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Kwin
Kwin transcripts
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CONSTITUTIONAL LAW
CONSTITUTION
Primary source of understanding of political law is the 1987
Constitution.
DEFINITION
What is a CONSTITUTION?
It is the highest fundamental law of the land, upon which
all powers are founded, that would limit, divide, assign the
exercise f the powers.
DIFFERENT PARTS CONSTITUTION
1. constitution of government
2. constitution of liberty
3. constitution of sovereignty
Preamble does not form an integral part of the
constitution. We have it because we copied the preamble of
the US. But it is neither a source of obligation or a source of
rights of people.
CONSTITUTION OF GOVERNMENT. This provides for the
structure and the powers of government and the limitations
of on the exercise of powers.
You have the Bill of Rights as provision on liberty. And then
we have sovereignty which refers to the power of the
people to amend or revise the constitution or the
representatives.
DIFFERENT KINDS OF CONSTITUTION
As to origin:
1. ENACTED/CONVENTIONAL CONSTITUTION
-enacted by a Constitutional Convention.
2. evolutionary / cumulative constitution
-a product of history
3. fiat / granted constitution
-made by one sovereign for another
As to form:
1. WRITTEN CONSTITUTION
-not because it is in writing
-all other sources are found in one single instrument
-CHARACTERISTICS:
a. broad
b. brief
c. definite
2. not written constitution
-most sources are written are written but are scattered
-some parts are not written
-ex. customs and traditions
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A. PROPOSOAL
-KINDS OF CHANGES
a. revision (overhaul/change philosophy or principles
which constitution is founded)
b. amendment (not change the whole philosophy)
Q: Is the change of government a revision or an
amendment? Ex. change from presidential to
parliamentary?
A: REVISION. Because you totally change the
philosophy to be adopted as basis of the enforcement of
the provisions of the constitution.
Q: If you change the term of office of the president, is
that a revision or an amendment?
A: AMENDMENT
-WHO MAY PROPOSE:
1. Congress
-WHAT KIND OF PROPOSAL:
a. revision
b. amendment
-HOW:
At its discretion, congress may:
a. act as ConCon Constituent Assembly for votes
b. call for a Constitutional Convention for 2/3 votes
c. if they are undecided, refer the question to a
referendum for majority votes, separately (all
members of congress)
2. People
-WHAT KIND OF PROPOSAL
a. amendment ONLY
-HOW
a. initiative on amendments of the constitution
-VOTERS
You need 12% of the total registered voters
wherein each legislative district is represented by
at least 3% of its total registered voters.
These two must concur with each other OW the
proposal is invalid.
-SIGNATURE
The petition itself must be signed by the voters.
IOW you cannot only attach a blank papers to the
petition. (Lambino vs Comelec).
This is the reason why the petition for the
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CONSTITUTIONAL LAW
change of system of government from presidential
to parliamentary was dismissed by SC and
confirmed by SC because it was improperly done.
So if you were to propose an amendment
imitated by the people, they must sign the petition
itself.
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CONSTITUTION VS STATUTE
Both provide for how government should be managed or
provide for powers or limitation or the exercise of he
powers or define relationship between the government and
governed.
The difference is that, the CONSTITUTION is the highest law
of the land. So if it is n conflict of the statute passed by
congress, it should always prevail as the statute is based on
the constitution.
The constitution provides for the basic principles.
The STATUTE provides for the details because the
constitution cannot be detailed that might result to the
misunderstanding of the meaning of the provisions. It has to
be able to cover everything from today and future needs of
the government and the people. Statue provides for the
details of the broad constitution for effective enforcement
or implementation.
The constitution is the direct act of the people because
without their ratification, the constitution does not take
effect.
Whereas the statute is being only assed by the
representatives of the people through congress.
As to basis:
1. EMOCRATIC REPUBLICAN
-depend on the form of government that is provided in the
constitution itself
PHILIPPINE CONSTITUTION
-written
-enacted
-rigid
-democratic/republican
-presidential
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CONSTITUTIONAL LAW
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1987 CONSTITUTION
Going back to the kinds of laws used s basis in the
understanding of government and the relationship between
the government and governed, we also go into a particular
law that we will use in understanding the government.
EFFECTIVITY
When did the 1987 Constitution take effect?
You have learned that it is prepared by a Constitutional
Commission pursuant to Proclamation number 9 by then
President Aquino under the Revolutionary Government
consisting of 50 non elected by appointed members, from
the different sectors of society.
After they have drafted, it was ratified by the people on Feb
2, 1987. It was declared to have been validly ratified in Feb
11, 1987 by the Exec Order 50 by President Aquino.
Section 27. This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite held for the purpose
and shall supersede all previous Constitutions.
ELEMENTS OF A STATE
As you have learned in your first year, the study of political
law basically a study about the state and when you study the
state, you have to go about its elements.
From the POV of Political law, there are only four elements:
pg 8
1. people
2. territory
5
3. government 29
4. sovereignty
21
From the POV of International law, for a state to be
considered as such, two other elements must be present:
5. degree of civilization acceptable by the Family of Nations
6. recognition of the Family of Nations
PREAMBLE
We, the sovereign Filipino people, imploring the aid of Almighty God, in
order to build a just and humane society, and establish a Government that
shall embody our ideals and aspirations, promote the common good,
conserve and develop our patrimony, and secure to ourselves and our
posterity, the blessings of independence and democracy under the rule of
law and a regime of truth, justice, freedom, love, equality, and peace, do
ordain and promulgate this Constitution.
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CONSTITUTIONAL LAW
PURPOSES
1. to build a just AND humane society
2. to establish a Government that shall embody our ideals
and aspirations
3. to promote the common good (not general welfare)
4. to conserve and develop our patrimony
5. to secure to ourselves and our posterity, the blessings of
independence and democracy under the rule of law and a
regime of truth, justice, freedom, love, equality, and peace
1. TERRITORY ART 1
ARTICLE I - NATIONAL TERRITORY
The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which the
Philippines has sovereignty or jurisdiction, consisting of its terrestrial,
fluvial and aerial domains, including its territorial sea, the seabed, the
subsoil, the insular shelves, and other submarine areas. The waters around,
between, and connecting the islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal waters of the Philippines.
AFTER BREAK
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IOW it does not consist only of the islands. It also includes the
waters embraced in the archipelago.
TERRITORIES NOT FOUND I NTE ARCHIPELAGO
What are these territories? - all other territories
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CONSTITUTIONAL LAW
sued.
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ARCHIPELAGIC DOCTRINE
The waters around the islands, between or connecting,
regardless of the deepness and the wideness belong to the
internal waters of the Philippines.
How do you determine the internal waters of these islands
considering the Kalayaan Group of Islands and Scarborough
Shoal?
We adopt the straight baseline method. You determine the
outermost islands of the archipelago. You imagine an
archipelago that looks like a rectangle if we are to consider
all the islands in the archipelago.
You have to connect the outermost points of the
outermost islands by a straight line.
Because of this, it is considered that all islands inside are
considered internal waters. They are considered like rivers,
lakes and swamps, regardless of deepness and wideness
separating the islands.
They are not even considered maritime domain. They are
simply internal waters.
This had been objected to b the members of the UN when the
had the UNCLOS because they are saying that it is not fair
because while the Philippines has internal waters, they have
a claim over territorial seas or the maritime domain which is
12 NM from the normal baseline.
So they wanted us to redraw our internal waters in order hat
they would be able to determine the extent of our internal
waters.
And so this prompted congress in May 2009 that there should
be proper determination of internal waters or archipelagic
doctrine. They had RA 9522.
RA 9522
The law withdrew the baseline to comply with the UNCLOS
requirements for archipelagic state, in the process excluding
the Kalayaan Group of Islands and the Scarborough Shoal.
So what looks like rectangular becomes triangular now
because they were excluded.
So how are these islands now treated if they are excluded
from the main archipelago in the determination of internal
waters or the archipelagic waters?
They will be simply be treated as regime of islands.
So you will determine its terrestrial domain following
normal baseline, around the islands will be the basis of
determination of the extent of jurisdiction over the
waters. They are just simply considered as outside of
main archipelago.
the
the
sea
the
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CONSTITUTIONAL LAW
include the Kalayaan Group of Islands and the Scarborough
Shoal. So you will just focus on the main archipelago.
