Election Law Reviewer

LEGAL EDGE BAR REVIEW PRE-BAR LECTURE ON ELECTION LAW AND LAW ON PUBLIC OFFICERS for 2018 BAR EXAMINATION JUDGE GENER M. GITO, LL.M., D.C.L.

ELECTION LAWS

SUFFRAGE • Concept • The right to vote in the election of officers chosen by the people and in the determination of questions submitted to the people. It includes within its scope election, plebiscite, initiative and referendum.

GMA vs. COMELEC, GR 205357, September 2, 2014 • In this case the SC annulled Section 9 of the Comelec Resolution No. 9615, which limited the airtime within which national candidates and political parties in the 2013 election may air political advertisements on TV and radion to an aggregate of 120 minutes and 180 minutes, respectively, was violative of the people’s right to suffrage. Candidates and political parties need adequate breathing space – including the means to disseminate their ideas.

Who may exercise the right of suffrage? • 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 (Article V).

RA 9189 (OAVA OF 2003) • The allows Filipino overseas workers to vote in the election. The provides that among those disqualified to vote is an immigrant or permanent resident of another country unless he or she executes an affidavit declaring that he/she shall resume actual, physical, permanent residence in the Philippines not later than three years from the approval of his/her registration under the Act.

Macalintal vs. COMELEC, GR 157013, July 10, 2003 • Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are immigrants or permanent residents in other countries by their mere act of executing an affidavit expressing their intention to return to the Philippines, violate the residency requirement in Section 1 of Article V of the Constitution?

Macalintal vs. COMELEC, GR 157013, July 10, 2003 • R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V of the Constitution that Congress shall provide a system for voting by qualified Filipinos abroad. It must be stressed that Section 2 does not provide for the parameters of the exercise of legislative authority in enacting said law. Hence, in the absence of restrictions, Congress is presumed to have duly exercised its function as defined in Article VI (The Legislative Department) of the Constitution.

Macalintal vs. COMELEC, GR 157013, July 10, 2003 • The execution of the affidavit itself is not the enabling or enfranchising act. The affidavit is not only proof of the intention of the immigrant or permanent resident to go back and resume residency in the Philippines, but it serves as an explicit expression that he has not in fact abandoned his domicile.

COMMISSION ON ELECTIONS

Composition/Qualifications  Article IX-C, Section 1(1) • There shall be a Commission on Elections composed of a Chairman and six Commissioners. • Natural-born citizens of the Philippines • 35 years of age at the time of appointment • holders of a college degree • Must not have been candidates for any elective positions in the immediately preceding elections. • However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years.

How appointed?  Article IX-C, Section 1(2) • Appointed by the President • With the consent of the CA • For a term of 7 years • No re-appointment • Designation or appointment in an acting capacity is prohibited • Appointment in the vacancy will only be for the unexpired portion

Rotational Scheme of Appointment  The first appointees shall serve for terms of seven, five, and three years, respectively.  In order to preserve the periodic succession mandated by the Constitution, the rotational plan requires two conditions:  The term of the first commissioners should start on a common date  Any vacancy before expiration should be filled only for the unexpired balance (Gaminde vs. COA, December 13, 2000)

Funa vs. Chairman of COA

May an incumbent commissioner be appointed as Chairman?

Section 1(2), Article IX-D • The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, one Commissioner for five years, and the other Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.

Funa vs. Chairman of COA  On February 15, 2001, President Gloria MacapagalArroyo (President Macapagal-Arroyo) appointed Guillermo N. Carague (Carague) as Chairman of the Commission on Audit (COA) for a term of seven (7) years, pursuant to the 1987 Constitution. Carague’s term of office started on February 2, 2001 to end on February 2, 2008.

Funa vs. Chairman of COA •Meanwhile, on February 7, 2004, President Macapagal-Arroyo appointed Reynaldo A. Villar (Villar) as the third member of the COA for a term of seven (7) years starting February 2, 2004 until February 2, 2011.

Funa vs. Chairman of COA • Following the retirement of Carague on February 2, 2008 and during the fourth year of Villar as COA Commissioner, Villar was designated as Acting Chairman of COA from February 4, 2008 to April 14, 2008. Subsequently, on April 18, 2008, Villar was nominated and appointed as Chairman of the COA up to Feb. 2, 2011. Shortly thereafter, on June 11, 2008, the Commission on Appointments confirmed his appointment.

Funa vs. Chairman of COA • He was to serve as Chairman of COA, as expressly indicated in the appointment papers, until the expiration of the original term of his office as COA Commissioner or on February 2, 2011. Challenged in this recourse, Villar, in an obvious bid to lend color of title to his hold on the chairmanship, insists that his appointment as COA Chairman accorded him a fresh term of seven (7) years which is yet to lapse. He would argue, in fine, that his term of office, as such chairman, is up to February 2, 2015, or 7 years reckoned from February 2, 2008 when he was appointed to that position.

Funa vs. Chairman of COA Carague’s term as Chairman: February 2, 2001 to end on February 2, 2008. (7 years)

Villar’s term as Commissioner: February 2, 2004 until February 2, 2011

Funa vs. Chairman of COA • 1. The appointment of members of any of the three constitutional commissions, after the expiration of the uneven terms of office of the first set of commissioners, shall always be for a fixed term of seven (7) years; an appointment for a lesser period is void and unconstitutional. • The appointing authority cannot validly shorten the full term of seven (7) years in case of the expiration of the term as this will result in the distortion of the rotational system prescribed by the Constitution.

Funa vs. Chairman of COA • 2. Appointments to vacancies resulting from certain causes (death, resignation, disability or impeachment) shall only be for the unexpired portion of the term of the predecessor, but such appointments cannot be less than the unexpired portion as this will likewise disrupt the staggering of terms laid down under Sec. 1(2), Art. IX(D).

