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Constitutional law review

Political law review


Public corporation
Administrative law
Election law
Laws on public officers
Public international law
Bill of rights

Follow syllabus of the SC

Constitutional 1- Political law


National government
View the Philippines as a state
International law- state from point of view of the international community

Basic principles of constitutionalism


Constitution v. Statute
Doctrine of hierarchy of laws
Highest law is the constitution
Followed by statutes
Subordinate legislations- local ordinances, administrative rules and regulations

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

Concentrate on the constitution- study of the constitution


May be written or unwritten in form
Written if embodied in a single document
Unwritten if collection of customs traditions practices
Mere fact that it is written in a piece of paper does not make it written- it must be formally enacted a
body that will enact the body, constitutional convention, commission or by congress

Difficulty of changing the constitution- a constitution can also be rigid or flexible


Our 1987 Phil Consti is written in form enacted in origin and it is rigid accdg to the difficulty of changing
the same
Written- enacted by the constitutional commission
Enacted
Rigid in difficulty- many attempts have failed to change

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

Written in form parts of a written constitution:


Constitution of government
Constitution of sovereignty
Constitution of liberty

Constitution of government- provide structure of government or allocate powers or deals with


relationship of the 3 branches of government
Art 6-7-8-9-10-11

Constitution of sovereignty
Article 17- amendments and revisions
Provides for the manner by which the constitution may be amended revised or changed

Constitution of liberty- article 3 Bill of rights


Liberty not only political and civil social and economic rights enshrined in the constitution
Embodied elsewhere in the constitution

Economic and social rights

Constitution of liberty- bill of rights for the finals already

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

Sovereignty- in political different from view in international law


2 kinds of sovereignty
Internal sovereignty- capacity of state to enforce obedience of laws within its territorial jurisdiction
Only one sovereign authority in a given state

External- independence or freedom from foreign control or domination


Relate sovereignty as a part of the written constitution of sovereignty
Author is the people
Drafted or proposed the drafted it- constitutional commission

2 steps in constitution making


1. Drafting of a proposal

2. Approval by the people by a plebiscite

Drafting has 3 modes


1. Congress assembly
2. By a con con
3. Through peoples initiative

Steps, modes of drafting a constitution

A proposal has to be drafted


That proposal must be subject by the people in a plebiscite

Who are authorized to draft a proposal- modes will come in


1. Congress by ¾ vote
Separately? The constitution does not specify, one reason it is not definite
Explanation- originally the system and form of government proposed by the committee on government
of the constitutional commissions on government, is parliamentary form of government but when they
voted, the parliamentary lost and presidential won by 1 vote
Only 1 legislative body- national assembly
Legislative body is bicameral- changed Art 6 and 7 but did not change Art 17 on the manner by which
congress shall amend the constitution

Proper wordings was not changed in Art 17


Intention to make legislative body as a bicameral
Vote separately

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

Peoples initiative limit only to amendments and not revisions

If revisions- con con or con ass but not peoples initiative

2. Votes required the 12% and 3% vote requirement


12% nationwide of those votes cast approving the amendment
Qualified: that in each legislative district there must be a minimum of 3%
3% threshold in each and every legislative district

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

Santiago v. Comelec case


Ramos time attempted to change the constitution by mere people’s initiative
No enabling law no initiative for purpose of amendment to the constitution
RA 6735- inadequate it applies only in
initiative local for ordinances,
initiative for national for statutes,
initiative for purposes of proposing amendments to the constitution

MR where SC reversed itself- moot and academic reversal


The inadequacy of law on initiative has been reversed so RA 6735 can apply to all kinds of initiative

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

Doctrine of fair and proper submission


Not enough to get approval of the people there are procedural requirements
Not earlier than 60 days not later than 90 days
Approved by Concon- to allow the people to evaluate its merits advantages disadvantages, discussion
debates on the constitution

Why not later than 90 days- people will lose interest

2nd aspect of the doctrine- there shall be no piece meal amendment


Doctrine of fair and proper submission

There is no check list amendment but take it as a whole


Approve in its totality entirety not piece meal

Is a Constitutional amendments subject to judicial review? Sanidad case


Approved by whoever drafted them then subjected to approval by the people can it be subjected to
judicial review
As to the content substance of the constitutional amendment that is already beyond judicial inquiry,
approved by a plebiscite a political exercise thus cannot be reviewed
But if there are constitutional infirmities in drafting the proposal or amendment by the people it can be
subject to judicial review

View the PH as a state from the point of view of political law

People
Territory
Government
Sovereignty – article 17 constitution of sovereignty, internal and external

Terirtory and Citizenship


2 kinds of people in the State
Inhabiting in the state
1. Citizens or in international law as nationals
2. Aliens foreigners

Those who belong citizen are subject matter of political law


Aliens subject matter of international law

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

SC affirmed the constitutionality of RA 9522


Citizenship
People
Art 4 of the Constitution
Sec 1 who are the citizens of the Philippines
What law determines the citizenship of a person in the point of international? Determination whether a
person is citizen of a state or not- it is only domestic law that determines the citizenship of a particular
person
Constitution and other statutes dealing with citizenship
RA 9225 dual citizenship law

Who are the citizens of the Philippines


1. Those citizens of the Ph at the time of adoption of the 1987 constitution February 2 1987
Recognize their vested right to citizenship conferred to them by laws in the past
Unless citizenship was obtained through fraud denaturalization
Not divested of citizenship

2. Those whose fathers or mother are Filipino citizens


Birth principle citizenship by birth
2 ways to acquire:
Place of birth: Jus soli
Blood of the parents : jus sanguinis
We adopt the latter

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

Either father or mother is a Filipino to make the child a Filipino

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

4. Those who are naturalized in accordance with law


3 kinds of naturalization
a. By reason of judicial proceedings
Apply at the RTC
Expensive and strict of them all
b. Legislative through congress
Enact a law granting a foreigner Filipino citizenship

Presidents of schools must be Filipino citizens

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

Principle of derivative naturalization


Only the husband or the father shall apply for citizenship once the father has been granted under this
principle the wife automatically becomes Filipino citizens and the minor children and there must be
residence of the PH

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

Citizenship can be acquired through birth and naturalization


Marriage is not a mode of acquiring citizenship- can be easily circumvented by marriage by convenience

How to lose citizenship


1. Substitution
Change Filipino citizenship by acquiring a foreign citizenship
When he acquires it he will lose the Filipino citizenship by substitution- automatically lose

Under RA9225- there is a remedy to not lose citizenship


Citizenship retention and reacquisition act
Dual citizenship law

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

3. Serving in the military of another country


Navy or military automatically lose your Filipino citizenship
Marriage not a mode to acquire or lose citizenship
Retain a citizenship even if married to a foreigner unless through omission or expressly renounce the
Filipino citizenship
Ex: apply for foreign citizenship of the husband

Citizenship can also be reacquired


Reacquire something that you lose, you will acquire depends: original Filipino citizenship lsot
Previously NB citizen reacquire Nb citizen
Naturalize will reacquire naturalize citizen
Bengzon case

2 laws of reacquiring Filipino citizenship

RA 8171- amended already the old reacquisition law


RA 9225-citizenship retention and reacquisition

Distinguish 8171 and 9225


1. In 8171 you are a former Filipino acquire US citizenship reason you lost Fil citizenship, and
reacquire the Filipino citizenship, by acquiring fil citizenship you will lose the US citizenship

2. 9225 is retention and reacquisition


Acquire US citizenship and lost Filipino citizenship, reacquire Fil citizenship but not lose the US
citizenship
Result to dual 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

Cannot deport own national only aliens can be deported

Question his acquisition under RA 8171


There are only 2 kinds of Filipinos who can avail of 8171
1. Filipino women who lost their citizenship by marriage- adopt the citizenship of the husband not
a mode of losing citizenship

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.

No violation of 9225 of the dual allegiance provision in the constitution

Citizenship
If natural born Filipino allowed to occupy constitutional position whether elective or appointive
Naturalized DQ only for local elective positions

What about the implications of dual citizenships


9225- 2 ways by which a Filipino can attain dual citizenship one voluntary through 9225 and the other is
involuntary by reason of the conflicting laws n citizenship between PH and foreign country
Allowed to vote: yes
Cannot be voted upon: Sec 5 of 9225 DQ’s them
Remedy express renounce the foreign citizenship if dual citizenship

Involuntary dual citizenship brought about by conflicting laws


Eligible to vote: yes
Eligible to run: yes
Remedy so that allowed, or allowed to run: Edu Manzano case
Operative act that he must perform
Mere filling of certificate of candidacy
Act of filling COC is act of renouncing of the foreign candidacy
Renounce foreign citizenship

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

Land locked areas- no access to seas only internal waters

Pertinent law is Art 1


And several statutes
Kinds of territories- terrestrial fluvial maritime aerial
Constitution enumerates what comprises Phil territory

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

1973 constitution- included sabah by historic right


Territories by Legal title spratly islands

Adopted the 1987 constitution- historic right and legal title

Kalayaan islands

Extent of PH territory historically


Determined by a baseline
1st baseline of the PH: treaty limits
Embodied in the treaty of Paris of 1898
Spain ceding the PH to US
Rectangular enclosing the PH islands and islets
Original baseline

Change in sovereignty after


From Spanish to American over the PH
1946 granted independence by America

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

Nautical miles not linear miles

Full control and sovereignty as if it is an extension of the terrestrial territory


Origin of 12 miles theory is the 3 mile theory under rules of international law
For security purpose: buffer zone

After second world war- new nations emerged


Most of the nations separated from other bigger nations and most who separated many of them are
archipelagic in nation

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

Governed by the archipelago principle


To determine the territorial sea-

Extent a state can possess


Applicable to continent states: 12 miles theory
Archipelagic states: archipelagic theory

1. Identify the outermost points in the archipelago


2. Join the outer most point with a straight base line

Come out with a baseline


All territories enclosed by the base line all islands and bodies of water belong to the PH state
Regardless of their width breath dimension even if exceed 12 miles

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

Jurisdiction of archipelagic state


Right to explore and exploit natural resources whether living or non living

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

200 miles sea bed: continental shelf or insular shelf


200 miles Body of water: EEZ

Res nullius res communes beyond that

UNCLOS of 1982 provided


Archipelagic state to come out with another baseline
Deadline in 2009
New baseline law
9522

Resolve in the ITLOS


International tribunal of the law of the seas

Baseline law is the treaty limits


Effectively abandoning the treaty limits

Natural configuration- should not destroy natural configuration


Regime of islands doctrine
Not under archipelagic doctrine but under regime of islands doctrine

3 kinds of territories
Terrestrial
Fluvial and maritime
Aerial

Acquisition of the Philippine state of additional states

Historic right-northern borneo sabbah


Legal title- spratly

Bodies of water that belong to Philippine territory


Through 1982 UNCLOS
Adopted the archipelagic doctrine
With the adoption ratification of the Philippines of these treaty
Which adopted the archipelagic doctrine we have a baseline that connects the outer most archipelago
Territories enclosed by it regardless if exceed 12 miles or not form part of territory

Outside baseline first 12 miles call it territorial sea of Philippine archipelago


Jurisdiction over territorial sea- part of own territory
Can interchange considered territorial sea as part of internal waters not only those enclosed within the
baseline of the Philippines

The same as those territories enclosed in the baseline

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

Exclusive economic zone


International law confer over the 200 miles exclusive economic zone
Exploit, explore nature resources in these area whether living or non living

Overlapping with that of Malaysia


If share common ECZ determined when they overlapped paghatian equally unless there is a treaty
between them with a special arrangement
½ ½ shall be owned by the 2 states

We discuss the continental shelf


Insular shelves
Archipelagic waters refered to as internal waters to the Philippine constitution in UNCLOS archipelagic
waters

Distance of 200 miles consisting of sea bed and subsoil


That is continental shelf max of 200 if there is an excess which is a natural prolongation or extension of
continental shelf they still belong to that adjacent archipelagic state

Unless UNCLOS archipelagic state must enact a new baseline law


RA 9522 new baseline law
Common provision
Minor adjustment of baselines
Did not attempt to adjust the baseline so that the two territories will be enclosed by the territory
Scarboroah shore and spratly
When we did not adjust the baseline we abandon claims already no
Sec 121 of UNCLOS can consider them as regime of islands
Doctrine to support which are not enclosed within the baseline is the regime of islands doctrine

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

We do not allow the right to innocent passage but in UNCLOS it allows


Constitution does not allow
UNCLOSS archipelagic waters subject to innocent passage

Under new baseline law


Innocent passage allowed and transit passage allowed
If an area have been a traditionally considered as a transit passage notwithstanding the grant of UNCLOS
of territorial sea or EEZ then that right to transit passage despite the grant of UNCLOS treaty will
continue to be transit passage

Transit/ right to innocent passage


Notwithstanding the baseline or grant of territorial sea they will continue under UNCLOS to exercise
transit passage and innocent passage but the constitution does not allow them
RA 9522- allows both and over flight even may be allowed

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

Instrument by which the state will carry out its will


What kind of government art 2 sec 1
Republican democracy must be put up In the Philippines
Sovereignty resides in the people and all government authority emanates from them
Supreme is the people

Characteristics of a republican government


Principles of republicanism
Basic features
In our constitution
Allocate powers of government allocated
Tripartite system- calls for allocation of government power in such a way that the powers of the
government is divided into 3

Those powers related to executive


Law making legislative
Judiciary interpretation of the law

2 characteristics of tripartite system


1. There is checks and balances among the 3
One branch will check the other and counter check the other
2. Doctrine of separation of powers
Wall of separation
One branch cannot interfere usurpt the power vested upon the other branch
Except in cases of checks and balances allowed in the constitution itself
3. Blending of powers
Constitution assigns both branches to perform a task
Exercise of power is assigned to two or 3 branches
One branch will initiate the exercise of the power and another will complete
Ex:
Initiate law making- congress
Complete law making- president by approving
Blending of powers
If president vetos/ frustrate congress- checks and balances
Disapproves the appoints in CA- checks and balances
If approves appointment- blending of powers
Law declared unconstitutional- checks and balances
Affirms a law- blending of powers

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

3. Government of laws and not of men


Observance of the rule of law
Doctrine of supremacy of the constitution

No one is above the law covered by the provisions restricted by law


4. Application of the rule of the majority
No universal application of rule of majority
In collegial bodies in congress SC senate sanggunian
Not in a popular election- only plurarity of vote

Majority vote- applies to collegial bodies in the government


Popular election- plurarity vote

Doctrine of non delegation of powers


Delegation is exception
Non delegation is the general rule

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

3. Delegation to the president


Fixing of tariff rates
Tonnages
Wharfage dues

4. Emergency pwoers
Repository is not the president alone but congress
Delegated to the president- exercised by the president

5. Delegation to the people through peoples initiative

Guidelines for valid delegation


Completeness test- when congress delegates its power to an agent there must be a law enacted and
that law must be complete so that the delegate cannot exercise discretionary power except to
implement the law and fill in details of the law

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

In the interest of public safety- sufficient standard


Map out limitations of the delegate in exercising the powers

Checks and balances


Court can declare the act of the 2 other branches unconstitutional
Enforcement and making a law
Act of the executive, lawmaking congress sanggunian barangay
When the court declares unconstitutional the act as invalid is the court higher?
Court upholding supremacy of the constitution not the supremacy of the judiciary
No because they are all co equal one is not higher than the other

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

Principles on government in general related to principle of republican democracy

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

Principles under tripartite system


Separation of powers
Checks and balances
Blending of powers

Separation of powers-No encroachment of powers by one branch of government


Checks and balances- Other branch will stop the performance or the exercise the power of another
branch
President enters into a treaty but senate disapproving or not ratifying the treaty
SC declares unconstitutional acts of president or law passed by congress

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

Common non delegation of powers


What has been delegated cannot be further delegated
Does this concept of non delegation apply to all branches? Yes but very strict to congress and judiciary
No so strict in executive because mitigated by doctrine of political agency

Issues on political questions


In relation to judicial review

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

Art 6 legislative branch


Constitution of government
Conferred upon congress the power to legislate
Exception under section 1: the people through people’s initiative

What is meant by legislative power?


PEAR
Power to propose enact amend repeal laws

Structure of congress is bicameral 2 houses


Co equality of the 2 branches
The senate consists of 24 members
House of representatives initially consists of 200 members
District representatives- 200- 80%
Party list representatives-20%

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

200 district representatives


50 + 200 = 250, 20% of 250 is 50

20% of the total membership not only district representatives

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

Citizenship natural born Filipino


Residence 1 year
Mere ability to read and write
Party list representatives anywhere in the Philippines

District representatives- resident 1 year immediately preceeding the election

Constitutional positions- house and senate


Prescribes their qualifications- the constitution
Nature of the prescribed qualification they are exclusive
Congress cannot add Comelec cannot add

Undergo mandatory drug testing- social justice society case


Adding another layer of qualification not so enumerated in the constitution
JBC requirement- waiver on bank accounts
Add requirement no so required under the constitution
List is exclusive

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

Constitutional provision applies to district representatives


Elected by the legislative district
Party list

Who can create a legislative district?


