking executive privilege). Presidential Immunity See previous discussion Remember that the President is immune from all civil, criminal, administrative suits. This is by tradition. But if you were asked whether the President is absolutely immune from suit, the answer is no. Art. VII, Sec. 4 subjects him to election contests pertinent to his qualifications. An election contest, be it a protest or a quo warranto, is a suit. It is an action from which he is not immune precisely because the Constitution makes him vulnerable. Art. 11, sec. 2 makes him an impeachable officer. He can be a respondent there. Until fairly recently, Sec. 5 in relation to sec. 26 of the Rome Statute of the ICC, he would have been not immune from prosecution, detention, arrest, conviction, punishment by the ICC. SECTION 4. The President and the VicePresident shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date six years thereafter. The President shall not be eligible for any reelection. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time. 50



No Vice-President shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected. Unless otherwise provided by law, the regular election for President and Vice-President shall be held on the second Monday of May. The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes. The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately. The Congress shall promulgate its rules for the canvassing of the certificates. The Supreme Court, sitting en banc, 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 The function of the Congress as a canvassing body is one of only two instances where the Congress is required to meet in joint session. The canvassing is a ministerial function of the Congress. It is limited to the genuineness and due execution of the returns. Any question arising from the validity of the conduct of the election would have to be lodged with the Supreme Court acting as the sole judge of all these contests. Recall Macalintal v. PET. The matter of resolution of election contests is essentially a judicial power. In terms of inhibitions of regarding engaging in profession, in business, conflicts of interest, financial interest, the principle is to ensure that the president be focused on his functions.

Hypothetical situations: 1. The President is a successful lawyer and he had many pending cases in the SC before his assumption of the presidency. All are decided and attorney’s fees are awarded in his favor during his term. Can the he collect the fees during his incumbency? Yes. The point is he did not do any work on those cases when he was president. All the work he did was before he was president. 2. A president author who continues to collect royalties for books he wrote before he became president. Nothing is wrong. SECTION 5. Before they enter on the execution of their office, the President, the Vice-President, or the Acting President shall take the following oath or affirmation: “I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President (or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God.” (In case of affirmation, last sentence will be omitted.) In this particular provision of the Constitution.

SECTION 7. The President-elect and the VicePresident-elect shall assume office at the beginning of their terms. If the President-elect fails to qualify, the VicePresident-elect shall act as President until the President-elect shall have qualified. If a President shall not have been chosen, the Vice-President-elect shall act as President until a President shall have been chosen and qualified. If at the beginning of the term of the President, the President-elect shall have died or shall have become permanently disabled, the VicePresident-elect shall become President. Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives shall act as 51



President until a President or a Vice-President shall have been chosen and qualified. The Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or a VicePresident shall have qualified, in case of death, permanent disability, or inability of the officials mentioned in the next preceding paragraph. We are also done in the rules of succession in the presidency and vice presidency in context to sec. 68 and 78 of the Omnibus Election Code. By way of emphasis only, let me point out, that it is in section 7 of the first 2 categories when the President-Elect have not been chosen or shall have failed to qualify, this is only the first of 2 instances when the VP is allowed to act. The only other instance is discussed already in the “ping pong provision”, section 11, regarding the continued ability of the president to discharge his duties. SECTION 11. Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President. x x x x 2

instances President

when

VP

may

act

as

1. President-Elect have not been chosen or shall have failed to qualify or 2. “Ping-pong provision” where the ability of the president to discharge his duties is in question. SECTION 9. Whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected, the President shall nominate a Vice-President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately. If the VP ascends to the Presidency by succession, leaving the Vice Presidency vacant, then the President’s successor is authorized to

nominate his replacement in the Vice Presidency. His replacement must be nominated from the membership in the Congress and that nomination shall be validated by concurrence of majority of all the congress voting separately. SECTION 10. The Congress shall, at ten o’clock in the morning of the third day after the vacancy in the offices of the President and Vice-President occurs, convene in accordance with its rules without need of a call and within seven days enact a law calling for a special election to elect a President and a Vice-President to be held not earlier than forty-five days nor later than sixty days from the time of such call. The bill calling such special election shall be deemed certified under paragraph 2, Section 26, Article VI of this Constitution and shall become law upon its approval on third reading by the Congress. Appropriations for the special election shall be charged against any current appropriations and shall be exempt from the requirements of paragraph 4, Section 25, Article VI of this Constitution. The convening of the Congress cannot be suspended nor the special election postponed. No special election shall be called if the vacancy occurs within eighteen months before the date of the next presidential election. This would address the situation when the President and the Vice President would die simultanenously. Remember that in this provision within 3 days the Congress is required to convene. It is the Constitution itself which makes the call for this particular session. Within 7 days thereafter it is required to pass a special law calling for a special election. This bill would be exempt from the requirement of 3 readings in 3 separate days and also the printed copies to be distributed. Second, it is also exempt from para. 4 sec. 25 which requires the certification of the National Treasury of the availability of funds. Any funds or appropriations available can be utilized for the purposes of the conduct of the special elections. Understand though that in the last clause of this provision that if the simultaneous deaths would occur within 18 months of the next scheduled presidential elections, then wala nang special elections. Whoever succeeds, you follow sec. 8, first the senate president then if not available the speaker of the house. Effectively, that speaker, on the basis of sec. 8, would become the president for the remaining 18 months. 52



SECTION 12. In case of serious illness of the President, the public shall be informed of the state of his health. The Members of the Cabinet in charge of national security and foreign relations and the Chief of Staff of the Armed Forces of the Philippines, shall not be denied access to the President during such illness. In cases of serious illness of the President, access to him shall still be available to the three officers mentioned therein: 1. The Secretary of Foreign Affairs; 2. National Security Adviser and; 3. The Chief of Staff of the AFP. SECTION 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including governmentowned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. 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 and their subsidiaries. Already discussed in the context of incompatible office. SECTION 14. Appointments extended by an Acting President shall remain effective, unless revoked by the elected President within ninety days from his assumption or reassumption of office. Also discussed by emphasizing on the fact that an acting-president can exercise all of the powers of the elected president. Even the power to make permanent appointments. It can be deduced here

because it gives the President the authority to revoke the said appointments made by the acting-president within 90 days from the restoration or the assumption into office of the elected-president. SECTION 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. Many refer to this section as the midnight appointments provision. I take exception to that because it defeats or it negates the concept of midnight appointment. Remember that a midnight appointment is one made by the President in anticipation of his loss of his appointment authority. In that sense, understand class that the midnight appointment is not necessarily unconstitutional. Well when we speak of the appointment covered by the prohibition and note that prohibition starts from 60 days of the start of the scheduled presidential election and up to the end of his term. When we speak of appointments made during that period, we do NOT refer to them as midnight appointments. We refer to them as prohibited appointments. In the context of Sec. 15, midnight appointments are those made by the President BEFORE the start of the 60-day period. All other appointments done during the period except for temporary appointments to executive positions if continued vacancies would endanger public safety or public health, are prohibited. They cannot be considered midnight appointments because, again, only those before the 60-day period are midnight appointments. Are midnight appointments necessarily unconstitutional? The answer is a categorical NO. In Aytona v. Castillo (1961). Garcia lost the presidential elections to Macapagal who was proclaimed Dec. 9. From Dec. 9 to 29, Mr. Garcia made a total of 350 appointments. 29 was the last day of work so he stopped the appointments on that date. When Macapagal took over the office, his first day, he issued A.O. 2, recalling all of the 350 appointments made by Garcia. Aytona, appointed as the Central Bank Governor at that time, sued for Quo Warranto. The cause of action was the constitutionality of Macapagal’s A.O. 2. 53



The Court said: it was a political question. Essentially, the petition was dismissed. The effect of this dismissal is that A.O. 2 was upheld, because it was presumed to be constitutional. It had the final effect of revoking all the 350 appointments. NOTE: Nowhere in that case was it mentioned that the 350 appointments were unconstitutional.

2. The TRANSMITTAL or SENDING of the signed written appointment to the appointee; 3. The RECEIPT by the appointee of the written signed appointment; and most important of the 4 4. The ACCEPTANCE by the appointee of the appointment.

[Direct quote]: “The filling up vacancies in important positions, if few, and so spaced to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee’s qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and planned induction of almost all of them a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby deprive the new administration of an opportunity to make the corresponding appointments.”

Well insofar as the fourth requirement is concerned I take you back in History and ask you to recall that old case of Lacson vs. Romero

Sec. 15, therefore, prescribes a PERIOD wherein or during which a person is not allowed to make appointments anymore except temporary appointments made to executive positions when continued vacancies would endanger public health or public safety. In Castro v. JBC, remember that because of the intercession of the JBC by way of filtering the nominees for appointment to the Judiciary, ALL appointments to the judiciary are exempted from the prohibited period prescribed in Sec. 15. NOTE: Not just appointments to the Supreme Court, even appointments to the lower courts are included in the exemption. In Velicaria-Garafil v. Office of the President (2015) Arroyo, from Mar. 5-9, made several appointments, knowing that Mar. 10 is when the prohibited period begins. What was challenged were the appointments made by Arroyo from Mar. 5-9. Maraming opinions, midnight appointments, discussions. But the Court was unanimous on this particular point and this is important for you to remember. The appointment process entails a four (4) step procedure: 1. The SIGNING of a written appointment;

The city fiscal who was disliked by the appointing authority, the President. He was given an appointment to become a Provincial Fiscal somewhere in the North, (Ilocos Norte yata). Immediately the President appointed a replacement City Fiscal. Wait, sari ni Lacson, why are you replacing me, my position is not vacant. I have been appointed but I have never accepted your appointment. I never vacated the City Fiscal position. Neither was I removed. There the Supreme Court stressed that to complete an appointment, there must be acceptance on the part of the appointee. Now let’s travel back to today, maraming opinions class but the Court, the Justices were unanimous on this particular point. Those appointments March 5-9, almost all of them, they were not complete appointments. The writing, the signing was done, the transmittal on some of them were actually received March 10, but it was not shown that all of them were accepted by the appointees before March 10. Well, here’s the thing, if the four steps would have been competed during the prohibited period, then they would have been unlawful, unconstitutional. So, almost all of these appointments done by Gloria in that case were declared UNLAWFUL, UNCONSTITUTIONAL. One other point that I would like to stress would be the fact that Gloria made appointments before March 10, to positions which were before March 10 were not yet vacant. She made appointments in ANTICIPATION OF VACANCY which would arise during the prohibited period. Diba? so the Court said, unlawful. You cannot appoint a position which is not vacant, VERY BASIC, VERY FUNDAMENTAL. We go to SECTION 26: Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive 54



departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproved by the Commission on Appointments or until the next adjournment of the Congress. I tackled the distinction between ad interim and regular appointments, Matibay vs. Benipayo. Remember that ad interim and regular appointments are permanent appointments. They are not appointments “in acting” or “designated capacities.” Well insofar as the first paragraph, I will just reiterate what I have told you already. There are six (6) classes of appointees, that can be effected by the President on the basis of the first paragraph: 1. Cabinet Secretaries; 2. Diplomats; 3. Soldiers from the rank of naval captain or colonel; 4. other officers whose appointments are vested in him in this Constitution; 5. officers of the Government whose appointments are not otherwise provided for by law; and 6. those whom he may be authorized by law to appoint Remember Sarmiento vs. Mison, of those six categories, ONLY the first four require concurrence by the Commission on Appointments. Remember the case of Lista vs. Soriano: By Executive Order Mr. Ramos removed the Philippine Coast Guard from the ambit of the Armed Forces and transferred it under the auspices of the Department of Transportation, then it was still “and Communication.” Well the

pronouncement of the Court here that that executive order transferring had resulted in the exception now of the appointments and promotional appointments in the Philippine Coast Guard from the concurrence requirement prescribed in Section 16. Kasi nasa Civil na eh hindi na Armed Forces. The intention there of the of these officers, naval captain and colonel, the intention is in favor of the Armed Forces but since they were transferred to the DOTC, they were removed from the concurrence requirement. Pero I add one more case there, the case of Caballero vs Philippine Coast, in this particular case, the issue is “subject pa ba ang Philippine Coast Guard officers and personnel to the jurisdiction of the Military Courts or… Caballero v Philippine Coast Guard (PCG) GR 174312 Sept. 22, 2008 In this particular case, the issue was whether our PCG personnel officers subject to the jurisdiction of the military courts or are they subject to military laws, considering that as prescribed in another case, they have been removed from the Armed Forces. SC: The only thing we said is that there would be no need for concurrence anymore for the appointments and promotion in the PCG. There was nothing said to the effect that PCG shall now be subject to the jurisdiction of CSC. They are still the soldiers and personnel of PCG, subject to the authority of military courts on the basis of military laws. Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. POWER OF CONTROL It is not absolute in the context of doctrine of exhaustion of administrative remedies. But considered as absolute if taken in the context of a 2018 case to which the SC ruled: By law, certain branches or agencies of the executive department, cannot be removed from the power of control of the President. Therefore, the President retains the coverage of the power of control. Certainly, it is fixed, extends to all branches within the executive branch and Congress may not do anything by way of

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statutorily limiting the coverage of this particular function. In so far as the faithful execution clause (that laws be faithfully executed) is concerned, can the President refuse to enforce a law? NO. Because then in effect his authority will be actually repealing a law which will then violate the doctrine of separation of powers. Saguisag v Executive Secretary GR 212426 Jan. 12, 2016 Taking care of our laws is a DUTY, NOT JUST A POWER reserved to the President. He is commanded to enforce our laws. Instances cited in this case:

MILITARY POWERS Three military powers 1. Calling out provision entitling him to call out the Armed Forces to suppress violence, invasion or rebellion 2. Declaration of martial law. Two grounds: a. To suppress invasion, when public safety requires it b. To suppress rebellion, when public safety requires it 3. Suspension of the privilege of writ of habeas corpus (same two grounds as above)

The President enforce transportation projects, enforces or implements the organic act for the autonomous regions, confers the award to national artists. This duty includes the power to enforce treaties or international agreements. Certainly, this duty also includes the duty to protect our EEZ.

In so far as the first two are concerned, I do not see any real difference, except in calling out, there is another ground provided (suppress lawless violence). But remember, this is done even in the context of martial law. When Martial law is declared, it is summoning by the President of greater assistance from the AFP for purposes precisely of suppressing the two or either of the two grounds allowed for the declaration.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.

Invasion - there is presence of foreign military minds in our territory who had been killing Filipinos.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus. The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion. During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

Rebellion – defined in the RPC. Let’s focus on the grounds: invasion. There is presence of foreign military mind in our territory and soldiers from the alien lands would be killing Filipinos. Don’t tell me that the president won’t be authorized then to summon support from the armed forces to protect us. In a similar way, rebellion as defined in the RPC. There is chaos. Therefore, there is perfect justification for the summoning of resistance from the armed forces for purposes of addressing the rebellion. These are exceptional circumstances sought to be addressed by these provisions in Section 18. Under a state of martial law, warrantless arrests may be done, searches and seizures without warrants, all okay. Banning of lawful assemblies, the closure of mass media establishments, full control over public utilities – even now, those things can happen in times of peace. Are warrantless arrests and searches and seizures allowed today? Of course. Take that in proper context: Invasion. There are foreigners who have invaded us. Don’t tell me we won’t allow in flagrante warrantless arrests and therefore, valid

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warrantless searches stemming from those warrantless arrests? Suspension of the privilege of the writ of habeas corpus This has been referred to as the Palladium of Liberty and also the Writ of Liberty. Everytime a writ of habeas corpus is applied for, the writ is a command to produce the body of the person detained and for the one detaining him to justify the detention. When a writ is applied for, it must ALWAYS issue. Suspended man o hindi, it must nd always issue. Nagkakatalo sa 2 phase of the habeas corpus proceeding with the matter of the justification portion. So the writ is issued, the body of the person detained is produced before the court, and then if the privilege of the writ is suspended in the area where it was issued, then that manifestation can be made. Upon making of which, further proceedings can be deferred or suspended precisely because the privilege shall have been suspended because of (1) invasion, (2) rebellion.

a. Lagman v. Medialdea, G.R. No. 231658, July 4, 2016 b. Padilla v. Senate, G.R. No. 231671, July 25, 2017 c. Lagman v. Senate GR No. 235935, Feb 06, 2018 While the Congress is required to convene, there is nothing in the Constitution which requires it to convene in joint session. If it does, it would not be because of the command by the Constitution. It would be by reason of its uniform rules and procedure. This is a political question. Why is the Congress required to convene upon receipt of the report in writing or in person done by the President? The matter of review by the Congress is to be considered as automatic. In other words, the declaration of the suspension is no longer to be considered a unilateral act of the President. It cannot be complete without the appropriate action taken by the Congress.

Kahit naman suspended ang privilege, wala naman kinaiba. You look at the penultimate and the last paragraphs of Section 18. Note that if the privilege of the writ of habeas corpus were suspended, arrests without warrants can be done with respect to offenses inherent to or related to rebellion, invasion. BUT note the requirement, “[…] those who are arrested must be judicially charged within 3 days.” If they are not judicially charged within 3 days, by command of the Constitution, they shall be released. My point is this: ano kinaibahan niyan today? We have the rule against arbitrary detention. How is it different from the suspension of the privilege of the writ of habeas corpus? Nothing. Once they are judicially charged, then the restraint in their liberty would have become lawful. What does Article 3 Section 15 provide? The right to bail shall not be impaired even if the privilege of the writ of habeas corpus is suspended. Is there a problem? There’s none.

It can concur. There is vote required to concur. Simple majority vote can do this and votes can be done separately even if not in joint session.

The framers of the Constitution designed this provision that way to ensure that those dark days will never happen again. That is assuming that the President will invoke these powers properly.

When it extends, it agrees to the request of extension – what vote is necessary? The same joint majority vote is prescribed by the Constitution.

1. When martial law [is] declared or privilege of the writ is suspended – the requirement is for the President within 48 hrs. to report the matter personally or in writing to the Congress. Within 24hrs, the Congress is required to convene.

How long may the extension be granted? For as long as it may be necessary per its discretion.

If it were to revoke – Simple joint majority vote is necessary. Joint majority vote need not be done in joint session. If these two chambers decide to meet, that is their call and not because they are required to do so under the Constitution. (Padilla v. Senate) 2. Every declaration or suspension, when the original period is fixed at 60 days – can this period be extended? Yes. Procedure for extension: The Congress can never motu proprio extend it on its own. It will always have to be at the instance of the President.

Remember the grounds – invasion, rebellion, etc. – who can set a date as to when these would end? There is proper reason for enabling interminable extension. 57



How many extensions can be granted by the Congress? As many as necessary but only at the instance of the President and always only upon joint majority vote of both chambers. 3. If martial law were declared, does it necessarily result into an automatic suspension of the privilege of the writ of habeas corpus? No. There has to be a separate declaration or suspension of the privilege of the writ of habeas corpus. In either case, declaration or suspension, the Constitution remains effective. The Congress remains operational and the Courts remain functioning. Is there an instance when military courts may be allowed to assume jurisdiction over civilians during martial law? Yes. Here we refer to the socalled “open court theory” – so long as the courts are open, military courts cannot exercise jurisdiction over civilians. There needs to be an entity to be able still to dispense justice, which is why the Constitution itself allows the military courts to assume jurisdiction over civilians but only if the courts are not functioning. Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. Section 19 pertains to the President’s pardoning power. It includes the concepts of fines, forfeitures, parole, and amnesty. Note: The concepts of interest penalties and surcharges are not covered by the pardoning power. 2016 Bar Examination Question: pardoning power absolute?

Is

the

Answer: It is absolute in the sense that it may not be circumscribed by statute. (Rosas-Vidal v. Estrada) The LGC provisions and the Omnibus Election Code laws may not provide for any limitation upon the President’s exercise of the pardoning power.

But it is to be considered as not absolute as well in this sense – the Constitution itself provides many limitations upon the President’s exercise of the pardoning power. Constitutional Limitations President’s Pardoning Power

Upon

the

1. It cannot be given except upon final conviction; 2. It cannot be granted in impeachment cases; 3. If it is an amnesty, it must be with the concurrence of Congress; and 4. No pardons covering election offenses can be granted by the President without the prior favorable recommendation of the COMELEC. Inherent Limitations Upon the President’s Pardoning Power 1. It cannot condone civil liability; and 2. It cannot condone or pardon for the purpose of setting aside legislative contempt or punishments because this will be in violation of the separation of powers. Parole v. Probation Parole Executive

Probation Judicial

Under certain circumstances, probation in favor of convicts for purpose relating to the harshness imposed for their conviction. In re case (Atty. Cruz forgot the title) Facts: There was an applicant for public employment. He was a convict. Imposed upon him imprisonment penalty with an accessory penalty of disqualification from holding public office. He was granted probation, then he applied for public employment. Ruling: The probation had the effect of setting aside all effects of the penalty imposed upon him, including the matter of disqualification from public office. Therefore, the SC considered him eligible for public employment. Pardon Pardon requires acceptance of the potential party before it can be effective. Classifications: Pardon may be classified as plenary or partial. It may also be absolute or conditional. 58



In absolute there is no problem. I refer to the case of Estrada again. The contention was that the pardon granted in his favor by GMA was conditional. Reference was made by the petitioner in one of the clauses which indicated that there is an undertaking that the person will never run for public office. Petitioner here saw that as a condition and his claim is that because Estrada ran for public office again that he should be considered to have violated the condition attached therefore he should be ineligible and should be recommitted to jail. The SC said that was wrong. When you assess the character of the pardon, you do not assess the preamble clauses. You go to the body of the text. The body of the pardon granted to Estrada clearly indicated that he is fully restored to all of his civil and political rights. There was no condition attached. Therefore, the Court considered it to be absolute pardon. Note that there was a screenshot of the pardon and to the right there was the handwriting of Estrada which says, “I accept” and he signed. Which indicates that even an absolute pardon needs to be accepted. All the more reason that the conditional pardon should require acceptance. Why? Because in Conditional pardons, usually the condition is coextensive with the remainder of the penalty. Example. This rapist is convicted and sentenced to Reclusion Perpetua. After having served 10 years, he is given a conditional pardon. The condition being that he would not have sex with the opposite sex. He should be able to reject that particular condition and just stay in prison. If the condition attached to the pardon is violated, three remedies are available to the State. First, administrative or executive. This is the basis of the case if Espuelas v. Provincial Warden of Bohol. He can be ordered recommitted. Second, there is a provision in the Revised Penal Code which punishes violations of conditional pardons which is a separate offense. Third, if the act which constituted a violation of the condition would on its own constitute a separate offense, then he can be prosecuted for that separate offense. Example, he was convicted of an election offense and the condition was “do not commit another election offense again” and then he bought votes which is a separate offense. Both prosecutions may proceed independently of each other and concurrently and simultaneously without offense to the principle of double jeopardy. This is according to the case of Cunanan v. Director of Prisons. The case of

Espuelas was reiterated in the 1990s in the Teehankee Court in the case of Sumulong v. Garcia. Espuelas v. Provincial Warden of Bohol G.R. No. L-13223 May 30, 1960 There was this guy, election offender – convicted – pardoned (conditional – do not commit another election offense). He committed another election offense for which he was prosecuted before the court but the case against him was dismissed because the witness had not shown up. After the provisional dismissal of the case, the DOJ ordered him sent back to prison, he was recommitted. He sued for Habeas Corpus. His basic contention was he was never convicted for that election offense claimed to be a violation of the condition. Said the SC, “Mere commitment is enough; conviction is not necessary.” This ruling was reiterated in Sumulong v. Garcia. Sir’s opinion: Here is the problem with that case— who determines whether or not a crime had been committed? It is the judiciary. The executive can only allege. But in this particular case, the executive determination of commission of the offense constituting a breach of the condition was enough. People v. Salle G.R. No. 103567 December 4, 1995 Salle’s case was pending appeal before SC. He suddenly filed a Manifestation that he had obtained a pardon. The SC gave accusedappellant 30 days within which to withdraw appeal for purposes of validating the pardon. This is the modus vivendi that had been pursued by the SC in other cases after People v. Salle. Sir’s opinion: how can you validate something which is void? His appeal was still pending with the SC, so the element of final conviction is not there. The only practical reason for adopting this is to lighten the workload of the courts. But how can those pardons be valid without the element of final conviction? Art. VII, Sec. 19. xxx He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.

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Note the 6 basic distinctions between pardon and amnesty: 1. A pardon pertains to specific individuals; amnesty pertains to classes of individuals or groups of persons. 2. Pardon refers to infractions against the peace of the State; amnesty involves crimes against the State like rebellion, coup d’état, etc. 3. Pardon is a private act of the President which must be pleaded and proved; an amnesty is, upon decree, judicial notice which should obligatorily be observed by all in government. 4. A pardon would necessitate acceptance by the pardonee; in amnesty, no acceptance is required. However, People v. Vera (G.R. No. L-26539, Feb. 28, 1990) instructs that for an amnesty to be valid, there must be a prior admission of guilt. 5. A pardon does not require concurrence by Congress; an amnesty, by express provision in Sec. 19 (supra) requires a concurrence by a vote of majority of all members of Congress. 6. A pardon looks forward and obliterates the further consequences of the conviction; an amnesty looks backward and obliterates the offense itself as though it had never been committed. Garcia v. Chairman of the Commission on Audit G.R. No. 75025 September 14, 1993 This employee of the Bureau of Telecommunications was summarily dismissed on the ground of dishonesty. After that, he was charged of qualified theft before the regular courts. The court acquitted him, not only because there was no proof beyond reasonable doubt, but because the court expressly pronounced that he did not commit the offense. Armed with this tenor of his acquittal, he went back to the BOTC and requested his reinstatement. [Remember: Police Commission v. Lood: on quantum of evidence: proof beyond reasonable doubt, substantial evidence.] His request for reinstatement was denied. Unfazed, he went all the way to the Executive Secretary. The Executive Secretary then granted him executive clemency and directed his reinstatement. That executive clemency has nothing to do with the pardoning power. However, it has something

to do with the President’s exercise of his power of control. That order directing the reinstatement was by way of reversal of the prior order of the Secretary of the DOTC, providing for his dismissal. Excerpt: It is worthy to note that the dismissal of petitioner was not the result of any criminal conviction that carried with it forfeiture of the right to hold public office, but is the direct consequence of an administrative decision of a branch of the Executive Department over which the President, as its head, has the power of control. The President's control has been defined to mean "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to the judgment of the former for the latter." In pardoning petitioner and ordering his reinstatement, the Chief Executive exercised his power of control and set aside the decision of the Ministry of Transportation and Communications. Monsanto v. Factoran, Jr. G.R. No. 78239 February 9, 1989 The assistant treasurer of Calbayog City was convicted of the complex crime of estafa thru falsification of public documents. Eventually, she was granted, by President Marcos, absolute pardon, which she accepted. Armed with this pardon, she insisted that she be reinstated back to her previous position. The Court held that the statement that she is restored fully of all her civil and political rights does not include her automatic reinstatement. At best, the pardon only restores her eligibility to apply for that particular position. Excerpt: It is clear from the authorities referred to that when her guilt and punishment were expunged by her pardon, this particular disability was likewise removed. Henceforth, petitioner may apply for reappointment to the office which was forfeited by reason of her conviction. And in considering her qualifications and suitability for the public post, the facts constituting her offense must be and should be evaluated and taken into account to determine ultimately whether she can once again be entrusted with public funds. Stated differently, the pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that. To regain her former post as assistant city treasurer, she must re-apply and undergo the usual procedure required for a new appointment.

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SECTION 20. The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the Government or governmentowned and controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law.

There is no requirement, in this provision, for the President to personally appear when he enforces this provision.

This is a very neglected provision in the Constitution, especially in the present administration. [I am not aware of any effort on the part of the Congress to exercise its authority under this particular provision.] Remember that there is a requirement of prior concurrence of the Monetary Board as to all of these foreign loans contracted by the President and there must be due reporting to the Congress. SECTION 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. It is the President who ratifies treaties, the Senate only concurs. SECTION 22. The President shall submit to the Congress within thirty days from the opening of every regular session, as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures. [This was discussed when we tackled about appropriations.] SECTION 23. The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time. This is the so-called informing power. This is done by the President in the course of his State of the Nation Address.

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THE JUDICIARY ARTICLE VIII SECTION 1. - The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Article VIII, Section 1, First Paragraph Article VIII, Section 1 provides, "The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law." It should be in ONE SUPREME COURT and not in THE SUPREME COURT (This is where Sir got a cinco in law school by not referring to the SC as "one Supreme Court."). Vargas v. Rilloraza G.R. No. L-1612 February 26, 1948. In Vargas v. Rilloraza, the Supreme Court nullified the establishment of a temporary Supreme Court for purposes of trying collaboration cases. There is only one Supreme Court. No temporary composition of the Supreme Court is authorized by the Constitution. This tribunal, as established under the organic law, is one of the permanent institutions of the government. The clause "unless otherwise provided by law" found in section 4 of Article VIII can not be construed to authorize any legislation which would alter the composition of the Supreme Court, as determined by the constitution, for however brief a time as may be imagined. In principle, what really matters is not the length or shortness of the alteration of the constitutional composition of the Court, but the very permanence and unalterability of that composition so long as the constitution which ordains it remains permanent and unaltered. Said clause refers to the number of Justices who were to compose the Court upon its initial organization under the Commonwealth, and the manner of its sitting; that is, the legislature, when providing for the initial organization of the Supreme Court under the

Commonwealth, was authorized to fix a different number of Justices than eleven, and determine the manner of the Court’s sitting differently from that established in section 4 of Article VIII of the Constitution, but it was and is not empowered to alter the qualifications of the Justices and the mode of their appointment, which are matters governed by sections 5 and 6 of said Article VIII wherein the clause "unless otherwise provided by law" does not even exist, nor the provision on who shall be the component members, of the court. Article VIII, Section 1, Second Paragraph The second paragraph of Article VIII, Section 1. I have discussed this many times and contains the two aspects of Judicial Power. First is the Traditional Aspect of Judicial Power. Actual cases/controversies involving legally enforceable and demandable rights. Second is the Expanded Concept of Judicial Power, which has resulted, in turn, in the constricting or a narrowing down of the Political Question Doctrine with the institution of this concept known as Grave Abuse of Discretion Amounting to a Lack or Excess of Jurisdiction on the part of any branch or instrumentality of Government. Grave Abuse of Discretion Amounting to a Lack or Excess of Jurisdiction on the part of any branch or instrumentality of Government can trigger the exercise by the Supreme Court of its expanded jurisdiction. I have told you that there is more to judicial power than the prescribed in the Second Paragraph. ARTICLE VII SECTION 4. - The Supreme Court, sitting en banc, 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. Article VII, Section 4, Judicial Power in the exercise of the power being the sole judge of all election contests pertinent to the election returns and qualifications of the President and Vice President. ARTICLE VII SECTION 18. - The Supreme Court may review, in an appropriate proceeding filed by any citizen, 62



the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

Aratuc v. Comelec G.R. No. L-49705-09 February 8, 1979 The certiorari based on Rule 65 Grave abuse of discretion. This is totally extraneous to the Second Paragraph of Article VIII, Section 1.

Article VII, Section 18, to determine the factual basis for a declaration for the suspension of the privilege of the writ of habeas corpus.

This is special certiorari jurisdiction conferred upon the Supreme Court with respect to the adjudications of Constitutional Commissions.

May I add this to my discussion? You forget about:

Remember my discussions on: 1. Cocofed v. Republic (G.R. Nos. 17785758, January 24, 2012); 2. Petitioner-Organizations v. Executive Secretary (G.R. Nos. 147036-37, April 10, 2012); 3. Atong Paglaum v. COMELEC (G.R. No. 203766, April 2, 2013); 4. Lambino v. COMELEC (G.R. No. 174153, October 25, 2006).

Fortun v. Arroyo G.R. No. 190293 March 20, 2012 It was prescribed that before this judicial power can exercised, there must be first a completion of the review by the Congress. Lagman v. Medialdea G.R. No. 231658 July 4, 2017 Justice Del Castillo pointed out that the judicial review and the automatic review of the Congress can be done concurrently and simultaneously.

Requirements of Judicial Review When there were a grave constitutional issue or challenge raised, if the issue is of: 1. transcendental importance, 2. adamant public interest, and 3. far-reaching legal constitutional implications,

ARTICLE IX SECTION 7-A. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

then judicial power can be exercised even if there were no Grave Abuse of Discretion. So, what are these concepts? You include them in the general configuration of judicial power. ARTICLE VIII SECTION 2. - The Congress shall have the power to define, prescribe, and apportion the jurisdiction of various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof.

Judicial Power is also found in Article IX, Section 7-A which confers special certiorari jurisdiction to the Supreme Court with respect to the adjudications of the Constitutional Commissions.

No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members

Recall that this was interpreted in Aratuc v. Comelec in 1979.

ARTICLE VIII

. SECTION 5. - The Supreme Court shall have the following powers: (1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, 63



prohibition, mandamus, habeas corpus.

quo

warranto,

and

Paragraph 2 (Minimum Appellate Jurisdiction over the decisions of local courts)

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

not without its advice and prior concurrence consistent with the requirements in Article VI, Section 13 (PLEASE CONFIRM WITH SIR).

(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (c) All cases in which the jurisdiction of any lower court is in issue. (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. (e) All cases in which only an error or question of law is involved. (3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned.

ARTICLE VI SECTION 13. - No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected. Be mindful of the paragraph in Section 2 to this effect no law reorganizing the judiciary shall be enacted if it will undermine the security of tenure of the judges. Let's pause here for a while and I will tackle three concepts together in connection with this particular paragraph in Section 2. Requisites for a Valid Judicial Inquiry

(4) Order a change of venue or place of trial to avoid a miscarriage of justice.

I start first with a reminder regarding the matter of the requisites for a valid judicial inquiry.

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasijudicial bodies shall remain effective unless disapproved by the Supreme Court.

You recall that there must be:

(6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law.

If it considers the matter important enough it will set aside the mootness of the issue and still proceed to resolve the matter. If it were important enough, it can set aside the proper party requirement. The basic guidelines here or parameters set forth by the Supreme Court, they’re the same, transcendental, paramount, far reaching legal and constitutional implication.

We go to Article VIII, Section 2, which vests in the Congress the authority to define, establish, apportion the jurisdiction of lower courts. It cannot touch the jurisdiction of the Supreme Court as specified in Article VIII, Section 5. Paragraph 1 (Original),

1. an actual case or controversy; 2. proper locus standi; 3. the constitutional question must be raised at the earliest opportunity; and 4. the restitution of the constitutional question must be necessary for the determination of the case itself. Remember the first two class are mere technical requirements and can easily be set aside by the Supreme Court depending on its "feels."

Well, insofar as the actual case and controversy principle is concerned, there must be ripeness of the issue. Remember that there have been 64



promulgations as to the effect that a law once promulgated is at once ripe for review by the Supreme Court, even if it were not implemented yet, depending on its importance as well. Remember also the basic pronouncement by the court that the mootness is not a magical formula that can warrant the outright and immediate dismissal of the case precisely just because the matter had become moot. The challenge for instance pertains to the validity of the 90-day preventive suspension but the 90days already lapsed so it’s moot. But the Court can proceed to resolve. Again, on the basis of its determination as to whether the challenge presented is of transcendental, paramount, and far reaching. Election protest, but the respondent is already dead, but because of the importance of the issue, the court proceeded to make the pronouncement. Insofar as proper party, personalities concerned, the direct injury test applies here of course. Exception: the facial challenge. Appropriations, taxation measures, taxpayers would be the proper party personality. Legislation, of course legislators are the proper personality. The direct injury principle applies. The third requisite: The constitutional question must be raised at the earliest possible opportunity. Three basic rules to remember: 1. In criminal cases the constitutional question can be raised anytime. 2. In civil cases the constitutional question can be raised anytime if its resolution is necessary for the determination of the case itself 3. In ALL OTHER CASES, EXCEPT when there is estoppel, the constitutional question can be raised anytime IF IT INVOLVES THE JURISDICTION OF THE COURT The rule remains, basta the constitutional challenge pertains to the jurisdiction of the court, it can still be raised anytime exception lang yung estoppel. Tihat v Sibuhat (???) It was only after 15 years that he raised the constitutional question regarding the jurisdiction of the court. Cannot be said the court, you are estopped.

The fourth requisite: That the resolution of the constitutional issue must be necessary for the determination of the case itself. This principle is rooted in the doctrine of separation of powers. This is the reason why as best and as most it can, the court should refrain from deciding the constitutional issues if it can resolve the challenge on the basis of other grounds. It should defer the addressing of the constitutional challenge because when there is a constitutional challenge the basic, the given is this, the mention of this question is to begin with pressured constitutional. The double negative you learned is semantics, that is separation of powers.

not

Yung sinsabi na double negative, that is not semantics class simply, that is separation of powers that worked. Here comes the petitioner challenging an act of government (inaudible), insisting that it is unconstitutional. But let us say that the court cannot but address that issue and then finds in favor of the law. So ,what the court should say as it often does but not always, in dismissing the case, para yang sinasabi ng court na you Mr. Petitioner, contrary to what you are saying, the law is not unconstitutional. Class that is not semantics. That is separation of powers ng court. The challenge is that it is unconstitutional, it has to overwhelm, overcome the presumption that it is constitutional. Therefore, if the court upholds its constitutionality, aba redundant kung sasabihin ng court, the law is constitutional because that is a given. Therefore, in disposing of a case, ang dapat sasabihin talaga properly ng court the law is not unconstitutional. But don’t answer like that in the bar anymore. Is the law valid? You say the law is valid, the law is not valid. So, we tackle this particular concept. I will illustrate this in the context also of this Sec. 2 and the concept of security of tenure. Remember security of tenure, this is the office and this is the officer. The officer is secured in its tenure and entitled to remain there as long as he is not forcibly oustered. Now, the forcible ouster can be considered as valid only if the ouster is premised on (1) just cause; (2) observance of due process, notice and hearing. So essentially, that is what security of tenure is all about.