Funa vs. Chairman of COA • 3. Members of the Commission, e.g. COA, COMELEC or CSC, who were appointed for a full term of seven years and who served the entire period, are barred from reappointment to any position in the Commission. Corollarily, the first appointees in the Commission under the Constitution are also covered by the prohibition against reappointment.

Funa vs. Chairman of COA • 4. A commissioner who resigns after serving in the Commission for less than seven years is eligible for an appointment to the position of Chairman for the unexpired portion of the term of the departing chairman. Such appointment is not covered by the ban on reappointment, provided that the aggregate period of the length of service as commissioner and the unexpired period of the term of the predecessor will not exceed seven (7) years and provided further that the vacancy in the position of Chairman resulted from death, resignation, disability or removal by impeachment. The Court clarifies that “reappointment” found in Sec. 1(2), Art. IX(D) means a movement to one and the same office (Commissioner to Commissioner or Chairman to Chairman). On the other hand, an appointment involving a movement to a different position or office (Commissioner to Chairman) would constitute a new appointment and, hence, not, in the strict legal sense, a reappointment barred under the Constitution.

Powers of the COMELEC (Section 2, Article IX-C)

1. Enforce and administer all laws and regulation relative to the conduct of election, plebiscite, initiative, referendum, and recall

Enforcement of Election Laws COMELEC has the power to annul the results of the plebiscite (Buac vs. Comelec, 2004) COMELEC has the power to declare failure of election (Sison vs. Comelec, 1999) COMELEC has the power to regulate media, subject to exceptions.

Enforcement of Election Laws  BUT:  The power of direct control and supervision by DILG over SK election does not contravene the grant of powers to COMELEC (Alunan, III vs. Mirasol, 1997)  COMELEC cannot exercise power of apportionment (Montejo vs. Comelec, 242 SCRA 415)  COMELEC has no power to exclude voters (Section 2(2), Article IX-C)  COMELEC is not empowered to conduct unofficial quick count for president and vice president (Brillantes vs. Comelec, 2004).

Powers of the COMELEC (Section 2, Article IX-C)

• 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.”

Powers of the COMELEC (Section 2, Article IX-C)

• 3. “Decide, except those involving the right to vote, all questions affecting elections, including determination of the number of and location of the polling places appointment of election officials and inspections and registration of voters.

Jurisdiction over Election Contest • 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.

Jurisdiction over Election Contests Article IX-C, 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. ”

Jurisdiction over Election Contests Who has jurisdiction over the qualifications of party-list? Comelec or HRET? The Comelec has jurisdiction. However, with respect to the qualification of the nominees of party list, it is the HRET which has jurisdiction. Layug vs. Comelec, (February 28, 2012)

Jurisdiction over Election Contests  Does COMELEC mandamus power?

had

certiorari,

prohibition

and

 Yes. Since it is the COMELEC that has jurisdiction over appeals from the decision of the RTC in election contest involving elective municipal official, then it is also the COMELEC that has the authority to issue a writ of certiorari, prohibition and mandamus in aid of its appellate jurisdiction (Festo Galang vs. Geronimo, GR 192793, February 22, 2011; Relampagos vs. Cumba, 243 SCRA 690).

Jurisdiction over Election Contests  What is the jurisdiction of COMELEC division vis-à-vis COMELEC en banc?

 All election disputes under the original and appellate jurisdiction of the COMELEC shall be heard and decided by the COMELEC Division:  Petition to cancel certificate of candidacy (Garvida vs. Sales, GR 122872, Setember 10, 1997). COMELEC en banc, cannot short cut the proceedings by acting on a case without prior action by a division (Karamudin Ibraim vs. COMELEC, gr No. 192289, January 14, 2013).

Jurisdiction over Election Contests What is the jurisdiction of COMELEC division vis-à-vis COMELEC en banc? Cases appealed from RTC and MTC have to be heard and decided in division before they may be heard en banck upon the filing of a motion for reconsideration of the division decision (Abad vs. COMELEC, December 10, 1999).

Jurisdiction over Election Contests  Sarmiento vs. Comelec, 212 SCRA 307

• The SC set aside the resolutions of the COMELEC because the COMELEC en banc took original cognizance of the cases without referring them first to the appropriate division.

When En Banc May Entertain  Municipal Board of Canvassers vs. COMELEC, October 23, 2003 • Thus, the rule that all election cases, including preproclamation cases, should first be heard and decided by the COMELEC in division applies only when the COMELEC exercises it adjudicatory or quasi-judicial function, not when it exercises purely administrative functions (Canicosa vs. Comelec, December 5, 1997)

When En Banc May Entertain • Petition for correction of manifest errors alleges an erroneous copying of figures from election return to the Statement of Votes by precinct. Such error in tabulation of results, which merely requires clerical correction without opening the ballot boxes or examining the ballots, demands only the exercise of the administrative power of the COMELEC. (Jaramilla vs. Comelec, October 23, 2003)

SC’s Jurisdiction over decision of COMELEC • Only decisions of the COMELEC en banc may be brought to SC under Rule 65. • However, the decision referred to above is that one issued in the COMELEC’s exercise of its adjudicatory or quasijudicial function. Where the decision being questioned is one that is issued the COMELEC’s exercise of its administrative function, the same may be brought to an appropriate Court. (Filipinas Engineering & Machine Shop vs. Ferrer, 135 SCRA 25)

Procedural Flow of Election Contest

Elective Regional, Provincial, City official: Qualification, Election, Return

COMELEC Division

COMELEC en banc: thru MR

Supreme Court thru Certiorari under RC, 64, 64

Procedural flow of Election Contest

Elective Municipal Officials

Regional Trial Court

COMELEC Division thru Appeal

COMELEC en bank thru MR

Supreme Court thru Certiorari under RC 64, 65

Procedural flow of Election Contest

Elective Barangay Officials

First Level Court

COMELEC Division thru Appeal

COMELEC en bank thru MR

Supreme Court thru Certiorari under RC 64, 65

Does the Comelec have jurisdiction over exclusion or inclusion of voters?  No. Under Section (3), Article IX-C, the COMELEC can decide all question relating to election except the right to vote?