Power to create a legislative district belongs to congress
Can never be delegated
Legislative prerogative

SEMA case regional assembly of ARMM


All province entitled to a legislative district
Provision in valid- as if allowing RDA power to create a district
So not allowed cannot be delegated

Apportionment or reapportionment of legislative districts


How are LD apportioned?
2 modes of reapportioning a legislative district

1. On the basis of progressive population ratio


1 representative per 250K population

2. Every province entitled to 1 representative regardless of the population


House a more representative legislative body

Revenue bills originate in the house


Taxation with representation
Senate no specific constituent- whole country
District- particular
Party list- sector

Progressive population ratio


Big provinces like Pangasinan more than 1 million- entitled to more congressmen

Every province must be entitled to at least 1 congressman

Partylist- by sectors
Marginalized and underrepresented sectors

Constitutional body composing of members of the 2 houses


Bicameral body
Both houses

13 senators including the president and 12 congressmen


Commission of appointment

Senate president as the chairman

CA- approve the nominations for appointment by the president


Checks and balances and blending of powers
Bicameral CA given power to approve the appointment or disapprove the appointment bypass the
appointment

Rarely they disapprove by the CA


Most of the appointments are approved or bypassed

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

Independent of congress- SET and HRET


Although their membership are drawn from the 2 houses

Presiding officer most senior of the 3 justices designated

PET not in the constitution


The Constitution says SC not PET

Basis of the selection of the 6 members is proportional party representation


Majority party will be entitled to more seats
Minority party they will be entitled to less seats
Can a member of the SET or HRET be removed by their political party for breach of party discipline?
HRET member belongs to A political party and a party mate is one of the parties but when voting came,
the member of the HRET who belongs to the same political party as that of one of the parties involve did
not vote for his party mate. Can he be removed on grounds of breach of party discipline? The answer is
no because independence of the HRET from 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

Vice president presiding officer in the senate in US


Vice president appointed a cabinet member in the PH

Speaker of the house


Senate president

Constitutional mandate is to elect other officer as they may deem necessary


Deputy speaker etc

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

General law on reapportionment


General law many districts are created or reapportionment revision of apportionment law
Piece meal creation of legislative district
Allowed to Gerrymandering-

July 7
Seminar

Self executing and not self executing provisions


Interpretations the provisions of the constitutions
General rule: interpret provision according to the intendment of the constitutional commission
Go over the records of the constitutional convention

In case of doubt- rules to interpret the provisions of the constitutions


1. They should be Treated as self executing rather than not self executing
If the provision in the constitution contains the phrase as may be provided by law- as the law may
provide
If it contains that phrase it is not self executing
Most self executing provision: bill of rights
As long as the provision is not qualified by the phrase as may be provided by law- self executing even if
there is no enabling law it can be self executing

Most non self executing provision- Article 2- Declaration of principles and policies

2. In case of doubt mandatory rather than mere directory


If fixed by the word shall, but if the prefix is may general rule it is not mandatory
There are also exceptions to the rule

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

3. Provisions of the constitution are prospective in application not retroactive


Prohibition of ex post facto laws

Law can be treated retroactively when it is favorable to the accused


Death penalty abolished by the congress- effect on the constitutional prohibition was made retroactive
because favorable to the accused

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

Prevailing international doctrine


Absolute state immunity is a no no
Restrictive now
Qualify the extent of immunity
So that if the functions performed is governmental it is subject to state immunity may be availed of

If it is proprietary, then no state immunity not covered by the doctrine

Governmental- exceptions not covered by state immunity


Except:
1. in the exercise of power of eminent domain with respect to the right of payment of just
compensation cannot invoke immunity from suit even if the function is governmental
2. If it is the government that brings the suit , it will open itself to counter suit
3. When there is consent- consent is given expressly through law and impliedly through certain
acts of the government
When the government brings a suit it opens itself up to counter suit

Principles and policies of a state:


Most non self executor provision of the constitutions
Merely statements of state policies
There must be an enabling law to give them life enacted by congress

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

Force justified when


1. Self defense of a state
Not individual but collective self defense is included
Like NATO- an attack to one member is an attack to the other members

2. When authorized by the UN security council in an enforcement action


Justified to use force

Sec 2- international law can become a part of municipal law


International law principle can become a part of municipal law
1. Incorporation

2. Transformation

2 sub modes of transformation


A. Under the treaty clause- Art 7 part of the power of the president to a treaty but subject to
checks and balance by the Senate concurrence by 2/3 vote

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

B. When congress enacts the international principle into a republic act


Ex: Archipelago doctrine- UNCLOS
Regime of islands doctrine embodied in our part of our new baseline law
Part not only on constitution Art 1 but also municipal law through transformation via the 2nd mode

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

Two way protection

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

While neutral to any religion, we accommodate religion just the same


Manifestations of accommodation- state accommodating certain religions, the purpose of non
establishment clause to prevent the state from spending public funds
Exception : salary of priest ministers if assigned as a military chaplain in penitentiaries and
charitable purposes

Accommodation the purpose is guarantee free exercise of religion


Example: can have a free exercise of religion, tax exemptions- real property tax exemption
No permit required where in religious solicitation or solicitations for religious purposes

Purpose of solicitation is for religious purposes it is tax exempt


To guarantee free exercise of religion
Principle of benevolent neutrality accommodation in relation to doctrine of separation of church and
state
There are only 6 principles
Up to section 26 are state policies

Sec 7- foreign policy independent foreign policy pursued


Factors to consider in order to ensure that the foreign policy is independent
Infringed by a wide array of factors
Patriotism will not be enough in the conduct of a states foreign policy

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 8- freedom from nuclear weapon in each territory


VFA agreement

Sec 9- policy of state to promote a just society rising standard of living improving quality of life of the
people

Sec 10 promotion of social justice


Compare with social justice under 1935 1973 and 1987 constitution
Basic comparisons:
Old mainly based on economic nature
1987- considerably broaden not only economic but equal opportunities not only in economics but
political and social opportunities included
Political- party list marginalized and under represented
Social- social legislations
Economic- labor

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

Prohibit political dynasties- as may be provided by law


Not self executing

27
Maintain honesty and integrity in the public service and effective measures against graft and corruption

Full public disclosure of public interest esp in contracts

All are non self executing provision

Legislative branch
Power allocated to congress which is a bicameral body delegated to LGU
Real delegation is to local government units

LGU exercises real legislative not quasi legislative powers


Regional local legislative power- ARMM sanggunians
People’s initiative on statutes

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

Idea is to make the senate as a self perpetuating or continuing body


But because if the 12 expires, only 12 remains no quorum there must be majority cannot constitute a
quorum under the old system
Before only 8 are elected every 2 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

Structure of congress is bicameral


Diagram is horizontally presented- co equality of 2 houses
Senate 24 members- manner of election at large but staggard except the first elections
To make senate a continuing or self perpetuating body- that cannot be any more in the new
setup
Elected twice- one half cannot constitute a quorum
ACRER- exclusive
Mandatory requirement for drug testing- qualification are exclusively enumerated in the constitution
congress cannot add another layer of qualification

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

200 initial district representatives, 50 is 20%


200 is total membership for district representatives- must be total membership including partylist

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

4 parameters in the partylist system


1. 20% allocation
Total membership of the house 20% of which must come from the partylist
Remaining 80% comes from district representatives

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

Ranked according to the percentage vote that they have obtained


2 rounds of allocation of seats

In the first round there is a qualifying seat plus additional seat


Second round of allocation

A who obtained 16% votes qualifying seats


Apply the 2% threshold so 8 seats but limit to 3 seats
All those who obtained 2% shall be given qualifying seats
Up to P all get 1 seat

ABCDEFGHIJKLMNOP- 1 qualifying seat each (16 seats already)


Applicable only to first round the 2% threshold

Additional seats: proportional representation


A entitled to 2 more seats- not 8 seats for the 3 seat limit
Up to 2 maximum additional seats
ABCDEF- all get 2 additional seats

GHIJK- + 1 additional seat (33 seats already allocated)


20% seats are mandatory all 50 seats have to be filled up

Fill up remaining 17 seats on the second round-

No longer apply the 2% threshold in the second round


Distribute remaining 17 from G- difference of 1.9% then Q

No longer the first party rule


Panganiban formula of first party rule- this has been effectively abandoned in the BANAT case

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

For every increase of 4 membership in the district


4 new districts created entitle to increase in the partylist of 1

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

Deliver it in congress during in session in plenary

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

Take effect after their term

3 constitutional privileges of congress

Inhibitions and disqualifications of congress


Can occupy other positions in the government
General rule a public officer can only occupy one office
2 exceptions
1. When allowed by law- can be constitution or statute or ordinance
2. When allowed by the primary function of the office

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

Cannot be interested in contracts


Can they practice their profession- yes but cannot appear personally in any court quasi judicial or admin
body

Cannot have incompatible office- 2 offices violate separation of power


Ex:
Congress man and cabinet member at the same time

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

Bar exam question


Congressman A term ends 2013, before his term expired sponsored a bill converting the municipality of
Trinidad to a city, can he run as mayor? yes
Yes he can the prohibition applies to appointive positions not elective positions
Effect if a member of congress accepts and appointive position which is forbidden- forfeit his elective
position
Gordon forfeited his term as mayor-accepted appointed in the SBMA

Quorum and voting majorities


Required minimum number of member in a given house to be present so that they can convene and
transact business legally
Rules- majority of all members 50% of total membership plus 1

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

Doctrine of shifting majority- instances


Majority of those who are present
Done in enacting a resolution or ordinary legislation constitution is silent as to the required majority

In lawmaking to illustrate voting requirement


At the start of the session there is roll call the house secretary will certify to the existence of quorum
meet 50% +1
Can now proceed in the session

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

Majority party more seat minority less seats


In each tribunal

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

When does jurisdiction begins- once the candidate is proclaimed


Butch Aquino never proclaimed- the comelec will rule on his qualification
Reckoning point is proclamation given right to assume office once have this right then and only then you
can be considered as a member of either house
Jurisdiction of non members not of HRET is COMELEC- DQ by comelec invoking the provision that the
sole judge is the HRET but he was wrong not yet member never proclaimed as a member of congress
Comelec rightfully has jurisdiction on his issue of qualification

HRET SET decision can be elevated to SC


Because of expanded jurisdiction of SC

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

A a member of HRET belongs to party A


1 case pending before the body is a co party mate belongs to party A
In decision making the congressman who belongs to party X did not vote for the party mate but voted
for the opponent of the party mate- so for breach of party discipline he was ousted from membership in
the party
NO is invalid and not constitutional
Can a member of house can be removed from the HRET cannot be removed for breach of party
discipline, infringe independence as a electoral body

Bicameral commission- membership comes from both houses


Commission of appointments
13 senators and 12 congressman- senate president chairman of CA
Function to approve or disapprove the appointment where confirmation is required

Where the appointive requires confirmation, the CA gives it

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

If bypass remedy of president reappointment


No limit for reappointment

Lawmaking
First and foremost power propose amend enact repeal laws
Although constitution confers upon congress the PEAR there are limitations not absolute

Limitations may be substantial or procedural


Substantial power o congress to enact law is plenary- means congress can enact any law and any subject
matter under the sun
Except when the law is an expost facto law, bill of attainder, republican democaracy: law is prohibited to
be enacted the passable of irrepealable laws

Limitations on matters of procedure


1. Given power to enact laws but the bill has to undergo 3 readings on separate days
Purpose is to prevent railroading of bills

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

Other limitations- substantial


Every bill shall only embrace one subject matter
To prevent rider bills

Exceptions to the rule:


If other subject matter is germane to purpose of the bill
Create an agency and in the same bill propose to appropriate 30M for the operation of that agency- yes
allowed because second subject matter is germane to the same subject matter

Steps in law making in general


First reading- reading of number and title of the bill plus sponsor
Then referred to a committee for second reading

Second reading- committee meeting propose to plenary the draft


Debates

Can amendments be made as proposed by the committee? yes


Voting in second reading with respect to the amendments

Third reading- reading of the title immediately followed by voting no more amendments
Amendments only second not third reading
Third = voting only

Where must be bill originate in either houses


House can file any bill on any subject matter same with senate
Exceptions: when a bill must originate from the house
1. Appropriations bill
2. Tax or revenue bill- principle of republicanism, membership widely spread throughout the
country
3.

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

Other powers of congress


Bills that must be enacted by congress is an appropriations bill
Purpose: authorize release of public funds kept by the national treasury- congress not court cannot
order garnishment and legal process of the public funds only through the enactment o an appropriations
bill

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

Principles and limitations on the power of congress to appropriate


Funds appropriated for what purpose- public purpose
Then since it is an appropriations law, it must originate from the house
Other house is precluded from acting on the bill or senate counterpart bill until the house version has
been completed up to what extent in plenary- prohibited to act in senate version in plenary by voting
already if house version not yet transmitted by the house

General appropriations bill, originate from the house of representatives


Who will propose the budget- office of the president

Office of president transmit that proposal to the house and senate


Budget as proposed by the president

Enacted into law by congress


Conduct budget hearing of both houses- can be joint committee
One of the limitations in the exercise the power to enact budget law they cannot increase the budget as
proposed by the president
Ex: 3 trillion and next year election year, cannot be increased the 4 trillion
But it can decrease as proposed by the president but not to increase

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

What is prohibited is horizontal transfer but not vertical transfer


From one agency to the same agency in the same branch of government
Power to transfer fund from one branch to another in the same branch power of augmentation
2 requisites:
1. Fund transferred or sought to be transferred must come from the savings from an agency
No savings no transfer cannot give what you do not have
To not impair the budget

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

Bar exam question:


Military retirement fund invest in a white elephant
Head of trust fund in the military sued for anti graft- no fund for retirement benefit
Chief of staff authorized the transfer of funds from other offices of arm forces of the phil to transfer
savings to the trust fun used for retirement fund?
Not valid- approved by the chief of staff must be head of the branch the chief of staff power of
augmentation is invalid there must be compliance with the 2 requisite

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 the President when an enrolled bill is given to him:


1. Sign and approve it
2. Disapprove it by veto
3. Inaction by the president within 30 days

Options of congress: To override the veto of the president by 2/3 vote of all the members

Exercise of pocket veto: not allowed by our constitution


It is a veto issued by the president when congress has adjourned sine die.
Rationale: because congress cannot exercise the power to override the power of veto

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.

Law making as to Requirement of bills:


1. Title
Q: On the title what must be indicated
A: It must reflect the subject matter of the bill
Generally the subject matter will be the one tackled by the bill anything in excess is a rider bill
Title serves as an announcement as to the subject of the bill

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

What makes it an inappropriate provision


Purpose of appropriation law: It is an authority to release public funds
If there are provisions that has nothing to do with release of funds it becomes an inappropriate
provision
e.g. The propose source of fund and the proposed expenditure:
 Agency was given a zero appropriation this is not valid and becomes an inappropriate
provision. The zero budget is akin to abolishing the agency. To validly abolish it must be
done to separate legislation. Abolishing an agency cannot be done in through an
appropriations law. One (1) peso budget is valid.
 Collection of national taxes 40% must go to local governments. In the budget the actual
appropriation is only 30% this is not valid. It is also an inappropriate provision. If the
intention is to reduce the budget from 40% to 30% then amend the LGC.