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Article VIII Section 2. The 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 Section 5 hereof. No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members. Now Sec. 2 provides that no law shall be passed reorganizing the Judiciary, it will undermine the security of tenure of judges. Now take these 3 concepts together now, Zandueta v. Dela Costa G.R. No. L-46267 November 28, 1938 In 1944, there was a Judiciary Reorganization Law, so there was this judge that was oustered. Why? Because his court was abolished. He claimed a violation of his right to security of tenure, but he did not do anything immediately. He looked at the law, uy may opening pala sa Palawan. Apply na ko dyan, may bagong court sa Palawan. So, he applied. He was appointed. Kaya lang class, during those days, appointments to the judiciary were confirmed by the COA. They can give or reject them. It was only after he has been rejected that he sued, challenging, claiming a breach of his security of tenure. So you will note class, he, in his petition, directly, raised the constitutional challenge. How did the SC resolve th this particular case? Well, in the light of the 4 requisite, this is what the court did. Yes, the constitutional challenge is (inaudible) raised, but we did not resolve it. The court class dismissed the case on what ground? Estoppel. You see class, it deferred or shied away from addressing th the constitutional challenge consistent with the 4 requisite for a valid judiciary inquiry and instead invoked the equitable principle of estoppel for purposes of resolving the case. Therefore, it did th as what is prescribed in the 4 requisite for a valid judiciary inquiry. Now, fast forward, 10 years later, 1955, 11 pala, came this another Judiciary Reorganization Law. In this particular case, the first case was Zandueta v. Dela Costa. In this second case, Ocampo v. Secretary of Justice Well, a judge who was oustered from his court again precisely because his court was abolished,

cried foul and claimed a violation of his security of tenure. But this time, the judge immediately sued for quo warranto, challenging the constitutionality of the Reorganization Law. Well this time, the Courts found that there was no other ground except to address the constitutional th challenge kaya, consistent with the 4 requirement, and because the resolution of the constitutional challenge was necessary for the determination of the case itself, it addressed the constitutional issue directly. Dito sinabi ng SC, this time, we must let the handle fall and heavily so it addressed the constitutional challenge. So, how did it address the constitutional challenge? Well it said, essentially I’m paraphrasing, this is the office and this is the officer, he is secured in his tenure such that if he were forcibly oustered in his office without just cause or due process, then it is clear that his security of tenure would be breached. He is securing his tenure such that he was forcibly ousted class of his office without just cause or due process then it is clear that his security of tenure will be breached but then remember that security of tenure arises only if the mode of termination of official relations were removal. Remember that there are many other modes of termination of official relations prescribed in laws for public officers in the context of this case. A removal in connection with security of tenure presupposes an ouster of the office, of the continued existence of an office, that is not what happened in Ocampo. There was an ouster of the officer, the Court ruled that there is no violation of security of tenure precisely because the mode of termination which operated here was not removal but abolition of office. It being a valid abolition of office there is no breach of the security of tenure. Ambas v Buenaseda G.R. No. 95244 September 4, 1991 All civil servants have security of tenure. Permanent appointees have security of tenure. Temporary employees do they have security of tenure? In this case, hospital clerks or interns had a 12-month temporary employment contract in place. The Supreme Court ruled that they cannot be removed except for causes indicated in those contracts of temporary employment. There must be just cause. What about Probationary employees? They must be removed by just cause.

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What is just cause? When they fail to meet the conditions stipulated in the contract. LAPID v PCSO G.R. No. 191940 April 12, 2011 What about casual employees? The Supreme Court held that even casual employees have security of tenure. What are the grounds for their removal? 1. When the project is finished 2. if there are no more funds for the project 3. If their performance is below par All of these are just causes which will justify removal. Remember there is violation of security of tenure only when there is removal and such removal can be validated only when there is just cause and observance of due process. Corpus v Cuaderno G.R. No. L-16969 April 20, 1966 Highly technical civil servants such as faculty teachers and scientists have security of tenure. Do you think that any of those faculty members will accept employment without being assured security of tenure? Do confidential employees have security of tenure? Yes. Delos Santos v Mallare G.R. No. L-3881 August 31, 1950 Definition of confidential employee: It is a relationship with the appointing authority which considers the aptitude of the appointee but primarily the close intimacy which allows freedom without embarrassment or betrayals of personal trust or confidence on matters of state. Sir, I have a boyfriend. I issue a memorandum transferring the Secretary to the Legal Department. Did I violate her security of tenure? NO. Why? What is the term of a primarily confidential employee? Her term is co-extensive with the continued possession of the confidence that I have reposed upon her. But now she has a boyfriend, there is possibility of pillow talk as to affairs handled by the office such as sale of a lot to certain Japanese investors, which are confidential in nature. Thus, her term expired. That is not removal. Since there is no removal, there is no violation of her security of tenure. This is based on the very old case of Alajar v. Alba.

Alajar v. Alba G.R. No. L-10360 Jan. 17, 1957 Alajar was appointed by the President as the Vice-Mayor of Roxas City on Jan. 1954. In Nov. 1955, he was informed that the Pres. had designated Alba as Acting Vice-Mayor and he was requested to turn over the office to Alba. He claimed that it was a violation of his security of tenure. The Supreme Court ruled that on the basis of RA No. 603, the President had the power to appoint the Vice-Mayor who shall hold office at the pleasure of the President. And it is established that when the law authorizes a superior officer to remove a subordinate at pleasure, his discretion in the exercise of the power of removal is absolute. As long as the removal is effected in accordance with the procedure prescribed by law, it may not be declared invalid by the courts. SECTION 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released. The wording of the grant of fiscal autonomy to the Supreme Court is special since it is only the Supreme Court whose appropriations cannot be decreased from the previous year. They can only be retained or increase. In the old case of Bengzon v. Drilon, the fiscal autonomy of the Supreme Court entitles it to prescribe judicial fees for judicial proceedings. This is implemented by way of its rule-making authority under Art. 8 Sec. 5(5). Bengzon v. Drilon G.R. No. 103524 Apr. 15, 1992 Pres. Aquino vetoed certain provisions in the GAA for the fiscal year 1992 which relate to the payment of adjusted pensions of retired Justices of the SC and CA. The Court ruled that the veto violated the SC’s fiscal autonomy as it is tantamount to dictating to the Judiciary how its funds should be utilized. Fiscal autonomy recognizes that the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be provided by law may be prescribed by 67



them in the course of the discharge of their functions. Pursuant to the Constitutional mandate, the Judiciary must enjoy freedom in the disposition of the funds allocated to it in the appropriations law. It knows its priorities just as it is aware of the fiscal restraints. The Chief Justice must be given a free hand on how to augment appropriations where augmentation is needed. SECTION 5. The Supreme Court shall have the following powers: (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasijudicial bodies shall remain effective unless disapproved by the Supreme Court. The uniform characteristic of fiscal autonomy as shared by these constitutionally fiscally autonomous entities is this basic element: once the appropriations have been approved, they shall be automatically and regularly released. Another aspect of fiscal autonomy as discussed in the cases involving NPC and GSIS. There were statutes creating these entities which contained a provision exempting them from payment of judicial fees. The SC said this was unconstitutional as it was an intrusion on the Court’s rule-making authority founded on its fiscal autonomy. Therefore, it undermines judicial independence. The fiscal autonomy of the SC, like that of the other bodies, does not exempt them from the statutory salary standards. They must still be complied. Remember that the fiscal autonomy of the court, like the fiscal autonomies of all the other fiscally autonomies in the Constitution is not exempt from the statutory salary standards prescribed. They must still comply. Does not exempt them from the basic civil service requirements regarding salaries as well. Well recall also in this connection a basic case,

Civil Service Commission v. Secretary of Budget G.R. No. 158791 February 10, 2006 Well this involved the CSC but it applies to all the Constitutionally fiscally autonomous entities. The Department of Budget Plans implemented a No Report No Release Policy such that if the one asking for further releases, disbursements of their appropriations, they are required to submit a report on prior releases in their favor such that if they do not submit those reports, until they do, they cannot be favored with further or additional releases. Sabi ng SC, that is a valid requirement. But it cannot be imposed as a condition for the release of appropriations of the Constitutionally fiscally autonomous entities because that would be by way of impairment of the fiscal autonomy. Well I will stand by according to Justice Davide explained here. The Constitutionally autonomous entities are certainly not exempt from the Report requirement, only that the submission of this reports cannot be invoked as a pre-requisite or as a condition for releases. They can submit the Reports after. We proceed to Sec. 4. Article VIII Section 4. (1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof. (2) All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. (3) Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case without the concurrence of at least three of such Members. When the required number is not obtained, the 68



case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc. Most of the provisions of which I have already discussed; membership of the SC, par. 2, the matter of what should be tackled en banc. Please be mindful of the fact that there are all other matters required under the ROC to be heard en banc, should be heard en banc. One side kwento lang, here involving SM. Sabi ko naman sa inyo parati panalo SM. SM Realty v. BCDA G.R. No. 203655 August 13, 2014 Remember na tinigil ni Nonoy Aquino ang BCDA management from implementing a Notice or a granting of a Notice of Award in favor of SM because of the well determination by the new management of the BCDA na meron (inaudible) dun sa bid procedural that was observed during the previous administration. The Court upheld the claim of SM that it should be given the Notice of Award and proceed with the project. On reconsideration, umupak ang BCDA, teka muna, this was decided by a division but they did not mention here that we stopped the award in favor of SM because of an order of the President. So this should be construed as an executive order which is required under Sec. 4 to be heard en banc. As I’ve seen sa sagot ni Justice Velasco, where’s your order? Cause it was just a verbal order, no such things as verbal orders do they perform (inaudible). I have already mentioned to you the case of Fortiz v. Corona: Yung 3-2 naging 2-2 yung rd vote. Note the 3 par in Sec. 4 You see these operative words there, cases, matters, decided, resolved. Clearly class, if there were a universal principle or doctrine of law, it cannot be done by a division, it must be tackled by the en banc. But look at the other thing that can be tackled en banc on the basis of this paragraph 3. Fortiz v. Corona It was decided by a division. The vote was a 3 as against 2. Motions for reconsideration were filed. Ang boto dun sa MR 2 as against 2 because 1 of original 3 inhibited himself. Because of the 2-2

vote in their case, the movants asked that the motions be referred to the en banc invoking par. 3 of Sec. 4. This is how the Court ruled, only cases not decided by the division can be tackled by the en banc. Matters not resolved and apparently therefore, a motion is just a matter cannot be referred to the en banc consistent with this Constitutional provision. So ano ngayon nangyari sa kaso na yun? The MR was 2-2, so ano yung decision? Na uphold yung decision na denied yung MR. Now this explains my comments before, remember this case in Republic v. Sereno, na it was as predicted na 8-6 ang boto. After it was promulgated, ang daming posts sa FB na 1 vote lang ang kailangan natin para ma overturn ang pronouncement against Chief Justice Sereno. After Republic v Sereno was promulgated, which was 8-6, the people were saying that they only need 1 vote to overturn the decision. This is wrong Cruz v. Secretary of Environment and Natural Resources G.R. No. 135385 December 6, 2000. Doctrine: dismissal of petition where votes equally divided and majority vote are not obtained. — Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition and mandamus as citizens and taxpayers, assailing the constitutionality of certain provisions of Republic Act No. 8371, or the IPRA. After due deliberation on the petition, the members of the Court voted as follows: Seven (7) voted to dismiss the petition. While Seven (7) other members of the Court voted to grant the petition. As the votes were equally divided (7 to 7) and the necessary majority was not obtained, the case was re-deliberated upon. However, after redeliberation, the voting remained the same. Accordingly, pursuant to Rule 56, Section 7 of the Rules of Civil Procedure, the petition is DISMISSED. If one of the 8 moved to the minority, the vote will be 7-7. Therefore, upon MR, the main decision of Republic v Sereno will not be overturned. Article VIII Section 5. The Supreme Court shall have the following powers: 1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers 69



and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

court martials are considered as a competent court. A conviction or acquittal before a court martial will bar another court for the prosecution of the same offense.

These are original, concurrent with other courts, but these are not exclusive. The exceptions to these are the usual exceptions of the Doctrine of Hierarchy of Courts, such as transcendental importance, among others.

Other provisions in sec. 5. Remember 3 and 4 pertain to changes in venue which only the supreme court can direct and this can be done by the court even in the context of Civil Cases. Also, the matter of temporary detention of judges which cannot be allowed for more than six months without their consent, these two provisions pertain to speedy trial provisions these measures are allowed to be undertaken by the Court to expedite the process of justice.

Is a Court Martial a Court? Yes. Is it a lower court? No. It is a Court of Executive Origin, created by the President in his competence as Commander in Chief. Can a Court Martial tackle criminal cases? Yes. Example is a soldier who committed double murder in his capacity as a soldier. Can the soldier appeal the conviction of the Court Martial, to the Supreme Court, invoking Art VIII Sec 5 par 2? NO, because a Court Martial is a lower Court. What are the lower courts? Courts lower than the Supreme Court. E.g. Court of Tax Appeals, because they can declare a law unconstitutional. He cannot avail himself of the appellate process prescribed in Article 8, Section 5, paragraph 2 for the simple reason that the Court Marshall is not a lower court, and therefore, its decisions are not covered by the minimum appellate authority of the Supreme Court. What is the soldier’s remedy? There must be an exhaustion of all administrative remedies. Then, from the President, when he affirms his Commander-inChief, can this now be the subject of an Article 8, Section 5, paragraph 1, minimum appellate jurisdiction of the SC? The answer is no because the President is not a court. [If] it is by way of original action, you invoke the original jurisdiction of the Court, Rule 65, on the basis of Article 8, Section 5, paragraph 1. Let us say that the soldier was acquitted for double murder. Later, charges for double murder are charged against him again – this time before a regular court (RTC). Is that allowed? Or is it offensive to the principle of double jeopardy? This is Garcia v. Office of the President, citing the case of Crisologo v. People. In the context of criminal cases in military courts, they have the same character as criminal cases as tried by the regular courts. In the concept of the equal protection clause, there is no substantial distinction between the two. Therefore, even if the court martial in the context of Article 8, Section 5, paragraph 2 is not a lower court, in the context of double jeopardy,

Provisions that relate to speedy dispositions of cases under the Constitution. 1. Article III, sec. 14 par. 2 The right to speedy trial of the accused Article III Section 14 (2) 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 arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. 2. Article III, sec. 16 all persons shall have the right to the disposition of their case in all judicial, quasi-judicial and administrative bodies. FER the conduct of preliminary investigation conducted by the prosecution, in which there is no final resolution. (Estrada v. OMB) Article III Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. Estrada v. OMB Jinggoy insisted that he can have copies of the counter-affidavits of his co-respondents in the 70



plunder case. He invoked the doctrine in Ang Tibay the seven cardinal rights. SC rejected Jinggoy’s contention ruling that the Ang Tibay rights, as amplified in the case of GSIS v. CA, that those seven cardinal rights are only observed in quasi-judicial proceedings. That a preliminary investigation is only an administrative proceeding, precluding the application of the 7 5 cardinal rights provided in Ang Tibay. 3. Art. VIII sec. 15 the deadlines for the promulgations of decisions by courts. 24 months for the SC. 12 months for collegiate courts. 3 months for all other trial courts. Art. VIII Section 15 (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts. (2) A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pending, brief, or memorandum required by the Rules of Court or by the court itself. (3) Upon the expiration of the corresponding period, a certification to this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon the parties. The certification shall state why a decision or resolution has not been rendered or issued within said period.

5

(1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. x x x. (2) Not only must the party be given an opportunity to present his case and adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. x x x. (3) "While the duty to deliberatedoes not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support its decision. A decision with absolutely nothing to support it is a nullity, x x x." (4) Not only must there be some evidence to support a finding or conclusion, but the evidence must be "substantial." "Substantial evidence is more than a mere scintilla. It means

(4) Despite the expiration of the applicable mandatory period, the court, without prejudice to such responsibility as may have been incurred in consequence thereof, shall decide or resolve the case or matter submitted thereto for determination, without further delay. Section 16. The Supreme Court shall, within thirty days from the opening of each regular session of the Congress, submit to the President and the Congress an annual report on the operations and activities of the Judiciary. Note that the Sandiganbayan is 3 months by resolution of the SC on November 2001. Here, the SC exercised its authority to reduce the periods prescribed in sec. 15. 4. Art. IX-A, Section 7 giving the Constitutional Commissions 60 days to decide matters in the exercise of their quasi-judicial power. Those are the provisions of speedy trial. Art. IX-A Section 7. Each Commission shall decide by a majority vote of all its Members, any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." x x x. (5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. x x x. (6) The Court of Industrial Relations or any of its judges, therefore, 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. x x x. (7) The Court of Industrial Relations should, in all controversial questions, render its decision in sucha manner that the parties to the proceeding can know the various issues involved, and the reasons for the decisions rendered. The performance of this duty is inseparable from the authority conferred upon it.

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party within thirty days from receipt of a copy thereof. Rule-making Authorities of the Supreme Court Section 5, Paragraph 5 are the rule-making authorities of the Supreme Court. Section 5. The Supreme Court shall have the following powers: xxx 5. Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. We have discussed this in Carpio-Morales vs Court of Appeals. Enforcement, protection and promotion of Constitutional Rights Ito yung mga Writ of Kalikasan, Writ of Habeas Corpus, Writ of Amparo. Umutang din sila sa Knights of Rizal ng Writ of Kasaysayan na di umubra. A little discussion on the Writ of Amparo. First, remember that there are two grounds: 1. Enforced disappearances and 2. Extra-judicial killings. February 2017 pronouncement Mayor Balba vs Buena. An extra judicial killing is killing without due process. No need for political motivations. Similarly, no need for political considerations in cases of enforced disappearances which refers to any restraint in liberty by way of unlawful arrest, disappearance and detention unjustified without the government exerting any effort for purposing of re-finding the person when they disappeared. Those are the elements of these two grounds.

The initial cases of Amparo: 1. There was a battered wife which sued for a Writ of Amparo. There was no Extrajudicial killing or an enforced disappearance. Even if there were, wala naman government involved so di pwede. 2. A Writ of Amparo to stop a demolition of the house as ordered by the Court. Cannot be. 3. A Writ of Amparo was resorted to because inhumane yung eviction of the tenant as ordered by the court. It was not granted because there was no enforced disappearance nor an extrajudicial killing. Second, you must establish that it is because of government action. This is not limited to the police authorities of osldiers. So long as a government official is involved in the enforced disappearance or the extra judicial killing, regardless of the position. It must be the perpetrator. Remember that in this case in Roxas- Macapagal vs Arroyo, sinama na ang Command Responsibility which used to be reserved for criminal cases. Sinama na yung theory in Amparo proceedings. If the superior officer is negligent in the selection and supervision of their subordinates or participated or conspired with his subordinates in the commission of wrong doing, then the superior officer can be held responsible. This is true even if the commander in chief or the president is the superior officer. Next case. In one, nag way ang teenager at security guard, nawala yung teenager. Nag writ of amparo yung magulang. Cannot be because the security guard is private and there is no showing that he cooperated with any government authority. Denied. The Amparo rule requires as quantum of proof substantial evidence. According to the court, given the difficulty of coming up with substantial evidence, the court is willing to accept circumstantial evidence. Recent cases, two more points. 1. The farmer claims that he was harassed by the police. The police steps on his vegetables. He sued for Amparo to stop the police officers. The court said no amparo.

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2. The most recent pronouncement by Art. VIII, sec. 6 SECTION 6 The Supreme Court shall have administrative supervision over all courts and the personnel thereof. Justice Leonen - if there were no evidence even circumstantial evidence that is presented then the Court should not dismiss but it is bound to archive the case. Sir’s thoughts: It’s nice that we have the writ of amparo because that is by way of implementation of the command by the Constitution to promote/protect constitutional rights. But it’s a useless procedure. (e.g. The police officers are enjoined from approaching the surviving relatives of the victim of tokhang killing from a certain distance. If the relatives were to be killed, it is not the policemen will kill them. They will hire other people to kill them.) Writ of Amparo v. Writ of Habeas Corpus e.g. In enforced disappearances, the General is ordered to look for the person within the person. But fails to do so, ordered again for another 6 months. However, the person still cannot be found. As compared in habeas corpus, there is a command to produce the body of the person. Art. VIII, Sec. 5, par. 6 about appointments relate that to Sec. 6. Art. VIII Section. 5 (6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law. Section 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof. Retirees from judiciary, they need not obtain clearances from CSC because they are under the administrative supervision of Supreme Court. These judges and personnel of lower courts.

Administrative Supervision Orap v. Sandiganbayan G.R. No. L-50508-11 Oct. 11, 1985 The Ombudsman exercises dual jurisdictions. 1. Administrative disciplinary authority under sec. 21 of RA 6770: • The law vests in the Ombudsman disciplinary authority over all public officers, including cabinet secretaries, except members of the Congress, the Judiciary, and the impeachable officers. 2. Criminal jurisdiction in the sense that it may conduct preliminary investigation. • The Ombudsman has jurisdiction over judges and personnel of lower courts but only with respect to criminal jurisdiction Usually both administrative and criminal jurisdictions are invoked when filing a complaint with the Office of the Ombudsman. This case instructs us that when there is a complaint filed against a judge or personnel of a lower court, it is the duty of the Ombudsman to refer the entire complaint to the SC to enable it to determine whether or not it has an administrative aspect against the respondent judge or personnel of the lower court. In which case, upon such determination, the administrative aspect is retained by the SC without prejudice to the continuation of the criminal aspect in the exercise by the Ombudsman on its criminal jurisdiction. Garcia v. Miro G.R. No. 167409 Mar. 20, 2009 There was this judge charged with reckless imprudence, he claimed that he was entitled to the dismissal of the case because only the SC has jurisdiction over him. SC held that it has no jurisdiction because it was a criminal case, the authority of the SC is only with administrative disciplinary matters. Ampong vs. CSC G.R. No. 167916 Aug. 26, 2008 A public school teacher took a civil service eligibility exam and she cheated because a different person took the exam for her. Pending the release of the results, she found employment as a court interpreter in an MTC, and then she was discovered for which reason administrative charges were filed against her before the CSC. 73



SC held that the CSC has no jurisdiction because upon the filing of the complaint, the respondent was already a personnel of the lower court therefore removed from the authority of the CSC. The key element here is at the time of the filing of the complaint. If the respondent will be already a personnel of the lower court, even for acts committed prior to such employment, the CSC has no jurisdiction, it should be the SC in the exercise of its authority under sec. 11, art. VIII. Andal v. CSC G.R. No. 185749 Dec. 16, 2009 Similar case with Ampong v. CSC, wherein Andal, a security guard II in the Sandiganbayan, cheated in his Career Service Professional Examination. Leave Division v. Heusdens AM No. P-11-2927 Dec. 13, 2011 *Reiterated in the later case involving Judge Macalincag. This lady clerk of court wanted to join a family reunion abroad and applied for an authority to travel and leave. It was not acted promptly upon by the Court Administrator but she still left. When she returned, she was not dismissed but she was admonished. She did not raise the right to travel as a defense but SC properly addressed it this pronouncement. The requirement for a travel authorization is not an impairment of the right to travel. It is merely a reasonable regulation springing from the administrative supervisory authority of the SC. The SC said there are many impairments in the right to travel not found in the constitution because under sec 6, there can be impairment only on the grounds of national security, public safety, public health but understand that this is not exclusive.

The court held that it is not impairment rather it is a reasonable regulation springing from the administrative supervisory authority of the SC, founded on Sec 6 of Article VIII because if judges and personnel of lower courts will be allowed to indiscriminately leave their post there will be chaos in the dispensation of justice. Exceptional Case: Mamiscal v. Sharia Clerk of Court Abdullah A.M. No. SCC-13-18-J July 01, 2015 Special law creates the Sharia Courts but this special law confers upon the Sharia clerk of court two functions. (1) He is a clerk of court in the usual sense but (2) he is also under the Sharia Law, a Civil Registrar. There was a divorce decree granted by this court and he entered into the Civil Registry details of that particular divorce decree he falsified certain records therein for which reasons unknown. A complaint was lodged in the SC. SC held that considering this complaint stems from his performance as a Civil Registrar and not as clerk of court therefore, beyond the jurisdiction of the Supreme Court. The case was tossed to the Civil Sercvice Commission and the local mayor consistent Civil Service Law. This is an exceptional case. Judicial and Bar Council (I have tackled Judge Villanueva v. JBC, when we talked about Administrative Law) Supervisory Authority of the SC over the JBC Jardeleza v Judicial Bar Council G.R. No. 213181 August 19, 2014 Facts: In the proceedings leading to his non nomination. three issues were raised against him based on reports from Rappler:

the matter of custody of courts over accused The matter of legislative prerogative with respect to legislative investigation

1. Treason – for taking a view as the Solicitor General different from the view of the international council handling our arbitration on the West Philippine Sea against China 2. Reports that Justice Francis Jardeleza engaged in illicit sexual activities while he was the Secretary of San Miguel 3. Engaged in insider trading

Those who worked in the government cannot leave the country without authority to travel. This was tackled in the case of Leave Division case.

The power of control authorizes the reversal by the superior of the subordinate’s determination by way of review. But the power of supervision

Instances where a person’s right to travel is impaired not found in the constitution: • •

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merely entitles the superior to ensure that the subordinate follows processes, laws, rules and procedures. It was determined that under the rules of JBC, there was a “unanimity rule” – which should be applied if there were an objection raised by even one member referring to the integrity of the applicant. Understand that there are four subjective requirements for judgeship: 1. 2. 3. 4.

Competence Independence Probity Integrity

* Note that morality is not required for judgeship So if found that there was an alleged integrity issue raised by at least one member of the JBC then would it be correct for the JBC to apply the unanimity rule? Ruling: So the court examined this issue. First, with treason. The SC said that this is not an issue. All lawyers differ in their legal opinion so scrap this. But the court admitted/conceded the matter of illicit relations and insider training as an immoral act. Morality is a component of integrity. You cannot claim to possess integrity if you are immoral. So the court found that those two objections more properly. Based on integrity issues, the court concluded that JBC is correct in applying the unanimity rule. So if that is the case, then it is correct not to nominate Justice Francis? Well, the SC went further saying: However, JBC disregarded a basic fundamental rule – due process. Given the haste in the proceedings, Justice Francis was never given an opportunity to refute those objections based on newspaper reports. Having been deprived of due process, SC nullified the original list of nominees and directed the inclusion of Justice Francis in the list. The next day he was appointed and then later took his oath before a smiling Chief Justice Sereno. Main Doctrine: remember that Morality is a component of integrity and that supervision entitles the SC to change the list of nominees. That is the interpretation we derive from this case.

Composition of JBC 1. 7 members: a. 3 ex officio b. 4 regular members 2. Staggered terms 3. Requires confirmation by Commission on Appointments

the

Aguinaldo v Aquino G.R. No. 224302 August 8, 2017 Facts: This is a case regarding the matter of clustering of nominations. Is clustering of nominees for vacancies of the courts unconstitutional? I ask you this basic question first: of course, it is the president who appoints to the judiciary but how much time is given to him to field vacancies in the SC? The period is 90 days from occurrence of the vacancy. He is also given the period of 90 days from submission of the list of nominees to field vacancies in local court judgeship. Is the President the one who appoints the Ombudsman and the Deputy Ombudsman? Of course. Are the Ombudsman and the Deputy Ombudsman filtered by the JBC? Of course. How much time is given to the President to field vacancies in these offices of the Ombudsman and deputies? 3 months [90 days pa rin] from occurrence of vacancy. The commencement of the terms of legislators fixed at noon 30th day of June next following their election. Can it be changed? Yes by ordinary law. But the commencement of the terms of the President and Vice-President, also fixed at noon 30th day of June, can be changed only by amendment of the Constitution. Recall that for every vacancy, the JBC is required to submit a list of at least 3 nominees. Necessarily cluster yan. So clustering is per se is not unconstitutional because it is commanded by the Constitution. [Going back to Aguinaldo case] But in the context of Aguinaldo v. Aquino, when does clustering become unconstitutional? When it impairs the appointment discretion of the President. So when does that happen? The answer is this: if there were simultaneous or near simultaneous vacancies, then clustering becomes unconstitutional.

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Illustration: let us say in the Sandiganbayan, 4 vacancies arose because 2 of the retirees had the same birthday on Oct. 1 and then the 3rd and 4th ang 70th birthdays nila Oct. 3 and 5. So simultaneous and near simultaneous vacancies.

banc 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 in the deliberations on the issues in the case and voted thereon.

By the way, kung ang birthday ng justice, he turned 70 on Oct.1, can he still sign decisions on Oct. 1? No more because precisely he would already have been then 70. Kaya ang mga retirees they sign before their birthday because that would be the official act of the retiring justice.

Section 12. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasijudicial or administrative functions.

[Going back to the illustration] So in this case, if we were to follow strictly the clustering prescribed by the Constitution, this is what would happen: From vacancy A there will be one cluster with 5 nominees, in vacancy B another 5 nominees and so on and so forth. The president will be limited in his appointment power. How and why? The president is given 3 months from occurrence of the vacancy to fill the vacancy. If the president chooses nominee no. 1 for the vacancy in cluster A, nominees 2-5 can no longer be considered for vacancies B, C, and D. What if the president would want to appoint anyone from 2-5 to other vacancies? [This is] impairment of his appointment authority. The same goes to vacancy B. At the same time, nominees from cluster B, C, and D are precluded from appointment for vacancy A. Aguinaldo v. Aquino G.R. 224302 To address the issue on the impairment, the Supreme Court held: if there were simultaneous or deemed simultaneous vacancies then there should be only one list with at least 3 nominees in each vacancies. Therefore, in this case, if there are 4 vacancies that should be one list of at least 12 nominees and the president should choose from any of the 12. Section 10. The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts, shall be fixed by law. During their continuance in office, their salary shall not be decreased. Section 11. The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court en

Section 13. The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the Court. A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties. Any Member who took no part, or dissented, or abstained from a decision or resolution, must state the reason therefor. The same requirements shall be observed by all lower collegiate courts. Remember that this requirement is not only prescribed for SC but for all collegiate courts. An unpromulgated judgment is not a judgment. When the SC holds a presscon after an Enbanc meeting of an important case and they announce the votes and the rationale, this is not actual promulgation. And until actual promulgation, those justices who have voted there can still change their minds. Section 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor. This is a due process provision in the constitution. The judge cannot rule on a case of which the basis is that the memorandum of the plaintiff is good but the memo of the defendant is better therefore the court rules in favor of the defendant. UP v. Dizon G.R. No. 171182 The decision of the lower court in awarding of the damages merely stated: Because of the

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defendant's negligence, the plaintiff sustained damages in the amount of (so and so).

to comply with procedural requirements, e.g., failure to include an explanation.

Held: The SC ruled that these are mere conclusions of law. The facts that consitutes the negligence must be spelled out. How the court arrived at the amount of damages should also be indicated. The courts referred to the case of Nicos Industrial penned by Justice Isagani Cruz:

Sec. 15: Deadline

It is a requirement of due process that the parties to a litigation be informed of how it was decided, with an explanation of the factual and legal reasons that led to the conclusions of the court. The court cannot simply say that judgment is rendered in favor of X and against Y and just leave it at that without any justification whatsoever for its action.

Article IX-A: General Provisions Constitutional Commissions

Diong diong v.?? I cannot hear the case clearly There are no allegations in the complaint, neither it was determined in the trial. However on the judgment it indicated a 5% interest. There was no explanation on how the court arrived at the same. The court held in this case that the said judgment is invalid on the basis of Sec. 14 of the Constitution.

•

This provision applies only to judgment of courts. This does not apply to quasi-judicial adjudication or administrative determination. Does this mean that the quasi-judicial adjudication and administrative determination need not indicate the facts and the law on which the decision is made? Not necessarily. They must but not on the basis of Sec. 14 but rather on the basis of cardinal primary requirements observed in administrative proceedings. The 7th of which states that The Board or body should, in all controversial questions, render its decision in such manner that the parties to the proceeding can know the various issues involved, and the reason for the decision rendered. Minute Resolutions Corpus case A minute resolution is allowed in cases where decisions have to be rendered without a fullfledged trial or proceedings, e.g., when witnesses of prosecution did not appear on the dates of trial after notice and for no justifiable reason, the judge may provisionally dismiss the case. In the same vein, in a collegiate/appellate proceeding, an appellate court may dismiss the case via minute resolution on the basis of failure

Sec. 16: Administrative ARTICLE IX-A: COMMISSIONS

CONSTITUTIONAL on

Remaining concerns • •

On fiscal autonomy in the same way as the Supreme Court’s Funa v. Duque, Commissioners of Constitutional Commissions may not hold any other office. Funa v. Villar (Rotational scheme) o NOTE: Republic v. Imperial regarding the staggering of terms: § 1st principle: Each member of the Constitutional Commissions will start his/her term on the same day (Note: this is only applicable to term immediately after the 1987 Constitution took effect; pinakaunang mga commissioners under the 1987 Consti) § 2nd principle: When there is a vacancy on the position and the term of the person occupying the same has not yet expired, the “replacement” will only serve on the remaining period on that term. The point is that there is no offsetting of the remaining period. The purpose being is that the President is prohibited from appointing all members of the Constitutional Commissions to ensure their independence. o Five offices with staggered terms: 1. COA, 2. CSC, 3. COMELEC, 4. Senate, and 5. JBC. o Carague, the chairman, was appointed in 2000. Supposedly, he will retire in 2007. o Villar was appointed in 2003. Supposedly, he will retire in 2010. o When Carague retired in 2007, Villar was appointed as acting chairman (in his fourth year). Was the appointment valid? No. Appointments in the Constitutional Commissions in an acting capacity are void.

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Brilliantes v. Yorac The chairman of the COMELEC resigned and then Cory designated Yorac as acting chairman. This is unconstitutional. Who will be the chairman pending appointment? The rest of the commissioners will choose because this will mark their independence. Continuing the case of Funa v. Villar The designation of Villar as acting chairman was then unconstitutional but Gloria sought after that designation. She converted the appointment in that designation into a regular appointment. But Gloria said that “You are now promoted as chairman but you will serve only in the period remaining in your original term as associate Commissioner.”

an expiration of the term so that promotional appointment cannot be. Under what circumstances therefore can a promotional appointment, given an accidental vacancy be allowed? •

He will serve as a Chairman, regular but the remaining term is only for three years. Kasi diba 2003 siya na-appoint and 2007 siya na-promote. Funa questioned this on the basis of the principle of staggering of terms. Funa was sustained. Actually, nagging moot ito dahil nagwithdraw/nagresign si Villar pero transcendental importance kaya si Justice Velasco proceeded to rule on the particular point. •

BASIC RULES: 1. Is the promotion from associate to chairman to be considered as a reappointment? Remember reappointments are not allowed in the Constitution? Answer: No, a reappointment is a second appointment to the same position. This is a promotional appointment or an appointment from Associate to a different position, Chairman and therefore not a reappointment. Not unconstitutional on that aspect. 2. Is the promotional considered as valid?

appointment

Answer: No, because promotional appointment can be done only under these conditions. (1) Vacancy in the Chairmanship must be accidental and not absolute. You recall in your public officers that absolute vacancy means expiration of the term, retirement age. Those are absolute vacancies. Accidental vacancies are death of the occupant, resignation, permanent incapacity or removal by impeachment according to this case of Funa v. Villar. The SC stated that this is absolute vacancy not accidental vacancy. This is

•

Let’s say that Carague resigns 2005, that means that there are still 2 years left in the chairmanship. Villar was appointed Associate Commissioner in 2003 kaya nung 2005 nakaka-two years palang siya. Sabi ng SC, the associate who will be promoted should have enough in his original term to accommodate the remaining term in the chairmanship. Villar was appointed in 2003 and was sought to be promoted in 2005, so that means that he will still have five years in his original terms. Question, can those remaining five years accommodate the remaining two years? Of course, because five years is more than two years. Understand that kung baliktad yung situation, kapag two remaining years na lang yung ipropromote pero five remaining years in the Chairmanship. Hindi pwedeng ipromote. Before promotion can be done, he must first resign in his position as Associate Commissioner. Final point, following the illustration that I gave, two years na lang ang natitira sa Chairmanship, five years pa ang term niya, ibig sabihin two years na lang siyang magseserve. What happens with the three years extra in his remaining five years the answer is that he waives it. This is Funa v. Villar.

CIVIL SERVICE COMMISSION SECTION 2. (1) The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. (2) Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and, except to positions which are policy-determining, primarily confidential, or highly technical, by competitive examination.

