Mateo Notes Constitutional Law 1

Constitutional Law I Atty. Antonio Nachura, Jr.

Part I - Introduction 1. Define Political Law Political Law is that branch of public law which deals with the organization and operations of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory. (People vs. Perfecto) Scope of Political Law a. Constitutional Law b. Administrative Law c. Election Law d. Law of Public Officers e. Law on Municipal Corporation Constitutional Law - the study of the structure and powers of the Government of the Philippines. - deals with the basic concepts of Political Law – nature of the state, supremacy of the constitution, separation of powers, rule of majority Sources of Political Law a. 1987 Constitution b. 1935 and 1973 Constitution c. Statutes, Executive Orders, Decrees, Judicial Decisions d. American Constitution and Jurisprudence e. Organic laws during the American occupation 2. Differentiate Municipal Law from Political Law 3. Define the Constitution It is the fundamental organic law of a State which contains the principles on which government is

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founded, and regulates the division and exercise of sovereign powers. (Justice Cooley) 4. Define the Constitution of the Philippines The Constitution of the Philippines is a written instrument enacted by the direct action of the people by which the fundamental powers of the government are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise, for the benefit of the body politic. 5. What are the classifications of Constitution? a. Cumulative – resulted from a political evolution across several years Conventional – enacted by a constituent body b. Written – embodied in set of documents Unwritten – embodied in our culture, customs, traditions, statutes, judicial decisions, commentaries c. Rigid – can be amended by special legislative proceedings Flexible – can be amended by ordinary legislative proceedings What is the nature of our Constitution? It is rigid because it can only be amended by strictly following the provisions of Article XVII. It is written because it is embodied in a single document. It is conventional because it is formally “struck off” at a definite time and place following a conscious effort taken by a constituent body.

Constitutional Law I Atty. Antonio Nachura, Jr.

Advantage of the Constitution – permanence; capacity to resist capricious change Disadvantage of the Constitution – unable to adjust to the genuine need for change When was the Philippine Constitution enacted? 

February 2, 1987 as pronounced by the Supreme Court in the case of De Leon vs. Esguerra.

Parts of the Constitution a. Constitution of Government - provides for the organization of government, and enumerates the powers of the same (general governmental framework) b. Constitution of Liberty - provides for the civil and political rights of citizens and the limitations on the powers of government to secure those rights. c. Constitution of Sovereignty – provides ways of amending the constitution Interpretation of the Consitution a. Verba legis – words used in the Constitution must be given their ordinary meaning b. Ratio legis et anima – the words of the constitution should be interpreted in accordance with the intent of the framers c. Ut magis valeat quam pereat – the Constitution has to be interpreted as a whole 6. What were the constitutions of the Philippines? a. 1935 Commonwealth Constitution b. 1973 Martial Law Constitution

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c. 1986 Freedom Constitution d. 1987 Constitution 7. What was the constitution governing the Philippines before 1935? Why was in not recognized or considered valid? The Constitution governing the Philippines before 1935 was the Malolos Constitution. It was not recognized as constitution because during those times the Philippines is not an independent country. 8. How do you propose amendments to the Constitution? (Article 17) a. By the Congress, upon a vote of three-fourths (3/4) of all its members/through the Congress acting as a constituent assembly; [Article 17, Section 1(1)] *each house may separately formulate amendments by a vote of 3/4s of all its members, and then pass it on to the other house for a similar process* b. By a constitutional convention; or [Article 17, Section 1(2)] *2/3 vote of Congress or majority vote of registered voters* c. Direct proposal by the people through initiative/people’s initiative [Article 17, Section 2] Requisites: 12% vote- total national registered voters 3% vote – total legislative district registered voters

Constitutional Law I Atty. Antonio Nachura, Jr.

d. Once every 5 years, no amendment 5 years following the ratification of the Constitution Enabling law from the Congress 9. How do you propose revisions to the Constitution? a. By the Congress, upon a vote of three-fourths (3/4) of all its members/through the Congress acting as a constituent assembly; or [Article 17, Section 1(1)] b. By a constitutional convention which is called by two-thirds (2/3) vote of all the members of the Congress, or by a majority vote of all the members of the Congress in case the question of calling such a convention is submitted to the electorate [Article 17, Section 3] 10. What is an amendment? (Lambino vs. COMELEC) - It refers to isolated or piecemeal change in the Constitution. - Amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved - Amendment generally affects only the specific provision being amended. 11. What is a revision? (Lambino vs. COMELEC) - It is a revamp or rewriting of the whole Constitution. - Revision generally affects several provisions of the Constitution Revision broadly implies a change that alters a basic principle in the Constitution, like altering the principle of separation of powers or the system of checks-and-balances.

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There is also revision if the change alters the substantial entirety of the Constitution, as when the change affects substantial provisions of the Constitution

12. What are the two tests to determine whether the proposal is an amendment or revision? (Lambino vs. COMELEC)

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Quantitative Test Whether the proposed amendment is so extensive in its provisions as to change directly the substance entirety of the constitution by the delegation or alteration of numerous provisions. The court examines only the number of provisions affected Does not consider the degree of changes Qualitative Test

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Whether the change will accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision Should both the tests be present to determine whether the proposal is an amendment or revision? Yes. There are instances when the entirety of the Constitution will be changed even if there is only a twoword change in cases of amendment of provisions about system of government/structure of government.

13. Why can the people only propose amendments and not revision? (Lambino vs. COMELEC) The framers of the Constitution intended, and wrote, that only Congress or a constitutional convention may

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propose revisions to the Constitution. The framers intended, and wrote, that a people’s initiative may propose only amendments to the Constitution. Where the intent and language of the Constitution clearly withhold from the people the power to propose revisions to the Constitution, the people cannot propose revisions even as they are empowered to propose amendments. 14. In People’s initiative, what should be included in the petition? a. Petition b. Full text of the proposed amendments which must be embodied in number 1 or at least attached thereto and such fact of attachment is stated in the petition c. Twelve percent (12%) of total registered voters; three percent (3%) of registered voters in each representative district/legislative district d. Authentication of the signatures by the Commission on Elections (COMELEC) e. Amendment, not revision f. Once every five (5) years g. Enabling law from the Congress h. Must contain only one topic (Hodgepodge or logrolling is not allowed. The proposed amendment must embrace only one topic because if it contains two topics, the people will be forced to accept two changes even if they do not want the other.)

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15. What is the difference between the law-making powers of Congress from its constituent powers? The word “constituent” means citizens. The power to amend the Constitution is not inherent in the Congress. It is inherent in the people. However, by express provision of the Constitution, the people (who, in the first place, made the Constitution) gave the Congress the power to amend. Hence, the Congress is not acting in its ordinary capacity to legislate, but as people themselves.

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Doctrine of Fair and Proper Submission A plebiscite may be held on the same day as regular election provided the people are sufficiently informed of the amendments to be voted upon, to conscientiously deliberate thereon, and to express their will in a genuine manner. (Gonzales vs. COMELEC) Submission of piece-meal amendments is unconstitutional. All the amendments (as a whole) must be submitted for ratification at one plebiscite only. (Tolentino vs. COMELEC) Ratification [Article 17, Section 4] After submission, the proposed changes shall be valid when ratified by the majority votes cast in a plebiscite. 60-90 DAY RULE  No election shall be held within 60 days from the submission of the proposal  No election shall be held after 90 days from the submission of the proposal  Thus, election will be held on the 61st to the 90th day only

Constitutional Law I Atty. Antonio Nachura, Jr.

16. What are the 3 theories of Constitutional Convention? a. Theory of Conventional Sovereignty – the Constitutional Convention is supreme over the other departments of the government because the powers it exercises are in the nature of sovereign powers b. the Constitutional Convention is inferior to the other departments of the government since it is merely a creation of the legislature c. the Constitutional Convention is considered independent of and co-equal with the other departments of the government 17. What are the requisites for judicial review of amendments? Manner of making the proposal / prescribed procedure a. WON proposal was approved by the required number of votes of Congress b. WON the approved proposals were properly submitted to the people for ratification c. WON the proposals were ratified by majority of the votes cast in a plebiscite called for the purpose Amendment or Revision? 18. Removing women’s right to suffrage – 19. Reducing voting age – Amendment 20. Rejecting general principles of international law – Revision 21. To include disputed islands in the territory and To reduce the territory – Revision; it will affect many

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provisions, it will alter the basic principle of the Constitution 22. Reducing the number of judges – Amendment 23. Change the government to monarchy – Revision; The entirety of the Constitution will be changed even if there is only a two-word change in cases of amendment of provisions about system of government/structure of government

Part II – Concept of the State 1. What is a state? (Garner, Intro to Political Science) It is a community of persons, more or less numerous, permanently occupying a definite territory, having government of its own, where a great body of inhabitants render habitual obedience and enjoying freedom from external control. Elements of a state: a. People – refers simply to the inhabitants of the State b. Territory – Fixed portion of the surface of the earth inhabited by the people of the State c. Government – agency or instrumentality through which the will of the State is formulated, expressed and realized d. Sovereignty – the supreme and uncontrollable power inherent in a State by which that State is governed e. High degree of civilization f. Recognition of other states

Constitutional Law I Atty. Antonio Nachura, Jr.