Congress on taxation: taxation review will handle this

Grant of franchise: most delegated power


This power is inherently legislative when delegated must pass the sufficient standard test and
completeness test.
1. LGU
2. Administrative agency

Constituent Power of Congress:


1. Propose amendments to the constitution: whether they will vote jointly or separately the
constitution is silent.
2. Electoral function:
a. if 2 candidates for president or vice president will tie congress will vote separately
b. As a canvassing body: president and vice-presidents
3. Executive related functions:
a. Confirmation of appointment (executive in nature)
b. Consent in the ratification of a treaty
4. Judicial related: impeachment court (quasi-judicial)
5. Investigatory power or legislative inquiry:
a. Section 21: legislative investigation
b. Section 22 is question hour

Distinguish Sec. 21 and 22:


1. As to who conducts the inquiry:
 In legislative investigation it is a mere committee or joint committees
 In question hour it is the plenary (the whole house), they must be convened in a session
2. Purpose of the inquiry
 In aid of legislation for sec 21
 In sec 22 is oversight function in the form of check and balance to determine whether
the executive branch is implementing the laws enacted by congress
3. As to who can be invited in the investigation
 In sec 21 any person can be invited under the pain of contempt, with the exception of
the president under the concept of executive privilege and to some extent cabinet
members invoking executive privilege. But this depends on the subject matter of the
inquiry.
 In sec 22 only cabinet members and their deputies can be invited. 3 days notice is
required and must specify the matter of the inquiry.
4. Case decided by SC: as to need of permission of the president
 Sec 21 the permission of the president assuming they are not covered by executive
privilege is not necessary.
 Sec 22 permission is always necessary
5. Subject matter of inquiry
 Sec 21 any subject matter
 Sec 22 only matters relating to the concern of that department
e.g. DOLE labor only

Power relative to natural resources


Constitutionally the capital must be owned by Filipinos:
 100% mass media
 70% advertising
 60% all others constitutional provision
 As to natural resources the 60% can be increased by congress set forth in the constitution

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

Discipline of members of the house


 Who can discipline: qualify
a. Congressman it is the HR
b. Senator it is the senate
Santiago case: can the SandiganBayan impose preventive suspension upon senator Santiago for an act
she committed as a commissioner of deportation
Paredes: can he be suspended for offense he committed while he was a governor
SC: yes, because the SB where there criminal cases for 3019 can impose preventive suspension because
it is not a penalty but a part of the proceedings.
Note: But the preventive suspension was not served by their respective houses although it is a valid act
of SB according to the SC

Ground: disorderly behavior for disciplinary cases in HR and Senate


Q:what acts constitute
A: the determination of what constitutes disorderly behavior belongs exclusively to the house which is a
political question, it is an internal matter of the house beyond the reach of the court
(Pendaton v Almendras)
Penalties:
Under the constitution are two, vote required is 2/3 vote of all members
a. expulsion is the maximum penalty
b. suspension limited to 60 days only; Vasquez case because they have the mandate of the people
under their rules there can be more

Coverage up to legislative

Power of legislative inquiry


2 kinds of legislative inquiry
Sec 21 legislative investigation
Sec 22 question hour

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

Purpose of the inquiry


21: the purpose is in aid of legislation
Power of congress to enact laws is plenary- any subject matter and need information to guide then- in
what occasion get information- conduct legislative investigation under sec 21

22: purpose is to oversight function of Congress


Checks and balances
To determine whether the executive is implementing the laws enacted by congress
Implementing properly in accordance with spirit of the law, lapses so that remedial legislation can be
made

As to who can be invited in the investigation


21: any person can be invited or sub poenad
Exception: cannot invite the president- executive privilege
To some extent cabinet members under the same privileges if invoking of executive privilege
Executive privilege belongs only to president and executive secretary but can be expanded
depending on the subject matter to alter egos of the president

22: question hour only cabinet members and their deputies can be invited
Procedure there: 3 days notice
Specify the subject matter of inquiry

In relation to a case: further distinguish the two


Sec 21: permission of president is not necessary if not covered by executive privilege fall under any
person
Covered by executive privilege-

Sec 22: permission of president always necessary

Subject matter of inquiry


21: in aid of legislation power is plenary
22: only matters relating to the respective department of the cabinet members
DA- agriculture matters only
DOLE- overseas workers
Limited scope only to issues relating to their department

Power of legislative inquiry

Power relative to natural resources


Constitution- extent of ownership percentage of ownership of foreign entities in our economy- 100%
Filipinos, 70% Filipinos, general rule 60% of capital owned by Filipino citizens

100% mass media


70% advertisement
All others 60%

Power of congress with respect to natural resources


60% passed under constitution it can be increased by congress to a higher percentage- natural resoruces
Increase minimum of 60% set forth in the constitution
Congress empowered- acts of congress is the other way around

Attempted to eliminate this constitutional provision to delete the 60% rule


Merely decided to convene- case filed not too early not to late

Congress is empowered to amend constitution not abolish to it

Informing function of the president- opening of session of congress


Last Monday of July- president delivers a SONA
Informing function

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

Miriam defensor Santiago case


Congressman paredes case

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

Sandiganbayan criminal case- impose preventive suspension- apply to 2 members of congress


One senator
One congressman

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

There are lesser penalties


Reprimand censure etc
Under constitution expulsion and suspension, 2 penalties not exclusive

Suspension or expulsion meted out is 2/3 vote of all members

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

President most powerful- all executive power exercised by him


Qualifications of president and vice president
ACRER
Age at least 40 at the day of election
Natural born citizen
Resident of 10 years
Congressmen 2 years all others 1 year

Educational- ability to read and write


Registration anywhere in the Philippines elected at large by plurarity vote
Plurality vote- most vote even by one vote only
In the event of tie vote- who will break the tie, congress will break the tie by voting separately who
between tying candidate will assume presidency

Canvass votes by congress jointly


All 285 congressmen and 24 senators to canvass? A committee created

PET acquire jurisdiction over president election cases


They receive cases- compensation even if no case

Macalintal- estoppels, challenged PET creation


Appearing in PET cannot question its validity
Accepting decisions of the body

Term of office 6 years without reelection


When takes over by succession and serve not more than 4 years

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

Prohibitions and inhibitions


Stricter than members of congress
Apply to his alter egos and deputies
Cabinet members usec and asecs
One position per public officer- except when allowed by law and primary function of office

Cannot practice their profession


Not to be interested financially in any contract with the government

Cannot appoint a relative- provision on nepotism


Governed by that constitutional prohibition

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

At what point in time will the vacancy occur?


A. At the beginning of his term
Noynoy june 30, 2010, until June 30 2016 (during the term)
At the beginning of the term- from the time of proclamation May 15, 2010
From the moment proclaimed up to the time of assumption of office- it is the beginning of the term
Permanent vacancy
B. During the term

Permanent vacancy – death


Assume presidency during the death- no necessity to elect a successor because vice president will take
over the position

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

At the beginning of the term


From proclamation up to june 30 noon time assumption of office

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

No president no vice president proclaimed


Senate president will be the acting president
Senate president can never become a permanent president
Problem:
As ruled by SC which was not foreseen by the CONCON- senate no longer continuing body
2010 election senate president Enrile term of office has expired
No immediate senate president if no immediate senate president need for senate to elect one but how
can they elect one if the senate cannot muster a quorum because of lack of quorum

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

At the beginning of the term


No president elect
No vice president elect

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

What about temporary vacancy?


Who will determine whether temporary vacancy exists or not?
1. President himself
2. Majority of the cabinet members- conflict between the 2
President kayak o pa
Cabinet members- naka coma na siya
Who will prevail or decide on the impasse?

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

Can congress pace the 5th in line is the chief justice?


Can it validly extend that the 5th in line be the CJ?
No because: reason, section 12 art 7
Preserve and safeguard the independence of the judiciary no position to be partisan

Executive to enforce the law enacted by Congress


Take care and faithful execution clause of the constitution- mandates president to enforce the law
constitutional duty of the president to enforce and execute the law even if he believes that the law is
unconstitutional cannot refuse on the mere belief that the law is unconstitutional
Laws presumed to be constitutional until and unless the court declares it unconstitutional

President does not have power to determine constitutionality of the law only the court has that power

Assist the president in enforcing the law

Cabinet members
Those with portfolio
Without portfolio

With portfolio- heads of line agencies


Denominated with a department- DOLE, DAR line agencies,
All lines agencies are regionalized 16 regions

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

Cabinet members cannot assume power greater than the president


Given more leeway to delegate power to his alteregos- power of control extends to all offices in the
executive branch of the government

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

Power of supervision to the LGU


Control exercised by Congress

1. Admin agencies
Control- all except those independent agencies

2. LGU
Supervision only

Executive related powers of congress confirmation of appointment


Main power belongs to executive branch the power of appointment

Power of appointment executive in nature


City council of QC certain employees invalidated by the SC- the city council being legislative branch of
QC does not have power to appoint the power belongs to the mayor executive branch

Executive and discretionary power of the mayor

Person who will exercise it is the president and discretionary

Discretionary power- given power to choose among the qualified possess qualification and no
disqualification
Can appoint even the least qualified

2 kinds of appointment that can be issued by the president


President he alone can issue no appointing authority this 2 kinds of appointment:
Regular appointment
Ad interim appointment
Only president can exercise the 2

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-

Presidential appointment may require confirmation or it may require confirmation

Control and supervision


Control- applies to department heads
But does not apply to independent constitutional administrative agencies only those belonging
to the executive branch are subject to the power of control

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

Power of general supervision exercised to by the president


To the LGU, not the power of control it is mere power of general supervision
Includes
Mere oversight whether performing job in accordance with law

Power of appointment of the president


Nature it is executive in nature and discretionary
Exercised only by only a chief executive the president, mayor governor and even heads of offices

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

2 kinds of appointment that can be issued by the president alone

Regular v. ad interim appointment

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

Line agency of DILG- PNP attached


PNP chief only rank of a bureau director not a cabinet member his superior is the DILG

Naval captain promoted to commodore


Commodore to admiral
Admiral to rear admiral
Do these promotional appointment require confirmation? No because the Philippine coast guard no
longer part of Philippine navy
Now part of DOTC attached agency

Constitutional commissioners civil service COA ombudsman


Regular members of the JBC not the Ex officio members who are appointed by the president for a term
of 4 years are also
Chief justice exofficio
DOJ sec
Member of congress- one from house and senate respective chair of committee of justice
Retired SC justice
Academe- nominated by Philippine association of law school
IBP representative
From the private sector

The rest do not require confirmation already including the Commission on human rights like PNP chief
and those in the coast guard

Executive and discretionary in nature- power of appointment of the executive

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

Restriction to appointment is midnight appointment

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

President can no longer issue a permanent appointment


What is prohibited is permanent appointment only
But there is an exception clause: except temporary appointment in the executive

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

Justification of midnight appointments:


Constitutional duty of the duty of the president to appoint members of the judiciary within 90 days from
the vacancy
Position of CJ is not temporary in the executive

Civil service rules- has rulemaking powers


Prohibition of midnight prohibition on midnight appoints for local chief executives as appointing
authority

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

Powers relative to appropriation measure


Presidents power in relation to appropriation- not solely made by congress but participation by the
president
Levels of participation 2 steps
Steps in appropriation
1. Budget proposal- executive
2. Budget authorization- by congress legislative makes it into a law
3. Budget execution- executive for DBM
4. Budget accountability – by the COA whether appropriated funds properly spent subject to audit

Aside from this


Exercise an item veto in the appropriations bill
Only vetoed item cannot take effect those not vetoed can be executed force and effect of a law
Power of augmentation- power to transfer funds from one agency to another belonging to the same
branch- executive branch

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

2. Entering into a treaty and other international agreements


But if it is a treaty the limitation is that the treaty cannot become effective until concurrence from the
senate by 2/3 vote
Not the whole congress

Power to contract foreign loan and guarantee foreign loan- president


Question
Is it subject to concurrence by the senate? No not subject to concurrence of senate- foreign loan
not covered by the Vienna convention of treaties and only treaties are subject to concurrence
Under our constitution who will give concurrence to the president the monetary board of the BSP
Cannot embody in a treaty foreign loan more in exercise of proprietary or monetary not Vienna
convention of treaties

Monetary board will give concurrence

What then is the role of congress insofar as foreign loan in concerned?


Plenary and enact laws to serve as guidelines on the part of the president in contracting foreign loan
establish guidelines to be observed but not their consent power given to the monetary board
Executive agreements not subject to concurrence of the senate
Generally, according to article of Usec Malaya of DFA agreements that require concurrence or
ratification by the senate
General rule:
If the subject matter of the agreement congress has the power to enact it into a law- then it is
subject to concurrence or ratification
Example: agreements decriminalizing libel- only civil liability, agreement entered by the PH with
other countries- it requires ratification and concurrence
In the PH congress defines crimes

Does not require treaties


Waiver of visa requirements- friend of the state
No ratification not embodied in a treaty

Conduct of a countries foreign policy


Treaty making- covered by executive privilege, cannot reveal info on how the treaty is arrived at in
reverence to the foreign state who entered into the treaty

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

Exercise of emergency powers


Basic principle- repository of emergency power upon whom did the congress confer- Congress
repository of emergency power
But the president will exercise it as a delegated power
Requisites:
1. There must be a law enacted by congress delegating a particular emergency power to the
president
No law no exercise by the president

Executive and administrative powers


Take care and faithful execution clause
Duty to enforce laws regardless of his opinion as to its constitutionality

Commission on appointment
3 options to check and balance to approve disapprove or bypass
4 categories of officers subject to confirmation

PNP chief not subject to confirmation- rank of bureau director


Commissioner of human right
Coast guard- attached agency of DOTC

Limitations on power to appoint


Midnight appointment
Discussed nature of midnight appointment

Appointment that violates the rule against nepotism


Violate the election ban on appointments
Violate the prohibition to appoint losing candidates lame duck appointments- except those who ran for
barangay

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

Control- power to substitute the decision


Supervision apply to local government only- congress exercises control over the LGU

Local governments not subject to power of control only power of supervision by the president

Cabinet member cannot revoke the decision of a another cabinet member


Even if the executive secretary except when he is acting for the president then he can revoke the
decision of the cabinet member

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

Veto powers- exercised except pocket veto


Precluded by the constitution to exercise pocket veto
Appropriations law- item veto allowed

Veto by president entirety of the law will not take effect


Except appropriations law where only item vetoed will not take effect

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

Hecklers veto- bill of rights freedom of speech

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

Emergency power- repository is congress but exercised by the president


Aside form the principles of valid delegation completeness and sufficient standards test
The law that must be enacted by congress delegating the power- for completeness and SST

Purpose is to meet emergency and exercise during the emergency


Delegating exercise of emergency power

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

Congress real repository of emergency powers


Powers enumerated in relation to appropriation
Power to propose and prepare the budget
Power to execute the budget
Budget is in the form of a law
A law must be enforced by the president
Part of budget law not enforced by the president- to release public funds (purpose)
Power of executive impoundment- power of president not to spend the amount appropriated
by congress
President may refuse to spend funds appropriated by congress if in his discretion it is no longer
necessary
Congress appropriated 3.5B for construction of congress building
Where the 2 houses are housed
Half billion unused after construction
Use it otherwise revert to general fund
President can refuse to release the amount to spend on marbled parking spaces
No specific law only jurisprudence on that
Recognize power of president of executive impoundment

Item veto in the budget

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

Approve blending of powers if disapproves checks and balances

3. Power to appoint ambassadors and consuls

4. Power to send them abroad

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

Is it necessary to declare state of emergency to exercise this power? No


Or declare state of rebellion? 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

Suppress lawless violence invasion rebellion


Can this be subject to judicial review by the SC? General rule is no
Not subject to review unless there is a grave abuse of discretion- very unlikely the court will review

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

He knows more than we do because of access of myriad of intelligence report

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

Declaration of state of emergency- not entitled to emergency powers or warrantless arrest


Provide guidelines of media for exercise of profession still no

6. Declaration of martial law and suspension of privilege of habeas corpus


Invasion rebellion and public safety requires it the declaration and suspension
Must be actual not imminent

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

Mere declaration of state of emergency


Issue presidential decrees? cannot
President entitled to legislative powers only when martial law is proclaimed
Warrantless arrest? No
Guidelines for mass media for exercise their profession? No
All are unconstitutional no additional powers

1987 reactionary constitution to the Marcos regime


Safety valves
One of safety value in so far as judicial review the declaration of martial law and suspension of habeas
corpus privileges, Yes court can inquire to the sufficiency of the factual basis of the proclamation or
suspension as the case may be

Cannot inquire into basis of calling out powers


But if martial law or habeas corpus the constitution allows the court to inquire to the factual basis
Mandate of the constitution

Congress power in relation to martial law and habeas corpus


Can revoke the declaration or extend the proclamation
Once revoked that is the end of check and balance the president cannot issue again

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

Insofar as arrest is concerned must be necessary related to rebellion or invasion


Even if there is suspension and offense is not related to rebellion and invasion as if writ not suspended

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

8. Power to grant executive clemencies


Pardon amnesty parole commutation of service of sentence

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

Although admin cases impeachment not covered

Criminal offense- if election offense


Recommendation must COMELEC- independent constitutional commission
Does not fall within the power of control for the president

Cannot be granted in legislative and civil contempt


Separation of powers
Pardon will not erase civil liability
Pardon will not restore to office the public official granted pardon
But remove his DQ no automatic reinstatement

Distinction between pardon and amnesty- consent of congress in amnesty congress must concur
In pardon consent of congress do not need concur

Subject matter of offense is political offenses—amnesty, given to groups


Pardon given to individuals
No need for concurrence coming from congress

International customary law- presidents entitled to immunity from suit


What kind of suit criminal and civil suit
Purpose is so that can concentrate his efforts in governing
After term no longer enjoy presidential immunity from suit- presidential immunity from suit enjoyed
only during his actual tenure

During actual tenure not term


Official acts all throughout falling within authority perpetual
Acts not falling outside of his authority- plunder, immunity applies only during his actual tenure

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

Presidential privilege- executive privilege


Privilege or right of president to withhold information from congress from the courts and even from the
people in general
Cannot compel president to attend or be present to a legislative investigation
Can invoke executive privilege

And separation of powers – co equality of 3 branches of government


Primary principle to invoke is executive privilege

Even from the courts and the people


But this executive privilege not absolute it depends upon the kind of information that is extracted to him
by the congress courts or people

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

JPEPA case entered with Japan


Treaty signed and published but groups in Ph who would like to know all the details of the treaty on how
the agreement came about up to the minute details form the executive invoking matters of public
concern

Executive privilege prevails on right of people to matters of public concern


Impair capability to enter into future treaties by the executive
Negotiations part is confidential cannot divulge anything about how the negotiations came about

Judiciary

Executive legislative- political branches, have both mandate of the people

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

Judicial power and judicial review


Art 8 sec 1
2 powers conferred upon the courts

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

Exception- political questions


The courts will determine whether political question or not

Court may consider an issue political- invoking separation of powers


Determine if it is a justiciable issue- take cognizance within their power and competence and make the
appropriate ruling

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

Moot questions in relation to judicial review


Functions of judicial review-
1. Legitimizing function
When an act of the president is questioned in court- SC ruled that deployment is within the power of the
president
Act legitimized by the SC

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:

Requisites of judicial review:


Procedurally:
1. Compliance with DEAR doctrine
2. Doctrine of finality of administrative action- extension of DEAR doctrine, series of administrative
remedies must have completed them all nothing more to be done in admin aspect now ripe for
judicial adjudication

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

Concerned citizens suit


Only suits involving transcendental importance, absent this cannot invoke this personality

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

2. Proper time or period- to file the case


Not too early no cause of action yet
Not too late when issue is moot and academic

Timeliness of filling of the petition

Filed in the earliest opportunity


Convene congress to amend constitutional provision on national economy- pre mature filing of petition
to restrain the amendment

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

3. Constitutional issue raised


If no issue tendency of court not to take cognizance of the case
Because laws are presumed valid regular and constitutional

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

Wide latitude of discretion insofar as political questions are concerned

Fiscal autonomy of the judiciary vs. accountability


Fiscal autonomy- not only the courts in the judiciary even the constitutional commissions guaranteed
this right

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

3 functions of judicial review


Legitimizing
Checking function
Symbolic

Operative fact doctrine

Who can exercise this judicial review?