ARCHIPELAGIC WATERS
Then you go by the archipelagic waters. It would be from the
normal baseline to the outermost islands, 12 NM.
So inside are considered as internal waters.
MARITIME DOMAIN OR TERRITORIAL SEAS
Now you go by the determination of the maritime domain or
territorial seas.
You have 12 NM from the normal baseline of the outermost
islands.
INTERNATIONAL WATERS
Beyond that, that is considered as international waters.
CONTINENTAL SHELF AND INSULAR SHELF
TN you also have as part of our territory, continental shelf
and insular shelf.
This could be the continent that is submerged under the
water. While it is low tide, it is dry. So you will know that it is
still an extension of the island.
But while it is high tide, it is covered by the sea water, and it
could go beyond 12 NM from the normal baseline of the
outermost island.
PRINCIPLE OF CONTIGUOUS ZONE
Would that still be part of the national territory?
No. beyond the 12 NM from the normal baseline of the
outermost islands, it is no longer part of the national
territory.
The Philippines however has jurisdiction up to 24 NM from
the normal baseline. IOW 2 more NM from the end of 12
miles of the territorial seas.
Again, that is not part of the national territory as it is beyond
the 12 NM. But for purposes of implementing or protecting
our:
1. fiscal laws
2. sanitary laws
3. immigration laws
4. customs laws
We can run after these people up to 24 NM from the normal
baseline or 12 NM from the end of the territorial seas
consisting of 12 NM from the normal baseline.
This is the PRINCIPLE OF CONTIGUOUS ZONE. It extends only
up to 12NM from territorial seas. Although not part of the
territory, the coastal state may exercise jurisdiction to
prevent infringement or violation of customs, fiscal,
immigration and sanitary laws.
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CONSTITUTIONAL LAW
BASIS OF CLAIM AGAINST KALAYAAN ISLANDS
You have the HISTORIC RIGHT, allegedly fro the discovery of
Tomas Kroma, a Filipino from Bohol. He was a mariner.
PD 1956, on June 11, 1978, that was the declaration of the
discovery; that it was being discovered by a Filipino and
becomes part of the territory.
Effective occupation, that started with the family of Tomas.
They migrated but did not last. Then eventually the coast
guards took over.
Then we have the PRICIPLE OF CONTIGUITY because of its
proximity. It is nearest to us.
It is part of the CONTINENTAL SHELF under the straight
baseline method. RA 3046 and RA 5446, then we have RA
9522.
1. PEOPLE
PEOPLE AS AN ALEMENT OF THE STATE
Another element of the state is people.
From the POV of political law, the most important thing is you
must understand who are these people being referred to;
how is the word people used in the provisions of the
constitution
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ACQUISITION
OF
CITIZENSHIP
THROUGH
BLOOD
RELATIONSHIP
Insofar as citizen is concerned, title he holds is CITIZENSHIP.
So from birth, there are two choices, either jus soli or blood
relationship.
But in this jurisdiction, we do not recognize jus soli.
But if you are asked, once upon a time, did we recognize jus
soli principle?
During the American occupation, there was no definition
on who are citizens of the Philippines.
We were also not citizens of US and Spain, we were their
subjects.
Until the Philippine Bill of 1902 was passed in July 1, 1902
where there was a definition of Citizens.
Between Dec 10, 1988 (transfer of sovereignty from Spain
to US) to July 1, 1902, there was no definition as to who
were the citizens of the Philippines.
Thus the recognition of the principle of JUS SOLI, following
the law in America.
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CONSTITUTIONAL LAW
DEFINITION OF CITIZEN
Until there was that definition in Jul 1, 1902 by virtue of the
Philippine Bill of 1902 referring to all inhabitants, subjects of
Spain as of April 11, 1899 and the children of these
inhabitants.
USE OD JUS SOLI
Between Dec 10, 1988 to July 1, 1902, the jus soli was
recognized. In fact this was enunciated in the case of Roa vs
Collector of customs, then it was corrected when the SC said
we do not recognize jus soli principle. What we recognize in
the Philippines is only jus sanguinis.
But because even if the judgment of the court may be
erroneous, but because the judgment of the court has
become final and executory, the principle of res judicata
applies.
But we have never really recognized jus soli. It was only for
practical reason because of the absence of definition of
citizens during the American occupations first period.
ACQUISITION OF CITIZENSHIP THROUGH NATURALIZATION
Of course this refers to foreigners who wants to become
Filipino citizens.
How about stateless individuals? Can they be naturalized?
For as long as they have the qualifications required by the
law and none of the disqualifications, then they may qualify.
ACQUISITION OF CITIZENSHIP BY MARRIAGE not adopted
Then you have by marriage.
If a Filipina marries a foreigner and the law of the husband
foreigner will consider her as a citizen of the country, then
she will have the citizenship of her husband, at the same
time retain her Philippine citizenship.
In the Philippines, do we adopt the principle that one may
become a Filipino by marriage?
NO. if you are a foreigner, wife has to go through
ADMINISTRATIVE NATURALIZATION. She has to prove that
she does not suffer any of the disqualification, IOW, it is not
automatic.
ACQUISITION OF CITIZENSHIP BY ADOPTION not adopted
We do not also recognize adoption as a mode of adopting
citizenship in the Philippines OW what is the use of
naturalization if we recognize adoption.
IMPORTANCE OF CITIZENSHIP
Why is it important why we have to know who are the
citizens of the Philippines?
Because there are certain rights that can only be enjoyed
by the citizens of the country and enjoyed by the citizens of
the country or reserved only for the citizens of the country.
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KINDS OF CITIZENS
1. JURIDICAL CITIZENS
2. NATURAL PERSONS
FILIPINO CORPORATION
Who are considered Filipino corporation?
Hen the capital o9f that corporation is at least owned by
60% of Filipino citizens, natural persons.
RIGHTS FOR NATURAL FILIPINO CITIZENS
Examples are to run for public office and to be employed in
the government.
Sec 18, art 11 of the constitution requires that all public
officers and employees must be loyal to the Republic of the
Philippines and its laws.
So that any change of citizenship from a Filipino to immigrant
should be dealt with by law. That would be a ground for
dismissal from the service.
ART 4 SEC 1
Section 1. The following are citizens of the Philippines:
[1] Those who are citizens of the Philippines at the time of the adoption of
this Constitution;
[2] Those whose fathers or mothers are citizens of the Philippines;
[3] Those born before January 17, 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority; and
[4] Those who are naturalized in accordance with law.
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CONSTITUTIONAL LAW
age of majority and upon reasonable time elected Filipino
citizenship
e. those who are naturalized in accordance with law.
First paragraph of 1935 Constitution, who are covered
there?
Those who are defined as citizens under the Philippine Bill
of 1902 pursuant to the provisions of the Treaty of Paris, as
amended b Jones Law of 1916.
Who are the citizens of the Philippines under the Philippine
Bill of 1902?
It refers to all inhabitants subject of Spain of the Philippine
islands as of April 11, 1899 (exchange of
instruments/treaties bet Spain and US).
Who are the INHABITANTS?
a. native born, the indios of the Philippine islands
b. residents or inhabitants coming from the Spanish
Peninsulares who as of April 1899 were residing in the
Philippine islands and had chosen to remain in the Philippine
islands
c. those who were inhabitants of the islands of Spanish
papers n or before April 11, 1988
Tecson vs Comelec
Lorenzo Poe died somewhere n 1954. They were
wondering what was the citizenship of Fernado Poe Jr
because the father declared himself as a Spaniard as
indicated in his marriage certificate with his first marriage.
The grandfather, Lorenzo was an inhabitant of the
Philippines presumably because he died in the Philippines at
the age of 0s in 1954. So he must have resided in the
Philippines as of 1899.
Under the Philippine Bill of 1902, the subsequent children
of the inhabitants are considered Filipino citizens as well.
Because the father of Fernando was the son of Lorenzo,
then he must be a Filipino citizen even if he declares himself
as a Spaniard.
How could FPJ be a Filipino citizen when the father was not
married to the mother? If he is illegitimate, he must follow
the legally known parent and the legally known parent is the
mother, who is a US citizen.
