Professional Documents
Culture Documents
Constitution highest among the laws will prevail in case of conflict between a statute
Local ordinances admin rules and regulations cannot contravene a statute more so they cannot
contravene the highest law of the land
Doctrine of the supremacy of the constitution over other laws the constitution is supreme
Since our constitution is written in form, what are the characteristics of a written constitution must be
broad in scope must be brief and must be definite
1. Broad in scope- while a cosnti deals primarily with government, there should be other provisions
other than the governmental provisions
Provision on economy, education, science, territory, family
2. Brief
Must only contain basic and general principles of the subject matter of the constitution which is
government
Cover only important parts
Our constitution is long, the treatment of the subject matter are not brief but contain very specific
details
1935 Constitution is brief
Must only state general principles of the subject matter that it treats
3. Definite constitution
Clear not vague not open to conflicting interpretation
A lot of constitutional questions raised in the SC
Of the three only one can be attributed to the 1987constitution only broad not brief or definite
Constitution of sovereignty
Article 17- amendments and revisions
Provides for the manner by which the constitution may be amended revised or changed
Philippines as a state
4 elements of a state
People-Citizenship
Territory- archipelagic doctrine, regime of islands doctrine-RA 9522 new baseline law of the Philippines
Government
Sovereignty
2. Constitutional convention
Who will call a constitutional convention? Congress by enacting a law by 2/3 vote
Constitution did not specify because law making must enact a law to call a constitutional convention, in
law making they vote separately
What if 2/3 vote is not obtained? It is not the end, there is an option of congress to bring the issue to the
people in the plebiscite by majority vote
Simple Majority vote to bring the question to the people for approval
Approve a constitutional convention by the people despite the absence of a 2/3 vote in congress,
congress may now enact a law to form a con con
3. Peoples initiative
Santiago case
Lambino case
Requisites so that peoples initiative can be a valid mode of proposing amendments to the constitution:
1. It applies only to mere amendments and not revisions in the constitution
Amendment- isolated change only in the constitution
Does not refer to quantity of sections to be amendment but will not necessarily result to
revision
No change in the structure of government
Revision- can result to revision even if one section changed-, there is change in form structure of
government, alteration of system of government
Lambino case- propose to abolish the senate so that the legislative body will only be unicameralinstead
of bi cameral- it is a revision, change the structure of government
Reducing voting age from 21 to 18 increasing retirement age of SC justices to 70 instead of 65, only
amendment
3. If you adopt peoples initiative as a mode, you must have to obsrve the proper procedure in
gathering the percentage vote
Gather signature vote- required in lambino case, attach a copy of the proposed amendments
Solicit signatures vote do not only go around with signature sheet, attach proposed amendments-
amount to grand deception of the people if no attached
After all this it will be subject to approval for the people in their sovereign capacity which makes them
the author by participating the constitution by approving ratification in a plebiscite
Can be conducted together with the conduct of regular election
People
Territory
Government
Sovereignty – article 17 constitution of sovereignty, internal and external
Territory
Art 1 with 1 section
Legislations statutes that deal with the national territory
RA 9522- new baseline law of the Philippines
Questioned in SC
On grounds of constitutionality
Enough that one of the parent is a Filipino to make the child a Filipino
Enough 1 parent is a Filipino to make the child a Filipino not both of them
3. Father must be a Filipino so that the child must be a Filipino- 1935 constitution
What if the father is a foreigner? In the 1935 Constitution
Took effect February 8 1935 up to Jan 16 1973
Father is a foreigner and mother is a Filipino upon birth the citizenship of the child is a foreigner
But the same constitution give him the option to elect Filipino citizenship
When upon reaching the age of majority : it is 21 yrs old
3 year period after reaching age of 21
If 7 years after or 14 years after like Vicente ching- prescribe the reglamentary period to elect
Get citizenship by other modes not by election
Within the prescriptive period he elected Filipino citizenship his citizenship of C will be a Filipino citizen-
natural born citizen
Upon birth C whose mother is a Filipina but not legally married to the Chinese national
Natural born Filipino follow citizenship of the mother
c. Administrative naturalization
Btu not all foreigners can avail of this mode
Cheapest and easiest mode
Who can avail? Only foreigners born in the Philippines and has resided in the Philippines since birth
Situation that their parents are also foreigners staying permanently in the PH
18 yrs old at least
Enough that the wife is not disqualified she need not prove that she has all the qualifications
For minor children they must be minors and residents in the PH
Remedy of Vicente Ching- administrative naturalization born in the PH and he has resided in the PH
since birth
Filipino and like to acquire US citizenship and will not lose Filipino citizenship if you avail of 9225
2. Desertion
Happens in time of war
Filipino soldier deserted or turned against the PH
Ground for him to be deprived of Filipino citizenship
Whatever is your previous citizenship you will reacquire it under either of the two modes of
reacquisition
Tabasa case
T when still a small boy migrated to the US with the parents. Given immigrant visa. Later on the parents
applied for American citizenship, in America adopts derivative naturalization the wife and minor became
American citizens by virtue of derivative naturalization
Later on T attained age of majority and involved in a crime and chased by American government T went
to the PH tumakas and while in the PH he repatriated under 8171. And granted and under 8171 when
repatriated he lost his US citizen, no longer a US citizen and to the PH no longer a foreigner a Filipino
cannot deport a Resident citizen and not a foreigner
2. Former natural born Filipino citizens who lost their Filipino citizenship either by political or
economic necessity
Political necessity- Frivaldo case, governor of sorsogon and escaped to the US and applied for Us
citizenship
Economic necessity- Bengzon case, employment in US marine, serve in army must adopt citizenship of
America by substitution he lost Filipino citizenship but mainly for employment, economic necessity
If the reacquisition of T under 8171? No reason he does not fall either under the 2
He lost citizenship not by political or economic necessity but under derivative naturalization- but by
operation of law through derivative naturalization
Dual allegiance
Not a self executing provision
There has to be a law that defines what act ot acts constitute dual allegiance
In the absence of that law, Datu Manu case, what act or acts constitutes dual allegiance
Question validity of RA 9225- unconstitutional violative of SEC 5 of citizenship in constitution
It cannot violate the law does not defined dual allegiance no identification what act constitute it
Cannot be prosecuted, not self executing provision
Macao national applied for Filipino citizenship and was granted but despite the fact whenever he goes
out of country he goes out country he uses his Macao passport so the SC said that this Macao nationals
guilty of dual allegiance.
Citizenship
If natural born Filipino allowed to occupy constitutional position whether elective or appointive
Naturalized DQ only for local elective positions
Repatriation:
2 laws
8171 and 9225
Remedy if client who would like to repatriate has intention to run public office: 8171
9225: still DQ, remedy express renunciation
FPJ case
Grandfather was granted Filipino citizenship under Phil bill of 1902
All inhabitants in the Phil are granted Filipino citizenship unless they express their opposition, deemed
to grant in citizenship en mass
Not register his opposition
Fenando poe Sr. Filipino natural born in the PH
3rd generation FPJ must necessarily be a natural born
Territory
Comprises even provided for in the constitution
Terrestrial or land mass island and islets
Maritime and fluvial water territories
Above the water and terrestrial is the aerial consisting of airspace upon where there is air
Outer spance res nullius
Philippine territory
Philippine archipelago- all islands and islets
Archipelago- territory comprising of a big body of water staded with island and islets
Comprising islands numerous and islets
Archipelago as it is today
Treaty of Paris- Batanes Cagayan area not included
Treaty of Washington to include the two former
Turtle islands and Sibuto islands
Kalayaan islands
Countries territory does not comprise the islands and islets but certain bodies of water
What part of the sea forms a part of the territory of a given state
Part of sea which forms part of the territory of a state adjacent to the terrestrial- territorial sea
Point of view of international law- territorial sea
Domestic law- municipal waters
Territorial sea measures: from the shore extending outward to the sea
Which part of the shore, lowest part of the shore during low tide 12 nautical miles under the 12 miles
theory
1958- UN tried to come out with another mode of measuring territorial sea
UNCLOS
1982- adoption of the 1982 UNCLOS
Under this UNCLOS
Agreed upon that for archipelagic states the 12 mile theory be no longer applicable
Ready to determine territorial sea of the PH- measure form the baseline 12 miles
Jurisdiction in territorial sea- full control and sovereignty
After the 12 mile theory measure another 12 miles referred to as the contiguous zone
The farther you go from the baseline there is a decline In the jurisdiction: enforce custom fiscal laws
health and sanitation laws and immigration laws- this is for the contiguous zone
From the baseline measure 200 miles or 176 miles from end of contiguous zone
200 mile exclusive economic zone
subsoil
sea bed
sub soil
extra 50 miles sea bed to whom will it belong to: still belong to this state even if in excess of 200 miles of
sea bed, natural prolongation
max of 200 miles sea bed
insular shelves
international law: continental shelf
3 kinds of territories
Terrestrial
Fluvial and maritime
Aerial
From the end of the baseline measure another 12 nautical miles extending to the sea
Contiguous zone
Jurisdiction:
Farther you go to the base line there is diminishing jurisdiction
Immigaration customs fiscal health and sanitation law- no more criminal jurisdiction except when they
pertain to the four
Each island claim is entitled to a territorial sea for purposes of exploiting them covered by the 200 mile
Sovereignty issue not settled
Under the regime of islands doctrine whoever owns the islands owns the territorial sea of 12 miles the
territory must be an island not a mere rock formation not an island
Islands must be capable of sustaining life some form of vegetation not a mere rock formation
Not island do not apply regime of islands doctrine
Constitutionality of RA 9522
Law converted internal waters into archipelagic waters
Internal waters
Achipelagic waters
In constitution not only bodies of water enclosed n the baseline even adjacent to the islands are part of
territorial waters
Parts of bodies of water form a part of the territory of the state
UNCLOS referred to archipelagic waters
SC constitutional because if you declare the RA 9522 as unconstitutional then it becomes ineffective
unenforceable we do not have a baseline 2 dangers may come in:
Invite other states to come in to our country
If there is dispute with respect to our maritime space, the protection is gone because we do not have a
base line law
Practical reasons to declare it valid to retain base line law
Political law proper
Government
Constitution of liberty
Constitution of sovereignty
Constitution of government
Provision in constitution which calls for separation and which will call for checks and balances
When the president vetos a bill enacted by congress- that is checks and balances
1. Tripartite system
2. There must also be a regular election
Another characteristic of republican system
Periodically subjected to approval of mandate
Renewal of mandate
But ours have limit to terms
In order to prevent accumulation of powers which may lead to abuse of powers
What has been delegated by the people to a branch of government cannot be further delegated
To which branch does this doctrine apply?
Executive legislative and judiciary but strictly to the legislative and judiciary
Executive is moderated by the principle of qualified political agency- alter ego doctrine
Not to the same extent as the 2 other branches of government
Where the president is given a bigger leeway to delegate its power unlike congress
Executive given more leeway to delegate its power stricter in legislative and judiciary
Permissible delegation
General rule is non delegation there is other delegations acceptable
1. Delegation to local government units
Most real among the delegations
Power of congress to make the law- enact ordinances which have the force and effect of the law
2. Delegation to administrative bodies
Quasi legislative- rule making
Quasi judicial powers –adjudicative powers
4. Emergency pwoers
Repository is not the president alone but congress
Delegated to the president- exercised by the president
Sufficient standard test-there must be standards limitations set forth by law so that the delegate will not
abuse the power or go beyond the power given
Under the constitution it is no coequality that is enshrined to be protected, there is also an expanded
concept of judicial review because the court cannot declare an act of the 2 branches if they are political
questions
Political questions beyond the inquiry of the court- the people can only resolve in their sovereign
capacity
Who will determine if a question is political or not? the court still
Expanded power of judicial review of the court
Determine if an issue is political or not
Art 6
Legislative
Constitution upon who is the power to legislate conferred to by the constitution? Congress
Exception: when legislative power is shared to the people through peoples initiative
Lawmaking not solely conferred to congress
Structure of congress
Bicameral
Consist of 2 houses
House of representatives
Senate
Principle of co equality of the 2 houses
Republican in form
Government where the people govern themselves through their chosen representative
System wise is presidential or tripartite system of government
Powers are allocated to 3 branches of government
Republican in form
Presidential in system- tripartite system
Blending of powers
One branch initiates and the other completes
Bill cannot be passed to law without approval of the president
Republican democracy
Government of laws not of men
Rule of majority
Political questions normally not covered by judicial review not for the court to be decided
But they should be resolved by the people through their sovereign capacity
But the court will determine just the same
Question is political the court will refuse to rule on that and take cognizance of that involving the
doctrine of separation of powers
Issue is justiciable issue- take cognizance of the case
If there are initially 200 members representing the various legislative districts
Total membership including the party lists
Answer: 250 members
Because 20% of 250 is 50
+ 200 district representatives is 250
1/5 or 20%
Total membership Including party list
24 senators
250 congressmen/ representatives
Qualifications
ACRER
Age
Citizenship
Residence
Education
Registration as a voter
Senators
Age minimum 35 yrs old
Citizenship- natural born Filipino
Residence- at least 2 years
Education requirement- ability to read and write
Registration as a voter anywhere in the Philippines
HRET
Age at least 25 years old
But if it is a party list representative representative of the youth age bracket of 20-30
Mandatory drug testing on local government officials- can be added because Congress can prescribe
qualifications of local elective officials in addition to those prescribed in the constitution
Partylist- by sectors
Marginalized and underrepresented sectors
2 special constitutional bodies whose members are drawn from each house
SET and HRET
Both of them have judicial component and legislative component
The legislative component 3 justices of the SC
6 senators 6 congress
Senate one of the protestant petitioned that only the judicial component decide the case and all
legislative component will DQ or inhibit themselves
The answer is no the idea of creating the SET or HRET is to have the 2 components working and in
deciding the case unless there is a compelling reason to ask 1 member to inhibit but not all legislative
component and leave the judicial component
Exception to the rule that 1 public officer 1 position only except when allowed by the law or constitution
Allowed by the constitution
Reapportionment
Power of congress to enact a law creating a legislative district
On the basis of progressive population ratio and every province entitled to 1 congressman
General or special law to reapportion?