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2. Distinguish state from a nation. STATE NATION Political/Legal Concept Ethnic Concept - The existence of - Indicates a relation the relationship of of birth or origin the people and and implies a government. common race, usually characterized by community of language and customs. Contains 4 or 6 elements

Exercises Sovereignty May comprise of many nations - Israel - Canada

Incomplete State - May lack any element except the people - Need not to be a state at all Does not exercise sovereignty May comprise of many states - Arab Nation

State is not similar to a nation. The state is a political/legal concept while the nation is an ethnic/racial concept. The state as a political/legal concept means that the state is an abstract, ideal person, existing only in contemplation of law. It is composed of its elements, to wit, people, territory, government, and sovereignty. The nation as an ethnic/racial concept means that the people are

bound by common social origin, language, customs and traditions.

3. Distinguish state from government. STATE GOVERNMENT 4 or 6 elements Only an element instrument of the state

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Principal

Agent

Abstract Concept

Externalizes the State and articulates its will

Cannot exist without a government

Can exist without a state Ex. Palestinian Government

PEOPLE – People refers simply to the inhabitants of the State. 4. What are the specific requirements in the element of “people”? There is no requirement as to the number of people that should compose a State, however, they must be numerous enough to be self-sufficing and to defend themselves and small enough to be easily administered and sustained. People must come from both sexes to be able to procreate. TERRITORY – Fixed portion of the surface of the earth inhabited by the people of the State

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Philippines exercises sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domain, including its territorial sea, the seabed, the subsoil, the insular shelves, and other marines areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.”

*The territory should be neither too big as to be difficult to administer and defend nor too small as to be unable to provide for the needs of the population such as food and natural resources. 5. What are the components of the national territory of the Philippines? a. Terrestrial Domain – composed of the land b. Maritime Domain – maritime belt/sea belt/marginal belt Fluvial Domain – inland waters such as rivers, lakes, lagoons, canals c. Aerial Domain – the air space above the land and waters, excluding outerspace * Sovereignty over airspace extends only until where outerspace begins. (50-100 miles from the earth)* 6. What is the extent of the territory of the Philippines? 12 nm from the baseline – exclusive territory; exclusive jurisdiction 24 nm from the baseline – contiguous zone; jurisdiction over domestic customs and immigration laws 200 nm from the baseline – exclusive economic zone; privilege to exploit natural resources

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“All other territories” Treaty of Paris territory US-Spain treaty  Cagayan  Sulu  Sibuto Batanes Island Historic right/Legal title  Sabah  Scarborough Shoal  Kalayaan Group of Islands US-UK treaty  Turtle Islands  Mangasee Islands

8. Why is the Philippines an archipelago?

7. What comprises the Philippine territory? (Article 1, 1987 Constitution)

It is an archipelago because it is located on a body of water surrounded by seven thousand one hundred seven (7,107) islands.

“The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the

Archipelago – It is a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such

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islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such. Simply stated, it is a body of water studded or surrounded by islands.

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Scarborough Shoal. Thus, the regime of islands are still part of the Philippine national territory.

Archipelagic Waters – The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions

11. What would qualify an island? [Article 121(1), UNCLOS III] An island is a naturally formed area of land, surrounded by water, which is above water at high tide

Archipelagic Doctrine – It is a principle which considers the group of islands as one integrated unit. For this purpose, it requires that straight baselines be drawn by connecting the appropriate points of the outermost islands to encircle the islands within the archipelago. We consider all the waters enclosed by the straight baselines as internal waters.

12. What is the difference between normal baseline method and straight baseline method? Normal baseline method follows the sinuses and curvatures of the islands while straight baseline method determines the outermost points of the outermost islands then connects them.

9. What are the terrestrial or maritime features of the Philippine territory? - Territorial Sea – 12 nm from the baseline - Seabed – sea floor or sea bottom - Subsoil – beneath the surface soil and the seabed - Insular shelves - Other submarine areas 10. Are the “regime of islands” part of the Philippine national territory? Does the Philippines has jurisdiction over these islands? Yes. In the case of Magallona v Ermita, the court ruled that under Section 2 of RA 9522, the law commits to text the Philippines’ continued claim of sovereignty and jurisdiction over the KIG and the

13. Are our internal waters included in the right to innocent passage? - No. The law does not provide in UNCLOS III and RA 9522 that our internal waters are subject to the right of innocent passage. The right to innocent passage will be applicable only outside the 24NM contiguous zone and within the 200NM EEZ. If one state traverses the area within the territorial seas, the state must ask permission from the local state or atleast there must be a bilateral agreement between those states. Thus, there is no innocent passage within our internal waters unless permitted by the state.

Constitutional Law I Atty. Antonio Nachura, Jr.

GOVERNMENT – agency or instrumentality through which the will of the State is formulated, expressed and realized Functions: Constituent and Ministrant Constituent functions are the basic functions of the government and are thus compulsory while ministrant functions are those undertaken to advance the general interests of society and are thus optional. -

Constituent – governmental, core Ministrant – proprietary

Is the difference between governmental and proprietary functions still relevant? No. In PVTA vs.CIR, the Supreme Court held that such distinction has been obsolete and blurred because of the repudiation of the laissez faire policy in the Constitution. The government, under the Constitution, is under an obligation to promote social justice Doctrine of Parents Patriae - The government as guardian of the rights of the people may initiate legal actions an in behalf of particular individual. - It means parent of the country. The State acts as the guardian of persons under disabilities. DE JURE GOVERNMENT

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It is a government of right. It has rightful title but no power or control, either because this has been withdrawn from it or because it has not yet actually entered into the exercise thereof. It is a government established according to the Constitution of the State, and lawfully entitled to recognition and supremacy but is actually ousted from power or control. It is the true and lawful government. (e.g. Government of the Philippines) DE FACTO GOVERNMENT It is a government of fact. It actually exercises power or control but without legal title. It is that government which unlawfully gets the possession and control of the rightful legal government and maintains itself there by force and arms against the will of the rightful legal government, and claims to exercise the powers thereof. three (3) kinds of de facto government -

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By violence/force/the voice of the majority  (e.g. Government of England under the Commonwealth, first by Parliament and later by Cromwell as Protector) By insurrection (*insurrection – rebellion on a smaller scale)  (e.g. Government of the Southern Confederacy in revolt against the Union during the war of secession in the United States) By military forces/war/government of paramount force  (e.g. Castine in Maine, which was reduced to a British possession in the war of 1812; Tampico, Mexico, occupied during the war with Mexico by the troops of the United States; Second

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Republic of the Philippines established by the Japanese belligerent during the occupation of the Philippines in World War II) EFFECTS SOVEREIGNTY – the supreme and uncontrollable power inherent in a State by which that State is governed What are the four (4) kinds of sovereignty? a) Legal sovereignty – is the authority by which a state has the power to issue final commands. (Gilebrist, Principles of Political Science) b) Political sovereignty – the sum total of all the influences in a State which lie behind the law; roughly defined as the power of the people; the sovereignty of the electorate, or in its general sense, the sovereignty of the whole body politic. (Gonzales, Philippine Political Law) c) Internal sovereignty – management of our domestic affairs; the supremacy of a person or body of persons in the State over the individuals or association of individuals within the area of its jurisdiction. (Gonzales, Philippine Political Law) d) External sovereignty – freedom from external control. It is the supremacy of the State as against all foreign wills. (Gonzales, Philippine Political Law) Characteristics of Sovereignty - permanent - exclusive - comprehensive - absolute - indivisible - inalienable - imprescriptible

SOVEREIGNTY

POLITICAL LAWS

BELLIGERENT OCCUPATION Sovereignty itself is not suspended, only the exercise of sovereignty.

Political laws are merely suspended, subject to revival under the jus postliminium upon the end of the occupation Exceptions: (1) the rule suspending political laws affects only the civilian inhabitants of the occupied territory and is not intended to bind the enemies in arms. (2) It also does not apply to the law on treason although decidedly political in character.

MUNICIPAL LAWS

Non-political laws are deemed continued

CESSION There is a change in sovereignty Ex. Spanish government ceded the Philippines to the American government. Where there is a change of sovereignty, the political laws of the former sovereign are not merely suspended but abrogated. As they regulate the relations between the ruler and the ruled, these laws fall to the ground ipso facto unless they are retained or reenacted by positive act of the new sovereign.

Non-political laws, by contrast,

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(non political laws; Civil Laws)

unless changed by the belligerent occupant since they are intended to govern the relations of individuals as among themselves and are not generally affected by changes in regimes or rulers.

continue in operation, for the reason also that they regulate private relations only, unless they are changed by the new sovereign or are contrary to its institutions.

JUDICIAL DECISIONS

They are valid during the occupation and even beyond except those of a political complexion, which are automatically annulled upon the restoration of the legitimate authority

Still valid

Doctrine of Jus Postliminium It is used for de facto government of the third kind – belligerent occupation or government of paramount force. At the end of the belligerent occupation, when the occupant is ousted from the territory, the political laws which had been suspended during the occupation shall automatically become effective again.

Constitutional Law I Atty. Antonio Nachura, Jr.