According to opinion of the friends of the SC, FPJ was
recognized by his father. The 1935 constitution provides that
citizens are those whose fathers are citizens of the
Philippines. It does not qualify whether the father was
legitimate or illegitimate.
The child who follows the name of the father is presumed
to be recognized by the father. In the case, it is presumed
that FPJ was recognized by the father because of the fact
that after his birth, there is an affidavit of the sister of his
father that his father continued to cohabit with the mother.
So presumably he was recognized.
Because the father is Filipino, then FPJ is a Filipino citizen.
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CONSTITUTIONAL LAW
FILIPINA MARRIED TO A FOREIGNER - 1935 CONSTITUTION
But if the mother is Filipina, and there is a foreigner, under
the 1935 Constitution, she loses her citizenship because
there is a presumption that she acquires her citizenship of
her foreigner husband.
Thats the reason why the child during his minority has no
choice. He is considered a foreigner.
But he is given the option to elect Philippine citizenship.
The requirement however is that the mother must be a
Filipino citizen at least at the time of marriage to foreigner
father. And the child was born before Jan 17, 1973.
But if the Filipina is not married to the foreigner, the child
follows the citizenship of the legally known parent.
As far as the child is concerned, the legally known parent is
the mother.
ADOPTED CHILD OF FILIPINO FATHER
If father is a Filipino and the child is adopted, can the child
become a Filipino citizen?
No. In this jurisdiction, what we follow is the principle of jus
sanguinis. You cannot acquire Filipino citizenship by
adoption. There is naturalization for the child to acquire
Philippine citizenship.
The only exception to this is RA 9225 which is the DERIVATIVE
CITIZENSHIP under DUAL CITIZENSHIP ACT that even the
adopted children of a former natural born citizen be
patriated under this provision will become a natural born
citizen being a minor child, although adopted.
Again, adoption is not a mode of acquiring Filipino citizenship.
ART 4 SEC 1 PAR 2
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CONSTITUTIONAL LAW
EFFECT OF ELECTION OF FILIPINO CITIZENSHIP NATURAL
BORN
If he a natural born citizen if he elects Philippine citizenship
assuming that the mother was married to the father before
1973 Constitution and he is born under 1935 Constitution.
He elected Filipino citizenship before 1973 Constitution was
enacted, is he a natural born Filipino citizen?
Yes. He is presumed to be natural born. There is no
definition then.
Under 1973, there is a clear definition those who are
citizens from birth without having to perform any act in
order to acquire Filipino citizenship is a natural born.
To elect Filipino citizenship is perfecting or acquiring Filipino
citizenship.
Under that definition, a citizenship by election is not a natural
born.
So that if this person was born under 1935 Constitution,
elected Filipino citizenship under 1973 Constitution, he is a
Filipino citizen but not a natural born.
However, it is anomalous because while these two persons
are situated under the same circumstances, the only
difference is the date of election, one is considered a Filipino
citizen and the other is not.
Precisely this was corrected under the 1973 constitution. That
even those who are elected as Filipino citizenship are now
considered as natural born citizens. Apply retroactively.
So there is no more problem in determining whether he is
natural born or not. Even if he elected Filipino citizenship, he
is a natural born citizen, therefore qualified to run for office
that requires only natural born citizens.
MANNER OF ELECTION
How is election be made in order to be considered a citizen?
1. taking of oath of allegiance
2. participating in election by
a. running for public office
b. voting
c. actively campaigning for a candidate
3. declares under oath as a Filipino citizen
APPLICATION UNTIL 1997
Citizen by election applies only until 1997. Because if the child
was born after 1973, there is no need to elect Filipino
citizenship because he is already considered a Filipino
citizen.
So the cut off is 1973. Plus 21, that means 1994. Plus 3 years
1997 (3 years after reaching the age of majority).
He has to elect by the age of 21 or within reasonable period
of time.
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June 6, 2011
ART 4 SEC 1 PAR 2
[2] Those whose fathers or mothers are citizens of the Philippines;
RETAINING CITIZENSHIP
This refers only to children born in 1973 or thereafter
because upon effectivity of 1973 Constitution, if a Filipina
marries a foreigner, she does not automatically lose her
citizenship.
She retains her Filipino citizenship unless by her act or
omission she is deemed under the t5he law to have
renounces her citizenship.
So at the time of the birth of the child, as long as the mother,
although married to the father has remained a Filipino
citizen, the child is a Filipino citizen, regardless of the
citizenship of the father who is marries to the father.
MARRIED BEFORE 1935, BORN AFTER 1987
But if the mother was married under the 1935 Constitution
under which he is considered to have lost her Filipino
citizenship by virtue of the marriage to the foreigner and the
child is born only after the 1987 Constitution, what would be
the citizenship of the child?
It depends at the citizenship of the mother at the time of
birth.
If at the time of birth, the e mother has not reacquired her
Philippine citizenship, then she remains a foreigner. In which
case, the child has no choice. Both parents are foreigners.
And even if he elects Philippine citizenship, he cannot
acquire Philippine citizenship.
REQUIREMENTS OF CITIZENSHIP BY ELECTION
Because here to avail of CITIZENSHIP BY ELECTION pursuant
to the provisions of 1935 Constitution, TN of the
requirements:
1. born before Jan 17, 1973
2. mother is Filipino at least at the time of the marriage to the
foreigner husband
Even if the mother has become a foreigner at the time of
the birth of the child, the child has a chance of becoming a
Filipino by election upon reaching the age of majority or
within a reasonable period of time.
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CONSTITUTIONAL LAW
CITIZENS BY ELECTION ARE ATURAL BORN CITIZENS
Even those who elected Filipino citizens are now considered
as NATURAL BORN CITIZENS under the 1987 Constitution.
So regardless whether he has elected Filipino citizenship
either before or after Jan 17, 1973, the child is definitely a
natural born Filipino citizen.
You go back to the definition of the natural born citizens in
the 1987 Constitution, it includes those who elected
Philippine citizenship.
ART 4 SEC 1 PAR 4
[4] Those who are naturalized in accordance with law.
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RECENT
RULING
OF
QUALIFICATIONS
AND
DISQUALIFICATIONS
Now, for as long as perhaps you do not have all the
qualification but you do not suffer any disqualification, you
may apply for naturalization which could either be judicial or
administrative or by legislation.
JUDICIAL NATURALIZATION
Insofar as judicial process, it is very tedious. You follow a
particular procedure:
1. make a declaration of intent to become a Filipino citizen
2. file intent with the OSG
3. wait for 1 year as SolGen investigates whether you have all
the qualification
4. issuance of certification by SolGen that you are qualified
5. file a petition with RTC
6. RTC to acquire jurisdiction will order the publication of the
petition in a newspaper of general circulation and the official
gazette
7. hearing and reception of evidence
8. judgment and grant of petition
9. waiting period of 2 years
10. court schedules taking of oath of allegiance
REVOCABLE - JUDGEMENT ON NATURALIZATION
TN the judgment in the naturalization case will never become
final. Anytime it will be subject to revocation upon motion
by the SolGEn.
QUESTION ON VALIDITY OF NATURAZATION PROCEEDINGS
If there is any question on the validity of the naturalization
proceedings, in the case of Limkaichong vs Comelec, that
only the SolGen or the government can question the validity
of a naturalization proceedings in a DIRECT ACTION and not
in a collateral proceedings such as a petition for
disqualification of a candidate in an election case
Case: Limkaichong vs Comelec
There was a question on the qualification of the candidate
because Limkaichong who is now a congresswoman was the
child of a former Chinese citizen who applied for
naturalization.
According to the petitioner, the fathers naturalization is
invalid and therefore the father never became a Filipino
citizen. Naturally, the children are not considered Filipino
citizen. thus they ask for the disqualification of Limkaichong.
COMELEC dismissed the petition and SC reviewed by SC and
SC said that only the government or the SolGen can question
thevalidity of the naturalization proceedings.