Can the trial exercise the power to judicial review? Only up to level of regional trial court

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

1. Actual controversy- court will not issue opinion on hypothetical cases


DOJ issues opinion on hypothetical questions
There must be an actual controversy

No actual controversy cannot decide the case


May become moot because of intervening event will the court still take cognizance? No more because
no more actual controversy
Exceptions:
Grave violation of the constitution
Public interest involved in the issue
Symbolic function- educate the members of the bench and bar
Or issue capable of repetition yet evading review

Political question doctrine


Not for the court to decide for the people to decide in their sovereign capacity- who will determine
political question or not? court

2. Filed by proper party in interest


Legal personality- general rule is the direct injury test
Suffered direct injury or about to direct injury cloth personality to seek judicial remedy
Tax payers standing- disbursement of public funds by congress
Concerned citizen standing- transcendental importance- far reaching effects on the political economic
and social life of the people
Legislators standing- lawmakers only when prerogative is usurped by the president

Common issue- bring out a constitutional question

3. Must be filed at the earliest opportunity


Not too early no cause of action yet
Too late- moot and academic or prescribed

4. There must be a constitutional issue raised


If conflict by other means avoid resolving constitutional issue

Safeguards of judicial independence

Fiscal autonomy- guaranteed to SC and constitutional commissions


COMELEC COA CSC ombudsman

a. Automatic release of their appropriated funds


Commissioners need not go to DBM secretary so that funds allotted will be released

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

c. For them to spend the appropriated amount without interference


Must be in accordance with law
If pondo unused revert to the general fund- SC used for other purposes travel abroad

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

cannot be removed except by impeachment


power to appoint does not carry power to remove in the judiciary
even members of lower court no more supervised by the DOJ
now supervision is exercised by the SC, form the same branch to safeguard independence of the
judiciary

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

conferred upon it by the constitution

admin agencies- quasi judicial but not judicial power

political question- judicial restraint


ex: decision of senate finding guilt of the CJ, exercising a power derived from the people as a
representative of the people no longer subject to review

Francisco case- it can review


Impeachment form of check and balance it has to end
The political branch cannot counter check it anymore- cannot be an endless cycle

Judicial restraint
Public opinion plays an important role
Did not act on restraining order filed by CJ

Appointments to the judiciary


Members of judiciary are appointed by the president up to lowest
But appointment does not carry power to remove- not subject to confirmation by the CA

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

Sablan case- non lawyer appointed as judge in Sablan


No screening committee
To show that you meet all the requirements

CIPI-
Competence
Integrity
Probity
Independence

To minimize appointments of those not qualified

What comprises the JBC


Exofficio members- SC justice (CJ)
Secretary of justice
A representative of congress or member of congress
Committee on justice in senate and HR- before they alternate then came a time that both
houses
Regular members
One representing the IBP
Representing law professors
Retired SC member
One representing the private sector

7 members originally
But now 8 members

4 regular members- attain position by appointment by the president


Subject to confirmation? Yes
Term of 4 years subject to confirmation- constitutional position

COMELEC CSC COA Ombudsman and regular members of the JBC

Who will supervise the JBC


Attached to the S- SC exercise administrative supervision

SC prepares budget including budget of JBC

15 members of SC including the CJ


Of all public officers that prescribes personal characters qualifications
CIPI
Other public officers- silent about personal characteristic qualifications
Members of board of election inspectors- good moral character

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

Ombudsman case RA 6770- creating the ombudsman


Decision of ombudsman in administrative cases appealable to the SC nullified by the SC no prior consent
was given to the SC

Law creating the CTA


Stated that decision of CTA reviewable by the SC- prior consent was given

Congress who can by law define jurisdiction of he courts


But not deprive SC of its orig jurisdiction as enumerated in the constitution

SC can meet en banc and in a division


En banc
1. Constitutionality of treaty international executive agreement or of a law
2. Decides on constitutionality of PD proclamation order or ordinances and rules and regulations
issued by admin bodies
3. Decides in a division but no required majority
4. Admin cases involving members of judiciary
1 year suspension decided by a division-only when penalty is removal dismissal of a judge that they are
required to meet en banc but not when suspension or lower

5. Hearing an election contest acting as PET

Rules of court where SC meets en banc


Enumeration in constitution not exclusive

All other cases division only

Powers of SC is rule making


Admin agencies have power to promulgate rules more so as a branch of government that the SC can
promulgate rules
Subject matter- exercise rule making powers-
Rules about the protection and enforcement of constitutional rights
Rules on issuance of writ of amparo
Writ of habeas corpus
Kalikasan
Practice of law pleading procedures in all courts

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

Other areas other than pleadings practice procedure


Admission in the bar to practice of law
Promulgate rules about integration of the bar

Rules to legal assistance to the underprivileged


Limitation to rule making- whatever rules adopted must be simplified and inexpensive
Rules is uniform in each level

SC governed by limitation that whatever rules they come up with must not increase decrease or modify
substantive rights

Administrative supervision of lower courts not anymore the DOJ sec


Upon whom did the SC the administration and supervision of lower courts- technically it belongs to SC
Office of the court administrator- rank of the justice of the CA
Deputy of OCA- rank of RTC judge

Assist in supervision and discipline members of judiciary- court personnel


Power to supervise carries with it the power to discipline

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

Ombudsman investigate employees of the judiciary


Administrative- no
Criminal yes if graft related

Justices of the SC
Investigated by the Ombudsman
Disciplinary purpose- no
Impeachment cases- yes 6770
Ombudsman can investigate for impeachment
RA 6770

<SPACE>

Appointments to the judiciary


No longer subject to approval by the CA
There is now another body who will screen the nominations and who will recommend the president the
appointments to the judiciary

Bar exam questions:


Functions of the JBC- to screen judges for appointment
Experience of non lawyer as a judge

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

A petition recently filed in the SC to restrain the present JBC


From performing its job of screening and nominating

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

Carpio most senior accepted the nomination cannot be member of JBC


2 senior members who did not accept the nomination
Acting Cj for purposes of JBC- Diosdado peralta

Ex officio secretary of justice- De lima accepted the nomination


Necessarily inhibit herself as exofficio member of JBC

A member of congress- 2 representative at present 1 senator 1 congressman


Under present rules concurrently sit in JBC and entitled to 1 vote each

Supervise the JBC- the SC


Meet enbanc because the SC is required to meet enbanc in administrative cases
Other items- powers of SC 2 jurisdiction

Original and appellate jurisdiction

Appellate jurisdiction limitation on the part of congress


Sec 13 they cannot confer additional appellate jurisdiction without their prior consent
Ombudsman law case- made decision of OB in admin cases appealable to the SC
Now appealable to the CA
But criminal cases appeal directly with the SC- constitutional grant

Court of tax appeals- permission of SC was secured


Appeal direct to the SC

Original appellate jurisdiction


Original jurisdiction
Certiorari mandamus prohibition

SC can meet either ne banc or in a division

Instances that they meet enbanc


1. Constitutionality of treaty executive agreement law presidential decree order rules and
regulations promulgated by congress
2. Decision of division not met the required quorum
3. All elevated cases of admin against judges where penalty is removal
All other penalty- division

4. Meet convene as PET

Rule making power has been invoked by SC in a lot of cases


Constitution allows SC to exercise rule making powers
1. Protection of an enforcement of constitutional rights
Writ of amparo, rules and procedure in accord with constitutional power of SC to issue rules pertinent to
their rule making pwoer

2. Rules on pleading practice in all courts but no quasi judicial body


Quasi judicial body- the QJB itself
Powers of SC in imposing the requirement of verification and CNFS
And also come in if the rules and procedure will diminish increase or substantially alter
substantial rights

3. Rules pertaining to admission to practice of law


Integration of the bar- promulgate rules for integration of the bar

4. Legal assistance to underprivileged


Waiver of filling fee for the indigents

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

Time limit or filling up of vacancy of the SC and lower courts


In both cases within 90 days
SC- from the occurrence of vacancy
Lower courts- from the time the JBC submits the list to the president

Minimize delay of justice function of SC


Reglamentary period for courts to come out decision

SC- 24 months or 2 years


Intermediate appellate courts- 1 year or 12 months
Inferior courts- 90 days
Reckoning point- submission of last pleading or submitted for resolution

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

Sandiganbayan- technically an IAC gen rule given 1 year


Reglamentary period to come out with a decision, in 2001 decision
Conflicting versions
1. Argued that they should be given 1 year
2. Argued that it depends on what jurisdiction exercised if appellate 1 year if original 90 days

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

Decisions arrived at in the SC- collegial body


Assigned to 1 justice
In every assignment there is consultation with the CJ
Record who takes over the case
Contain in the decision in all courts:
1. Facts of the case stated in the decision
2. Law upon which the decision is based
Mandatory contents issued by any court whether appellate or original of any level

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

To determine the error committed by the lower courts


Exception to the rule sec 40
Decision may not contain the facts or the law- not violative of constitution
Memorandum decisions- requisites
Can be one line sentence- possible
1. It must be issued by a court exercising appellate jurisdiction not original
2. It must totally affirm or adopt the lower courts decision- no modification no reversal of the
decision
3. The lower courts decision must be attached to the memorandum decision
No need to repeat all the words when the appellate court adopts the lower courts jurisdiction
Easily dispose of its case load

Retirement age- mandatory age of 70


Who will appoint employees of judiciary
Members of judiciary- president but cannot remove them
Justice removable by impeachment
All others SC Enbanc if penalty is removal
Court employees appoint by SC through CJ

Salaries provided for by law- governed by the salry standardization law


MTC- 26
RTC- 28

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

SC empowered to change venue of the trial in order to prevent miscarriage of justice


Criminal cases- territorial jurisdiction of the offense but in interest of justice the SC can order the change
of venue of trial

Temporary assignment of judges may be done bbut on a 6 months basis only


Temporarily assign the judge limited to 6 months
Beyond 6 months consent is required already
Appointment is a specific sala or station
Unlike other appointments- only position is mentioned not the place, so that they can be transferred

Areas for national economy and patrimony


Art 12
Natural resources found in sec 2

Classifications of natural resources mentioned n constitution


Which of them:
Sec 3
Agricultural
Forrest or timber
Mineral lands
National parks

Alienable only agricultural lands that is alienable


Regalian doctrine

Distinguish dominium form imperium


Imperium- America came acquired Philippines principle of Imperium
Span got Ph as colony it is dominium

Dominium- proprietary
Imperium- concept of sovereignty

Acquisition of property falls under proprietary right- dominium


Spain came to PH
Cruz v. sec of nat res
Spain acquired only in the Ph under principle of dominium- spain got only those lands not owned by the
natives
Ancestral lands ancestral domain

When America came- under principle of imperium


All acquired

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

Nationality and citizenship requirements


Ownership- 3 rules
Mass media 100%
Advertisement 70%
All others apply 60% ruling
Although congress is given the power to increase relative to natural resources to a higher percentage
but not to abolish or decrease it

Exploitation of natural resources


Who can exploit- Filipinos only
Entity- capitalization not less than 60%

Modes of exploitation allowed by the constitution


1. Filipino citizens or Filipino corporation 60% Filipino owned
Small mining allowed for purposes of exploiting our natural resources

Labugalblaan case

Foreign entities can they exploit


Laid by the constitution in relation to exploitation of our natural resources

Foreign corporations can come it conditions:


What kind of contract-
Not service contract
Not management contract
FTAA- financial and technical assistance agreement
Only FTAA allowed under constitution
Purpose to allow PH to control their economy

Managing the exploitation would be foreigners same with service contract


Financial and technical assistance- we are still in control

Who will enter into FTAA


Only the president of the RP can enter into a FTAA with these foreign entities
In accordance with law enacted by congress
Refer only to large scale exploitation
Capital intensive =large scale

Duty of president to report to congress once he enters into FTAA


But not all kinds of resources can be undertaken by FTAA

Oil petroleum

Ownership of private lands


Who can own private lands in the PH
Sec 7
General rule Filipino citizens
Exception

Corporations can it own private lands?


Yes but capitalization 60% Filipino owned

Exception to the rule:


Who among those non Filipino individuals or entities can own private lands in the PH
Constitutional provision and implemented and PD and amended by BP

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

If a former natural born Filipino,

Use of the land before only for residential purposes under amendatory law- for all business now
Commerce residence etc

Limitation to urban and rural lands


Former Filipino citizen comes to you wanted to acquire land- law imposes limitation to his max land
Ask him to repatriate under 9225- dual citizenship no more restriction
No longer a former natural born Filipino

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

Parity rights amendments to the 1935 constitution


American citizens can own private lands
For as long as America will give same rights to PH citizens to acquire lands in america

Filipina married to an American


Buy land registered in the name of the wife Filipino spouse
Land acquired is conjugal
Can the American own the half of the lands?
No because he is not a Filipino only Filipino allowed to own lands in the PH
Notwithstanding their money wholly was used

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

Management- board seats, positions

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

Conditions before exercise of either power


National emergency and public interest so requires the take over of such public utlity – sec 17
Not necessary that there is national emergency- taking over or transfer of public ownership of utilities
only interest of national welfare and defense, no need national emergency as long as national welfare
and defense take over utilities subject to payment of just compensation- sec 18

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

practice of profession limited only to PH citizens


foreigners
stipulated in a treaty
proper regulatory agency can issue permit to the alien
treaty once ratified becomes part of the law of the land under transformation

central monetary authority is BSP


BSP it has regulatory functions over private banks and public banks

Audit government banks- original charter


Both can audit concurrent jurisdiction- COA and BSP
Supervision BSP private banks and public banks
Auditing both BSP and COA public banks exercise jurisdiction

Education
Section 2
Integrated system of education
Free public education elementary and high school

Even if 80 students in public elementary or high school


Cannot close enrolment because of constitutional right

Deped- elementary and secondary


CHED- collegiate state colleges and universities- own charter
Vocational education- TESDA

Mandatory subject taught in all schools


Sec 3
Patriotism nationalism

Policy on teaching state policy of teaching on religion


Can it be taught in public school
Yes but there are requirements so that doctrine of state and church will not be violated
No violation of church and state- policy of accommodation in line trying to accommodate them to
practice their religion

1. Teaching of religion at the option of the parents- parents will petition


INC catholic parents will write a petition that religion must be taught in public school where
their children can study
2. Government should not spend a single centavo- recruit and pay for religion instructors
Own congregation will recruit the teachers and salaries paid by the congregation
At no expense of the government
3. Done in the classroom during class hours

Teaching of religion in public school no violation of separation of church and state


Sec 4 recognizes private schools
Higher level of education barrier the more private schools

Recognize private educational institutions


Not only economy that has been nationalized
Nationalization of economy- Filipino citizens controlled
Greatest manifestation- 100% requirement 70% 60% requirements
Greater percentage of capitalization belong to PH citizens

Education also nationalized


What aspect of Ph education nationalized
3 aspects of Ph education nationalized under constitution
Filipinized
Sec 4 sub sec 2
1. Ownership of schools- owned by Filipino citizens
Corporation- 60% owned by Filipinos