It can either be general law or special law
July 7
Seminar
Most non self executing provision- Article 2- Declaration of principles and policies
Even if the prefix word shall was used but the SC interprets as mere directory it is directory
But even if the word is may but the interpretation of the SC is mandatory it is mandatory
Forms of government
Republicanism
State immunity
State cannot be sued without its consent
Historical origin:
Principle of international law- becoming part of our municipal law
Through transformation and incorporation
Generally accepted principles of international law- made a part of our law so transformation not mere
incorporation
Sovereignty
Sovereign power- Government
State immunity 2 kinds
Absolute or restrictive
Art 2 sec 2
Contains a lot of policies
Bearings in international law
We renounce war as an instrument of national policy and adhere to policy of peace etc amity of nations
2 instances when a state can make use of war
1. Kellog-brian pact
League of nations members not to make use of war
Renunciation of war
2. Transformation
Once the senate concurs it will become a part of our municipal law as part of our statutes
Generally accepted principles of international law not all principles are adopted by our constitution
Considered as hard law- can compel all states to adhere to it
Hard law- binds all the states
Ex:
Doctrine of jus cogens
Obligations ergo omnes
Soft law- non binding
Policy amity with all nations- avoid provocation against other countries into entering into war against us
Civilian supremacy
Supremacy of civilian authority- constitution abhors military supremacy over the civilians
Civilian over the military
Constitutional provision to ensure this one
Put into effect civilian supremacy-
Art 7- commander in chief must be vested in civilian authority- the president at all times
Engaged in war- supreme is still civilian over military
In times of peace and war civilian authority is supreme
Implications is that this will render military take over unconstitutional
Violate doctrine of civilian authority will negate this principle of civilian supremacy over the military
IBP v. Zamora
Erap time- order deployment of marine forces in the heart of the city of Makati
Questioned by the IBP
Argument- violative of the declared state policy of civilian supremacy over the military
SC ruled: deployment is valid, did not violate civilian supremacy because the marines did not supplant
the PNP
Did not supplant PNP and took charge- nature of PNP is civilian in character and national in scope
They work side by side with the PNP
From whom did the deployed marine officers got their order, not from army commander or from fort
bonifacio but from the PNP
PNP was still in control and PNP was civilian in character
Logistics came from the PNP
Gudani v. Senate
Privilege of the president executive privilege
He can withhold information from Congress, not invited to testify in congress, from the court cannot be
subpoenaed in court and withhold infor from the general public but not in all matters:
1. Implications on national security
2. Diplomacy or diplomatic matters
3. Trade secrets military secrets
Privileges extend to the executive secretary the alter ego and under proclamation of GMA it expanded
to the cabinet members down to the lowest bureaucracy but only up to the alter egos said the SC
Exception: when the one asked to testify is a military officer
They can be ordered by the president not to testify- under the commander in chief provisions even if
lower than cabinet member position the president can prevent them from testifying
If allowed n the military the chain of command will be damaged by the chain of command principle
Defense of the state is a policy of the state- pursuant to a state right of preservation
Under constitutional provision the duty to defend the state is given to a two prong duty between the
government and the people
How can the people contribute to the defense of the state? By rendering personal military or civil
service.
Section 5
Requisites for our people to enjoy blessing of democracy
Section 6
Separation of church and state shall be inviolable
Wall of separation between state as a political institution and the church as a religious institution
Inviolable
Purpose: of the wall of separation is that under general principles of separation of powers to prevent
one from interfering in the affairs of the other
1. Prevent the state from interfering in purpose ecclesiastical affairs of the church
2. Wall of separation from interfering in purely secular affairs of the state
But in the PH by virtue of the Escritor v. Estrada case, function of wall of separation is only one way only
to protect the church from undue influence from the state
Not two ways
Under principle of benevolent neutrality accommodation- the state is neutral to religion to all kinds of
religion
And reinforced by what provision by the non establishment clause- prohibit the government from
supporting or having an official religion
Guidelines:
Foreign policy- take into consideration:
National sovereignty
Territorial integrity- Cotabato Province case
Sign in Malaysia in presence of ambassador Kenny establishing the Bangsa juridical entity there-
violate our territorial identity, national interest
Right to self determination
Sec 9- policy of state to promote a just society rising standard of living improving quality of life of the
people
Sec 11
Dignity of human persons and respect for human rights
Sec 12
Sanctity of family life and strengthening the family as a basic autonomous social institution
Protect the life of the mother and the life of the unborn from conception
Primary right to educate and rear the children is the parents not the school
Relinquish the natural and primary right
13 recognition of the role of the youth in nation building promoting their physical social moral well
beings
Sports- physical
Moral social- scholarship grants
Social being
Inculcate in the youth patriotism and nationalism and involvement in public and civic affairs
Youth representation under the partylist system
14
Women recognition and nation building and equality in law of women and men
Equalize
15
Right to health and health consciousness among the people
16
Balanced ecology
17
Priority to education
Guingona to question the general appropriations law in one year- budget of congress, the lion share in
the budget is payment for foreign debt
Priority to education
SC dismissed on technicality- art 2 not self executing, PH is not an island obligations in the international
community is payment of loan as they are due
18
Affirmation of labor as a primary social economic force
Foreign investment is capital
19
Develop a self reliant economy controlled by Filipinos
Effect amendment to repeal sec 19 and economic provisions to liberalize it
20
Role of the private sector
Partners of the government
21
Agrarian reform
22
Indigenous communities
IPRA- review and reexaminations
23
NGO sectoral orgs to promote welfare of the nation
24
Vital role of information and communication in the PH- favorable to consumers
Landline interconnection
26
Equal access to opportunity for public access
Laws on public officers- appointments in the career service vacancies must be published
Before appointment publish vacancy
27
Maintain honesty and integrity in the public service and effective measures against graft and corruption
Legislative branch
Power allocated to congress which is a bicameral body delegated to LGU
Real delegation is to local government units
Houses or representatives
Senate
24 senators election staggard except the first election in 1987
But the top 12 served 6 years last 12 serve for 3 years
Legislative department
Power of legislative department- power to PEAR
Propose enact amend repeal law
Who else given the power?
The LGU thru enactment of ordinances- real delegation of legislative power
Admin agencies not so real- only quasi legislative
People through peoples initiative
1. Congress
2. LGU
3. Peoples
MCQ-MMDA- cannot order the order of opening of roads can be done only through an ordinance and
MMDA does not have the power to enact ordinances
But if the candidate is seeking for local? Congress can prescribe qualifications of local elective elections
in addition to those set forth congress can add but cannot delete another layer of qualification
House of representatives
District representatives- 80% of the total membership
Partylist- 20% of total membership
Multiply 20% with the total membership to arrive at the total membership
District representatives- progressive population ratio of 250K per district representatives qualified that
every province regardless of population is entitled to 1 district representative whether they meet the
minimum 250K or not
Partylist- 20%
20% seat allocation
20% of total membership including partylist must come from the partylist
This is now mandatory under the BANAT case
Under veteran case it is a mere ceiling but this is changed already to mandatory
All the seats must be filled up- mandatory all available seats filled up fill up all the 50
2. 2% threshold
It means that only those who will get a minimum of 2% of the total votes cast for partylist
Total votes cast- 1M votes cast
Moment you get 20K of the 1M votes cast for partylist it is already 2%- already entitled to 1 seat
But in the BANAT case, the 2% threshold is applicable only to the first round of allocation not the second
round
Applicability is in the first round- 2% threshold is only with respect to first round of allocation not the
second round
3. 3 seat limit
Every political party is entitled to a maximum of 3 seats only-even if they obtained 8%
To enable other partylist groups to have a representation
4. Proportional representation
Illustration:
Political parties
A- 16
B- 10
C- 8
D- 7
E- 6.5
F- 6
G- 5.9 (5.9%-4 = 1.9%)
H- 5
I- 4.1
J- 4
K- 4
L- 3
M- 3
N- 2.5
O- 2
P- 2
Q- 1.8
R- 1.5
S- 1.2
T- 1.1
Not the nominee voted upon but the political party that is voted upon
If a sitting congressman under the partylist will change political party he will forfeit his position
There is a limitation if change party forfeit his position and cannot run again in another partylist must
resign 6 months before the next election if after the 6 months before election he is disqualified
Change political affiliation- can run only if he resigns 6 months before elections
Must be at least 5 nominees minimum
If one creates a permanent vacancy the rank lower will take over
Entitled to pork barrel
8 new legislative new districts created entitle the partylist to 1 seat in the partylist to comply with the
20:80 ratio
Legislative privileges
1. Constitutional privileges
A. Freedom from arrest
B. Freedom of debate
C. Compensation- attached
Pork barrel not constitutionally sanctioned
Freedom from arrest- not absolute unlike presidential immunity from suit
Limitation- in terms of gravity of the offense- offenses punishable by not more than 6 years
More than 6 years no longer covered by the privilege
Trillanes cannot invoke freedom from arrest rebellion more than 6 years
1. Not more than 6 years
2. Congress must be in session
When congress is in recess sine die
Even charged by an offense for 1 year
Adjournment at the end of the day temporary- but when recess sine die can be arrested for any offense
even below 6 years
Freedom of debate
Limitations
Original rule- congress must also be in session not adjourned sine die
Utterance must be delivered in the plenary- during privilege speech or in any of the committees during
the committee meetings
Can conduct committee in the provinces utterances made during session during committee
meeting cannot be sued for libel
Interview in Kapihan in manila and utterances there are libelous can be sued libel- not delivered during
plenary session nor in the committee
Compensation
Fix compensation of senators and congressmen- congress through a law can be increased
But cannot take affect during their term of office- delicadeza
Chief justice of SC is allowed by law to sit as ex officio member of the JBC and PET
Senator- Escuredo member of JBC exofficio member Neil Tupas one only from congress but congress is
bicameral and each house is represented
Forbidden office- participated creation of admin agency, principal sponsor of the bill, finished of the
term cannot be appointed to that office
There was a law created increase of emolument of those occupying to that office it is forbidden
Voting requirements
Certain voting requirements imposed by the constitution
Overriding a veto of the president 2/3 of all members of congress
When senate gave its concurrence to treaties- 2/3 also
In matters where constitution is silent, apply simple majority vote
Assume that voting on a bill scheduled on that bay but only 3 members left
Quorum- but on the time of voting only 3 members left
Can the voting proceed? If only 3 members left? Yes as long as there is no one that object
At least one will move for the voting and one will second the motion
One of the 3 belongs to the opposition- raise the issue of quorum even if there is an earlier certification
at the time the voting takes place
If no one will question it since there was a certification at the start of meeting of existence of a quorum
the voting will still be valid
2 electoral tribunals
One for each house in congress: HRET SET
Composition
2 kinds of components legislative component and judicial component- 3 from the SC and remaining
seats are legislative component chosen based on party representation
Function of the electoral tribunal- constitution it is the sole judge in election contests involving the
election returns and qualifications of the members of either the senate of house
Sole judge
When does the jurisdiction of the tribunal begin? To settle those 3 issues
Election
Returns
Qualifications
Only judicial component shall hear and decide on the case to the exclusion of the legislative component
Can ask for one to inhibit but not all of them to inhibit- intention is to have 2 components present when
exercising the function of a quasi judicial body
Most senior among justices will preside
Mere one objection from among the 25 members amounts to disapproval already- must be unanimous
vote no one should object
More practical and prudent thing to bypass than disapprove
Lawmaking
First and foremost power propose amend enact repeal laws
Although constitution confers upon congress the PEAR there are limitations not absolute
2. 3 days before 3rd reading a printed form of the final copy of the bill each member given a copy of
the proposed bill
To study and scrutinize before they vote on Thursday
These 2 procedural limitations can be dispensed with if the president certifies as to the urgency of the
bill
3 readings in bill done in one day
Requirement that printed final copy of the bill distributed 3 days before dispensed with once president
issues certification as to the urgency of the bill
Third reading- reading of the title immediately followed by voting no more amendments
Amendments only second not third reading
Third = voting only
Is senate prohibited to file its own bill without the house version? But if the bill is a tax revenue or
appropriations bill there must be a third reading before they can act? Can file counterpart bill but
cannot approve in plenary before the version of house has not been approved in third reading
Can file and debate in the committee level and wait for the house version before can go to the plenary
Assuming that it is not a tax revenue or appropriation bill, house and senate has own version more often
than not the 2 version will conflict one another
Different view on issues
Bar exam question:
How is the conflicting version between the 2 houses? Bicameral conference committee- equal number
of members
Who will constitute the bicameral conference committee to reconcile the conflicting versions
Options of the bicameral conference committee
Adopt house and disregard senate version
Disregard house version and adopt senate version
The BCC can come out with its own version- neither version of senate and house, but there must be 2
requisites complied with
1. BCC version must remain germane to the original bills
2. BCC version subject to approval by both houses
General appropriations bill and special appropriations bill and general appropriations law
Special appropriations bill- any other appropriations bill not included in the general apportions bill are
classified as special appropriations
Once approved budget the fund appropriated for one branch cannot be transferred to another branch
Executive cannot be transferred to legislative or judiciary and vice versa
Reason separation of powers
2. It must be approved by the head of the branch- head of executive branch, congress, senate pres
and speaker, judiciary, CJ, constitutional commissions chairman
Veto powers allowed partial veto in appropriations bill unlike other laws the entire law invalidated but
not an appropriations law
Only vetoed items cannot take effect those not vetoed can be continued in force and effect for partial
veto
Special appropriations bill- requirement is:
1. Must be for public purpose
2. There must be a certification issued of the national treasurer of the availability of funds
Penchant of legislators to just sponsor and appropriations law even if there is no certification- effect is
that issuance of a check without sufficient funds
Doctrine of augmentation: prevents the transfer of funds from one branch to another but not to one
agency to another agency of the same branch
Doctrine automatic re-appropriation: if the budget of the ensuing year is not yet enacted the present
budget will continue to have force and effect until the next year’s budget is enacted. If it took effect on
march 1, 2013 then January to February is governed by 2012 budget.
Q: Enactment of a bill in each house can a bill approved by congress be questioned on grounds of
constitutionality because certain procedures were not observed?
In one case it took them until after midnight to pass and vote upon the bill. What they did is the y
stopped the clock so that technically the approval is still within that period, but was enacted pass
midnight.
A: SC if the requirement is a constitutional requirement on matters of procedure not complied with
then the bill is invalid and unconstitutional. On matter of substance leave it to the wisdom of the court.
If it does not amount to violation of constitutional provision but the violation is with respect to rules
(Internal rules of procedure) then the law is valid as enacted. Violation must not be on the requirements
set forth in the constitution. (DEVENACIA CASE)
Conflict between the journal and the enrolled bill: the enrolled bill will prevail no matter how erroneous.
An enrolled bill is final draft signed by the speaker and senate president and even by the president.
Despite the error it will still prevail because once a bill is enrolled it cannot be corrected by congress or
the secretariat.
Remedy: They will have to enact an amendatory law to correct the error
Options of congress: To override the veto of the president by 2/3 vote of all the members
Manner of voting
When to vote jointly: Under section 18 article VI
1. Martial law
2. Habeas corpus
They can extend the period or shorten the period, or revoke and they have to vote jointly because there
is an emergency or existence of rebellion. They have to act immediately by voting jointly.
2. No amendment rule
Those who are questioning the amendment of the bicameral committee cannot be changed
SC: the no amendment rule does not apply to the BCC but to the 2 houses
Penal law there are variations as to the penalty, in HR life imprisonment and Senate 10 years
Once a house enacts its version they can no longer amend. Thus HR cannot amend it to 10 years.
Remedy is BCC
Budget/Appropriation:
Doctrine of inappropriate provision: this doctrine is applicable only in appropriations whether the
general or special appropriations bill
Nograles thru a bill wanted to eliminate the 60% rule, there was even a case that was dismissed by the
SC on the ground that it was immature because congress has not yet convene.