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CONSTITUTIONAL LAW
CONSEQUENCES OF THE GRANT OF NATURALIZATION TO A
FOREIGNER
1. foreigner becomes a citizen of the Philippines
2. wife may become a Filipino citizen through
ADMINISTRATIVE NATURALIZATION
-there is no acquisition of Filipino citizenship by marriage
-by asking for the cancellation of ACR and by proving that
she suffers none of the disqualifications provided by law
-it is not automatic
3. as to children:
a. those who are already born at the time of the approval of
naturalization of the father, consider whether he is a minor
or of age at the time
a.1. if he is already of age, he does not become a Filipino
citizen. if he wants to, e has to apply for naturalization
a.2. if he is a minor, he by DERIVATIVE CITIZENSHIP
becomes a Filipino citizen
a.3. if at the time of the approval, he is outside the
Philippines, he is only Filipino during minority. Upon
reaching the age of majority, he is given the choice either
to remain a Filipino citizen or revert back to original
citizenship of the father
-those who have become Filipino citizen by derivative
citizenship, they are considered NATURALIZED Filipino
CITIZENS.
b. those who are born after the father becomes a Filipino by
naturalization, they are citizens
-they are considered NATURAL BORN.
-you go back to the definition, those who are citizens
from birth. Because the father at the time of birth is a
Filipino citizen, then the children are Filipino citizens
Declaration of an administrative body or a certification does
not change a judicial judgment
-Case: Kilos Bayan vs Ong
This is the appointment of Ong as Justice of SC where these
was a question on his citizenship. He was a Sandigan Bayan
Justice.
Somebody asked for an injunction not to issue the
appointment considering that there was a question on his
appointment.
He was born to a father who is naturalized and a Filipina
mother. The mother was a daughter of his grandfather who
is naturalized, originally Chinese married to a Filipina.
Grandfather became naturalized. The mother at the time
was still a minor, and by derivative citizenship, the mother
became a Filipino citizen.
The mother got married to a Chinese who at the time was
still applying for naturalization. At the time of marriage, the
husband was still a Chinese citizen. During the 1935
Constitution, the mother automatically lost her citizenship.
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CONSTITUTIONAL LAW
REVOCATIONOF NATURALIZATION PROCEEDINGS
Another point you should TN in naturalization is the
revocation. It is never final and executory, res judicata
principle does not apply.
EFFECT ON DEATH OF GRANTEE PENDING QUESTION ON
VALIDITY OF NATURALIZATION
What if the grantee of the citizenship has died already when
there is the revocation of the naturalization? Is it deemed
mooted upon the death of the grantee?
That depends on the grounds of the revocation:
a. If the ground for revocation is that the JUDGMENT IS VOID
on the ground that he has disqualified, then it shall
CONTINUE because of the citizenship that has been also
extended to his minor children and to the wife.
Because when citizenship is granted, he becomes a Filipino.
The minor children and the wife will have some basis to
apply for naturalization before they can become Filipinos.
If revoked, naturally premised on the judgment being void,
then there has never been any citizenship enjoyed or can be
transferred by the grantee.
So even after the death of the grantee, the action for
revocation on the decree of naturalization may still posper
b. If the ground for revocation is that the grantee has
VIOLATED THE CONDITIONS OF NATURALIZATION or he
LOST HIS QUALIFICATIONS THEREAFTER, (ex. convicted of
crime involving for moral turpitude), it will not prejudice
those who derived their citizenship from their father.
If the applicant grantee dies, then the case will have to be
dismissed as the case has become MOOT AND ACADEMIC.
Kwin
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CONSTITUTIONAL LAW
4. by marriage of Filipina to a foreigner, and by their actor
omission they are deemed to have renounced her
citizenship
But GR Filipinas marrying foreigners remain Filipinos.
5. deserter of the Armed Forces, convicted by final judgment
Especially during war time.
Kwin
2.A. RA 8171
If you have lost your citizenship because you have served
the allied forces during WW2, you can reacquire it by RA
8171.
Other grounds for RA 8171 are for reasons of economic and
political necessity.
REQUIREMENTS
1. apply for repatriation with the Bureau of Immigration in
their Special Committee on Naturalization
2. take oath of allegiance
3. register oath of allegiance with the civil registry where you
last resided or presently residing at
4. furnish copy to the Bureau of Immigration through Special
Committee on Naturalization
REQUIRMENT OF REGISTRATION IN CIVIL REGISTRY
It is not enough that you take your oath of allegiance. It has
to be registered.
Case: Frivaldo vs Comelec
He was disqualified.
He insisted that the moment he filed a certificate of
candidacy where he took his allegiance and made a
declaration that he is a Filipino citizen, in effect, he has
renounced his US citizenship. But he failed however to
register that he is a Filipino citizen in the nearest civil
registry where he was residing which is required under
8171.
RETROACTIVE FROM TIME OF FILING OF PETITION
You reacquire your citizenship from the time he filed his
petition for repatriation.
Which means that for as long as he complied with all the
requirements for someone to run for an elective office,
before he assumed office, he completed his requirements
and it was approved, then he is considered qualified for the
position.
Case:
He filed his petition for repatriation in 1997. In Mar 2004,
he filed his certificate of candidacy. It was only on the date
of election when he completed his papers and registered his
oath of allegiance to he civil registry. Assumption of office is
th
on the 30 day of June. Is he qualified to assume office?
Yes. While the approval was only on May, the effectivity
retroacts from the filing of the petition in 1997.
CITIZENSHIP REQUIREMENT IS ONLY ON ASSUMPTION OF
OFFICE
The statute does not require that you have to be a citizen
on the day of election or on the day of appointment. The law
only requires age, residency, and other qualification but
never on citizenship.
For as long as upon assumption of office, you are a Filipino
citizen, you are qualified, because after all, the effectivity of
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CONSTITUTIONAL LAW
repatriation and the reacquisition of citizenship shall be
reckoned from the filing of the petition.
STATUS
Upon repatriation, he reacquires his original status as a
NATURAL BORN CITIZEN.
Kwin
CONSEQUENCES
1. you become again a natural born citizen.
2. minor children by derivative citizens also become natural
born citizens
-legitimate or illegitimate or adopted
-not married
-under 18 years old
3. wife has to prove that she suffers none of the
disqualification
4. grantee may vote under RA 9189, even if he continues to
reside in the foreign country where he is also a citizen
-Case: Lewis vs Comelec
Lewis became a citizen by virtue of RA 9225. When he
wanted to vote, he was refused by the consular office
saying that he has not complied with the requirement of
residency (6 months in place to vote, 1 year in the
Philippines)
The issue is whether they can vote under 9189 as
specifically authorized under 9225.
They are treated like OFWs and as such they are
expected to establish a residence here in the Philippines.
They can vote but within a period of 3 years.
After all, what is important on residency is that you
have the intention to return to the country after you
have declared the specific residence in the Philippines.
5. may run for public office
6. may practice profession
ADDITIONAL QUALIFICATIONS FOR RUNNING IN PUBLIC
OFFICE for those under RA 9225 only:
1. take oath of allegiance as required by law
2. expressly renounce all foreign citizenships (in writing)
This requirement does not apply for those who are
considered as dual citizens because or birth.
NON APPLICATION TO DUAL CITIZENS NOT BY 9225
-Case: Mercado vs Manzano
-Case: Valles vs Comelec
Manzano had dual citizenship because he was born in
America, by principle of Jus soli, he is a foreign citizen.
because both parents are Filipinos, he is also considered a
Filipino citizen.
When he ran as a vice mayor of Makati, there was a
question on ownership because he was carrying at the same
time a US passport.
As explained earlier, the carrying of passport is not a
conclusive proof of renunciation.
SC declared, THE MOMENT HE FILED THE CERTIFICATE OF
CANDIDACY, HE IS CONSIDERED TO HAVE ELECTED
PHILIPPINE CITIZENSHIP AS HIS SOLE CITIZENSHIP AND
RENOUNCED ALL OTHER FOREIGN CITIZENSHIP.
This principle will apply only to Filipinos who became dual
citizens not by virtue of RA 9225. Only those involuntary
acquisition of foreign citizenships such as because of the
application of jus soli.
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CONSTITUTIONAL LAW
-Case: Lopez vs Comelec
If he became a dual citizen because of his reacquiring
Philippine citizenship by virtue of 9225, for him to run for
public office, to qualify, he has to expressly renounce his
foreign citizenship.