2. Control and administration


University president school principals they have to be Ph citizens
Even registrar important academic official of the school
Mere faculty can be foreigner
Control and administration must belong to PH citizens

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

Addendum of sub sec 3


Tax exemption of educational institution in addition to RPT
Not only assets but also revenues of educational institutions
Directly E A used for educ purposes
And non stock non profit education institution
Not only asset but even all donations and revenues
Are tax free

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

4. Even students under 1987 enjoy academic freedom

Academic freedom in general- expanded

Alienation of lands of the public domain- Chavez v. PEA


Reclamation- bodies of water submerged
Lands of the public domain

Presidential declaration to that effect- development in Boracay will not convert the land into alienable
land

Joint venture with Filipino entity 60%


Small mining
Large scale mining- requisite
1. Who can enter- only president can enter into an agreement
2. Nature of contract- not management or service contract, FTAA only
3. Coverage not all resources

Law enacted by congress pursuant to that


Presidential report to congress within 30 days

Survey of resources in the south china seas


Jointly with other states
Governed by requirement in labugal blaan case- must be pursuant to a law
Defense of mere survey- but survey is first part of exploration
Not only exploitation but also exploration- survey first act of exploration

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

Academic freedom- institutional


Institutional- what does it cover or include?
Right or power of the school to determine who shall teach (faculty), whom to teach (admission), how to
teach (manner of teaching), what to teach (curriculum + courses)

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

Whom to teach- lady to enter seminary


Denied- application of the lady
Invoked her right to education

Journalism campus act- student cannot be expelled if the sole reason of expulsion is the article he has
written in the school paper

Admission retention policy overlaps with admission

Other disciplinary action but not expulsion- suspension maybe

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

Right to insist stay in school for the duration of 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

The power belongs to the school not to the faculty


No discretion of faculty to alter to him or her
Part of how to teach

Include related or not in the course


Ask SC to exclude extra subjects to include those part only the related curriculum
Part of how to teach academic freedom

What to teach- curriculum courses


Cannot draft in curriculum without mandatory subjects

Courses subject to moratorium

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

Academic freedom to faculty and academe / academic personnel


Not only teachers but academic researchers
Rights give to them:
Conduct research and publish the same
Publication- not limited to publication through books or journals but also includes publish it
through lectures whether in the classroom or in any academic forum or seminar

Without restriction from political economic and ecclesiastical authorities


Institution to where they belong to
Research must follow the generally accepted mode of research
Scientifically based

Must be within their field of competence


Academic freedom of institution v. freedom of academe

Academic freedom of students


In the bill of rights
Plus laws statutes journalism campus act-

Notable provisions of the bill of rights that favor the students


Freedom of press
Implementing law campus journalism act
He cannot be expelled of the staffer of the journal or article

Right of institution to determine whom to teach is not absolute


Cannot deny admission readmission on the ground that contract is semestral- contract is until you finish
the course

Assembly
Peaceful assembly in the parking space- private property of university
Subject to usual limitations and requirements imposed by law

Miscellaneous provisions of the Constitution


Language- Filipino not Pilipino

Official medium of communication and instruction- Filipino and English


Can abolish Filipino by congress? No because constitutionally mandated
Filipino cannot abolished
English can be abolished phrase until otherwise provided 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 the design of the flag be changed by congress ?


If by a statue it cannot be constitutional provision
If congress proposes amendment to the constitution and sit as constitutional assembly- requires
constitutional amendments
Congress must sit as a constituent assembly

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

Mass media, ownership and management


National in scope and civilian in character to be administered by a national police commission
Local government has jurisdiction still – RA 6575
Local chief executive still exercises some form of supervision over them

Local government units


In the PH- mentioned n art X of the constitution
Provinces
Cities
Municipalities
Barangays

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

Another unit contemplated under consituttion


Special metropolitan political subdivision- MDDA does not fall under this category

MMDA not an LGU mere administrative body


What makes an LGU an LGU- power to enact ordinances? MMDA does not have power to enact
ordinances because not a LGU
Mere administrative agency directly supervised by office of president

Elements of pub corp


State has 4 elements a pub corp has 4 also
Territory
LGU did not make use of territory but land area

Inhabitants
LGU used population

Corporate name- identified as such


Exercise of corporate powers
Generic- not only sec 22 of LGC, but also governmental powers

Policies of state on local government units


1. Enshrined in sec 25 of Art 2
Reiterated in sec 2 RA 7160
Grant of genuine and meaningful local autonomy

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

Local autonomy- does not contemplate an imperium within an imperium


Soverign government within a sovereign government no
LGU are mere creation of a state and exercises control and supervision over them
Never use independence

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

According to who is the recipient of the


Difference of the two- mainly differentiated in accordance to who is the recipient of the transfer of
decentralized power
If the recipient is autonomous regions- it is political
Recipient is other LGU’s, province city municipalities barangay, decentralization becomes administrative
in nature

Broadness of powers transferred


Much broader under political decentralization than administrative decentralization
Sec 20 of Art X- 9 powers considerably broader in scope and volume than powers transferred by national
government to other units

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

Policy of making LGU and LGO accountable also


Accountability of local government units

LGC- specify the 3 forms of accountability


Initiative- people enacting the ordinance
Referendum- people approving ordinance when they are controversial
Ordinance not subject as general rule to the people but if controversial may be approved by the
people

Recall- mode of removal of local elective official before his term expires by electing his successor

Mandatory conduct of consultation by the state


Consulted not only the LGU but even the NGO and the PO consulted by the national government
Under what instances is the national government required to consult the LGU NGO and PO only when
national government will undertake a project in the locality where that project will adversely affect the
ecology and environment- mandatory consultation required by law

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

Environmental and ecological effect unlike putting up of lotto outlets

Relationship between state and the LGUs


Part of the state
Not independent of the state
State specifically referring to political branches executive controlled by the President and legislative
controlled by congress
Creation of the state remain under control and supervision over LGU
Congress- power of control
President- power of general supervision

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

President power- mere general supervision


Oversee whether LGU are performing their job in accordance with law

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

Power of control of Congress- power to create and abolish LGU


Power to provide for the term of office salaries powers everything about local government through law-
plenary power of congress to enact law not ex post facto law and bill of attainder
Everything about LGU can be enacted by Congress

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

POV of hierarchy of laws


A.O. issued by ramos- being a lower law subordinate legislation cannot amend a statute under doctrine
of hierarchy of laws

POV of local autonomy


Anti local autonomy- transfer of resources no full transfer there is only partial transfer principle of local
autonomy

Amending the 40% is an act of control and not power of supervision that belongs to the president

LGU case give allowances to national officials stationed in the locality


DBM circular limiting to 1000 pesos only
Questioned: the law does not provide for a maximum limit- A.O. amending for the LGU
providing limit for grant of allowances

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

Relationship of LGUs and other LGUs


One exercising umbrella supervision is office of president
Sec 7 power of president of general supervision

Provinces
Highly urbanized cities
Independent component cities

All co equal- salary grade of officials are the same


Same rank as that of a provincial governor
Comprises a province- 2 components of a province
Component municipality and 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

ICC HUC or province no longer review by president or congress-courts


Not to review ordinances of next lower levels
Mandatory position of city legal officer- Province, HUC ICC
Assist board members in enacting the ordinance
Unlike in lower levels
Subject to review by next higher level

Province elect provincial officials


Voters of HUC and ICC prohibited to vote for provincial officials

Creation of LGUs
Who can create? General rule only congress can create LGUs
What about the president- it cannot create a LGU

Nature of power to create is legislative and executive cannot usurp


LGU created by president- nullified president not empowered to create

Congress authorizes president to create- still wrong invalid delegation


Must be proper delegation
Delegated to legislative body
Creation of barangays has been delegated under LGC
Barangay HUC or ICC- who has been delegated- the sangunian panglungosd of these cities

If it is a municipal barangay or even a city barangay in a component city


Sanggunian panglalawigan of the province has authority to create

General power comes from congress


- Exercise power of control include power to create local government units

Barangay- sanggunian panglungsod and panlalawigan


Municipal barangay- sanggunian panlalawigan not panglungsod

Substantial procedural requisites in creation of LGU


LIP requirement- substantial
Procedural requirement

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

Income- department of finance

Population – national statistics office

Procedural requirements of creation and abolish


1. Conduct of public hearing or consultation
Made in accordance through law whether statute or an ordinance

2. Enactment of a law or ordinance as a case maybe


3. Plebiscite

Enact them into law by observing proper procedure


Art 2 sec 1-sovereignty resides in people and all government authority emanates from them- ultimately
people will have final say whether unit created or not through plebiscite

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

No land area requirement


But there must be a characteristic of a land area- they must be contiguous adjacent exception to
requirement of contiguity- if the barangay consists of 2 or more islands
Being adjacent
But according to foreign jurisprudence adopted in the Philippines, requirement aside from contiguity-
the law or ordinance creating the LGU must specify by metes and bounds the extent of the territory
Common to all LGU- specify metes and bounds the extent of territory if not specified null and void
creation
Reason:
Not necessarily in exact inch or centimeter- because LGU are conferred with governmental powers
exercise of powers is co extensive with their territory limits- cannot exercise beyond that except for
protection of water resources
Metes and bounds not definite will give rise to confusion as to whose ordinance to enforce in the
territory or exercise of governmental powers

Must be identifiable boundaries

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

Substantial and procedural requirements


Land area
Income- DOF
Population by NSO

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

Substantial requisites in the creation of a barangay


Only population required-
2 minimum requirements
HUC Barangays- minimum of 5K
All the rest minimum of 2K

No land area requirement


2 characteristics- must be contiguous or adjacent
Exception of requirement of contiguity or being adjacent- consist of 2 or more island- do not
apply rule of contiguity or adjacent

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

More financial help extended by Congress compared to mere sanggunian

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

Who can create a municipality- congress only can create


General rule congress-
In the past attempts of president to create municipalities- botched 18 municipalities by virtue of EO by
president- they all questioned declared null and void
Reason: president does not have the power to create exercise only supervision not control powers over
LGU

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

1. On grounds of technicality- prescription


Question legality of creation of municipality do it within reglamentary period of 5 years
In these case 30 years
2. Must be brought by the proper party
3. Acts of recognition made by the Ph government/ state
3 acts- 2 of them by congress and 3rd by the executive branch of government
2 acts of congress: enacted judiciary act of 1982- creating and establishing municipal courts throughout
the PH san Andres given one MCTC, effect, if Congress gave san Andres an MCTC, san Andres recognized
by Congress as a municipality
Need to increase legislative district in Quezon- created the 3rd district in the apportionment law- san
Andres was again recognized as a municipality part of the 3rd district of Quezon

DOF reclassified san Andres as a 5th class municipality


Recognizing San Andres as a municipality

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

Independent component and Component as one


Highly urbanized city as another

CC
ICC- income and population needed or income and land area

HUC- income and population only no land area requirement

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

At present valid creation of 16 cities

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

SC ruled that Cities can be created by conversion or merger


Not limited to 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

As long as they meet substantive requisite


Income 50M
Population 200K

CC- 20M to 100M


HUC- maintain 50M income

100M arbitrary afterall- SC capitalize on this to reverse itself


Congress did not change or increase the requirement to create municipality
Argument- population of 200K hard to reach, cannot populate overnight

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

3 cities upgraded by presidential proclamation


Puerto princessa- no longer part of Palawan
Tacloban in Leyte
Cabanatuan- plebiscite before end of the month there is already a presidential proclamation

Powers of LGU
2 categories of powers
Conferred by law to LGU

Dual nature of LGU


Public (governmental) and private nature (proprietary)

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

B. Sec 22 corporate power


Exercised pursuant to proprietary or private character

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

Only provide limitations but not to provide the power


Eminent domain- just compensation- not conferment of power but limitation of power in the exercise of
governmental power

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

Hierarchy of exercise of power:


1. Police power- most pervasive least limitable and cannot be bargained away
Come in conflict with certain constitutional rights- ex. Non impairment clause

Police power will always prevail


Applies whether the one exercising is the national government or local government exercising it

2 requisites for valid exercise of police power


a. Lawful subject- subject matter for a general welfare not for a particular sector or class of society
Designed for everyone not limited to a certain class

b. Lawful means
Means employed to attain lawful purpose must not be oppressive

Concurrence of the two


Even if purpose is lawful if the means employed is oppressive it will negate the exercise of police powers
Means does not justify the ends

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

Equal protection clause


Must not be discriminatory

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

Cockfighting law of 1974


Only one cockpit established in every town or city
Exception if the town or city has population of more than 100K
Municipality of X 30K population enacted an ordinance authorizing establishment of 3 cockpits
Not valid ordinance
Contravenes the cockfighting law- only authorizes one cockpit in every city
City host of nightclubs etc
Enacted ordinance:
Prohibit establishment of new night clubs and bars
Permits and licenses of existing night clubs and bars are automatically revoked under ordinance

Not valid ordinance


Ordinance cannot totally prohibit but can only regulate a trade which is not illegal per se
Nightclub or bar not an illegal per se business- therefore not subject to total prohibition but
mere regulation as to zoning (not near a school etc) as to manner of operation (what time to close)

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

Ordinance enacted in Butuan 3 major provisions affecting tricycle operators


Obtain franchise from city not LTFRB
Register unit with city not LTFRB
Obtain drivers license from city not LTO

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

Lucena case- involving terminals


Stage operation in that terminal put up by the city- no exceptions
Bus operators complained who have existing terminals

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

Sustained by SC- classification not based on substantial distinction


Hotel v. motel insofar as short time service concerned no difference

Sec 16 pertinent provision on police power- one feature of sec 16 is:


Area where police power can be exercised by LGU has been considerably broaden
Before: public health, safety protection of public morals
Now in sec 16- used to protect environment and ecology, promote employment, preserve culture
Police power liberally interpreted in favor of LGU
But not the 2 other powers- taxation and eminent domain- the two will amount to derogation of right to
property

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

C. Just compensation reckoning point


Jurisprudence
Local- apply the time of actual taking
National- either time of actual taking or time of filling whichever comes first or beneficial to property
owner

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

Congress- political question


LGU- justiciable question- brought as issue in expropriation proceeding

National- cannot bring issue of genuine necessity in court- political question


Local- the property owner can still bring that issue to court for purpose of resolution

Nature to determine just compensation- judicial in nature only the court


Administrative body offers and acceptable offer subject to approval of the court

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

Resolution does not have force and effect of a law


Ordinance has force and effect of a law

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

Issue of genuine necessity w/n power to expropriate or not- dispose with

Distinctions in the exercise of eminent domain by the national government on one hand and by the local
government unit on the other

Expropriation ordinance must be enacted prior to going to the court


Owner rejects owner- file expropriation ordinance first- legal basis of mayor governor or punong
barangay to file expropriation case in court
Must be ordinance not mere resolution

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

Expropriation of private property by the local government


Prior to expropriation there was offer to buy was rejected thus an ordinance passed authorizing mayor
to file expropriation case in court against property owner
Court fixed amount of just compensation: 15% percent deposited
But no other payment was made

Demand payment of just compensation as fixed by the court


6% first then if takes long 12% becomes forebearance of money already

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

Power to generate and apply resources


How is this power exercised? Enacting a revenue or tax ordinance
Aside from local taxes, other sources of revenue under LGC and constitution- shares of LGU on collection
of national taxes (IRA shares) at present 40%
Share in utilization of natural resources within their territorial jurisdiction

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

If tax measure, done in form of an ordinance


Taxing power- constitutionally conferred- congress cannot deprive of the taxing power of LGU
Role of congress- can only provide for guidelines and limitations in the exercise of taxing power

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

Usual proceeding observed


Power to tax and collect a tax cannot be delegated to any other person
Principle of uniformity of taxation
Progressive system of taxation

Tax proceeds- where will they accrue


Who imposes that tax, it will accrue to him
General rule
Provincial tax- province accrue
Municipality- accrue to them
Barangay- to them

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

Other aspect power to generate and apply


It can be loan grant or share in proceeds of nat res or share in IRA

Application of funds so generated


If ordinance required to impose a tax, and ordinance is also required to spend the
Appropriation ordinance

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

It must serve a public purpose

The court adjudged a LGU liable to pay damages


Negligence in maintaining the roads- uncovered manhole
Died because of it
Sued LGU and found liable the LGU awarding 300K pesos to heirs of deceased person
LGU does not want to pay what is your remedy?
Heirs of deceased person
Can he ask for garnishment of the funds of the LGU deposited in land bank of PH? no

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

2. And use corporate seal- registered with the DILG


Seal reflects the environment industry history

3. Power to sue and be sued


Governmental- general rule it can invoke immunity from suit
Proprietary- no

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

Reason: economy and accountability


Economy- no longer collect attorneys fees
Accountability- they too are public officers
Remiss in duty- civil case or admin case for dereliction of duty

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

Right to sue and be sued


Exception in exercise of governmental power they can be sued- eminent domain
Payment of just compensation
Cannot be used by LGU to perpetuate injustice

4. Power to acquire and convey real or personal property to a third party


Sale donation etc assignment
When conveying there are limitations
When properties conveyed there are limitations
What properties cannot be conveyed by an LGU?