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(3) No officer or employee of the civil service shall be removed or suspended except for cause provided by law. (4) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign. (5) The right to self-organization shall not be denied to government employees. (6) Temporary employees of the Government shall be given such protection as may be provided by law. Let’s now go to Sec. 2 of Civil Service Commission. The paragraph 1 of which I have discussed already, the coverage of the authority of the Civil Service Commission. You remember our discussion here on Liban v. CA (GR No. 175352), qualified by the recent case of Torres v. De Leon (GR No. 199440). I hope you remember our discussion. Par. 2, class. The policy determining, primarily confidential, or highly technical, why are they separate? Why are they special? Because they are exempt from civil service eligibility requirement. But understand that the law prescribes eligibility even for many others who have not taken the eligibility exam. (Sir cited himself as an example for being civil service eligible for being an honor graduate) Distinction: Career vs. Non-career Career Career Executive Service Officers (CESO)

Non-Career Secretaries and their confidential staff, directors or heads of GOCCs

Here’s the point, all of them are entitled to security of tenure. There are many pronouncements of the Supreme Court with respect to the so-called CESO. Remember that the security of tenure pertains to the status, not to any specific positions in the government. After passing that special civil service eligibility exam, they are entitled to security of tenure as to status, but never as to ay specific appointment. Remember that they are essentially presidential appointees.

Basic function of the CSC Luego v. CSC G.R. No. L-69137 Aug. 6, 1986 Yung appointment was designated by the appointive authority as permanent. Consistent with the procedure, it was referred to the CSC for processing. CSC approved the appointment as temporary. Held: It cannot be. CSC cannot change the tenor of the appointment of the appointing authority. Office of the Ombudsman v. CSC GR No. 162215 Jul. 30, 2007 This was during the time of Ombudsman Sonny Marcelo. Consistent with his authority under Art. 11. He created a position, Graft Attorney III. He made an appointment pursuant to his Constitutional authority. Consistent with procedure, he referred his appointment to the CSC for processing. The CSC characterized the position as a Career Executive Service Office. Court: Unconstitutional. It cannot change the character of the position created. Moreover, If the could be allowed, then only the President could have appointed to that position because CESO can only be appointed by the President. Other Concerns Q: Can civil servants form Unions? A: Yes. Q: Can they engage in collective bargaining? A: Yes. Q: Can they execute collective bargaining agreement with their employers? A: Yes. Q: Can they engage in strikes? A: No. Freedom to of lawful necessity or expression vs. police power competence of the State to punish for these illegal concerted activities Class, ang key dito is to find out whether there is a work disruption. If there was a work disruption, then the imposition of penalties, even the supreme penalty of dismissal, would be justified. GSIS case There was an auditorium meeting, General Assembly, the employees walked out. They staged a 4-day strike. They were dismissed. 79



SC: Valid dismissal. There was work disruption. Another GSIS case Administrative charges were filed against union officers. Rank and file employees, by way of support, they bought shirts and formed lines as the union officers were marching towards the venue where the formal investigation will be held. SC: There was lawful expression. There was no effective work disruption because it was merely a temporary display of support. The penalty imposed against the civil servants were not sustained by the court. Davao City Water District v. Aranjuez G.R. No. 194192 June 16, 2015 They were required to attend on a Sunday a fun run. There was reluctance but they obeyed the memorandum requiring their participation in that office activity. But, they wore t-shirts expressing their grievances. They were disciplined. SC: Cannot be. That is just freedom of expression. (6) Temporary employees of the Government shall be given such protection as may be provided by law. Temporary Employments There was a law which says that if you have been temporarily appointed to a position doing that work for 7 years, the CSC may grant you eligibility even if you do not pass the eligibility exam. Sir thinks that this law will not apply to lawyers holding temporary positions who still do not pass the bar exam. Section 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.

This is the basis for the rule making authority of the CSC. Section 4. All public officers and employees shall take an oath or affirmation to uphold and defend this Constitution. This is the oath. Under the Article 16, Sec. 5(1), there is an additional oath required for armed forces personnel which requires them to remain loyal to the Republic. Art XVI Section 5. (1) All members of the armed forces shall take an oath or affirmation to uphold and defend this Constitution. Art. IX-B Section 5. The Congress shall provide for the standardization of compensation of government officials and employees, including those in government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for, their positions.

This calls for compensation.

the

standardization

of

Section 6. No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government or any Government-owned or controlled corporations or in any of their subsidiaries. There is a little controversy in this provision because of Mocha Uson. If you lost as a candidate, for 1 year, there is a ban or prohibition as against appointment or designation to any government posts/positions. The problem is there is no definition as to the term “candidate”. But this government is estopped from stating otherwise. Recall Cardema. When he filed his notice of substitution (akin to a Certificate of Candidacy), recall the statements of Malacañan that he is bound by the ipso facto rule in Section 66 of the Omnibus Election Code that if you file a CoC, then you should be considered to have automatically resigned. 80



The provisions of Section 7 I have tackled already. The first and second paragraph when it talked about incompatible offices. The only thing remaining would be the matter of additional, indirect double compensation which can be given if allowed under the law. The concepts of pensions and gratuities are not covered here. Veloso v. COA G.R. No. 193677 September 6, 2011 Three term councilors were recognized for their continued and loyal services to the city. They were given cash awards. Upon scrutiny of the COA, those amounts exactly double the amounts of the salaries they earned during those 3 consecutive terms. Sabi ng Court malinaw this is double compensation not allowed under the law. Good faith principle: Andaming unlawful disbursement of funds but because of the good faith principle, hindi nirerequire na ibalik. Ex. When this provision allowing public employees to form unions, many of them executed CBAs with employers. Those CBAs contained provisions or upward salary adjustments all implemented in good faith. Isa-isa silang dinidisallow ng Supreme Court but never sila inorder to return the amounts received by way of salaries received. There was this GOCC, its function to give consultancy services. It assigned two of its regular employees to this other GOCC to do consultancy there. When the cost folded up, it gave cash awrd to the two employees of the mother company by way of recognition, support, assistance, double compensation Unconstitutional. This strange case of an ERC employee, she retired, and was appointed chairman of the ERC. 3 retirement benefits ang nakuha nya, malinaw it is not covered by the prohibitions. But the SC said only one benefit is receivable. COMELEC CONCERNS SECTION 2. The Commission on Elections shall exercise the following powers and functions: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. It undertakes registration of voters. The present law requires registration, continuous except 120 days before an election. The COMELEC is

authorized to pursue registration using biometrics system. This system was challenged but was sustained as not being an additional literacy, property, or substantive requirement which shall prescribe in Article V Section 1. Biometric system is a valid. It does not fall under the “literacy, property, or substantive requirements” as proscribed by the Constitution (Art. V Sec. 1). This is a valid police power measure intended to help the COMELEC to preserve the integrity of registry of voters. (Bagumbayan v. COMELEC) Sec. 2. The Commission on Elections shall exercise the following powers and functions: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. (3) Decide, except those 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. ……. This is also the basis of Sec 2 par. 1 of requiring the COMELEC to issue voters receipt as commanded by the law subject to the keeping of the confidentiality of those voters receipt to avoid vote buying. The voter will proceed to confirm his vote and put it in a ballot box, which will be kept by the COMELEC. The power of enforcement also includes the power to admit process of certificate of candidacy, which in the case of Imperial, it was considered only as administrative duty of the COMELEC. The power to enforce and to administer law relative to the conduct of election also includes the power of the COMELEC to 81



suspend, postpone, or declare failure of elections consistent with Sections 5 & 6 of the Omnibus Election Code. Before, kapag may special election, dapat may batas lagi. But now, the COMELEC, in its own authority, can declare a failure of elections. Failure of election is present when the election was not done on the date it was scheduled, if not completed on the date scheduled, and if there were improper transmission in the election returns. In either of these instances, there must be force, violence, threat, or intimidation, which serves as basis for declaring the failure of election. It is not obligatory upon the COMELEC to declare the failure of election. It is absolutely discretionary. (Sanchez v. COMELEC) For example: In one legislative district, there are 1000 polling precincts. Sabihin naten there was violence in 2 precincts. Pwede magdeclare ng failure of election. But it is the COMELEC’s call. And if the COMELEC finds that it’s statistically improbable in the 2 precincts to materially affect the total outcome of the voting in the district, in that instance, the COMELEC is well within its discretion not to declare a failure of election. If it declares a failure of election, it should call for a special election even if that special election is to be done beyond the deadline prescribed by the law as long as it is reasonably near to that deadline. Those special elections can still be upheld understanding the logistically problems which usually attend the conduct of special elections. The other paragraphs in section 2 also include the authority to determine the number and location of polling places as well as the registration of voters. But please note that express constitutional proscription: the COMELEC is not given the right to decide on the right of the voters. The problem with this provision, when you apply for registration, something that can be done by the COMELEC, when it approves that registration, isn’t it a decision on the right to vote? If it is rejected, isn’t it a decision on the right to vote? Do you get my point? I am just being OA class. Of course, it is only a preliminary determination. You will note that there is a petition for inclusion or exclusion of voters to be tackled by the competent courts. Well, they make the final pronouncements on the right to vote.

The COMELEC has exclusive original jurisdiction over all election contests on the qualifications of provincial, city, and regional elective officials. It shall have appellate jurisdiction with respect to all municipal election contests as decided by the courts of general jurisdiction and all appellate jurisdiction over all barangay election conflicts decided by courts of limited jurisdiction provided by its adjudication with respect to barangay election contest should be final and not appealable. Section 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including preproclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. When there is a quasi-judicial matter to be taken to the attention of the Commission, you cannot go straight to the EnBanc. Because Section 3 requires that any matters must be tackled at the first instance by either of the Divisions. Remember that the quasi-judicial authority of the En banc is triggered only by appeal, which is done usually by a Motion for Reconsideration. Meron appellate jurisdiction and Division ng COMELEC over RTC municipal election contests? YES. May it exercise certiorari jurisdiction over the RTC, in aid of its appellate jurisdcition? YES. (Several cases on this regard) COMELEC en banc has appellate authority over either Division. May the COMELEC en banc exercise certiorari jurisdiction over interlocutory matters pending before either Division? NO. For instance, a Motion filed in one Division for the admission of affirmative defenses which is denied arbitrarily. SC: That particular challenge will be reserved as an error on appeal to be later filed with the COMELEC en banc, NOT by way of certiorari. Say there is an interlocutory matter before a Division. Kunwari inadmit un pleading despite the lapse of the deadline, clearly prescribe in the COMELEC Rules. So, aribitrary and whimsical. Is certiorari allowed from the Division to the SC directly, bypassing the appeal to the COMELEC en banc? YES. (Co v. COMELEC) 82



From a Division interlocutory matter clearly tainted with Grave Abuse of Discretion, the party can go straight from the Division to the SC. Mode is Rule 65, not Rule 64. Rule 64 is limited to appeals from the COMELEC en banc, in the exercise of its appellate quasi judicial authority.

of their freedom of expression. Although these vehicles are PUVs, which are granted franchise by the government to operate, they still remain private property. Owners of this private property certainly, within their freedom of expression, are free to express their preferences for their candidates openly on their properties.

Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, and equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

SC: You cannot justify it on the basis of Section 4.

In the context of this regulatory authority of the COMELEC, for purposes of insuring free, honest, orderly clean election inaudible equal opportunities. The focus here are public utilities, mass media etc. COMPARE: This law implemented by COMELEC Resolution requiring all newspapers of general circulation to reserve 1/2 page of each of their editions to be used by the COMELEC as COMELEC page announcements, resolutions, equal opportunity. SC:That is expropriation, which cannot be valid unless just compensation is paid. Because pages of newspaper are considered private property. This particular rule cannot be justified on the basis solely of Section 4 of Article IX-C. CONTRAST: COMELEC, implementing the law by Resolution, requiring all these broadcast facilities to provide it with airtime. SC: Air space is owned by government and regulated by government. Certainly it can be subject to the regulatory authority of the COMELEC. (Valid police power) 1-Utak v COMELEC GR 206020 April 14, 2015 COMELEC invoked Section 4 in prohibiting the displaying of campaign materials on public utitlity vehicles and public terminals where PUVs park. SC: There is prior restraint and therefore violative

This Resolution or prohibition does not in any way affect the operations of these PUVs. Rather, it must be seen as clearly impairment of the freedom of expression of its owners. Moreover, the resolution cannot be applied in those public terminals. Precisely, those public terminals are not public utilities and they are privately-owned. Pumaparada lang diyan ung mga PUVs. Social Weather Station v. COMELEC G.R. No. 208062 April 07, 2015 Facts: Comelec Resolution No. 9674 directed Social Weather Stations, Inc. (SWS) and Pulse Asia, Inc. (Pulse Asia), as well as "other survey firms of similar circumstance" to submit to COMELEC the names of all commissioners and payors of all surveys published from February 12, 2013 to April 23, 2013, including those of their "subscribers." SWS and Pulse Asia are social research and public polling firms. Among their activities is the conduct of pre-election surveys. Issue: WON the right of the petitioners to free speech will be curtailed by the requirement to submit the names of their subscribers - NO Held: The Court sustained the validity of Resolution No. 9674. 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.” Section 5.2(a)'s requirement of disclosing subscribers neither curtails petitioners' free speech rights nor violates the constitutional proscription against the impairment of contracts. The Court also ruled that The Fair Election Act also governs published surveys during elections. The nature of the speech involved, as well as the Fair Election Act's purpose of ensuring political equality, calls into operation the equality-based 83



approach to weighing liberty to express vis-a-vis equality of opportunities.

COMELEC approval for candidates’ television and radio guestings and appearances.

While it does regulate expression (i.e., petitioners' publication of election surveys), it does not go so far as to suppress desired 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.

ISSUE: Whether or not Section 9 (a) of COMELEC Resolution No. 9615 on airtime limits violates freedom of expression, of speech and of the press.

Discussion from Sir: These political surveys can potentially produce very varying effects politically. Precisely because they create mindsets. These have bandwagon effect, motivating effect etc. That’s why the COMELEC Resolution requires the surveys company to indicate in the survey results the name and source of funding. Obviously, to lend more credence to the credibility of the survey. Survey companies complain and cried foul. Prior restraint daw. SC dismissed it. SC said that it will use the very definition the petitioners invoked, prior restraint. There’s no prior restraint here, you are allowed to publish the results but the police power of the state entitles the COMELEC, consistent with Section 4 as well, to make this additional requirement to avoid the potential political effects to the electorate. GMA Network v. COMELEC G.R. No. 205357 September 2, 2014 FACTS: The 5 petitions before the Court put in issue the alleged unconstitutionality of Section 9 (a) of COMELEC Resolution No. 9615 limiting the broadcast and radio advertisements of candidates and political parties for national election positions to an aggregate total of one hundred twenty (120) minutes and one hundred eighty (180) minutes, respectively. They contend that such restrictive regulation on allowable broadcast time violates freedom of the press, impairs the people’s right to suffrage as well as their right to information relative to the exercise of their right to choose who to elect during the forth coming elections. Section 9 (a) provides for an “aggregate total” airtime instead of the previous “per station” airtime for political campaigns or advertisements, and also required prior

HELD: YES. The Court held that the assailed rule on “aggregate-based” airtime limits is unreasonable and arbitrary as it unduly restricts and constrains the ability of candidates and political parties to reach out and communicate with the people. Here, the adverted reason for imposing the “aggregate-based” airtime limits – leveling the playing field – does not constitute a compelling state interest which would justify such a substantial restriction on the freedom of candidates and political parties to communicate their ideas, philosophies, platforms and programs of government. And, this is specially so in the absence of a clear-cut basis for the imposition of such a prohibitive measure. It is also particularly unreasonable and whimsical to adopt the aggregate-based time limits on broadcast time when we consider that the Philippines is not only composed of so many islands. There are also a lot of languages and dialects spoken among the citizens across the country. Accordingly, for a national candidate to really reach out to as many of the electorates as possible, then it might also be necessary that he conveys his message through his advertisements in languages and dialects that the people may more readily understand and relate to. To add all of these airtimes in different dialects would greatly hamper the ability of such candidate to express himself – a form of suppression of his political speech. Discussion from Sir: Before, at the start of the election period, the rule is candidates have 120 minutes of airtime. In the middle of the campaign period, It was aggregated to 120 minutes for all media exposures. UNCONSTITUTIONAL for 2 reasons: 1. VIOLATIVE OF DUE PROCESS AND IMPAIRMENT OF VESTED RIGHTSEven it falls under the regulatory authority of Comelec, you don't change the rules of the game in the middle of the game. 120-minute is vested right already. 2. PRIOR RESTRAINT - Political speech is a protected speech. 84



Other powers of COMELEC Para. 4 of Section 2: 2 instances where the COMELEC is subordinated to the President: 1. It cannot deputize law enforcement agencies without concurrence of the President 2. It cannot discipline the insubordinate deputies it can only recommend disciplinary sanctions to the president. Sir: Do not limit “law enforcement agencies” only to the concept of armed law enforcement agencies like the police authorities or the soldiers. Bankers Association of the PH Case For right reasons, any other governmental agency can be deputized by the COMELEC upon the concurrence of the President. SECTION 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission. The pardoning power, is circumscribed or certainly limited, under this provision: in the sense that the President may not pardon election offenses without a favorable recommendation of the COMELEC. SECTION 6. A free and open party system shall be allowed to evolve according to the free choice of the people, subject to the provisions of this Article. SECTION 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list system as provided in this Constitution. SECTION 8. Political parties, or organizations or coalitions registered under the party-list system, shall not be represented in the voters’ registration boards, boards of election inspectors, boards of canvassers, or other similar bodies. However, they shall be entitled to appoint poll watchers in accordance with law. Block voting is not allowed, except for party-list representation. A free and open party system is encouraged under the Constitution.

Registration and accreditation of political parties would not entitle it to any special rights except that it is authorized to appoint poll watchers. Hindi yan entitlement to representation to voter registration boards, boards of election inspectors or much less the boards of canvassers. Ang special authority lang dito is upon registration, for these parties, duly registered, to have or appoint poll watchers. SECTION 9. Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety days before the day of the election and shall end thirty days after. Section 9 is the matter of the election period. Do not confuse the election period with the campaign period. The campaign period is always shorter. It usually ends 2 days before the election day as per resolution of COMELEC. Rule: The election period commences 90 days before the date of the election and extends until 30 days thereafter. The reason for the “30 days thereafter” 1. The election activities do not end on election day. 2. The COMELEC by simple resolution can alter the election period. There is no need for a law, much less a constitutional amendment. Any COMELEC resolution will suffice. The determination of when election would be important especially for election offenses. 2018 Case: The contention was this: It is the Congress which prescribes and provides punishment for election offenses. These are basically the crimes committed during the election period. If the COMELEC can alter the election period, certainly, it can determine whether or not an act can be considered as an election offense. That would be a way of amendment of the law which the COMELEC cannot do. 
 SC: Here, because the COMELEC is allowed to alter the election period, it was allowed to amend the law. However, that is not by way of amendment because clearly these pieces of legislation when promulgated would have to follow the election period prescribed by the COMELEC pursuant to its authority expressly conferred upon it by Section 9 of the Constitution. 85



Illustration: Based on the Constitution, the election period commences 90 days before the date of the election. Now, 89 days before the election, the person campaigns. This should be considered pre-mature campaigning. But during the filing of the charges, the charger looked at the election period would start 60 before the election and not 90. Thus, it is not covered in the election period and thus not an election offense. Sir: The concept of election offense prescription still pertains to the Congress but in any election offense definition, there is a valuable element which is the election period. This election period can be determined by the COMELEC pursuant to this provision. Another Case: Art. III. Sec. 19, par. 1: Cruel, degrading and inhumane punishment. Matruan v. Comelec March 28, 2017* sabi ni sir 2018 pero wala. G.R. No. 227155 Remember that prisonment and fines are penalties. These are punishments. The impositions of community service programs and admonition are allowed as they do not constitute penalties. In this case, a candidate for an elective post who has failed to file his Statement of Contributions and Expenditures or SOCE within 30 days from the day of the election is perpetually disqualified to hold public office. He claimed the penalty of perpetual disqualification is “harsh and cruel.” The SC held that the constitutional proscription under the Bill of Rights extends only to situations of extreme corporeal or psychological punishment that strips the individual of his humanity. The proscription is aimed more at the form or character of the punishment rather than at its severity. that Congress has deemed fit to impose the penalty of perpetual disqualification on candidates who repeatedly failed to file their SOCEs cannot be the subject of judicial inquiry. Congress has the absolute discretion to penalize by law with perpetual disqualification from holding public office in addition to administrative fines the seekers of public office who fail more than once to file their SOCEs. Such penalty is intended to underscore the need to file the SOCE as another means of ensuring the sanctity of the electoral process.

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POLITICAL LAW REVIEW Atty. Carlo Cruz November 20, 2019 COMELEC Section 2. The Commission on Elections shall exercise the following powers and functions: 1. Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. This is the mother of all the powers of the COMELEC. This is the executive power that is removed from the President. This is on instance where the President is subordinated to this independent constitutional commission because to the COMELEC is entrusted the enforcement of election laws. In contrast, the only other instance where the President is subordinated to the COMELEC would be in the exercise of his pardoning power, which he cannot do, in connection with election offenses except upon the prior recommendation of the COMELEC. In turn, the COMELEC is subordinated to the President in that it may not deputize law enforcement agencies without the concurrence of the President. Once these deputizations are made, the COMELEC would not be free to impose disciplinary sanctions upon insubordinate deputies. It can only recommend to the President the imposition of such disciplinary sanctions. Under the third paragraph, note that the COMELEC may not decide on the right to vote. Do not be confused when the COMELEC accepts registration, or even when it denies applications for registration of voters. That determination is at best preliminary because ultimately these may be questioned before the proper courts through a petition for inclusion/exclusion of voters. The COMELEC, in the context of its enforcement power, is entitled to provide for the continuing registration of voters. Kabataan Party List v. COMELEC GR No. 221318 December 16, 2015 The Biometrics System of Registration is a valid exercise of police power and should not be construed as a way of statutory imposition of

additional requirements for suffrage. Art V, Sec. 1 prescribes that “No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.” The Biometrics System of Registration is intended to maintain or secure the integrity of registry of voters. The power to enforce laws also includes the power to accept certificates of candidacy. As early as in Abcede v. Imperial, this has been considered by the Supreme Court as a mere ministerial duty. Under this power is also the authority to postpone, to declare failure of elections and to conduct special elections upon postponement or failure of elections. Sanchez v. COMELEC Reference was made to the Omnibus Election Code which provides the COMELEC with statutory power to postpone, suspend, declare failures, and conduct special elections. When the COMELEC declares failure of elections, this is a performance of its administrative capacity. Nothing quasi-judicial about it. There can be a declaration of failure of elections if the election was not held on the day it was scheduled, not completed on the day and time it was scheduled, or if there were problems in the transmission of election returns. In any of these grounds, there must be a matter of force, violence or intimidation. But even if those circumstances occur, the matter of declaring failure of elections should be considered as still discretionary upon the COMELEC. It can do so only if it determines that the results in the areas where there had been failure of elections would materially affect the total outcome of voting in that area or legislative district. For instance, in a legislative district comprised of 1,000 polling precincts, there was a failure of 2 polling precincts because there was force or violence, the results in those 2 polling precincts would not materially affect the total outcome in the area. Therefore, COMELEC would be within its discretion not to declare a failure of elections. If it does so, then it can call for a special election. If the COMELEC upon prior declaration of failure of election, fails to conduct special election within the prescribed deadline, as long as there is a substantial compliance with the deadline prescribed, then the special election can still be validated.

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The power to enforce election laws also includes the power to still tackle pre-proclamation contests. Distinguish this from election contests which are essentially covered by other provisions of the Constitution. The rule of thumb to determine whether a particular controversy would be a pre-proclamation contest, you go into the matter of determining whether or not there was a problem in the canvassing of the election returns, such as the illegal composition of the board of canvassers; the election returns are defective on its face; the election returns were manufactured with fraud etc. All of these would go into the validity of the canvassing.

Relationships of these entities in the course of the exercise of the COMELEC of its quasijudicial authority (Relate to sec. 3 or Art. IX-C)

Abayon v. COMELEC GR No. 181295 April 2, 2009 There was a pre-proclamation contest that was filed contending that there was a need to stop the proclamation because in certain polling precincts there was violence, someone was kidnapped, there was gun pointing, ballot boxes were stolen etc. The Supreme Court said that those should be raised in an election protest, not a preproclamation contest.

May either division in the exercise of its appellate authority, exercise certiorari jurisdiction over the decisions of the RTC or even the MTC? YES, in aid of its appellate jurisdiction. But jurisprudence provides that the En Banc cannot exercise certiorari jurisdiction over interlocutory matters tackled by either division in the exercise of its original or appellate jurisdiction.

2. Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. COMELEC Jurisdiction: Exclusive Original over all regional, provincial and city election contests Appellate over municipal contests decided by courts of general jurisdiction and barangay contests decided by courts of limited jurisdiction provided that its decisions on appeal with respect to the barangay contests are final and unappealable.

Anything and everything quasi-judicial shall be tackled, at the first instance, by either division The En Banc’s authority can be triggered only by filing an appeal that can be marked by filing an MR. Municipal election contests

•

RTC

COMELEC division

COMELEC En Banc

For instance, in one division, there is a motion to admit affirmative defenses, which was arbitrarily denied by the COMELEC division. That matter cannot be appealed to the COMELEC en banc. Co v. COMELEC provides that that matter should be reserved as an error on appeal to be later tackled, once the entire case is ready or ripe for appeal to the COMELEC en banc from the division.

From either division, would it be possible to go to the SC with regard to interlocutory matters, bypassing the en banc. Co v. COMELEC says yes. •

For instance, in one division, a pleading was filed beyond the prescribed period as per COMELEC rules. This could be considered as being tainted with grave abuse of discretion. This interlocutory matter can be tackled straight by the SC, by-passing COMELEC En Banc via a rule 65, not rule 64. Rule 64 is reserved by way of appellate remedy from the en banc adjudications.

Other powers of the COMELEC: Art. IX-C Sec 2(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of 88



polling places, appointment of election officials and inspectors, and registration of voters.

Art. IX-C

(4) Deputize, with the concurrence of 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.

Section 2 (6) File, 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 election frauds, offenses, and malpractices.

(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their platform or program of government; and accredit citizens’ arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused registration. Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law. No. 5 pertaining to disqualifications for accreditation of political parties, is essentially echoed in the grounds for denying due course or cancelling to the COC. Among those prohibited are: Religious party, foreign assisted, foreign… Liberal Party and Atienza v. COMELEC G.R. 188920, Feb. 16, 2010 Included in the power to register political parties is the necessary power to resolve intra-party conflicts precisely because the authority to register would include the power to determine the power leadership in any political party. The same doctrine was invoked by COMELEC in Lico v. COMELEC for purposes of proceeding in the exercise of its jurisdiction to decide on the leadership following the amendment of the bylaws. The court impliedly upheld this power, however, the Court held that it was improperly exercised by the COMELEC. To allow the COMELEC to rule on this would be tantamount to allowing it rule on the expulsion of a sitting member of the HR, which is in the exclusive jurisdiction of the electoral tribunals.

(7) 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. (8) 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. (9) Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall. Section 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including preproclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. This regulatory authority with respect to legislative franchises of public utilities including 89



vehicle transportation systems and the mass media. Note the purposes for the conferment of this regulatory authority- holding free, orderly, honest, peaceful, and credible elections, equal opportunities, the right to reply. Cases: COMELEC resolution implemented a law requiring all newspapers of general circulation to reserve one-half page of their editions for COMELEC space. •

INVALID. The resolution partook of a taking or the power of eminent domain, which cannot be done without payment of just compensation.

COMELEC resolution implemented a law requiring all mass media establishments- radio or television to reserve half-hour per day of their airtime for COMELEC to make its announcements and provide equal opportunity to campaign, etc. •

VALID exercise of police power. It is the State that owns the airspace and therefore would be subject to its regulation. The regulation would be through COMELEC pursuant to Art. IX-C, sec. 4.

The basic justification there is that it is a State which owns the airspace, and therefore would be subject to its regulation and in this particular case the regulation is not through the Comelec pursuant so Sec. 4 of Art IX-C. Three new cases. The first is 1-UTAK v. COMELEC G.R. No. 206020 14 April 2015 Facts: Recall this Comelec Resolution prohibiting owners of private utility vehicles and owners of these public terminals where the PUV’s would park and wait for their passengers. They were prohibited from displaying in their properties and their premises campaign materials. Recall that the complaint there was to the effect that it constituted prior restraint-that it was suppressing freedom of expression. Held: This particular challenge was sustained by the Supreme Court. Let’s focus on the authority of the regulatory authority of the Comelec insofar as the PUV’s are concerned. Remember that the regulatory authority here pertains necessarily to the operations of the PUV’s. I’ll cite an example. In far-flung areas the rich candidates pinapakyaw

na nila yung mga jeeps and mga buses para matransport yung mga voters from their homes to the polling precinct in order for them to vote for the candidate. This is precisely the practice which the COMELEC sought to address through its regulatory authority under Sec. 4. The Court pronounced this has nothing to do with that aspect of its regulatory authority. Remember that PUV’s, even if they are used for public service, they remain private properties and therefore the owners of these private properties can use them for the purposes of expression. These campaign materials are considered free speech and therefore cannot be curtailed by a regulation to that effect imposed by the Comelec. Yes, it would constitute as prior restraint. All the more the reason that that resolution cannot be applied to the owners of the public terminals because these public terminals are not even grantees of legislative franchises. Therefore, clearly, the freedom of expression of these owners of public terminals was also considered breached. We go to the fourth case GMA Network v COMELEC G.R. No. 205357 September 2, 2014 Facts: Remember that at the start of the campaign period the time allotted, by way of airtime, granted to candidates would have been 120 minutes. But this would be for specific broadcast facilities. 120 minutes sa GMA, ABS, (ano pa yung kalintikan na yun?) Kapatid. In the middle of the campaign period the COMELEC, by way of resolution, limited or aggregated the total time to a maximum of 120 minutes for all media facilities Held: Invalid. 2 Basic Reasons: 1.) Due Process – you cannot change the rules of the game in the middle of the game. 2.) Political speech is considered as free speech and therefore it constituted as prior restraint and therefore invalid. Final case would be Social Weather Stations v COMELEC G.R. No. 208062 7 April 2015 Facts: The COMELEC, by resolution, required all of these political survey companies upon their publication of their survey results to disclose the sources or the identities of these funders for

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these political surveys. Survey companies cried foul and said that there was prior restraint. Held: This is within the regulatory authority of the COMELEC and the purpose here is to avoid the pernicious political effects of these survey’s. They produce certain mindsets upon the electorate which should be avoided as said by the Supreme Court. The Separate Kinds of Effects: First, there is the bandwagon effect where "electors rally to support the candidate leading in the polls."This "assumes that knowledge of a popular 'tide' will likely change voting intentions in [favor] of the frontrunner, that many electors feel more comfortable supporting a popular choice or that people accept the perceived collective wisdom of others as being enough reason for supporting a candidate." Second, there is the underdog effect where "electors rally to support the candidate trailing in the polls." This shift can be motivated by sympathy for the perceived underdog. Third, there is the motivating effect where "individuals who had not intended to vote are persuaded to do so," having been alerted to the fact of an election's imminence. Fourth, there is also the demotivating effect where "voters abstain from voting out of certainty that their candidate or party will win[.]" Fifth, there are reports of a behavior known as strategic voting where "voting is influenced by the chances of winning[.]" Lastly, there is also the theory of a free-will effect where "voters cast their ballots to prove the polls wrong[.]" All of which requiring the regulation precisely as not to poison the electorate. Wala naming prior restraint, you are allowed to publish your political survey results. Only that, there is this additional requirement for you to disclose the identity of the funders of this political surveys. Perhaps to lend it more credibility. This within the regulatory authority of the COMELEC and this is certainly justifiable on the basis of the police power of the State. Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by

the President without the recommendation of the Commission.

favorable

I have discussed this, the pardoning power limitation Section 6. A free and open party system shall be allowed to evolve according to the free choice of the people, subject to the provisions of this Article. Section 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list system as provided in this Constitution. Section 8. Political parties, or organizations or coalitions registered under the party-list system, shall not be represented in the voters’ registration boards, boards of election inspectors, boards of canvassers, or other similar bodies. However, they shall be entitled to appoint poll watchers in accordance with law. No block voting except in connection with party list elections. Remember registration and accreditation, no specific additional entitlements except by way of entitlement to watchers. Section 9. Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety days before the day of the election and shall end thirty days after. A little word on the matter of the election period. Remember the period fixed here is 90-days before election day and 30-days thereafter. Well the contrast, as I have discussed, that the COMELEC has authority to change this by mere resolution. There is no need for constitutional amendment or even the passing of the law for purposes of changing this election period. I have indicated before that any election is peculiar and therefore it entitles the COMELEC to prescribe different rules. That is why we have different election periods for most elections. A little word here; I’m sorry I forgot the case title. There was this case which points out this particular concern of mine; who defines elections offenses and prescribes penalties therefore? It is the Congress. There was this contention. Recall that the essential ingredient of an election offense is that it must be committed during the election period. The claim was that since the COMELEC 91



is entitled to alter the election period, in effect, if it does so then it would be by way of amendment of the law prescribing for the election offense. The SC said that this is not correct. True that the matter of the election period is a component of election offenses. But this component is by way of constitutional decree, essentially a variable factor left to the discretion of the COMELEC pursuant to its constitutional authority. No bona fide candidate shall be subject to harassment. Relate this to Sec. 18 Par. 1 of the Bill of Rights. Article III Section 18. (1) No person shall be detained solely by reason of his political beliefs and aspirations. *rant start* I have always been against this provision in the Bill of Rights … *rant end* By way of emphasizing the fiscal autonomy of the COMELEC, understand that it is expressly provided here a uniform feature available to all fiscally autonomous entities: once the appropriations for the COMELEC have been approved, the release shall be: Automatic; and Regular There was a case involving a petition for recall filed by Hagedorn. The COMELEC, upon receipt of the petition, refused to conduct the recall election, claiming that it did not have the funds. The Court reviewed the appropriations for the COMELEC and found the funds necessary for the conduct of the recall election. The Court there, emphasized, that even if the funds would be inadequate, this is precisely why the COMELEC was given under the appropriations act consistent with Sec. 25 (5) of Art. VI, the authority to transfer savings for purposes of augmenting these items of appropriation. The funds are there. If they’re inadequate, you transfer from savings pursuant to your authority under the GAA. CONCERNS UNDER THE COA We tackle the provisions of Sec. 2. Par. 1 of which would indicate the AUDIT JURISDICTION of the COA.

Section 2. (1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government- owned or controlled corporations with original charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d) such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the Government, which are required by law or the granting institution to submit to such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep the general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto. Note: the four enumerated from (a) to (d) are on a post-audit basis. Be mindful of Veloso v. COA which said that post-audit or pre-audit is based on the DISCRETION of the COMELEC. It can conduct pre-audit with respect to the 4 items there. This would be consistent with the power vested in the COA in relation to Par. 2 Sec. 2. Recall there: 1. 2. 3.

the 3 areas of authority given to the COA To define the scope of its authority; To define the techniques and methods; To promulgate rules to determine whether the use of public funds would be excessive, extravagant, unnecessary, unconscionable, or irregular.