EXCEPTION- WHEN CARRYING OF FOREIGN PASSPOSRT IS
CONSIDERED RENUNCIATION OF PHILPPINE CITIZENSHIP
-Case: Yu
He became a naturalized Filipino citizen and
notwithstanding, continued to carry his Portuguese passport
and declared himself as a Portuguese citizen, this is an
exception to the principle that the mere carrying of a
passport is not a conclusive proof of renunciation of
Philippine citizenship, but in this case, it was considered an
exception where he is considered to have renounced his
Philippine citizenship.
EFFECT OF REPATRIATION ON NON MINOR CHILDREN
-Case: Tabasa
If the kids are already of age, they cannot avail of the
privilege of Philippine citizenship through derivative
citizenship.
OTHER CASES
-Coroboro vs Comelec Feb 19, 2009
Tambunting, an owner of pawnshops in Mali, was enjoying
dual citizenship because he was born in US of Filipino
parents.
When he ran for election, his citizenship was questioned.
He said, by the mere filing of his certificate of candidacy, he
had renounced his foreign citizenship.
He was right. Being a dual citizenship is not a result of 9225
but a result of an involuntary acquisition because of the
circumstances of his birth.
So he need not comply with the requirement of express
renunciation of foreign citizenship. The etwin requirement
does not apply.
-Lopez vs Comelec, July 23, 2008
-Hapson vs Comelec, Jan 18, 2009
-Roselier de Guzman vs Comelec Jun 19, 2009
2 requisites to run for public office:
1. taking of oath of allegiance
2. express renunciation of foreign citizenship before any
public officer authorized to administer an oath
Kwin
ADDITIONAL
QUALIFICATIONS FOR PRACTICE OF
PROFESSION (LAW)
-Case: Dacanay Dec 17, 2007
Dual citizens may practice law in the Philippines by
1. leave of Sc (permission)
2. compliance of requirements to restore the good standing
as members of Philippine bar
a. payment of annual dues
b. compliance of MCLE
2.B. ADMINISTRATIVE NATURALIZATION
RA 9139
This is with reference to foreigners who were born in the
Philippines. In order to give them some form of amnesty,
(especially smuggled Chinese)
Accepting the reality that eventually some children of these
foreign smuggled persons into the country had children born
into the Philippines without clear status as to their
citizenship, this law was passed for them to have the option
either to:
1. apply for naturalization by administrative process
2. apply for naturalization by judicial process
Under this provision, it grants Philippine citizenship by
administrative proceedings to aliens born and residing in the
Philippines. They have the choice to apply for judicial or
administrative naturalization subject to the prescribed
qualifications or disqualification provided by law.
DUAL ALLEGIANCE
What is prohibited under the constitution for it is INIMICAL
TO PUBLIC INTEREST is dual allegiance, not dual citizenship.
Until now, there is no definition on what would constitute
dual allegiance.
Case: Kalilong vs Datumanong May 11, 2007
SC said that if the legislature has not defined it, it is not for
the Court to make a definition on what would constitute
dual allegiance.
Definitely, RA 9225 does not constitute dual allegiance but
mere dual citizenship.
So there is no question as to the constitutionality of RA 9225.
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CONSTITUTIONAL LAW
Kwin
RIGHT OF SUFFRAGE
Right of suffrage is both a right and a privilege of a citizen of a
country.
As a privilege, it is the right of the people to chose the
representatives to run the government for them.
macalintal vs comelec
- residence is synonymous with domicile,
with respect to election laws
KINDS OF DOMICILE:
a. DOMICILE OF ORIGIN
-where you are born/raised by parents
b. DOMICILE OF CHOICE
-by work or by marriage
QUALIFICATIONS
There are certain qualifications however for you to enjoy this
right, as provided by law
1. at least 18 at the time of election when you cast your vote
2. resident of the Philippines for one year AND 6 month sin
the place where you propose to vote
RESIDENCE/DOMOCILE REQUIRIEMENT
RESIDENCE FROM POV OF POLITICAL LAW
-it is synonymous with domicile
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CONSTITUTIONAL LAW
-Case: Aquino vs Comelec
Aquino ran as congressman in Makati after he transferred
residence from Conception Tarlac after he has exhausted
the three terms as congressman.
He was disqualified upon petition of another candidate.
SC declared that there was no effective transfer of residence
because the records would show that he was still a
registered voter of Conception Tarlac. He only has a
condominium in Makati.
His acts do not correspond to his intention of changing his
residence.
Kwin
AFTER BREAK
RA 9225 grants the right to vote of dual citizens.
RA 9189 procedures for absentee voters - dual
citizens.
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CONSTITUTIONAL LAW
4. SOVEREIGNTY
SOVEREIGNTY is the highest ruling authority, it is the
uncontrollable power by which the state is governed.
Without which, the state cannot be considered a s state.
MANIFESTATIONS OF SOVEREIGNTY
A. supreme power to rule within and outside as manifested
by:
1. peoples obedience to the laws
2. enjoyment of independence or freedom from
independent control of a state
CHARACTERISTICS OF SOVEREIGNTY
1. indivisible
-it cannot be shared because there is only one highest
ruling OW it could mean the destroyment of sovereignty
2. imprescriptible
3. absolute
-no body can question the exercise of the power and the
laws passed by the sovereign
4. uncontrollable
5. virtually no limitations
-if there is any limitations, its because we decide to have
limit as provided in the constitution
6. not subject to any statute of limitations
7. non transferable
-it cannot be alienated. The moment you transfer, the
one who was exercising seizes to be sovereign and the
transferee becomes the new sovereign
8. comprehensive
-covers practically everything and every person within its
boundaries and authority
9. exclusive
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CONSTITUTIONAL LAW
B. PERSONAL JURISDICTION
This refers to the citizens of the country that even if they
are found outside the country, they are subject to our laws
because the Philippines is sovereign, specially those laws
governing on status.
So even if you contract divorce abroad, as far as the
Philippine laws are concerned, you are still married.
Because they are subject to our laws still, they are subject
to our protection still.
C. EXTERRITORIAL JURISTDICTION
This refers to the states jurisdiction over persons and
things found outside the territory.
Example, Philippine embassy in the US is subject to
Philippine laws. Persons found in the embassy are subject to
the laws of the country.
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CONSTITUTIONAL LAW
IMMUNITY OF Philippines AS A STATE
Insofar as the Philippine state is concerned, it is immune from
suit as it is provided under sec 3 art 16 of the constitution.
SECTION 3. The State may not be sued without its consent.
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CONSTITUTIONAL LAW
And that can be subjected to garnishment in an execution
on the judgment.
FUNCTIONS
Incorporated agencies primarily are COMMERCIAL,
PROPRIETARY FNCTIONS. Its a business function.
Even if it is not a business function, still by its own charter it
is allowed to sue and be sued.
For example, state universities in their charters are allowed
to sue and be sued and therefore cannot invoke immunity
from suit.
1. UNINCORPORATED AGENCIES
UNINCORPORATED AGENCIES are those that do not have a
separate and distinct personality from the government of
the Republic of the Philippines.
So if you are to sue them, it is like suing the Republic of the
Philippines. If you sue the Republic it is not allowed because
the republic enjoys immunity from suit.
It has to involve disbursement of public funds or loss of
property in the event judgment is rendered against the
unincorporated agency of the government.
FUNCTIONS
You have to distinguish what was the function that was
exercised by this unincorporated agency.
a. governmental
b. ministrant or proprietary function
PURELY GOVERNMENTAL NOT SUABLE
It is not suable if the function is purely governmental.
If it is primarily COMMERCIAL/business function, then you
can sue the unincorporated agency.
Example, when the PNP enters into a contract with a
supplier of raincoats to be used by traffic enforcers. Is that
commercial or government?
You go by the purpose. Law enforcement. Definitely that is
governmental because hat would involve implementation of
the law.
In case PNP does not pay for the raincoats, can the supplier
sue the PNP? NO. because it is an unincorporated agency of
the government. It is a suit against the state.
Kwin
-suable, no dstinction
-not suable
-suable
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CONSTITUTIONAL LAW
3. MUNICIPAL COROPRATION
This is a hybrid kind of corporation, the LGUs.
It is hybrid in a sense that they are engaged both in
governmental and proprietary functions.
GOVERNMENTAL FUNCTION
So therefore, if it is governmental/sovereign function, as a
GR it is not suable. But the LGC allows them to sue and be
sued their own charter or chartered cities with some LGUs.