Part III – State Immunity 1. What is the legal basis of the Doctrine of Immunity? (Article 16, Section 3) “The State may not be sued without its consent.” This provision reflects nothing less than a recognition of the sovereign character of the State and an express affirmation of the unwritten rule insulating it from the jurisdiction of the courts of justice. It is based on the very essence of sovereignty. 2. What is that doctrine stating state immunity? Doctrine of royal prerogative of dishonesty - There can be no legal right against the authority which makes the law on which the right depends. (Justice Holmes) - Grants the state the prerogative to defeat any legitimate claim against it simply by invoking its nonsuability. 3. What are the tests to determine if the suit is a suit against the state? a. If it would require the government to do an affirmative act. Affirmative act may be in the form of: money, payment of damages, fund, appropriation, interests, properties b. If it produces adverse consequence on the public treasury. c. The republic is sued by its name d. The suit is against an unincorporated agency

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e. When the suit is against a government officer but the ultimate liability will belong not to the officer but to the government. 4. How do you know if a suit against a public officer is a suit against the state? If it would require the government to do an affirmative act. Affirmative act may be in the form of: money, payment of damages, fund, appropriation, interests, properties 5. When can a public officer be sued? As enumerated in Sanders vs. Veridiano, there are exceptions in which a public officer may be sued without prior consent of the State, to wit: - to compel him to do an act required by law - to sue him in his personal capacity - to restrain him from enforcing an act claimed to be unconstitutional; - to compel the payment of damages  refund; - to secure a judgment that the officer impleaded may satisfy by himself without the State having to do a positive act to assist him; and - where the government itself has violated its own laws (e.g. recovery of property unjustly taken) 6. How do you determine if a government agency can be sued? - Determine whether the agency is incorporated or unincorporated. - If unincorporated, determine whether primary function is governmental or proprietary.

Constitutional Law I Atty. Antonio Nachura, Jr.

If governmental, it is a suit against the State. Consent must be determined.  If proprietary, it is not a suit against the State. Case should not be dismissed. - If incorporated, look at its charter.  Suable or not suable if charter says so  If charter is silent, look at its function. G – not suable; P – suable  Municipal Corporations can always sue and be sued 7. Can public funds be subject to writ of execution or garnishment? No General Rule: Whether the money is deposited by way of general or special deposit, it remains as government funds and may not be subject to garnishment. 

Exception: When a law or an ordinance has been enacted appropriating a specific amount to pay a valid government obligation, then the money can be garnished. 8. What is the basis on the principle that other states can invoke immunity? Par in parem non habet imperium - An equal has no power over an equal. All States as sovereign equals cannot assert jurisdiction over one another. 9. What is the basis on the principle that the United Nations can invoke immunity? (1946 Convention on the Privileges and Immunities of the UN)

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The United Nations, as well as its organs and specialized agencies, are likewise beyond the jurisdiction of local courts 10. What is the basis on the principle that International Organization or Agencies can invoke immunity? Treaties where Philippines is a signatory Bilateral Agreements Consent given by DFA Special Law 11. According to the VCDR, who are members of the diplomatic mission that are immune from suit? (Art. 31. Vienna Convention on Diplomatic Relations) - Sovereigns and other heads of state - Ambassadors, ministers, plenipotentiary, minister resident and charges d’ affaires. - Consuls to a certain extent 12. What are the types of consent? Express Consent general law Money claims arising from contracts must be filed in COA; COA must act upon within 60 days; rejection of the claim authorizes the claimant to elevate the matter to the Supreme Court. special law  must be embodied to a duly enacted statute and may not be given by a mere counsel of the government Implied Consent - State itself commences litigation or files a suit. - State enters into a contract in its proprietary capacity.

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State is an interpleader/intervenor in a case – in which case it applies only if the State intervenes not for the purpose of invoking its immunity When it would be inequitable for the State to claim immunity  The Doctrine of State Immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen. When the government takes any property for public use, it is conditioned upon the payment of just compensation. (Amigable v Cuenca)

13. At what point shall the state invoke immunity? Before or during the suit? Before the suit. If trial already started, the state can no longer invoke state of immunity. 14. Is suability the same as liability? No. Suability depends on the consent of the State to be sued; liability on the applicable law and the established facts. The circumstance that a State is suable does not necessarily mean that it is liable. On the other hand, it 1 can never be held liable if it does not first consent to be sued. Liability is not conceded by the mere fact that the State has allowed itself to be sued. When the State waives its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable. The State, in many cases, may be suable but not liable.

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Hypothetical cases: 15. A sues the state because A wants to compel the government to issue him a driver’s license. A does not want any money. Can the state invoke immunity? No. Suits even without consent can prosper if the suit is a petition for mandamus to compel a public officer to do an obligation. In this case, the government has an obligation to issue driver’s license if the applicant mett the requirements to obtain a driver’s license. Thus, A can compel the state to issue him a driver’s license. 16. A is a public officer working in a government agency which has a proprietary function. A acts in good faith and performs his duties. Can A invoke state immunity? 17. A sues B who is a public officer. B committed the act in the discharge of his official function and in the scope of his authority. Can B invoke state immunity? Yes. In a Supreme Court decision, if a government official committed an act in the discharge of his official function and in the scope of his authority, the suit against him will be a suit against the state for the ultimate liability will belong not to the officer but to the government. 18. Same facts but A sues B in his personal capacity. Can B invoke state immunity? No. In Sanders v Veridiano, it is an exception to the rule that a suit against government officials are considered

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suit against the state. If the government official is sued in his personal capacity, it is not a suit against the state and thus, he cannot invoke state immunity Part IV – State Policies 1. What is the difference between principle and state policies - Principles – binding rules which must be observed in the conduct of government - Policies – guidelines for the orientation of the state *Difference between them, does not matter in the Constitution* 2. What are the principles under Article 2? - Section 1-6 3. What are the state policies under Article 2? - Section 7-28 4. Are all the sections in article 2 self executing provisions? - No 5. Which sections is self executing? - Section 15, 16, 28 6. What are the essential characteristics of a Republican State? - Government of law and not of men - Rule of majority - Accountability of public officers - Bill of rights

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Elections Separation of powers Legislature cannot pass irrepealable laws Non suability

7. Is there a particular provision in Article 2 differentiating offensive from defensive war? - Yes. It is found in Article 6, Section 23(1). The congress cannot declare war (offensive) but the existence of a state of war (defensive) presumably commenced or provoked by the enemy State. 8. When can international law becomes part of the law of the land? - Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or by incorporation. - The transformation method requires that an international law principle be transformed into domestic law through a constitutional mechanism, such as local legislation. o Senate ratifying a treaty - The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law. Since they are generally accepted principles of international, they are automatically part of our own laws. 9. Examples of international laws that are incorporated as part of the law of the land - renunciation of war as an instrument of national policy

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sovereign immunity a person’s right to life, liberty and due process pacta sunt servanda

10. How can you reconcile a conflict between an international law and a municipal law? a. Efforts should be exerted to harmonize them. - resolve it using statutory construction - the later in time prevails - specific law prevails over general law. b. Generally, municipal law shall prevail. Especially in the exercise of: - Police power - Eminent domain - Taxation powers - Separation of powers – rule making power of the courts Rationale: inherent powers of the state, could not be bargained away or surrendered through medium of a treaty 11. Municipal law shall prevail over int’l law – always? - Lex posterior derogate priori – The Constitution shall prevail all the time. - Treaties are of the same weight as Republic Acts. - Since the Constitution is superior than RAs, treaties are also inferior to the Constitution ALL the TIME. 12. Can a state favour any religion? - No. Article 3, Section 5 of the Constitution “Nonestablishment” clause

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13. Preamble – “Almighty God” Does it signify favouring a religion? - No. It just connotate the adherence of the Filipino people to the notion of a creator as an integral component of their respective religions. 14. Does it mean that atheists did not ordain and promulgate the constitution because they do not believe in the existence of an Almighty God? - No. In Garcia v Drilon (GR 179267), the court ruled that it is only an affirmation of the reality that the vast majority of the Filipino people believe in an “Almighty God” and that the Philippines is the “bastion of Christianity in Asia” where 93% of the total population adheres to the teachings of Jesus Christ. - No. The Preamble is not a source of right, it is not mandatory. 15. Declaring holiday a feast day of a saint per se, favours a religion? - No. The separation of Church and State is not a wall of hostility or absolute separation, the state also recognizes religion. Declaring religious events as legal holidays do not favour a religion. The principle of benevolent neutrality approach gives room for accommodation of religious exercises as required by the Free Exercise Clause. Accommodation is given to religion so long as it does not offend compelling state interests. 16. What do you mean by social justice? - Justice Laurel in Calalang vs. Williams

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“Social justice is neither communism, nor despotism, nor atomism, nor anarchy, but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the component elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex.”

17. When does life begin? - Conception - It starts in the fertilization of the egg cell and the sperm cell 18. How can you reconcile the decision in MPH v GSIS and Tanada v Angara? It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance System, et al., this Court held that Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words the provision does not require any legislation to put it in operation. It is per se judicially enforceable. However, as the constitutional provision itself

Mary Evielyn N. Mateo San Beda Law

states, it is enforceable only in regard to the grants of rights, privileges and concessions covering national economy and patrimony and not to every aspect of trade and commerce. It refers to exceptions rather than the rule. The issue here is not whether this paragraph of Sec. 10 of Art. XII is self-executing or not. Rather, the issue is whether, as a rule, there are enough balancing provisions in the Constitution to allow the Senate to ratify the Philippine concurrence in the WTO Agreement. And we hold that there are. All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign competition and trade practices that are unfair. In other words, the Constitution did not intend to pursue an isolationist policy. It did not shut out foreign investments, goods and services in the development of the Philippine economy. While the Constitution does not encourage the unlimited entry of foreign goods, services and investments into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on foreign competition that is unfair. 19. What is local autonomy? - Local autonomy under the 1987 Constitution simply means “decentralization”. It does not mean independence or make LGUs sovereign within the state. 20. What are the kinds of Decentralization? a. Decentralization of power

Constitutional Law I Atty. Antonio Nachura, Jr.

Abdication of political power in favour of an LGU b. Decentralization of administration - central government merely delegates administrative powers to political subdivisions -

21. What is public interest?

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Constitutional Law I Atty. Antonio Nachura, Jr.