The third one provides the rule-making authority of the COA. (2) The Commission shall have exclusive authority, subject to the limitations in this Article, to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing 92



rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures or uses of government funds and properties. Next: Sec. 3 of IX-D Section 3. No law shall be passed exempting any entity of the Government or its subsidiaries in any guise whatever, or any investment of public funds, from the jurisdiction of the Commission on Audit. In one UCPB case, the UCPB questioned the authority of the COA to audit its shares of stock there. They claimed that these were private properties and therefore excluded from the authority of the Commission of Audit. It was pointed out that these shares pertained now to Cojuangco upon his use of these Coconut Levy Funds. So you will see that this matter falls squarely into the coverage of Sec. 3, which would include the authority to audit uses of investments of public funds. Public funds were used to purchase these private shares, therefore that purchase will fall within the coverage of Sec. 3. Note: do not overlook or underestimate the importance of Sec. 3 which states that no governmental entity shall be exempt from the scrutiny of the COA. Once upon a time, the PAGCOR was exempt from COA authority. Sec. 3 was placed there precisely so that things like this would never happen again. Final point on the COA would be Funa v. Manila Economic Cooperation Office. Funa v. Manila Economic Cooperation Office & COA (2014) We maintain the One China Policy. Actually, the policy now is Only China Policy (joke). We cannot recognize Taiwan but we cannot disregard the fact that many of our countrymen work there. So, during the time of Ramos, he provided for the creation of a private corporation registered with the SEC: the Manila Economic Cooperation Office. He provided for the creation of a private corporation registered with the SEC, the Manila Economic Cooperation Office (MECO) and with it the Government entered into several Memorandum of Agreement entrusting to it the administration of certain funds pertinent to the

existence of our Countrymen there. Visa processing, etc. Well, class alam niyo, nagpunta ako dun, nakameeting ko yang MECO na yan, yung head niyan ang tawag sakanya “his excellency” and lahat and twang sakanya “Ambassador.” So you see class, for all intends and purposes, it is a Diplomatic presence but done via a Private Corporation precisely to be consistent with our Diplomatic stand regarding this One China Policy. There was need to do that because there is a need to contend our waters there and that is the only way so as not to be inconsistent with our diplomatic as against the People’s Republic of China. Mr. Funa insisted that the MECO should be COA-ble (don’t use COA-ble in the exam ah, mahaba kasi masyado ang audit and examination authority of the COA). The resolution of the Court was very simple, it is not COA-ble because it is a private corporation. But, with respect to the funds which it administers or holds in trust for the Government, those funds, certainly are subject to the audit and examination authority of the Commission on Audit. POLITICAL LAW ARTICLE 11 We start with section 1, Public Office is a Public Trust. ARTICLE XI Accountability of Public Officers SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. • • • • • • •

Be mindful of the statements there regarding responsibility integrity loyalty efficiency act with patriotism and justice and lead modest lives

These are all cliches, these are all motherhood statements but understand, they are important statements because precisely they are cliches. This is the basic reason why the matter of the rule to the effect that administrative offenses do not

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prescribe exists precisely because of the need of a continued public accountability. REMEMBER: Administrative offenses do not prescribe. You distinguish the criminal and administrative aspect of particular acts. Certainly crimes, they prescribe. For instance, Section 15 of Article 11 which states that the State will never lose its authority to recover ill-gotten wealth by reason of prescription, estoppel, or laches. Section 15. The right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches, or estoppel. But remember, the criminal acts or actions attending these ill-gotten wealth acquisitions, they prescribe. The criminal cases for ill-gotten wealth according to the latest Cojuangco vs. People pronouncement would be Fifteen (15) years. The matter for instance of non-submission of Statement of Assets, Liabilities, and Network, the rates pronouncement here is that the prescriptive period is 8 years. But that is only with respect to the criminal offense or criminal aspect. The administrative aspect, it does not prescribe and the reason for that is precisely because public office is a public trust. Well here class, recall that among the grounds for the dismissal by the Ombudsman under Section 20 of Republic Act 6770, of administrative complaints filed with him, there are five grounds in which he may rely for purposes of dismissing administrative disciplinary complaints against public officers: Section 20. Exceptions. — The Office of the Ombudsman may not conduct the necessary investigation of any administrative act or omission complained of if it believes that: (1) The complainant has an adequate remedy in another judicial or quasi-judicial body; (2) The complaint pertains to a matter outside the jurisdiction of the Office of the Ombudsman; (3) The complaint is trivial, frivolous, vexatious or made in bad faith; (4) The complainant has no sufficient personal interest in the subject matter of the grievance; or

(5) The complaint was filed after one (1) year from the occurrence of the act or omission complained of. The fifth ground prescribes, it says that if the act complained of or subject of the administrative complaint would have been committed a year earlier, well there was this thought that it would have stood as a prescriptive period but the Supreme Court said that it is not a Prescriptive Period. It is a mere guideline, directory effect, for the Ombudsman certainly because administrative offenses do not prescribe. Remember that Section 1 is also the reason why as announced in among other cases, there is no need to apply strictly the rules of procedure, rules of evidence in the context of administrative proceedings against public officers. The quantum of evidence prescribed is merely “SUBSTANTIAL EVIDENCE”, the lower or lesser quantum of evidence is justified on the basis of Section 1 of Article 11. And finally, remember that this is the provision that was relied upon by the Supreme Court in finally abandoning the so-called “CONDONATION DOCTRINE.” A little history in here, In 1959 with the case of Pascual vs. Provincial Board of Nueva Ecija, Incumbent elective official charged with administrative offenses pending administrative offenses, he is re-elected. The re-election under this doctrine serves to pardon him for those administrative offenses committed during his prior term. That is Pascual, consistently upheld in several other decisions thereafter. A qualification presented in one case, Lizares vs. Villaluza: The condonation doctrine does not apply to criminal acts. There was a time when it was referred to as the Aguinaldo doctrine, of course that is wrong, yung Aguinaldo vs. Santos presents a different set of facts although the same principle in Pascual would have been applied. In Aguinaldo, the Governor notoriously committed rebellious acts during his first elective term. But no charges administratively were filed against him and then he was re-elected. It was only during his re-elected term that administrative charges against him for his acts during his first term were instituted. The Supreme Court held that because those acts were committed before re-election, the re-election even if the charges were filed after the election, the re-election necessarily condone those administrative acts

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during the prior term. That is essentially is the condonation doctrine. NOTE: The Supreme Court in hundreds of cases had applied this precisely because of the fact that on 1959 on the basis of the 1935 Constitution, there was no specific Constitutional provision on pUBLIC ACCOUNTABILITY. This was mentioned in Carpio-Morales vs. Court of Appeals, there was this curious statement there to the effect that under the 1935 Constitution, the closest that it has reached by way of a reference to public accountability would be Article 2 pronouncement regarding the requirement to defend the state under reasonable conditions. The pronouncement in Article II regarding the requirement as to defend the State under reasonable conditions provided for under the law. (Eto un pinakamalapit na concept of public accountability) This explains why in 1959 the Court merely relied on American jurisprudence for purposes of emphasizing or pronouncing this particular principle. It had to take a BInay to effect the abandonment of condonation doctrine. Aguinaldo v. Santos and other reiterations of Pascual v. Provinciial Board, almost all of this gained unanimous votes. CARPIO-MORALES v. CA G.R. 217126-27 Nov. 10, 2015 SC abandoned the condonation doctrine. Today, under the present Constitution, we have an entire article devoted to the matter of public accountability. Precisely, administrative offenses should not be considered as being subject to prescription. Bar exam Q 2019: Question on the prospective applicability of the Carpio-Morales doctrine (abandonment of the condonation doctrine) which became effective Nov. 2015. For all of these administrative offenses and reelections done before Nov. 2015, you still apply the condonation doctrine. But thereafter, the matter of condonation doctrine should prevail or must be applied. In the bar exam question, the administrative act, administrative offense, reelection occured before Nov. 2015. Judgment was rendered after Nov. 2015. Is judgment of dismissal applicable against the particular respondent? Because the acts complained of occurred before Nov. 2015, even if

judgment of dismissal was rendered after Nov. 2015, apply the condonation doctrine. Precisely because they pertain to acts done before Nov. 2015. IMPEACHMENT Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. Section 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution or endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one- third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the 95



Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two- thirds of all the Members of the Senate.

depart too far away from the definition prescribed in present statutes for these offenses.

(7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.

The closest we have reached by approximating this concept would be in the case of the attempted impeachment of President Quirino. In the discussions there, it would be such crimes as would strike at the very orderly workings of government, whatever that may mean. But my th point is, regardless, we have this 6 ground: betrayal of public trust, which for me is a catch-all provision. It can include any and all acts of any of the impeachable officers. Here’s the point: remember, this is an extraordinary measure described as the most formidable weapon in the arsenal of democracy against the highest officials.

(8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. Do not equate impeachment with removal. Because to impeach simply means to be accused, done upon the filing of the Articles of Impeachment and concomitantly, this is to be taken cognizance by the Senate for purposes of the impeachment trial. Section 2. Applicability of the principle of expression unius est exclusios alterios which pertains to the two lists provided in this Article. First, the list of impeachable officers.This list is exclusive. In Gonzales v. OP, the Court detected that the grounds to discipline Deputy Ombdusmen are the same grounds specified in Art. II, Section 11 of the Constitution for impeachment. This fact does not make this Deputy Ombudsmen impeachable officers. Sec. 4 of PD 1606, as amended, which would make SB Justices as removable only by impeachment — one of doubtful constitutionality. First, the list is exclusive in Sec. 2. Second, SB Justices are lower court judges and therefore subject to the exclusive disciplinary authority of the SC, pursuant to Sec. 11 of Art. VIII. And all other offices not listed in Sec. 2 shall be removable through other processes, specified by law and not by impeachment. The grounds for impeachment are also exclusive. Culpable violation of the Constitution - operative word is culpable. It must be criminal, felonious. Treason, graft and corruption and bribery Congress was given the discretion, being a political question, to assign definitions for this concepts. Sir’s opinion: Either chamber cannot

High crimes

Remember the basic notion here: it is with respect to acts committed by them DURING their incumbency as impeachable officers. Because this is a public accountability provision, they cannot be invoked against acts committed prior to their ascendance or rise to these impeachable offices. Remember Binay? Tinitira siya sa mga parking lot anomalies. Those were done by him when he was mayor. My submission is that that cannot be invoked against him during his vice presidency. Only with respect to his acts as vice president can he become held accountable on the basis of sections 2 and 3 of Art. 11. Betrayal of Public Trust Gonzales v. Office of the President Defined in jurisprudence. Look at Gonzales v. Office of the President. You recall this colonel who ended up killing several HK tourists whom he held hostage in Luneta. Remember the reason for his anger: he was dismissed administratively in the Ombudsman. He filed a Motion for Reconsideration. His contention was that the MR natulog sa Ombudsman. Several months, wala nangyari so he held hostage these HK tourists and killed them. Recall that Noynoy was there. Our SWAT forces were very inept. Int his context, from this perspective, that the doctrine of state responsibility entails essentially two acts to be done by the host state for purposes of the safety of the foreign guests: 1. there must be proper announcement by the host state as to potential danger or commission of crimes on the persons of these foreign guests (this is why there 96



are travel advisories; that is part of the doctrine). 2. Once a crime has been committed, the host state must exert ALL efforts by way of investigating, prosecuting, and providing for the conviction of the criminals. Dito nagpakita gilas si Noynoy kasi palpak siya sa first aspect. He never apologized for the ineptitude displayed by our forces here. So what did he do? He went after the reason for the officer’s disappointment. Obviously, he can’t pursue the officer because he’s dead. He went after the Office of the Ombudsman, the reason daw for the frustration of that officer. It’s clear that he couldn’t go after Gutierrez because she was the Ombudsman and therefore, removable only through impeachment. So he went after the Deputy ombudsmen. “Ako nagappoint ng mga lintik na ito ah.” This is based on the law and that law is based on the Constitution. Remember, deputy ombudsmen are appointed by the President like the Ombudsman, subject to filtering or prior screening by the JBC. Sinabi ni Noynoy na ako yung nag-appoint ng mga taong ito. Ni-review niya yung R.A. 6770. I have the authority to discipline the deputy ombudsmen. What are the grounds for disciplining them? The same grounds indicated in section 2 against impeachable officers. Culpable violation, treason, bribery, graft and corruption, other high crimes, and betrayal of the public trust. Tinira ni Noynoy ng betrayal of the public trust, the depuity ombudsman who is the petitioner in this case (Gonzales). So there were 2 basic questions here: (1) does the president have disciplinary authority over the deputy ombudsmen and the special prosecutors, and (2) could the president validly dismiss the deputy ombudsman concerned here for betrayal of the public trust. For the first aspect, the authority for the president to discipline was found in RA. 6770. On the basis of the grounds indicated there. An administrative complaint was filed with the Malacañang against Gonzales. Nung nalaman ni Mercidita Gutierrez, she insitutted the same disciplinary proceedings against the same deputy ombudsman. Nauna si Noynoy, sumunod si Gutierrez. Baliwala yung ginawa ni Gutierrez. Why? PRIMARY JURISDICTION had been exercised by the

President to the exclusion of the concurrent jurisdiction authority of the Ombudsman. In the original decision, the court with an 8-7 vote, upheld the authortity of the President to disciplne deputy ombudsman. But on MR, bumaliktad. President does not have disciplinary authority over deputy ombudsman. This was tacked by the SC in Gonzales. What Gutierrez did was useless. Why? Primary Jurisdiction had been exercised by the President to the exclusion of the concurrent disciplinary authority of the Ombudsman. Originally, in the original decision (with an 8-7 vote), the Court upheld the authority of the President to discipline deputy ombudsman. BUT on motion for reconsideration, the President DOES NOT have disciplinary authority over deputy ombudsman. Reason? Because the deputy ombudsman has the same degree of level of independence as the Ombudsman. Sec 21 of RA 6770, it provides that the Ombudsman shall have disciplinary authority over all public officers, including cabinet secretaries. •

What will happen then if the President will have disciplinary authority over the deputy ombudsman (who makes recommendation to the Ombudsman)?

Final Ruling on MR: Provision in RA 6770 conferring disciplinary authority on the President over deputy ombudsmen – UNCONSTITUTIONAL. In the original and MR decision, SC affirmed that the provision authorizing the President to exercise disciplinary authority over special prosecutors upheld. 2

nd

aspect of Gonzales v. OP

Malacanang removed/disciplined Gonzales for betrayal of public trust. Betrayal of Public Trust - referring to those acts short of being criminal would constitute gross abuse of discretionary authority, tyrannical abuse of authority, gross negligence, favoritism and the like. This is the definition offered in the 1986 Constitutional Commission adopted by the SC. 97



(Sir thinks this is now the definition fixed for betrayal of public trust)

constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

In the original decision, the action of Malacanang was by way of removing him for betrayal of public trust.

(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

(as affirmed in the MR) The SC reversed/nullified this position of penalty of dismissal. It did not constitute betrayal of public trust. Short facts: Yes, the MR filed by the Colonel landed on the table of the deputy ombudsman (Gonzales). But the records would show that within 9 days from receipt of the same, he made his recommendation and forwarded it to the Ombudsman. Doon natulog yung kaso. 9 days, he worked on it – hardly, said the SC, can that be considered as betrayal of public trust. Thus, even if in the original decision the authority of the president was upheld, the Court still nullified/reversed the pronouncement of Malacanang because that not in conformity with the definition of betrayal of public trust.

(6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law.

Section 3, Article XI

(8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.

SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

Remember, every impeachment proceeding must be initiated in the House of Representatives. This is done by the filing of a verified complaint.

(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall

•

•

If it were an outsider, for it to be tackled by the House of Representatives, it must require the endorsement of at least one member. If the impeachment complaint were filed by a member of HR, there is no need for endorsement of another member of the House.

If originally the impeachment complaint would already have, at the onset, the support of 1/3 of all the members of the House of Representatives – that impeachment complaint need not undergo the process prescribed in Sec. 3. It can be considered as the Articles of Impeachment to be filed with the Senate for purposes of impeachment trial. Let’s say, here’s a verified complaint filed by an outsider, properly endorsed by a member of the HR – • •

Within 10 session days: it must be included in the calendar of business; and Within 3 session days: it must be referred to the proper committee. Per the rules of 98



the House, this would be the committee on Justice. Upon the filing of the verified impeachment complaint and endorsement to the proper committee – then the impeachment proceeding should be considered as initiated. This is one of the two important pronouncement of the Court in Francisco v. House of Representatives. Remember, this rule is important – determining when impeachment proceedings are considered initiated – because of the limitation in terms of the prescriptive period prescribed in the provisions of Section 3 (5), Article XI. Article XI Section 3. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year Sir’s comment: Mali yan eh. Upon filing and endorsement to the committee – initiated na after that within 1 year wala ng pwedeng impeachment complaint na pwedeng i-file. Paano if kinokonchaba lang yan ng mga tao? Kunwari si Jepoy is an impeachable officer, one of you is the Speaker, one of you is a congressman. Jepoy connives with you and tells you “filean mo ko ng walang kwentang impeachment complaint”. The one member endorses the complaint, the Speaker includes it in the calendar and refers to the Committee. Pagka-refer sa committee, 1 year wala ng ibang impeachment complaint will be filed against him. Next year, he does the same thing. He can do that for the 7 years para exempt sya from the impeachment proceedings. In sir’s opinion, impeachment proceedings shall be considered as initiated upon filing of the Articles of Impeachment. Let’s say that this is the impeachment proceeding (holding the bottle), may one impeachment proceeding comprise of more than 1 impeachment complaint? YES. SC said: “Let us liken the impeachment proceeding to a single candle with a single wick, and let us liken the impeachment complaint to a matchstick. More than 1 matchstick can kindle a single candle.” Atty. Cruz (Quoting the SC): Let us liken the impeachment proceeding to a single candle with

a single wick; and let us liken an impeachment complaint to a matchstick. More than one (1) matchsticks can kindle a single candle. Example: Impeachment complaint # 1 was filed on October 1. Impeachment complaint #2 was filed on October 3. Impeachment complaint #3 was filed on October 5. So long as all the three impeachment complaints are simultaneously calendared, and thereafter referred simultaneously to the proper committee, those three complaints can comprise one impeachment proceeding. (Gutierrez v. House of Representatives) Once the referral to the proper committee had been done, the matter of the conduct of impeachment proceeding in that context, is a political question subject to the rules of procedures of the House of Representatives. In the same vein, the impeachment trial, if it reaches the Senate, shall be subject to the rules of procedures of the Senate. These are political questions. NB: The impeachment rules of procedures are not required to be published. They are only required to be made known and promulgated. Gutierrez v. House of Representatives G.R. No. 193459 (2011) FACTS: Gutierrez’s counsel, at a certain point in the House of Representatives Committee on Justice proceedings, moved for the inhibition of certain members of the Committee and invoked for this purpose the Rules of Court provisions on inhibition. ISSUE: Can the Rules of Court be applied in impeachment proceedings? NO RATIO: One cannot invoke the Rules of Court in connection with impeachment proceedings because impeachment is not a judicial proceeding. It is a political exercise. The Committee on Justice shall have 60 session days within which to make the proper recommendation regarding the impeachment complaints. In either case, whatever its recommendation is, the Committee is required under Section 3 to refer its recommendation to the plenary. One-third (1/3) vote of all of the Members of the House of Representatives would suffice for purposes of favoring or approving a

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recommendation; or one-third (1/3) to override a contrary resolution. If the Committee recommends the filing of articles of impeachment, and it is supported by one-third, at least, of the membership of the House of Representatives, that recommendation will be converted into articles of impeachment to be filed with the Senate. When the Senate convenes for the purposes of impeachment trial, its members, all the 24 Senators, are required to take a special oath to act as impeachment judges. There is nothing in the Constitution which requires the Senators, acting as judges in the impeachment, o wear judicial robes. NB: If it is the President who would be a respondent in the impeachment trial, the Chief Justice is required to preside, provided that he does not vote. The impeachment trial would have to go on the basis of the rules of procedure of the Senate. Question: Can the Supreme Court exercise its power of judicial review over the impeachment court’s determination? Answer: Yes, the Supreme has the power of judicial review even over impeachment proceedings. The basis is the expanded jurisdiction of the Supreme Court, under Section 1, paragraph 2, of Article VIII on grave abuse of discretion. (Francisco v. House of Representatives) NB: The resignation of the impeached official does not necessarily render the impeachment trial moot and academic. There are two penalties that may be imposed after or upon conviction on impeachment. The first is removal, and the second is disqualification from holding public office. Impeachment trial, on the basis of strict legal theory, can proceed notwithstanding the resignation for purposes of imposing the penalty of disqualification upon conviction. NB: May a preventive suspension be decreed in the context of an impeachment trial? No, this would constitute an unnecessary molestation. For a conviction on impeachment, the required vote is two-thirds (2/3) of all the Members of the Senate.

SANDIGANBAYAN This is a special court but this is NOT a Constitutional Court. It is peculiar because its establishment is mandated by the 1973 Constitution but it was created by law. PD1606, several amendments thereafter. Because it was created by law, can it be abolished by law? The answer I think is no because the Constitution. Peculiar as I said. Focus on the three areas of the jurisdiction of the Sandiganbayan. Three Areas of Sandiganbayan

Jurisdiction

of

the

First, which contains a very long enumeration of officers covered would be with respect to violations of the Anti-Graft and Corrupt Practices Act. The rule of thumb here is that this particular jurisdiction may be exercised over all public officers in connection with the Anti-Graft and Corrupt Practices Act violations committed by salary grade 27 officers. But it is not necessarily limited to SG27. Even if it is not part of the enumeration, as long as it is SG27, it is the Sandiganbayan. Ex. Municipal Mayors are not included in the enumeration, only City Mayors but they are SG27 so they are under the jurisdiction. You may not be SG27 but you are an officer, trustee, director, manager of a GOCC, you are covered by the jurisdiction. In this connection, Student Regent in the University Board of Regents is not SG27 but it is part of the jurisdiction of the Sandiganbayan. Recall this lawyer-policeman, he is not SG27 but he was appointed manager of a certain GOCC well because he was a manager he was covered under the jurisdiction. In contrast, remember the case of Carandang v. Desierto. RPN 9 was sequestered. Government owned shares of stock up to about 37%. Erap nominates this fellow as CEO which was accepted by the Board of Directors. Sandiganbayan had no jurisdiction. Why? Only 37% of the shares of RPN 9 was sequestered by government that did not convert it into a GOCC. It needs 51%. This case involved a by-stander. BIR was looking for properties owned by a delinquent taxpayer. They saw scrap metal. When they found out that the person owned the metal, right there and then there was a written deputization authorizing him (the bystander) as an agent of the BIR to guard the scrap metal. The metal got lost. He was hailed before 100



the Sandiganbayan for infidelity. SC said that written deputization did not covert him into a public officer therefore he cannot be subjected to the jurisdiction.

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Second area of jurisdiction would be crimes, simple, complex, or special, committed by public officers in relation to their offices. Third jurisdiction, Executive Orders 121414-A (?). This jurisdiction is civil in character and is limited to the matter of ill-gotten wealth. Remember that the concept of ill-gotten wealth is defined by statute. It is wealth illegally accumulated by the Marcoses (family, relatives, friends, cronies, business associates, employees). These particular executive orders would give rise to the process of sequestration which is merely preliminary and which may result on the forfeiture of these assets in favor of the government. During the pendency of these proceedings these are the cases that usually arise in this context. What is the extent of the jurisdiction of the Sandiganbayan, civil in character, over the shares of stock sequestered by government in these corporations? On the matters of intra-corporate conflicts, recall that under present law, intra-corporate jurisdiction pertains to the regular courts. This is the rule of thumb, if the intra-corporate controversy would affect the integrity or the continued possession and enjoyment by the government of the sequestered shares, it is with the Sandiganbayan. If it would not affect the integrity, then go to the regular courts. Example, the right to inspect corporate documents. There is nothing that would affect the validity or continuing validity of the sequestration. But if the controversy would pertain to the increase in the authorized capital stock which may result in the dilution of the equity ownership that will certainly affect the integrity.

Sandiganbayan may exercise certiorari jurisdiction over the lower courts in aid of its appellate jurisdiction. Finally, rulings of the Sandiganbayan are appealable only to the Supreme Court on a Rule 45 petition and only on questions of law.

OFFICE OF THE OMBUDSMAN He/She exercises dual jurisdiction: 1. Administrative (Sec. 21, R.A. 6770) – over all public officers, including Cabinet secretaries, except members of the Congress, the Judiciary and impeachable officers. 2. Criminal over all public officers, not only those cognizable by the Sandiganbayan, even those cognizable by the other courts. Distinction Between the Two Reliefs The Ombudsman, when he conducts preliminary investigations, is like the DOJ acting as preliminary investigator: it is only on the basis of grave abuse of discretion that his probable cause determinations may be challenged. But the Ombudsman differs from the other so-called preliminary investigators in that the former is independent. The right to a preliminary investigation is not a constitutional right; it is statutorily conferred and so may be denied by Congress. But once given under the law, a violation of the statutory right becomes a violation of a constitutional right: the right to criminal due process, under Art. III, Sec. IV, par. 1. Art. III Section 14. (1) No person shall be held to answer for a criminal offense without due process of law. xxx

Take note -

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All other cases against public officers NOT included in the three areas of jurisdiction are cognizable by the regular lower courts. All cases undertaken against public officers by the lower courts are appealable only to the Sandiganbayan. If they made a mistake of appealing from the RTC to the CA, that is a fatal error and kills the appeal.

Therefore, the ordinary preliminary investigator is duty-bound to conduct a preliminary investigation if the matter is conferred or directed to be done by law. The Ombudsman, meanwhile, at the outset, can dismiss a criminal complaint if it finds that it is without merit at all. He is not like the ordinary investigator because his (i.e. the Ombudsman’s) independence is guaranteed under the Constitution. 101



With respect to the exercise by the Ombudsman of his administrative disciplinary authority, on the basis of R.A. 6670, as implemented by Administrative Order No. 07, which had been issued by the Ombudsman within his competence as an independent constitutional officer, the rules are: a. If the disciplinary action results in the exoneration of the respondent, that is final and unappealable. b. If the disciplinary action results in a penalty of not more than 30 days fine or suspension, that is also final, executory and unappealable. The only way you can assail that would be by way of petition for certiorari under Rule 65 (original action, grave abuse of discretion). c. If the penalty were higher, particularly if it were dismissal, it shall be immediately executory, without prejudice to appeal. The mode of appeal would be by way of Rule 43 from the Ombudsman to the Court of Appeals (CA). o The CA may exercise appellate authority over the administrative determinations by the Ombudsman of his exercise of quasi-judicial authority, but the CA does not have the power to enjoin the immediate execution of dismissal. It has no writ of injunction authority, without prejudice to its continuation of exercise of its appellate jurisdiction. It is indicated in Art. XI that the Ombudsman can only recommend the imposition of disciplinary actions against every errant public officer. This recommendation is obligatory upon all heads of authority to obey, as though it had direct authority to discipline, by virtue of these recommendations. It does recommend, but the recommendation is obligatory upon all to whom those recommendations are made. Usually, the Ombudsman would furnish the agency a copy of its conviction or adjudication, requiring the head of agency to report within 5 days as to execution of that particular order of dismissal. To repeat: the Ombudsman exercises concurrent criminal jurisdiction with the DOJ with respect to offenses not cognizable by the Sandiganbayan.

Office of the Ombudsman v. Mislang G.R. No. 207926 Oct. 25, 2018 The Ombudsman has concurrent jurisdiction even over soldiers with respect to offenses committed by them in relation to their offices. This is with respect to the Ombudsman’s preliminary investigation authority. Article XI Section 15. The right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches, or estoppel. This concerns the State’s continuing competence to recover ill-gotten wealth, which cannot be considered barred by reason of estoppel, laches or prescription. Article XI Section 16. No loan, guaranty, or other form of financial accommodation for any business purpose may be granted, directly or indirectly, by any government-owned or controlled bank or financial institution to the President, the VicePresident, the Members of the Cabinet, the Congress, the Supreme Court, and the Constitutional Commissions, the Ombudsman, or to any firm or entity in which they have controlling interest, during their tenure. These are what are referred to as behest loans. These loans would only cover business loans. Public officers, including the officers indicated there (e.g. Ombudsman), are not precluded from obtaining personal loans, housing loans, etc.; only the business loans may not be granted. •

The Heritage Hotel (formerly Trade Winds Hotel) was built on the basis of behest loans obtained by a prominent figure during the Marcos dictatorship. He obtained the loan, built the hotel and never repaid; he just let the GSIS foreclose it after earning a lot of money.

Section 18. Public officers and employees owe the State and this Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the

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status of an immigrant of another country during his tenure shall be dealt with by law. Continuing allegiance to the Republic is an essential requirement for public office. This continuing allegiance implies sole allegiance to the Republic of the Philippines. [We talked about this when we discussed about dual citizenship.]

BILL OF RIGHTS THREE FUNDAMENTAL POWERS OF THE STATE: 1. Police Power; 2. Power of Eminent Domain; and 3. Power of Taxation.

RTC recognized the impracticality of attaining a full-shift to other modes of spraying within three months in view of the costly financial and civil works required for the conversion… Requiring the respondents and other affected individuals to comply with the consequences of the ban within the three-month period under pain of penalty like fine, imprisonment and even cancellation of business permits would definitely be oppressive as to constitute abuse of police power. All laws can be oppressive, because all laws essentially oppress. However, what is prohibited is that they be unduly oppressive. Any police power is undertaken essentially through a law. •

POLICE POWER Requisites: 1. The interest of the public in general, as distinguished from those of a particular class, requires its. 2. The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. [Book: There must be a concurrence of a lawful subject and lawful method.] Mosqueda v. Pilipino Banana Growers & Exporters Association, Inc. G.R. No. 189185 August 16, 2016 The ordinance required all big plantation owners to convert from aerial spraying of fertilizers to truck-mounted boom spraying. This was annulled based on two grounds or considerations. It was considered unduly oppressive, (1) in terms of the costs to be incurred, and (2) in terms of the very short period for conversion given, that is, three months. Because of these, the ordinance was considered to be unduly oppressive and was struck down as unconstitutional. Excerpt: The impossibility of carrying out a shift to another mode of pesticide application within three months can readily be appreciated given the vast area of the affected plantations and the corresponding resources required therefor. To recall, even the

• •

Under Article III, Section I, on the matter of due process, [recall that there are two kinds of due process: procedural and substantive due process] we confine ourselves to substantive due process. For a measure to be valid it must meet the factors which would make a law compliant with the concept of substantive due process. Note that the factors are the same with the requisites for a valid exercise of police power. Thus, every valid exercise of police power would have to be in the nature of a valid law; and for the law to be valid, in the context of substantive due process, it must be compliant with the same two requisites: o the interest of the public in general, as opposed of a particular class, must be addressed, and o the means employed must not only be reasonably necessary, but must also be considered as not unduly oppressive.

The police power is the most demanding, the least limitable, and the most pervasive (of the three powers). Ferrer v. Bautista G.R. No. 210551 June 30, 2015 The matter of the authority of the Quezon City government to assess additional taxes, i.e. social housing taxes imposed by an ordinance, was seen by the Supreme Court as a taxation measure. But it is more than that. It is actually a police power measure invoking taxation as an instrument for the attainment of the greater police power objective, i.e. to provide homes for the homeless.

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The police power being the most pervasive and demanding is affirmed, taxation being only an instrument for the attainment of the police power objective. Three motels cases: 1. Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, G.R. No. L-24693. July 31, 1967; 2. City of Manila v. Laguio, G.R. No. 118127, April 12, 2005; and 3. White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009. White Light Corp. v. City of Manila G.R. No. 122846 January 20, 2009 Facts: Mayor Lim of Manila passed an ordiance which prohibited hotels, motels, and other lodging establishments from offering short time admission (stay ofr less than 12 hours) and wash up rates (stay only for 3 hours), providing for a fine and imprisonment for violation of said ordance. Affected businesses filed a complaint to have the ordinance annulled, on the ground that it was unconstitutional. Held: Although the goal of regulating public morals falls under the purview of Police Power, it does not automatically justify any and all means of achieving this goal. This means must still align with the Constitution, the Bill of Rights, and specifically due process. If the restriction involves one restricting liberty, the Government must satisfy the Strict Scrutiny Test. The burden is on the government to show: 1. That there is a compelling state interest for the restriction; 2. That the means is necessary to address that compelling state interest; and 3. That there is no other alternative for the accomplishment of the purpose that is less intrusive.

Ermita-Malate v. City of Manila G.R. No. L-24693 July 31, 1967 Facts: Ordinance No. 4760 proposes to check the clandestine harboring of transients and guests of these establishments by requiring these transients and guests to fill up a registration form, prepared for the purpose, in a lobby open to public view at all times, and by introducing several other amendatory provisions calculated to shatter the privacy that characterizes the registration of transients and guests." Moreover, the increase in the licensed fees was intended to discourage "establishments of the kind from operating for purpose other than legal" and at the same time, to increase "the income of the city government." The lower court ruled in favor of the petitioners. Hence, the appeal. Issue: Whether or not Ordinance No. 4760 is unconstitutional? NO. Held: This particular manifestation of a police power measure being specifically aimed to safeguard public morals is immune from such imputation of nullity resting purely on conjecture and unsupported by anything of substance. To hold otherwise would be to unduly restrict and narrow the scope of police power which has been properly characterized as the most essential, insistent and the least limitable of powers, extending as it does "to all the great public needs." Negatively put, police power is that inherent and plenary power in the State which enables it to prohibit all that is hurt full to the comfort, safety, and welfare of society. On the legislative organs of the government, whether national or local, primarily rest the exercise of the police power, which, it cannot be too often emphasized, is the power to prescribe regulations to promote the health, morals, peace, good order, safety and general welfare of the people. In view of the requirements of due process, equal protection and other applicable constitutional guaranties however, the exercise of such police power insofar as it may affect the life, liberty or property of any person is subject to judicial inquiry.

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Where such exercise of police power may be considered as either capricious, whimsical, unjust or unreasonable, a denial of due process or a violation of any other applicable constitutional guaranty may call for correction by the courts. The Court reversed the judgment of the lower court and lifted the injunction on the Ordinance in question. Laguio v. City of Manila G.R. No. 118127 April 12, 2005 Facts: Private respondent Malate Tourist Development Corporation (MTDC) is a corporation engaged in the business of operating hotels, motels, hostels and lodging houses. It built and opened Victoria Court in Malate which was licensed as a motel although duly accredited with the Department of Tourism as a hotel. MTDC filed a Petition with the lower court, praying the Ordinance, insofar as it included motels and inns as among its prohibited establishments, be declared invalid and unconstitutional for several reasons but mainly because it is not a valid exercise of police power and it constitute a denial of equal protection under the law. In the decision rendered by Judge Laguio declared the Ordinance No. 778[3], Series of 1993, of the City of Manila null and void. The case was elevated to the Supreme Court. Issue: Whether or not the City of Manila validly exercised police power. Held: The Ordinance infringes the due process clause since the requisites for a valid exercise of police power are not met. The prohibition of the enumerated establishments will not per se protect and promote the social and welfare of the community; it will not in itself eradicate the alluded social ills of prostitution, adultery, fornication nor will it arrest the spread of sexual diseases in Manila. It is baseless and insupportable to bring within that classification sauna parlors, massage parlors, karaoke bars, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns. These are lawful pursuits which are not per se offensive to the moral welfare of the community. It is readily apparent that the means employed by the Ordinance for the achievement of its purposes, the governmental interference itself,

infringes on the constitutional guarantees of a person’s fundamental right to liberty and property. Doon lang sa Ermita-Malate sustained yung ordinance providing for restrictions, but for the other two hindi noh? Remember the Supreme Court said in the Laguio Case. Look at the cases. Almost every invocation by the State of the Police Power had been upheld. Bihira lang hindi mauphold yan. Well, subjects remember Stone v. Mississippi Stone v. Mississippi 101 U.S. 814 1879 The matter of billboards pay a little attention to the concept of the regulatory authority of the State. Police Power over billboards. Facts: In 1867, the provisional state legislature of Mississippi chartered the Mississippi Agricultural, Educational, and Manufacturing Aid Society. The Society was chartered to run a lottery for the next 25 years; however, in 1868, a new constitution ratified by the people outlawed lotteries in the state. John Stone and others associated with the Society were arrested in 1874 for running a lottery. The Society claimed they were protected by the provisions of their charter while the state declared that the subsequent enforcement legislation had repealed the grant. Held: This power of the state is generally denominated the police power. It has been held that the state cannot be deprived of its right to exercise this power. The police power and the right to exercise its constitute the very foundation, or at least one of the corner stones, of the state. For the state to deprive itself or permit itself to be deprived of the right to enact laws to promote the general prosperity and welfare of its inhabitants, and promote public health, public morals, and public safety, would be to destroy the very purpose and objects of the state. No legislature can bargain away the public health, public safety, or the public morals. The people themselves cannot do it, much less their servants. Governments are organized with a view to the preservation of these things. They cannot deprive themselves of the power to provide for them.

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Churchill and Tait v. Rafferty G.R. No. L-10572 December 21, 1915 The old case Churchill and Tait v. Rafferty, merong Police Power over billboards. Facts: The case arises from the fact that defendant, Collector of Internal Revenue, would like to destroy or remove any sign, signboard, or billboard, the property of the plaintiffs, for the sole reason that such sign, signboard, or billboard is, or may be offensive to the sight. The plaintiffs allege otherwise. Issue: Was there valid exercise of police power in this case? YES. Held: Yes. There can be no doubt that the exercise of the police power of the Philippine Government belongs to the Legislature and that this power is limited only by the Acts of Congress and those fundamentals principles which lie at the foundation of all republican forms of government. An Act of the Legislature which is obviously and undoubtedly foreign to any of the purposes of the police power and interferes with the ordinary enjoyment of property would, without doubt, be held to be invalid. But where the Act is reasonably within a proper consideration of and care for the public health, safety, or comfort, it should not be disturbed by the courts. The police power of the State, so far, has not received a full and complete definition. It may be said, however, to be the right of the State, or state functionary, to prescribe regulations for the good order, peace, health, protection, comfort, convenience and morals of the community, which do not violate any of the provisions of the organic law. Evasco v. Montannez G.R. No. 199172, February 21, 2018 Facts: A 2018 case involving an ordinance in Davao regulating the locations and sizes of billboards. Held: Sustained by the Supreme Court on the basis of the General Welfare Clause. But then, be mindful of that nuance offered in the case of Department of Public Works and Highways v. City Advertising Ventures Corporation.