And therefore they are suable.
-IMPLEMENTATION OF THE JUDGMENT AGAINST LGU
But TN the proving of a claim against the LGU is one thing.
Implementing the judgment against the LGU is another
thing.
So that if you are suing the LGU because it is allowed under
the LGU and you won the case, can you ask for a writ of
execution to garnish public funds of the LGU? NO. not
without an appropriation or an ordinance providing for an
appropriation.
If public funds, because the suit is premised on the exercise
of a governmental function by a municipal corporation.
PROPRIETARY FUNCTION
But if it proprietary function and you are suing the
municipal corporation, you can ask for a writ of execution.
They engage in distribution of water and electricity. If sued
in its purely proprietary capacity, you can garnish the funds
of that corporation that the LGU may engage in.
-SUE BY MANDAMUS TO COMPEL PAYMENT
If the LGU refuses to pay, then you can sue the government
with mandamus to compel it to pass the supplemental
budget with the appropriation of funds in payment of the
award in the judgment.
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CONSTITUTIONAL LAW
EXCEPTION TO EXCEPTION
Case: Ministerio vs CFI
The road in Gorordo was expropriated without
appropriation for just compensation. IOW it was
expropriated without provision on the payment of just
compensation. It was taken and used by the public.
The property owner then sued DPWH and the director.
DPWH is unincorporated and the director is a public officer.
The moved for the dismissal of the case on the ground
invoking the immunity from suit.
SC allowed the owners of the property the DPWH. Because
if the owner of the property will only be allowed to sue the
director in his personal capacity, what can he pay it with.
Definitely this is dismissable because the act of the director
is not the act of DPWH. Because it was made without
authority, it was an ultra vires act.
This was the exception where the SC said; if it causes
injustice to the property owner, he may be allowed to
establish and prove his claim against him.
The expropriation cases where the issue is non payment of
just compensation, the owner of the property is allowed to
sue the republic or its implementing agency. This is an
exception.
EXCEPTIONS
1. giving of consent
When the state give its consent whether expressly or
impliedly then the you may now prove your claim.
TN that it has to be strictly construed against the waiver of
immunity from suit.
If it has to be EXPRESS CONSENT, it has be done through a
statute or law passed by congress, not by a contract nor
consent of a lawyer nor declaration of the president. It can
only be through a legislation either through a SPECIAL LAW
or a GENERA LAW.
Case: Sandoval
President Aquino created a committee to do an
investigation. After the investigation, she declared that the
government was at fault on the massacre.
On the basis of that declaration, they sued the Republic for
damages.
Here they said there was a waiver of immunity from suit by
the states own declaration that it was somehow at fault on
the killing of the farmers.
Was there a valid waiver of immunity by that declaration?
SC said no. waiver can only be done by a statute.
Case:
In another case where it was a government lawyer who
was saying that any violation of the contract may be sued in
the courts.
That is an invalid waiver. It cannot be compromised. It may
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CONSTITUTIONAL LAW
E. LAW CREATING THE DEPARTMENT OF AGRICULTURE
There is another law like creating the Department of
Agriculture. The law creating the DA, allows it to sue and be
sued. So it is suable, even if it is unincorporated.
C. ART 2180 NCC
2180 is about special agents, the state has specially given
its consent to be sued.
D. ART 2189 NCC
2189 on torts, any damage injury or death caused by the
roads, bridges, maintained by a municipal corporation by an
LGU.
TN the one responsible to its maintenance and repairs
and somebody is inured because of the non maintenance or
improper, you can sue the LGU concerned. Because the
state has expressly given its consent under this law.
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CONSTITUTIONAL LAW
3. when it enters into purely commercial contracts
It has to be purely commercial.
Example. The case of Camp John Hay is purely commercial.
If you are contracting the purchase of computers for the
Comelec, that is purely governmental because hat has
something to do with election. If there is a breach of
contract, is the Comelec suable?
You file a money claim with the COA, before you can sue
the Comelec.
4. when it would be inequitable for the govt to claim immunity
INTERPLEADER
When one is compelled to be a litigant in a case, it was upon
the order in the court. Is that covered by the immunity from
suits?
YES. The government cannot be compelled to litigate and
be an interpleader.
EXECUTION OF JUDGMENT
When judgment is rendered and it is against the state, can
you ask for a writ of execution?
NO. Even if allowed, to prove a claim against the state, it is
not automatic that the state be liable for whatever
judgment is rendered against it. You need to ask for another
consent because public funds are EARMARKED for certain
public purposes.
If you allow the garnishment of public funds, that would
prejudice public service because you would be depriving or
denying certain purposes for which these funds are
appropriated.
So you need another consent of the state to answer for the
liability that is adjudged by the courts.
Kwin
IOW for suits against the state, those that are allowed
because the state has given its consent to be sued, it will be
only up to the rendition of judgment. You cannot ask for a
writ of execution.
AGAINST NATIONAL GOVERNMENT
Once you get the money claim, you prove that the judgment
is final and you are entitled to the judgment. COA will
submit it to the office of the president, then the office of the
president includes that in the budget to be submitted to the
congress and congress will appropriate the corresponding
amount, if it is a claim against the national government.
AGAINST LOCAL GOVERNMENT
If it is a case against the local governments, then you have to
provide the LGU a copy of the judgment that has become
final. You ask for the payment. And if it does not make
payment, you sue the LGU for mandamus to compel the
passage of a supplemental budget.
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CONSTITUTIONAL LAW
June 11, 2011
Forms of Govt: 1)
1. de jure government
2. de facto government
2)
3)
5) to 7)
Kwin
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CONSTITUTIONAL LAW
But not during Japanese occupancy. POLITICAL LAWS WERE
MERELY SUSPENDED.
Except on laws relating to laws on allegiance and laws on
treason.!!!
MUNICIPAL LAWS
Municipal laws continue unless they are repealed by the
belligerent occupant.
EFFECT OF REMOVAL OF BELLIGERENT OCCUPATION
What happened after the belligerent occupant was removed
and there was the resumption of the operation of the
commonwealth government which later turned out to be
the Third Republic of the Philippines? What happened to the
laws that were passed by the Japanese sponsored
government?
POLITICAL LAWS
Insofar as laws that are political in nature, they are
automatically abrogated.
Laws or acts of government tainted with political
complexion are also abrogated.
NON POLITICAL/MUNICIPAL LAWS
Non political/municipal laws or acts of government remain
good and valid.
DECISIONS OF THE COURT
Meaning decisions of the court at the time that were made
during the Japanese occupation that were non political are
still recognized as good and valid.
But if these decisions, were tainted with political
complexion, they too are abrogated.
Case:
He was convicted for robbery for stealing wires of
communication. And when there was a resumption of the
government, he asked for a writ of habeas corpus on the
ground that his conviction was politically tainted.
It was not an ordinary robbery. He stole the wires for the
purpose of sabotaging the government of the Japanese. So it
was politically tainted.
Kwin
BY THE
RISE IN
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CONSTITUTIONAL LAW
ARROYO ADMINISTRATION - de jure
Then there was the question on the Arroyo administration
after the EDSA II, on WON the government of Arroyo is de
jure.
Case: Estrada vs Disierto
Sc said that there is no question of legitimacy because Arroyo
only succeeded by operation of law. Estrada having
resigned, she became the next president. So it is de jure.
It has nothing to do with transferring power from one
government to another. This involves only one government
and the change of administration by operation of law. In this
case, succession.
Therefore, Arroyo became the legitimate president of the
Republic.
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CONSTITUTIONAL LAW
SEC 1
SECTION 1. The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from them.
people = electorate
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CONSTITUTIONAL LAW
ON THE MATTER OF IMPEACHMENT
What does the constitution say on impeachment? To whom is
this vested?
Initiation of impeachment proceedings, the constitution is
very clear, house of reps.
Prosecution and hearing of the case, the prosecution will
be in the house of reps if there is an initiation of
impeachment. But who is gonna hear the case? Exclusive of
the senate.
What is the controversy on the impeachment proceedings?
Because the SC issued a TRO and now the house of reps are
complaining that that is an encroachment to the exclusive
prerogative that the constitution has expressly assigned to
them.