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

Track of land to be conveyed- approval by the president of the PH

5. Power to enter into contracts


Requisites:
a. Power must be authorized by the LGU sec 22 expressly mentioned
b. Entered by the proper authority- general rule only the local chief executive who can enter into a
contract
Cannot be a treasurer for and in behalf of a city
Exception:
Vice governor vice mayor insofar as operation of sanggunian is concerned- head of legislative branch of
LGU
Xerox company to buy Xerox- yes he can enter

c. Concurrence or consent of sanggunian is needed


If not obtained consent, but mayor permitted, answer is voidable
Will not render contract voidable ab initio can be ratified by the sanggunian

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

Any of the 2 absent it is null and void ab initio


UNCLOS- archipelagic waters
Constitution- internal waters

12 mile from baseline or 12 miles from the coastline- territorial waters

Power to secure grants without necessity of approval of line agency or next higher agency
Except if the grant has national security implications

Grant in the form of firearms- needs approval of DND


If no implication of national security no more need of approval

Other powers in the LGC


6. Reclassification of lands- agricultural lands acquired can be reclassified in accordance to its use-
to commercial industrial residencial
LGC- power given to LGU devolved power
Conversion of land to DAR
Reclassification of the use of land
LGU no power to convert
LGU only to reclassify use of the land from original agricultural to residential industrial or
commercial

a. Agricultural land no longer fitted for agricultural purposes


Certify that land no longer good for agricultural purpose- agency which has the expertise- DAR

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

Mechanism to indiscriminate reclassification of land


15%-10%-5%
Limitations of LGC- to protect food security
Indiscriminate reclassification of land- no more fields to plant food/ rice

Power to close or open a public street


MMDA ordered opening of a street in makati
MMDA not a LGU does not have power to enact ordinance- opening or closure of roads can only
be effected by ordinance

Permanent and temporary closure


Permanent closure- no longer safe
Through enactment of regulatory ordinance
2/3 vote required
There must be sign-ages also- roads are closed or road block

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

7. Settlement of boundary dispute- nature of power


Quasi judicial function

Who are given this power?


Sanggunian panlalawigan panglungsod and bayan
Barangay- no more local government lower than the barangay- no lower political unit below

Jurisdiction:
Barangay- boundary dispute involving barangay belong to same city or municipality
City- panglungsod
Municipality- panlalawigan

Belong to diff municipalities


Joint sanggunian bayan where the 2 barangays are situated

Dispute between a town


2 towns belong to same province
Sanggunian panlalawigan of that province

2 towns to different provinces


Joint sanggunian panlalawigan of 2 provinces

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

Independent component city


Boundary dispute with Carangan
Sec 188 of LGC
Examine sec 188 the law is silent
Boundary dispute between a municipality and ICC- did not provide jurisdiction
Use BP 129- no conferred jurisdiction to any court or quasi judicial agency- the RTC has jurisdiction

Procedure- 3 steps:
Amicable settlement- elevated to them call the parties for amicable settlement
Failure to settle- formal hearing by that sanggunian

Due process must be observed


Sanggunian will make a decision
If not acceptable to either or both parties

Remedy of appeal- appeal to RTC

Naming and renaming- shared by national power


Before LGC- empowered is congress only
Congress cn concentrate on bills of more national concern

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

Sports complex in Manila by Atienza to Pacquiao


Cannot name a public structure to honor a living person
Even if he is the donor- condition of a donation to name in his name- cannot impose a condition
contrary to law

Under National historic institute- cannot make use of titles or affiliations


Don, governor, general, scout cannot be used anymore
Remove the title
Cannot change name of public structure more than once for every 10 years

Name of public school- recommendation of local school board


Hospital health center name- recommendation of local health board
Name of an LGU- subjected to a plebiscite
Name of public structure with historic significance- consultation and approval of NIH plus ordinance
what vote required? Unanimous vote

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

8. Power over PNP units stationed within their municipality


Constitutional provision of PNP civilian in character national in scope
RA 6975 was enacted by congress to implement it- making PNP attached agency to DILG

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

Can he remove? No power to remove even if they have power to appoint


Who can remove? the PNP

b. Operational control and supervision of PNP in the locality


Ordered to be deployed as to how to be deployed armed in uniform- PNP prerogative already
Order of deployment comes from mayor

c. Peoples law enforcement board


Disciplinary authority for erring police officers- in city or municipality

2 laws sources of municipal liability


Not only unit but also officials to the unit itself
The old law does not make the official liable only makes the unit liable while the new law makes both
the unit and official liable

Civil code provision Art 2189


Sec 24 of LGC

These 2 sources that can make LGU and/or an LGO civilly liable
Comparative approach

As to who can be sued


Art. 2189: only LGU can be sued for civil liability
Sec 24 of LGC: both LGU and LGO can be sued for civil liability

Subject to provision on immunity from suit


Depends upon function performed- governmental function invoke immunity of suit- construction of
road governmental function and thus cannot be sued

Basis of suit/ what cause of action


Art. 2189: COA is because of death of a person and injury to persons
Sec 24 of LGC: broader not only death of person but even damage to property
Uncovered manhole- car broken- use sec 24 not Art 2189

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

Doctrine of implied municipal liability


Local Government empowered to enter into contracts- requisites for validity
Proper party- concurrence of sanggunian- expenditure of public funds, appropriation ordinance enacted
and certification of availability of funds by the officer, duly notarized under statute of frauds

Failure to comply with substantial requisites- contract is null and void


Implied municipality liability- contract defective or no contract if the LGU derived benefits out of that
contract cannot invoke defects of the contract to avoid liability
Under estoppels to claim no appropriation no consent etc as long as LGU benefited- made to
pay liable to pay under the contract, or to assail the sale in the contract

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

Qualifications and disqualifications:


ACRER

Governors, city mayors of ICC and HUC


A least 23 years old

Municipal mayor
At least 21

Municipal councilor
At least 18
SK president
age bracket 15-17

when required age must be possessed:


on the day of the election

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

Edu manzano case


Vallez case
Dual citizens- are they allowed to run?
Constitutional law- depends on what kind of dual citizenship
By reason of RA 9225 disqualified: remedy, express renunciation
9225- voluntary dual citizenship
Manzano and valliez- not 9225 but by reason of conflicting laws
They can run- as long as file certificate of candidacy
No more dual citizenship divest American citizenship

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

Age possessed on the day of elections

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

Repatriate prior to election although has been already 2 years in PH


Granted in November repatriation- no, because lack of required residency
Citizenship qualified- not later than date of proclamation- technical in the residence requirement
Can only reacquire lost residency only upon repatriation- November time repatriated to your
residency
Lost mayoralty post for lack of residency

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

Educational requirement- ability to read and write


Specify Pilipino or any local dialect

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

14 months sentence- running for mayor


Issue: is he DQ under LGU?
Election law- 18 months and above
LGC- 12 months and above

Which law to apply? 2 reasons why we apply LGC


He is DQ apply LGC
a. The position he is running for is a local position- mayor
b. The LGC is a later legislation 1992 effectivity
Election code 1985
In case of conflict later law prevails

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

Grounds for DQ other than conviction of a crime


2. Removed by reason of administrative case
Meted out with penalty of removal or dismissal of service
Regardless if LGC or EC

Gross misconduct
Removed by reason of participated in a rebellion
Councilor- removed as city assessor of manila prior to his election in 1992

Eligible to run still- removed prior to effectivity of LGC


1990
1985
Prior to effectivity of LGC- cannot retroact provision of the qualification had the 2 been removed from
office when the new LGC had taken effect they should have been removed

Remove the DQ- apply for executive clemency


Applicable in administrative cases/ criminal case but except impeachment case not available by express
provision
3. Fugitive from justice
Case filed against you, escape in order to avoid prosecution
Or
Pending case sentenced and you escaped to avoid service of penalty

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

5. 3 consecutive terms in office


True to all local elective officials and congressmen
Senators and vice president- 2 consecutive terms
President- one term

8 instances including the updated case of 3 consecutive terms as a ground for DQ


Borja case v. COMELEC
1. 1988- Capco elected vice mayor his term until 1992
But 1 year after 1989, his mayor died
By operation of law capco assumed position of deceased mayor in 1989 served until expiration of term
of office in 1992
1995 he won again
In 1998 election is he eligible to run?

Elements of 3 consecutive terms


He must have been elected for the same position for 3 consecutive terms
He must have served completely the 3 consecutive terms

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

1995 he won no more EP


1998 he won again
Is he eligible in 2001?
a. Since there was a declaration of failure of election- not considered elected at most he was only a
presumptive winner and defacto officer when he assumed office
b. He did not serve completely the 3 consecutive terms only 6 months
c. Severance from office is involuntary- by virtue of court order
Thus the first term of 6 months does not count

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

SC did not buy his excuse- he is DQ


Who elected in the office- the same voters, candidate the same
Only status is different
Municipal to city mayor still the mayor
Same territory unit did not increase by 1 inch the territory he governed
Will be subject other municipal mayors to convert their towns into cities to run again and circumvent
the law

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

Voluntary severance- filed his COC for councilor in may


Not anymore eligible

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

Vacancies and successions


2 kinds of vacancies
Permanent and temporary

Causes of permanent vacancies- enumerated under the law


Death- natural cause
Permanent disability

Resignation which is voluntary


Removal which is involuntary
Failure to assume office- forfeit the office within 6 months- election code provision

Disqualification as a ground for removal

Elevation to the next higher position


Covered:
Vice mayor and highest ranking sanggunian member
By operation of law succession

Fill up permanent vacancies


2 modes of filling up permanent vacancies
1. by succession
2. appointment

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

Who can be appointed?


2 rules
a. If vacancy created by some one belonging to a political party appointee must come from the
same political party- to maintain party representation in the sanggunian

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

AC died as incumbent mayor –permanent vacancy


AA vicemayor took over
Created vacancy of vicemayor- elevation to the next higher level
T succeeded to position of vice mayor
Vacancy in the councilor
L became #7 in rank
#2 now #1
#3 now #2

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

T created the last vacancy


L did not create a vacancy in the position of the sanggunian- if ever there was a vacancy it is only the #8
rank but not the position he is still a councilor
T lost rank as #1 councilor but also his position as councilor by assuming position as vice mayor he
vacated his position as councilor
No longer a councilor
Do not vacancy to L- T created the last vacancy

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

Who can be designated as OIC


Vice governor- can be
Vice mayor- can be
Any member of the sanggunian- can be
Department heads- little mayor little governor , provincial administrator city administrator

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

Local chief executive-

Vice mayor vice governor


Temporary vacancy
Acting vice mayor vice governor
The law is silent- no such thing as acting vice mayor or governor the law does nto so provide
Only a temporary presiding officer may be designated
But not a acting vice governor or acting vice mayor

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

Remedy in their own rules and regulations

Wilson Gamboa case- vice governor became temporary vacancy


Can he still preside in the sanggunian of Iloilo? Separation cannot preside and at the same time approve
the ordinance while the governor is absent

Who will become temporary presiding officer?


Not the highest member of the sanggunian- only in permanent vacancy but not in temporary presiding
officer
Answer: one chose among themselves not necessarily the highest ranking

Sanggunian member- temporary vacancy


Who will fill up the vacancy 1 2 3 absent
No need to fill up- for as long as there is a quorum they can continue
Proceedings in the sanggunian can continue

If no quorum- adjourn
No such thing as acting councilor

No prohibition on midnight resolution only midnight appointment


Ask governor to appoint an acting councilor to act as such until new set of councilor should have been
elected and assumed office

Ordinance making power of sanggunian


Power of local government exercised- through sanggunian by enacting ordinances
Regulatory ordinance- police power, zoning ordinance- exercise of police power
Power to generate funds
Expropriation ordinance
Revenue ordinance

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

In order to convene legally there must be sufficient number of member-quorum


Simple majority present to constitute quorum

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

2. Can they enact it validly in 1 day


Yes because there is no prohibition also the requirement that the 1st 2nd 3rd reading only applies to
congress does not appear in the LGC as a restriction for the sanggunian unless under their rules of
procedure specified therein that the 3 readings done on separate days

Power of vice governor / mayor


Head of legislative department not only presiding officer in the sanggunian
Other powers:
Sign vouchers for operation of the sanggunian
Enter into contract in relation operation of the sanggunian
Limited power of appointment- plantilla positions in the sanggunian
The casuals still the mayor or governor will appoint

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

Grounds for recall


Congress: explusion ground is disorderly behavior only
Not grave misconduct
Absences

Ground: loss of confidence which is a political question

2 general steps in recall


1. Initiation of the recall proceedings
2. Recall election

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

Only one mode of initiating recall now through signature vote


What percentage vote is required: variation of percentage of vote to be obtained n the signature vote
10%
15%
20%
25%
Dependent on the number of population of the unit
The higher the population of a unit the lesser is the percentage required
Graduated:
Barangay use 25%
Pangasinan- use 10%, more than a million voting population

Prohibition in initiation of recall


Limitation:
Cannot do it 1 year after assumption of office
Cannot do 1 year before next election

Prohibited in 1st year- ground for recall is loss of confidence


Just elected by the people just obtained fresh mandate from the people negate loss of
confidence as a ground honey moon period

Last year of the term


Election is expensive and devisive cheaper to wait for next regular election than to conduct an election
where the winner will serve for less than 1 year

Can initiate recall only once during the term


Cannot initiate again within the same term

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

Reglamentary period to conduct a recall the midyear only


Initiate recall during 1st year as long as recall election held during the midyear
Initiation of recall- 1st year can be done
Prohibition there of recall election applies during the 1st year and the last year but not during the mid
year
Initiation can be started during 1st year as long as recall elections held during the mid year

Resignation of local elective officials


What makes resignation complete?
Tendering a resignation will not make it effective there must be acceptance by the proper authority to
accept resignation
For governors- vice governor mayors and vice mayors of HUC iCC- president
Who will appoint in case of vacancy will accept the resignation
Provincial governor- municipal or CC
Barangay regardless of punong barangay or councilman- to the mayor
Do not resign to the own barangay sanggunian
City sanggunian- to their own sanggunian

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

Additional limitation if the member of the sanggunian is a lawyer-


Should they be lawyers by profession
1. Cannot appear in a civil case where the local government is the adverse party
Javellana caase- 2 members of city council vs. municipality, hired as counsel one of the councilor
Conflict of interest

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

General rule: cannot practice profession during session hours


Physicians to him but cannot collect any doctors fee
No monetary compensation whatsoever

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

Can he be held liable for 6.03?


SC held no because that provision applies only to a government official who has already left the
government service by retirement resignation removal etc.
Punong barangay is still the incumbent punong barangay so 6.03 of the CPR does not apply to him
Apply only to PO who have left the government service
Nonetherless in that decision suspended Rellosa for 6 months unauthorized practice of law- practice of
law without seeking permission of the department head- DILG secretary
Valid defense of Rellosa
Invoke sec 90 of LGC
Allows members of sanggunian to practice their profession and being a punong barangay he is a
member of the sangunian fusion of power in the lowest level of government- presiding officer and
member of the sanggunian
Those covered by sec 90 need not obtain permission to practice because sec 90 is the permission itself

Local elective official


You have to make declarations like any public officer
SALN common to all
Disclose your business and financial interest
Cannot be a supplier or a contractor of the same unit

Exclusive distributor you are the exception

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

Divested the cockpit- divested to the legal wife


Conjugal property still
Acquitted n 3019
Defense:
Under LGC it is not the mayor who will give franchise it is the sanggunian how can he issue a franchise if
he does not have the power to issue the franchise the power belongs to sanggunian
But he was convicted under the LGC for holding interest in the cockpit- divested to the legal wife in
violation of holding interest in the cockpit
Penalized with a fine of 20K pesos only

Purchase any property forfeited in favor of the LGU prohibited


Do not use property of government for private purpose
Vehicles for official use only
Violation- technical malversation
Within the 4th degree of consanguinity or affinity they cannot transact

Municipal councilor become supplier in provincial


Or councilor in province supply a municipality
If the municipal is component part of the province falls under supervision of the province

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

Ordinance making power vested in sanggunian


Real delegation of power
Who comprises the sanggunian?
Local chief executive not part of legislative except punong barangay
Presiding officer is the vice governor vice mayor vice municipal mayor- separation of powers
Punong barangay still member of legislative- fusion of executive and legislative powers
If they are not available the regular presiding officer who is the temporary presiding officer?
One chosen among themselves not the highest ranking
But not acting vice mayor ,governor- only temporary presiding officer

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

Choose among themselves to be the temporary presiding officer


The presiding officer whether regular or temporary cannot vote except when there is a tie

Session- convene officially


Regular session- once a week except in barangay twice a month
Special session- who can call? Either by sanggunian via 2/3 vote or the local chief executive

Newly elected members june 30 noontime assume office official start


Can hold sessions immediately thereafter

During their first session two questions arose:


Can the newly constituted sanggunian enact ordinance during the very first session? Yes, reason: the
LGC does not prohibit
What about provision that they have tackle rules of procedure- 90 days to do that, on the very
first day fix the time date place of the session, once fixed the agreement form part of rules and
procedure which they are given 90 days to enact, there is no prohibition
Can they enact ordinance in 1 day? Yes unless prohibited by the rules, no existing rules yes but later
indicated in their duly adopted rules and procedure that should be followed

LGC does not prohibit enacting ordinance in one day


Do not borrow provision in constitution- applicable only to congress but not to sanggunian

Enactment of ordinance is in pursuance of exercise of governmental powers


Derogation of their rights- due process should be observed
3 kinds of due process observed
Procedural
Before the enactment
During the enactment
After the enactment

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

Simple majority what vote must be obtained?