Mary Evielyn N. Mateo San Beda Law

Part VI – Delegation of Powers 1. What is the rationale behind the non-delegation of powers? Potestas delagata non delagari potest – What has been delegated cannot be delegated Rationale: Delegated power cannot be further delegated or what has been delegated cannot be delegated. It means that a delegated power constitutes not only a right but a duty to be performed by the delegate by the instrumentality of his own judgment and not through the intervening mind of another. 2. Can Judicial, Executive, Legislative power delegated? - Generally no, but there are exceptions.

be

3. What are the manifestations of a republican government? - a representative government run by and for the people where sovereignty resides in the people and where all government authority emanates from the people 4. Who delegated the power to the three branches of the government? - The People 5. Is the rule of non-delegation of powers absolute? - No. There are permissible delegations. 6. What are the permissible delegations?

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Tariff powers to the President Emergency powers to the President People at large Local Governments Administrative Bodies

7. What are the two concepts of legislative delegation? - What is the law - When should the law be implemented 8. What is the legal basis of the delegation to people? - Article 6, Section 32 - RA 6735 Referendum – power of the electorate to approve or reject a legislation through an election called for a purpose Plebiscite – electoral process by which an initiative on the Constitution is approved or rejected by the people 9. What is the legal basis of the delegation to local governments? - Art. 10, Sec.3 - Local Government Code Requisites of a valid ordinance Rationale: local legislatures are more knowledgeable than national lawmaking body on matters of purely local concern. Cardinal Principle: local affairs shall be managed by local authorities and general affairs by the central authority.

Constitutional Law I Atty. Antonio Nachura, Jr.

10. What is the legal basis administrative bodies? - Charter

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of

the

delegation

to

12. What is the legal basis of the delegation of emergency powers? - Article 6, Section 23, paragraph 2

Power of Subordinate Legislation Authority delegated by the law-making body to the admin body to adopt rules and regulations intended to carry out the provisions of a law and implement the legislative policy.

Conditions for Emergency Powers a. There must be war or other national emergency. b. The delegation must be for a limited period only. c. The delegation must be subject to such restrictions as the Congress may prescribe. d. The emergency powers must be exercised to carry out a national policy declared by Congress.

Requisites of a valid administrative regulation a. Its promulgation must be authorized by the legislature b. It must be promulgated in accordance with prescribed procedure c. It must be within the scope of the authority given by the legislature d. It must be reasonable 11. What is the legal basis of the delegation of tariff powers? - Article 6, Section 28, paragraph 2 - Tariff and Customs Code Power to fix: a. Tariff rate b. Import and export quotas c. Tonnage d. Wharfage dues e. Other duties or imposts under the National Development Program of the Government

13. The power of the local governments to enact ordinances – delegated power or inherent power? - Delegated power given by Congress 14. The power of the president to declare state of lawless violence – delegated power or inherent power? - Inherent power given by the Constitution 15. What are instances that Congress can delegate emergency powers? - War - Other National Emergency - Majority is affected. The emergency must be of nationwide proportions and effect. a. Rebellion b. Economic crisis c. Pestilence or epidemic d. Typhoon

Constitutional Law I Atty. Antonio Nachura, Jr.

e. Flood Rationale: During grave emergencies, it may not be practicable for Congress to meet and exercise power. In such occasions, the *Constitution expressly permits Congress to grant legislative powers to the President subject to certain limitations. 16. Why it is still necessary for Congress to define what is an “emergency”? 17. Why are emergency powers for a limited period only? It must be temporary or it cannot be said to be an emergency Justice Tuason in Emergency Powers Cases: for Congress might not enact the repeal, and even if it would, the repeal might just be vetoed by the President. It would create an anomaly that, while Congress might delegate its powers by simple majority, it might not be able to recall them except by a 2/3 vote. In other words, it would be easier for Congress to delegate its powers than to take them back. 18. When can the emergency power cease to exist? - When Congress withdraw the emergency powers by a resolution - Cessation of the emergency - Adjournment of Congress 19. What are the limitations of emergency power? - The emergency powers may be granted by law to the President only in times of war or national emergency

Mary Evielyn N. Mateo San Beda Law

-

-

The said powers must be exercised only during a limited period, that is, for the duration of the war or other national emergency. The delegation must be subject to such restrictions as the congress may prescribe. It is the Congress that determines whether there is war or national emergency.

20. Who can declare state of emergency? - Congress and the President 21. What are the delegated powers given to local governments? - Power of eminent domain - Police Power – provided in the General Welfare Clause of the Local Government Code - Power of Taxation – inherent power from the Constitution but is subject to limitation by Congress. 22. What are the two tests to determine valid delegation of power? - Completeness Test - Sufficient Standard Test 23. Can the two test of delegation of power apply to the three branches or it is just exclusive to the Legislative Branch? No. Both tests are not confined to the legislative branch. In fact, both tests must be applied to the delegation of the three branches of the government. 24. Can the two test of delegation of power apply to all permissible delegations? Yes.

Constitutional Law I Atty. Antonio Nachura, Jr.

25. What is a sufficient standard? The law must offer a sufficient standard to specify the limits of the delegate’s authority, announce the legislative policy and specify the conditions under which it is to be implemented. It must fix a standard to which the delegate must conform the performance of his function. “How to do it” 26. How sufficient is a standard? In the case of Gerochi v DOE, the court enumerated 8 sufficient standard which includes: a. Interest of law and order b. Adequate and efficient instruction c. Public interest d. Justice and equity e. Public convenience and welfare f. Standardization and regulation of medical education g. Simplicity, economy and efficiency h. Fair and equitable employment practices 27. What is the completeness test? The law must be complete in all its terms and conditions when it leaves the legislative so that when it reaches the delegate, the delegate will have nothing to do but to enforce it. It must be complete in itself, it must set forth therein the policy to be executed, carried out or implemented by the delegate.

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“What to do” 28. Should both test be present? Yes. In order for a valid delegation of power, both the Completeness Test and Sufficient Standard Test must be applied together or concurrently. According to the Pelaez Case, the two tests must be applied concurrently and not alternatively.

Constitutional Law I Atty. Antonio Nachura, Jr.

Mary Evielyn N. Mateo San Beda Law

Part V – Separation of Powers Principle of Separation of Powers - Allocation/distribution of governmental powers Rationale: a. intended to prevent a concentration of authority in one person or group of persons that might lead to an irreversible error or abuse in its exercise to the detriment of our republican institutions b. designed to prevent the accumulation of powers in the same hands, which result of tyranny. c. to secure action, to forestall overaction, to prevent despotism and to obtain efficiency (Justice Laurel) TRUE TEST: Whether or not the power in question, regardless of its nature, has been constitutionally conferred upon the department claiming its exercise. Doctrine of Implication – based on the theory that the grant of an express power carries with all other powers that may be reasonably inferred from it. DEPARTMENT

WHO EXERCISES POWER

Executive

President

Legislative

Congress

Judiciary

Supreme Court and other lower courts

POWER OVER LAWS

execute implement make amend repeal apply interpret

Relationship of the three departments. a. The three departments are interdependent of one another. b. They are co-equal and coordinate. c. They allow for checks and balances. Principle of Blending of Powers - Instances when powers are not confined exclusively within one department but are assigned to or shared by several departments such as: PRESIDENT Prepares budget

CONGRESS Enact an appropriation bill pursuant to the budget

Enters into a treaty

Ratifies the treaty

Grants amnesty

Amnesty subject to concurrence of majority votes from members of Congress

Principle of Check and Balances - allows one department to resist encroachments upon its prerogatives or to rectify mistakes or excesses committed by the other departments President a. Vetoes a law by Congress b. Pardons an offender convicted by the Court Congress a. may override the veto by 2/3 vote b. gives consent to the appointments of executive officers c. may refuse to give concurrence to an amnesty d. has a judicial power of trying impeachments e. may limit jurisdiction of the SC and its inferior courts; may abolish, subject to restrictions, lower courts

Constitutional Law I Atty. Antonio Nachura, Jr.

Judiciary a. has the power to invalidate an act of Congress, President and his subordinates, or the Constitutional Commissions Judicial review - 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 - what it is upholding is not its own supremacy but the supremacy of the Constitution. - ultimate “check” on the two departments Justiciable question – It implies a given right, legally demandable and enforceable, an act or omission, violative of such right, and a remedy granted and sanctioned by law for said breach of right. (e.g. compliance with a voting requirement; qualifications of an appointee of the President) Political question – It is a question of policy, that question which under the constitution is to be decided by the people in their sovereign capacity; or in regard to which, full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.

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JUSTICIABLE QUESTION Legality of the law

Mathematical computation e.g. compliance of a voting requirement Question of procedure “thou shall not’s” of the Constitution Constitutionality of laws, presidential orders, declaration of martial law Qualifications of an appointee of the President WON there is a lack or excess of jurisdiction

POLITICAL QUESTION Wisdom of the law Definition of the wordings e.g. interpretation of phrases such as “other high crimes”, “disorderly behaviour” Question of policy Impeachment cases Matters of internal relations of executive and legislative departments Decisions of administrative powers, offices, agencies Decided by the people in their sovereign capacity exercised by the legislative or executive department

Constitutional Law I Atty. Antonio Nachura, Jr.