Under the constitution congress has the power to increase but not abolish
Informing function: opening of congress which is last Monday of July which is the SONA of the
president
Coverage up to legislative
Comparison:
As to who will conduct the inquiry
21: a mere committee or joint committee while the case maybe
22: conducted by the plenary house- convened in a session
22: question hour only cabinet members and their deputies can be invited
Procedure there: 3 days notice
Specify the subject matter of inquiry
Discipline of members of the house- principle remained the same who can discipline members of
congress
Qualify your answer
If congressman- house of representative
Senator- senate can discipline
Can the Sandiganbayan impose preventive suspension upon senator Santiago for an act she committed
when she was a senator for an act she committed when she was a commissioner of immigration and
deportation?
Defense: only the senate can suspend me
Answer: yes the sandiganbayan where there criminal cases for 3019 can impose preventive suspension
Because preventive suspension is not a penalty it is a part of the proceedings
But preventive suspension was never served by the both houses- invoking separation of powers, never
implemented by the house until expiration of term of office of the officials
Paredes case- can he be suspended as a congressman for an offense he committed when he was
governor?
Defense: only house can suspend
Answer: yes the sandiganbayan where there criminal cases for 3019 can impose preventive suspension
It can be enforced
But to discipline senator and congressman- only one ground by their own house
Disorderly behavior
Art 6
Not loss of confidence- local recall
Grave misconduct
Gross dishonesty
What acts constitutes disorderly behavior- determine what act or acts constitutes disorderly behavior
belongs exclusively to the house political question beyond inquiry of the courts
Congressman very drunk entered session hall and snored very loud subjected to discipline on disorderly
behavior- he questioned the ground- discipline is a internal matter the determination of what act or acts
constitutes disorderly behavior is a political question
Basis separation of power
Penalties limited into the constitution provides for 2 under rules there are other penalties
Maximum penalty is expulsion as a member for disorderly behavior
Plenary the power to determine what acts of acts or the penalty
Expulsion then suspension but suspension is limited to 60 days only reason: Vasquez case, they have the
mandate of the people punishing them and those who elected them in office
Executive branch
Upon whom is executive power allocated or vested by the constitution: only in one man the President
Chief executive
Allocation of power
President- executive
Congress- bicameral body
Oath of office
Of all public officers only president has a constitutional prescribed oath of office
Removal- impeachment
Salaries- fixed by law should there be an increase not take effect during his term of office- participates in
lawmaking he signs the law- delicadeza
Presidential immunity from suit- legal basis: no constitutional basis, but the real basis is customary
international law, generally accepted principle of international law
State immunity from suit –not limited to the state but includes its officials
Parliamentary immunity by congress
Can invoke this one only during his tenure not term
When considered deemed resigned before expiration of term
Tenure actual stay in office
Not length of term which he is elected
For purposes of nepotism special provision intended solely for the president
Privileges
1. immunity
Who alone can invoke immunity from suit? Only the president no other person
Invoked by a columnist a co accused of beltran sued by Aquino for libelous article
2. succession
Who will succeed the president?
Permanent or temporary vacancy
President elect- vice president elect during the term take over in case of death or permanent vacancy
If during this term no one was proclaimed as president- who will take over? Vice president elect will
become the acting president until there will be a president who will be proclaimed
2 situations
1. If president elect dies it is the vice president elect who will permanently take over
2. When no president has been proclaimed, from election up to start of term of office of elected
officials, the vice president elect shall become the acting president until a new president shall
have been proclaimed
Suppose
Inability of senate president
Speaker of the house will assume acting capacity
Who is next? Not the chief justice only up to the speaker of the house
Senate president
Speaker of the House
Go to the next period is during the term- assumed office by the president
Permanent vacancy of the vacancy the vice president shall become not only acting but the president and
serve the unexpired term of the president
In the event that it is both president and vice president position are permanently vacated, simultaneous
vacancy- no immediate permanent successor only a temporary successor- the acting president the
senate president shall become the acting or in his inability the speaker
In that scenario there will be a special election for both the position of the president and vice president
But exception: when no special election will be conducted if the remaining term is less than 18 months
Senate president acting president until end of term of office
Permanent vacancy during the term of the president after assumption of office
Congress will step in- break the impasse if congress so decides that the president is incapable already,
affirms stand of cabinet members, consequential effect automatically the vice president shall become
the acting president
Temporary vacancy if there is conflicting claim on the part of president on one hand and the cabinet on
the other
But the constitution mandates congress to extend the line of presidential succession- so far only 4,
president vice president senate president and speaker of the house
Constitution authorizes further extension of the line to extend the line of presidential succession
President does not have power to determine constitutionality of the law only the court has that power
Cabinet members
Those with portfolio
Without portfolio
Without portfolio
They are presidential advisers or presidential assistants with a rank of a cabinet member- office is in
malacanang not regionalized unlike line agencies
Head line agencies that are regionalized are cabinet members with portfolio
Residual powers
There are residual powers of the president
Those not belonging to the legislative not belonging to the judicially but belong to the executive
Powers not conferred to legislative or judiciary they belong to the president as his residual powers
Example: Marcos v. Manglapus- refused marcos to return to the Philippines
One aspect it is the residual power on the part of the president to refuse the passport to a national who
comes back to the Philippines
Point of view of right to travel: does not encompass right to go home
When you go home you necessarily have to travel
Human rights law not acceptable in the international community
Part of the executive power and residual power is the power of control and supervision of the president
Control more powerful than supervision
Power of control
Power to modify affirm or even reverse or substitute the decision of a subordinate
Correlate this with doctrine of qualified political agencies
Acts decisions of cabinet members are decisions of the president unless the president reprobates or
reverses them- under power of control, mere control
A water cannot rise above its source
Administrative supervision not subject to power and control of the president- COMELEC COA
Ombudsman, exercise independence not subject to power of control and supervision of the president
1. Admin agencies
Control- all except those independent agencies
2. LGU
Supervision only
Discretionary power- given power to choose among the qualified possess qualification and no
disqualification
Can appoint even the least qualified
Time of issuance
Regular appointment- congress in session
Ad interim appointment- in recess
Nature of appointment
Both are permanent appointments
Regular appointment-
Ad interim appointment-
Can a cabinet member acting as an alterego revoke the decision of the fellow cabinet member? No the
yare co equal
If he is the exec sec can he revoke the decision of a fellow cabinet member? No they are co equal
Exception: executive secretary can he revoke decision of a fellow cabinet member
When he is acting under the authority of the president- acting under the authority of the
president
SC ruled in QC council making appointments invalidated by the SC, they cannot appoint nature is
executive pertains to the chief executive and not to a legislative body
Time of issuance
Reg: congres in session
Ad interim: in recess
Both are permanent appointments- if can no longer be revoked by the issuing authority once accepted
by the appointee or any other appointing authority
In case of ad interim it can still be revoked although permanent by the CA not the president or
the appointing authority
Appointments whether require confirmation or not
Require confirmation
Those that do not
Require confirmation
Cabinet members whether with or without portfolio both require confirmation
Ambassadors consuls and public ministers
Military- colonel and above
Navy- naval captain and above
Not captain in the army
Can the PNP chief with a rank equal to 4 star general be subject to confirmation by the CA? no because
the PNP is now civilian in character no longer part in military only equivalent not a rank of 4 star general
The rest do not require confirmation already including the Commission on human rights like PNP chief
and those in the coast guard
Constitutional Limitations
Art 7
Prohibition on nepotism cannot appoint a relative within 3rd degree of affinity to any government
agency or position
Son of Erap appointment as reserve captain in the Philippine army- only reserve service not active
service
Specific prohibition in the president- in any position in the government for the President
Statute of nepotism the exceptions- passed in 1960’s
Cannot apply nepotism in 3 areas- military, those with medical professions and public school teachers
Does not apply to president as a prohibition
Constitutional provision to that Art 7 limitations on the power of the president to appoint belong to Art
7
2 limitations:
Prohibition on law of nepotism
Midnight appointments- exclusively applies to the president and no other appointing authority
Rama case
Prohibition exclusively applies to president only and no other appointing authority
Point in time: issued when the term of the president is about to expire
One issued 60 days before the elections, what elections?
2 types of elections
Mid year- does not apply prohibition here
Election prior to the expiration of her term
Corona case
Cannot appoint someone to an office which is not vacant
Vacancy will be created when the current CJ will attain his retirement before you can say that there is a
vacancy
Judges appointed issued during the prohibited period- within 45 day period the election
Acted on the last half of the 90 days but fell during the election ban on appointment
Was the appointment of the 2 judges valid? Invalid circumvent the election ban on appointment
Carlos Garcia
Appointed 300 permanent positions when he was about to leave no ban yet on constitutional
appointments- reason incoming president should appoint
Incorporated the ban on midnight appointment
Veto powers
President may not issue pocket veto
When congress has adjourned sine die- preclude the power of congress to revoke the veto
Hecklers veto- in relation to freedom of speech in bill of rights
Diplomatic powers
Constitutional powers of the president
1. Conduct of foreign relations
Executive in nature and grant of clemency
States foreign relation belongs to the executive prerogative wide latitude of discretion in exercising this
power
Delegated powers
Under concept of non delegation of powers
Under constitution, what are the powers delegated by congress to the president?
2 categories of power
Exercise of emergency powers
Flexible tariff rates quotas import quotas etc
Tariff rates import export quotas tonnage and wharfage dues- foreign economy or trade- to expedite to
delegate to the president to not lose a lot of trade and international opportunities
Commission on appointment
3 options to check and balance to approve disapprove or bypass
4 categories of officers subject to confirmation
Power to appoint cannot be subject to review unless showing grave abuse of discretion or violation of
the constitution
Power to appoint carries power to remove applies only in executive branch of the government other
branches do not apply separate mode applies like impeachment
Power of control and supervision acts of cabinet member presumed to be acts of the president unless
reprobated by the president they are deemed acts of the president
Doctrine of qualified political agency applies only between the president and a cabinet member his alter
ego- apply between ombudsman and state prosecutor- acts of prosecutor cannot be deemed to be the
act of the ombudsman
Doctrine does not apply to them
Only between the president and alter egos
Local governments not subject to power of control only power of supervision by the president
Executive powers of the president enumerated in constitution they are not exclusive
President can still exercise powers other than that enumerated in the constitution which do not belong
to the legislative or judiciary- residual powers
Legislative veto applies to congress- not accepted in the Philippines violate separation of powers
encroach upon power of the courts
Example:
Congress enacts a law president implements
Executive promulgates rules and regulations (IRR)
Can congress determine the validity of the IRR or conformity to the law made by congress? No it belongs
to the judiciary
Kind of legislative veto violates separation of power not part of checks and balances
Delegated power power to fix tariff rate import quotas etc deal with international trade and commerce
they must be promulgated with expediency and immediate dispatch
Mere declaration of state of emergency will not entitled to exercise emergency powers
No law enacted by president
Mere presidential declaration of emergency does not authorize the president to exercise emergency
powers because of non compliance of the requirements enactment of the law to meet emergency
duration to exercise he emergency powers
Diplomatic powers
Several-
1. Conduct of foreign policy chief architect of PH foreign policy
Foreign relations
2. Power to enter into treaties
Concurrence of the senate by 2/3 vote
The senate can also disapprove the treaty entered into by the president
5. Military powers
Calling out powers
Marriage of the chief executive power and military power of the president
Commander in chief of AFP and chief executive
Exercise this in 2 capacities
Calling out powers- to call out the arm forces in order to suppress lawless violence invasion and
rebellion
Is it necessary for the president to declare martial law to use this power? No
Or suspend privilege of habeas corpus? No
Even without declaring these or suspending habeas corpus, the president can exercise the calling out
powers
The declaration of state emergency or rebellion are mere surplus age- not necessary to exercise calling
out powers
Reason: in many cases even if there is allegation in the exercise of calling out powers- SC recognizes the
fact that president is an official of the government who has most access to intelligence reports
All fed to the president and access to all of them
Aside from the calling out powers- military related powers declaration of martial law
They are surplusage no need to make declaration of state of emergency rebellion
Purpose is to suppress lawless violence invasion rebellion
This act of president is discretionary
Court will not examine
Will not confer additional powers when he makes declarations
Only limited to calling out powers
And the presence of actual invasion or rebellion will not justify it must allege that public safety requires
it
Draft the declaration of martial law or declaration suspending privilege of habeas corpus
Actual invasion or rebellion- and public safety requires it
President will report to congress within 48 hours about the fact of declaration or suspension
No confer additional powers
Only when declares martial law- power to issue presidential decrees
But cannot abolish congress they have concurrent powers
Limitations from the court and congress and from the president himself can withdraw or revoke the
proclamation
Proclaim state of rebellion- 10 days after petition in SC is filed, withdraw the proclamation render
proclamation moot and academic
State of emergency- petition filed, withdrawal or revocation of the proclamation basis to dismiss the
petition
Will not render case moot and academic- capable of repetition and evasive of review
7. Create military tribunals are not created by congress created by the president as the
commander in chief of the president
Limitations- open court doctrine
Military courts are precluded from acquiring jurisdiction over civilians
As long as civilian courts are still functioning and open preclude from acquiring jurisdiction over civilian
people
Deployment of Erap part of his calling out powers- marines deployed in city of manila
Martial law proclaimed and privilege of writ of habeas corpus suspended a lot of limitations
Marcos time:
Courts cannot review political question but now the constitution provides for the sufficiency of the
factual basis
Before when marital law was proclaimed the privilege of habeas corpus was deemed suspended-
declaration of martial law will not auto suspend the privilege of HC
Another proclamation must be made
Writ of habeas corpus is a remedy- file charges against you in court within 3 days if they cannot the
remedy is habeas corpus if granted required to file a case against you if not release unjustly detained
Improved by writ of amparo
Military power
Additional power is issuance of presidential decrees
Like most other powers power to grant executive clemencies cannot be questioned in court
Discretionary power- can only question if there is a violation of the constitution
Limitations:
Like pardon- applicable to criminal and administrative cases
Cannot grant pardon in impeachment cases
Distinction between pardon and amnesty- consent of congress in amnesty congress must concur
In pardon consent of congress do not need concur
Perpetual immunity apply only to the official acts- after the term immunity still applies
But outside official acts not related to performance of his duties- immunity during tenure only
Gen rule only president can invoke executive privilege or the executive secretary
Acting under the authority of the president
Issue is not the level of official who will enjoy the privilege
EO 464
Identity the levels of the executive
Cabinet members
Up to certain extent rank and file employees
SC said do not include rank and file- not the level that matters but the kind of information that is being
sought
What are the usual areas of information when the president can invoke executive privilege?