Caballero case: 8 votes
How to arrive at 8? 10 regular members
5 1st district
5 2nd district
Add 3 exofficio members

President of Councilors league


President of ABC
President of SK

Presiding officer

14/2 +1 = 8 is the majority

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

Can a vetoed ordinance still become a law?


Yes, 2 modes by which a vetoed ordinance can become a law:
1. 2/3 vote of the sanggunian to overturn
2. Fails to communicate the vetoed ordinance within 10-15 days as the case maybe

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

Enacted by lower levels sanggunian bayan and lungsod


Reviewed by the next higher sanggunian

Ordinance enacted by a province HUC ICC, no longer subject to review


Not president not DILG not congress
Assisted by the legal officer

Nature of power to approve ordinances by the mayor


Is it ministerial or discretionary? It is discretionary because given option to veto cannot use
defense of ministerial functions
Even if unanimous approval by the sanggunian

Publication of the ordinance


Can either be posting and or publication in a local newspaper of general circulation
Barangay municipality- mere posting of 2 copies of the ordinance is compliance
City- local newspaper of general circulation

Grounds for disapproval of an ordinance


Disapproved ordinance: only one ground
Reviewing authority the extent of its power to review limited to determination within its scope of
authority to enact the ordinance
Sanggunian enacted a sand and gravel tax? No only province sanggunian can enact
Outside compentence of the sanggunian/ ultravires

Enforcing and ordinance


Disapproved by the reviewing authority
Criminal civil admin liability? Only administrative no criminal no civil
Administrative liability is suspension or dismissal from service

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

If they belong to the line agency they are denominated as bureaus


Ex: departments- DOLE, DBM,DOH. DSWD

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

Implications: cannot be abolished by congress


Only by amending the pertinent provision of the constitution

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

3. By virtue of authority to law


The president of the Philippines
What law authorizes? E.O. 292, administrative code
Implication if an administrative agency created by the office of the president? It can be abolished by the
president
Power to create and abolish and can only abolish agencies whom he has created
But not those created by statute and constitution
Hierarchy of laws

Congress abolish an agency created by the president- it can be done

Do what branch do they belong to: executive


Except if designated as independent branches- COMELEC COA CSC OMBUDSMAN
Created to assist the president in enforcing the law- only president vested with the president
Leeway to delegation of his powers- qualified political agency/ power of control over them
Modify affirm substitute the decision of subordinates
Legislative- SET HRET COA
Judiciary- OCA

Powers of administrative agencies


Primary reason of their creation-

Special powers- quasi legislative power and the quasi judicial power
Quasi- violation of separation of power will be violated
Semi only

Quasi legislative- rule making power


Quasi judicial- adjudicatory power

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

How to distinguish? Tool of analysis:


If the rules promulgated affect the right of the general public it becomes a legislative rule
If the rule does not affect rights of the general public but only affects the internal workings of an agency
it becomes an internal rule

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

4 Requisites of validity of legislative rules:


1. There must be an authority of law to promulgate the rules
Authorization- from the law itself
No express authorization of law no exercise of quasi legislative function
Derive authority from law enacted from congress
Ex:
Election code – authorization given by congress the COMELEC shall within 90 days directed to
promulgate rules and regulations to implement this code
DILG to implement LGC and provide rules and regulations

Absent this express grant/authorization no power to make rules and regulations

Ople v. Torres case


A.O. National ID system created by President Ramos
Only issue IRR
Upheld by SC-only congress can impose a national ID system
Only implement a law enacted by congress

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.

2. Rules must be within the purview of the law


Hierarchy of laws
Purview of the law- (subordinate legislation)- A.O. cannot amend a statute or a law
Being lowest in the hierarchy they cannot amend a higher law

13th month pay


P.D. requiring private employer to pay employees to pay the 13th month pay formula provided in the
decree
DOLE directed to come out with rules and regulation to implement this decree
DOLE changed the computation not only basic salary included bonuses etc.

Cannot amend the law- lower law , an IRR cannot amend a law, must be issued within the purview of the
law

3. It must be reasonable, not oppressive excessive unjust confiscatory


Gleaned from provisions of IRR itself

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

Takes effects: date of effectivity in the law first, follow if there is


If silent, 15 days after publication rule

Can legislative rules be implemented even without publication- consideration of public health safety etc.
Immediately executory

MIDTERMS

Dinagat Islands case creation of a province


Requirement of land area, different island only states in LGC that applies to barangay, city,
municipalities , no province
But in the IRR- province was added
An IRR cannot amend the LGC but on MR, the SC reversed.
IRR correct to include the province- drafting of IRR there is participation of the oversight committee of
Congress
IRR supposed to be promulgated by the DILG by oversight committee of congress participated, it was
them that included it intention of congress really, joined with DILG in drafting the IRR, those omitted
was included in the IRR

Due process has to be observed in rule making


3 requirements of due process
Administrative code
1. Public hearing/ consultation
Administrative code states public participation
That is before promulgation- due process must be observed

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

Power embodied in a single person


He must be the one to sign

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

2 stages in exercise of quasi judicial function of an administrative agencies


1. Investigation stage
Acts performed that are in consonance with first stage
Issuance of sub poena
Swearing in a witness
Reception of evidence
Marking of evidence

Merely ministerial acts in nature- can be delegated to a subordinate

2. Decision making stage


Arriving at a decision
Quantum of evidence- substantial evidence
Nature of decision making is discretionary cannot be delegated
Must be performed by the officer who is actually conferred the quasi judicial power

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

Principle of sub delegation of authority

Only ministerial functions can be delegated- decision making remains with officer upon whom power of
quasi judicial power has been vested on

Due process also required


2 kinds of due process in exercise of quasi judicial
Procedural
Notice and hearing
Notice- actual or constructive
Hearing- 2 categories
1. Mere opportunity to be heard- not much trial type, parties submit pleadings in labor cases,
no formal investigation or trial type hearings position papers right is only opportunity to be
heard
2. Trial type- formal investigation
Few instance where this can be applied
Per jurisprudence
a. Adjudicative fact at issue- admin case pending involves adjudicative fact brought as issue trial
type proceedings conducted
Facts that need to be established elicited through a trial type hearing

b. Vague testimony of witnesses need to clarify them


Cross examination

c. When the rules so requires

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

Clear and convincing evidence – new kind of evidence


Removal of judges- not just substantial evidence

Not all administrative agencies conferred with quasi judicial powers- very few
But all admin agencies can exercise quasi legislative powers

Quasi judicial function of admin agencies


Can the admin agency interpret the law? Will it violate the separation of powers? No it will not violate-
they are in the better position to interpret the law they are to enforce because of their expertise

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

Can an admin agency grant immunity from civil criminal prosecution?


This pertains to the court

Except when the law so allows:


PCGG- Volunteer as witnesses to ill gotten wealth cases
CHR- volunteer witness in cases violation of human rights
COMELEC- can grant transactional immunity for violation of election cases (vote buying cases)

Can an admin agency issue subpoena and cite for contempt?


Only when the law so allows again- general rule no

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

No grant of citing for contempt-cannot cite in absence of express grant

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

Rate fixing power


Fixing of rates of gasoline price tuition fee toll fee electricity text messages telephone calls
Who has the inherent power to fix rates?- congress
When congress exercises it- legislative power of congress
Delegates to admin agencies- fixing rates becomes quasi legislative
But rate fixing when exercised by admin agencies can also become quasi judicial- when does it happen?
If the order of the agency is issued only to one or two parties not to everybody, it is quasi
judicial
No hearing violation of due process questioned

Quasi judicial- there must be notice and hearing


Quasi legislative- no notice or hearing only publication required

Administrative proceeding 2 stages- investigation and adjudication or decision making


Exercise of quasi judicial
Doctrine of exhaustion of admin remedies- before seeking judicial remedy avail of admin remedies when
so required by law
If not required by law a party can go straight to the court without violation of the dear doctrine
But when required by law – and he goes to court right away he violates DEAR doctrine
Ex: Katarungang Pambarangay
Vulnerable to dismissal-party fails to exhaust remedies

Preliminary resort/ primary jurisdiction

Exceptions to DEAR doctrine:


1. Decisions of cabinet members
Power exercised is quasi judicial need not be appealed to office of president already considered as
decisions of the president
If power is not quasi judicial do not apply DEAR doctrine

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

Preliminary resort/ preliminary jurisdiction


Availed because of their expertise special knowledge
Effect of the failure to avail:
DEAR- vulnerable to dismissal, lack of cause of action not lack of jurisdiction

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

Decision of administrative agencies


Governed by sec 14 of art 8
Admin agency comes out with a decision are they required to comply with sec 14 art 8?
Naguiat Case
Covered by the requirement in constitution
State facts and law upon which the decision is based

Memorandum decision is the exception

Does the principle of res juricata apply in admin cases?


Yes it applies if it is in the performance of quasi judicial function
Arrived at decision pursuant to exercise of their quasi judicial function
Exception:
Except if the quasi judicial proceeding is a citizenship proceeding
Exception to the exception:
If there is a full blown hearing, participation of the solgen, decision is affirmed by the supreme court

Judicial review of administrative decisions


Decisions of admin agencies subject to judicial review?
No problem if the law creating the admin agency provides for a court to review
But if the law assigns the SC without its consent- reviewable by the CA not SC

If the law is silent is judicial review still available?


A decision of LA prohibits judicial review upon his decision, can it be done?
Decision prohibits in both cases still judicial review is available
Whether law or decision of a lower court or body it cannot prohibit judicial review
Art 8 sec 1 2nd phrase- determine grave abuse of discretion was done amounting to lack or excess of
jurisdiction

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

Decision not pursuant to quasi judicial but it is administrative or quasi legislative?


Who can exercise review?
It can be RTC court of general jurisdiction as long as not quasi judicial
Cannot go straight to SC as a general rule- exception when the decision is not quasi judicial there
must be allegation of grave abuse of discretion through certiorari or constitutional issue involved

Decisions of forfeiture proceedings in customs


Collector of customs- Commissioner on customs- CTA

Change or correction of first name


Local civil registrar-
Intracorproate corporate controversies- RTC

NAPOLCOM- sec of DILG- CSC


Pollution adjudication board- mine tailings

Determine whether an area shall be reclaimed or not


DENR
Implement the reclamation- Philippine reclamation authority

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

Issue raised purely a legal question


Mandatory- by all means
All legal questions resolvable by the courts

Mixture of question of fact and law


They can be subject of review both of them if meet requirements of : 1. Two issues are
intimately related, cannot decide question of law if don’t inquire to question of facts- assimilation of fact

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

Comelec Division- quasi judicial


Pre proc controversy
Disqualification cases
Election contest

Can suspend own rules of procedure

Right to vote
Who are allowed to vote in the PH?
Congress mandated to allow qualified Filipinos abroad to vote
Implemented by congress

Filipinos abroad- voters registration act


1. Overseas Filipino workers
2. Immigrants / green card holders- still Filipino but permanent visa entitling them to stay there
permanently including right to get employed
3. Dual citizens

Anna 10 years ago 18 years of age went to HK to seek employment as a DH


Worked and never came back to PH
After 10th year contract expired, his boy friend gave him an ultimatum
Come home or look for another girl to marry
Anna came home to PH for good
But its election time registration brother running for public position asked her to register
Anna went to register
3 substantive requisite
ACR
Age- at least 18, can register even when 17 as long as by may election turned 18 already
Citizenship- Filipino either natural born or naturalized
Residence – 1 year in PH and place to vote 6 months

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

Immigrants / green card holder


Allowed to vote?
Yes but not all of them
Who only? Qualify:
Macalintal case

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

Usually DQ of insanity or imbecility

Procedural requirement to vote- registration


Continuing system v. general system
General system- choose certain dates to register- all Sunday of july are scheduled for voters registration
Continuing- practically year round except 120 before next election
Special election 90 days before special election
Prohibitory period before election

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

Remedy of inclusion and exclusion


Denied of registration of election registration board- file case of inclusion
Flying voters- exclusion
Who can file for a exclusion case:
Any registered voter
Any representative of political party
COMELEC en banc
Any election officer

Who has jurisdiction: MTC

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

Voters list has a lot of flying voter- exclusion improper


Voters list procured by fraud- annulment of list of voters
There will be new registration after annulment- give opportunity to purge the flying voters

Right to be voted upon


If right to vote requires 3 substantive requirement ACR + registration
No property, religious other requirement except ACR + registration

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

What is effect of double registration?


Limit to first registration in baguio and dagupan
First registration in baguio is valid
Second dagupan reg is invalid because did not cancel her first registration

Determine in eligibility to vote even eligibility to run for office


Not qualified voter in dagupan
Not deemed to have registered in 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

When should it be possessed?


Not later than date of proclamation but retroact to day of application for repatriation

1 year in PH and 1 year in locality, they can overlap

Domicile of origin will prevail


Changing domicile of origin to domicile of choice

Repatriated to PH citizenship depends upon original citizenship


NB to NB
Naturalized to naturalized citizen

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

Express renunciation citizenship is brought about by conflicting law- filling of COC


Educational requirement mere ability to read and write

Local position- include local dialect

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

DQ under lone candidate law


Vacancy in senate or HR
Only by special 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

Procedural requirement- right to vote


Not enough that you have ACR must register
Right to voted upon not enough ACRER
Registration is to voters, filling of COC intended to right to voted upon

Proforma filling form required form obtained at COMELEC


Filled up
Procedural requirement must be sworn to

Notarized the sworn COC- showed only CTC


Noted on jurat- presented CTC no other competent evidence of identity
Sought to be DQ that the candidacy is not properly sworn to in accordance with election laws and
Notarial law of 2004

COMELEC DQed him- appeal to SC


He is eligible- not his fault he went to lawyer in good faith
Sanction lawyer for disobeying the 2004 notarial law

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

Local position required- answer different, valid


Congress can prescribe qualifications for local elective officials

Official name as appearing in live birth


Used his screen name- yes but must be known for that name

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

Nature of power of COMELEC to accept COC


General rule: ministerial
DQ in last election, not necessarily DQ in next election might be qualified already

Deadline fixed by COMELEC to file COC


Refuses to accept by COMELEC cannot compel by way of mandamus after the deadline for COMELEC to
accept

Multiple filling of COC


Not eligible for all positions filled for
Remedy:
Withdrawal before deadline of filing
As if did not file any COC after deadline

Qualifications so stated in the constitution and in the law


Prohibited as if have not filed any certification of COC withdrawal must be made prior to the deadline of
filling
As if filed 2 COC neither is a valid COC
Effect of filling- 3 consequences rules on effect
1 and 2 concern public officers
3 private employee

Elective and appointive 1 and 2


3 mass media practitioner employed by private communications company
Elective official filling a COC
Not deemed resigned
Section 67 of the omnibus election code has been amended by sec 14 of 9006
What is sec 67 of the omnibus election code, only 3 elective officials are not deemed resigned, those not
deemed resigned those running for pres, vice pres and seeking reelection, old provision of law

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

Private employee in mass media broadcast industry


Journalism industry deemed resigned when so required by their employer
Ted Failon deemed resigned if required so by ABS CBN upon filling COC

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

Who between the 2 should be proclaimed A or B


Still b despite letter of withdrawal his withdrawal not valid not in proper form and sworn to
Formality has to be observed

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

for punong barangay and councilman- non partisan


can they be substituted: yes by way of exception
who among the candidates may be substituted despite not belonging to political party
barangay officials non partisan

who can be substituted?


member of same political party
cannot be substituted by the wife not member of political party
unless wife filed substituted COC and takes oath as member of that party
attach oath to the COC

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

Answer: candidate COC was cancelled cannot be substituted


Where to file COC
Reglamentary period to file?
Those elected at large in the PH
President
Senators
Congress
Central office

All the rest filed with the board of election inspectors

Deadline- mid day on election day


Before noon time on election time

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

Not yet considered a candidate not considered campaigning

3 grounds for DQ cases


1. if candidate is a nuisance candidate
Filed COC without intention of wining not serious he is there to confuse make mockery of the election
Strict moto proprio COMELEC DQ on ground for nuisance candidate
Even w/o a petitioner on the positions of president vice president and senator