DPWH v. City Advertising Ventures Corp. G.R. No. 182944 November 9, 2016 Facts: Here was an effort on the part of the DPWH to take down this advertising tarpaulins posted on Meralco posts and columns underneath the MRT. They were seen by the DPWH as obstructions to certain infrastructure projects of the DPWH. Invoking certain obscure provisions in certain infrastructure laws, the DPWH asserted its authority to take them down. Held: The Supreme Court said that those campaign or advertising materials are subjects of contracts and therefore vested rights would have accrued on the basis of those contracts. These vested rights cannot be arbitrarily set aside without offense to the Due Process Clause. Remember, while the DPWH has the regulatory authority on the basis of Police Power. You be mindful of the tempering of this particular concept upon determination as to the existence of contracts authorizing those particular billboards. In recent jurisprudence, there are two important points I want you to remember. The simple case of Cruz and Dela Cruz v. Pandacan Hikers Club Cruz and Dela Cruz v. Pandacan Hikers Club G.R. No. 188213 January 11, 2016 Facts: You recall this Barangay Chairman who instructed the Barangay Tanod to destroy the basketball ring to drive away mga dayo (transients) who are playing basketball. They were administratively charged before the Ombudsman. Their basic defense was that they were merely in the exercise of the Police Power. Held: The Supreme Court said that they were wrong because the Police Power is essentially legislative. Yes, may be the subject of a valid delegation. But, on their own, the executive cannot claim this particular authority. In this connection, be reminded as to the statement curiously made by the Supreme Court in Lagman v. Medialdea. When the President declares Martial Law, in effect, he exercises the Police Power as well. But note the nuance offered in that 2003 case of David v. Arroyo where the Supreme Court made the categorical clarification that, even in a state of Martial Law, the President cannot issue Presidential Decrees in the same way that Mr. 106



Marcos legislated during this time (during his Martial Law/Dictatorship) as supported by his declaration of Martial Law. The only other case that I want you to be mindful of would be the case of Aquino v. Municipality of Malay Aklan. Aquino v. Municipality of Malay Aklan G.R. No. 211356 September 29, 2014 Just a little on Procedural Due Process because I will be tackling the concept of nuisances. You remember the concept of nuisances defined in the Civil Code as essentially covering anything which annoys or offends the senses and sense of morals. If you have difficulty understanding, just think of this President. He offends and he annoys and therefore he is a nuisance per se, which should be subject to summary abatement without judicial proceedings. I'm just exaggerating to emphasize the point. Facts: There was this hotel or resort in Boracay, which was built on a no-build zone. You will recall that local governments have the Police Power competence to provide for zoning ordinances in their respective jurisdictions. The area where this hotel was built was a no-build zone declared as such in an ordinance. The Mayor wanted to summarily destroy that particular hotel because of its violation of the proscription in that ordinance. It was taken before the Supreme Court. Is this hotel in a no-build zone a nuisance per se or a nuisance per accidens? You recall that, if it were a nuisance per se, it can be subject to summary abatement. If it were a nuisance per accidens, it can be subjected to abatement only after prior judicial proceeding. Held: The Supreme Court had a long discussion on this issue but its conclusion was that it was a nuisance per accidens. Just the same, the Supreme Court authorized or acknowledged the authority of the Mayor to summarily destroy the hotel complex precisely because he would be in the exercise of his Police Power as delegated in his favor on the basis of the Local Government Code pursuant to the Police Power competence of the local government concerned to provide for zoning in its respective territory. You see, The Supreme Court ruled that the property was a nuisance per accidens but it upheld the authority to summarily abate even without judicial proceedings on the basis of the delegated Police Power authority as found in the

Local Government Code. That is Aquino v. Municipality of Malay Aklan. More on nuisances per se later. Those are my concerns with respect to the Police Power. Again, I urge you please to look at the enumerations and the simple summaries of the cases I have offered both in the excerpts on the Police Power and on Substantive Due Process. Let's tackle the more important field of Expropriation. Article III Section 9 Section 9. Private property shall not be taken for public use without just compensation. The power of eminent domain like the other two fundamental powers are inherent and there is no need for express conferment. Section 9 does not confer but limits the power of the expropriator of his power of expropriation. As to who can expropriate, the state represented by the congress, but the congress may delegate essentially in favor of government. One distinction of the power of eminent domain is that this power of expropriation unlike the power of taxation and police power cane be delegated even in favor of non-government. Remember quasi -public corporations, can be favored with the power of expropriation by delegated legislative authority. For instance, the PLDT, quasi-public, can expropriate for purposes of their telephone lines, etc. Basic components of these limitations: Private property Anything that is within the commerce of man, this will include the concept of services, the only acknowledged exclusion here in terms of private property will be cash because the traditional concept of just compensation would also mean by way of payment in cash. Private property in the context of Garcia v. Sangguniang Panlalawigan ng Bataan G.R. No. 174964 October 05, 2016 There is this land owned by the state, registered in the name of the provincial government of Bataan. A law was promulgated by the Congress 107



subdividing that state property into smaller lots for distribution. The provincial board objected saying that this cannot be done without payment of just compensation to the provincial government because the property was registered in its name. Th Supreme Court held that even if the property was registered under the name of the provincial government, the fact still remains that it is still state property subject to full dominion and determination by the Congress of the Philippines. That claim of just compensation is not tenable. Shall not be taken Taking is important as an element of expropriation because it is at the time of the taking that the character of the property is assessed or determined it is also at the time of the taking that the valuation of the property for purposes of just compensation is determined. The concept of taking is present in all three fundamental powers: For taxation and eminent domain, the things taken shall be converted to some other public reason or public use. While in police power taking is in the form of suppressing or obliterating something obnoxious or dangerous to society. Be mindful of the old definition of taking especially through the requisites required in that old case of Republic v Castelleji.

full beneficial use ownership, possession of his property. NTC v Heirs of San ... Reverse eminent domain condemnation proceedings

or

inverse

The expropriator must initiate the eminent domain proceedings but if it does not do so or it fails to do so then the private property owner can institute a complaint for payment of just compensation. If it were the owner of the property who institutes or starts the proceedings, then it is referred to as the reverse eminent domain or inverse condemnation proceedings. In this case what the NTC did was that it surreptitiously built or established a tunnel underneath the agricultural land. This prompted the owners of the land to institute a reverse eminent domain proceeding. In this case, the court said that there is taking if there is any destruction, diminution, interruption, restriction, reduction, in the ownership and possession of the property. As you will see, there is a diminution of the full beneficial ownership and use of the property because of the establishment of the underground tunnel therefore it is considered taking. US v Causby, 328 U.S. 256 (1946) The establishment adjacent to a poultry farm of an airstrip was considered taking because the chickens laid less eggs.

There was a 25 year lease entered into and implemented, upon the end of the 25 year lease, the lessee manifested its intention to expropriate at the end of the lease agreement. While there is agreement to the expropriation there is disagreement in the valuation. The contention of the expropriator is that the value of the property should be determined at the start of the 25 year lease or 25 years earlier. The contention of the private property owner is that since it indicated its intention to expropriate only after the end of the 25 year lease, the value of the property for the purposes of just compensation should be determined as of that time. The Court: the five requirements for valid taking:

Therefore, there was taking there. Remember, this leak which permanently inundated the agricultural land adjacent to it. The owner of the property never lost his ownership but he was deprived of its full beneficial use. There was considered a taking there compensable in character.

There must be entry to the property for more than a momentary period until legal authority or color of title, there must be a conversion of the property for public use otherwise it is informally occupated, the taking should result into the virtual and complete ouster. of the property owner from his

Remember the easements, the Ayala Zobel v. City of Manila case. The three legal easements for pedestrian arcades. There is taking involved there.

Remember this tunnel in America which had exhaust fans placed in strategic locations. This particular exhaust fan faced directly the frontage of a particular house thereby resulting in the expulsion of the fumes from the tunnel directly and permanently into the front portion of the house. There was considered taking there.

Remember in recent cases the concept of aerial easements. Transmission tower connected to 108



another transmission tower by transmission lines, there would be a taking as to the land underneath those transmission lines precisely because there will be an inhibition or inability of the landowner to grow or plant trees of a certain height. That is deprivation of property. Thus, there is taking compensable in character. In the context of taking, there are at least 2 cases on this particular point, 2016 and 2017. (not clear) v. Republic There was this property expropriated for conversion for use as premises for a fly-over. It was a 300 square meter property. But the fly-over only occupied about 170 square meters of the property. The remaining 130 square meters were placed in a location that the property owner would totally be incompetent to use it for any other purpose. According to the Supreme Court, although 170 square meters was occupied, considered as taking na din yung 130 square meters for which full just compensation should be made. Public use The next step is for public use. Remember it would not matter as to how many would be benefitted. It would not matter if those who would be benefitted to use the premises after the conversion would have to pay a fee so long as anyone who would be willing to pay the fee can enter and use the same. For example, a building is expropriated for conversion to a museum. There is a public purpose there. There is a fee to be exacted upon entry. That does not detract from the fact that it will still be considered for public use or for public purpose. For instance, the NHA, if it were to expropriate 10 hectares and then it subdivides the 10 hectares into 1000 smaller blocks for the construction of 1000 housing units for distribution to 1000 families - the matter that it will only be1000 families who will be benefitted does not detract from the fact that it is still be for public use. Because the public purpose served there would be the provision of homes to the homeless. Upon payment of just compensation Every expropriation entails necessarily 2 phases: 1. Condemnation stage 2. Compensation stage

In the condemnation stage, essentially what is to be determined is whether or not the property to be expropriated would be converted to public use. Condemnation stage is undertaken by the courts. The matter of whether the property to be converted is for public use can be a political or justiciable question. The basic rules are the ff: 1. If the expropriation is undertaken by direct law of the Congress, then essentially the matter of public use is to be considered as a political question. In accordance with the rule on grave abuse, it cannot be touched by the courts. 2. If the expropriation were to be undertaken by a delegate then we tackle 2 rules here: a. If the expropriation were to be done on the basis of a general grant of legislative authority such that for instance Sec. 19 of the LGC, then matter of conversion for public use – that public use aspect can be tackled as a justiciable question. Here, we take the San Beda case and Chinese Cemetery case. Property already devoted for public use can be still expropriated for further or other public purpose such as expansion of a road. b. If delegate were to expropriate on the basis of a specific grant of legislative authority, such that – then it would be like the Congress itself who is undertaking the expropriation and only but only through the specific delegate. In such case, we follow the original rule because it is on the basis of a specific grant of legislative authority, the expropriation - it should be considered as a political question. It is also during the condemnation stage that we determine the consequences of the public use aspect. There are at least 2 cases 2015 and 2016 cases – NPC v. Sps. Borbon and Sps. Hosada.

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If the public use for which the property has been taken, it becomes obsolete, can the eminent domain proceedings proceed? If the public use for which the property was taken, it becomes obsolete. Can eminent domain proceed? What if in the middle of the agricultural land there are two transmissions erected by the NPC, obviously eminent domain proceedings were instituted covering that particular area. Mahaba expropriation eh so let us say in the meantime adjacent to that agricultural land they established a public road. Sabing NPC maybe it will be wiser if you would just transfer the transmission towers from the middle of nowhere to the area adjacent to the newly built road for easier maintenance etc. In other words the purpose for the original taking had been undertaken and had become obsolete. The Supreme court said that if they are not for public purpose anymore then the eminent domain proceeding can no longer proceed. But can the eminent domain case be dismissed upon manifestation of withdrawal of expropriation complaint? The Supreme Court said not necessarily. The proceeding can continue but only to determine whether the private property owner incurred or sustained damages for which reason obviously they would have to be awarded. The eminent domain proceeding even with no public purpose can continue but only with respect to the matter of awarding of damages. The only time that eminent can continue as such under those circumstances is when the court has already determined the amount of just compensation to be paid in which case it has to be enforced by the execution of that particular award of judgement. There is a law which says that the NHA may expropriate and for the purposes of just compensation it shall pay either the assessed value or the fair market value of the properties expropriated whichever may be lower. That law is UNCONSTITUTIONAL because it impedes or interferes in what ought to be an exclusive judicial power. The matter of determining just compensation is exclusively a judicial prerogative. There can be no law which can impair such exclusive judicial authority. For instance with respect to the Agrarian Reform expropriations, there would be an authority vested in the land bank of the Philippines for purposes of making preliminary valuations which can serve as basis for just compensation. The

Key word there is “preliminary”. It can only recommend but the final authority to provide for just compensation is exclusively judicial in character. There is also a proviso in the Agrarian Reform law that if there is a valuation made preliminarily be the Sec. of Agrarian Reform and the valuation is not questioned within 15 days then party owner is necessarily precluded from questioning it later. That prescriptive period of 15 days does not in any way affect the continuing sole authority of the courts to determine just compensation. It doesn’t mean that if that period lapses the court is already bound by the preliminary valuation done by the executive agency. There is a formula prescribed there regarding agrarian reform expropriations. Courts are supposed to as much as possible abide by those formulas or guidelines prescribed BUT the courts are not precluded from disregarding that formula prescribed in Sec. 17 of the CARL provided that if it departs from its application, there must be showing of clear reasons why the formula cannot be applied. This suggestion prescribed by statute has been gleamed by the SC as something that requires adherence by the Special Agrarian Courts but with equal force the SC pronounced that even if they are required to as much as possible adhere, they are not certainly bound by that formula. Just compensation The basic indicator here is fair market value. It is the value of the property at a point or a situation where the seller is not compelled to sell and the buyer is not compelled to buy. Remember that the valuation to be assigned for purposes of just compensation is determined as of the time of the taking. For instance, if at the time that it was taken, the tax declaration characterized the property as agricultural but in the course of the expropriation proceedings evidenced is adduced by the property owner that final plans have already been in place for purposes of converting the land to residential/commercial, the Supreme Court has ruled that the final plans are immaterial. What is determinative is what it was at the time of the taking; if it was declared as agricultural then that is controlling. There’s no problem if the property is ordinary agricultural or commercial. But what if the property was extraordinary in character like an old church or an old school like UST? How do you 110



assign a value for extraordinary properties? This was discussed in Republic v. Hon. Mupas. That case also tackled the issue of who was entitled to just compensation arising out of the claims made by the subcontractors. Republic v. Mupas - NAIA III. G.R. No. 181892 Sept. 08, 2015 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, location, and the tax declarations. The measure is not the taker's gain but the owner's loss. While jurisprudence requires the “fair market value” to be the measure of recovery in expropriation cases, it is not an absolute and exclusive standard or method of valuation. There are exceptional cases where the property has no fair market value or where the fair market value of the property is difficult to determine. Examples of specialized properties are churches, colleges, cemeteries, and clubhouses. These also include airport terminals that are specifically built as “a place where aircrafts land and take off and where there are buildings for passengers to wait in and for aircraft to be sheltered.” They are all specialized properties because they are not usually sold in the ordinary course of trade or business. In estimating the FMV of the NAIA-IPT III, the Court used: 1. The replacement cost method; 2. The standards laid down in Section 5 of RA 8974 and Section 10 of RA 8974 IRR (meaning laws pertaining to cost of the infrastructure project); 3. Equity. Who is entitled to just compensation? This became an issue because of the claim of the subcontractors of the project owner. The Court ruled that all persons who have lawful interest in the property sought to be expropriated should be impleaded in the complaint for purposes of determining who shall be entitled to just compensation. If a known owner is not joined as defendant, he may intervene in the proceeding. If the owner is joined but not served with process and the proceeding is already closed before he came to know of the condemnation, he may maintain an independent suit for damages. But where the issue of ownership of the expropriated property is not disputed, direct and immediate

initial payment to the property owner is required in cases involving national government infrastructure projects as provided for under Sec. 4(a) of RA 8974. The Court ruled that it is the project owner that was entitled to just compensation because the law indicated who the project owner was and therefore it is to that entity to which payment should be made. As to the subcontractors, the Court ruled that it is only the project owner which is entitled to receive just compensation without prejudice to money claims that may be filed by the subcontractors against the project owner independent of the expropriation proceeding. Land Bank of the Philippines v. AMS Farming G.R. No. 174971 Oct. 15, 2008 Agricultural lease contained a clause entitled Eminent Domain. This would address entitlement of the lessee to damages if and when the agricultural land is expropriated during the effectivity of the lease agreement. The land was later expropriated. The lessee insisted that it should have a share of the just compensation. The Court said the existence of the Eminent Domain clause limits the entitlement of the lessee to damages; over and above what is indicated there, the lessee cannot claim a share in the just compensation due to the agricultural land owner. As a lessee, the rights of AMS over its standing crops and improvements on the leased property are defined, conferred, as well as limited by the provisions of the contract. That the leased property was placed under the CARP and that TOTCO received just compensation therefor are not relevant to the rights of AMS as a lessee. Rather, what is significant to AMS is only the fact that it was deprived of the peaceful and adequate enjoyment of the property for the duration of the period of lease agreed upon in the contract. Just compensation is just only when paid on time. If there were delay in the prompt payment of just compensation, there should be interest paid or assessed against the expropriator. Rules on interest: Interest is fixed at the rate of legal interest previously 12% now, it’s 6% as of July 1, 2013 per Monetary Board Circular. But after that, because of the supervening event of the Banko Sentral Circular, starting July 1, 2013, it will be a 6% interest.

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Condemnation. Compensation. Let us say the Philippine National Railways (PNR), they said we will expropriate your land so that we can extend our railroad tracks. Okay bayaran niyo ako ah. But the PNR never instituted eminent domain proceedings. Years after, the property owner realized that he wasn’t paid. Thus, he filed an action for the ejectment of the PNR. Cannot be! He cannot evict because he allowed. That was a forbearance. The most that he can do would be to institute an action for payment of just compensation [reverse?] eminent domain. In a matter of just compensation, factors known as the consequential damages or consequential benefits shall be included. At any rate, you understand the concepts of consequential benefits and damages. At any rate, if the consequential benefits would exceed the consequential damages, then both factors should just be set aside because ultimately, the bottomline is in any event, just compensation would still have to be paid. Be mindful of the pronouncement of Justice Del Castillo in one 2016 case. The rule is that until completion of the expropriation which is marked by the cancellation of the old title, and the issuance of the new one in favor of the expropriator, all taxes, realty, paid by the private property owner shall be imputable to the expropriator. This is because in contrast, the taking then would necessarily entail the possession by the expropriator of the property, and yet, the property remained in the name of the property owner until the conclusion of the expropriation. The rule consistently applied by jurisprudence, up to the point of the conclusion of expropriation, all realty taxes paid in the meantime by the property owner shall be borne or repaid by the expropriator from the time of the taking until conclusion. But in this particular case, this judge included as a factor of the so-called consequential damages the matter of capital gains taxes. Sinama niya as a factor don sa just compensation, pinasok ng judge na to consequential damages, he included the capital gains taxes. The SC said it was wrong because the burden of paying capital gains taxes, regardless, falls on the shoulders of the property owner. That is a tax imposed upon him. Therefore, it cannot be transferred to the expropriator by way merely as a factor of consequential damages.

the expropriator, that is upon payment of just compensation. In this case, let us say, there is a 10 hectares property, but only 7 was taken. When the new title was issued, there was a mistake, the entire 10 hectares, all of it were included in the technical description of the expropriated property. Property owner said I have only been paid for 7 hectares, so he went back to the eminent domain court and insisted that he be paid additional just compensation. Cannot be said the SC. He cannot be paid just compensation for property not taken from you. The remedy there is for you to correct the title by removing the 3 hectares which were erroneously included. On taxation, concerns have addressed when we talked about religious freedom, and the limitations on the power of taxation as prescribed in section 28 of article 6. Remaining concerns on taxation are paragraph 1 of section 28, progressive system of taxation. Uniformity of taxation this is equal protection clause: things, persons similarly situated must be treated alike both in terms of rights conferred and responsibilities or obligations imposed. 1000 square kilometer, 1,000 square meter properties. One exists in Forbes Park, the other is in Payatas Quezon City. For obvious reasons, you cannot impose or subject them to the same tax rate because the property in Forbes is much higher than the property in Payatas. For purposes of uniformity, 2 adjacent 1,000 sq meter properties in Payatas, it is needed that both tax rates be imposed. In similar vein, two 1,000 square meter properties in Forbes Park, kailangan pareho ring tax rate that is uniformity. Equitable taxation. In similar vein, two 1000sqm property in Payatas, needs to have the same tax rate. Equitable tax is an aspect of due process. This is a measure against any forms of arbitrariness. Equitable taxation is based on the competence and ability of pay. Hence, the graduated rates in the NIRC.Ad valorem taxes requires that there should be a requirement of a prior notice and hearing, precisely to meet the equitable relation of paragraph 1, Sec. 28 of Article VI. Police power and Taxation.

I told you that it is needed that the old title must be cancelled and a new one be issued in favor of 112



Tridharma Marketing Corporation v CTA GR No. 215950 June 20, 2016. This case discusses the power to tax includes the power to destroy and the power to tax does not include the power to destroy. Both are correct in different perspectives. The power to tax includes the power to destroy if taxation is used as an instrument of the police power of the state. It can destroy. Powell v Pennsylvania, 127 U.S. 678 (1888). This case involved Margarine which was was manufactured in unhygienic circumstances. Hence, the State wants to regulate this. But instead of outright prohibition, it merely discouraged the manufacture of margarine by imposing a higher tax rate. The power to tax here included the power to destroy by lessening the manufacturing of margarine. If the power of taxation were invoked for purely revenue-raising purposes, then the power to tax does not include the power to destroy. This statement was invoked in the case of an indiannamed corp. The Supreme Court held in this case that the tax assessment served upon the business would have destroyed it; the business was unable to continue its operation because of the assessment. In this case, since it has clearly shown that the assessment was merely for revenue purposes, it should not be made to effectively destroy the corporation. Double taxation. The basic elements are: 1. Same Subject Matter 2. Same Purpose 3. Same Taxing Authority 4. Same Taxing Jurisdiction 5. Same Taxable Periods 6. Same Kind or Character There is nothing constitutionally offensive. This is no worse than doubled taxation, according to Justice Holmes. Law A imposes 1k, this law is amended, this is increased to 2k, that is doubled taxation. How is this different from Law B, imposing 1k, and Law C, imposing 1k, on the same thing, by the same authority, subject to the same limitations. Punzalan v Municipal Board of Manila 95 Phil. 46. The lawyers in Manila was imposed with an additional license fee to practice in manila. They argued that they are already paying privilege tax specified in the NIRC, hence double taxation.

SC held that this is not double taxation. There are different taxing jurisdictions. National, and city. The lawyers argued that there is a violation of the Equal Protection Clause. There is no substantial distinction which will warrant the imposition of the additional license fee against lawyers practicing in Manila because they are no different from lawyers practicing in manila. SC held that there is a substantial distinction because the lawyers in Manila earn more. But this is not applicable anymore. Be careful with this case given the fact that many provincial lawyers earn more. There are 3 cases that involve the same doctrine. 1. City of Manila v Coca-Cola Bottlers, GR No. 181277, July 3, 2013. 2. Swedish Match Philippines v Treasurer of the City of Manila, GR No. 181277, July 3, 2013. 3. City of Manila v Cosmos Bottling Corporation, GR No. 196681, June 27, 2018. The charter of city of manila Sections 14 and 21 imposed the same manufacturers business tax upon the same period for the same activity. The Supreme Court held that these are two same taxes imposed within the same jurisdiction by the same authority for the same period upon the same taxpayer for the same activity. Only one of these provisions may be invoked against the taxpayers because to allow both of these to be imposed will constitute double taxation. The provisions in article 3, they have measures against any form of arbitrariness on the part of the state. Essentially, therefore and except for a number of exceptions, they may not be invoked as against private acts. Yrasuegi v. PAL G.R. No. 168081 October 17, 2008 FACTS: there was a flight attendant who could no longer maneuver the narrow aisles. Yrasuegi was dismissed because of his failure to adhere to the weight standards of the airline company. Petitioner claims that he was illegally dismissed. He invoked the equal protection clause for the purposes of seeking to nullify that particular dismissal. HELD: The SC stated that the equal protection clause erects no shield as against private acts no matter how discriminatory.

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The equal protection clause as tackled from the perspective of unreasonable searches and seizure. The seizure of marijuana by private individuals is seen in this case of Marti v. People Marti v. People G.R. No. 81561 January 18, 1991 FACTS: Andre Marti and his common-law wife went to the booth of the Manila Packing and Export Forwarders to send 4 packages to a fiend in Zurich, Switzerland. When asked if the packages could be examined and inspected, appellant refused, assuring that they were simply gifts of books cigars, and gloves. As a standard operating procedure before delivering packages to the Bureau of Customs and/or Bureau of Posts, the proprietor of the forwarding agency opened the box for final inspection. He brought samples to NBI. Agents of the NBI found the shipment contained marijuana. ISSUE: May an act of a private individual, allegedly in violation of appellant’s constitutional rights be invoked against the State? - NO HELD: The rule against unreasonable searches and seizure was not applied in this context. the liberties guaranteed by the Constitution cannot be invoked against the State in the absence of governmental interference. This constitutional right (against unreasonable search and seizure) refers to the immunity of one’s person, whether citizen or alien, from interference by government; and the search and seizure clauses are restraints upon the government and its agents, not upon private individuals. In the context of the search and seizure, basta government hindi pwede. Government includes soldiers, police officers.

ISSUE: Whether the Bill of Rights may be invoked against Bantay Bayan operatives? - YES HELD: Peeing cannot be the subject of a warrantless arrest. The Bantay Bayan operatives are not government agents like the PNP or the NBI in charge of law enforcement, but are civilian volunteers who act as “force multipliers” to assist the law enforcement agencies in maintaining peace and security. The Bill of Rights generally cannot be invoked against the acts of private individuals, however, they may be applicable if such individuals act under the color of a staterelated function In this case, the acts of the Bantay Bayan relating to the preservation of peace and order in their respective areas have the color of a state-related function. As such, the Bill of Rights may be applied to the Bantay Bayan operatives who arrested and subsequently searched petitioner. Distinguish this from Marti, private individuals effected the seizure. Fairly recently, the case of Marquez v. People was decided by the SC. Marquez v. People G.R. No. 197207 March 13, 2013 FACTS: There was a guidance counselor in a private school approached by parents because someone was complaining that there was someone there selling drugs to the students. The counselor confronted the janitor and discovered drugs in the possession of the janitor. They both immediately went to the office, where the counselor phoned the police and eventually handed the drugs to the police when they arrived. ISSUE: Whether the chain of custody was broken because a private individual first seized the drugs? - NO

Government, in the context of Dela Cruz v. People, includes even port authorities, yung sa barko.

HELD: The chain of custody, evidentiary requirement, was not applied strictly against her because the seizure was effected by a private individual.

Government, in the context of Suzuki and Johnston, includes Airport Security Authorities. It also includes the barangay chairmen and tanods.

Basic proposition, first concept. These measures are against any arbitrariness on the part of the State.

Miguel v. People FACTS: He stepped outside to take a leak. He was accosted by a Bantay Bayan. He was then subjected to a warrantless search by virtue of a warrantless arrest.

Be reminded that there are exceptions provided in other cases, particularly with respect to the right of privacy. No title mentioned FACTS: They contrast this to the jealous wife of an amorous doctor who pried open his locked 114



drawers. She found incriminating evidence inside his desk drawers. She later sought to introduce them as evidence in a later marital judicial proceeding. HELD: the SC held that the evidence presented were inadmissible. You do not shed off your right to privacy when you marry. Spouses Hing v. Chuachoy G.R. No. 179736 June 26, 2013 FACTS: Aldo Resources, a company where the Chuachoys were major stockholders, filed a case for injunction and damages against the spouses, claiming that they were constructing a fence without a valid permit and the construction would destroy its building. The court denied the application by Aldo for preliminary injunction for failure to substantiate its allegations. To gather evidence against the spouses, Aldo illegally setup on the building of Aldo two video surveillance camera facing petitioners party and through their employees and without the consent of spouses took pictures of their on-going construction; thus it violates their right to privacy. ISSUE: Whether the spouses’ right to privacy was violated? – YES HELD: What was involved here was Article 26 of the Civil Code. This provision calls upon us to respect the dignity and privacy of our neighbors, etc. Following Tolentino’s opinion on the matter, “neighbors” do not only refer to the dwellings and homes of others but also of business establishments. The concept of privacy was expanded in the case – even in the concept of business establishments. The right to privacy, section 3(1), was upheld, but even if it was not done by a government entity or officer, it was upheld as against a private individual. Privacy issues are mainly upheld, even in the private setting. Due Process Clause and Equal Protection Clause This is found in Section 1. See previous discussion on substantive due process.

Provincial Bus Operators Association of the Philippines v. Department of Labor G.R. No. 202275 July 17, 2018 FACTS: this is the measure of the Department of Labor requiring fixed monthly salaries to drivers and dispensing with commission-basis. HELD: This was upheld as a police power measure and the requirements of substantive due process was met Philippine Petroleum Exporters Association (Couldn’t find the actual case) The state imposed high penalties for vessels that would spill their cargo in Philippine waters is a valid exercise of police power and complies with the requirements of substantive due process. The other concepts of due process pertains to: Procedural Due Process (Federation of Family Associations v. Carin, implementation of the RH law) which prescribes for the compliance or near compliance with procedures and processes laid out by law for the validity of measures. Two types of procedural due process 1. Judicial due process a. impartial court b. jurisdiction properly conferred and acquired over the parties, persons and even the properties c. opportunity to be heard d. judgement upon lawful hearing 2. Administrative due process (7 cardinal rights in quasi-judicial proceedings) a. The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. x x x. b. Not only must the party be given an opportunity to present his case and adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. x x x. c. "While the duty to deliberatedoes not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support its

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decision. A decision with absolutely nothing to support it is a nullity, x x x." d. Not only must there be some evidence to support a finding or conclusion, but the evidence must be "substantial." "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." x x x. e. The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. x x x. f. The Court of Industrial Relations or any of its judges, therefore, 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. x x x. g. The Court of Industrial Relations should, in all controversial questions, render its decision in sucha manner that the parties to the proceeding can know the various issues involved, and the reasons for the decisions rendered. The performance of this duty is inseparable from the authority conferred upon it. Note: These are not applicable in administrative proceedings such as preliminary investigation In terms of the Equal protection clause, there can be discriminatory laws, provided that the discrimination is based on reasonable discrimination. The four requisites are: 1. 2. 3. 4.

Substantial Distinction Germane to the purpose of the law Does not only apply to existing conditions Equally apply to all members of the same class.

Ferrer v. Bautista The case concerns an ordinance that imposes higher garbage fees socialized housing units, condominiums and apartment dwellings, and

lower fees on all other forms of residential housing. SC held that there is no reasonable classification here because there is no substantial distinction prescribed in this ordinance. The variance of the garbage fees should be imposed on the amount of the garbage emanating from any dwelling and other than the source of the garbage. Note, LGUs can impose garbage fees pursuant to its police power. Classification of wheat on the basis of origin of the wheat is not a valid classification. The classification should be based on the kind of wheat. Certainly, food grade wheat would merit a higher rate in terms of custom duties as opposed to feed grade wheat. Search and Seizure There are 3 categories of privacy. 1. Situational or locational privacy in section 2 2. Informational privacy. Disini vs Exec. Secretary not yet asked in the bar. Section 3, Paragraph 1. 3. Decisional privacy. we tackled this on the perspective of Imbong vs Ochoa. The right to life, etcetera. Let’s tackle first situational or locational privacy. The first concept I would like to focus on is this thing called probable cause. There are four areas of probable cause. I will give you the interrelationship between them. 1. Probable cause in the context of preliminary investigation The first is not related directly with the concept of probable cause under Section We first tackle probable cause in the context of preliminary investigation. Generally defined, probable cause is such cause that would make a reasonably prudent man to take a cause of action he is authorized to take under the law. In the context of preliminary investigation, there is need probable cause determination to warrant the filing the criminal compliant or information before the proper court. Let us say that the preliminary investigation finds probable cause and files a conviction. We tackle now the second probable cause concept. 116



Side note: Never file a judicial determination of probable cause because that is a superfluity. Remember that this is automatic upon the judge so there is no need to file this motion just to impress your clients. 2. Probable Cause in the Context of the Issuance of a Warrant of Arrest When the judge receives a criminal complaint or information, he is required under the constitution to determine probable cause for purposes of issuing a warrant for the arrest of the accused to entitle the court of custody or jurisdiction over the person of the accused. Upon receipt of the complaint, the judge can do or either of the three things according to Desmond vs People: a. They can make probable cause determination and issue the warrant b. He can require further submissions from the prosecution to enable him to make the determination c. He can provide for the outright dismissal of the complaint if he finds that there is no probable cause. So all three is within his competence.Remember this: when he makes this probable cause determination, he is not required to personally examine the complainant and the witnesses. All that he is required is to make a personal evaluation as to the submission of the prosecution. Enrile vs. Salazar, Soliven vs. Makasiar and Leviste vs. CA to support this precept. On this point, it is reiterated in several cases that there is no connection between the probable cause of the Preliminary investigation and probable cause of the arrest warrant. The probable cause in the issuance of the warrant of arrest is not by way of an appeal of the preliminary investigation probable cause. If you want to appeal the Preliminary Investigation’s probable cause, you go to the Secretary of Justice. The two Preliminary Investigation Probable Cause and Warrant of Arrest probable cause have no relationship between the two. It is totally independent of each other. To emphasize this point, the fairly recent case ruled in 2016 of People vs. Cojuangco.

Cojuangco vs. People G.R. No. 160864 November 16, 2016 Cojuangco’s assets were sequestered by the PCGG. After the sequestration, the PCGG with PI authority conducted a preliminary investigation on the same subject and on the same assets that were sequestered giving rise to a prosecution before the Sandiganbayan. The Sandiganbayan issued the warrant for the arrest of Cojuangco. Cojuangco later, at the earliest opportunity, questioned the issuance of the warrant because he questioned the issuance of the filing of the criminal information invoking due process. Sabi ng SC, the preliminary investigation was void because the PCGG could not be considered as an impartial tribunal in its determination of probable cause after it had previously provided for the sequestration of the same assets covered or subject of the later preliminary investigation. Bottomline, the filing of the information was void on due process grounds. The prosecution contended that if that were so, the fact of issuance of the Sandiganbayan of the warrant for the arrest of the accused, necessarily resulted in validating the probable cause. Therefore the arrest and the acquisition of the SB jurisdiction should still be upheld. The SC said that there can be no valid determination of probable cause for a warrant of arrest on the basis of a void information nullified on the basis of due process. As you can see, there is no connection. 3. Probable cause in the context of search and seizure warrants. Remember here that the rule is more strict. The judge is required to personally examine the complainant, to depose them and to incorporate the depositions into the records of the case so that it can be later on questioned by quashal or suppression of evidence. There are these measures known as these warrantless act, warrantless arrests and warrantless searches and seizures. Is there a need for probable cause for the validity of these actions of government? The answer is of course, yes. In terms of warrantless recall……… [21:00]

arrests,

you

will

Warrantless Arrests Remember Rules of Court provisions 1. In flagrante 2. Hot pursuit 117



3. Escape from penal institutions It is only on the basis of a prior valid warrantless arrest from which may emanate a valid warrantless search Therefore, the probable cause for the warrantless search would be the prior valid warrantless arrest So, in all of these actions, whether by courts or by warrantless acts – probable cause is always a requirement.

Is there a need for the warrant to specify the name of the premises to be searched? NO. As long as the premises are particularly described, it would suffice. (Veloso v. People) 2. Every search warrant must specify only 1 offense • • •

Probable cause for Warrantless Arrests NOTE: TIPS from informants are considered as probable cause in only 2 instances: 1. Buy-busts 2. Drugs-in-transit Search and Seizure Warrants The Search Warrant application is not a criminal proceeding, it is consistently characterized as a John Doe proceeding Although undertaken in the name of the People of the Philippines So, even private parties may participate in SW applications by filing pleadings not necessarily with the consent of the prosecuting authorities Essentially, it is the one to whom the application of the SW is entrusted who may file the application but this may be delegated based on the Tomas Case 1. Where to file? Before the court which would have territorial jurisdiction: • •

Over the offense specified in the warrant, or Over the premises of the properties covered by the search warrant application

Any court within the judicial region •

If compelling reasons are present

Is it okay for a court which would not have jurisdiction over the offense imputed or specified, to issue a search warrant? YES. This is not a requirement for the validity of the SW. Ang kailangan lang yung territorial jurisdiction over the offense or the territorial jurisdiction over the premises.