Jurisdiction of Comelec vis-à-vis the jurisdiction of Electoral Tribunals  When does the jurisdiction of the COMELEC end and when does the jurisdiction of electoral tribunal begin?  The jurisdiction of the Electoral tribunal begins once the winning candidate has been proclaimed, taken his oath, and assumed office, for it is only after the occurrence of these events that a candidate can be considered of as either a member of the House or Senator.  Limchaichong vs. Comelec (April 1, 2009); Reyes vs. Comelec, June 25, 2013

Electoral Tribunals • Section 17, Article VI • The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

Jurisdiction of Electoral Tribunals

The sole judge of all contests relating to the election, returns, and qualifications of the members of the Senate and the House of Representatives.

When does the jurisdiction of the COMELEC over the candidates for House end and when does the jurisdiction of the Electoral Tribunal begins?

Reyes vs. Comelec, June 25, 2013 The jurisdiction of an Electoral Tribunal begins once a winning candidate has been:

•Proclaimed •Taken his oath •Assumed office

May COMELEC entertain petition for disqualification of candidate for Representative, Senator and President? • No. There is absence of an authorized proceeding for determining before election the qualifications of candidate for Representative, Senator and President. • To disqualify a candidate, there must be a declaration by a final judgment of a competent court that the candidate sought to be disqualified "is guilty of or found by the Commission to be suffering from any disqualification provided by law or the Constitution." • (Poe vs. Comelec, March 8, 2016)

Executive Clemency on Election Cases • Article 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 favourable recommendation of the Commission.”

Who has the power to conduct preliminary investigation in election offenses? • Under Section 265, B.P. 881, the COMELEC is granted exclusive power to conduct preliminary investigation of all offenses punishable under Omnibus Election Code and prosecute the same (De Jesus vs. People, 120 SCRA 720; People vs. Judge Inting, 187 SCRA 788). • However, under Sec. 43, of RA 9369, COMELEC has concurrent power to conduct preliminary investigation with other prosecution arm of the government (BANAT vs. COMELEC, August 7, 2009).

Jurisdiction over inclusion or exclusion of voters • The first level courts shall have original and excusive jurisdiction over all inclusion and exclusion of voters in their respective municipalities and cities. Decision of the MTC, MCTC, MTCC, MeTC may be appealed with the RTC within five (5) days from the receipt of the decision. The RTC shall decide the appeal within ten (10) days from the time it is received and the decision shall immediately become final and executory. No motion for reconsideration is allowed (Section 33, R.A. 8189, "The Voter's Registration Act of 1996.").

Qualification and Disqualification of Candidates • SOME PRINCIPLES • Qualification prescribed by law are continuing requirements and must be possessed for the duration of the officer’s active tenure. Once any of the prescribed qualification is lost, his title to the office may be seasonably challenged (Frivaldo vs. COMELEC, 174 SCRA 245).

Qualification and Disqualification of Candidates • RESIDENCE AS QUALIFICATION • There is no hard and fast rule to determine the candidates’ compliance with the residency requirement since the question of residence is a question of intention. But jurisprudence provide the following guidelines: 1) every person has a domicile and residence somewhere; 2) once established, the domicile remains until he acquire new one; and a person can have but one domicile at a time (Jalosjos vs. COMELEC, April 24, 2012). A change of residence requires actual and deliberate abandonment because one cannot have but one domicile at a time (Jalosjos vs. COMELEC, February 26, 2013).

Qualification and Disqualification of Candidates • Disqualification under Election Code. • SECTION 12. Disqualifications. — Any person who has been 1) declared by competent authority insane or incompetent, or has been 2) sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or 3) for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. • This disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified (BP 881). See, Risos-Vidal vs. Estrada, January 21, 2015.

Qualification and Disqualification of Candidates • Disqualification under Election Code. • SECTION 12. Disqualifications. — Any person who has been 1) declared by competent authority insane or incompetent, or has been 2) sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or 3) for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. • This disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified (BP 881). See, Risos-Vidal vs. Estrada, January 21, 2015.

Qualification and Disqualification of Candidates • Disqualification under Local Government Code. (Sec. 40) • (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence. • Moreno vs. COMELEC, August 10, 2006 - a person who was convicted but under probation is not disqualified from running for a public office because probation is not a sentence but rather a suspension of the imposition of sentence.

Qualification and Disqualification of Candidates • Disqualification under Local Government Code. (Sec. 40) • (b) Those removed from office as a result of an administrative case. • Grego vs. COMELEC, June 19, 1997 – a candidate who was removed by virtue of an administrative case before the effectivity of the local government code is not disqualified. This is because, the LGC should not be given retroactive effect.

Qualification and Disqualification of Candidates • Disqualification under Local Government Code. (Sec. 40) • (d) Those with dual citizenship; • Mercado vs. Manzano, 307 SCRA 630 – what is prohibited is dual allegiance not dual citizenship. • Lopez vs. COMELEC, July 23, 2008 – the statement that the filing of the certificate of candidacy by one who has dual citizenship suffices to renounce foreign citizenship should be deemed superseded by section 5(2), RA 9225, which requires a former Filipino who reacquires Philippine by taking an oath of allegiance under RA 9225 to state in clear terms that he is renouncing all foreign citizenship, failing which, he is disqualified to run for public office.