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EXECUTIVE BRANCH POWERS OF THE PRESIDENT

PROVISION

NOTES

LIMITATIONS

Executive Power

Article VII, Section 1 Executive power shall be vested in the President of the Philippines

- power to enforce and administer laws - carry out laws in their practical operation - the President is not above the law but is obliged to obey and execute them. - not for him to determine the validity of a law - that is judicial power

- The President’s power could be exercised only as may be provided by law - e.g., power to confer the Order of National Artists only in accordance with relevant laws

Appointments

Article VII, Section 16 Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive 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. Officials who may be appointed (requires confirmation): a. Heads of Executive departments b. ambassadors and other public ministers and consuls c. officers of the armed forces from the rank of naval captain d. those other officers as vested in the constitution (sectoral representatives, Chairmen and Members of ConComs, members of JBC) Officials who may be appointed (no confirmation needed): e. all other officers he may be authorized

Ordinance Powers – he can issue: Executive orders, Administrative orders, proclamations, memorandum circulars, memorandum orders, general/special orders - Appointment is the selection, by the authority vested with the power of an individual who is to exercise the functions of a given office. - not designation (the imposition of additional duties on a person already in the public service) - not commission (written evidence of the appointment) - Permanent appointments - are those extended to persons possessing the requisite eligibility and thus have security of tenure. - Temporary appointments - given to persons without such eligibility, revocable at will without the necessity of just cause or valid investigation, made on the understanding that the appointing power has not yet decided on a permanent appointee and that the temporary appointee may be replaced at anytime a permanent choice is made. - Temporary appointments are not subject to confirmation. If mistakenly given = still not permanent - Designation – hold office only in acting or temporary capacity and replaceable anytime; no security of tenure - Regular appointments - is one made by the President while Congress is in session and takes effect only after the CA’s confirmation which will continue until the end of the term of the appointee. - Ad interim appointments - one made by the President while Congress is not in session and takes effect immediately but ceases to be valid once disapproved by CA or upon next adjournment (by-passing through

- President may not appoint his spouse and relatives by consanguinity or affinity within the fourth civil degree as members of the ConComms, Ombudsman or as secretaries, undersecretaries, or heads of bureaus or offices including GOCCs - Appointments by an acting President are valid until revoked by the elected President - 2 months before the next Presidential elections no permanent appointments (temporary are allowed if vacancies will prejudice public service or engender public safety) - Local officials are not covered by this ban (they may appoint any time) - does not apply to the members of the SC - may be limited by the Congress in terms of prescribing the qualifications of the appointee

Constitutional Law I Atty. Antonio Nachura, Jr. by law to appoint f. all other officers of the government are not otherwise provided by law to appoint g. officers lower in rank whose appointments Congress may by law vest in the President along

Mary Evielyn N. Mateo San Beda Law inaction) - Intended to prevent interruptions in vital government services - Permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. - disapproval by the CA is final and not appealable Steps 1. Nomination by the President 2. Confirmation by the CA 3. Issuance of the commission 4. Acceptance by appointee - essentially the discretionary power and must be performed by the officer to which it is vested - appointment is deemed complete only upon acceptance - appointment to public office cannot be force upon any citizen Alter egos - must necessarily appoint the alter ego of his choice (cabinet sec) before the permanent appointee of her choice should assume office. - Congress cannot impose on her the obligation to appoint the undersecretary automatically because confidence in the appointee is essential.

Removal

- implied from the power of appointment (see above provision) - removal – forcible and permanent separation of the incumbent from office before the expiration of his term

Control

Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.

- Control is the power of an officer to alter or modify or nullify aside what a subordinate officer had done in the performance of his duties to substitute the judgment of the former for his own - different from supervision (merely overseeing or the power

- President cannot remove officials where the Constitution prescribes certain methods for separation of such officers from public service (such as chairmen and commissioners of con coms who can be removed by impeachment only; judges who are subject to the disciplinary power of the SC) - President cannot remove elected local officials - should be only exercised by a cause provided by law - members of the career service appointed by the President may be directly disciplined by him - Cabinet members and others whose continuity depends upon the pleasure of the President may be replaced at any time but it is by expiration and not removal - power to reorganize should be done in good faith Indications of bad faith: - where there is a significant increase in the number of positions in the new staffing pattern of the

Constitutional Law I Atty. Antonio Nachura, Jr. - President has the authority to go over, confirm, modify, or reverse the action taken by his department secretaries Take Care Clause - power to take care (or to investigate) that laws are faithfully executed - until a law is declared unconstitutional, the President has a duty to execute it regardless of his doubts on its validity - with this power is the power to conduct investigations into conduct of officials and employees in the executive department - power to prosecute violators of penal laws (DOJ)

Mary Evielyn N. Mateo San Beda Law or authority to see that subordinate officers are performing their duties) - has the power to delagate additional duties to cabinet members or other subordinate executive officers - includes the authority to reorganize the Executive department (agencies and offices) - an exercise of his residual powers - President is granted broad organization powers to implement reorganization measures - President has the continuing authority to group, consolidate bureaus and agencies, to abolish offices, and to transfer functions, to create and classify functions, services and activities, and to standardize salaries and materials - done in order to achieve simplicity and economy Sec 31 of the Revised Admin code authorizes the President: a. to restructure the internal organization of the Office of the President by abolishing, consolidating, or merging units thereof or transferring functions from one unit to another b. transfer functions or offices fro the Office of the President to any other department or agency in the executive branch and vice versa Doctrine of qualified political agency (alter ego principle) - all executives and admin organizations are adjuncts of the executive department, the heads of the various executive departments are assistants and agents of the President (may act on his behalf) - executive secretaries may act on the President’s behalf except in cases where is required by the constitution to or law to act in person of the exigencies of the situation demand that he act personally - cannot invoke presidential immunity from suit in a case filed against the secretary, in as much as the questioned acts are not those of the President - not applicable to acts of cabinet secretaries done in their ex officio capacity because ex officio officers are appointed by law not by the President Doctrine of exhaustion of administrative remedies - a party aggrieved by an order of administrative official should first appeal to higher administrative authority – Office of the

department or agency concerned - where an office is abolished and another is performing substantially the same functions is created - where incumbents are replaced by those less qualified in terms of status of appointment, performance, and merit - where there is a classification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices - where the removal violates the order of separation - The power of the President to reorganize offices outside his office is limited to merely transferring functions or agencies from the OP to Departments/agencies or vice president

Constitutional Law I Atty. Antonio Nachura, Jr.

Mary Evielyn N. Mateo San Beda Law President – before seeking judicial relief - ex. Prosecutors DOJ Secretary  President

Power of general supervision over local governments Military powers

Article X, Section 4 The President exercises only the power of general supervision over local governments

- President can only interfere with the affairs and activities of an LGU if he or she finds that it had acted in a manner contrary to law

Article VII, Section 18. (Limitation on Military Powers) 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 forty-eight 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.

Commander-in-chief - The ability of the President to require a military official to secure prior consent before appearing in Congress pertains to awholly different and independent specie of presidential authority — the Commander-in-Chief powers of the President. By tradition and jurisprudence, these commanderin- chief powers are not encumbered by the same degree of restriction as that which may attach to executive privilege or executive control. - may validly prohibit a military officer from testifying in a legislative inquiry, w/o prejudice to legislative power to inquiry - The vitality, of the tenet that the President is the commanderin-chief of the AFP is most crucial to the democratic way of life, to civil supremacy over the military, and to the general stability of our representative system of government. - court martials are agencies of executive character not judicial courts, hence, subject to the President

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. 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

Calling-out Power - Under the calling-out power, the President may summon the armed forces to aid her in suppressing lawless violence, invasion or rebellion; this involves ordinary police action. But every act that goes beyond the President’s calling-out power is considered illegal or ultra vires. For this reason, a President must be careful in the exercise of her powers. She cannot invoke a greater power (suspension of writ) when she wishes to act under a lesser power (call out) - It when the President calls out the armed forces to suppress lawless violence, rebellion or invasion, he necessarily exercises a discretionary power solely vested in his wisdom. The Court cannot overrule the President’s discretion or substitute its own. - The only criterion is that “whenever it becomes necessary”, the President may call out the armed forces. In the exercise of the power, on-the-spot decisions may be necessary in emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to call

Power to Organize Court Martials - military tribunals cannot try civilians when civil courts are open and functioning - members of PNP are not w/in jurisdiction of military court - military courts take cognizance of service connected offenses or crimes under the Articles of War Power to conduct peace negotiations Doctrine of command responsibility - can be held responsibility for EJKs and enforced disappearances

Constitutional Law I Atty. Antonio Nachura, Jr. 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. Suspension of the writ of habeas corpus Martial Law

Article VII, Section 18 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

Mary Evielyn N. Mateo San Beda Law out the armed forces must be done swiftly and decisively if it were to have any effect at all. - President does not have the authority to promulgate “decrees” because that is legislative power - the President has discretionary authority to declare a “state of rebellion”. The Court may only look into the sufficiency of the factual basis for the exercise of the power. - a mere declaration of a state of rebellion cannot diminish or violate constitutionally protected rights. There is also no basis for the apprehensions that, because of the declaration, military and police authorities may resort to warrantless arrests. As held in Lacson v. Perez, supra., the authorities may only resort to warrantless arrests of persons suspected of rebellion as provided under Sec. 5, Rule 113 of the Rules of Court. - exercised only by the President and may not be exercised by local executive officials or anyone else

Writ of Habeas Corpus - writ directed to detaining officer commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his caption and detention, to do, to submit to, and receive whatever the court or judge awarding the writ shall consider in his behalf Suspension of the privilege of the writ - when the court receives an application for the writ, it will issue the writ as a matter of course: the court will issue an order commanding the production before the court of the person allegedly detained, at a time and place stated in the order, and requiring the true cause of his detention to be shown to the court. - When is the privilege suspended? If the return of the writ shows that the person in custody was apprehended and detained in areas where the privilege of the writ has been suspended or for crimes mentioned in the executive proclamation, the court will suspend further proceedings in the action. Martial Law - Willoughby: military have been called upon by the executive to assist him in the maintenance of law and order and that

Grounds: i.) Invasion or rebellion, when public safety requires ii) Duration: Not to exceed sixty days, following which it shall be lifted, unless extended by Congress. iii) Duty of President to report action to Congress: within 48 hours, personally or in writing. iv) Congress may revoke [or extend on request of the President] the effectivity of proclamation by a majority vote of all its members, voting jointly. - The suspension applies 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, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

Constitutional Law I Atty. Antonio Nachura, Jr.