1. National security matters
2. Military secrets
3. Trade secrets
4. Diplomatic matters
Limit to areas covered because need to balance it with the people’s right to information to matters of
public concern
Judiciary
Most passive among the 3 branches- because no filling of petition general rule they will not act on it
Petition filed before can act unlike 2 other branches which can do it moto proprio
Rarely they act on moto proprio basis
SC
Intermediate appellate court- CA sandiganbayan CTA
Trial courts- RTC MTC MeTC
Collegial courts
Single sala courts
Sec 1
Judicial power- power to settle actual controversies involving rights legally demandable and
enforceable- adjudication, interpret and apply law on individual cases
Judicial review- power to determine whether grave abuse of discretion have been committed by any
branch of government amounting to lack or excess of jurisdiction
Principles:
Operative fact doctrine-
Ex: league of cities case
16 cityhood bills enacted converting into component cities and approved by the people in a
plebiscite
Presumption is creation is valid from town to cities- doctrine of presumption of validity of laws
Petition to declare the 16 cityhood bills invalid, creation not in accordance with the provision of the LGC
First decision: invalid creation based not in the criteria based in the cityhood but criteria prescribed in
the LGC
When the law was still enforce and effect the 16 cities benefited- IRA shares, higher salary grade 30
Law nullified: where does the doctrine come in?
At the time the law is valid will you deprive the cities of their shares in the IRA? Deprive mayor and
officials equal to their salary grade under city?
Under rule of equity and fairness they are still entitled- operative fact law still valid
Operative fact doctrine whatever privileges they have will continue even if eventually invalidated during
period valid entitled to all privileges entitled to them
Rule on equity and fairness goes hand and hand with operative fact
Cannot return salary or IRA
2. checking function
proclamation 1017- cannot issue a presidential decree or warrantless arrest or impose guidelines for
media to follow all unconstitutional
3. Symbolic function
Educate the members of the bench and bar
Normally when an issue become moot and academic:
Dismissal of NAPOLCOM- appeal to sec of DILG- appeal to the civil service commission- then court of
appeals
Exhaust all administrative remedies prescribed by law nothing more to be done only time to
turn right and go to judicial review
Substantive requisites
1. Property party- legal personality to go to court
General rule:
A proper party- apply direct injury test, sustained or about to sustain injury legal personality to
go to court
Direct injury test soften can invoke personality to invoke- tax payers suit
Tax payers suit- Expenditure of public fund and public fund appropriated by congress and not
merely earmarked by the president to augment
Legislators standing- only members of congress can bring it if their prerogative as legislator has been
usurpted by the president
Ople v. torres- AO imposing national ID system
Pimentel case
Usurpation of prerogative of congress to enact law
But whether a party is invoking tax payers suit citizens suit legislators standing and other exception-
there
Symbolic power- even when issue is moot and academic it can still decide on the case
To educate the bench and the bar-capable of repetition yet evasive of judicial review
4.
Political question doctrine- JR
For the people to decide- SC or any other court refuse to take cognizance or decide of the issue
but one issue is a political question on that issue, skip it
Judicial department
Settle controversies involves exercise of judicial power while to determine whether grave abuse of
discretion is created by any branch of government- judicial review applies
As long as law is valid can avail of all privileges granted to it not surrender those privileges at the time
when the law is valid
Stop only when declared invalid- prior to enjoy benefits
b. For the current year when congress is appropriating funds for the judiciary must not be lower
than appropriation of last year
Cannot appropriate lower can be the same or greater
Judicial strength while the courts enjoy fiscal autonomy they should exercise judicial restraint
Congress has oversight functions- all the right to see whether appropriation law is followed by the
judiciary
Spent in accordance with appropriation law
judicial independence form judicial restraint needed to free them from external influence to affect their
decision making
remain impartial
judiciary is last bulwark of democracy if cannot or failed to seek redress from other branches
moderated by principal of judicial restraint
accountability provision they are also covered
on matter of exercise of power the court should not share their power with other agencies- violation of
separation of powers and non delegation of powers
Judicial restraint
Public opinion plays an important role
Did not act on restraining order filed by CJ
Art 8 new system is the judicial and bar council created under art 8
Common question in the bar- function:
Screen and nominate candidates for appointments n the judiciary
CIPI-
Competence
Integrity
Probity
Independence
7 members originally
But now 8 members
Ombudsman only PI
Probity
Independence
Subject judges to psychiatric evaluation: not among one prescribed by the constitution
Competence is one qualification
Probity
Integrity
Independence
Original jurisdiction
Under constitution
Appellate jurisdiction
Can congress add or give additional appellate jurisdiction to the SC- yes but subject to the prior consent
of the SC
What about admin agencies? No it is the admin agencies that can promulgate rules
But the SC up to a certain extent those admin agency adopt requirement of verification and certificate of
non forum shopping
But other matters with respect to rules no more
All other aspect of rule making power of admin agencies SC will not enter
Except when the rules will diminish or increase substantive rights- nullify it
SC governed by limitation that whatever rules they come up with must not increase decrease or modify
substantive rights
Can CSC investigate career employees in the judiciary for disciplinary purposes? No power belongs to
the SC
CSC in the executive and legislative but not career employees of the SC
Justices of the SC
Investigated by the Ombudsman
Disciplinary purpose- no
Impeachment cases- yes 6770
Ombudsman can investigate for impeachment
RA 6770
<SPACE>
After screening the appointment and to recommend to the president- constitutional mandate
JBC constitutional position- membership thereof
Ex officio members
Chief justice as Ex officio chairman, sec of justice, representative of Congress
Regular members
Appointment by the president subject to confirmation by the CA
Representative from IBP
Representative from group of law professors
Retired SC justice
Representative from private sector
Reason:
No chief justice and one of the ex officio member is the CJ
How can the JBC act if there is no CJ?
Notwithstanding the absence of the CJ, the JBC can function and perform its job because under the rules
if the position of the CJ is vacant, under rules of SC the most senior will act as acting CJ
Under the rules again, is that the top most senior justice will be automatically nominated for position of
CJ if the CJ position is vacated
While constitution grants SC the power to promulgate rules subject to limitations imposed by the
constitution:
Rules simplified and inexpensive and uniform in each level
They must not increase diminish or alter substantial rights substantially
Suppose a court failed to issue a decision within the reglamentary period, RTC judge within 90 day
period no decision arrived at, effect:
1. On jurisdiction of the court over case- the court will not be ousted of jurisdiction
Principle once jurisdiction is acquired will continue until termination of the case
2. Upon the judge- sanction withholding of salary or non release thereof
Decision of SC insofar as the period of SB to decide cases, apply the 90 day period irrespective of the
jurisdiction whether appellate or original
Reason: SB although a collegiate court like RTC and MTC it is a trial court that receives evidences also-
governed not by 1 year but by 90 day reglamentary period
Rationale:
To serve the purpose of due process to both parties in the case
Prevailing party and losing party
Why he won why he lost- due process to both parties and practical reason is to facilitate review
One time asked for exemption in salary grade- denied by congress only increase allowances 100%
Allowances not subject to tax
If part of salary it becomes taxable
Dominium- proprietary
Imperium- concept of sovereignty
Regalia doctrine- all lands of the public domains water minerals and other mineral oil
Sec 2
Are all owned by the state
Lot owned and titled under name of individual but resources herein including water belongs to the state
This cannot be alienated except agricultural lands
Labugalblaan case
Oil petroleum
Former natural born Filipino citizens who are no foreigners lost citizenship
Can be a transferee to a private land
Urban land 5K limitations
Limited to 3 hectares rural lands
Use of the land before only for residential purposes under amendatory law- for all business now
Commerce residence etc
Non Filipinos who can own private lands- property involved is a condominium unit
Subject to 60% rule
Co owner of the land also subject to 60% limitation
Sec 11
Rule on franchising- of a public utility Filipinos
Corporations 60% rule
Policy to encourage equity participation in public utilities given to the public
Limitation who can manage these kinds of business- they must be citizens of the PH
Sec 17 18 19
Correlate to power of president to exercise emergency powers subject to law enacted by congress
Effect if congress authorizes president to exercise emergency powers
Confer upon president the power to temporarily take over or direct operation of any private owned
public utility or business affecting public interest
Mere declaration of state of emergency does not authorize emergency powers cannot take over
a privately owned public utility
There must be an emergency law enacted by congress authorizing the president to exercise
emergency powers
Transfer of ownership when government takes over? No take over operation only not change of
ownership
Requirements:
Public interest must require the takeover of the government
National emergency involved
Subject to existence of national emergency
Sec 18
Ownership may be effected by the government
17 mere temporary takeover of public utility
Establish and operate vital industries transfer to public ownership other utilities and private enterprise
Taking over ownership
Requirement
Just compensation must be paid
Sec 19
monopolies
regulate or prohibit monopolies when public interest so required
it cannot totally prohibit can merely regulate
jurisprudence interprets it to regulation not total prohibition
Education
Section 2
Integrated system of education
Free public education elementary and high school
3. Enrolment is Filipinized
Maximum foreign students is 1/3 only
Put up a school catering purely to foreigners
Exception:
Established by religious groups and mission boards- diplomatic arm of a foreign country
Put up school exclusive for them do not apply 1/3 maximum requirement
Not only religious institution under religious accommodation that is given tax exemption
Sec 29 of art 6 grant tax exemptions
Educational institutions religious and charitable
Exemption only for real property tax- REC purposes
Academic freedom
Who is entitled to academic freedom?
Is the concept of academic freedom broadened under 1987 constitution?
True
Areas of expansion
1. As to the kind of institution that has been granted
1935 cosnti- only state universities are entitled- expanded to include all educational institutions of
higher level be they public or private
2. SC decisions not only to higher learning but also to secondary and elementary by implication
entitled to certain aspects of academic freedom
3. Not only institutional there is also academic freedom of faculty members and other members of
academe academic researches
Presidential declaration to that effect- development in Boracay will not convert the land into alienable
land
Educational institution NS NP EI
Even revenues donations from abroad or domestic sources subject to tax exemption
Academic freedom
Has the principle of academic freedom been broaden in 1987 constitution?
3 areas:
1. Not limited to state universities but even private institutions of higher learning now enjoy
academic freedom
2. By implication even elementary and secondary levels are also entitled to academic freedom to a
limited degree enjoyed by institution of higher learnings
3. 3 sectors guaranteed- include also faculty and academic researches and to the students
All schools
Who shall teach- not only institution of higher learning but even secondary and elementary enjoy the
right to determine who shall teach subject to minimum standard set forth by the CHED DepED and legal
education board
Minimum requirements
Elementary high school- licensed teacher
College- must have MA
Unless professional course- require licensure examination
Subject to constitutional rights- appointment is discretionary in nature of a teacher in a school
Cases:
UP board of regents sued by civil service commission
Government school governed by CSC rules
Recommended removal of the law professor
UP board of regents did not only welcome back the professor and promoted him even
AWOL
Sided with academic freedom
UP has right to determine who shall teach
Journalism campus act- student cannot be expelled if the sole reason of expulsion is the article he has
written in the school paper
Pascual case
Contract between school and student
It is not semestral until you will finish the course
No disciplinary action-
Contract for purpose of admission and readmission is not on a semestral basis but until she finishes the
course
Whom to teach
Restricting right of a student- SC sided with the police power of the state regulatory power
This belongs to the institution not to the faculty
Institution can prescribe it to their faculty
Grading system
How to teach
Prescribed dress code
Computation of grades
UP case baguio
Put up in 1960 college and high school
The UP board of regents would like to abolish high school
Elevated to SC
Academic freedom
Whether to offer high school or not depends on the school or not
Assembly
Peaceful assembly in the parking space- private property of university
Subject to usual limitations and requirements imposed by law
Other local dialects if not official communication and instruction- serve as auxiliary media of instruction
Additional medium of instruction
Art 16
General provisions
Can congress change the name of the Philippines into Maharlika or change national anthem or national
seal
It can be changed by a statute there must be a people will raify it in a national referendum approval by
the people of a bill, law enacted by congress
Which of the following changes require a plebiscite- name of country national anthem national seal
design of the PH flag- design of PH flag- constitutional amendment ratified by plebiscite
Other 3 referendum
Ownership and management of mass media- unlike other areas ownership is Philippinized
Other corporations- board of directors equal to the required capital
In addition to the 4- there is autonomous regions only 2 are allowed to be established by the
constitution but now there is only 1, ARMM
Inhabitants
LGU used population
Local autonomy
Literally- simply means right of LGU to self government
Point of view of the LGC- Local autonomy means transfer of PARR from national to local
Power authority resources and responsibility from national to local
Not independent to describe autonomy- diametrically opposed to one another
Synonymous term to best describe local autonomy- decentralization of PARR power authority resources
and responsibility from national to local
Reason rationale why state has to grant autonomy to LGU as can be gleaned from LGC to make LGU self
reliant communities- stand with own feet
Minimize the culture of dependency of LGU to national government
Other reason is to make LGU an effective partner in national building- task of nation building not alone
with government but LGU have great responsibility also in national building
2 kinds of decentralization
1. Political decentralization
2. Administrative decentralization
Local autonomy
Transfer of resources also not only power
Their share in collection of national taxes in the form of IRA- internal revenue allotment- 40% of total
collection of national government of taxes
Under principle of transfer of portion of resources under local autonomy
Recall- mode of removal of local elective official before his term expires by electing his successor
Putting up of lotto outlet- not project of national government and does not produce any adverse effect
of ecology and environment- no necessity of consultation
Rizal providence MMDA made as dumping ground of garbage of metro manila, requires mandatory
consultation- immediate effect upon ecology and environment of the province of Rizal
Over LGUs
Do not interchange power of control of congress over LGU with power of control of president over his
subordinates (cabinet down the bureaucracy)- different
Includes power to conduct administrative investigations over LGO’s local government officials
administrative cases field and decided by office of president
Power to impose disciplinary sanctions over LGO
Components of power of general supervision conferred by the constitution and exercised by president
over LGUs
Cases:
Tendency of power to usurp power of congress exercise not mere supervision but control
Pimental case- principal sponsor of LGC
Under LGC- 40% of the collection of taxes shall go to LGU in terms of IRA share
According to the same law- release must be automatic- when there is a release prohibit any withholding
of any part of the 40%
Ramos the president before issued an A.O. directing the DBM whenever the DBM releases IRA share of
the LGU 10% of 40% be withheld
Grounds challenged by Pimental
Power of president over LGU- mere supervision not control, act of ordering withholding of 10% is
control not supervision, amending provision of LGU
Amending the 40% is an act of control and not power of supervision that belongs to the president
Power of general supervision does not only extend to LGUs it even extends to leagues of them
Limited to general supervision and not control
No officers in one league- fill up positions in the league- no longer power of supervision but power of
control already
Provinces
Highly urbanized cities
Independent component cities
Component city part of province unlike a highly urbanized city not a part of a province even if
geographically located in the heart of a province
Cannot elect provincial officials do not share their income tax collection with the province
Component Municipality and city- part of province subject to delegated power of supervision over its
component municipality and component city and it includes the power to oversee and review
ordinances and executive orders
And the power to conduct administrative investigations over the LGU officials next lower except
component cities- Alaminos case