Qualification and Disqualification of Candidates • Disqualification under Local Government Code. (Sec. 40) • (e) Fugitives from justice in criminal or non-political cases here or abroad • Rodriguez vs. COMELEC, July 24, 1996 – the petitioner was no “fugitive from justice because his arrival in the Philippines preceded the filing of the case against him in foreign court and the warrant of arrest was issued after his arrival.

Qualification and Disqualification of Candidates • Other Disqualification under the Election Code. (Sec. 68) • SECTION 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 the Sections 89, 95, 96, 97 and 104; or

Qualification and Disqualification of Candidates • Other Disqualification under the Election Code. (Sec. 68) • SECTION 68. Disqualifications. • (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 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.

Certificate of Candidacy • When is a person considered a candidate? • Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy (Section 15, RA 8436, as amended by 9369).

Petition to Deny Due Course or to Cancel 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. (Section 78, OEC).

Petition to Deny Due Course or to Cancel 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. (Section 78, OEC).

What misrepresented are “material matters” • Material matters are: • “qualification for elective office” • Examples: 1) residency; 2) age; 3) citizenship; 4) or any other legal qualifications necessary to run for local elective office, couple with the showing that there was an intent to deceive the electorate. The candidate nick name does not pertain to his eligibility or qualification for office, and cannot be considered a misrepresentation (Villafuerte vs. COMELEC, G.R. No. 206698, February 25, 2014).

What is the effect if the certificate of candidacy is declared void for lack of material misrepresentation?

•A cancelled certificate of candidacy void ab initio cannot give rise to a valid candidacy, much less valid votes. If one’s certificate of candidacy, much less valid votes. If one’s certificate is void ab initio, then there was never a candidate.

Aratea vs. COMELEC GR No. 195229October 9, 2012 •The Court ruled that a cancelled certificate of candidacy void ab ignition cannot give rise to a valid candidacy, and much less to valid votes. Thus, the “second placer” candidate is deemed to have garnered the highest number of votes and is entitled to hold the corresponding elective position.

When can there be substitution? • SECTION 77. Candidates in case of death, disqualification or withdrawal of another. — If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. x x x x.

Please take note: • Considering that Sec. 77 requires that there be a candidate in order for substitution to take place, as well as the precept that a person without a valid CoC is not considered as a candidate, it necessary follows that if a person’s CoC had been denied due course, he cannot be validly substituted, Thus, the existence of a valid CoC is a condition sine qua non for a disqualified candidate to validly substituted (Talaga vs. COMELEC, October 9, 2012).

How is petition for disqualification different from petition to deny due course the “CoC”? • The disqualification case under Section 68 is hinged on either (1) a candidate’s possession of a permanent resident status in a foreign country; or, his commission of certain acts of disqualification, e.g. vote-buying, terrorism, overspending, soliciting or making prohibited contributions. If a candidate is disqualified, he technically to have been considered a candidate. • Denial of due course of CoC is premised on person’s misrepresentation of any of the material qualifications required for elective office aspired for.

LAW ON PUBLIC OFFICER

CIVIL SERVICE COMMISSION

Composition and Qualifications (Section 1, Article IX-B)

 Chairman and 2 Commissioners  Natural born citizens  At least 35 years of age  Proven capacity for public administration  Must not have been candidates for any elective position in the election immediately preceding their appointment

How appointed? (Section 1(2), Article IX-B) Appointed by the President With the consent of the CA For a term of 7 years Without reappointment Appointment or designation in an acting capacity is not allowed

Scope of Civil Service (Section 2(1), Article IX-B)

Embraces all branches, subdivisions, instrumentalities of the government, including government owned and controlled corporation with original charter

Important Definitions  Government owned and controlled corporations (GOCC) – any agency organized as a stock or nonstock corporation vested with functions related to public needs whether governmental or proprietary in nature, and owned by the GRP directly or thru its instrumentalities either wholly where applicable, as in case of stocks corporations, to the extent of at least a majority of its outstanding capital stock.

Important Definitions  Government instrumentalities with corporate powers (GICP’s) – instrumentalities or agencies of the government which are neither corporations nor agencies integrated within the departmental framework, but vested by law with special functions or jurisdiction, endowed with some if not all corporate power, administering special funds and enjoying operational autonomy.

Manner of Entry in Civil Service Section 2(2). Article IX-B 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.

Who are exempted? Policy determining – one charged with laying down of principal or fundamental guidelines or rules. Example: Head of Department

Who are exempted? Primarily confidential

One denoting not only confidence in the aptitude of the appointee but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayals of personal trust on confidential matter of state

Who are exempted? Highly technical One who possess technical skill or training in the supreme or superior degree

Classes of Civil Service Career Service Non-Career Service

Career Service Characterized by: Entrance based on merit and fitness to be determined as far as practicable by competitive examinations, Based on highly technical qualifications; Opportunity for advancement to higher positions; and security of tenure.

Career Service Open career positions Closed career positions Career executive service Career officers Positions in AFP Personnel in GOCC Permanent laborers

Non-Career Service  Characterized by:  entrance on bases other than those of usual tests utilized for the career service; tenure limited to a period specified by law, or which is co-terminous with that of appointing authority or subject to his pleasure,  limited to the duration of a particular project for which purpose the employment was made.

Non-Career Service Elective officials and their personal and confidential staff Department heads who hold office at the pleasure of the President, and their confidential staffs Chairmen and members of the Commissions Contractual personnel Emergency and seasonal personnel

Security of Tenure “No officer or employee of civil service shall be removed or suspended except for cause provided by law” (Section 2[3], Article IX-B).