•

Referred to as the Scattershot Rule There can be no scattershot warrants (warrant that specified multiple offenses) In a 2018 Case (not specified) - warrant indicated “violations of the Securities Regulation Code, estafa, other offenses…” – THIS IS VOID (scattershot) Stonehill v. Diokno – “for violations of specific provisions of RPC, Central Bank Circulars, NIRC…” – VOID

NOTE: 1 offense, but multiple counts – this is allowed. It is still one offense. 3. The offense indicated in the warrant must be an offense. It must be a criminal case. Coca-Cola Bottlers v. Gomez G.R. No. 154491 Nov. 14, 2008 A case involving hoarding of bottles. Coca-cola discovered that their competitor, Pepsi, bought their glass bottles and hoard them in a warehouse in Laguna. Coca-cola caught Pepsi and applied for a search warrant. But Coca-cola invoked obscure provisions in the Intellectual Property Code regarding infringement of trademark. SC held, how can hoarding be considered as infringement if the bottles were only stored in the warehouse. So the real offense imputed in the case is hoarding of bottles – there is no such crime. Therefore, the search warrant was invalid. Ho ne Chan v. Honda Motor Co. G.R. No. 172775 Dec. 19, 2007 This is a case of pirated motorcycles. Honda discovered that there are fake Honda motorcycles being manufactured so they went to the place on the basis of a search warrant issued but the offense indicated in the search warrant was breach of goodwill and good name. SC held that it was not a criminal offense, thus, invalid search warrant. Note: The “hoarding” of used bottles & “violating of goodwill” established by a motorcycle manufacturer are not crimes or offenses and may 118



therefore, no be invoked for purposes of apply for or obtaining search warrants. (Coca-cola v Gomez; Hon Ne Chan v. Honda) 4. The premises to be searched must be particularly described. PICOP v. Asuncion G.R. No. 122092 May 19, 1999 The officers of the law, by issuance of a warrant, searched the premises of the PICOP compound. They went inside enforcing the search warrant, the crime imputed there was unlicensed firearm. But the PICOP compound comprised of 21 hectares were you will find more than 100 structures – office buildings, dormitories, bunk houses, warehouses. So they went from one structure to the next until finally they found the vintage WWII firearms which have already been retired and therefore unlicensed. A case was filed against them on the basis of the unlicensed firearms. PICOP filed Motion to Quash but was denied by the respondent Judge, hence it went to the SC. SC held that the search warrant did not particularly describe the place to be searched. Hence, the search was unconstitutional. Note: This case was handled by sir. A search warrant which identified only one place to be searched (i.e. compound), but the said place was made out of 200 buildings, 84 staff houses, etc. was invalidated because it gives police officers unbridled authority. (PICOP v. Asuncion) Be mindful of the concept of permissible area of search. • •

The rules are different regarding enforcement of search warrants and warrantless searches. In warrantless searches, remember that included in the permissible area of the search would be the area directly and immediately accessible to the person being searched. The point there is to secure and protect the officer enforcing or doing the warrantless search. o For instance a person doing a crime – naghit ng marijuana inside his car, the window was opened, so pinababa siya since it was a valid warrantless arrest and thus search was valid. The console beside the

•

driver's seat is a permissible area of search as well. It is easily accessible, baka makakuha ng baril and baka barilin. So to provide for the security of the person enforcing the warrantless search covered yung permissible area of search - all areas immediately accessible to the person subjected to the warrantless search. In the context of search warrants being enforced. Remember this rule in the case of:

Del Castillo v. People G.R. No. 185128, Jan. 30, 2012 Remember the rule that if the owner of the premises is not present, then at least 2 persons of sufficient age and discretion would be required to be present and one of them was the Brgy. Tanod. After a few minutes of the enforcement, nagyosi sa labas, tapos he strayed off from the premises subject of the warrant. Within 20 meters, he found a nipa hut or bahay kubo. As soon as he approached it, he saw marijuana on the table. He immediately seized and gave it to the police officers. SC held that 20 meters away is not within the permissible area of search in the context of search warrants. Note: Nipa hut located about 20m away from subject house is no longer within permissible area of search. (Del Castillo v. People) •

Distinguish that from pronouncement of:

the

2018

case

Dimal and Castillo vs. People G.R. No. 216922 Apr. 18, 2018 The search warrant indicated the premises to be searched wherein it specified the address of the house. Right beside the house was a palay warehouse and a rice mill. The places were included in the search as permissible area because it was right beside the premises of the search. The distance was not 20 meters away like in the previous case. Note: •

Search warrant was valid but most of the items seized pursuant thereto are inadmissible in evidence, as they were neither particularly described in the warrant nor seized under the “plain view doctrine.” (Dimal and Castillo v. People)

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•

Search warrant is not a sweeping authority empowering a raiding party to undertake a fishing expedition to confiscate any and all kinds of evidence or articles relating to a crime. Objects taken which were not specified in the search warrant should be restored to the person from whom they were unlawfully seized. (Dimal and Castillo v. People)

Quashal of Search Warrant Remember the basics rules as well, if you want to quash the search warrant, then necessarily every quashal effort shall have to be instituted before the issuing court. Unless in the meantime, after the enforcement of the search warrant, there would have been a criminal case filed on the basis of the item seized, in which case the quashal effort and the motion to suppress evidence would have to be undertaken before the court where the criminal case had been filed. Warrantless Arrest & Warrantless Searches and Seizure Basic exceptions prescribed in the Rules of Court In Flagrante Delicto – this is essentially those committed in the presence or near the presence of the arresting officer. Remember the distances prescribed in jurisprudence. 5 and 10 meters are okay. In one case, 50 meters away was still sustained as in flagrante delicto arrest. But be mindful of the basic facts presented to you because there are nuances in recent jurisprudence. Let say, the officer witnesses the alleged transaction from across the street. The average distance of a street is about 10m. He allegedly saw the person passing a plastic bag to another person. Because of his trained eye, he detected that it was shabu. Note the facts of the case, what kind of plastic bag was it? If it were opaque like the SM plastic bag, how can you see the content? You cannot. Therefore, even if it was just 10m away, it is still not in flagrante delicto. However, if it were transparent plastic bag with little sachet, a trained eye would be able to detect whether that was actually shabu. Well, if he makes a mistake and founds later that it was not shabu but a different powder, then the warrantless arrest is not valid.

Commerciante v. People G.R. No. 205926 July 22, 2015 There was this police officer who was a buy bust drug operator. He was on his motorcycle traveling at the speed of 30 kph. He glances towards his right and detects a transaction between A and B, for which reasons he makes an arrest. SC said no person travelling at speed of 30 kph despite having a trained eye can actually really detect that it was a drug transaction. So INVALID warrantless arrest. Even if the officer did not see but he heard the commission of the crime, that can still make a valid warrantless arrest in flagrante. For example, the police officer is separated by a wall from his neighbor suddenly heard his neighbors quarrelling and later on a gun shot was fired, the police officer is justified in making the intrusion for the purpose of effecting a warrantless arrest. That is valid. People v. Uy Po Co (Can’t find the case) Let us say, it was a kidnapping for ransom that is being a subject of a surveillance. Police officers were not sure where the kidnappers are going to exit whether in Magallanes, BGC or Resort’s World but, police officers were in constant touch with each other. Finally, in EDSA, Team B was able to find and overtake the kidnappers and effected a warrantless arrest. SC held that it was a valid warrantless arrest even if the arresting team did not personally see the retrieval of the ransom money because the fact of constant communication vested in Team B essentially personal knowledge in the commission of the crime as it was committed. Another Example: A woman came to the police station reporting a pot session. The sergeant together with P01 and P02 went to the reported house. They saw that the gate was open. As soon as they came, there was a man from the side door left the house. P01 and P02 immediately entered the house and arrested the person who left the house. The sergeant went on the other side of the house saw an open window, tip toed, peeked and saw the evidence. Then, they arrested all the person inside. This is an invalid arrest. It was not an in flagrante delicto, hot pursuit, nor an escapee.

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SC sad that they should have first conducted a surveillance and upon acquisition of personal knowledge, obtained a search warrant. If you see the word “peek” (or sumilip), that’s invalid. Even in the context of plain view, that’s invalid. 2017 case (sir did not mention the name of the case) Facts: This time the complaining neighbor did not go to the police station but only called, saying that there is a person in their area that is firing a gun at the streets. The police officer went to the area and saw a man acting in a menacing manner (although not carrying a gun at that time) so the police officer approached him and conducted the search and found the gun on his top pocket. Ruling: That is a valid warrantless arrest despite the fact that no crime was committed because based on the information, there was probable cause. The rationale of the SC is that it would have been foolhardy on the part of the arresting officer to have obtained a warrant for the arrest of the person first before arresting him given the immediate threat present at that time. That is a peculiar case different from the previous case we talked about. People v Aruta G.R. No. 120915 April 3, 1998 Facts: There was a “tip” from an informant saying that “Aling Rosa” will come from the North (Sagada – where drugs usually come from). She will be riding a Victory Liner Bus and will arrive at a certain time. The police team arrived at the said time and saw Aling Rosa. The bus parked and Aling Rosa went down holding 2 big bags. Aling Rosa was then waiting for a tricycle that time when the police arrested her without a warrant, searched her bags and saw marijuana. Ruling: Invalid warrantless arrest. At the time of the arrest, she was waiting for a tricycle. There was no in flagrante delicto there. “Tips” can serve as probable cause for an arrest in 2 instances: 1. buy bust 2. drugs in transit In this case, she already alighted from the bus. It would have been different if she was apprehended while she was still in the bus (which would have resulted to a valid warrantless arrest).

In People v Ranch (?) or in People v Aruta (sir is not sure which of the two), the one who was arrested was not doing anything illegal at the time of the arrest. Nothing in flagrante delicto. Be mindful of aberrant cases such as Umil v Ramos. These cases are from the old Marcos era, but be mindful of their pronouncements. Umil v Ramos G.R. No. 81567 October 3, 1991 Facts: In these consolidated cases, one involved a person who was arrested while he was convalescing from a gunshot wound in a hospital from a rebellion which took place one week earlier. He was arrested without a warrant Ruling: The SC sustained the warrantless arrest. The murder that was committed was in the context of a rebellion, which is a continuing offense. Therefore, it is still in flagrante delicto. That pronouncement remains and have not been overturned in similar cases. Luz v People G.R. No. 197788 February 29, 2012 Facts: Here is a motorcycle rider. The police officer was coming out from the police station when he saw the motorcycle rider without a helmet. The police stopped the rider and asked him for his helmet. Mayabang ung driver, so he was brought inside the police station. He was then searched there. There was a metal case in his front pocket which contained marijuana. Ruling: Inadmissible. Traffic violations cannot give rise to an arrest unless the traffic violation would have resulted to death. But an ordinary traffic violation does not make for a valid warrantless arrest so it would not have resulted to a valid warrantless search. Riley v CA 573 U.S. __, June 25, 2014 Facts: With respect to a search warrant, under the Rules of Court, there are 3 basic properties that can be seized from the service of the search warrant: 1. Property subject of the offense 2. Property stolen or embezzled 3. Property used in the commission of the offense

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When it comes to warrantless searches and seizure, the only things that can be seized would be: 1. dangerous weapons 2. property subject of the offense In this case of Riley, there was a traffic violation in a sense that his license tags were expired. He was stopped. The driver was “mayabang” so he argued with the officer. He was searched, and seized from him was his cellphone, which was turned on by the police officer, direcho sa gallery ng photos and saw photos linking that driver together with his gangmates participating in a recent drive-by shooting, which resulted in gang murders. He was arrested and the vehicle was promptly thereafter searched. Not only him but even his gang-mates were later charged for the gang murders. The issue was whether or not those photos retrieved from his cellphone would be admissible in evidence. Ruling: Inadmissible. In that decision said the US Supreme Court, there the same rule obtains: the only things that can be seized on the basis of a valid warrantless search would be deadly weapons and properties subject of the offense. Cellphones could hardly be considered as deadly weapons or much less the subject of the offense, therefore, invalid seizure, invalid search, and therefore inadmissible evidence. Homar v. People G.R. No. 182534 Sept. 2, 2015 Facts: May tumatawid sa gitna ng Roxas Boulevard at the early hours of the morning. Sinigawan ng police "Hoy! Dun ka sa pedestrian lane tumawid!" Yung tao tumigil dun sa gitna ng kalye edi nakita ng mga police officer "bakit ka dito?" Sinearch siya, nakitaan ng drugs sa pocket niya, used in evidence against him for drug charges. Ruling: Inadmissible. Pero may nuance itong case, iba ito sa earlier case ng Luz v. People (yung motorcycle driver). Remember jaywalking is an arrest-able offense, you can subject a jaywalker to a valid arrest. In flagrante delicto yan, violation of an ordinance. But here, the SC said, based on the records of the case, there was no indication that when the

police officer approached him that they had any intention of restraining his liberty by way of an arrest. Therefore the purpose in approaching him was merely to accost him, scold him, or remind him that he should have crossed from the pedestrian lane. It escalated quickly to a search, and that search was invalid because there had never been any intention to effect a warrantless arrest. Note: they could have arrested but they did not based on the records, and therefore there could have been no valid warrantless search. Office of the Ombudsman v. Brillantes G.R. No. 213699 Sept. 28, 2016 Facts: Remember the mistake in identity situation? Valid warrant of arrest. He described the person to be arrested but they arrested the wrong person. They conducted a search on the person, and seized drugs from his person. Admissible ba yung drugs? Tip: You detect from the facts of the case whether or not the police officers, even if they were mistaken in the identity of the person subject of the warrant of arrest, if they were in good faith in effecting or enforcing the arrest warrant, then that should be considered a valid arrest, which could give rise to an ensuing valid warrantless search. •

Section 80 of the Forestry Code entitled forestry officers to, even without warrants, seize illegal timber. Timber is unprocessed logs, while lumber is processed logs. Even without a warrant, illegal lumber can be the subject of seizure by forestry officers. My problem: how does the forestry officer detect whether or not the lumber is illegal?

Is a “drug czar” position a cabinet position? Remember that the vice president is authorized only to accept a cabinet position under the Constitution. There is no indication that this is a designation ex-officio. How can it be ex officio by reason of the vice presidency? Cannot be. So essentially, that is unconstitutional (strictly speaking). Section 13, Article 7. The President, VicePresident, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, 122



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 governmentowned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. The only position that a vice president is authorized to hold is that of a cabinet secretary which even requires no confirmation (Sec. 3, Art. 7). Executive Orders are only by way of implementation either by of Constitution directly or of a law. It cannot spring from nowhere. Ople v. Torres This is the case of the Executive Order on the matters of national ID system. Apart from the privacy issue, it was nullified because there was no law authorizing by executive order to impose a national ID system. KMU Director General v. NEDA The Executive Order for the ID requirement for government employees is valid because this is within the competence of the President as the Chief Executive.

2019 Bar Exam: After reports of an alleged illegal drug session, the police conducted an operation where the accused, whose eyes were red, was arrested. The accused’s fist was clenched at the time of the arrest. The arresting officer forced open the clenched fist and saw drugs. Was there a valid search incidental to arrest? 1st suggested answer: No. The redness of the eyes is not sufficient to establish probable cause. There is no valid search because forcing the clenched fist to open is not within the purview of stop and frisk. Stop and frisk is only limited to external searches to protect the person of the arresting officer to make sure that the arrested person is not in possession of a deadly weapon. 2nd suggested answer: Yes. There was a valid search and seizure. The redness of the eyes of the accused is sufficient to establish probable cause that the accused might have committed use of illegal drugs. The act of forcing the clenched fist to open and the subsequent discovery of the illegal drugs are valid because the search there is valid since it was made after a valid warrantless arrest. (Manalili case) Airport Searches • •

Returning in the points for Warrantless Searches and Seizures

They are done as matters of necessity to protect the airports. Furthermore, they are consented searches because when one purchases an airplane ticket, he or she consents to the conduct of search over his or her person and baggage.

Basic Exceptions:

Customs Searches

Consented Searches

•

In re Miguel Morales Suspected of anomalies for selling the decisions of the cases, the Court Administrator sued him. And by way of investigation, while his laptop was on, it was inspected, and the contents were looked into with the consent of Atty. Morales.

•

In this particular case, immediately after the seizure of the incriminating evidence. Atty. Morales filed a formal manifestation by way of objection as to the seizure. SC held: in exonerating him, this was not a consented search as indicated by his immediate objection soon after the seizure was effected.

They can only be conducted by custom officers in connection to the enforcement of customs laws within customs zones or ports of entry. Therefore, it cannot be done to private houses except in a case where a person who, after leaving the port, rode a taxi and was searched in a location adjacent to the port for violations of customs law. In that case, the Supreme Court held that considering the location of the search, there was still a valid custom search. This is an unusual case.

Moving Vehicles •

Always a recognized exception

Look for the elements of voluntariness in terms of the consent.

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Plain View Searches and Seizures Requisites: 1. There was a lawful intrusion to the premises searched; 2. The viewing was done inadvertently; and 3. The thing to be seized is illegal per se and subject to immediate seizure. Last Bar Exam: A motorcycle was carnapped. The police investigating the case accidentally looked to his right and saw an opened gate. Inside the premises was the motorcycle carnapped. He immediately seized the motorcycle. Were the search and seizure valid? Yes. Another problem: There was a hot pursuit. The accused entered a house, and the police officers followed. Inside the house was a mountain of marijuana. The police officers seized the marijuana. Was the seizure valid? Yes. (1) There was a lawful intrusion brought about by the hot pursuit; (2) there was an inadvertent discovery of the marijuana; and (3) the marijuana is subject to immediate seizure. NOTE: If the searching officer has to do another act, e.g., kneel down, peek, or force open a cabinet, there cannot be an inadvertence. Kung i-lift ang mattress, that’s not inadvertence. Kung buksan ang cabinet doors or drawers, that’s not inadvertence. That’s not a valid claim. Dimal and Castillo v. People Recurring question from freshmen during the Bill of Rights semester, kunyari may valid search warrant at offense indicated there is carrying unlicensed firearms. And then hinahanap, enforcement of the warrant. Pagbukas ng cabinet Nakita marijuana. Question, can a plain view be effected in the course of a valid search warrant. Of course, yes. There is no full intrusion, there is inadvertence and the seizure is valid and not illegal per se. Note the nuance in this case of Dimal and Castillo v. People, there is a categorical statement there to this effect. After the enforcement of the warrant, which means that there is already an inventory and a receipt signed, tapos na. There can be no plain view search and seizure after the enforcement and the completion of the enforcement of the search warrant. Right to Privacy

(Di pa to tinanatanong sa bar) Zones of Privacy. Matagal na to, yung Morfe v. Mutuc and Ople v. Torres. The zones of the privacy in the Constitution are the due process and equal protection clause. Section 2, the rule searches and seizure.

against

unreasonable

Section 2. 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 determined 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 persons or things to be seized. Section 3, informational privacy. The matter of the right against self-incrimination is included of course. Section 3. (1) 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. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. In the context of general laws, there are provisions there against the violation of our fundamental liberties. Article 26 is one of them. (Article 772 and 774, not very sure si Sir, but these are succession provisions.) Privacy of communications and correspondence. Article 26 Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief: (1) Prying into the privacy of another's residence: (2) Meddling with or disturbing the private life or family relations of another;

I stress the following points: 124



(3) Intriguing to cause another to be alienated from his friends; (4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.

issue except upon probable cause to be determined 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 persons or things to be seized. xxx

•

•

• • •

In the revised penal code, there is a crime trespass to dwelling. Remember violation of trade secrets. These are zones privacy. Rules of Court, there is privileged information. Lawyer-client, physicianpatient, priest-penitent and then the matter of marital privilege. Those are zones of privacy. Special law, journalists and their sources of information. Special law, the anti-wiretapping act. Secrecy of bank deposit laws, both foreign and domestic accounts.

Remember that the right to privacy and the right to be left alone is not absolute. In the first place, it can be claimed only when one is competent to claim a reasonable expectation of privacy. There being shown that there is none, you can’t claim the right to privacy. Discussion of zones of privacy in the case of Ople v. Torres. (Direct quotation, you can skip this if you want) “Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several provisions of our Constitution. It is expressly recognized in section 3 (1) of the Bill of Rights: Sec. 3. (1) 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. Other facets of the right to privacy are protectad in various provisions of the Bill of Rights, viz: Sec. 1. 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 Sec. 2. 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

xxx

xxx

Sec. 6. 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. xxx

xxx

xxx

Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Sec. 17. No person shall be compelled to be a witness against himself. Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that "[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications. The Revised Penal Code makes a crime the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act and the Intellectual Property Code The Rules of Court on privileged communication likewise recognize the privacy of certain information.” Case in point is the writ of habeas data application in Vivares v. St. Theresa’s College. Vivares v. STC Public posts in Facebook, you cannot expect a reasonable expectation of privacy. Maybe, you can expect that if your posts were in a Friends Only setting but even then, in the case of Bello v. Guevarra. 125



Bello v. Guevarra This Atty. Guevarra, di ko alam kung bakit galit na galit siya kay Vicky Bello. Tinatawag niya ng “Reyna ng Kaplastikan” sa mga posts niya sa Facebook etc. When he was sought to be disbarred and subjected to disbarment proceedings and libel suits, his basic defense was that it was his intention to keep such posts private as can be gleamed from the fact that his setting. From the discussion of Justice Velasco in St. Theresa’s College, nakafriends only. Even then kahit nakafriends ka, there is this tagging option which can lead to the disclosure of your posts even to persons unintended by you to be covered in the posts. •

•

•

•

Even then, hindi pa rin may reasonable expectation of privacy. Be mindful of this concept, you relate this to the rule against unreasonable searches and seizure. Iba yung rule against unreasonable searches and seizure from the concept of known as reduced expectation of privacy. This is especially in the concept of private settings. For instance, this is a 2018 case. If you enter a bus terminal, you are subjected to a potential search and seizure. There is no violation of the rule against unreasonable searches and seizure if the other party is not government. Second you have a reduced expectation of privacy if you entered private premises. The owners of these private premises are well within their rights to maintain absolute security in their premises. This include malls, public transportation, beach resorts, terminals, hotel, complexes. These are privatelyowned and when you entered these premises, essentially and necessarily, you have a reduced expectation of privacy. You do not apply the rules against unreasonable searches and seizure here, you apply the overwhelming and overwriting property rights of the owner of private premises. You surrender to them.

Reasonable expectation compelling state interest

of

privacy

vs.

Even if you were unable to establish a reasonable expectation of privacy, as in the case for example of Morfe v. Mutuc (G.R. No. L-20387), we are all private in our financial transactions. But if the State were to show that there was a compelling state interest, it should justify the setting aside of privacy. The compelling state interest takes precedence against your reasonable expectation of privacy. Morfe v. Mutuc G.R. No. L-20387 Jan. 31, 1968 If you remember, this is the first time that the Statement of Assets and Liabilities was prescribed for public officers to be submitted periodically. They complained financial right to privacy. COURT: Yes, you have the right to privacy. But here, there is a compelling state interest, public accountability. Therefore, it suffices for the setting aside of your right to privacy. Student inquiry: inspection by virtue of an ordinance violation Student: There was this enumeration of J. Nachura that whenever there is an ordinance or law requiring the inspection of several premises, there is no expectation privacy and therefore, there could be a warrantless search to be conducted. Sir: Ultimately it could lead to a warrantless search because if the premises security guards detect something unlawful, tatawag yan ng public. That would be a valid warrantless search. Probable cause there would be the prior determination of the private property owners. Student: But for example, as regards to the compliance to the Fire Code, there’s an inspection… Sir: That is a contentious thing. American jurisprudence is flip-flopping. The basic rule is that if the state is within its police power competence to inspect premises, then there could be no complaint as to warrantless searches and seizure. For instance, inspection of fire marshals and fire authority, there is lawful intrusion there that is statutorily provided. The latest pronouncement here is a 2018 case in connection with the enforcement of environment laws. The DENR went inside and effected a 126



search. SC: that is authorized under the law. That was the extent of the statement of the Supreme Court. My assessment of that statement is yes, if the search is undertaken by the State pursuant to its police power competence, then any seizure that may be effected on the basis of such warrantless search, all the basis of a police power measure can be justified. The seized evidence can be admissible.

There were about two paragraphs in the case of Pollo which I think you should be reminded of. Meron dun discussion pero hindi conclusive. Sabi, perhaps, a different disposition can be arrived at. If the office of this particular petitioner would have been a room with a door which could be closed. Under those circumstances, there MAYBE a reasonable expectation of privacy. As determined in American cases.

Student: On those instances, do we apply compelling state interest?

Tumigil dun ang SC. Sinabi lang, there may be a different disposition.

Sir: You differentiate the matter of the impositions of property owners in connection with their ownership prerogatives. Their reasonable expectation of privacy obtains… Yan compelling state interest for instance, airports, there is a police power involve there. So even if you have a right to privacy with respect to the contents of your luggage, the compelling state interest for absolute security in airports, law justifies the lawful intrusion by way of warrantless search.

If that is a situation other than a cubicle, maybe there are privacy issues which may be determined in favor of the occupant of that room with a door which can be closed and locked. Nuance lang un but that is not the pronouncement in Pollo v. CSC.

Doon naman sa Morfe v. Mutuc, the financial privacy is the right invoked. There is a reasonable expectation, set aside because of the greater compelling state interest of public accountability. Different reasons for different situations. Clearly, kung private property yan, you live with the reduced expectation of property. But if it were government offices, natural there is a compelling state interest to keep them safe. So the justification is not necessarily property ownership but the overwhelming duty on the part of the State to maintain the security in the government premises. Pollo v. Constantino G.R. No. 181881 Oct. 18, 2011 Cubicle siya, meron siyang desktop. Memorandum of Receipt (MR), meron password etc. Suspected of analomalies, they swoop into his desk, turned on desktop and found incriminating evidence. Objected on two grounds: 1) reasonable searches and seizure and 2) right to privacy. COURT: 1) No intrusion. You cannot accuse someone for unreasonably searching property he owns. The CSC owns the desktop. Therefore, within its competency to search it. 2) He was on a cubicle which is accessible to anyone. Therefore, there is no reasonable expectation of privacy.

Writ of Habeas Data Vivares v St. Theresa’s College G.R. No. 202666 20 September 2014 This pertains to life, liberty and security. Reasonable expectation of privacy must be alleged and proved. A public post has no reasonable expectation of privacy. Unlike the writ of amparo, this applies even against private individuals provided such individual is engaged in collecting data or information. The defense of St. Theresa’s here is that it was not engaged in the business of collecting data or information. SC said that there is nothing in the habeas data rule that one should be engaged in the business of collecting data or information. It is enough that one collects data or information; you download, screenshot, you can be a subject of habeas data. Exclusionary Rule Any objection to an arrest or seizure on the basis of either a warrant of arrest or a warrantless search, it must be raised at the earliest possible opportunity. RULE: If the seizure or the subject in which the evidence is obtained in violation of either Sec. 2 or Sec. 3 (1), it is inadmissible for any purpose and any proceeding. To qualify such rule, such evidence can be used against those who illegally seized them. This is a safeguard protecting the owners of the property. 127



Ogayon v People G.R. 188794 2 September 2015 The search warrant was invalid because the complainant has no personal knowledge. However, the accused never objected or challenged the validity of the search warrant. Not during the arraignment or by way of a motion to suppress evidence. Not even on appeal. SC: The SC detected the invalidity of the search warrant upon review of the depositions taken in connection with this issuance. The rule is fixed: if you do not challenged seasonably or at the earliest opportunity, the validity of the warrant and the search, then you are considered as having waived that particular objection. Not so in this case. Even if that objection was raised promptly, that failure cannot be overridden by the fact that the warrant was, to begin with, void. The requirements to the issuance of a search warrant are constitutionally prescribed. The manner of waiver is only a procedural rule. Therefore, the latter should necessarily be subordinate to the Constitutional requirements. Section 4. 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. Tordesillas v. Court of Appeals Siege at Manila Peninsula. Therre was an order on the aprt of the commanders on ground for the reporters to stay away from the premises. The reporters objected saying it produced a chilling effect on their freedom of press. The measure was issued by the commanding officer precisely on the ground to protect them and to ensure they `will not interfere with the military operations at that time. The court rejected the contention that there was a chilling effect produced on their freedom. Arch Diocese v. COMELEC G.R. No. 205728 January 21, 2015 Freedom of expression covers speech, press, lawful assembly for purposes of petitioning the government for redress of grievances, correctly as included in Imbong v. Ochoa, it includes Freedom of religion and Section 8, the freedom of association - all components of freedom of expressions.

Remember the elements of freedom of expression: 1. Freedom from prior restraint and censorship and 2. Freedom from subsequent punishment In either case you need to apply the clear and present `danger test. Remember that test CAN result in a suppression of free speech. It can result in an upholding of free speech, depending on the circumstances attendant in any specific case. Being guided here by the pronouncement by maybe Justice Holmes "shouting fire, in an open field" cannot be suppressed either on the basis of prior restraint or subsequent punishment. But if you shout out the word "fire" in a crowded theatre then there can be prior restraint or even subsequent punishment. Content Based Regulation

and

Content

Neutral

You have to be specific here because of the levels of judicial scrutiny that are employed on the basis of Content Based and Content Neutral Regulation. Yung 3 levels of Judicial scrutiny again are: STRICT, RATIONAL BASIS, and INTERMEDIATE. They are applicable not only to the equal protection clause but even in the context of substantive due process cases. Recall in a case there was a law implemented by resolution of the COMELEC limiting sizes of campaign materials. The Arch Bishop of the Arch Diocese on his own expense produced campaign materials, "TEAM PATAY" and "TEAM BUHAY". Indicating his preferences for candidates for the Senatorial Contest at that time. The COMELEC ordered its taking down because it transgressed the size limitations prescribed in the COMELEC resolution pursuant to the Fair Elections Act. There was an issue of whether or not that particular measure of the COMELEC was Content Based and Content Neutral. Remember it is Content Based if it goes by way of actual suppression of the speech. Its Content Neutral and therefore subjected to lesser judicial scrutiny if it merely provides for certain parameters for the exercise of this freedom of expression in terms of the place, manner, time of expression. In this case it is to be considered as against the private property owner as content based because it went by way of the suppression of the speech. "Size matters". If you suppress the font size that would be suppression of speech. The larger the message with larger fonts, the greater the audience even those travelling would be able to read. But if you insist on smaller fonts, it limits audience. So here it was considered 128



content-based regulation. Those materials were produced solely by the Arch Bishop with no indication of any participation by any candidates. They were posted in the façade of a private property. Yes it was a church, but it was a private property subject to the administration of the Archbishop. These three components made for the conclusion of the SC that it is to be considered as a content-based regulation subject to strict scrutiny, and ultimately nullify in application as against the Archbishop. The implication is that a resolution providing for the size limit of campaign materials, if that have to be employed against candidates, that would be considered as content-neutral regulation. Therefore subject to a lesser scrutiny and can be sustained as a police regulatory power of the COMELEC pursuant to Section 4 of Article 9(c). Models of Freedom of expression: 1. It is a measure that provides for a greater deliberative democracy. 2. It is a mode of self expression (poetry, literature, arts) 3. It is considered as a market for group identity. 4. It is a measure that gives light to free market place of ideas. (Ultimately the truth will surface if there is enough ideas in the market) 5. It is a measure against a “majoritarial rule”. (one voice against the voice of the majority is essential in democracy) 6. Safety Belt Theory (Anything that is suppressed long enough will eventually explode. If the citizens are suppressed in their frustrations and dissatisfaction with the government, this may result to revolution.) Paradigm of Free Speech 1. Politically disadvantaged speech is preferred against state regulation. But state regulation which promotes politically disadvantaged speech should be preferred. (In either case, you give preference to politically disadvantaged speech) 2. Market Place of Ideas- the basic thought if there were enough ideas proliferating in

the marketplace of ideas, then ultimately, the truth will surface.

Chavez v. Gonzales G.R. No, 168338 Feb. 15, 2008 hello garci tapes. I talked about this when we discussed the facial challenge. Do not play the hello garci tapes sabi ng NTC, sabi ng DOJ sec. Those are considered content-based regulations. Therefore, subjected strict scrutiny and is actually declared as unconstitutional by the court producing this so called “chilling effect” on the exercise by the persons concerned on the freedom of expression. New Sounds Broadcasting v. Dy (Bombo Radio) G.R. No. 170270 April 2, 2009 Recall that this is a very vocal radio station against the local government of Cagayan. When it applied a renewal of its permit to operate. It was denied. The basic justification was that there had been a “rezoning” of the area where the radio operations were undertaken. SC: That particular ordinance was actually content based regulation and was by way of suppression of the freedom of the press of this particular radio station. Best illustration of content based regulation would be that case of Bayan v. Ermita. Bayan v Ermita G.R. No. 169838 Arpil 25, 2006 Eto yung BP 880. “The Public Assembly Act”. You have to get a permit 5 days before your scheduled lawful assembly. If not acted upon within two days then it is impliedly approved and if rejected you have an appellate process you need not applied for a permit. If the lawful assembly would be undertaken in within private premises or within a private school. In this cases, only the consent of the owner of the private property is needed. No permit needed if the lawful assembly is done in the freedom park which are required to be established in all local government units prescribed under the law. Also in campaign rallies you do not need any permit to conduct those lawful assemblies.

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SC: Content neutral regulation subject to the least scrutiny and upheld by the court as valid police power measures. I have already discussed freedom of religion. Let me go to Liberty of Abode. Liberty of Abode

to civilization.” Then there was upheld by the SC a substantial distinction between the Mangyans and the rest of civilized society and therefore justified the forcible segregation of Mangyans from the rest of society. (Sir does not agree with the pronouncement) That was a different day and age.

Section 6. 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. Two sentences: 1. 2.

Liberty of Abode Right to travel

On the liberty of abode, nothing has significantly changed. Remember that the impairment of the liberty of abode can be done by lawful order of the court which justifies the eviction, decrees issued in ejectment cases. Recall the provisions in Article 13. This should be sections 10 or 11. If there will be a relocation of the so-called “urban dwellers”, it must be done in a humane manner as prescribed by law. Also, there must be a consultation done by the relocation authorities with the community to be relocated and with the community to which the relocation shall be affected. Caungang v. Salazar (???) This househelper was denied to leave the household until and unless she would have paid fully the amount she advanced from the employer by way of recruitment fees. She sued for habeas corpus, the court saw this as an impairnment to her right to liberty of abode and sustained her release from the clutches of her employer. Recall Villavicencio v. Lukban Rubi, et. al v. Provincial Board of Mindoro 39 Phil 660 March 7, 1919 I doubt very much if the principle here would be applicable today. Remember that this is a 19051906 pronouncement of the court. Justice Malcom, recall the statement: “Mangyans are waste people, and waste people do not contribute

Impairments allowed on the right to travel There are impairments allowed independent of the grounds stated in the provision Examples: • • •

Accused in custody of courts – not allowed to freely travel without the coordination of the cour Travel ban to Hongkong/ middle east Travel permit requirement for the Judiciary in order to prevent chaos in the dispensation of justice Genuino v De Lima G.R. No. 197930 April 17, 2018

Facts: De Lima, then Secretary of Justice, prevented Arroyo in wheelchair from seeking a medical appointment in Singapore. In her petition, she invoked her right to life. She was sought to be restrained from leaving the PH on the basis of watch list order. At that point, she was only a respondent in a preliminary investigation being jointly undertaken by the Comelec and DOJ in relation to election sabotage charges that have been levelled against her. The justification of De Lima was that it was a matter of national security. The Hold Departure Order was on the basis of Watch Order List. If we sustain the De Lima theory, the mere pendency of a PI may warrant an impairment of this right to travel. SC: Watch Order List – no law authorizing DOJ to provide for the Watch Order List which impairs the right to travel. The order is an Invalid Delegation and an Impairment of the Right to Travel. Hence, NULLIFIED Excerpt from the case: The issuance of DOJ has no legal basis

Circular

No.

41

Guided by the foregoing disquisition, the Court is in quandary of identifying the authority from which 130



the DOJ believed its power to restrain the right to travel emanates. To begin with, there is no law particularly providing for the authority of the secretary of justice to curtail the exercise of the right to travel, in the interest of national security, public safety or public health. As it is, the only ground of the former DOJ Secretary in restraining the petitioners, at that time, was the pendency of the preliminary investigation of the Joint DOJCOMELEC Preliminary Investigation Committee on the complaint for electoral sabotage against them. To be clear, DOJ Circular No. 41 is not a law. It is not a legislative enactment which underwent the scrutiny and concurrence of lawmakers, and submitted to the President for approval. It is a mere administrative issuance apparently designed to carry out the provisions of an enabling law which the former DOJ Secretary believed to be Executive Order (E.O.) No. 292, otherwise known as the "Administrative Code of 1987." She opined that DOJ Circular No. 41 was validly issued pursuant to the agency's rulemaking powers provided in Sections 1 and 3, Book IV, Title III, Chapter 1 of E.O. No. 292 and Section 50, Chapter 11, Book IV of the mentioned Code. It is, however, important to stress that before there can even be a valid administrative issuance, there must first be a showing that the delegation of legislative power is itself valid. It is valid only if there is a law that (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard the limits of which are sufficiently determinate and determinable to which the delegate must conform in the performance of his functions.

presence within the country of the respondents during the preliminary investigation. Be that as it may, no objective will ever suffice to legitimize desecration of a fundamental right. To relegate the intrusion as negligible in view of the supposed gains is to undermine the inviolable nature of the protection that the Constitution affords. Note: The Supreme Court has recently issued A.M. No. 18-07-05-SC or the "Rule on Precautionary Hold Departure Order" ("PHDO Rules"). PRECAUTIONARY HOLD DEPARTURE ORDER (August 2018) - PHDO can be issued by any court in the context of pending preliminary investigation upon application by the NBI - The issuance of PHDO should have no bearing whatsoever in the probable cause determination in the preliminary investigation which is yet to be concluded. - PHDO must be issued only by proper courts - Once issued, it continues to be valid until lifted - One who needs to leave during the effectivity of the same ,then he can post a bond for purposes of being allowed to leave the country for the meantime. CYBER WARRANTS (should be CYBERCRIME WARRANTS) Note: The Supreme Court of the Philippines, through A.M. No. 17-11-03-SC issued the Rule on Cybercrime warrants, which took effect last August 15, 2018. There is now this so called CYBER WARRANTS

A painstaking examination of the provisions being relied upon by the former DOJ Secretary will disclose that they do not particularly vest the DOJ the authority to issue DOJ Circular No. 41 which effectively restricts the right to travel through the issuance of WLOs and HDOs.

-

The DOJ would however insist that the resulting infringement of liberty is merely incidental, together with the consequent inconvenience, hardship or loss to the person being subjected to the restriction and that the ultimate objective is to preserve the investigative powers of the DOJ and public order. It posits that the issuance ensures the

-

Way of addressing Disini v. Excutive Secretary. Among the issues raised in such case is the Validity of the competence of the DOJ to take down certain posts in the computer on the basis of its determination of just cause of the violation of Cybercrime Law. SC: No such thing as just cause in the actions authorized in that law. That provision/measure is UNCONSTITUTIONAL.