Sued mayor Branganza I nthe Sanggunian lalawigan of Pangasinan- dismissed for lack of jurisdiction,
president exercise power just like provinces cities municipalities
Officials of city whether iCC or HU or even a mere CC- administrative case office of president
Review of ordinances for purposes thereof covered by the review of provinces
Municipality consist of barangays in turn supervise the component municipality their component
barangay- power of general supervision delegated but will not preclude the office of president from
exercising direct supervision
Shabu mayor of Mayor- administrative case assumed directly by the office of the president not the
province
Does not preclude OP from exercising jurisdiction or his power of gen supervision
Creation of LGUs
Who can create? General rule only congress can create LGUs
What about the president- it cannot create a LGU
Land area- ruels to determine land area- minimum land area set up by law
Certify land area compliance of land area land management bureau of DENR who will certify the
existence of land area requirement
Barangay
Lowest level
Substantive requisites
Population only
Required population:
Metro manila barangay or HUC- minimum population of at least 5K all others apply the 2K minimum
population
Coverage
Executive
Judiciary
National economy
Miscellaneous provision
Creation
General principles of creation only congress can create that power can be delegated but it must be a
legislative body
Under LGC power to create has been delegated to the sanggunian panglungsod in HUC or ICC or
sanggunian panlalawigan CC barangay or municipality
Public hearing or consultation conducted by Congress or sanggunian who will enact the statute or
ordinance as the case maybe
Enactment of a law or ordinance following usual procedure in law or ordinance making including the
vote required
There must be a plebiscite
Apply the substantive and procedural requirements in the creation of various LGU
Barangay- smallest political unit
Smallest social unit- family
Boundaries defined by metes and bound not necessarily in exact inch or centimeter but identifiable and
definite
Implication is that there will be confusion in the exercise of governmental powers- exercise by the LGU
coextensive with their territory can only exercise within confines of their territory
Well defined boundary give rise to confusion
Specify in metes and bounds- fatal defect render the creation of the LGU null and void
Procedural requirement- law enacted sordinance enacted or by sanggunian panlngsod
Even if congress delegated the power to sanggunian, congress still not precluded despite power having
been delegated but priorities in indigenous communities
Plebiscite- if there is a pending boundary dispute where the new barangay is created no plebiscite can
be held the plebiscite conducted is null and void
Pendency of boundary dispute is a prejudicial question first resolved by the court before a plebiscite can
be held
Creation of municipality
Substantive requisite
All of them must be present
Land area- 50 sq kilometers
Income- 2.5Million
Population- 25K
But 2 municipalities created by president but when ultimately questioned in court, the court affirmed to
the creation by way of exception
Municipality of Jimenez and San Andres in Quezon
Reason: despite defect that they were created by the President
4. Another law enacted by congress- LGC, sec 442-D states that all existing municipalities shall be
considered regular municipalities upon effectivity of this code- effect is that cured defect of
creation of San Andres
Long a de facto municipality
Effect of Sec 442-D
All existing municipalities existing in fact cured of defect as a regular municipality
Andong Municipality- one of the 18 municipalities earlier declared null and void by the SC
Botched 18
Declaration of nullity- cannot consider as existing municipality or de facto municipality
Only applies to de facto in this case Andong municipality was declared null and void it was thus
inexistent
Creation of cities
3 kinds of cities
Component city
Independent cities
Highly urbanized city
CC
ICC- income and population needed or income and land area
CC ICC
Income requirement is 20M including IRA share
But amended RA 9009 increased the 20M to 100M and excluding IRA
100M locally sourced only excluding IRA- IRA is not locally sourced from external source national
government
20M set by the LGC was too easy- blossoming of towns into cities
Implication to existing cities joined by many town- lowering of IRA shares of existing cities
Before RA 9009 took effect 11 municipalities humabol
16 cityhood bills- exemption from the new 100M income requirement
Plebiscite done through
League of cities questioned validity of 16 cityhood bills- anchor main argument on LGU that cities shall
be created in criteria in the LGC not criteria in their respective charter which are special laws
SC sided with cities first- special law v. general law- in political law, general law prevails, do not apply
concept in civil law
Kawali case-
Not on income
Mode of creating a city that is at issue
Sorsogon province capital of Sorsogon when they converted Sorsogon town into a city merged a small
town of bacon questioned by Kawali
Argument- all cities in PH practically they are all created by Conversion before created they were all
towns, municipality then town
Cannot be done by merger only by conversion
Whether by conversion or merger it is prerogative of Congress- even if exclude bacon the province will
meet the requirement, a political question left to wisdom of congress which courts cannot inquire into
Makati- conversion from municipality to city, the law converting Makati into city did not specify the
metes and bounds of territory of Makati
Pending boundary dispute between Makati and Taguig
Point of view of public corporation- tactical error must specify the metes and bound of the territory
HUC- 2 modes
If it is a municipality straight to a HUC- done by congress through a charter
But already a component city being upgraded into a HUC, mode is mere presidential declaration will
suffice
No more need to meet charter by congress mere declaration of president will suffice
Mere resolution asking president to declare their city into a HUC
Application through resolution
Plebiscite conducted
Powers of LGU
2 categories of powers
Conferred by law to LGU
A. Governmental powers
Police power sec 16 general welfare clause
Power of eminent domain sec 19
Power to generate and apply resources Sec 18
Taxation only raising revenue
Generation of resources not limited to taxation but includes applying resources through an
appropriation ordinance
General principle of powers with LGU- no such thing as inherent powers of LGU power same with
administrative powers
Only national government has the inherent power- even without confer powers upon an agency
they can be exercised, exercise 3 powers even without express grant by the constitution
No express grant of power to LGU no power to exercise except if the powers are implied powers but
must be derived from the express grant
No express grant no implied grant
b. Lawful means
Means employed to attain lawful purpose must not be oppressive
How will the LGU exercise the same? Through the enactment of ordinances
Cannot escape the topic of requisites of validity of ordinances
Classify ordinance pursuant to exercise police power by the LGU (regulatory ordinances)
Zoning ordinance- is that pursuant to police power, power of eminent domain or taxation or all
of them? it is police power
Comes in conflict with non impairment clause- police power prevails
Constitutional requirements for validity of an ordinance
a. Comply with due process clause
b. And comply with equal protection clause
Due process
Procedural requirement before, during, after enactment of ordinance
c. Must not contravene the constitution and the statute- hierarchy of laws
Law- Local Government Code
Presidential decree issued creating the PAGCOR to put up a casino within territory of the PH
Statutes take effect anywhere in PH
When PAGCOR eyeing Cagayan de oro to put up a casino,- CDO sanggunian panglungsod enacting an
ordinance prohibiting the establishment of a casino within the territorial limits of CDO
No the ordinance is invalid
The ordinance contravenes a statute, presidential decree allowing the establishment of a casino,
subordinate legislation conflicts- statute will prevail in case of conflict
Observance of due process of law- deprivation of right to property without due process, automatic
revocation of license- deprived of property
A and B entered into a contract of sale of parcel of land subject to condition: parcel of land used only for
residential purposes
Terms and conditions- annotated at back of title
Ordinance reclassified the zoning ordinance from residential to commercial
Buyer put up a commercial building
Under contract- restricted to construct a commercial building, invoked non impairment clause of the
constitution
Zoning ordinance v. terms of a contract
Resolve:
Police power prevails over non impairment clause
Zoning ordinance prevails over non impairment clause of the constitution
1 valid 2 invalid
Franchising is valid because that power devolved granted transferred under autonomy from LTFRB a
national agency to the sanggunian panglungsod
2 others licensing and registration remains with the LTO not delegated power to LGU
Ordinance invalid
Grounds of due process- denied right to property w/o due process of law
Manila case
Ordinance enacted by city of manila prohibiting within Ermita district red light district
Motels inns lodging houses are prohibited to put up and operate in these districts but not hotels
Questioned on equal protection of the law- discriminated, why hotels not prohibited
Offer short time service
Eminent domain
Power to expropriate private property for public use after payment of just compensation- sec 19
Whenever a problem given about eminent domain, 1stthing to come into mind, who is exercising the
power of eminent domain, national or local distinctions between them
Distinctions:
National v. local
A. Procedural requirements
Required in LGU but not necessarily in National government but now being adopted by the national
although not really required
Requirement of valid and definite offer to buy the property before filling an expropriation case in court
Required expressly mentioned in sec 19
Before condemnation proceeding the mayor of LU much approach the owner to buy- must make a valid
and definite to buy- consideration grossly inadequate tantamount to donation
Only when owner of property of property rejects the owner that an expropriation case will
prosper
When offer has been rejected then the only time file an expropriation proceeding in court
This requirement is not mandatory in the national government unit- advantage on part of government
and property owner
B. Gen rule only private property can be subject to expropriation, public property cannot be
subject to expropriation
If the private property has long be devoted to public use, can it still be used for expropriation?
If national it can still expropriate, superfluous
If local, no longer subject to expropriation
Devoted for so long for public use for so long
National still can be expropriated
LGU cannot anymore
D. Genuine necessity
Is there necessity to expropriate the property or two or 3 choices of property which can serve best serve
the purpose- involving issues of genuine necessity
In what court to be brought- RTC, expropriation cases are incapable of pecuniary estimation
Court of general jurisdiction applies
LGU other procedural requirements other than going to owner and making offer to buy
The second procedure is there must be an expropriation ordinance
Necessity that the expropriation proceeding be completed before LGU can take over- no for as long as
LGU complies has paid 15% of the fair market value of property can now take over the property- issue
left for resolution left by the court is how much just compensation should be paid
Distinctions in the exercise of eminent domain by the national government on one hand and by the local
government unit on the other
Can LGU take over property already even if expropriation proceeding has not yet bee ndisposed of- as
long as LGU deposit 1/5 of FMV of property subject of expropriation
Remedies
An agency of government took over a private property owned by X without any offer to buy without any
expropriation proceedings even
Remedy of owner- if already occupied and use by government entity?
Can the government invoke immunity from suit? No because exceptions to the rule
Cannot ask for payment of just compensation- no expropriation proceeding no court that fixed and
ordered just compensation
Sue the government who did that? Recovery of possession dispossessed plus damages
PLR under its charter authorizes to expropriate private property expropriate parcel of private property
just compensation was paid 30 years ago
During expropriation proceeding to make use or property as an extension of railway
30 years has lapsed, no railway ever constructed
In fact lease to private entities- rate of lease was very high
Private property expropriated was not use for its intended purpose which is railway
Mutual restitution
Recovery of ownership possession and ownership of expropriated land with obligation to return
the payment made 30 years ago
No interest
Automatic remittance of shares to LGU no longer go through collecting agency- go direct to LGU
concerned
Constitution:
IRA share
Local taxes
Share in utilization of natural resources
Grants- receive without obligation to pay back the principal and interest- use it with its intended
purpose, or in form of soft loan
Loan obligation not pay principal as well as corresponding interest
Not limited to taxation but power to generate resoruces
Purpose of taxation
For public purpose- not only to support the government and its legitimate projects
Authorization in the form of an ordinance that must be enacted
Real property tax- while provincial imposition, barangay and municipality has share
Sand and gravel tax- share of province barangay and municipality where it is extracted
Amusement tax- 50/50 between province and municipality
No money drawn out from local treasury except in pursuant to a local appropriation ordinance
Treasurer no power to dispose money if no ordinance – violation of 3019
Mandamus case should be filed- compelled sanggunian to enact the appropriation ordinance
Authorizing relase of money to pay for the damages
Public funds cannot be subject to garnishment
#1 fiscal rule- release of funds not the courts but sanggunian through an appropriation ordinance can
authorize money from the local treasury not by a court order
Appropriate 300K pesos by the sanggunian but the mayor and treasurer refuses and continue to refuse
the release of 300K
Remedy- garnishment will be in order
Private subdivision can a sanggunian appropriate money for the improvement of roads within the
private subdivision?
Qualified answer- if the streets within subdivision have not been turned over to the city or barangay as
barangay road or city road no single centavo can be appropriated- not a public purpose
If road within housing subdivision turned over to the city as barangay or city road- can be subject to
appropriation by the sanggunian
Corporate powers
In its private or proprietary capacity
Sec 22:
1. Use of corporate name
LGU is also a corporation- use name for purpose of identification
When suing or when being sued, who will represent the LGU?
General rule: their own legal officer if they have
Barangays do not have legal officer
In absence of legal officer, ask the DOJ by virtue of a resolution to give them an assistant prosecutor to
represent them in court
In both cases legal officer or prosecutor- common in them both of them are government lawyers
9general rule) represented by government lawyer
But cannot be PAO- cannot represent a barangay only for indigents
Exception:
When private lawyer can be hired?
a. When assistant prosecutor is DQ
Party in the case
Heir wife children heir/ beneficiary in the case
b. When opposing party is an LGU also
c. When case reaches SC already
Roads cannot sell roads or the capitol municipal buildings barangay halls
Remedy- transform into a patrimonial property before the same can be sold
Withdraw purpose for public use
Permanently close the road first- no longer a public property- becomes a patrimonial property of the
LGU
Substantial requisites
a. Involves expenditure of public funds
MOA- no expenditure of government
If requires expenditure of public funds,
- There must be an appropriation ordinance
- Certification by local treasurer of availability of funds
Power to secure grants without necessity of approval of line agency or next higher agency
Except if the grant has national security implications
b. When economic value of the land will go higher because transfer to industrial commercial
residential purpose
Subdivision
Etc
Who will determine? Sanggunian panglungsod or bayan where the property is situated will determine
and certify this ground
Public park that is closed- requirement is that there must be relocation site
Temporary ordinance- simple majority vote- because law is silent
Principle that roads are beyond the commerce of man- cannot be sold or leased
Makasiano v. Diokno
Jurisdiction:
Barangay- boundary dispute involving barangay belong to same city or municipality
City- panglungsod
Municipality- panlalawigan
Davao v. Surigao
One of the parties went to the RTC
RTC came out with decision- questioned for lack of jurisdiction
Sustained- neither original or appellate jurisdiction
LGC very clear one who exercised primary jurisdiction is joint davao and surigao
After the join sanggunian- appeal to RTC
No appellate jurisdiction yet because no original jurisdiction yet finished
Procedure- 3 steps:
Amicable settlement- elevated to them call the parties for amicable settlement
Failure to settle- formal hearing by that sanggunian
Bills given to sanggunian- provincial panlalawigan city road panglusod municipal bayan to rename
Although power to be delegate
Limitations by LGU and rules and regulations promulgated by national historical institute:
In naming and renaming
LGU requires certain entities notified for change of name- office of president chief executive- district
congressman might file different bill, PH postal corporation- to know that the name of area is changed
3 powers of LGU insofar as PNP units are concerned exercised by local chief executive
Governor or city/ municipal mayor
What powers to exercise
a. Power to appoint chief of police or provincial director
Governor cannot just appoint anybody- appoint among those appointed by the PNP, minimum of 3
appointees
These 2 sources that can make LGU and/or an LGO civilly liable
Comparative approach
If a jogger fell on a manhole- both of laws are applicable- death in 2189 and death of person in sec 24
Coverage
Art. 2189: because of negligence in maintaining roads and other public structure
Sec 24 of LGC: all kinds of negligent torts not limited to failure to maintain roads or other public
structures
Liabilities for contracts: when can you hold LGU liable for contract
If intravires- within scope, LGU is liable
Ultravires- beyond scope- can make the personally official liable, no liability attach to LGU
Local officials
2 categories of LO according to how they attain their position
Appointive and elective
Elective:
Who are they?