Removal without violation of Security of Tenure Valid abolition of office does not violate security of tenure (De la Llana vs. Alba) Reorganization of office does not necessarily result in abolition of the offices, and does not justify replacement of permanent officers and employees (Dario vs. Mison; Mendoza vs. Quisumbing, 186 SCRA 108)

Violation of Security of Tenure Where there is actually no abolition of office and the law just provides that the position of the present holders of position becomes vacant, the law is unconstitutional. (Canonizado vs Aguirre, January 25, 2000)

Partisan Political Activity Article IX-B, Section 2(4)

“No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign.”

Partisan Political Activity Seneres vs. Comelec (2009) An acting Administrator of Land Railway Transport authority who was concurrently the president of a political party) did not engage in in partisan political activity when he signed the list of his party’s nomination for party list election.

Partisan Political Activity Article IX-B, Section 2(4)

Exempt from this provision are members of the cabinet and employees holding political offices (Santos vs. Yatco, 106 Phil. 745)

Right to Self-Organization Article IX-B, Section 2(5)  The right to self-organization shall not be denied to government employees.

Article III, Section 8  The right of the people including those employed in the public and public sector to form unions, associations, or societies for purpose not contrary to law shall not be abridged.

 Article XIII, Section 3

Right to Self-Organization This does not include the right to strike. Wearing red shirts at public hearing is covered by freedom of expression (GSIS vs. Villaviza [2010])

Temporary Appointments Article IX-B, Section 2(6)

Temporary employees of the government shall be given such protection as may be provided by law.

When is an appointment in the civil service permanent? • It is permanent when issued to a person who meets all the requirements for the position to which he is being appointed, including the appropriate illegibility prescribed in accordance with law

Power of CSC • Central Personnel agency of the government. • As central personnel agency of the government, what is the role of CSC in appointments? • It is limited to the determination of the qualifications of the candidate for appointment. It has no role in the choice of the person to be appointed.

Incompatible Office Section 7, Article IX-B • No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.

Bar Question X was elected provincial governor for a term of three years. He was subsequently appointed by the President serving at her pleasure, as concurrent Presidential assistant for Political Affairs, without additional compensation.

• Is X appointment valid?

Answer No. Under Section 7, Article IX-B, No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.

Incompatible Office  Article IX-B, Section 7 • Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including Government-owned or controlled corporations or their subsidiaries.

 Article VII, Section 13 • The President, the VP, the Members of the Cabinet and their deputies and Assistants shall not, unless allowed by this Constitution, hold any other office or employment during their tenure.

Double Compensation  Article IX-B, Section 8 • “No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government.”

Public Office • "Public office" is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by the individual for the benefit of the public. (Fernandez v. Sto. Tomas, 312 Phil. 235, 247 [1995]). • When the term is used with reference to a person having to do a particular act or to perform a particular function in the exercise of governmental power, it includes any government employee, agent or body to do the act or exercise that function (Administrative Code of 1987, Section 2).

Elements of Public Office • "Public office" is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by the individual for the benefit of the public. (Fernandez v. Sto. Tomas, 312 Phil. 235, 247 [1995]). • Public officer is on who hold public office.

Eligibility and Qualification

Qualification in two different senses:

• It may refer of endowments, qualities or attributes which make an individual eligible for public office. • It may refer to the act of entering into the performance of public office.

Who has the authority to prescribe qualifications/disqualification? • Qualification

Congress

• Flores vs. Drilon, June 22, 1993

• Disqualification • Dumlao vs. COMELEC, 95 SCRA 400

Disqualifications under the Constitution • 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 (Art. IX-B). • 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 government-owned or controlled corporations or their subsidiaries (See, Civil Liberties Union vs. ES, 194 SCRA 317; See, Article 13, Art. VII).

Disqualifications under the Constitution • 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 (Article VI). • 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 (Art. VIII).

Disqualifications under the Constitution • SECTION 2. No Member of a Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which in any way be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries (Sec. 2, Article IX-A).

Disqualifications under the Constitution • SECTION 8. The Ombudsman and his Deputies shall be natural-born citizens of the Philippines, and at the time of their appointment, at least forty years old, of recognized probity and independence, and members of the Philippine Bar, and must not have been candidates for any elective office in the immediately preceding election. The Ombudsman must have for ten years or more been a judge or engaged in the practice of law in the Philippines (Article XI).

Disqualifications under the Constitution • SECTION 11. The Ombudsman and his Deputies shall serve for a term of seven years without reappointment. They shall not be qualified to run for any office in the election immediately succeeding their cessation from office (Article XI).

De Facto Officer • An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law. (Torres vs. Ribo, 81 Phil. 44). He must have acted as an officer for such a length of time, under color of title and under such circumstances of reputation or acquiescence by the public and public authorities, as to afford a presumption of appointment or election, and induce people, without inquiry, and relying on the supposition that he is the officer he assumes to be, to submit to or invoke his action (46 C. J., 1053).

Elements of De Facto Officer Validity of existing office Actual physical possession of said office Color of title to the office

Commencement of Official Relations

By appointment

By election

By designation

Classification of Appointment

Permanent

• It is extended to person who possesses the requisite qualification and eligibility required for the position.

Temporary

• It is extended to one who may possess the requisite qualification and eligibility.

Power to Appoint • Section 16, Article VII • The President shall nominate and, with the consent of the Commission on Appointments, appoint the 1) heads of the executive departments, 2) ambassadors, 3) other public ministers and consuls, or 4) officers of the armed forces from the rank of colonel or naval captain, and 5) 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.

Power to Appoint • Section 16, Article VII • 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 after disapproval by the Commission on Appointments or until the next adjournment of the Congress.