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

2. violation of the election code whether criminal or administrative in nature


found guilty it will give rise to DQ as a candidate

3. falsity of material representation in the COC


2 requirements
a. Falsity must be a material matter
Must be done deliberately

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

Not material falsity


Educational requirement for a candidate able to read and write only
b. Must be done deliberately
COC how long have you been in leyte- residence requirement is 1 year
DQ because of falsity of material representation
Although false one who alleged falsity must also allege that done deliberately- honest mistake when she
wrote 7 months only

Effects of a DQ case
Jurisdiction- COMELEC by Division (quasi judicial)
Day of election- may 10 election day

If before election day before may 10


X DQ case becomes final before election, X cannot be voted upon
Still obtained certain votes- considered stray votes

If DQ case does not become final before election day


Remedy is MR to the COMELEC en banc through a motion for reconsideration
Decision of en banc affirming the division to not become final bring it to the SC on certiorari
Not make ruling before election

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

What happens with the case because not yet final


X voted upon counted canvassed and proclaimed if won and assume office
DQ case not final will continuance of the case

Eventually SC upholds the DQ of X, then X will be unseated

Even if withdrew cannot go back


Enforced- mere act of filling vacated office already

Luna case- withdraw and withdrawal is valid


But COMELEC cancel COC of the substituted
Cancellation or denial of due course requires due process cannot be done moto proprio by the
COMELEC

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

COC who has been cancelled cannot be substituted

Campaign electoral campaign


Amendatory law
RA 9006
Fair election act

Significant features of 9006


Restoration of candidates right to political advertisement with limitations

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

Print media- limitation as to size frequency of advertisement

TV movie personality running for election cannot put on show their movies
Cannot broadcast their TV movie shows

To level the playing field

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

Campaign period not yet started but tarps already posted


Went to SC question the constitutionality and validity of COMELEC resolution
2 grounds
1. Freedom of expression
2. Violative of non impairment clause

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

Only instance no permit- when in freedom park


If place where rally conducted is a private place- ask permit from the owner

Campaign materials
Made of cloth paper or cardboard including tarp
Not made out of plywood tin sheets

Limit insofar as size in concerned


Common poster area

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:

COMELEC resolution prohibiting conduct of exit poll surverys


Violation of freedom of expression
No violation of secrecy of ballots

Prohibition to publish results of surveys 15 days before election- violative of freedom of expression

Gen rule: with political party


3 pesos per voter

Not with political party 5 pesos per voter

Municipality with 10K voters- 30K can only spend


Independent 50k limit

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

subsequent offenses: 2K-60K fine


again does not apply to barangay candidates
and perpetual disqualification to hold public office
campaign period
premature campaigning
2004 election: automated election, SC nullified the contract between mega pacific and COMELEC
Advance filling of COC as early as january
If automated, advanced deadlines of filling- printing of ballots with the names of the candidates

Start of the campaign period- 90 days before election


Day before 90 day period of campaign is the deadline for submission of COC

In local 45 days before election is the campaign period


Deadline is day before start of campaign period

X filed COC in Jan 4-5


After filling motorcade around the town- act of campaigning already, solicit votes
Sought to be DQ for violating of election law on premature campaigning

DQ by COMELEC he filed MR en banc affirmed division on DQ


Certiorari to SC- affirmed the decision of he COMELEC en banc
But he was proclaimed DQ case did not become final before election

MR in the SC, SC reversed itself


Reason of SC
When X conducted the motorcade supposing to be a premature campaigning not yet a candidate
He was only a candidate for one purpose for purposes of printing the ballot
In the real sense he is not yet a candidate can become candidate only after the deadline of filling
The original deadline under the law not the one fixed by COMLEC for the early printing of ballot

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

2nd Monday of may every 3 years


2 elections- October in barangay

ARMM election sought to be cancelled


Purpose of not holding election postponing it to later date is purpose of synchronizing with the regular
election
Vacancies validly appointed by the president

Election hours start 7-3 if manual


7-6 if automated
Clustering of precincts – more expensive PCOS machine

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

Cannot be soldiers even with agreement of candidates


PNP civilian in character- no one challenged in one special election

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

2. Will the outcome of the election still be affected?


If the difference between the losing candidate and winning candidate is wide there is no need of special
election
If neck to neck election, special election in lieu of declaration of failure of election infringe outcome of
election- special election may be held

Special election takes place when:


1. If an election has been postponed- force majeure
2. Declaration of failure of election- normally petition filed so that COMELEC declares FOE
Remedy of losing candidate
Dependent on 2 factors- go together

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

Special election coincide with midterm election


Declare vacancy enact a law declaring the position vacant calling for special election- #13 will take the
vacant slot- serve unexpired portion of the vacated seat

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

Election starts at 7AM


BEI opens at 7
And ends at:
Manual 3oclock
Automated- 6oclock

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

BEI administer and count votes in the precinct level


Before counting the ballots, procedure is determine how many voted based on the records
Of 200 registered voters, 140 casted their vote
100% outcome, statistically improbable

200 ballots are issued if only 140 cast their b


Ballot what do you call the 60 unissued unused ballots
When counted by poll clerk, 145 ballots casted
Excess ballot- do not confuse with unused ballot

Disposed not counted


Poll clerk without looking at content will at random pick out 5 and place in spoiled ballot compartment
Correspond with number who actually cast their ballot

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

Effect of failure of chairman to affix signature at back of ballot


.1 upon the ballot- ballot remains valid even if does not bear signature of chaiman
Violation of election offense administrative in nature

No stray ballot- applies only to one vote in the ballot, one candidate

Appreciation of the ballots

Principle of idem sonnam


Names of candidates sound the same way
Equate Tabignan with Tabani- yes the same under this principle

Principle of neighbor hood rue proximity rule


Gen rule: the name
The voter wrote his choice velasco but there is no candidate surnamed velaso running for kagawad but
the punong barangay has lot

Velasco opposite barangay kagawad-


But there is candidate for punong barangay- can still credit

One case in barangay election


Ballot
Name of candidate at upper right hand corner
- Not anymore too far from the blank space

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

Equitity of the incumbent room credit room to reinconvent rule


Block voting rule
Senators- candidate

The voter wrote cayetano


2 cayetanos both running for first time
Normally what comes to your mind
But under the bloc voting room, enrile sotto Estrada enrile

Assuming party is nationalista-while others are independent caididates


Names listed in

Enrique gil vs. gil antos councilor is voted as gil only


Credit to fill doctrine predominance of surname

Announce outome from resident up to last one


No longer change outcome without consent of comelec

If not announced can still change

BRI comes out with election return


Post 1 copy of ER in the polling place within 48 hours
Other election returns,

Election return intended for board of canvassers


They have to placed In an envelope – closed and sealed signed and thumb marked by the BEI
Placed in ballot box and padlocked and whole ballot box must be personally delivered by the BEI to the
board of canvassers (BOC)

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

Canvassing there will be problems encountered by the BOC


Board of canvassers- depends of what level
President/ vice- congress jointly
Senators/ party list- comelec enbanc

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

1st problem encountered


Copy of ER intended for BOC did not reach the BOC
Yes
Missing return- no recount, use other authentic copies at least 8 copies only copy missing is for the BOC

2nd return full of snow peak


Tampered return- the same as missing return- no recount use other authentic copies if there are

3rd all copies missing or tampered


Time of recount

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

5th output of BOC if BEI is ER, BOC is COC- certificate of canvass


Required to post a copy on the canvassing center within 48 hours

Unauthorized removal of COC- electoral sabotage


If ER removed without any authorization ordinary election offense

Both required to be posted-

After canvass proclamation


Principles of proclamation-
1. There can be no proclamation if the canvass is not yet completed
Basis of proclamation is a complete not incomplete canvass- uncanvassed result will no longer affect the
outcome of the election

Still one precinct not canvassed margin of 50K- ye there can be proclamation already

Who shall be proclaimed? Winning candidate


BOC proclaimed losing candidate- held liable for election offense- failure to proclaim

How to determine the winner- plurarity vote obtains highest number of votes

If there is tie between or among winning candidates- must be broken-


a. If the tie occurs in position of president and vice president- one chosen by congress voting
separately
b. All others through draw lots- coin toss jack of five
In all cases under supervision of COMELEC
Suppose winning candidate is facing a DQ case can he be proclaimed? Yes since the DQ not yet final can
be voted upon votes counted canvassed and proclaimed and assume office

DQ case will continue

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

MR his DQ case failed to pay docket fee


Did not prosper- Comelec never acquired jurisdiction
Final 23 days before election- election day only 1 candidate
Unopposed candidate- only 1 vote needed
During election cayat cannot be candidate deemed DQ for failure to pay docket fee

Rejection of 2nd placer doctrine also applies in multiple positions


#8 councilor DQ, cannot proclaim #9 under same principle
#9 is also a loser
Remedy of #9- seek appointment vacancy in sanggunian filled up by appointment

During canvassing prior to proclamation- crucial stage in electoral process


If proclaimed, tapos na ang laban
Counsel of winner candidate during canvassing- secure your candidates immediate proclamation
Suppose counsel of candidate of other side of political fence- prevent proclamation of winning
candidate- within the bounds of law

Petition to be filed towards attainment of law- pre proclamation controversy


Limitation of pre proc controversy does not apply to all candidates
Manual election- only provincial city municipal
Cannot be congress senator pres vice

BOC cannot proclaim the winner- when pre proc filed

Petition to suspend proclamation


Solid grounds:
Wining candidate is facing a DQ case and evidence of guilt is strong
DQ case- nuisance candidate, violation of election code, falsity of material representation,
Pending petition to cancel or deny due course his COC
Petition denied- there will be a proclamation- remedy
Petition to annul the proclamation
Sufficient grounds:
Canvass not yet complete uncanvassed result can still affect outcome of election
There can be a manifest error in tabulation of votes

Both preproc controversy and suspension of proclamation toll running period of election protest (10
days only)

Declaration of failure of election


1 precinct- only ¼ of voter cast their vote- cannot low turnout of voter as long as voting took place
Did voting take place? If yes no declaration of failure of election
Statistical probability- ground
1 precinct 1 candidate obtained 2000 votes- 200 registered voters only

What if candidate obtains 0 vote in a precinct- no does not necessarily mean


Exception- bailiwick doctrine
You voted, battalions of relatives supporters voted but you got 0 votes

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

Barangay election will never be automated

Differ also on the issues that is raised


Manual 2 kinds of issues raised in preproc controversy-
1st, illegal composition and illegal proceedings in board of canvassers
2nd election returns receipt custody preparation transmission of ER

Comparative in pre proc in automated- only illegal composition and illegal proceedings
No ER because automated

Statistical improbability- pre proc manual


Anything that has nothing to do with BOC or ER- vote buying
Terrorism unless the one is BEI or BOC

Illegal composition- one member not qualified- not deputized why is he there
Presence of 3 when canvassing absent one illegal proceeding

Manual procedure who will acquire jurisdiction- pre proc controversy


Gen rule comelec division
Pre proc controversy- quasi judicial
If issue is illegal proceeding or composition brought first to BOC
Then appeal to division- ultimately division has final say disposing issue of illegal proceeding
composition

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

PPC-check by comelec if BOC did the correct thing


Prohibited intro of new evidences solely based on records of BOC to division comelec

Termination of preproc controversy


Under law there is an automatic termination dismissal of PPC when june 30 sets in
Date of assumption of office of the winning candidates
If by june 30 no resolution of PPC by comelec, case terminated, dismissed
And the decision of the BOC is deemed affirmed

Termination- in favor of winning candidate


BOC deemed affirmed
Without prejudice to election protest or quo warranto

Effect of PPC toll running period of quo warranto or EP

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

Ultimate remedy to file election protest or to file a quo warranto case


Can there be simultaneous filling of the two? Allowed under the rules issue here is w/n they can be
jointly filed or separately filed
Depends upon rules

Rules of court- tribunal RTC and MTC


While it allows simultaneous filling does not allow joint filling
2 filling fees simplify the issues

Others like HRET SET rules allow joint filling


Consolidated cases they are not courts only quasi judicial bodies

Distinction between election protest and quo warranto


As remedies
Purpose of the petition-
EP- determine real winner of the election
QW- is to oust from office the winning candidate

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

QW- 10 days from proclamation from president to barangay

Who can file the petition- petitioner


EP- general rule only losing candidates can file
QW- any registered voter, if local within locality, can also be filed a losing candidate also a registered
voter- filling not as a candidate but as a voter

Qualify losing candidate not all losing candidates can file:


Who among the losing candidates can file
President vice president governor mayor punong barangay- single positions, only 2nd and 3rd in
rank can file

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

Effect upon winning petitioner


EP- he will assume the position declared winner in EP loser will vacate winner assume
QW- winning petitioner will not assume the position he went as a candidate but a voter
Apply rule of succession or special election if still applicable
Senator or congressman position

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

What if client is a protestant for a municipal mayoralty position?


Original jurisdiction- RTC
Remedy if lost: appeal to COMELEC division
MR applicable only to provincial city regional and above congressional presidential but in municipal
barangay SK- no MR is allowed, appeal outright to COMELEC division

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

In a PPC, june 30 arrived- dismissed


Remedy of petition is case is terminated by june 30- election protest
Without prejudice to right of a petitioner in PPC to file EP

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

But both required to be posted within 48 hours

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

Prescriptive periods for election offenses


In both cases 5 years but reckoning point different
1. From date of commission

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

Grounds for dismissal of election protest


If not sufficient in form and substance can be dismissed
Sufficiency in form- protest may lack verification and certificate of non forum shopping
Substance- 4 jurisdictional allegations are not present
1. Filed by proper party in interest- losing candidate with particular rank and voted upon
2. Candidate who won was proclaimed
3. date of proclamation to determine prescriptive periods
4. Specify in the pleading the precinct where the alleged irregularity has been committed
5. Payment of docket fees

Proclamation based on an incomplete canvass


Remedy: annulment of proclamation

Board of canvasser if ER are incomplete- order BEI to complete the ER


Where will you bring at the first instance the issue involving illegal proceeding and composition- board
of canvasser at first instance then appeal to comelec division- quasi judicial

Election not held because of terrorism-petition to declare failure of election

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

LAWS ON PUBLIC OFFICER


Who can be considered as a public officer?
Important question because if a person is a public officer insofar as PH jurisdiction investigated by the
ombudsman and charged under Sandiganbayan and the laws of public officer will apply to him
Anti graft and corrupt practices act

6713- code of conduct and ethical standards for public officers

Commonly applied to all public officers


Main question who can be considered a public officer?
As per jurisprudence many factors to take into consideration yardsticks to determine whether a person
is a public officer or not but if we go to the major decisions of SC boil down to one-
Has that person been conferred with the sovereign function of the government that will make ultimately
the person a public officer

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

Position likened to cabinet member tasked to implement policies of government

Macalino case- project manager of a GOCC without original charter


Defense of not a public officer
SC sustained him
Reason- his unit or employer is a GOCC w/o original charter not a public officer
GOCC w/o original charter not a public officer cannot be charged with 3019 except when you occupy any
of the ff positions:
1. President
2. General manager
3. Members of board of director of GOCC

By way of exception considered as a public officer can be investigated by the Ombudsman and charged
in Sandiganbayan

Student regent in UP-state colleges and universities


1 mandatory member of board of trustee- is a student regent
Cash advance then did not liquidate despite repeated notice
Defense: no a public officer- I am a tuition fee paying student no salary grade no salary

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

Public officer classifications:


Elective
Appointive
Civilian
Military
National or local
Permanent temporary

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

Educational requirements depending on the position


College degree requirement- 2 years college, HS graduate, some none educational requirement but
holder of professional divers license

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

Licensure examination determine fitness to practice profession- board/bar


Not all positions require eligibility- primarily confidential positions co-terminous positions
Experience necessary or training
Normally expressed in years

Personal characteristics on certain positions


Judiciary CIPI
Ombudsman- PI, probity and integrity

Members of BEI- good moral character person of integrity

Elective labo doctrine of qualification- possession of qualification is a continuing qualification possessed


up to strat up to end of term applicable to appointive

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

Being immigrants- green card holder


Insanity feeble mindedness imbecility

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

Qualification must not be too specific to suit a particular person


Not tailored to suit a particular individual

De facto officer
Distinguish a de facto from a de jure officer and from a intruder or usurper

Legal basis in occupying the office


Dejure: has a legal title to the office
Defacto: mere color of title to hold office
Usurper intruder: no basis at all in assuming the office

Legal title can be conferred either by valid appointment or election


Color of title- appointment or election but there are defects that are involved or lacking procedure that
why mere color of title

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

In relation to herself/himself, invalid lack of good faith


W/n entitled to salary
Defacto officer entitled to salary- general rule no
Only those who have legal title to the office entitled to salary-
Only de jure not de facto if both are present
Defacto entitled when there is no de jure then he is entitled to salary

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

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