Mary Evielyn N. Mateo San Beda Law will the emergency still exist, they must, upon pain of arrest and punishment, not commit any act which will in any way render difficult the restoration of order and the enforcement of law. - no new powers are given to the executive; no extension of arbitrary authority is recognized; no civil rights of the individuals are suspended - 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 or the extension thereof, and must promulgate its decision thereon within thirty days from its filing - The suspension of the privilege of the writ does not impair the right to bail - the constitutional validity of the President’s power is first a political question in the hands of Congress before it becomes a justiciable question in the hands of the Court

Pardoning Power

Article VII, Section 19 Except in cases of impeachment, or as otherwise provided in the 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 Executive Clemency – granted for the purpose of relieving the harshness of the law or correcting mistakes in the administration of justice

Pardon. An act of grace which exempts the individual on whom it is bestowed from the punishment that the law inflicts for the crime he has committed. Commutation. Reduction or mitigation of the penalty. Reprieve. Postponement of a sentence or stay of execution. Parole. Release from imprisonment, but without full restoration of liberty, as parolee is still in the custody of the law although not in confinement. Amnesty. Act of grace, concurred in by the legislature, usually extended to groups of persons who committed political offenses, which puts into oblivion the offense itself. Pardon  Discretionary; may not be controlled by the legislature or reversed by the courts, unless there is a constitutional violation. Thus, it was a legal malapropism for the trial court to interject par. 2, Art. 135, Revised Penal Code, recommending the grant of pardon after the convict shall have served a jail term of 5 years, considering that this was a prosecution under a special law, and that the matter of a pardon is within the President’s exclusive prerogative Classifications of Pardon Plenary or partial (a) Plenary - Extinguishes all the penalties imposed upon the

Limitations on exercise: i) Cannot be granted in cases of impeachment [Sec. 19, Art. VII]. ii)

Cannot be granted in cases of violation of election laws without the favorable recommendation of the Commission on Elections [Sec. 5, Art. IX-C].

iii)

Can be granted only after conviction by final judgment.

iv)

Cannot be granted in cases of legislative contempt (as it would violate separation of powers), or civil contempt (as the State is without interest in the same)

v)

Cannot absolve the convict of civil liability.

vi)

Cannot restore public offices forfeited

Constitutional Law I Atty. Antonio Nachura, Jr.

Mary Evielyn N. Mateo San Beda Law offender, including accessory disabilities. (b) Partial – Does not extinguish all penalties imposed Absolute or conditional (a) Conditional - The offender has the right to reject the same since he may feel that the condition imposed is more onerous than the penalty sought to be remitted. (b) Absolute pardon - Pardonee has no option at all and must accept it whether he likes it or not. In this sense, an absolute pardon is similar to commutation, w/c is also not subject to acceptance by the offender.

AMNESTY addressed to political offenses classes of persons no need for distinct acts of acceptance requires concurrence of Congress a public act which the courts may take judicial notice of looks backward and puts into oblivion the offense itself

Borrowing power

Article VII, Section 20 The President may contract or guarantee foreign loans on behalf of the Republic with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within 30 days from the end of every quarter, 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.

PARDON infractions of peace of the state individuals acceptance necessary does not private act which must be pleaded and proved looks forward and relieves the pardonee of the consequences of the offense

Constitutional Law I Atty. Antonio Nachura, Jr. Diplomatic Power

Article VII, Section 21 No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of all the members of the Senate.

Budgetary Power Article VII, Section 22

Mary Evielyn N. Mateo San Beda Law Business of Foreign Relations - deal with foreign states - extend or withhold recognition - maintain diplomatic relations - enter into treaties - appoint ambassadors, consuls, public ministers

Treaty-making power is exclusive to the President. Congress may not interfere in the field of treaty negotiations.

Treaties v Executive Agreements - international agreements which involve political issues or changes of national policy and those involving international arrangements of a permanent character take the form of a treaty; while international agreements involving adjustment of details carrying out well established national policies and traditions and involving arrangements of a more or less temporary nature take the form of executive agreements; and - in treaties, formal documents require ratification, while executive agreements become binding through executive action. Informing Power

Treaties and international agreements are subject to check by the Supreme Court, which has the power to declare them unconstitutional

Article VII, Section 23 The President shall submit to Congress within 30 days from the opening of every regular session, as the basis of the general appropriations act, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures.

The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time.”

Concurrence of Senate pertains only to the validity of the treaty not conduct of negotiations.

Other Powers 1. Call Congress to a special session [Sec. 15, Art. VI: “x x x The President may call a special session at any time ], 2. Power to approve or veto bills [Sec. 27, Art. VI]. 3. To consent to deputation of government personnel by the Commission on Elections [Sec. 2(4), Art. IX-C]. 4. To discipline such deputies [Sec. 2(8), Art. IX-C]. 5. By delegation from Congress, emergency powers [Sec. 23(2), Art. VI], and tariff powers [Sec. 28(2), Art. VI]. 6. General supervision over local governments and autonomous regional governments [Art. X].

Constitutional Law I Atty. Antonio Nachura, Jr.

Mary Evielyn N. Mateo San Beda Law

JUDICIAL BRANCH CONSTITUTIONAL SAFEGUARDS: 1.

The Supreme Court is a constitutional body; it may not be abolished by the legislature. 2. The members of the Supreme Court are removable only by impeachment. 3. The Supreme Court may not be deprived of its minimum original and appellate jurisdiction; appellate jurisdiction may not be increased without its advice and concurrence. 4. The Supreme Court has administrative supervision over all inferior courts and personnel. 5. The Supreme Court has the exclusive power to discipline judges/ justices of inferior courts. 6. The members of the Judiciary have security of tenure. 7. The members of the Judiciary may not be designated to any agency performing quasi-judicial or administrative functions. 8. Salaries of judges may not be reduced; the Judiciary enjoys fiscal autonomy a. guarantee of full flexibility to allocate and utilize their resources with the wisdom and dispatch that their needs require. It recognizes 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 or prescribed by them in the course of the discharge of their functions b. -In downgrading the positions and salary grades of two positions in the Philippine Judicial Academy, the DBM overstepped its authority and encroached upon the fiscal autonomy of the Supreme Court and its power of supervision over court personnel, as enshrined in the Constitution. 9. The Supreme Court, alone, may initiate and promulgate the Rules of Court. 10. The Supreme Court, alone, may order temporary detail of judges. 11. The Supreme Court can appoint all officials and employees of the Judiciary.

JUDICIAL POWER -

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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 [Sec. 1, par. 2, Art. VIII]. Where is it vested: one Supreme Court and in such lower courts as may be established by law [Sec. 1, Art. VIII].

Inherent powers 

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to amend and control its processes and orders to as to make them conformable with law and justice includes the right to reverse itself, especially when, in its honest opinion, it has committed an error or mistake in judgment, and that to adhere to its decision will cause injustice to a party litigant [Tocao v. Court of Appeals, G.R. No. 127405, September 20, 2001]. precluded from examining its own ruling and rectifying errors of judgment if blind and stubborn adherence to res judicata would involve the sacrifice of justice to technicality [De Leon v. Court of Appeals, G.R. No. 127182, December 5, 2001].

Jurisdiction - power to hear and decide a case.

Limitation

ORIGINAL JURISDICTION 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

APPELLATE JURISDICTION No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in the Constitution without its advice and concurrence [Sec. 30, Art. VI].

Constitutional Law I Atty. Antonio Nachura, Jr.

Mary Evielyn N. Mateo San Beda Law

Sec. 5, Art. VIII [Sec. 2, Art. VIII]

APPOINTMENT TO THE JUDICIARY

SUPREME COURT 

QUALIFICATIONS LOWER COLLEGIATE LOWER COURTS COURTS  Natural born citizen of the Philippines  member of the Philippine Bar, but Congress may prescribe other qualifications Of proven competence, integrity, probity and independence

Natural born citizen of the Philippines  at least 40 years of age  for 15 years or more a judge of a lower court or engaged in the practice of law in the Philippines (Sec. 7)  Of proven competence, integrity, probity and independence PROCEDURE FOR APPOINTMENT Appointed by the President of the Philippines from among a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy; the appointment shall need no confirmation [Sec. 9, Art. VIII] Any vacancy in the the President shall issue the appointment within Supreme Court shall be ninety (90) days from the submission by the JBC of filled within ninety (90) such list [Sec. 9, Art. VIII] days from the occurrence thereof [Sec. 4 (1). Art. VIII] LIMITATION ON APPOINTMENT Constitutional prohibition against midnight appointments [Sec. 15, Art. VIII] -which states that 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. TENURE Justices may be removed Judges shall hold office during good behavior until only by impeachment [Sec they reach the age of seventy years or become 2, Art. XI] incapacitated to discharge the duties of their office

[Sec. 11, Art. VIII] Mandatory retirement: 70 years old

The Supreme Court en 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 and voted thereon [Sec. 11, Art. VIII] PERIODS FOR DECISION [Sec 15, Art VIII] From the date of From the date of From the date of submission within 24 submission within 12 submission within 3 months mos. mos. Unless reduced by Unless reduced by SC SC Delay: A certification to be signed by the Chief Justice or Presiding Justice shall be issued stating the reason for delay.