Classification of Appointment in relation to the Power of C.A. REGULAR A regular appointment is one made by the President while Congress is in session; takes effect only after confirmation by the Commission on Appointments, and once approved, continues until the end of the term of the appointee.

Classification of Appointment in relation to the Power of C.A. AD INTERIM Ad interim appointment is one made by the President while Congress is in recess; takes effect immediately until revoked by the Commission on Appointments.

Cases on Presidential Appointment Sarmiento vs. Mison, 156 SCRA 549 Calderon vs. Carale, 208 SCRA 254 Matibag vs. Benipayo, April 2, 2002 Pimentel vs. Ermita, October 13, 2005

Abas Kida vs. Senate, February 28, 2012 Flores vs. Drilon, June 22, 1993

Section 15, Art. VII • Two months immediately before the next presidential elections 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.

Does Sec. 15, Art. VII apply to appointment in judiciary?

• NO. • Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to other appointments to the Judiciary

Velicaria-Garafil vs. Office of the President, June 16, 2015 • The signing of the appointing papers and the transmittal of the same was made before the ban but the acceptance and oath of office happened during the ban. Is the appointment valid?

Velicaria-Garafil vs. Office of the President, June 16, 2015 • The following elements should always concur in the making of a valid appointment: • (1) authority to appoint and evidence of the exercise of the authority; (2) transmittal of the appointment paper and evidence of the transmittal; (3) a vacant position at the time of appointment; and (4) receipt of the appointment paper and acceptance of the appointment by the appointee who possesses all the qualifications and none of the disqualifications.

Velicaria-Garafil vs. Office of the President, June 16, 2015 • The concurrence of all these elements should always apply, regardless of when the appointment is made, whether outside, just before, or during the appointment ban. These steps in the appointment process should always concur and operate as a single process. There is no valid appointment if the process lacks even one step.

Other personnel actions • Promotion – movement from one position to another with increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay. • Appointment through certification – it is issued to a person who has been selected from the list of qualified persons certified by the CSC from an appropriate register of eligible who meets all the qualifications prescribed for the position.

Other personnel actions • Transfer – a movement from one position to another which is of equivalent rank, level or salary without break in service. Under the current Civil Service rules and regulations, transfer may be imposed as a penalty. • Reinstatement – any person who has been permanently appointed to a position and who has, though no delinquency or misconduct, has been separated therefrom, may be reinstated to the position in the same level for which he is qualified.

Other personnel actions • Reassignment – it is a movement of an employee from one organizational unit to another in the same department or agency, which does not involve a reduction in rank, status, or salary. • Reemployment – names of persons who have been appointed permanently to positions in the career service and who had been separated as a result of reduction in force or re-organization, shall be entered in a list from which selection for reemployment shall be made.

Power to Remove • Gonzalez vs. Office of the President, September 4, 2012. • Gonzalez III was removed by the office of the president on the ground of betrayal of public trust. It should be noted that under the Ombudsman Law (RA 6770), the grounds for removing deputy ombudsman are the same grounds for removing Ombudsman. These are: 1) culpable violation of the constitution; 2) treason; 3) bribery; 4) graft and corruption; 5) other high crimes; 6) betrayal of public trust.

Power to Remove • Gonzalez vs. Office of the President, September 4, 2012. • Would every negligent act or misconduct in the performance of a Deputy Ombudsman's duties constitute betrayal of public trust warranting immediate removal from office?

Power to Remove • Gonzalez vs. Office of the President, September 4, 2012. • NO. • The Constitutional Commission eventually found it reasonably acceptable for the phrase betrayal of public trust to refer to "[a]cts which are just short of being criminal but constitute gross faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross exercise of discretionary powers." In other words, acts that should constitute betrayal of public trust as to warrant removal from office may be less than criminal but must be attended by bad faith and of such gravity and seriousness as the other grounds for impeachment.

Power to Remove • Gonzalez vs. Office of the President, January 28, 2014. • Section 8(2) of RA No. 6770 vesting disciplinary authority in the President over the Deputy Ombudsman violates the independence of the Office of the Ombudsman and is thus unconstitutional. The same treatment should be given to Special Prosecutor.

Modes of terminating official relationship • Expiration of term or tenure • Reaching the age limit • Resignation • Recall • Removal • Abandonment • Acceptance of an incompatible office

Modes of terminating official relationship • Abolition of office • Prescription of the right to office • Impeachment • Death • Failure to assume elective office within six months from proclamation • Conviction of a crime • Filing of certificate of Candidacy

Article XI ACCOUNTABILITY OF PUBLIC OFFICERS

STATEMENT OF POLICY • Article XI, 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.

IMPEACHMENT

Impeachable Officers

President

Vice-President

Chairmen and Commissioners of the Constitutional Commissions

Chief Justice and Associate Justices of the Supreme Court

Ombudsman

Grounds for Impeachment

Culpable Violation of the Constitution

Treason. Bribery, Graft and Corruption

Other High Crimes

Betrayal of Public Trust

Meaning of betrayal of public trust • Acts which are just short of being criminal but constitute gross unfaithfulness against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross exercise of discretionary powers. In other words, acts must be attended with bad faith and of such gravity and seriousness as other grounds for impeachment. • Gonzales vs. OP, September 4, 2012

Procedure for Impeachment (Section 3, Article XI) A verified complaint for impeachment may be filed by any member of the HoR or by any citizen upon a Resolution of endorsement by any Member

Included in the order of business within 10 session days, and referred to proper committee within 3 sessions days

If the verified complaint is filed by at least 1/3 of all the members of the House, the same shall constitute the Articles of Impeachment

A vote of at least 1/3 of all the members of the House shall be necessary either to affirm a favourable resolution or override its contrary resolution

The Committee upon majority vote of all its members, shall submit its report which should be done within 60 days after referral

Limitation on the Power to Impeach • No impeachment proceedings shall be initiated against the same official more than once within a period of one year. • Section 3(5), Article XI

What is meant by “Initiation” • Francisco vs. House of Representatives • The SC gives the term “initiate” different from “filing.” The impeachment is deemed initiated when the complaint(with accompanying resolution of endorsement) has been filed with the HoR and referred to appropriate Committee.