Autonomous region:
Regional governor vice governor assembly men
Province:
Governor vice governor and sanggunian panlalawigan or board members
Voted by members of their sector- ex officio members
Council league president
SK federation president
ABC federation president
City
City mayor vice mayor councilor
SK federation president
ABC federation president
Municipality
Municipal mayor
Vice mayor
councilors
SK federation president
ABC federation president
Barangay
Punong barangay
7 sanggunian barangay members
Municipal mayor
At least 21
Municipal councilor
At least 18
SK president
age bracket 15-17
Labo doctrine on qualifications- continuing requirement possessed not only at the start but continuing
until end of the term of office
If anyone of ACRER- ground for disqualification and eventual removal from office
Citizenship
Natural born or naturalized
Either natural born or naturalized- must be citizen of PH either not both
When must it be possessed?
LGC is silent on this- rules of interpretation of sec 5 LGC- apply jurisprudence becomes a part of
law of the land, absent jurisprudence customs tradition or place where controversy takes place
He must be a citizen of the Philippines
There is jurisprudence- second Frivaldo case: ruling: not later than proclamation even retroacted back to
the time Frivaldo applied for repatriation not filing of certificate of candidacy but no later than day of
proclamation
Requiremed citizenship must not be later than the day of proclamation- Frivaldo, retroact to the day he
filed for his application for repatriation not the filling of candidate of certificate of candidacy
Granted after election but before proclamation
Residence requirement
1 year immediately preceding the elections
For al local elective officials apply rule of one year immediately preceding election
Invoke domicile of origin- no problem
When domicile of choice- change his domicile of origin to other domicile of choice- 3 requisites:
1. Actual physical presence in the new place
2. Intention to stay there permanently
3. Intention to abandon the old domicile of origin
Aquino case- prove that his actual stay in Makati, intention to stay there permanently but no proof that
showing he has intention to abandon his old domicile
Bought beach house- mere buying of property is not indicia to residency in the place
Compounded by the fact of affidavit that he has caretaker- no actual stay there no intention to
stay permanently or abandoning her old residency
Continuing qualifications
Any one requirement is no longer there- ground for DQ and eventual removal from office
Green card holder- not allowed to run- lack of residency, do not equate greed card with citizenship
Once PH citizen granted green card- technically loses residency in the PH
Surrender green card to the embassy who issued the same- before the 1 year period immediately
preceding the election
Mere filing of COC there must be an affirmative act to be done to regain back residency before the 1
year period before the election
Torayno case
Issue of residence requirement- about to end his 3 terms as governor of misamis oriental
1 year before the election, he changed residence fro misamis oriental to Cagayan de oro- HUC
independent of the province
Canceled his voter registration in misamis oriental and registered as voter in CDO
Filing of COC- while still incumbent governor filed COC for mayor in CDO
Lack residence requirement? All ACRER elligible
Although, when he did the act of registering in CDO and as a registered voted- DQ as incumbent
governor under Labo doctrine on qualifications not raised as issue by Torayno
Only eligibility of mayor questioned not eligibility to continue as governor
Rationale of residence requirement- problem and situations and issues of the community, prevent of
election of a stranger to the public office- a stranger is not an effective leader
The provincial capital of misamis oriental is located in the heart of CDO- more than meets enough the
rationale of the residence requirement
Registration as a voter
If there are qualifications there are also DQ- in LGC, and under election code
Lack of age citizenship- lack of qualification, ACRER
Not a disqualification
1. Conviction of a crime by final judgment either moral turpitude regardless of the penalty or a
crime of more than 12 months
Less than 12 months- as long as moral turpitude
Not the nature of crime but the length of penalty imposed, no need moral turpitude
But we should not lose sight that there is a qualifying phrase under that subsection- when the DQ will
apply within 2 years after service of sentence
Implication- he must serve his sentence before the DQ of 2 years will apply
Moreno case- convicted of a crime involving Moral turpitude- applied for probation and granted
Is the DQ applicable? No because the grant of probation suspends the service of sentence- person under
the section does not serve his sentence the DQ does not apply within 2 years after service of sentence-
serve service first
Suspend the service of sentence
Thus not DQ
Gross misconduct
Removed by reason of participated in a rebellion
Councilor- removed as city assessor of manila prior to his election in 1992
Rodriguez- US involved n insurance fraud- declare wife dead to claim insurance benefit
Investigation ensued, he escaped to the PH, 5 months after found probable cause
In PH election time- DQ on ground of fugitive
No he does not fit definition of fugitive- escaped before prosecuted, technically not a fugitive
thus allowed to file his COC
Marquez case
Effect of surrender greed card- Gayo case, regained back his residency
Years before he already surrendered in the green card
4. Insanity
Only a competent court can declare upon testimony of a psychiatric doctor
Remedy- file petition to lift the order declaring your client insane
Statutory provision- if the severance from office is voluntary, you count the term , within his control
If severance from office is involuntary do not count the term, outside his control
Issue of first term is not counted because he became mayor by operation of law succession not elected
1st element absent
2. Longsanida
1992 he was declared by board of canvasser as winning mayor- proclaimed entitled to assume office
Assumed office but his opponent filed a Election contest and the EC resolved in 6 months and found out
that there was a failure of election for the position of mayor
Ordered unseated and vacated the office after 6 months
3. Mayor Ong
Similar to #2
1992 proclaimed as winner
Filed a election protest decided was released few days after expiration of term of office of mayor- june
30, ran again for reelection, he won
3 days after assumption of office he received decision that he was the loser in the previous election
1998 he again won
In 2001- he is no longer qualified to run
Considered as ran 3 consecutive terms
Decision of RTC has become moot and academic in view of the expiration of the term
Deemed elected despite decision of RTC the lose in the election- moot and academic decision
Served completely the 3 consecutive terms no interruption- meets the 2 elements
Considered elected and served completely the 3 consecutive terms
4. Santiago case
Municipal mayor
Won 1995 1998 2001
Supervening event 1 year before election
Year 2000 municipality converted into a city
All incumbents continue to serve until 2001
2001 elections, filed a COC for city mayor not anymore municipal mayor
Municipality to city
5. Hagedorn
1992 1995 1998
2001 did not run for mayor because of DQ
Instead run for provincial governor but he lost
Socrates elected as city mayor for 3 years to end 2004
1 year after 2001, in 2001, recall election to remove socrates
Hagedorn is a candidate
He can run- 4th term has been interrupted although by 1 year only no need 3 years interrupted
as long as interrupted 1 year started as 1st term for the next 3 consecutive terms for purpose of counting
next 3 consecutive terms
There was interruption after 3rd consecutive term
2002
2004
2007
2010
COMELEC decided to let the people decide
6. Councilor in 1995
#8 standing
In 1998 election- #2
In 2001 election- #1 councilor
Term end until 2004
But a supervening event in 2003 the vice mayor retired
There is a vacancy- by operation of law the #1 councilor
Until 2004 vice mayor- in 2004 he ran for councilor for the 4th consecutive term
Severance from office of a councilor in 2003- he became the vice mayor
Involuntary severance- by operation of law- not counted from 2001-2003
Involuntary do not count the term
Third term assumed position of vice mayor- still eligible for councilor
Severance from office- involuntary severance by operation of law
Under rules do not count the term
7. Punong barangay
1st term unopposed
2nd term unopposed
3rd term unopposed
Before expiration of term as punong barangay
December- election of punong barangay is october
In the may elections, of his last term he ran for councilor he won assumed office
There was severance from office as punong barangay- October ran as punong barangay
Councilor elected during may
8. suspension
2 kinds of suspensions
Preventive suspension
Suspension as a penalty
Effect of suspension regardless of kind,
Imposed preventive suspension up to end of his term- 6 months before next election
Can he run again in the next election?
Interruption of 6 months- not removal from office no severance from office
Can still call as a mayor- he is still the mayor, can he make use of his title as a mayor, yes
No severance from office
Public officer suspended either preventive or as a penalty- no severance from office
Suspension can be lifted anytime
Suspension does not result to severance from his office
If there is severance it was merely temporary to create a permanent suspension/ vacancy
Resignation cannot be
Voluntary renunciation from office as a cause of interruption will circumvent the 3 term limit
Voluntary- count the term, if the term is counted apply the 3 term limit
Succession:
a. local chief executive- mayor
b. vice governor and vice mayor
highest ranking sanggunian member- but where the Sanggunian members are elected by the district
how to determine the highest ranking?
1st district v. 2nd strict #1 for the 2
Total number of votes garnered in the district divided by the total number of registered voter- lowest
quotient is the highest ranking
Not only votes garnered but does not mean he is the highest ranking member
Appointment
Covered:
a. Members of the sanggunian
2 questions may arise
Who is the appointing authority?
General rule- executive in the next higher level, proper appointing authority
Ex:
Sanggunian barangay- mayor- chief executive in the next higher level
Sanggunian bayan- governor provincial
Sanggunian panglalawigan/panlungsod of HUC/ICC- president
b. No political party- independent party- one recommended by the sanggunian where the vacancy
arose
Ran during last election as Lakas but after election he went to NPC and created a vacancy
Who is the appointee? One from NPC or Lakas?
One from Lakas the original party
Farinas case
X ran as independent councilor 6 months after assuming office he resigned- green card holder
Resignation causes permanent vacancy
2 appointment issued
Governor farinas appointed X w/o recommendation from saggunian bayan
Mayor C appointed Y with recommendation from sanggunian bayan
Which of the 2 is valid-
Neither of the 2 is valid
Farinas proper appointing authority but appointed without the proper recommendation of the
sanggunian bayan
Mayor not the proper appointing authority even though he has the recommendation of the sanggunian
bayan
Navarro case
AC elected mayor belongs to lakas
AA vice mayor belongs to lakas
1st councilor T belongs to REFORMA
Sanggunian bayan 8 slots
L belongs to Lakas
Rule: they belong to a political party- apply who created the last vacancy
T or L created the last vacancy
First vacancy- mayor
2nd vacancy- vice mayor
3rd vacancy- T
Temporary vacancies
For purpose of rule classify into 2
a. Because of a Legal reason like suspension
If reason if for a legal reason like suspension if he filed a leave of absence or travels outside the
jurisdiction
Vice mayor or vice governor or #1 sanggunian barangay member in case of punong barangay
Other reasons other than the 3- the mayor or governor is given power to appoint an OIC for 3 days
If the mayor or governor continues to be absent after 3 day period automatically the vice mayor will
take over
Legal right of vice mayor vice governor to take over
The mayor designated as OIC his wife who is a rank and file employee in the municipality- cannot be, by
pass the elective who have mandate
Affinity is immaterial already
While the acting mayor or governor are there limitation in the exercise of powers?
No power to appoint or remove or suspend
Exception: if the absence will exceed 90 days then even if acting capacity only, to not impair public
service given the power to appoint
Villarosa case
Vice governor mayor- head of the legislative branch of the local unit- function of presiding officer is nto
limited to that, being head of sanggunian can also enter into a contract- insofar as it deals with
operation of the sanggunian
Sign vouchers
Head the sanggunian
Temporary presiding officer –not vice governor or vice mayor
If no quorum- adjourn
No such thing as acting councilor
Due process equal protection of laws hierarchy of laws not contrary enacted in accordance with the
procedure laid down by law and jurisprudence in enactment of ordinance
1. Due process observe/ equal protection clause- classify based on substantial distinction
Procedure before during after enacting an ordinance
June 30 noontime
once a week
barangay- twice a month
other charters before LGC enacted- thrice a week
2 kinds of session
Regular session- once a week, twice a month for barangay
Special session
Malonzo case
First session
Sanggunian enacted an ordinance and the ordinance enacted in one day
1. Can the new members of the sanggunian in their first session enact an ordinance
Yes because the LGC does not prohibitfrom exercising the power of ordinance making on the very first
meeting
Mandate in first meeting fix the day time and place- they can transact any other business including the
enactment of an ordinance
90 day period to complete rules of procedure- does not mean concentrate only on rules and procedure
Only reglamentary period but not precluded from exercising power of legislation already
Compensation
Even local elective officials are not given regular compensation
Before only mayor receives salariy all those lower receive per diem only in accordance to actual
attendance
Now have regular salaries
Entitled to leave privileges enjoyed by appointive local officials including terminal leave pay
Not required to report everyday only during session hours
Recall
Autonomy
Accountability
System through and initiative and recall
Elective local official removal does not include congressmen or any other nationally elected public
officer
Only one mode left because provision in sec 70 has been amended by RA 9244
So that there is only one mode of initiating recall
Sole mode through a signature vote
Before old sec 70 was through a preparatory recall assembly- abolished under amendatory law
Local elective official cannot resign after signature vote has been obtained
Automatic candidate in the recall election
Recall becomes effective upon the proclamation of the successor receiving the highest number of vote
Once proclaimed and elected the end of the term of office of the incumbent
Recall becomes effective upon the election and proclamation of the candidate who obtains the highest
number of vote
If the same person is elected- recall does not become effective
Hold on to position until end of the term
Resignation must be made in writing except members of sanggunian do it verbally in an open session,
equivalent to written resignation proceedings recorded by written secretary
Practice of profession
Can local elective officials practice their profession
LCE and other for sanggunian members
LCE- generally no practice of profession not allowed
Except one local chief executive- punong barangay do not receive salaries only honorarium
Other rule members of the sanggunian- include vice mayor vice governor including exofficio deemed
included as members of sanggunian
Sec 90 rule- they can practice their profession engage in any occupation or employment and can teach
in schools
General limitation: not during session hours
2. Cannot appear in criminal cases involving a public officer accused of an offense in relation to his
office
Anti graft case- criminal case and related in performance of the office
Annulment case by the wife- represent by a councilor yes, civil case and not committed in the
performance of ones duty
3. Represent his unit in court for a case? yes there is no prohibition to that effect limitation is they
cannot collect appearance or any form of attorneys fees
4. Cannot use in the practice of the profession the personnel and property of the government
Unless you are representing the unit
Rellosa case
Lawyer and a punong barangay in one of the barangays in manila
Yes it can because LCE can practice their profession only punong barangay
Also the chairman of the katarungang barangay filed by X against Y- exhaustion of administrative
remedies
No amicable settlement arrived at in the katarungang barangay
So that X can now go to court and file the civil case
X went to the court and filed the civil case
X hired as a lawyer the punong barangay
Entered his appearance in court- charged with 6.03 code of professional responsibility among lawyers
Licensed cockpit
Under devolution local autonomy licensing and franchising of cockpits from Philippine game foul
commission subject to law relating to cockfighting population more than 100K can have 2 cockpits
To the sanggunian
Elective officials to accepts appointive position they will forfeit their elective position
Gordon case- accepted position of SBMA chairman
Forfeited his mayorship
Provincial board member accepting a part time appointive position as law professor in a local state
college or university
Will he forfeit his elective position?