Computer data perspectives:

to

be

considered

in

2

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1. As Property – therefore protected in the rule of unreasonable search and seizures 2. As Freedom of Expression – it cannot be subjected to prior restraint or subsequent punishment unless there’s a clear showing of the need of either. After that ,the court issued the rule on Cyber warrants for the purpose of creating Cyber Courts which will have jurisdiction on Cybercrimes indicated in Sections 4 and 5 of the Cybercrime Law. -

Cyber warrants can be issued o where the computer is kept or operated o where the effects of the thing to be seized would have been done, o where the person affected would be found

(From internet) Who shall acquire jurisdiction over the Cybercrime offenses? The Cybercrime court where: -

The cybercrime offense was committed Where the computer system is situated The place where the damage was caused

“Affected”: by the objectionable computer posts/ data Effectivity of a Cyber warrant: 10 days (same as regular search warrant) It can authorize the: 1. Destruction 2. Retrieval 3. Seizure *From the internet: A.M. No. 17-11-03-SC provides for the issuance of 4 types of warrants 1. Warrant to Disclose Computer Data (WDCD) 2. Warrant to Intercept Computer Data (WICD) 3. Warrant to Search, Seize, and Examine Computer Data (WSSECD) 4. Warrant to Examine Computer Data (WECD) Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or

decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. Right to Information Self-executing provision Exception: Executive Privilege: Can still trump our right to information. No need for intervening or implementing legislation to breathe life into these rights that were given to us on the basis of the provision. Existing in splendid symmetry with Art. II, Section 28 which imposes upon the State the duty to disclose all info pertinent to transactions affected with public interest as may be regulated by law. The right to information under Art. III, Sec. 7 is to be always read in consonance with the duty to disclose imposed upon the State under Art. II, Sec. 28 Note: Both provisions

provisions

Article II, Sec. 28 Pertains to transactions of the government affected with public interest

are

self-executing

Article III, Section 7 Right to information on matters of public concern. Public Concern is a more comprehensive term than Public Interest

Bantay Republic Act v. COMELEC Omnibus Election Code prohibits the COMELEC from disclosing the names of the nominees from the partylist. This petition for mandamus was filed to compel COMELEC to disclose the names of those nominees SC: ordered COMELEC to disclose and declared that provision on the confidentiality of the list of nominees as UNCONSTITUTIONAL for being contrary to the self- executing provision in Art. III, Sec. 7 Sereno v. Committee on Trade (2016) Two requisites must concur before the right to information may be compelled by writ of mandamus.

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1. the information sought must be in relation to matters of public concern or public interest. 2. it must not be exempt by law from the operation of the constitutional guarantee.

Remember: Since this is a self-executing provision, it can be a proper subject of a writ of mandamus. The basis of all the Chavez cases discussed is that this provision is a self-executing provision.

First Requisite no rigid test in determining whether or not a particular information is of public concern or public interest. whether or not the information sought is of public interest or public concern is left to the proper determination of the courts on a case to case basis.

SECTION 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

Second Requisite: Exemptions from the Right to Information

Already discussed when freedom of religion was discussed.

1. national security matters and intelligence information, trade secrets and banking transactions and criminal matters 2. diplomatic correspondence, closed-door Cabinet meeting and executive sessions of either house of Congress 3. the internal deliberations of the Supreme Court. 4. matters acknowledged as "privileged information under the separation of powers," which include "Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings." 5. information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused.

Freedom of Association necessarily includes the freedom not to associate.

• •

Note: The executive privilege attaches not to the person (officer) but to the character of the information. Such that if there is an overwhelming establishment of the fact that the information sought to be elicited from the cabinet secretary would be in the context of a closed-door cabinet or meeting, then in this case, the right to information would have to be subordinated even to the cabinet’s secretary’s invocation of his executive privilege. Sir’s Comment: This is a nuance. But this is not in a way changing that the executive privilege is claimed by the President himself. If it should be extended to the secretaries, it should have been done in an express or categorical extension.

Freedom of Association

Sir: Be mindful of the nuance in the case of In re: Edillon In re: Atty. Marcial Edillon A.C. No. 1928 August 3, 1978 Atty. Edillion invoked his freedom not to associate when the court compelled him pay the membership fee. (He was disbarred) The Integrated Bar is a State-organized Bar which every lawyer must be a member of as distinguished from bar associations in which membership is merely optional and voluntary. To compel a lawyer to be a member of the Integrated Bar is not violative of Edillon’s constitutional freedom to associate. Bar integration does not compel the lawyer to associate with anyone. He is free to attend or not attend the meetings of his Integrated Bar Chapter or vote or refuse to vote in its elections as he chooses. The only compulsion to which he is subjected is the payment of annual dues. The Supreme Court in order to further the State’s legitimate interest in elevating the quality of professional legal services, may require thet the cost of the regulatory program – the lawyers. Such compulsion is justified as an exercise of the police power of the State. Sir: I have never been to Manila 3 since 1983. I exercise my freedom not to associate. If you want to review the Freedom of association, just read the case of:

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QC PTCA v. DEPED G.R. No. 188720 February 23, 2016 Sir: It contains all the concepts. In which I will summarize. 1. The freedom of association is not absolute 2. It is subject to State Regulation. Such as the Labor Code provisions on unions where managerial employees are ineligible to form, assist or joint a labor union. Sir: This is a reasonable restraint, an exercise of the State’s Police Power. Case: The rationale for this inhibition has been stated to be, because if these managerial employees would belong to or be affiliated with a Union, the latter might not be assured of their loyalty to the Union in view of evident conflict of interests. The Union can also become companydominated with the presence of managerial employees in Union membership. Sir: In this case, the claim was that these PTA’s are not subject to the regulation of DEPED since they are independent from schools. The SC held no because the police power of the State entitles it to exercise regulatory powers even as their existence or activities. Case: A parent-teacher association is a mechanism for effecting the role of parents (who would otherwise be viewed as outsiders) as an indispensable element of educational communities. Rather than being totally independent of or removed from schools, a parent-teacher association is more aptly considered an adjunct of an educational community having a particular school as its locus. It is an "arm" of the school. Given this view, the importance of regulation vis-à-vis investiture of official status becomes manifest. According a parent-teacher association official status not only enables it to avail itself of benefits and privileges but also establishes upon it its solemn duty as a pillar of the educational system.

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POLITICAL LAW REVIEW Atty. Carlo Cruz November 27, 2019 Section 10. No law impairing the obligation of contracts shall be passed. This provision applies to all government measures unlike the ex-post factor law which is essentially confined to laws. Impairment can come by way of subsequent law, executive order, proclamation, ordinance – all these government measures can be considered as affecting the efficacy of contracts. This provision does not apply to certain contracts such as marriage contracts which is always subject to alteration by the State. Traditionally, franchises are considered to be contracts. However, be mindful of Art. 12, Sec. 11: Section 11. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by such citizens; nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines. Therefore, you remove from the concept of contracts in Sec. 10 the matter of legislative franchises. To impair, it must have a retroactive effect. Impairment can come by way of removal of remedies which necessarily attend certain contracts. Example: contracts of law. Let us say

that there are many securities or collateral arrangements in a mortgage/chattel mortgage/ pledge contract. If a subsequent law removes all the remedies but retains only one e.g. the mortgage, there can be no impairment there if one of the remedies is retained by the law. Any and all exercise by the State of its fundamental powers would necessarily take precedence as against the invocation of the nonimpairment clause foremost of which is the police power. The exercise of any of its fundamental powers of the State will necessarily prevail over an invocation of the impairment clause. Foremost would be the police power of the State. Ilusorio v. CA By presidential decree of Agrarian Reform, all existing tenancy agreements were converted into leasehold agreements in the exercise of police power. The police power was made to prevail over the non-impairment clause. Feati v. Ortigas In Ortigas center, there were deeds of restrictions. One of the restrictions was that anyone who would purchase property would confine himself to the erection or construction of properties which were residential in nature. Feati Bank wanted to construct a building and invoked for that purpose a new zoning ordinance promulgated after the properties were purchased. The zoning ordinance of the City was made to prevail over the particular contractual stipulation. Tiro v. Hontanosas There used to be tripartite agreements between the teachers, their creditors and the Dept. of Education, entitling the creditors to go directly to the payroll divisions of the DepEd for purposes of collecting their monthly credits as against the teachers. An administrative pronouncement by the Secretary of the DepEd nullified those tripartite agreements. As against the invocation of the nonimpairment clause, the competence of the Secretary was sustained as a valid exercise of police power. The thinking there was that if the teachers cannot look forward to receiving their monthly salary, they would have low morale and could not teach as effectively. Today, creditors just hold the ATM cards of the teachers… 135



In the US, the creditors, in anticipation of the change of official currency from gold to silver, stipulated in their contracts that the basis for the payment in their contracts would still be on the basis of gold, notwithstanding an official change in official currency. The transformation of the official currency from gold to silver was upheld as against the efficacy of these contracts. The police power was upheld over this particular contractual stipulation. In the matter agrarian reform, essentially expropriation, it takes precedence over any existing agreements regarding any administration and ownership of the particular land subjected to expropriation. There is this old US case to the effect that this county entered in a long term water distribution agreement with a water distribution company. Well, during the efficacy of the 25-year arrangement the county was elevated to the status of a city and therefore could now expropriate. It expropriated the water pipelines that had been laid out by the water distribution company. When it complained that there was impairment of the contract between the former county and that company, well the power of expropriation or eminent domain was upheld as against the continuing efficacy of that contract. You know the rule on taxation that tax trumps everything. Tax is always made to prevail. There is this old old case of Cassanova v Court (Cant find the case) Facts: When the State, through government, entice foreign firms to engage mining activities here in exchange they would guarantee tax incentives and exemptions. Held: Well that particular contract could not be arbitrarily set aside as said by the SC. I doubt very much that this doctrine would still hold true today. For instance, fairly recently, maybe in the past 5 years, there was this case of PAGCOR v BIR G.R. No. 172087 March 15, 2011 Facts: PAGCOR was given, upon its requests, tax exemptions and incentives which it used for enticing foreign investors. In the middle of the game, the tax exemptions and incentives, were

removed by the Congress. They cried foul, impairment of their contract. Held: The Court was emphatic here. Per the taxation prerogative of the State preempts or prevails as against any reliance on the nonimpairment clause. All these cases would indicate na parang bali wala na yung non-impairment clause. Although, I would not conclude that categorically because the SC in that 2018 pronouncement in Provincial Busses Operators v Dept of Labor G.R. No. 202275 July 17, 2018 Insists that the non-impairment clause is still alive. However, it did not cite any jurisprudence as of late supportive of that particular pronouncement. SECTION 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. The essence of the Public Attorney’s Office is founded in this section. I publicly proclaim my admiration for the public attorneys in our jurisdiction Section 12. (1) 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. (2) 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. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families.

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Custodial Investigation Note that there is no mention in Sec. 12 of CUSTODIAL investigation. It merely speaks of any person under investigation for an offense. He/she shall have the so-called Miranda Rights – the right to be informed of the right to remain silent and to have competent and independent counsel preferably of his own choice. Next, the waiver has to be with the assistance of counsel voluntarily made. If he cannot afford the services of counsel, he must be provided with one. Jurisprudence tells us that these so-called custodial investigation rights apply even in the context of a Preliminary Investigation. Independently of that statement, be mindful of the FACTORS which would constitute a proper reliance on the particular rights under Sec. 12. These rights do NOT arise under a general inquiry as to culpability. Ordinary audit investigations – no Miranda rights. General assemblies where there is a basic questioning about certain anomalies and criminal activities – no Miranda rights. These rights are available to those who are already the FOCUS of the investigation. In other words – the suspect. This is the first factor: the one who can invoke these rights is the one who is the focus of the investigation. Second: There must be some measure of restraint upon the liberty of the person who is already a suspect. Factors 1. The one who can invoke these rights is the one who is the focus of the investigation; 2. There must be some measure of restraint upon the liberty of the person who is already a suspect. These two factors would comprise for a proper reliance on these rights. CASE 1: There is this branch manager suspected of certain anomalies for having malversed certain bank branch funds. There is a formal investigation and she submits a sworn statement in the course of the investigation where she, wittingly or unwittingly, makes admissions regarding her culpability. On the basis of that sworn statement, she is dismissed from her employment, and thereafter, criminal charges were filed against her. The principal evidence

would be the Sworn Statements submitted. She invokes these particular rights, i.e. that she was never assisted by counsel, or never informed of her right to remain silent. She was thus questioning the admissibility of the sworn statement. Well she invokes this particular right. She was not assisted by counsel, never informed that she had the right to remain silent for purposes of asking for the inadmissibility of her sworn statement against her. This is a measure against the government. That sworn statement was submitted in the context of a private disciplinary investigation in a private entity in fact. And therefore, these rights cannot be considered as being risen in the course of the same. Remember and you relate this to paragraph 2 of Section 12, the essence of this particular right is to more or less ensure that the might, the power of the state is not invoked for purposes of compelling, coercing, or intimidating, any suspect into making an extrajudicial confession or admission. Kaya no force, violence, threat, intimidation, etc. shall be invoked against against him. And that is the essence of this particular custodial investigation. So remember those three factors: 1. It must be a government investigation; 2. The person who invokes it/ these rights must be the suspect already and not among the many subjects of a simple general inquiry; 3. There is somehow a restraint in the liberty of the person invoking it. Let’s tackle the matter of Government. One case, People vs. Andan, this was asked two years ago. People vs. Andan G.R. No. 116437 March 3, 1997 We have to mention this again because of the nuances in the 2018 pronouncements of the Court. Here was this fellow who became the suspect as to the killing of a second year high school female student. She was cut. He was taken in the precinct and without first being informed of his miranda rights, well he did make admissions as to his culpability, and even disclosed the location of the knife he used to murder that unfortunate sophomore student. So they went into his house and found, and retrieved, and seized, that particular knife. Well after making that admission, without the miranda rights first applied in his favor, he was placed inside a cell. When he was behind bars, he was interviewed by a television reporter where he 137



again made admissions. And thereafter he requested an audience with the mayor who maybe was his friend and in “close-door” behind a close-door conforence, he admitted again to the mayor his culpability. After that the mayor opened the doors of his office and then in came the reporters. He was asked again by reporters, and he made the admissions anew. Four admissions, but only the first would have given rise to the miranda rights protection. Because it was only the first where there was an actual government investigation which went on, he was the focus of the investigation, and his liberty was restrained.

the admissions. The barangay chairman is also authorized to investigate. Therefore, if he did not apply the Miranda rights, all those admissions made by X in the course of his investigation will be inadmissible.

Well the other three class, two words, res gestae. Even if he was behind bars, and restrained and liberty niya, the one who asked the question was not government, he was a television reporter. Therefore, res gestae. Well, the mayor concededly class, is competent to conduct an investigation and can be considered as government for purposes of our present discussion. But in that particular case, he was not in the exercise of his authority to investigate. He was listening to a friend. Therefore, the statements disclosed to him is res gestae. Of course, obviously, the final press statements during the press conference after, the doors were open considered as well as res gestae.

People v Gil GR 172468 Oct. 15, 2008 Same principle applies with respect to admissions without Miranda rights before a barangay tanod, because tanods also investigates.

People v Pepino GR 174771 January 12, 2016 Note the nuances offered in the most recent pronouncements in the case of People v Pipino.

BUT NOTE: Barangay kagawads/councilman is not a government officer for purposes of custodial investigation. Because barangay kagawads are not authorized to investigate. Therefore, admissions made to them would be admissible in the context of res gestae.

SIR: Even if the statements were upon questioning of press reporters, if the situation were such that right beside the one who would make the admissions were police officers, and there would be any indication that during those press interviews, the police officers would be offering or doing some measures that is coercive or intimidating to the declarant, so that the declarant would reiterate what he had earlier said by way of admissions to the police officers in the course of investigation, that intimidation or coercion could nullify those particular statements ESPECIALLY if shown that the Miranda rights were not read to him before he made those particular statements. SITUATION: Arson committed in a community. The entire community was burned down. So sinabi si X may kasalanan, the barangay chairman summoned X sa barangay hall. X made

People v Mayo (I can’t find the case citation L ) Note that under the same situation (as promulgated in People v. Mayo), nakaupo si X after the questioning done by the brgy. chairman. May chismoso na kapitbahay who asked X what happened. X admitted what he did — res gestae, therefore admissible.

Miguel v People (Bantay Bayan case under Search and Seizure discussion) For purposes of unreasonable searches and seizure, bantay-bayan has been considered as government and therefore the rules against unreasonable searches and seizures were made to apply against them.

Now, NBI is authorized to investigate. NBI summons and subpoenas the complainant and respondent. Respondent honors the subpoena. (NBI HQ in Taft) As soon as the meeting starts, the NBI agent told them “ayusin nyo yan”. The NBI agent left for them to talk and then after a while, the NBI agent was called kasi nagkaayos na un parties and may compromise agreement na. NBI agent checks, sees if it’s signed and then pinauwi na un parties. Let us say the respondent reneged in his obligation under that agreement (where he made an admission to the fact that he defrauded complainant). (cont.) Recall the NBI agent. “Boss. Nag-ayos na po kami, meron na kaming compromise agreement. O napirmahan niyo na? Okay na kayo? Uwi na kayo.” Well, let us say that thereafter, the 138



respondent reneged on his obligations under that agreement. In that agreement, he made an admission as to his having defrauded the complainant. Later on, he reneges on his monthly obligations and the complainant decides to file a criminal case against him invoking that particular compromise agreement. Recall that the declarations there were done voluntarily and not in the course of an investigation therefore, those declarations there of admissions should be considered as admissible against the respondent in this particular case. This case of People v. [German surname] involving a German lady who was about to leave until the metal detector detected something. There were drugs, etc. She was in a hurry and the police officers came and told her na, “pumirma ka lang ng sworn statement na ito na you’re acknowledging that this is your maleta then you can go.” So she did sign it. That particular admission in that particular statement = INADMISSIBLE precisely because she was NOT “Mirandized” before. Actually what happened to her after executing that sworn statement, niloko siya at dinala siya sa NBI. Anyway, INADMISSIBLE against her. However, remember that the inadmissibility of these extrajudicial admissions and confessions as provided for in this exclusionary rule prescribed in paragraph 3 of Section 12, can be OVERRIDEN by other competent evidence such as the case of this German lady. Yes, the sworn statement was not admitted in evidence against her but the object evidence was. The fact that there were witnesses who testified that the maleta was hers, etc. Line-ups People v. [inaudible]. An old case reaffirmed in so many other cases after it would tell us that the line-up is NOT a part of custodial investigation and therefore, Miranda rights NOT YET available at that point. Note the qualifications prescribed in recent jurisprudence (2018). Upon arrest, there is a press conference. The suspect is wearing yellow/orange and introduced to the media. After the presscon, the following day there will be a police line-up. At this point, the victims/complainants would be asked to identify them.

THERE IS A DIFFERENCE. In that particular line-up which comes after the press conference, there are already Miranda rights available to the accused there. Change the situation, there is a line-up before the press conference. There are still no Miranda rights available there because that line-up which precedes the investigation, certainly, is not to be considered as part of the custodial investigation. But when the accused had already been arrested, they are already suspects introduced to the press and then subsequent to the press conference there is a line-up. In that particular line-up, the custodial investigation rights are already available. Art. III Section 12. (4) The law shall 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. Apart from the additional fact that there is par. 4 which requires compensation to the family of the victims of torture and similar practices. There are laws which would provide for damages in favor of those people whose rights under Sec. 12 would have been breached. For instance, there is a law which says that if there violation of this rights – up to Php 10,000 can be awarded as damages. In Anti-Terrorism Law/ Human Security Act, it provides that if you’re unlawfully detained and subjected to violations of custodial investigation rights, you would be entitled up to Php 500,000/day worth of damages subject to appropriations. (but of course, the Congress would never make such appropriations for that particular provision.) The matter of waiver – voluntarily, freely done with the assistance of counsel. (Sir points out something that he is curious about) In one of these cases, there is this law which contains a clause which says that if the assistance of counsel is difficult to obtain in farflung places, the assistance of the mayor, judge, priest or parents/elders may be invoked for purposes of validating the voluntary confessions made.

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Sir’s POV: I find that of doubtful constitutionality because the word which appears in par. 1 of Sec. 12 is assistance of counsel. It’s okay if the mayor/priest/etc., were a lawyer. (of course, judges are lawyers) But on their own per se, I don’t know if they could validly assist in the context of these Miranda rights prescribed in the Constitution. Bail Art. III Section 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable 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. Remember: 1. Bail is a matter of right before and after conviction in the lower metropolitan/ municipal trial courts. 2. It is a matter before conviction in the RTC but after conviction then it becomes a matter of discretion. Invariably, RTCs have invoked this tough-against-bail policy. There is no such things as constructive bail. People v. Valero – Based on the PRESCRIBED PENALTY not imposable penalty. “Reculsion Perpetua or higher” What is the basis for the granting of bail? Would it be based on the prescribed penalty or the imposable penalty as in indicated in the information? Example, the offense indicated in the information is punishable by Reclusion Temporal in its medium to the maximum period but there are aggravating circumstances such that it would be elevated to RP. Do you base the assessment of bail on the prescribed or imposable? Prescribed. Why? Because you cannot determine the penalty to be imposed until after the trial. Sir: on the matter that there must always be a hearing before the bail. Hindi totoo yun. Just go to the courts. Nahuhuli lang minsan yung mga judge. Na-aadministrative case sila. Because if they actually conduct hearing for bail for all cases, wala na sila matatapos. So at the very least pro

forma lang. But you can insist on a hearing as a matter of right. Remember that if there is a denial or granting of the plea for bail, especially if there were a granting of bail, it’s non-sequitur with respect to the prior determination of probable cause. Just because bail was granted on a non-bailable case, the accused, now out on bail, cannot insist that that is a clear indication that there was no sufficient probable cause which would’ve warranted the filing of the criminal complaint to begin with. Probable cause as a standard for the filing of an information in the context of preliminary investigations is different from the quantum of proof for the granting or denial of pleas for bail. Based on Napoles v. Sandiganbayan (G.R. No. 224162, Nov. 7, 2017) the proper term is not probable cause but “proof evident, presumption great.” Leviste v. CA G.R. No. 189122 March 17, 2010 These two terms are non-sequitur. A granting of bail should not be considered an indication that the probable cause determination in the preliminary investigation which led to the filing of the information would’ve been inadequate. Rights of the Accused Section 14. (1) No person shall be held to answer for a criminal offense without due process of law. This is already covered in the general concept of due process, but this is focused on criminal cases. This is a catch-all defense for clients who may be accused—a measure against any form of arbitrariness in criminal proceedings. Inordinate delays can be founded in Sec. 14, Par. 1. The matter of speedy trials can also be founded in this paragraph. The matter of quantum of evidence (i.e. proof beyond reasonable doubt) is justified because of this paragraph. The preliminary investigation is not a constitutional right; it is merely statutorily conferred. But if this statutorily prescribed right were to be disregarded, you can raise a constitutional challenge based on Sec. 14, Par. 1, the right to criminal due process.

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Presumption of Innocence People v. Opida G.R. No. L-46272 June 13, 1986 The scales of justice must hang equal. No less than proof beyond reasonable doubt, which is the highest quantum of evidence prescribed in any proceeding in our jurisdiction, should be necessary for the purpose of conviction. People v. Tentongko G.R. No. L-69668 October 2, 1986 While the accused may have been lying, and there is proof of this fact, the SC said it was not convinced that the complainant was telling the truth. This would indicate that it does not really matter if the defense evidence were weak. What really counts for purposes of overcoming this presumption of innocence would be the strength of the evidence of the prosecution which must be acquainted with that concept of proof beyond reasonable doubt, [definition of which is] moral certainty. Trillanes v. Pimentel G.R. No. 179817 June 27, 2008 Presumption of innocence prevail until final conviction. Excerpt: The rule stands that until a promulgation of final conviction is made, the constitutional mandate of presumption of innocence prevails. [The concept of presumption of innocence is one of the “baduy” concepts. However, they are baduy because they are the most essential. For example, because of this concept of presumption of innocence, there are numerous acquittals effected in the Supreme Court. This is because there had been engendered reasonable doubts. This is also the reason why, if there are lapses in the chain of custody, an evidentiary requirement prescribed in the Dangerous Drugs Act, even if tested against the presumption of regularity, the presumption of innocence would still prevail. The accused would still be considered as innocent; therefore, despite countervailing evidence, he would be acquitted.] However, it is still a presumption. It can be effectively rebutted by competent evidence. Often, problems here would arise with respect to it being tested against other presumptions under the law. For example, presumption of innocence

would often be challenged by the presumption of regularity. •

Look at the facts and find out if the officers are found not to have been motivated by any ill-will, malice, or bad faith. Certainly, the presumption of regularity can be made to prevail against presumption of innocence, but, invariably, if one would weigh the cases, it would always still be the presumption of innocence which would be weightier, as against the presumption of regularity of performance of official functions.

Two other important presumptions: 1. Flight. a. Flight results to presumption of guilt. b. Therefore, if someone flees, then the constitutional presumption of innocence, necessarily, would be affected. However, jurisprudence also provides that staying or returning to the scene of the crime, does not guarantee the presumption of innocence. There is no presumption of innocence there. This is because it has been the style of the criminals to return to the scene of the crime, in order to purport themselves as innocent. There are two cases to that effect: Well, of particular interest to me, dito ko lang nakitang inaapply ang presumption na ito. If you are caught in possession of the stolen goods, then you are presumed to have stolen the goods. That particular disputable presumption was precisely applied in this recent case about a week after the commission of the robbery. Here were the accused who were found in possession of the stolen goods. That particular presumption of having committed the crime was applied against them. Of course, there was also supportive evidence of the fact that they actually were the robbers. There was a good discussion here by way of application of that particular disputable presumption, which in this case was admitted as against the presumption of innocence. Section 14. (1) No person shall be held to answer for a criminal offense without due process of law. (2) 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 141



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 arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. The right to be heard by himself and counsel The right to be heard by himself and counsel. Of course, needless to state, this is applicable even to the deaf-mute and I do not jest in this regard. Recall the two cases in far-flung courts that there were these two accused, separate cases, who were deaf-mutes. The judges in those cases, it was clearly shown that they exerted best efforts to obtain the services and assistance of the signlanguage experts. Futile ang best efforts ng judge. After times of trying, the judge just decided finally to proceed to continue with the trial and the deaf-mute accused were both convicted. The Supreme Court annulled those convictions because they would have been in violation of his right to be heard by themselves and their counsel. Remember that this particular right, needless to state, includes to present evidence. Remember that this right has been considered as immutable in the context of criminal cases. The recent bar examination question in political law asked if the right to counsel is a constitutional right when it comes to administrative proceedings - of course not. The right to counsel and the right to be heard by himself and by counsel is immutable only in the context of criminal cases. It is also available, like the presumption of innocence, until also final conviction. Let me just point out the case of Estrada who, in the middle of the plunder trial against him, fired all of his counsel de-parte sila Flaminiano, Saguisag, etc. The Supreme Court commended the Sandiganbayan for having insisted and appointed the public attorneys who were then present to act as counsel de-officio over the strong objections of the public attorneys precisely

because they are supposed to represent the poor. In this particular case, the accused they represented de-officio was a plunderer, a billionaire. Well, the Supreme Court commended the Sandiganbayan. Precisely, it is by way of recognition of the importance of this particular right. This is immutable in criminal cases. People v. Ching Chan Liu G.R. No. 189272 January 21, 2015 The latest pronouncement here will be that case of People v. Ching Chan Liu. Ito yung mga smugglers na nakitang doing their smuggling activities. I could never understand "laot" which means near the shore. Nakita sila sa laot, which means near the water. These Chinese when they were apprehended, they said two sentences. “Call China. Bring money.” Throughout their incarceration, throughout their trial that was the only thing they keep repeating. The judge would show, and this is reflected in the records, to have exerted best efforts to look for a counsel for them who could speak their language. But each time, these Chinese nationals consistently rejected the offer of legal assistance. This is a departure from the two cases I mentioned. Here, when the Chinese smugglers were finally convicted, on appeal, they raised the right to be heard and right to counsel. SC disregarded precisely because the records show, the zeal of the judge in exerting best efforts, to make available to them a counsel. The court emphasized that they unreasonably rejected each offering done by the trial judge. In this particular case hindi applicable yung right to be heard and counsel. People v. Chin Chan Liu Right to be informed of the nature and cause of the accusation against him When I was a new practitioner, when I would defend an accused in criminal cases ang usual manifestation at the start, People v. Jepoy (example) “I represent the accused in this case, the accused has read the information against him, he has understood the contents thereof and he is entering a plea of not guilty. We are ready for trial your honor.” That is valid arraignment back then. This is no longer allowed today because the in light of the right to be informed of the nature and cause, essentially must be done in the course of an arraignment where it is now required for the actual information to be read and understood by the accused. The judge must ask 142



probing questions as to whether or not he fully understood the allegations and information against him. And only if the judge is satisfied, can the accused enter a plea and considered valid. Three reasons why this right is available: 1. To apprise the accused as to the character of the charges he would be facing 2. For the purpose of enabling him to come up with a proper defense if he so wishes. These are purposes for him to secure either his conviction or acquittal because he may want to plead guilty. 3. To apprise the judge, the court, for purposes of enabling him to act accordingly as to how to proceed. He must understand the charges. Basic rules Always go by the description of the offense. Do not go by the designation. So if there was conviction on the basis of specific allegations in the complaint Aeven if the conviction would be not in consonance with the designated offense what is controlling is the body or the description of the offense in all instances. For instance, for violation of Par. 2 Art. 171 but the allegations in the complaint but the allegations in the complaint spell out a violation of par. 1 of Art. 171. Even if par. 2 would have been indicated in the designated offense, if proof were consistent with par. 1 in the body of the information then there is no violation of the right to be informed of the nature and the cause of the accusations against him. For instance, the designated offense is homicide filed properly with the RTC but the body of the information would have indicated the attendance of the crime with these qualifying aggravating circumstances of treachery, nocturnity, abuse of superior strength in the designated offense. Kahit na homicide pa ang nakalagay sa designated offense, kapag naprove ang basic allegations providing for these aggravating circumstances, there is no violation of the right to be informed of the nature and the cause of the accusations against him. Even if the specific words “aggravating circumstances” would not be present in the body of the information, so long as the actual aggravating circumstances are properly alleged, then if there were conviction on the basis of the

aggravating circumstances and therefore qualifying it to a higher penalty, there would be no violation of this right to be informed. Conversely, if there were no allegations as to aggravating circumstances but they were later on proved in the trial, there can be NO appreciation of the PROOF of aggravating circumstances for purposes of the criminal conviction. But note, even if not alleged, provided the aggravating circumstances are proved, those aggravating circumstances as proved can be invoked by the judge for purposes of qualifying the amount of damages that can be awarded so long as the aggravating circumstances not alleged but proved would not go into the conviction. The award of the damages can include as factors the aggravating circumstances. This is consistent with the ruling that civil liability is deemed incorporated in civil liability in criminal actions. Impliedly instituted ang civil liability in accordance with Rule 111 of the Rules of Court and Art. 2177 of the Civil Code on double recovery on torts and damages. Two other points that are important here. The matter of the absorbed crimes. This is also important when we tackle double jeopardy. For instance, the accused is charged with selling or pushing drugs. Let us say that one of the elements of the sale of drugs is not proved. The judge, however, convicts him of possession of drugs. Can the judge convict based on possession? Yes. Possession is absorbed in the crime of smuggling so you see these are inseparable. Be mindful of the facts presented to you. For example, a buy bust and he was in possession of sachets of shabu, the guy can be convicted for the possession of the drugs intended to be part of the same, there can be no conviction for the drugs seized AFTER which if not alleged in the information cannot be the subject of the so-called absorption. There would have to be separate charges filed for the other sachets of shabu found on his person after the buy bust was done. People v. Valdez G.R. 175602 January 18, 2012 He was convicted for murder. On appeal to the SC, one of the elements was found by the SC as not adequately proved. He was convicted for homicide. The SC said it would not violate the

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right to information since the offense of homicide is necessarily included in murder. Variance Rule: If there were a variance between the offense charged and the offense proved, but the offense proved necessarily includes or is necessarily included in the offense charged, then the accused can be convicted for the offense proved which necessarily includes or is necessarily included in the offense charged. Other examples on the Variance Rule. -

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Accused of rape with intimidation: It was proved that the victim was raped while she was asleep. There is a violation there if he was convicted for rape while asleep because there would have been a different defense. Homicide by stabbing but the records show homicide by drowning. The variance there is not acceptable. That would result in a violation of the right to be informed of the nature of the cause of the accusation against him.

People v. Arcillas G.R. 181491 July 30, 2012 The charge was for qualified seduction while the element of the crime that is essential there is that it be committed by a relative. In this case, the accused was the stepfather. The evidence showed that mother and him were never married so indeed there was a common law relationship. There was a conviction for qualified seduction. SC said INVALID. There is inconsistency between the offense charged and the evidence proven therefore there is a violation of the right to be informed of the nature of the cause against him. Speedy Justice Art. III Section 14. (2) In all criminal prosecutions, the accused shall…enjoy the right to have a speedy, impartial, and public trial[.] From the foregoing, it is apparent that the concept of speedy justice applies only to criminal cases. The larger or greater right, however, is found in Art. III Sec.16.

Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. An administrative proceeding as provided for in Sec. 16 would refer to the matter of a preliminary investigation. Magante v. SB G.R. No. 230950-51 Jul. 23, 2018 2 informations were filed against Petitioner for falsification of public documents. Thereafter, Petitioner filed a MTD on the ground that inordinate delay attended the conduct of the preliminary investigation of his alleged crimes, in violation of his right to a speedy disposition of cases. It allegedly took 7 years, from the commencement of the fact-finding investigation for the Omb. to issue its Resolution directing the filing of 2 separate informations. This was denied by the Omb. The Supreme Court ruled that the broad protection provided by the right to speedy disposition embraces the periods before, during and after trial. Thus, it can properly be invoked even as early as preliminary investigation, even before the investigating officer renders his ruling on the determination of probable cause. Cagang v. SB G.R. Nos. 206438 Jul. 31, 2018 The Omb.’s received of a tip and of anomalies in the finances of the provincial government of Sarangani in 2003. An audit was conducted by the COA in 2003. A criminal case for malversation through falsification of public documents was filed against Petitioner (and 4 others) in 2005. SB acquitted Petitioner in 2010 for insufficiency of evidence. But another information was filed against Petitioner in 2011 for violation of RA 3019. Petitioner then filed a Motion to Quash/Dismiss with Prayer to Void and Set Aside Order of Arrest. This was denied by the Sandiganbayan. Petitioner argues that the denial of his Motion violated his right to speedy disposition of cases. The Supeme Court ruled that considering that fact-finding investigations are not yet adversarial proceedings against the accused, the period of investigation will not be counted in the determination of whether the right to speedy disposition of cases was violated. Thus, this Court now holds that for the purpose of determining whether inordinate delay exists, a case is deemed to have 144



commenced from the filing of the formal complaint and the subsequent conduct of the preliminary investigation. In People v. Sandiganbayan, Fifth Division, the ruling that factfinding investigations are included in the period for determination of inordinate delay is abandoned. 3 basic rules to speedy justice: 1. Fixed period rule - if there is a statutorily provided deadline for decisions in cases, it must be followed. Beyond the deadline, it may be considered as inordinate delay. This is practiced in our jurisdiction e.g. laws provide that drugs and kidnapping cases must be resolved within 90 days. These statutory deadlines have also been adopted by the Supreme Court in its Rules as to avoid inconsistency. 2. Demand-waiver rule - The reckoning of inordinate delay commences upon the affirmation of the right to speedy justice. All periods prior to the making of the demand for speedy trial would be considered as waived 3. Balancing-of-interest rule - Factors in the reasons for the delay, whether it is imputable to the accused, respondent, or defendant. This primordially applied in our jurisdiction. Since you have time, I suggest you read the case of Cagang v. Sandiganbayan. The earlier case here, would be the case of Magante v. Sandiganbayan July 23, 2018. Remember, there are other speedy justice concepts in the Constitution. 1. In Art. VIII, Sec. 5 - the matter of changes of venue and temporary detail of judges intended also to speed up justice. 2. In Art. VIII, Sec. 5 (5) - Even the Rules of Court are required to prescribe speedy justice. 3. In Art. VIII, Sec. 15 - deadlines are prescribed for promulgation of judgments by courts. a. 24 months for the SC b. 12 months for collegiate courts and, c. 3 months for trial courts d. Sandiganbayan - by resolution of November 2001, the Sandiganbayan, although a collegiate court, the deadline is 3 months. It is considered, merely for this purpose, as a trial court. This would be consistent with the

authority of the Supreme Court as indicated in Art. VIII, Sec. 15 to further the reduce the deadlines prescribed there. 4. Art. IX-A, Sec. 7 - deadline for the Constitutional Commission adjudications - 60 days from the submission for decision. All of these are speedy justice concepts in the Constitution. Impartial tribunals This is due process. In criminal due process, the case of Dy v. People, another case wherein the rule na impliedly instituted yung civil aspect sa criminal case. Dy v. People G.R. No. 189081 August 10, 2016 In this case, the court adjudicated on the civil liability on the basis of a contract that was proved during the criminal trial. According to the SC, that is NOT part of the civil liability impliedly instituted in the criminal action. That proof and adjudication on the separate contract should have been the subject of a separate civil action and could not have been incorporated in that criminal proceeding. So criminal due process is also involved there. Public Trial I cite three cases here. 1. Libel suit of Cory Aquino against Philippine Star 2. Plunder case of Estrada 3. Ampatuan murder cases (still awaiting decision) In the Cory Aquino case, the press insisted that they should be allowed to cover the proceedings, and for the purpose invoked this right to trial as provided in Art. III, Sec. 14 (2). The court correctly made it clear that this right is the right of the accused and cannot be invoked by the press. It’s very simple so denied. But later on Justice Vitug in his ponencia in the Estrada plunder case where the press similarly insisted that it should be given the right to cover the Estrada plunder trial. The SC tempered the right of the accused to a public trial and the right to freedom of the press and arrived at a win-win situation. The press was allowed to cover but not 145



on the basis of Art. VIII Sec. 14 (2) but rather on the basis of freedom of expression. So you will note, they still feature footages on the plunder trial of Estrada permanently naka-train lang yung camera from outside the courtroom toward the bench… Towards the bench, but there was no interview, there was no panning of the camera to the left, panning to the right, no embellishments, just a simple coverage. And the same principle obtains today in the Ampatuan mass murder case, but it was already more high-tech. Freedom of the press includes the freedom to a competent livestreaming because of the parameters, but of course with parameters. Right to Compulsory Process Article III, Section 14 (2) In all criminal prosecutions, the accused shall enjoy the right to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf… Included also is the right to compulsory process to securing attendance of the witnesses and reproduction of the witnesses for his behalf. This includes requests for Subpoena and subpoena ad testificandum. Joey Marquez v Sandiganbayan G.R. Nos. 187912-14 January 31, 2011 This case involves the Joey Marquez case as mayor of Paranaque. When he made a request for the inspection of the signature of the question vouchers, he wants to refer to the division of Camp Crame which holds the document. Sandiganbayan denied this request. The Supreme Court reversed the Sandiganbayan, holding that this is a right covered by Section 14, Par 2, Art III. Ratio in the case: In the conduct of its proceedings, a court is given discretion in maintaining the delicate balance between the demands of due process and the strictures of speedy trial on the one hand, and the right of the State to prosecute crimes and rid society of criminals on the other. Indeed, both the State and the accused are entitled to due process. However, the exercise of such discretion must be exercised judiciously, bearing in mind the circumstances of each case, and the interests of substantial justice.