Can there be multiple grounds in an impeachment complaint? • Gutierrez vs. The House of Representatives, Feb. 25, 2011, rules that “an impeachment complaint need not alleged only one impeachable offense.” In fact, multiple complaints may be considered so long as they would all be simultaneously referred or endorsed to the proper committee.

Trial and Decision • 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. A decision of conviction must be concurred in by at least two-thirds of all the members of the Senate.

Effect of Conviction •Removal from office and disqualification to hold any office under the Republic of the Philippines. But the party convicted shall be liable and subject to prosecution, trial and punishment according to law.

Ombudsman

Constitutional Underpinnings • Article XI, Section 5 • There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed.

Qualifications • Article XI, Section 8 • The Ombudsman and his Deputies shall be natural-born citizens of the Philippines, and at the time of their appointment, at least forty years old, of recognized probity and independence, and members of the Philippine Bar, and must not have been candidates for any elective office in the immediately preceding election. The Ombudsman must have, for ten years or more, been a judge or engaged in the practice of law in the Philippines.

How appointed? • By the President • From the list of at least six nominees prepared by the JBC and at least three nominees thereafter • For a term of 7 years • Appointment requires no CA confirmation • All vacancies shall be filled up within 3 months from the occurrence of vacancy. • No re-appointment

Article XII NATIONAL ECONOMY AND PATRIMONY

“State Dominium” • Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least 60 per centum of whose capital is owned by such citizens.

State Dominium • Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of waterpower, beneficial use may be the measure and limit of the grant. • The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. • The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish workers in rivers, lakes, bays, and lagoons.

“State Dominium” • The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. • The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.

What is “regalian doctrine”? • All lands are owned by the “Crown.” This is reflected in the 1987 Constitution. Thus: • “All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State.”

What is the consequence of the “regalian doctrine”? • The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. • Any person claiming ownership of a portion of the public domain must be able to show title from the state according to any of the recognized modes of acquisition of title.

If a person is the owner of agricultural land in which minerals are discovered, does his ownership of such land give him the right to extract or utilize the said minerals without the permission of the State?

No. The minerals are owned by the State under the “regalian doctrine”. The land is thus converted into mineral land. For the loss sustained by the owner, he is entitled to compensation. (Republic vs. CA, 160 SCRA 228)

Are there lands which are not covered by regalian doctrine? • Yes. When, as far back as testimony or memory goes, the land has been held by individuals under a claim of private ownership, it will be presumed that to have been held in the same way from before the Spanish conquest, and never to have been public land. • Carino vs. Insurer, 41 Phil. 935; Cruz vs. DENR

Who are qualified to take part with the State in the exploration, development and utilization of natural resources?

The State may enter into “co-production, joint venture, or production sharing agreement with Filipino citizens, or corporations, associations at least sixty per cent of whose capital is owned by Filipino citizens.

May foreign corporation participate in the EDU of mineral resources? Yes. The President may enter into agreements with Foreign-owned corporations involving either technical or financial assistance for large scale EDU of mineral, petroleum and other mineral oils. (Sec. 2)

What may “financial or technical assistance” involve?

It may involve management or operation of mining activities. (La Bugal B’laan Tribal Assoc. vs. Ramos, December 1, 2004)

Section 3 • Lands of the public domain are classified into agricultural, forest or timber, mineral lands and national parks. Agricultural lands of the public domain may be further classified by law according to the uses to which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof, by purchase, homestead, or grant.

Who has the authority to classify public lands? The authority to classify public lands is the exclusive prerogative of the Executive Department. In the absence of such classification, the lands remains unclassified land until released therefrom and rendered open to disposition

Director of Lands vs. CA, 129 SCRA 22

May a corporation acquire alienable lands of public domain? No. Private corporation or association may not hold alienable lands of public domain except thru lease for a period of 25 years extendible for another 25 years covering not more than 1000 hectares.

May a corporation acquire private lands? Yes. Private land means any land of private ownership. This includes both lands owned by private individual and lands which are patrimonial property of the State or of Municipal corporations.

Section 7 • Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.

Section 8 • Notwithstanding the provisions of Section 7 of this Article, a natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law.

Who may acquire private land? Filipino citizens Filipino corporations or associations Former natural born-citizens Aliens, by virtue of hereditary succession

Prospective Bar Question

When husband and wife purport to buy land, and the husband is alien while the wife is Filipino, is the property conjugal such that it may not be disposed of without the consent of the husband?

Answer The property cannot be deemed conjugal because of the incapability of the alien husband to own private land. Thus, the alien husband has no capacity to question the sale made by the Filipino wife. (Cheesman vs. IAC, 193 SCRA 93)

Prospective Bar Question

May a Filipino seller question the legality of sale he made in favour of an alien. Will pari delicto apply?

Answer

The seller may question the sale made to the alien. The principle of pari delicto is not applicable (Philippine Banking corporation vs. Lui She, [1967]).

Prospective Bar Question

Can a corporation sole controlled by non-Filipinos acquire private lands?

Answer No. Land tenure is not indispensable to the free exercise of religion. Thus, a religious corporation controlled by non-Filipinos, cannot acquire and own lands even for religious use or purpose. (RD vs. Ung Sui Si Temple, [1955])

Prospective Bar Question

What is the limitations on the right of the former natural born Filipino citizens to own lands in the Philippines?