Appointive paper- proof of accepting an appointive position
He will forfeit because of sec 90 allows members of sanggunian to teach in school not specified can
either be public or private position is merely part time
But not do teaching during session hours
Special session who can call- local chief executive or a majority of members of the sanggunian either one
There must be a notice specified the items in the agenda
It should be followed
Can they discuss any other item not specified in the agenda yes as long as there is concurrence of 2/3
vote
Issue brought about by a member not included in the agenda 2/3 of members present
Vice governor/mayor acting as mayor governor, can he still preside over the sanggunian? No cannot
preside and occupy two positions of two different branches of government
Before:
Conduct public hearing or public consultation-especially if a tax ordinance (expressly stated in the LGC)
During:
First reading- title sponor
2nd committee level
Plenary
Then amendments can be done
3rd voting
What vote is required in the enactment of the ordinance? Apply simple majority vote if rules are silent
Presiding officer
Temporary presiding officer cannot vote- even regular presiding officer cannot vote too
Cannot exercise a power right greater than the regular
Except in case of tie
After obtaining the required number of votes- the ordinance is not yet a law
There must be approval by the local chief executive
How does the local chief executive approve a local ordinance:
By affixing his signature in each and every page of the ordinance
Purpose to minimize fraud
The local chief executive is given the option to disapprove the ordinance exercising his veto power
Grounds for veto by the LCE:
Ultravires
Ordinance prejudicial to public welfare
Unconstitutional? Not a ground, reason, the LCE does not have the power to decide on issues on
constitutionality only the courts have
Do not apply constitution provision of inaction when president fails to act on the law within 30 days
Only applies to the president
Who among the LCE does not have to veto an ordinance? Punong barangay, part of sanggunian
ADMINISTRATIVE LAW
Extension of discussion in executive branch of government
Lowest levels in the bureaucracy
Agencies created in the executive branch lower than the cabinet position
Office of president is an administrative body itself
Bureau
Authority
Office
Commission
Board
All others:
Not part of line agency but for purpose of supervision they may have been attached to a line agency
Boy scouts of Phil attached to DepED
PNP- agency attached to DILG
Philippine coast guard- attached agency of DOTC
General principles:
How created 3 modes by which they are created?
1. Constitutional provision
Art 7- office of the president
COMELEC
COA
CSC
Ombudsman
2. Through a law
Most a big percentage of existing admin agencies are created under a law enacted by congress
Congress can abolish- power to create and abolish except constitutional agencies
Special powers- quasi legislative power and the quasi judicial power
Quasi- violation of separation of power will be violated
Semi only
Quasi legislative- promulgate rules and regulations with the force and effect of a law
2 kinds of rules that can be promulgated by the administrative body
Legislative rule- exercised pursuant to quasi legislative power, rule making power/function with force
and effect of a law, require publication
Internal rules/ Interpretative rule- do not have force and effect of a law, not required to be published
Which of them requires publication? legislative rule only, to satisfy requirement of due process pursuant
to tanada v. tuvera case
Internal rules do not need publication
Where the rules are legislative in nature because they affect right of general public it requires
publication
LGC
Section which states that DILG hereby directed under law to come out with IRR withinin 90 days from
effectivity of the law etc etc.
Cannot amend the law- lower law , an IRR cannot amend a law, must be issued within the purview of the
law
4. It must be published but not all rules regulations must be published, only legislative rules are
subject to publication
Publish in its entirety
Either the official gazette or newspaper of general circulation
Satisfy requirements of due process
5. Filling of at least 3 copies of legislative rules and regulations with the UP law center
Effect of legislative rule not published not filed with the UP law center- national administrative registrar
SC reiterated that legislative rules not published not filed is not invalid or null and void, unenforceable
only- cannot enforce it
Cannot enforce penal sanctions
Either in newspaper of gen circulation or in official gazette in full text
Can legislative rules be implemented even without publication- consideration of public health safety etc.
Immediately executory
MIDTERMS
Who will sign or promulgate and sign the rules and regulations? depends
If collegial body, they have to act collegially and observe majority vote
Admin body that is collegial- CHED- rules and regulations meet as a body observing simple majority vote
unless require a higher vote
And all must sign or majority of them
Manual of rules and regulation in the execution of death convict- bureau of prisons director
Not the proper person to sign
The one to sign it is supposed to be the DOJ secretary the head of office
Prison director subordinate of the DOJ secretary
Quasi judicial
Power to adjudicate
Similar to power of courts to settle actual controversies
American Tobacco case- petition field patent case application under old patent law
With bureau of patent director
Director of bureau of patent must conduct investigation and must be the one to issue the decision
Patent application submitted to patent director- investigation stage delegate to hearing officer
HO did the issuance of sub poena reception of evidence etc
Then, the hearing officer made its findings and recommendation but the chairman made the decision
Director did not conduct the investigation
Investigation being mere ministerial for as long as director makes decision
Only ministerial functions can be delegated- decision making remains with officer upon whom power of
quasi judicial power has been vested on
Substantive
There must be a tribunal
1. With competent jurisdiction
2. Impartial tribunal- not biased
Decision that is based on substantial evidence
Substantial evidence- relevant evidence which a reasonable mind might accept to support a
conclusion
Not all administrative agencies conferred with quasi judicial powers- very few
But all admin agencies can exercise quasi legislative powers
Their interpretation is merely advisory- not binding to the parties can always go to court and seek
judicial remedies that will bind the parties
Administrative agencies generally cannot award damages that power belongs to the courts
By way of exception it can allow when the law allows:
3 admin agencies allowed by law to award damages
1. HLURB
2. DOLE
3. NTC
XYZ agency not granted by charter to issue subpoena- if not granted by its charter still yes, has the
power general grant under the administrative code
Only general grant to issue subpoena not power to cite for contempt
In what capacity will that agency exercise this power- in exercise of their quasi judicial function
Except 2 agencies even without quasi judicial powers:
1. Cooperative development authority- power to cite for contempt in exercise of its admin power
2. CHR- power is merely investigatory no quasi judicial power to resolve cases
Exception to the exception- 2 decisions of cabinet members required by law to be appealed to the office
of the president
DAR secretary on land distribution cases
DENR in land registration cases
2. Issue raised involves purely legal question- with binding effect only courts resolve
No need to exhaust administrative remedy
Claims for damages- under civil code allowing award of damages involves a legal question resolved by
the court except if the admin agency is allowed by the court to award damages
PJ- judicial proceedings merely suspended not oust the court of jurisdiction
Related doctrine
Doctrine of finality of administrative action
Extension of DEAR doctrine- avail of admin remedy when required by law
Complete the series of admin remedies before going to the court
NAPOLCOM-DILG-CSC
Doctrine of finality of administrative action
Jurisdiction:
General rule decisions arrived at in a quasi judicial capacity-
CA rule 43
Office of the president
NLRC
CSC- decision appealable to the CA
SC direct review
COMELEC
COA
Ombudsman criminal cases
In admin cases reviewable in CA
CTA-CBAA BoC, BIR secretary of trade and finance in quasi judicial function
What aspect of decision of admin body is subject to judicial review of the courts
4 possibilities
Issue raised is purely question of facts- not subject to judicial review
Reason: findings of facts for admin agencies carry great weight and usually not disturbed as long
as 2 requirements are present, must be within their competence , Decision is supported by substantial
evidence
As long present findings of fact no longer disturbed
Except: when law allows findings of fact
Decision of SS even findings of facts can be reviewed SSS law allows it
Question of discretion
General rule not resolvable by the court- beyond inquiry of the court except allegation of grave abuse of
discretion
Election law
Suffrage
Right to vote right to be voted upon
Under present constitution
Include right to participate in resolving political decisions
Through initiative referendum recall
Art 9 - C
Constitutional power
Comelec meets en banc- performs administrative functions
Exceptions: Quasi judicial en banc
1. Correction of manifest error
2. Elevated
Right to vote
Who are allowed to vote in the PH?
Congress mandated to allow qualified Filipinos abroad to vote
Implemented by congress
Sec 9 of votes registration act of 1996 states that Ph citizens who left domicile of origin by reason of
employment education military service not deemed to lose domicile of origin despite absence of 10
years not lost her residence
Only those who have executed an affidavit promising to resume residency in PH within 3 years
Dual citizens allowed to vote in Nicolas lewis case but not all dual citizens can vote
DQ by 9225
Those occupying public positions abroad whether civilian or military and those who filed their certificate
of candidacy
Remedy: resign their position or withdraw their candidacy
Crime convicted of to be DQ to vote- 1 year or crime involving moral turpitude or violation of election
law regardless of penalty
How to remove DQ: grant of executive clemency, or without exerting nay effort- automatically restored
after 5 years, right to vote automatically restored
Extension of registration
1. Denied by SC
Extension period falls within the prohibitory period= 120 days before election
Against the law- slept on your right, year round registration
2. Granted by SC
Period of extension praying before the 120 day prohibitory period
There must be a hearing- if a person sought to be excluded does not appear despite being summoned in
the hearing- implication is that prima facie evidence that he is a flying voter, give basis to order
exclusion from the voters list
How many petitions can exclusion be had- 1 per precinct
1 exclusion case per prescient cannot be consolidated even belong to same municipality
Consolidate per precinct but not per city municipality
Double registration
X domicile of origin is baguio
Registered in baguio as a voter in 2010 election
Voted 2010
In 2012, X married Y who is a resident of Dagupan
X wife, and Y husband
For purpose of 2013 election, X the wife, stayed in dagupan, X registered also in Dagupan w/o cancelling
her registration in Baguio
Double registration took place in Baguio and Dagupan
Question:
Is she allowed to vote? B is the answer
a. No because violated election law on double registration
b. Yes in baguio only
c. Yes in dagupan only
d. Yes either in baguio or dagupan
Candidates
ACRER
National candidates
Local candidates
DQ
Election code applies to national- immigrants
Green card holders only if executed affidavit
Age requirement- possessed at date of election
Citizenship
National natural born
Local- either natural born or naturalized
Dual citizens depends if acquired voluntarily 9225 DQ under sec 5 of same law
But if brought about by conflicting law of different states- can be by mere filling of COC
Registration as a voter
DQ under lone candidate law
DQ applies only to those running for congress
Position of president/ vice president (simultaneous vacated) congressman/ senator- special elections
Even if 2 positions simultaneous vacated vacancy arises 18 months before next regular presidential
election
Congressman died before 1 year next preceding election- cannot hold special election
Durano case- elected as congressman before assuming office appointed by GMA as tourism sec,
accepting appointive position deemed resigned
If that lone candidate- exerted effort to prevent other candidates to file COC by fraud whatever means
If proven he is DQ
Cannot run in special elections held because of his vacancy- Durano case
Legal basis- proper notarization not among qualifications for a candidate of public office
Only ACRER
Social justice society case- senator sought to be DQ because refused to comply with drug testing of
COMELEC
Under constitution only 5 qualifications ACRER
No mandatory drug testing- adding another layer of qualification not required by the constitution
Occupation profession- X placed there CPA but actually set forth in college of commerce then dropped
out
Sought to be DQ- falsity of material representation in COC
Eligible because falsity is not a material matter
Material matter- mere ACRER
CPA is not an educational requirement
Mere ability to read and write
Amended by the new omnibus of 9006 sec 14 all elective officials without qualifications are considered
not deemed resigned
Senators running for vice president
Barangay officials who ran for councilors
Until their term will end can still return despite losing in the post ran for
Upon appointive
Despite flip flopping of decisions
Adhere to the century old rule:
Deemed resigned upon filling of COC- disregard flip flopping
Includes GOCC with or without original charter
Deemed resigned as long as appointive officials
Can somebody who filed COC withdraw the same? Yes cannot compel him to go on with candidacy
But, the proper procedure has to be observed including filling of withdrawal of COC that is sworn to also
Actual example 2 candidates of mayor A and B-
A, not popular- scarce in community
B- no money very popular
A before start of campaign period approached B, withdraw then pay you expenses spent
A made proposal to initially reward B with 150K
B having not held money in his money accepted and wrote in yellow pad his withdrawal- effective today
signed B
With 2 witnesses then B submitted immediately COMELEC
Before A went to ER to submit Xerox 100 copies for distribution
During election many still voted for B- when votes counted and canvassed B was ahead in the votes
Substitution of candidacy
Presupposes that deadline has lapsed for filling of COC
Can a candidate be substituted after filling of COC
Gen rule: yes if he belongs to a political party and official candidate of that political party
3 grounds for substitution:
a. Death
b. Withdrawal
c. disqualifications
independent candidate cannot be subsittuted- not belongs to political party nor nominated by one
law does not require how long the person has been a member of the political party- law is silent enough
that at the time of filling already a member of the political party
from who the deceased member comes from
grounds-
death, life ceases to exist
withdrawal- Luna case, valid substitution because substituted is somebody who withdrew with all
formalities
DQ- by the COMELEC ground for substitution
What about a candidate who’s COC has been cancelled or denied due course can he be substituted?
Miranda case- term limit filed COC
Cancelled COC substituted by the son? No valid substitution
Reason: if a persons COC cancelled no more a candidate cannot substitute anymore
Presupposes COC of person being substituted is a valid COC- if COC no valid because cancelled no longer
a candidate anymore
5 days after deadline of filling of COC, can file DQ case opposing candidates
Filed earlier- research your DQ
2 advantages of filling COC during later period
DQ case still to be investigated upon
And prone to commit premature campaigning
Sole criterion in these positions whether nuisance or not: capability to wage a nationwide campaign
Limit number of candidates to participate
In the other positions- practice of COMELEC not to moto proprio DQ the candidate
Wait for a petition to DQ the candidate not moto proprio
Ana filed COC for councilor in one of the blanks profession occupation CPA
Truth is that set foot on college of commerce for one sem only and dropped out
Lied that CPA by profession
Effects of a DQ case
Jurisdiction- COMELEC by Division (quasi judicial)
Day of election- may 10 election day
DQ case not final before election- effect is that not final before election
X can be voted upon
X votes can be counted canvassed
X can be proclaimed
Once proclaimed can assume office
Cancellation of COC cannot be done moto proprio requires notice and hearing
Entitled to notice and hearing
Person whose COC subject to cancellation deserves notice and hearing
In the 1971 election code, advertisement allowed no limitation- problem NEDA found out every election
year double digit inflation- too much money in circulation
1985 omnibus election code- total ban political advertisement
In the election of 1987 1988 1992
Those who won in local and national won- artists
Erap joey marquez lito lapid
Popularity exposure
Amended law with fair election act to level the playing field but with certain limitations
Depends on broadcast media- depends on airtime
Cannot buy all the airtime
TV movie personality running for election cannot put on show their movies
Cannot broadcast their TV movie shows
Chavez case
Entered into contract with apparel company as an endorser
Post tarps advertisement in many parts of PH
While contract is enforced, filed his COC for senator
After filling COC, was asked by COMELEC to dismantle his tarp advertisement pursuant to 9006
SC upheld COMELEC
Dismissed his petition, valid exercise of police power prevails over non impairment clause
Comes in conflict with police power, police power prevails
Political Rallies
No substitute for personal appearance
Show yourselves to the voters
Needs permits
Governed by BP 880- public assembly act
Need permit from mayor
Campaign materials
Made of cloth paper or cardboard including tarp
Not made out of plywood tin sheets
Stickers
Can be stickers? yes posted in moving private vehicle but not public utility vehicle
Campaign materials if donated requirement to name the donor
Political advertisement paid for by:
Prohibition to publish results of surveys 15 days before election- violative of freedom of expression
Requirement under election code as amended to submit a statement of contributions and expenditures
Who are required to submit under oath a statement of contribution and expenditures?