JUDICIAL AND BAR COUNCIL Composition WHO Ex-officio members  Chief Justice, as Chairman  the Secretary of Justice  representative of Congress 4 years except the Chief Justice Regular members representative of the Integrated Bar of the Philippines (4 yr term) a professor of law (3 yr term)

Appointment

Powers/Functions

regular members shall be appointed by the President for a term of four [4] years, with the consent of the Commission on Appointments. They shall receive such emoluments as may be determined by the Supreme Court [Sec. 8(2), Art. VIII]

Principal function of recommending appointees to the Judiciary. May exercise such other functions and duties as the Supreme Court may assign to it [Sec. 8 (5), Art. VIII]. Fiscal autonomy

Constitutional Law I Atty. Antonio Nachura, Jr. -

Mary Evielyn N. Mateo San Beda Law

a retired justice of the Supreme Court (2 yr term) a representative of the private sector (1 yr term)

banc or in division may be modified or reversed except by the court sitting en banc

Powers

Secretary ex-officio  Clerk of the Supreme Court

ORIGINAL JURISDICTION  over cases affecting ambassadors, other public ministers and consuls, a over petitions for certiorari  prohibition  mandamus  quo warranto  habeas corpus

SUPREME COURT Composition   

Chief Justice 14 Associate Justice it may sit en banc or in divisions by (3, 5, 7 members)

En Banc/Division Cases EN BANC All cases involving the constitutionality of a treaty, international or executive agreement, or law; and all other cases which, under the Rules of Court, are to be heard en banc, including those involving the constitutionality, application or operation of presidential decrees, proclamations, orders, instructions, ordinances and other regulations. These cases are decided with the concurrence of a majority of the members who actually took part in the deliberations on the issues and voted thereon. only “cases” are referred to the Supreme Court en banc for decision whenever the required number of votes is not obtained No doctrine or principle of law laid down by the court in a decision rendered en

DIVISION Other cases or matters may be heard in division, and decided or resolved with the concurrence of a majority of the members who actually took part in the deliberations on the issues and voted thereon, but in no case without the concurrence of at least three (3) such members

APPELLATE JURISDICTION Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or Rules of Court may provide, final judgments and orders of lower courts in (i) 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; (ii) all cases involving the legality of any tax, impost, assessment or toll, or any penalty imposed in relation thereto; (iii) all cases in which the jurisdiction of any lower court is in issue; (iv) all criminal cases in which the penalty imposed is reclusion perpetua or higher; and (v) all cases in which only an error or question of law is involved. no law shall be passed increasing the appellate jurisdiction of the Supreme Court without its concurrence. Appellate jurisdiction is limited to questions of law. A question of law exists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain set of facts; or when the issue does not call

Constitutional Law I Atty. Antonio Nachura, Jr.

Mary Evielyn N. Mateo San Beda Law for an examination of the probative value of the evidence presented, the truth or falsehood of facts being admitted.

Notes 1.

2. 3.

4.

Temporary assignment of judges of lower courts to other stations as public interest may require; but the assignment shall not exceed six months without the consent of the judge concerned. Order change of venue or place of trial, to avoid miscarriage of justice. Rule-Making Power: 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 a. Limitation: rules must provide a simplified and inexpensive procedure for the speedy disposition of cases; they must be uniform for all courts of the same grade; and must not diminish, increase or modify substantive rights “Integrated Bar” is a State-organized Bar, to which every lawyer must belong, as distinguished from a bar association organized by individual lawyers themselves, membership in which is voluntary. Integration of the Bar is essentially a process by which every member of the Bar is afforded an opportunity to do his share in carrying out the objectives of the Bar as well as obliged to bear his portion of its responsibilities

is a remedy available to any person whose right to privacy in life, liberty or is a remedy available to any person security is violated or threatened with whose right to life, liberty and security violation by an unlawful act or omission is violated or threatened with violation of a public official or employee, or of a by an unlawful act or omission of a private individual or entity engaged in the public official or employee, or of a gathering, collecting or storing of data or private individual or entity information regarding the person, family, honor and correspondence of the aggrieved party. 5. Power of Appointment: The Supreme Court appoints all officials and employees of the Judiciary in accordance with the Civil Service Law [Sec. 5 (6), Art. VIII] 6. Power of Administrative Supervision: The Supreme Court shall have administrative supervision over all courts and the personnel thereof [Sec. 6, Art. Viii] 7. Annual Report: Supreme Court to submit, within 30 days from the opening of each regular session of Congress, to the President and to Congress an annual report on the operations and activities of the Judiciary [Sec. 16, Art. VIII] SALARIES: Fixed by law; may not be decreased during their continuance in office PERIODS OF DECISION: 

WRIT OF AMPARO nature and time-tested role of amparo has shown that it is an effective and inexpensive instrument for the protection of constitutional rights

WRIT OF HABEAS CORPUS independent remedy to protect the right to privacy, especially the right to informational privacy 

duty of the Judge to decide cases with good dispatch, he must not sacrifice for expediency’s sake the fundamental requirements of due process, nor forget that he must conscientiously endeavor each time to seek the truth, to know and aptly apply the law, and to dispose of the controversy objectively and impartially, all to the end that justice is done to every party Despite expiration of the 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 to it without

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Mary Evielyn N. Mateo San Beda Law

ACCOUNTABILITY OF PUBLIC OFFICERS 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 [Sec. 1, Art. XI]. IMPEACHMENT DEFINITION AND OTHER NOTES Definition a criminal proceeding against a public officer, before a quasi-judicial political court, instituted by written accusation called ‘articles of impeachment a national inquest into the conduct of public men power of Congress to remove a public official for serious crimes or misconduct as provided in the Constitution Notes: -

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IMPEACHABLE OFFICERS 1. President 2. Vice President 3. Chief Justice and Associate Justices of the Supreme Court  Justices of Sandiganbayan 4. Chairmen and Members of the Constitutional Commissions  CSC, COA, COMELEC 5. Ombudsman -

impeachment case is deemed initiated when the complaint (with the accompanying resolution of indorsement) has been filed with the House of Representatives and referred to the appropriate Committee an impeachment complaint need not allege only one impeachable offense; multiple complaints may be considered Rules of Court are not applicable to impeachment cases because Senate is not a court of Justice Congress shall promulgate its own rules; such rules need not be published in the Official Gazette Issue on what is an impeachable offense is

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list is exclusive; may not be reduced or increased by legislative enactment Special Prosecutor cannot conduct an investigation into alleged misconduct of a Supreme Court justice, with the end in view of filing a criminal information against him with the Sandiganbayan, as this would violate the security of tenure of Supreme Court justices. an impeachable officer who is a member of the Philippine Bar cannot be disbarred without first being impeached

GROUNDS FOR IMPEACHMENT 1. Culpable violation of the Constitution 2. Treason 3. Bribery 4. graft and corruption 5. other high crimes 6. betrayal of the public trust. Culpable violation of the Constitution – wrongful, intentional or wilful disregard or flouting of the fundamental law. Act must be deliberate and motivated by bad faith Treason – committed by a person who, owing allegiance to the Government of the Philippines, levies war against it or adheres to its enemies, giving them aid and comfort Bribery – acts or omissions in connection with official duties in consideration of any offer, promise, gift or present received by him Other high crimes – serious and enormous a nature to strike at the very life or the orderly workings of the government Betrayal of public trust - ex. Negligence of duty, tyrannical abuse of authority, malfeasance/misfeasance, favoritisim, obstruction of justice -

list is exclusive; may not be reduced or increased by legislative enactment The acts which are impeachable grounds must be committed in the performance of the official’s public office.

PROCEDURE 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 of endorsement by any member thereof 3. Included in the Order of Business within 10 session days, and referred to the proper Committee within 3 session days.  If the verified complaint 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. [There is no need to refer the same to the proper Committee.] 4. The Committee, after hearing, and by a majority vote of all its members, shall submit its report to the House within 60 session days from such referral, together with the corresponding resolution. 5. A vote of at least 1/3 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 6. No impeachment proceedings shall be initiated against the same official more than once within a period of one year 7. 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

Constitutional Law I Atty. Antonio Nachura, Jr. purely political Impeachment proceeding is not judicial but political exercise HOR determines the standard as to form and substance of impeachment complaint

Mary Evielyn N. Mateo San Beda Law Senate. 8. 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 be liable and subject to prosecution, trial and punishment according to law. 9. Congress shall promulgate its rules on impeachment to effectively carry out the purpose.

Judicial Review Justiciable issues on impeachment proceedings: manner of filing a. verified complaint by any Member of the House b. by any citizen upon a resolution of endorsement by any member thereof c. filed by at least one-third of all the members of the House required vote to impeach limitation on initiating of impeachment case (one year bar)

OTHERS

Ill-gotten Wealth  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 estoppels.  This provision applies only to civil actions for recovery of ill-gotten wealth and not to criminal cases. Thus, prosecution of offenses relating, or incident to, or involving ill-gotten wealth in the said provision may be barred by prescription  Prescription period for ill-gotten wealth during Marcos regime – will run after EDSA

Restriction on Loans 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, Vice President, 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.

Statement of assets, liabilities and net worth

Allegiance to the State and to the Constitution

A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities and net worth. In the case of the President, the Vice President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces of general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.

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.