Answer 1. Maximum of 5000 square meters in urban areas 2. 3 hectares in rural areas 3. Not more than 2 lots as long as the maximum area allowed is not violated. (RA 8179)

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.

Section 11 • 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.

What is a public utility? • It is a utility corporation which renders service to the public for compensation. Its essential feature is that its service is not confined to privileged individuals but is open to an indefinite public. The public or private character of a utility does not depend on the number of person who avail of its service but on whether or not it is open to serve all members of the public who may require it.

What is the meaning of 60% capital ownership?

• Mere legal title is insufficient to meet the 60 percent Filipino owned “capital” required in the Constitution. Full beneficial ownership of 60 percent of the outstanding capital stock, coupled with 60 percent of the voting rights, is required. The legal and beneficial ownership of 60 percent of the outstanding capital stock must rest in the hands of Filipino nationals in accordance with the constitutional mandate. Otherwise, the corporation is “considered as non-Philippine national[s].” (Gamboa vs. Finance Secretary, [2011])

What is the meaning of 60% capital ownership? • Since the constitutional requirement of at least 60 percent Filipino ownership applies not only to voting control of the corporation but also to the beneficial ownership of the corporation, it is therefore imperative that such requirement apply uniformly and across the board to all classes of shares, regardless of nomenclature and category, comprising the capital of a corporation. Under the Corporation Code, capital stock consists of all classes of shares issued to stockholders, that is, common shares as well as preferred shares, which may have different rights, privileges or restrictions as stated in the articles of incorporation. (Gamboa vs. Finance Secretary, MR [2012])

Last Paragraph, Section 14

•The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law.

Section 17 • In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest.

Is the taking of privately owned utility by the State under Section 17, subject to payment of just compensation?

No. Because the taking under Section 7, Article XII is by virtue of the police power of the State. (Agan vs. PIATCO, [2004])

In case of national emergency, may the President take over the operation of any privately owned public utility?

The power is not automatically conferred to the President. The power to take over the operation of public utilities is activated only of Congress grants emergency powers under Section 23(2), Article VI. Section 17 must be read with Article VI, Section 23(2). Section 17 gives the power to the State not to the President. The president acquires emergency powers when given by Congress in a state of emergency declared by Congress. (David vs. Arroyo, [2006]).

Section 18 •The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government.

Article XIII SOCIAL JUSTICE AND HUMAN RIGHTS

Section 3 • The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. • It shall guarantee the rights of all workers to 1. self-organization, 2. collective bargaining and negotiations, and 3. peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to 4. security of tenure, 5. humane conditions of work, and a 6. living wage. They shall also 7. participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

Section 3: Labor • The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. • The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.

Bar Question • Congressman Cheng says he is one of the co-authors of the SBMA Charter. He declares that the SBMA is the answer to rapid economic growth and the attainment of the President’s “Philippine 2000” dream. However, Cheng is worried that foreign capital might be slow in coming in due to unstable working conditions resulting from too many strikes. To remedy this situation, Cheng proposes an amendment to SBMA law declaring it to be as strike-free zone or total ban on strikes? Explain briefly.

Answer • The proposal is not legally defensible. Section 3, Article XIII guarantees the right of all workers to engage in peaceful concerted activities, including the right to strike. Thus, the proposal will violate this constitutional provision.

Section 4: Agrarian Reform • The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small landowners. The State shall further provide incentives for voluntary landsharing.

Is stock distribution transfer constitutional? • The wording of the provision is unequivocal––the farmers and regular farmworkers have a right TO OWN DIRECTLY OR COLLECTIVELY THE LANDS THEY TILL. The basic law allows two (2) modes of land distribution—direct and indirect ownership. Direct transfer to individual farmers is the most commonly used method by DAR and widely accepted. Indirect transfer through collective ownership of the agricultural land is the alternative to direct ownership of agricultural land by individual farmers.

Is stock distribution transfer constitutional? • The aforequoted Sec. 4 EXPRESSLY authorizes collective ownership by farmers. No language can be found in the 1987 Constitution that disqualifies or prohibits corporations or cooperatives of farmers from being the legal entity through which collective ownership can be exercised. xxx. Clearly, workers’ cooperatives or associations under Sec. 29 of RA 6657 and corporations or associations under the succeeding Sec. 31, as differentiated from individual farmers, are authorized vehicles for the collective ownership of agricultural land.

Is stock distribution transfer constitutional? • Cooperatives can be registered with the Cooperative Development Authority and acquire legal personality of their own, while corporations are juridical persons under the Corporation Code. Thus, Sec. 31 is constitutional as it simply implements Sec. 4 of Art. XIII of the Constitution that land can be owned COLLECTIVELY by farmers. (Hacienda Luisita Incorporated v. Luisita Industrial Park Corporation, G.R. No. 171101, July 5, 2011)

Section 17: Human Rights • There is hereby created an independent office called the Commission on Human Rights. • The Commission shall be composed of a Chairman and four Members who must be natural-born citizens of the Philippines and a majority of whom shall be members of the Bar. The term of office and other qualifications and disabilities of the Members of the Commission shall be provided by law.

Section 17: Human Rights • Until this Commission is constituted, the existing Presidential Committee on Human Rights shall continue to exercise its present functions and powers. • The approved annual appropriations of the Commission shall be automatically and regularly released.

Powers of CHR •In essence the power of CHR is only investigatory. It has no prosecutorial powers.

Does CHR have jurisdiction over cases involving socio-economic rights? No. The Constitution provides that the CHR has the power to “investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights.” (Section 18, Article XIII; Simon, Jr. vs. CHR, [1994]).