2 required by the election doe
candidates
treasurer of a political party
candidates
winning losing withdrawn? All of them the law does not qualify
effect of failure to file
first offense: administrative fine of 1K-30K except those running for barangay positions penalty of fine
does not apply to them
cannot assume office- can be proclaimed but cannot assume office
Can become candidate only on deadline of filling of COC- next day is campaign period
So technically no premature campaigning- congress needs to amend the law
Casting
Counting
Canvassing
Of votes
Who will administer election in the precinct level- board of election inspectors
Composition is 3 must be public school teacher
If non private school teachers
If non career employees in government
Suppose election day is May 10, but it is impossible to hold election- continuous rain
Petition to postpone the election
Not declaration of failure of election
3 instances of failure of election
1. Polling place did not open on election day- election paraphernalia never reached the precinct or
for any other reason
2. It opened- but closed before designated closing time
3. Opened 7-3 75% were able to cast their vote but 2 hours hour before canvass ballots- confiscate
votes, not able to count the ballots
But whether the petition will be granted or not is not automatic factors to take into consideration:
Will it still affect the outcome of the election?
If the difference is kilometric between losing candidate and wining candidate- no longer grant the
petition to declare
Whether there will be special election on not dependent on 2 factors- taken into consideration before
special election can be held if there is failure of election
1. Voting should not have taken place
In 3 instances failure of election voting did not take place
May have been voting but closed earlier or ballots cannot be counted
3. To fill up a vacancy
Position filled up by special election-
a. Congressman
b. Senator
Vacancy special election may be held to fill up vacancies- reglamentary period to fill up position of
Congressman- vacancy occurred before 1 year period before election
If less than 1 year before next election no more special election to fill up the vacancy
Assign caretaker
Senator- if the vacancy arises before the midterm election- can be but after midterm election not
anymore
If lapid vacates permanently by whatever election before the midterm election, can be filled up by
special election
If vacancy arises after midterm election no more special election
Casting of ballots
Who will administer election in precinct level- Board of election inspectors
3 members
Public school teachers, if none private school teachers
Those employed in the career service of good moral character
Cannot be soldiers even with agreement of candidates or political parties
But experienced police officers who were designated by COMELEC as members of Board of Election
Inspectors
No conflict with earlier decision that soldiers should not man the BEI
Function: not only to administer but to count the votes cast in the precinct level
Who are they in contact with- direct contact by voters
ACR
Illiterates are allowed to vote- requirement assisted by a competent person
Constitutional mandate enact a law to vote w/o assistance of a person
Who can assist- immediate member o the family, limitation not more than 3 times
In a family of illiterates, husband can only assist a maximum of 3 family members if more than
3< BEI will assist them
Household helpers- yes person of confidence and living under same room
Driver under the same condition- person of confidence of illiterate and also a live in driver
Suppose when the clock rings at 3oclock there are still people in line- can still vote
10 mins later after 3oclock 3 people joins the line, they can no longer vote
Marked ballot- ballot that contains unnecessary marks purpose of which is to identify the voter
Signature in the ballot- marked ballot not counted, it depends whose signature is on the ballot
If back of ballot that of BEI chairman, BEI chair mandated by law to affix signature at back of ballot
If the signature is that of the voter- identify that he was voter who casted the ballot- not counted
No stray ballot- applies only to one vote in the ballot, one candidate
Councilor- carlos Ortega and Mario Ortega both running for councilor
In the ballot for the 1st time running: municipal councilor one Ortega only voted did not specify whether
Mario or carlos
Stray vote Ortega only no way to determin
2 ortega no first name- credit one for carlos and other for o rthe intention is to vote of the two
Pimentel case- followed ER placed in enveloped closed sealed thumb marked placed in carton box- rode
in the middle and below the jeepney
Stopped by the goons but never got the ER
BOC refused to accept and canvass not submitted in accord with correct procedure- can that kind of ER
be subject to canvass and not anymore- in the absence of signs of tampering that envelope containing
ER subject to canvass to respect the will of the people- absence of signs of tampering
Provincial- P BOC
City- city board of C
Municipal or Barangay either municipal or city canvasser
Governed by not the same rules CONGRESS goverened by its own rules of canvassing all the rest
comelec rules
All the BOC except congress are under control and supervision of comelec not congress because co
equal
One ER did not indicate # of votes obtained- incomplete returns, ask BEI to complete
Ordered to complete
4th there is a discrepancy in the returns- in the figures and words- recount may be order after
ascertaining integrity of the ballot
Still one precinct not canvassed margin of 50K- ye there can be proclamation already
How to determine the winner- plurarity vote obtains highest number of votes
What if SC later affirms the DQ case, ordered to vacate the office- who will take over?
Second placer cannot take over- rejection of second placer doctrine- presupposes at least 2 candidates,
1 winner 1 loser
Loser cannot proclaim a loser
Successor take over
Mayor- vice mayor
Vice mayor - # councilor
Do not apply rejection of second placer doctrine because 2nd placer ordered by court to take over the
position, difference: Cayat case
Rejection of second placer is not applicable
DQ candidate was ordered and SC 23 days before election- one candidate
Second placer is not a candidate
Both preproc controversy and suspension of proclamation toll running period of election protest (10
days only)
Preproclamation controversy
Automated election
Can there be pre proc controversy?
There is distinctions have to be made
Different principles
Manual who are covered? Only provincial city municipal
President vice congress senator
Automated- all levels included except barangay
Comparative in pre proc in automated- only illegal composition and illegal proceedings
No ER because automated
Illegal composition- one member not qualified- not deputized why is he there
Presence of 3 when canvassing absent one illegal proceeding
Comelec
Summary procedure
During the hearing what evidences taken into consideration by comelec division in deciding the preproc
controversy- adduce additional evidence? No, only the records elevated by the BOC to the comelec
division shall be documents subject to examination by the comelec division
Order for continuance of SC or COMELEC of the PPC- may order the continuance of the case even after
expiration of 30 days exceptional cases
Grounds
EP- irregularity fraud terrorism irregularity committed before during after election
QW- ineligibility and disloyalty to public, lack of qualification and presence of DQ, convicted of
espionage rebellion etc
Period to file
EP- 3 levels
President vice president- 30 days from proclamation cut off from proclamation
Senator- 15 days from proclamation
All rest 10 days from proclamation
Can FPJ be substituted? No Mrs. Poe is not the 2nd or 3rd in rank among the losing candidates
In multiple positions who among the candidates- councilors board members next 4 in rank after the
winning candidates
Top 4 losers
#9 10 11 12- 8 seats
Senator and congressman- silent rules so any losing candidates may file
HRET or SET- silent rules any losing candidate can file
Special election- there can be should there be simultaneous election permanently president and vice
president
Except- if vacancy arises within 18 months before election 9acting president continue until next
election)
Election protest
Jurisdiction:
Original and appellate
President vice- PET, SC
Senate SET Congress partylist HRET
Provincial city- comelec division
Municipal- RTC
Barangay- MTC
SK - MTC
Appellate
MTC and RTC- both appealable to comelec division
Comelec division elevated to enbanc via MR
Comelec en banc SET HRET certiorari to SC
Remedies
You are the counsel of a losing petitioner or protestant for governor- who will acquire jurisdiction,
COMELEC division
Immediate remedy: MR to en banc
Reglamentary period for RTC to decide cases pending before it- how long will the RTC decide EC? 6
months from filling
6 months from filling- if not finished will not oust jurisdiction
Suppose you are the protestant represent a protestant and won in the protest but the protestee
appealed the decision to COMELEC decision- to assume office your client remedy is execution pending
appeal
To prevent proclamation of winning candidate- petition to suspend proclamation, PPC, once filed cannot
proclaim,
Winning candidate has a pending petition against him to cancel his COC what remedy is available to you-
suspend the proclaim
What remedies or petitions will suspend the reglamentary period to file EP- PPC in order to buy more
time if not yet ready to EP
Petition to suspend proclamation
Petition to annul proclamation
Election offenses- any violation of penal provisions of the election code will amount to an election
offense
There are two kinds of election offenses, criminal and administrative or electoral
Easier to prove is administrative electoral- quantum of evidence is mere substantial
Criminal election offense- need proof beyond reasonable doubt moral certainty distinction
Differ as to jurisdiction
Criminal election cases- RTC
Electoral administrative violation- COMELEC En banc
Before a case is filed at the RTC what must the accused undergo? Preliminary investigation
Determine w/n there is probable cause
COMELEC en banc- administrative in nature
Normally function delegated by comelec en banc- comelec law department
Doctrine of sub delegation of authority finding recommendation forwarded to Comelec en banc who has
final say
One of the provisions of the automated election law if to give concurrent jurisdiction to DOJ to
determine probable cause
Findings of join DOJ COMELEC panel subject to approval and confirmation by the COMELEC en banc as if
it was COMELEC en banc who did the same thing
Approved the recommendation of joint committee to give semblance that comelec en banc had the final
say
Electoral sabotage offenses- may be committed classified accrdng to the one who commits the same,
candidate, public officer not a candidate by any person not even a voter, very broad
Any election ban activity practically all of them are criminal n nature- like gun ban, election ban on
appointment committed by a public officer
The governor during 45 day election ban on appointment appointed a sanggunian bayan member? No
position is elective filling up vacancy by appointment
Position must be appointive to fall under the ban mere appointment is not what is sanctioned by law but
only appointment without approval of the COMELEC
Including detail transfer etc, when there is ban on appointment
Requirement that certificate of canvass posted in canvassing center within 48 hours unauthorized
removal is an election offense- electoral sabotage
If it is the ER posted in polling place within 48 hours one that is unauthorized removed? No only COC in
canvassing center which when removed without authorization
Making of counterfeit bogus COC and ER whether in hard copy or digital form simulates actual
certificate of canvass or statement of votes another form of electoral sabotage
Another act amounting to electoral sabotage- who will sign the certificate of canvass- the BOC, signed
within the canvassing center
What act may BOC be held liable of in relation to signing of COC, affix signature outside the canvassing
area
Violated: offense another form of electoral sabotage
Dagdag bawas
Vote shaving vote padding
But not all acts of vote padding and vote shaving amount to electoral sabotage
Specific act of vote shaving will amount to electoral sabotage
Vote shaved padded exceed 5000 votes per document it is electoral sabotage- not BEI can commit but
BOC
If the vote shaved and padded exceed 10K regardless of number of documents, electoral sabotage
Even if by 1 vote only shaved or padded, regardless of number of vote, the candidate is a national
candidate form whom vote is shaved is a national candidate
President vice senator congressman
By reason of vote shaving vote padding that candidate lost the election even if by 1 vote only
Consequence of electoral sabotage
Non bailable non probationable punishable by life imprisonment
Administrative law- that the comelec can grant immunity from criminal and civil prosecution for
violation of election law- transactional immunity
Cannot be interfered with by the court
2. If offense is discovered by reason of election protest from date of finality of decision in the EP
A candidate who was proclaimed he refused to assume office without justifiable cause consequences
are: BP 881- forfeit the office deemed vacated
Criminal liability under RPC- abandonment of office
Effect upon public officer and effect upon the office
Office: deemed vacated
Officer: held liable criminally for abandonment of office
For all violations of the election code, it carries with it an accessory penalty
Disqualification to vote and be voted upon
If convicted of an election offense- apply for executive clemency by the president upon
recommendation from COMELEC en banc (not quasijudicial function)
Not board of pardon and paroles
Crime involves election offense there must be recommendation from the comelec
Remedy if the issue raised is statistically improbability and candidate running as district congressman-
petition or motion filed? Cannot be PPC since not provincial etc, remedy petition for correction of
manifest error in the statement of votes
COMELEC en banc- quasi judicial by way of jurisdiction en banc will take cognizance of the case
The other exception is- MR of a decision of a division
Other test- receipt of salary but there are positions that the law does not attach salary
3 cases by the SC
Laurel v. Desierto case- chairman of national centennial commission
Commission appropriated large amount of money for project at clark then subjected to government
audit- irregularities in disbursement of public fund
Investigation of project of centennial commission- laurel claimed that he is not a public officer
Celebration of PH independence
Malasiki stage- stage that fell, proprietary function cannot invoke immunity from suit not governmental
function
SC disagreed
Cited American jurisprudence July 4 celebration is governmental
Ruled applied the ultimate test- convened with sovereign function of a government position likened to
cabinet member tasked to implement policies of the state thus a public officer
By way of exception considered as a public officer can be investigated by the Ombudsman and charged
in Sandiganbayan
SC disagreed with the student regent SB law- GOCC with original charter is a part of the government
UP is a GOCC with original charter
Belongs to the government
Function of UP- provide education function of providing education is governmental not proprietary
If you are connected with the government as an official or employee- either as an employee or official
then you are a public officer- consultant of the Governor and congressman? No because no e-e
relationship with the government
Relationship governed by contract of service no e-e relationship
Employee or official does not apply in admin law if the employee performs manual or clerical functions-
penal laws janitor driver 3019
Btu under administrative code rank and file performing manual or clerical work not public officers
Public officers before they can assume office must have eligibility and qualifications
Qualifications DQ of appointive:
Constitutional officers
Age requirement
At least 18 but certain position that require specific requirement
Citizenship
Filipino
Positions require natural born need not all the time be natural born except constitutional position which
requires natural born
Resident-
Green card holder nonresident of the PH
Cannot be dual citizenship especially under 9225 if involuntary like edu manzano case can be
Eligibility
Government examination- civil service eligibility
Career executive service officer CESO- masteral degree or higher
1st grade professional college graduate
Sub professional 72 units
Board and bar eligibility- license under RA 1080- passed board exam or bar you are considered civil
service eligible already- competitive examination fitness in the government service
Age qualification
Citizenship- silent not later than date of proclamation
Resident- 1 year immediately preceding the election
Appointive
When must the required qualification be possessed
Upon assumption of office not upon issuance of appointment or confirmation
General rule upon assumption of office
Disqualifications
Conviction of a crime involving moral turpitude
Removal from office
Remedy- plenary pardon
Qualifications:
Power to prescribe qualifications: who is given the power?
Depending on the position
Constitutional: constitution
Qualification enumerated in constitution is exclusive
Other positions now congress who will be able to prescribe the qualifications
2 limitations on power to prescribe qualification and DQ
Qualification must be germane to the position
Ex district engineer- must be civil engineer
De facto officer
Distinguish a de facto from a de jure officer and from a intruder or usurper
Color of title enhanced by the acquiescence of the people accepted by the people
Acts validity
De facto officer:
If the act relates to the general public- valid n grounds of public policy
Sablan lady judge not a lawyer
Decision and marriages solemnized
De jure right over de facto over salary can ask for reimbursement
But if no de jure only de facto- limited to actual services rendered
Losing protestee in an election prostee- assumed office lost during protest, de facto officer only
Will not reimburse salary to real winner
No de jure when he was a de facto officer