Was there an encroachment vis a vis a judicial review by SC,
and in fact SC issued a TRO in the case of ombudsman?
TN that while it is true that SC has provided an assignment
for each branch, this must be exercised in accordance with
the provisions of the constitution.
OW, if you go beyond what is granted to you, who will be
saying that you have abused your authority? It is the courts,
as an express assignment of the constitution to the courts.
Remember, judicial power is defined as not only limited to
settling disputes involving legally demandable and
enforceable rights and as well as to determine whether
there has been a grave abuse of discretion amounting to
lack or in excess of jurisdiction.
So SC says that what they are doing is their job as assigned
by the constitution that they are to review whether the
discretion is abused amounting to lack of jurisdiction.
This is not an assertion of the superiority of the courts but
the supremacy of the constitution as enunciated in the case
of Angara vs Electoral Commission.
Kwin
EXPRESS POWERS
For as long as the power is a prerogative of a particular
branch, that cannot be interfered with or encroached upon
by the other branches in the government.
How do you know that it is a prerogative or a discretionary
power of that branch?
Because it is assigned to it expressly by the constitution as
a GR.
IMPLIED POWERS
Although, because of that express grant of the power, there
are certain powers although not granted by the constitution
is inherent in the express power, still that is considered as
discretionary in the branch and therefore that cannot be
interfered with by the other branches of government.
EXAMPLE CONGRESS CONTEMPT
Law making is an express grant of powers to congress. In
fact it is plenary. Except for the limitation that may be
provided in the constitution for both procedural and
substantive limitations.
But as you knew already, corollary to the mower to make
laws is the power of legislative inquiry and that is expressly
granted by the constitution to congress.
But in that express grant of power, there is no mention
about contempt power that may be exercised by congress
for contumacious witnesses who refuse to testify in relation
to this legislative inquiry in aid of legislation.
But it is understood, it is inherent in the power of
legislative inquiry in relation to the law making power of
congress that there should be some teeth to the exercise of
powers OW it will be useless to summon witnesses to shed
light on certain matters that would help them in legislation if
they can easily refuse the summons being issued by
congress.
And that contempt powers as a general rule cannot be
interfered with by the SC by issuing an injunction because
that is a discretionary power of congress, although not
express, its inherent in the express power granted by the
constitution to congress.
Neither can the president interfere by granting pardon to
those who are cited for contempt. Because that will be
considered an encroachment of a prerogative of a particular
branch and thereby violating the separation of powers.
That is the more difficult part. Because insofar as the express
powers, you have mastered that. And as a GR, it cannot be
interfered with because of the principle of separation of
powers.
Inherent powers, residual powers or powers that are implied
in the grant of the express powers are those that you are
not too familiar because they are jurisprudentially
established by express provision of the constitution.
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CONSTITUTIONAL LAW
EXAMPLE PRESIDENT DEPORT UNDESIRABLE ALIEN
For example is the power of the president as the chief
executive of this country to deport undesirable alien.
You cannot find that in any provision of the constitution. It
is a residual power inherent in his being the chief executive.
And therefore it cannot be questioned by the congress,
neither by the court.
EXAMPLE ENTRY TO COUNTRY (?)
On the matter of who should be allowed to enter the
country, that is also a residual power established by
jurisprudence.
Case: Marcos vs Manlapus
It was considered an encroachment by the SC when it was
reviewed. Later it was explained why it was reviewed and
there was a justification why the SC was not cited for
violating of separation of powers.
Because there are exceptions to this. But generally, when
the power is granted to the constitution or if the power is
inherent in the express grant of powers, the residual power
or implied power necessary to the express power, like the
express powers, they are exercised by the three branches
without the encroachment or the interference of the other
branches of the government.
EXAMPLE PRESIDENT DECLARATION OF STATE OF
NATIONAL EMERGENCY
You also have hat issue relating to the declaration of the
state of national emergency. Is there any provision in the
constitution that the president can expressly exercise the
power? NO.
But this was implied in the case of Arroyo as the chief
executive fostered by her being the commander in chief of
the armed forces, and should not be interfered with b ythe
courts.
SC sustained that power of the president.
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CONSTITUTIONAL LAW
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POLITICAL QUESTIONS
IOW, even political questions involving purely discretionary
matters may still be reviewed by the courts without violating
the separation of powers.
Its more on checking the powers in order to balance the 3
branches powers and protect the people from any arbitrary
control by the presidents exercise of his prerogative or by
congress in the making of laws, through this judicial review
power of the courts.
However, insofar as political discretionary powers, the
issue is limited into WON there has been a grave abuse of
discretion amounting to lack or in excess of jurisdiction.
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CONSTITUTIONAL LAW
SHARING OF THE POWERS
Another point that you should TN are those circumstances
where no less than the constitution or existing statute
providing for the sharing of the exercise of the powers.
-EXAMPLE SHARED LAW MAKING POWER
For instance, the law making power is definitely the power
expressly assigned to congress as provided in the
constitution.
But do you know that this power by express provision of
the constitution has also been assigned or delegated to the
two other branches of the government?
The PRESIDENT is delegated with EMERGENCY POWERS
under sec 23 or to ADMINISTRATIVE BODIES on subordinate
legislation.
This is executive branch and yet exercising the power to a
certain extent for purposes of implementing the law. They
promulgate rule and regulations insofar as administrative
bodies under subordinate legislation, the president insofar
as the exercise of emergency power.
In effect, the executive branch exercises legislative powers,
however limited.
We will explain this further when we go to the delegation
of legislative powers.
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CONSTITUTIONAL LAW
4. NON DELEGATION OF LEGISLATIVE POWERS
Related to separation of powers is the non delegation of
powers, particularly legislative powers.
Because there is separation of powers, as a GR, the powers
should not be given up to anyone. It is not only a power to
exercise but an obligation. The people through the
constitution has expressly assigned the power to that
particular branch.
What has been delegated cannot in turn be delegated by the
delegate to another delegate.
That is the reason why there is the prohibition against the
delegation of powers.
As I have said earlier, it is more on the legislative power
because theres more on the law making where the
government has to come up with laws in order to meet the
exigencies and needs of the public.
PERMISSIBLE DELEGATION OF LEGISLATIVE POWER
(EXCEPTIONS)
While non delegation of powers is a GR, there are certain
exceptions to that. This is what we can permissible
delegation of legislative power.
Because of the growing complexities of the people and the
government has to meet the needs of he people
immediately, it cannot be avoided and it would be best for
the power to be delegated.
And so we have the power delegated to the:
1. president
2. administrative bodies
3. local governments
4. people at large
1. DELEGATION OF POWER TO THE PRESIDENT
TN of sec 23 art 6, the requisites and the relevant
principles.
SECTION 23.
(1) The Congress, by a vote of two-thirds of both Houses in joint session
assembled, voting separately, shall have the sole power to declare the
existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law,
authorize the President, for a limited period and subject to such restrictions
as it may prescribe, to exercise powers necessary and proper to carry out a
declared national policy. Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next adjournment thereof.
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EMERGENCY POWER
Emergency power is vested with congress. This is not
exercised by the president unless it is delegated. Os it is only
delegated to the president.
And by sec 23, it is delegated to the president in cases of:
a. national emergency
b. war
LIMITATIONS
TN of the limitations:
a. it can only be delegated or granted by law passed by
congress
b. in cases of national emergency or of war
c. limited only for a period of time
1. until emergency exists
2. unless it is lifted or withdrawn earlier
3. until the next adjournment of congress (special or
regular session)
d. it can only be withdrawn by a resolution
-there is no need of the approval then of the president
(not a law)
e. scope is limited only to carry out the declared policy of
congress
The president cannot therefore exercise the power without
the express grant of congress.
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CONSTITUTIONAL LAW
2. DELEGATION TO ADMINISTRATIVE BODIES
As part of subordinate legislation, what has been delegated
is only the rule making power.
There cannot be the promulgation of rules by the
administrative bodies having the force and effect of law if in
the first place theres never been a law delegating the
exercise of the power to the administrative body.
So there has to be a law passed by the congress providing
for the basis of the promulgation of implementing rules and
regulation.
Supposedly, the rules promulgated by the administrative
bodies will provide for the details or for the limitations or
parameters for which the law can effectively enforced.