Fitness by Design v Commissioner of Internal Revenue GR No. 177982 October 17, 2008 The other case is a tax case. This is a CTA case, wherein the appellant insists that he has right to compulsory process of production of evidence because there is a parallel preliminary investigation in the same subject covered by the CTA proceedings. The Supreme Court disagreed. This is a right of the accused, and cannot be availed of as an absolute right in the context of taxation proceedings pending before the CTA. Do not confuse the preliminary investigation with the rights of the accused. Insist your client to still participate in litigation even if they do not want to. It is provided in Par 2, Sec 14, how trial will proceed notwithstanding the absence of the accused, provided that he has been duly notified and that his failure to appear and his failure to appear is justifiable. Trial in absentia may be invoked, when the accused waives his right to be present in his trial. But do not confuse this with the Court’s entitlement to forfeit your bail. Tell your client to appear before the court when your trial is called, and stand to register your attendance. You will ask him and you will tell him that when his name is called, you will stand and register your attendance. You will go the front and sign the constancia. If he does not do those things, a bench warrant can be issued as against him and his bail can be considered forfeited. Non sequitur yan. Section 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable 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. Kahit na lawful ung arrest mo, later on, you can still sue for habeas corpus. For example, if a plea for bail would have been arbitrarily rejected by the court, then that transforms the deprivation of liberty to unlawful restraint and therefore, habeas corpus is justified.

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In criminal cases, habeas corpus can also be applied for. For example, the penalty is reclusion temporal medium to maximum, but later on [in a subsequent law], the penalty to be imposed is only prision mayor, eh di prision mayor na ang service of sentence mo. Therefore, ex post facto law, favorable to the accused. You can sue for habeas corpus, securing your release. By reason of the subsequent law, resulting in a lower penalty, your continued detention should be and can be the proper subject of a petition for the writ of habeas corpus. Article VII Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within fortyeight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. I would like to stress that this is not necessarily in connection only with political criminal offenses of rebellion and invasion. Even the Rules of Court provide for habeas corpus as remedy in cases of the conflicts of the custody of children. Any unlawful restraint of liberty is subject of a petition for writ of habeas corpus. Be mindful of the Calderon cases. Manalo v. Calderon G.R. No. 178920 October 15, 2007 Facts: Soldier placed under restrictive monitoring – restrictive movements. When they were subjected to such orders by their superior, they

sued for habeas corpus, claiming that there was a restraint on their liberty. Held: The SC said no. You are soldiers so your remedy is by exhaustion of administrative remedies. You question your superior officers restricted to barracks, strict monitoring of movements pronouncements – then go to higher superior officers. No restraint on liberty, therefore, no habeas corpus allowed. In the Matter of the Petition of Habeas Corpus of Eufemia E. Rodriguez G.R. No. 169482 January 29, 2008 Facts: An octogenarian in the care and custody of her nephew. While the nephew was away, the other cousins took the octogenarian and started taking care of her in their homes. Nephew sued for habeas corpus. Held: SC said that there is no restraint of liberty in this case. Osorio v. Navera G.R. No. 223272 (Resolution) February 26, 2018 Facts: A soldier was charged for kidnapping and was tried before the RTC. SSgt. Osorio mainly argued that courts-martial, not a civil court such as the Regional Trial Court, had jurisdiction to try the criminal case considering that he was a soldier on active duty and that the offense charged was allegedly "service-connected." Ratio: SC held that a writ of habeas corpus may no longer be issued if the person allegedly deprived of liberty is restrained under a lawful process or order of the court. The restraint then has become legal. Therefore, the remedy of habeas corpus is rendered moot and academic. Contrary to SSgt. Osorio's claim, the offense he committed was not service-connected. The case filed against him is none of those enumerated under Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of the Articles of War. Further, kidnapping is not part of the functions of a soldier. Even if a public officer has the legal duty to detain a person, the public officer must be able to show the existence of legal grounds for the detention. Without these legal grounds, the public officer is deemed to have acted in a private capacity and is considered a "private individual." The public officer becomes liable for kidnapping and serious illegal detention punishable

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by reclusion perpetua, not with arbitrary detention punished with significantly lower penalties. In re Salibo v. Warden G.R. No. 197597 April 8, 2015 In relation to the ampatuan murder cases, Salibo was mistaken to be Butukan S. Malang who was charged with 57 counts of murder. In summary, Salibo was subject to a case of mistaken identity and consequently arrested and detained because of it. Ratio: The SC ruled that Salibo was not arrested by virtue of any warrant charging him of an offense. He was not restrained under a lawful process or an order of a court. He was illegally deprived of his liberty, and, therefore, correctly availed himself of a Petition for Habeas Corpus. The Information and Alias Warrant of Arrest issued by the Regional Trial Court in People of the Philippines v. Datu Andal Ampatuan, Jr., et al. charged and accused Butukan S. Malang, not Datukan Malang Salibo, of 57 counts of murder in connection with the Maguindanao Massacre. Because of which, Habeas corpus is the proper remedy for a person deprived of liberty due to mistaken identity. In such cases, the person is not under any lawful process and is continuously being illegally detained. The Right against Self-Incrimination The latest pronouncement here is a 2018 (2017 when I checked) case OCA vs. Judge Yu. OCA vs. Judge Yu A.M. No. MTJ-12-1813 March 14, 2017 She was investigated for an administrative proceeding and she invoked her right against self-incrimination. This is available only against testimonial compulsion. In this particular case, she was asked to produce documents that was not covered in that perspective. Second, it cannot be invoked in non-criminal matters. It is clear that problem you may face must focus on that two essential points: It does not cover object evidence or evidence which can be obtained in the bodies of the persons subject to the inspections. 2. It is available only as against testimonial compulsion and in the context of criminal cases.

A little discussion on Object Evidence. Be mindful of the cases cited in the textbook. For instance, the extraction of a small amount of blood to determine the level of intoxication of the one who figured in a vehicular accident to determine culpability. There is no violation against this right against self-incrimination. For medical examination of the blood of an accused to determine whether he has STD because the victim contracted gonorrhea by reason of the rape. A connection was sought to be established. That is not in violation by way of the violation against the right of self-incrimination. Remember the nuance in Beltran vs. Samson. Beltran vs. Samson G.R. No. 32025 September 23, 1929 Requiring the handwriting amounts to his testimonial compulsion. It does not require a simple mechanical act. It requires the utilization of mental capabilities therefore the use of mental capabilities partakes the character of testimonial therefore protected under the right against selfincrimination. This right (against self-incrimination) is available at the outset and absolutely in favor of all accused. Situation: Congress sending subpoena for the accused to appear in connection with a legislative investigation. • • •

The right cannot be invoked for the purpose of snobbing or rejecting the subpoena issued by Congress He must appear under pain of legislative contempt It is only upon his appearance that he can invoke the right, but he must honor the subpoena

Insofar as other witnesses are concerned: •

1.

•

The right is available only as and when the incrimination question is propounded All other questions may not be rejected by an ordinary accused. Only incriminating ones may be rejected.

If the question is no longer incriminating: •

He can be compelled to answer

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Instances (when the right cannot be invoked): o If the question pertains to a matter that had already been the subject of a prior conviction of acquittal (double jeopardy already attached) Thus, the response cannot incriminate him o The accused had already been granted immunity through processes prescribed by law. So immune already from the crime o If the question would tend to embarrass him or involve him in certain civil liabilities.

Sir’s example #1: Rapist. Defense is erectile dysfunction. Can he be compelled to take the witness stand, disrobe, and attach a bell on his you-know and then display Anne Curtis in front of her in a bikini to detect if there would be a reaction. If the bell rings, can that be considered object evidence? • •

To begin with, that accused cannot be compelled to take the witness stand But then this is object evidence.

Note: Is it possible to extract semen from a male without masturbation? Prof does not think so. So if an erection is forced – is this violative of the right to self-incrimination? Prof thinks that it would be violation against the person of the accused by forcing it to have an erection. The Prof would consider that as arbitrary and therefore offensive to the Constitution. But not necessarily on the basis on the right against self-incrimination rather on the basis on the right to criminal due process as indicated in art. III, sec. 14 (2). Article III Section18. (1) No person shall be detained solely by reason of his political beliefs and aspirations. (2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted. Correlate Art. III Sec. 18 (1) with Art. IX-C Sec. 10 Bona fide candidates for any public office shall be free from any form of harassment and discrimination.

Involuntary Servitude (Sec. 18 (2)) •

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The important thing here is the matter of compulsion/coercion. If voluntary servitude includes the concepts of slavery, peonage. Peonage – labor in a condition of servitude to extinguish a debt.

Imbong v. Ochoa G.R. No. 204819 Apr. 8, 2014 Recall the provision in the RH law which was upheld by the SC. If you are a medical practitioner who wishes to be accredited with the PhilHealth, you must render 48 hours pro bono medical service. The doctors challenged this as being offensive against this right to involuntary servitude. The argument was rejected by the SC because there is no compulsion here. The law merely prescribes an incentive for accreditation. If you want to be accredited, then you give pro bono work; if you don't want, then you don't. No one is being forced. Note: The notion of involuntary servitude connotes the presence of force, threats, intimidation or other similar means of coercion and compulsion. A reading of the assailed provision reveals that it only encourages health care service providers to render pro bono service. Other than non-accreditation with PhilHealth, no penalty is imposed should the choose to do otherwise. Clearly, no compulsion, force or threat is made upon them to render pro bono service against their will. While rendering of such service was made a prerequisite to accreditation with PhilHealth, the Court does not consider the same to be unreasonable burden but rather a necessary incentive imposed by Congress in furtherance of a perceived legitimate state interest. Case of Involuntary Servitude If someone pays you in advance for a performance of a contractual obligation. There is this particular law that under such circumstances, the advance payment shall be prima facie evidence of fraud or intent to defraud, therefore could be a subject of criminal prosecution. That was considered as violative of the right against involuntary servitude. (Poloc v. … [Inaudible]) There are 6 exceptions against this right against involuntary servitude. Instances where there can be compulsion to render service.

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1. Article III Sec 18 Par 2. (2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted. 2. Article II Sec 4 – The Defense of the state. We can all be, under the reasonable conditions prescribed by law, compelled to render personal military or civil service SECTION 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service. 3. Posse Comitatus under the Rules of Court If there were only one officer against several criminals at any given time, the officer may enlist the assistance of all able bodied persons, men or women to assist him in the apprehension of the criminals. This is allowed involuntary servitude. 4. Naval Enlistment When you sign up for maritime work, you cannot just quit in the middle of the voyage. (How will the ship return to the land?) So, you can be compelled to work under this circumstance. 5. Under the Labor Code, vital industries if there were strikes there can be return to work orders. 6. Patria Potestas (or Parental Authority) Parents can impose to their children certain form of servitude. Although involuntary, that is allowed. (Sir’s Example: “Gusto mo mag raid party sa MOA? Linisin mo muna kwarto mo!” Another example is Sir’s household chore) Article III, Section 19 Section 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall the 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. (2) The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law. Maturan v COMELEC G.R. No. 227155 March 28, 2017 Facts: This case is about the “Cruel, Degrading and inhuman punishment”. This guy did not submit his statement of contributions and expenses. He was found guilty and was sentenced to absolute disqualification from public office. He invoked this provision. Ruling: The SC said that this applies only to corporeal and psychological punishment and certainly does not apply in the matter of imposing a perpetual absolute disqualification in connection to election offenses. Another concern here is something we discussed when we talked about treaties, international law principles and municipal law. Recall that our Congress has the Sovereign Constitutional competence to impose the death penalty for heinous crimes if there are compelling reasons therefore. So let’s see how it plays out if our Congress reimposes death as a penalty because this would have to be tested in line or as against the incorporation clause indicated in Art II Sec 2. Article III, Section 20 Section 20. No person shall be imprisoned for debt or non-payment of a poll tax. This section prescribes no imprisonment for nonpayment of a debt or poll tax. Poll tax or cedula is still important. Community Tax certificate is still needed for certain legal documents like extrajudicial settlements of estate (you put there not just your TIN no. but also your Community Tax Certificate). The point here is that there’s no imprisonment if you don’t have one or if you don’t pay for this particular tax.

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This “non-Imprisonment for debt” concept is an important provision with regard to old and recent developments in our jurisdiction.

lies the difference if and when this matter is challenged, my thinking is that it would be upheld by our SC.

Sura v Martin G.R. No. L-25091 November 29, 1968 Facts: This is an action for support. There was a judgment requiring the father or the husband to give monthly support. He failed to honor or obey that monthly obligation. For which he was cited in contempt and ordered imprisoned.

Double jeopardy

Ruling: SC said that this is imprisonment for deb. Therefore this is violative of Sec 20 Art III. Relate this Sura case to the VAWC Law Recall that there are economic provisions in the VAWC Law which provide for the institution of criminal actions and even criminal liabilities upon fathers or husbands who would abandon their families and therefore not providing financial support for their families. The constitutionality of the economic provisions in VAWC had not yet been tested BUT Sir thinks that if this is to be questioned, the ruling would be along the lines of what CJ Yap said in Lozano v Martinez regarding the Bouncing Checks Law. Lozano v Martinez G.R. No. L-63419 December 18, 1986 Facts: There was a claim of a breach of nonimprisonment for debt proscription in Sec 20. The contention was that if the check bounced, the penalty of imprisonment with the issuance of the check would be not in consonance with Sec 20. Ruling: Remember the simple rationalization offered by Chief Justice Yap: the punishment here, being imprisonment, would be provided not in connection with the fraud which attended the issuance of the rubber check, and would not in any way be by reason of the non-payment of the amount or civil obligation represented in the check. My thinking class that if that bouncing provision were to be upheld by the SC, the matter of imposing a penalty for failure of the errant husband or father to provide support of the family. I think that imprisonment aspect can be justified on the basis of the act of abandonment of the family, not necessarily for the failure of the husband to provide financial support, which after all, according to Sura v. Martin (L-25091, Nov. 29, 1968), is considered as a civil obligation. There

What is Res Judicata in Prison Break? That is double jeopardy. (That question was asked in 2010 remedial law bar exam) Remember that: 1. Is the defense of double jeopardy available in the context of administrative proceedings like preliminary investigations? The answer is NO. Because this applies only strictly in the context of criminal proceedings. 2. Can double jeopardy be applied in disbarment proceedings? NO. Again, it's not criminal. 3. Can double jeopardy be applied in contempt proceedings? YES. Precisely because contempt proceedings, according to the court, pertain to the character of criminal proceedings, and therefore, can give rise to a valid application of the principle of double jeopardy. 4. 2017 case: There can be no res judicata in bail. Apply ka for bail, denied. You can apply for bail again later if circumstances would have changed because there is no res judicata in the concept of a petition for bail. Double jeopardy - not applicable, may not be raised in preliminary investigations, in disbarment proceedings, but can be applied as a defense in contempt proceedings. Requirements for an application of the principle of double jeopardy as and by way of a defense: 1. There must be a competent court. Ang usual na nangyayari dito: may jurisdiction yung court pero eng-eng yung judge who thought na walang jurisdiction yung court, and therefore he would dismiss the criminal complaint. Well, even if there were consent of the accused in that particular case, that error of the judge precludes the institution of another case for the same offense precisely because the court would have been competent or clothed with proper jurisdiction. The error of the judge in dismissing 151



the case on his belief that it (the court) has no jurisdiction would not make it an incompetent court. The first requirement of a competent court would still have been met notwithstanding the error of the judge. Court Marshall Ruffy v. Chief of Staff, Marcos v. Chief of Staff, Crisologo v. People and Garcia v. Office of the President = In connection with handling of criminal cases, Court Marshalls are to be considered as competent courts. Such that, conviction and acquittals of Court Marshalls would preclude the institution of another action for the same offense before the regular courts. 2. Invalid Complaint or Information Herrera v. Sandiganbayan G.R. No.119660-61 If the information filed with the Sandiganbayan does not properly allege that it was a crime committed in relation to the office of the public officer, that will be considered as an invalid complaint. So if that is dismissed with or without the consent of the accused, then the reinstitution of the complaint now properly alleging that the crime is in relation to the office of the accused would not be precluded of the defense of double jeopardy. Because to begin with, it was an invalid complaint and therefore could not have given rise to first jeopardy, therefore, there can be no second jeopardy upon the institution of the proper complaint. Guy v. People G.R. Nos. 166794-96 Even if that phrase “in relation to his office” does not expressly appear on the body of the information, if however, there allegations in the information which would clearly show that the crime imputed to the accused could not have been committed by him except in relation to his office, then it could still be considered as a valid information which can give rise later on to the defense of double jeopardy. 3. On the requirement of a valid plea: This is in relation to an arraignment which was previously discussed. 4. Conviction or Acquittal or otherwise the dismissal of the case without the express consent of the accused:

[Some points that have to be clarified: For the defense of double jeopardy to prosper, it must be noted that: 1. The accused was convicted; 2. The accused was acquitted; 3. The case was dismissed without the consent of the accused; or 4. The case was dismissed based on merits (e.g., demurrer to evidence)] Conviction (Sir did not discuss this) • 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 (this does not include the incompetence on the part of the prosecution to look or search for these facts); or 3. The plea of guilty to the lesser offense was made without the consent of the prosecutor and the offended party. (Rule 117, Sec. 7, ROC) • Example for number 1, otherwise known as Doctrine of Supervening Fact: An accused was convicted of frustrated murder because at the time of the filing of the Information the victim was only hospitalized. Two days after the conviction, the victim died because of the injuries he sustained. The accused may still be charged with murder despite the conviction for frustrated murder. Acquittal • There was a case for grave oral defamation wherein the accused was convicted thereof in the MTC. In the appeal to the RTC, it was held that the accused is only liable for slight oral defamation. When the RTC rendered the decision, one year has already lapsed and therefore the crime has already prescribed. Thus, the accused must be released. The prosecution appealed to the CA. CA said the appeal can no longer be entertained because it is barred by double jeopardy. • Basic postulate in remedial law: When the accused appeals his conviction, he throws his entire case open for scrutiny. In People v. De Leon (2009), the crime specified in the Information was robbery with homicide. The 152



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RTC acquitted the accused on the robbery with homicide, but they were convicted with murder. The CA reexamined and convicted them of robbery with homicide. Was there double jeopardy? No. When the accused appealed, they threw their entire case open for scrutiny which includes the possibility of the reversal the trial court’s decision. In Lejano v. CA, the Supreme Court acquitted the accused. The prosecution filed a Motion for Reconsideration to the judgment of acquittal. The accused raised double jeopardy as a defense. The Supreme Court said that the MR is precluded by double jeopardy because acquittal immediately gives rise to the defense of double jeopardy. The only time that an acquittal does not give rise to the defense of double jeopardy when the issue presented before the appellate court is grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court that acquitted the accused. An example would be when the prosecution is prevented from completing its case or presenting evidence.

Dismissal without the express consent of the accused • If the accused objected to the prosecutions motion to have the case dismissed, then the defense of double jeopardy arises. • It is only when the dismissal was made with the consent of the accused (and was not based on merit — this is not mentioned in the discussion but for clarification) can there be a bar to the defense of double jeopardy. • In People v. Pilpa (1977), the witnesses did not appear in the trial. The prosecution moved for the provisional dismissal of the case. The defense did not object (in the original case, the defense lawyer said, “no objection”). The defense of double jeopardy when the case is revived or another one is instituted will not prosper.

acquittal and will give rise to double jeopardy. 2. A dismissal on the instance of the accused on the basis of insufficiency of evidence. a. This is equivalent to an acquittal of the accused, double jeopardy sets in. 3. Demurrer to evidence, if granted double jeopardy sets in. The latest and a little different decision of the court here would be in reference to a demurrer but not as to evidence but is a demurrer as to jurisdiction. The double jeopardy did not set in there when it is granted because the court really did not have jurisdiction and therefore first jeopardy could not have arisen. Next would be the concept of attempted, frustrated and consummated. I will relate this to the right to be informed. Canceran v. People G.R. No. 206442 July 01, 2015 The information there was for frustrated theft. There is no such crime as frustrated theft diba. Naprove yung crime, consummated. On the basis of the right to be informed, he could have only been convicted for attempted theft because the rule is that when there is a variance between the offense proved and the offense charged, the conviction can be only for the same or lower offense. It cannot be for the higher offense. In the context of double jeopardy, remember that the acquittal for frustrated precludes later on another prosecution for attempted because covered na yung stages na yun diba. •

The only instances when a dismissal even if at the instance of the accused will give rise to double jeopardy would be: 1. By relation to the right to speedy trial a. Even if the motion to dismiss on this ground were filed by the accused, if the case is dismissed it will be tantamount to an

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Of importance also is the concept of inseparable offenses and separable offenses. Rule of thumb, because maraming cases of this character, if an act gives rise to a violation of a special penal law and simultaneously a violation of revised penal code provision, separate offenses yan. They can proceed independently and separately of each other. Illegal recruitment and estafa, pwedeng isabay yan. No offense to double jeopardy. Let’s go back to the right to be informed. Tinira siya ng malversation through fraud, naconvict siya malversation through falsification because that was the 153



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evidence, offense proved. There is no violation of the right to be informed there because fraud and falsification are only modes of malversation. There is only offense there committed either way. If there were variance between the method alleged and the method proved, it does not alter the fact that there is only one offense that was pursued and therefore there can be no violation of the right to be informed. Dito naman sa double jeopardy, remember that pag na-acquit for malversation through fraud hindi na pwedeng file-an ng malversation through falsification. Because that is the same offense which cannot be the subject of two separate prosecution. Also important is the so-called absorption rule that we have learned in the right to be informed applicable din sa double jeopardy but in a different context.

Double Jeopardy: Subsequent Offense If one were acquitted of pushing drugs. He cannot later be subjected to another prosecution, this time for possession. If the subject of the subsequent possession case would be the possession of the same drugs intended to be sold in the first case, which resulted to an acquittal. If the second case for possession would be respect to drugs seized but not included in the actual attempt to sell, but found in the person of the accused, upon the arrest after the buy-bust, then that is another separate prosecution the pursuit of which should not give offense to the principle of defense of double jeopardy. Ivler v. Modesto G.R. No. 172716 Nov. 17, 2010 Recall that this fellow figured into a vehicular thing. There was death and there was damage to property. He was prosecuted for two case. Arraignment in the first case for reckless imprudence resulting to damage to property, the accused plead guilty. He was admonished. Second case for the same act, reckless imprudence resulting in homicide, the accused raised the defense of double jeopardy. He was sustained. The proper case that should have been filed against Mr. Ivler was reckless imprudence resulting to homicide and damage to property. They are inseparable offenses.

Offenses that could give rise to separate prosecutions Culanag v. Director of Prisons G.R. No. L-27206 Aug. 26, 1967 Given a violation of a conditional pardon, there can be a separate prosecution for that crime, violation of conditional pardon. There can be separate prosecution for the act which constitutes the violation of the condition, if that act on its own constitute a separate crime, these two separate crimes can be prosecuted independently of one another because these are separable offenses. For instance, if you were driving without a license and there is a special law requiring you to have a license, if in the course of driving you damaged your neighbor’s fence, that is reckless imprudence resulting to damage to property. Both offenses can proceed without necessarily effecting double jeopardy. Second sentence of the double jeopardy provision Yap v. Leuterio If you are prosecuted in both special law and ordinance, the conviction or acquittal in either shall constitute a bar for another prosecution for the same act. BILL OF PAINS AND PENALTIES The traditional penalty imposed in a bill of attainder is death. Any bill of attainder which imposes a penalty less than death is a bill of pains and penalties. Ex Post Facto Law Section 22. No ex post facto law or bill of attainder shall be enacted. Here is an EO, which instructs that the adjudications of the Secretary of Justice, with respect to preliminary investigations, including those pending appeal for informations or resolutions of the investigating prosecutor to the Sec. of Justice providing henceforth that only cases punishable by reclusion perpetua shall be further cognizable by appeal by the Office of the President. Meaning, if there is an appeal with the Sec. of Justice, hindi siya punishable by reclusion perpetua, kapag in-affirm yun ng SoJ, warrant of arrest ka na. But if it were a reclusion perpetua case, mayroon ka pang chance to go to the Office of the President. Is that ex post facto? 154



A: NO. It is not a law. 3 essential factors which would make an ex post facto law: 1. Penal law 2. Retroactively applied 3. Prejudicial to the accused a. If it favors the accused, it will not be an ex post facto. b. Example: i. A subsequent law applicable to all pending cases involving all minors or youthful offenders, where they will instead be detained in agricultural camps. Not an ex post facto since it is favorable to the accused. A law which has the penalty of prision mayor in its minimum and medium periods, and a fine of P5,000.00. Here comes a subsequent law, retroactively applied, applicable to all existing cases, prescribing the penalty of prision correccional in its medium to maximum periods, but the fine should be from P5,000.00 to P20,000.00. Is that ex post facto? A: NO. The greater penalty of imprisonment is reduced from prision mayor to prision correccional even if there was an imposition of an additional penalty of a fine of P 15,000.00. This is favorable to the accused, hence, not ex post facto. (Valero v. CA, G.R. No. L-39532, July 20, 1979) Tax obligations and tax considered as ex post facto.

laws

cannot

be

Forfeiture can be considered as ex post facto. (Katigbak v. Solgen, G.R. No. L-19328, Dec. 22, 1989) Habeas corpus cannot be considered as ex post facto. These are not laws. These are not law. Be mindful of the SIX classifications of ex post facto laws. 1. 2. 3. 4. 5.

Innocent When Done Retro-activity of right Aggravates a crime Reduces the quantum of evidence Makes punishable an act which is purported to be regulated from a civil perspective and makes it criminal

6. Elimination of potential defenses like double `jeopardy after the commission of the offense. Bills of Attainder - would constitute a legislative pronouncement of `guilt by way of preemption of judicial proceedings. They are usually made applicable to classes of individuals. The basic element there is that there is a PREEMEPTION by the legislature of judicial power by pronouncement of `guilt without prior judicial proceedings. In this jurisdiction the most illustrative case is: People v. Ferrer G.R. Nos. L-32613-14 December 27, 1972 About the Anti Subversion law. The contention was that it was a bill of attainder because it punished members in the Communist Party of the Philippines. Sabi ng Supreme Court, no it is not a bill of attainder, neither is it an ex post facto law because the intent of the law is to punish those who would continue to be members after the law was to be promulgated. It was to purge members from the membership. It was also contended that it was a Bill of Attainder cause it punished a class of individuals. No, said the Supreme Court. The inclusion of that organization is only descriptive of all other subversive organizations covered by that particular statute and therefore cannot be considered a bill of attainder. REMEMBER: A bill of attainder is NECESSARILY an ex post facto law but not all ex post facto laws are necessarily bills of attainder. Why? Not necessarily is there a preemption of judicial proceedings with respect to ex post facto laws. BoC Employees v. BOC G.R. No. 181704 December 6, 2011 Attrition law required customs revenue officers to meet a certain a collection quota, failing which, they shall be subject to dismissal. The contention was that it was a bill of attainder because it provided for them punishment without judicial process. No, the SC said. That is only a specification of that failure to meet the revenue collection quota that is only a specifcation of a just cause for their potential removal. There is nothing in the law that does away with the proper due notice and hearing requirements prior to a dismissal. So, NOT a Bill of Attainder.

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CITIZENSHIP Article IV - Give me the instances under the Constitution in law and jurisprudence that there would arise a concept of natural born citizenship. Recall the basic definition: He is one who is such without need to perform any act to perfect or elect his citizenship. Essentially we follow JUS SANGGUINIS, by blood. 1. If you are born of a Filipino Mother or Father then you are a natural born. Instances where Natural Citizenship Arises:

Born

Filipino

A. Citizens from birth without having to perform any act to acquire or perfect their citizenship B. Whose fathers or mothers are citizens of the Philippines (jus sanguinis principle) C. Born before Jan. 17, 1973 of Filipino mothers who elect Philippine citizenship upon reaching the age of majority 3 step process: 1. sign the oath of allegiance 2. sign the statement of election 3. register both documents in the proper civil registry Those born before Jan. 17, 1983 would have until 1994 to complete the process of election. After 1994, no one could become a natural born citizen on the basis of this provision. D. Natural born immigrant or naturalized abroad who reacquire natural born citizenship under R.A. No. 9225 upon their renunciation of foreign citizenship Bengson v. HRET G.R. No. 142840 May 7, 2001 There was this gentleman who was born a natural born citizen but fled the Philippines during the time of Mr. Marcos and became a naturalized American. After Marcos fled, he returned to the Philippines and he wanted to become a Filipino again. He had himself repatriated and underwent naturalization proceedings. Filipino ulit sha. But then he ran for Congress. A petition for disqualification was lodged against him. Ruling: For those who were born originally as natural born citizen, if repatriated through naturalization proceedings, the effect of repatriation is to restore them back to natural born citizenship status.

Taking either of the two oaths under R.A. No. 9225, the effect is restoration to their original citizenship status. E. Foundlings- considered as citizens of the country where they are found 2 Types of Naturalization: Direct Naturalization There are 4 classes: a. Judicial or administrative proceedings b. Private bills or laws granting naturalized citizenship status upon aliens deserving to be Filipinos (ex. Gilas) c. Naturalization en masse – when there is a subjugation of the state. The citizens of the subjugated state becomes citizens of the overpowering state. d. Adoption of minor orphans results in their naturalization of the person who adopted them in accordance to the laws of the country of the adopter. Derivative Naturalization Finally, in certain instances, the adoption of orphans results in their naturalization of the persons who adopt them in accordance with the laws of the country of the adopters. Naturalization Four instances, a little word on the direct naturalization, judicial, administrative Well judicial proceedings, essentially Commonwealth Act 63, as amended by CA 473. Administrative naturalization, as prescribed on the basis of the Administrative Naturalization Act of 2001. Among the major differences among the two major processes: In administrative naturalization, it is available only to aliens who were born here. It is also more expensive. Last, three officers are involved here. National Security Adviser, the Solicitor General, and the Secretary of Foreign Affairs. A little word on judicial naturalization, most essential would be a consideration of the fact that all applicants for the naturalization, must not only possess all the qualifications, but they must also NOT posses all of the disqualifications.

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Process: There is a declaration of intent that needs to be filed a year before the petition for naturalization is actually filed.

Hindi yan mutually exclusive, you can file one after the other. She was retired, therefore the court rejected the application. Wala siyang lucrative income.

After that one year period, the petition can be filed before the RTC where the applicant would’ve have resided for at least a year.

Well our supreme court here took a humane stance in the context of this strict qualification prescribe, the matter of lucrative income.

Remember upon filing, there is this jurisdictional requirement of publication, three separate weeks. News paper of general circulation.

Lucrative Income

Thereafter, trial is scheduled within 6 months provided that the initial trial cannot be done if it would be within 30 days of an election. During the proceedings, the applicant must be able to prove that he possesses all the qualifications. • •

• • • •

At least 18/21 upon filing Residence in the Philippines for at least 10 years, which can be reduced to 5 years under certain condition. o If he was born here o Business or novel idea in industry o If married to Filipina, etc. Good moral character Knowing a dialect, Spanish, or English language Enroll children in schools which teach Philippine History, etc. Lucrative income (alternative requirement: ownership of real property of at least 5k)

Lucrative income must be possessed or earned by the applicant alone. Do not include the income of the spouse. Do not include anything which he receives from his parents or the business of his parents. He must earn it alone. Failing to show this qualification, rejected ang application for naturalization. Batuigas v. Republic G.R. No. 183110 This alien woman was born here. She was old she was already retired. But then she wanted to die a Filipina. First, she applied for administrative naturalization. For technical reasons, it was rejected. After that she applied for judicial naturalization.

SC: She has been a teacher all her life. But clearly, if she wants to, she can go back to teaching and earn a lucrative income. -

The court set aside the strict application of the disqualification and granted her plea for naturalization. Also, the court acknowledged that the lady perhaps wants to die as Filipino. For patriotic reasons.

Side kwento: Bello (Sir’s friend), lawyer of Gokongwei for the latter’s naturalization, stood as a witness for Gokongwei’s good moral character. -

I was smoking inside his car, I throwed the cigarette butt, do not do not litterestablish the gmc Petition for naturalization allowed

Possession of None of the Disqualification Republic v Karba Si G.R. No. 210412 July 29, 2015 Here was a political refugee, accepted in the Philippines. We are the host country. He applied for judicial naturalization, it was denied, because it was shown in the proceedings that his country of origin did not allow Filipinos to be naturalized there. Therefore, on the basis of reciprocity, he was considered disqualified by the court. On appeal, the SC reversed the trial court. It invoked jus cogens founded principally on international covenants affecting political refugees. The principle here is, once a refugee is accepted by the host state, the host state shall exert every effort to assimilate him into the mainstream or the society of the host country. -

This would necessarily include even to naturalization. So class, you have to understand: this again is one of those instances where jus cogens principles were invoked for 157



purposes of relaxing a bit the strict rigors or requirements of municipal laws. Excerpt from the case: Considering the above disquisitions, the Court does not need to belabor the last issue on reciprocity between Iranian and Philippine laws on naturalization. True, the Naturalization Law disqualifies citizens or subjects of a foreign country whose laws do not grant Filipinos the right to become naturalized citizens or subjects. A perusal of Karbasi‘s petition, both with the RTC and the CA, together with his supplemental pleadings filed with the Court, however, reveals that he has successfully established his refugee status upon arrival in the Philippines. In effect, the country‘s obligations under its various international commitments come into operation. Articles 6 and 34 of the 1951 Convention relating to the Status of Refugees, to which the Philippines is a signatory, must be considered in this case.

-

After 2 years, he can take his oath of citizenship and will become naturalized citizen.

5 Grounds For Revocation Of The Decree Of Naturalization Such naturalization decree can be assailed. 5 instances where the decree of naturalization can be invalidated. 1. Declaration of intent was invalid 2. Decree of naturalization was obtained with fraud 3. If he permanently resided abroad within a period of 5 years from the granting of the decree of naturalization. 4. Failure to enroll his minor children, if any, to Ph school 5. Allowing himself to be a dummy in a corporation. All instances can result to the revocation of the decree.

In the same vein, Article 7 of the said Convention expressly provides exemptions from reciprocity, while Article 34 states the earnest obligation of contracting parties to ―as far as possible facilitate the assimilation and naturalization of refugees.ǁ As applied to this, Karbasi‘s status as a refugee has to end with the attainment of Filipino citizenship, in consonance with Philippine statutory requirements and international obligations. Indeed, the Naturalization Law must be read in light of the developments in international human rights law specifically the granting of nationality to refugees and stateless persons.

Effect of decree of naturalization to derivative naturalization

2018 case: This is not specified in any of the qualification or disqualification BUT applicant must show that entry to the Philippines is lawful.

2. As to the children: Minor Children a. Born Here + Resides Here at the time of naturalization = ipso facto b. Born Outside + Resides Here at the time of naturalization = ipso facto c. Born Outside + Resides Outside at the time of naturalization = can choose to elect PH citizenship upon the attainment of the age of majority provided that the at the time of the election, they should be residing here. Thus, through their election, they become ipso facto naturalized Filipinos. 3. An alien woman who marries a naturalized Filipino, herself becomes naturalized Filipina provided that she has

-

Some certification from port of entry to this effect Failing or absent which, there can be denial of the petition for naturalization.

Two-Year Probationary Period Petition can be granted but it does not result immediately into the conferment of the status of naturalized citizenship. -

There is 2-year probationary period. During which, petitioner must not permanently reside abroad.

1. If an alien becomes a Filipino through judicial naturalization then his alien wife herself becomes a naturalized Filipino as well provided that it is shown that she has all the qualifications and none of the disqualifications Moya Limyao v Commissioner of Immigration This derivative naturalization is ipso facto what is needed is a showing that she has all the qualifications and none of the disqualifications.

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all the qualifications and none of the disqualifications What if the decree of naturalization is revoked on any of the 5 grounds would it affect those naturalized under derivative proceeding?
It would depend on the ground of revocation, 1. if the ground for revocation would refer to the intrinsic validity of the decree such that a. if the declaration of intent is defective or b. if the cert of naturalization was obtained through fraud, that would adversely affect the derivative naturalization of the spouse and minor children 2. If the ground for revocation were personal to the applicant such as a. if he allows himself to be dummy or b. if he permanently resides abroad within a period of 5 years c. if it shown that his minor children were not continuing their enrolment in a school in the Philippines
 then clearly that particular revocation should not affect the derivative naturalization of the spouse and minor children. After the decree, there shall be a 2-year period which shall need to lapse, probationary period for investigation before the oath of Filipino citizenship can be administered then after which he shall be a naturalized Filipino

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