Constitutional Law I Atty. Antonio Nachura, Jr.

SANDIGANBAYAN The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. Notes: In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over the may only prosecute civil and criminal cases of public officers done in official capacity can only prosecute cases of GOCCs with original charters Judicial Review Final orders and resolutions are subject to judicial review by the Supreme Court by certiorari (grave abuse)

Mary Evielyn N. Mateo San Beda Law

COMPOSITION AND QUALIFICATIONS

SALARY/DISQUALIFICATIONS/ INHIBITIONS

JURISDICTION/POWERS

Composition Presiding Judge 20 Associate Justices 7 divisions of three members each Quorum: 2

Salary Fixed by law May not be increased during tenure

Exclusive original jurisdiction Violations of:  Anti-Graft and Corrupt Practices Act  RA 1379 (ill gotten wealth)  Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (bribery)  Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees  Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986

Qualification  Natural-born Filipino  At least 40 years old  Member of the Philippine Bar  10 years or more as a judge of a lower court or has been engaged in the practice of law in the PHL for the same period Term of office  Hold office during good behavior until they reach the age of 65 or become incapacitated to discharge their duties  Impeachable officer Appointment Appointed by the President In case of vacany Presiding Justice of Sandiganbayan may designate an Associate Justice of the Sandiganbayan; precedence is observed; appointment is on strict rotation

Same qualifications and inhibitions to that of Court of Appeals

Petitions for Issuance of:  writs of mandamus  prohibition  certiorari  habeas corpus  injunctions  other ancillary writs and processes in aid of its appellate jurisdiction  quo warranto Exclusive appellate jurisdiction Final judgments, resolutions, orders or RTC Cases filed under RTC:  does not allege any damage to the government or any bribery  bribery does not exceed 1M  In cases where none of the accused are occupying positions  corresponding to Salary Grade '27' or higher Public officers covered: I. Members of Congress II. Members of the judiciary III. Chairmen and members of the Constitutional Commissions IV. All other national and local officials classified as Grade '27' and higher V.

Public officers under the executive branch with

Constitutional Law I Atty. Antonio Nachura, Jr.

OMBUDSMAN Notes: may delegate fact finding powers to NBI exercises both criminal and administrative jurisdiction may prosecute cases of public officers even if such cases are done outside the official act of the public officer Ombudsman has full discretion to determine whether or not a criminal case should be filed with Ombudsman or Sandiganbayan. But once the case has been filed in Sandiganbayan, Ombudsman has no longer full control of the case can only prosecute cases of GOCCs with original charters

Mary Evielyn N. Mateo San Beda Law SG27 or higher: a. Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; b. City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; aHICDc c. Officials of the diplomatic service occupying the position of consul and higher; d. Philippine army and air force colonels, naval captains, and all officers of higher rank; e. Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent and higher; f. City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; g. Presidents, directors or trustees, or managers of government-owned or controlled corporations,

Composition Ombudsman also known Tanodbayan Over all Deputy One Deputy each for:  Luzon  Visayas  Mindanao  Military establishment

as

Qualification  Natural-born Filipino  At least 40 years old  Members of the Philippine Bar  Must not have been candidates for any elective office in the immediately preceding election  Judge or engaged in the practice of law for ten years or more Appointment

Rank and Salary  The Ombudsman and his Deputies shall have the same ranks, salaries and privileges as the Chairman and members, respectively, of a Constitutional Commission.  Their salaries shall not be decreased during their term of Office Prohibitions and Disqualifications shall not, during their tenure:  hold any other office or employment.  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,

Functions: 1. Has primary jurisdiction of preliminary investigation over cases cognizable by the Sandiganbayan 2. Investigate any act or omission of any public official, employee, office or agency which appears to be illegal, unjust, improper, or inefficient. This may be done by the Ombudsman on its own or upon complaint. 3. Direct any public official or employee, or any government subdivision, agency or instrumentality, as well as of any governmentowned or controlled corporation with original charter: a. To perform and expedite any act or duty required by law, or b. To stop, prevent, and correct any abuse or impropriety in the performance of duties 4. Direct the officer concerned: a. To take appropriate action against a

Constitutional Law I Atty. Antonio Nachura, Jr. can review and reverse findings of the City Fiscal election offenses are not under Ombudsman but COMELEC complaints need not be in a formal manner; a complaint in any form or manner is sufficient Congress may add powers to the Ombudsman Ombudsman has the constitutional power to directly remove from government service an erring public official, except Members of Congress or of the Judiciary Court of Appeals may not issue a TRO against the Ombudsman because it will undermine the independence of Ombudsman (Carpio-Morales v CA) Judicial Review Administrative Proceedings Decisions or resolutions of the Ombudsman in administrative cases absolving the respondent of the charge or imposing upon him the penalty of public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, is final and unappealable Appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals under the provisions of Rule 43 Penal Proceedings In all other cases, the decision shall become final after the expiration of 10 days from receipt thereof by the respondent, unless a motion for reconsideration or a petition for review is filed with the CA pursuant to Rule 43 of the Rules of Court.

Ombudsman Appointed by the President from a list of at least 21nominees prepared by the Judicial and Bar Council from a list of three (3) nominees for each vacancy thereafter which shall be filled within three (3) months after it occurs each of which list shall be published in a newspaper of general circulation

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 Deputies deputies and other officials and employees shall be appointed by the Ombudsman according to Civil Service Law

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Term of office seven (7) years without reappointment Ombudsman is an impeachable officer Deputies are subject to removal by the Ombudsman In case of vacancy Overall Deputy shall serve as Acting Ombudsman in a concurrent capacity until a new Ombudsman shall have been appointed for a full term In case the Overall Deputy cannot assume the role of Acting Ombudsman, the President may designate any of the Deputies, or the Special Prosecutor, as Acting Ombudsman.

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agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries shall strictly avoid conflict of interest in the conduct of their office. not qualified to run for any office in the election immediately following their cessation from office. not allowed to appear or practice before the Ombudsman for two (2) years following their cessation from office. No spouse or relative by consanguinity or affinity within the fourth civil degree and no law, business or professional partner or associate of the Ombudsman, his Deputies or Special Prosecutor within one (1) year preceding the appointment may appear as counsel or agent on any matter pending before the Office of the Ombudsman or transact business directly or indirectly therewith. This disqualification shall apply during the tenure of the official concerned. This disqualification likewise extends to the law, business or professional firm for the same period.

Mary Evielyn N. Mateo San Beda Law public official or employee at fault, and b. To recommend the latter’s removal, suspension, demotion, fine, censure, or prosecution, and c. To ensure compliance therewith. 5. Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties. The Ombudsman can also report any irregularity to the Commission on Audit for appropriate action. 6. Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. 7. Publicize matters covered by its investigation when circumstances so warrant and with due prudence. 8. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. 9. Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law 10. Administer oaths, issue subpoena and subpoena duces tecum, and take testimony in any investigation or inquiry, including the power to examine and have access to bank accounts and records; 11. Punish for contempt in accordance with the Rules of Court and under the same procedure and with the same penalties provided therein; 12. Delegate to the Deputies, or its investigators or representatives such authority or duty as shall ensure the effective exercise or performance of the powers, functions, and duties herein or hereinafter provided; 13. Investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealth amassed after February 25, 1986 and the prosecution of the parties involved therein

Constitutional Law I Atty. Antonio Nachura, Jr. SC – certiorari; grave abuse

Mary Evielyn N. Mateo San Beda Law Powers: Disciplinary Powers over Public Officers General rule: The Office of the Ombudsman has disciplinary authority over all elective and appointive officials of the government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries. The disciplinary power of the Ombudsman is not exclusive but is shared with other disciplinary authorities of the government.  Public school teacher – with DepEd The disciplinary power of the Ombudsman over elective officials is concurrent with the power vested in the officials specified in the Local Government Code of 1991. Has concurrent jurisdiction with sangguniang bayan regarding barangay officials Exception: The Ombudsman has no disciplinary power over the following: (a) Officials who may be removed only by impeachment (b) Members of Congress (c) Members of the Judiciary Exception to the Exception: However, the Office of the Ombudsman has the power to investigate any serious misconduct in office committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted. Power of Preventive Suspension The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment: a) the evidence of guilt is strong b) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; c) the charges would warrant removal from the d) service; e) the respondent's continued stay in office may prejudice the case filed against him.

Constitutional Law I Atty. Antonio Nachura, Jr.

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SPECIAL PROSECUTOR Notes:  

formerly known as the Tanodbayan An organic component of the Office of the Ombudsman and shall be under the supervision and control of the Ombudsman.

Composition  Special Prosecutor  Prosecution Staff

Salary and Rank  The Special Prosecutor shall have the rank and salary of a Deputy Ombudsman.

Qualifications  Natural-born Filipino  At least 40 years old  Members of the Philippine Bar  Must not have been candidates for any elective office in the immediately preceding election  Judge or engaged in the practice of law for ten years or more Appointment  Appointed by the President Term of Office  seven (7) years reappointment  Subject to removal President

without by

the

Prohibitions and Disqualifications  same as of the Ombudsman

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six (6) months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. Prior notice and hearing is not required before suspension may be meted out. Suspension is not a punishment or penalty but only a preventive measure to prevent the respondent from using his position or office to influence or intimidate prospective witnesses or tamper with the records which may be vital in the prosecution of the case against them.

Exclusive Powers:  over those provided by law  except those given to Ombudsman Under the supervision and control and upon the authority of the Ombudsman, have the following powers:  To conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan;  To enter into plea bargaining agreements; and  To perform such other duties assigned to it by the Ombudsman.