KINDS OF LEGISLATION THAT ADMINISTRATIVE BODIES MAY
PROMUGLATE
There are two kinds of legislation that the administrative
bodies may promulgate as part of subordinate legislation:
a. providing for details
b. providing for limitation
For as long as it is within the provision of the law.
TEST ON VALID DELEGATION OF POWER TO
ADMINISTRATIVE BODIES
So you TN of the test in the delegation of the power to the
administrative bodies:
a. COMPLETENESS TEST
The law must be complete in itself so that nothing is left
to the administrative body to determine what the law is. All
that it needs to do is to implement the law.
Because it is incomplete, it is lacking with basic
provisions, then there is undue delegation.
b. SUFFICIENCY OF STANDARD TEST
You may find this in the introductory part of the
substantive law itself. You may provide for the reason why
this law is adopted.
So that in the promulgation of the rules and regulation,
the administrative bodies will be guided accordingly as to
how the rules will be promulgated, the boundaries and
parameters to which that law will be implemented.
Case: Ipira vs Department of Energy
Theres the universal charge imposed for the distribution of
electricity. The purpose of which is to have electricity
distributed all over the country. It is shared by all electricity
consumers. And it is the Department of energy that
enforced it by promulgating the rules and regulation.
There was a question on the Department of Energy to do
that. They say there was no delegation because this was a
tax imposition.
SC said thee is no violation of the non delegation of non
legislative power because what the DOE is simply to
implement the law.
This is not a taxing power that is being exercised but more
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on police power.
And this is by express delegation of the law itself to the
DOE.
3. DELEGATION TO LOCAL GOVERNMENTS
RA 7160 LOCAL GOVERNMENT CODE
There cannot be an exercise of the power of LGUs without
the express grant of Congress; RA 7160, the Local
Government Code.
LIMITATIONS
TN because it is a delegated power, the power is not
without limitations. In fact, LGUs cannot pass laws contrary
to the constitution and contrary to laws passed by congress.
They cannot therefore prohibit a trade that is allowed
under existing laws neither can they pass laws amending
national laws. Because the power is limited.
They cannot prohibit. They can only regulate.
CANNOT PROHIBIT BUT MAY REGULATE
Case: Cruz vs Paras
This is about the closure of night clubs which was not the
an activity that is considered illegal by law.
They cannot be prohibited by LGUs. They may only be
regulated.
CANNOT PASS LAWS CONTRARY TO NATIONAL LAWS
We do not have a federal system of government. Ours is
still unitary. Our LGUs are not independent from the
national government. They cannot make laws contrary to
laws already passed by the national government.
Case: Magtakas vs Pryce Properties
This is about the establishment of casinos in CDO. It was
declared unconstitutional because the government cannot
prohibit the activity. They can only regulate.
CANNOT PROHIBIT PRACTICE OF PROFESSION
Including the practice of professions, LGUs cannot in the
guise of promoting general welfare prohibit certain practice
of profession or business.
It can only be regulated by LGUs but certainly cannot be
prohibited.
NOT OPPRESSIVE, NOT UNREASONABLE AND LIMITED TO
TERRITORIAL JURISDICTION
Another is that the laws passed should not be oppressive,
not unreasonable and it is only limited within its territorial
boundaries.
So if a municipality passes an ordinance, as long as it is not
contrary to existing laws, it cannot be a applied to another
municipalities because it is nly applicable within its
territorial boundaries.
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CONSTITUTIONAL LAW
MMDA
MMDA is not a local government or a political subdivision.
It does not exercise police power. You can only enforce the
law of LGUs composing of Metropolitan Manila.
But they cannot on their own make rules and implement
them. Either they make rules on the basis of existing laws or
on the basis of local laws on the different municipalities and
cities comprising the MMDA.
Case: Bel Air vs MMDA
This question WON they can divert the traffic in a private
subdivision, invoking the exercise of police power without
paying just compensation.
SC said, in the first place, MMDA has no police power. It
cannot also take private property without payment of just
compensation because virtually, by allowing traffic to enter
a private subdivision is taking the property for public use.
Case: Garin
An MMDA traffic enforcer confiscated the license of a
lawyer.
The lawyer was saying he has no authority because he does
not have police power.
SC sustained the argument that MMDA was not a political
subdivision and therefore does not exercise police power.
However, because it is an administrative body, there is
existing law allowing them to confiscate, then they can do
so.
Not by their authority as an office but the local
governments that comprise the MMDA.
Case: Francisco vs MMDA
Regarding on the Wet Flag Scheme, there was a question
on due process and on the authority of MMDA to pour
water on you for traffic violation.
They were authorized by LGUs to implement traffic rules.
Francisco questioned the constitutionality.
There was a question WON he is a proper party because he
was not the one who got wet.
There was no problem with due process because SC said
that was only preventive. In preventive, no hearing is
required.
Does the MMDA have the authority? Yes. Not because of it
being MMDA but because they were authorized by the
LGUs comprising the MMDA.
They are treated as an administrative coordinating body.
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CONSTITUTIONAL LAW
1.c. INITIATIVE ON AMENDMENTS OF CONSTITUTION
We need 12% and 3% of each legislative district.
Case: Lambino vs Comelec
SC says that RA 6735 is sufficient to provide for the
mechanism on how people can initiate amendments on the
constitution. However, it is only limited to amendments, not
a revision.
This is now modified decision of SC in Santiago vs Ramos,
RA 6735 is not sufficient XXX
This has been changed in the case of Lambino. As long as
the petition has been signed by the authors of the initiative,
subject to ratification of majority vote in a plebiscite called
for the purpose.
2. REFERENDUM
Referendum is an indirect way of proposing laws. Instead it
will be congress for the national law to propose. And people
will either reject or approve it in a referendum.
Same with the LGUs. the sanguninans will propose and the
people in the locality will approve or reject it in a
referendum.
In initiative on amendments, it is to be ratified not on
referendum but in a plebiscite.
AFTER BREAK
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not allowed.
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CONSTITUTIONAL LAW
SEC 2
SECTION 2. The Philippines renounces war as an instrument of national
policy, adopts the generally accepted principles of international law as part
of the law of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations.
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CONSTITUTIONAL LAW
treaties and conventions that requires the Philippines to
recognize foreign judgments or allow a procedure for the
enforcement thereof.
However, generally accepted principles of international
law by virtue of the incorporation clause of the constitution
form part of the laws of the land, even if they do not derive
from treaty obligations.
ELEMENTS: (when it becomes customary law)
The classical formation of international seize those
customary rules accepted as binding result from the
combination of two elements:
a. established, widespread, and consistent practice on the
part of the state.
b. psychological element known as OPINION JURIS CIVI
NECESSITATES (meaning opinion as to law or necessity)
Implicit in the latter element is a belief that the practice
in question is rendered OBLIGATORY by the existence of
the rule of law requiring it.
Case: Pharmaceutical and Health Care Association of the
Philippines vs Duke et al., Dec 9, 2007
In milk cans, you see the notice breast milk is the best
for babies.
The producers of companies manufacturing these milk
say that they are not obliged because there is no law
requiring them, the bill at the time was still pending.
But there is an international requiring it, which has been
accepted and approved by majority, if not all members of
UN in the international community.
SC said it becomes a customary international law.
CUSTOMARY INTERNATIONAL LAW is deemed
incorporated into our domestic system. A mere
constitutional declaration, international law is deemed to
have the force of domestic law. Because there is that
international law, then it has to be complied like a local
statute.
So there are only 3 sources of generally accepted principles of
international law:
1. treaties that are ratified and concurred
2. treaties that have become customary laws
3. customary laws and international norms
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METHODS OF INCORPORATION
In the incorporation, it could be by:
1. transformation
2. incorporation
1. transformation
TRANSFORMATION is an express adoption of a generally
accepted principle of international law as a local law, by
legislating and making it a statute.
2. incorporation
In INCORPORATION, it is like adapting a generally
accepted principle of law by passing a statute, expressly
making it as a local law, or by pronouncement of the
constitution.
In our case, it is by the pronouncement of the
constitution that it is transformed into a local law by
adapting them as part of the legal system by express
constitutional declaration. And that is SELF EXECUTING.
WHEN APPLICABLE INTERNATIONAL CONFLICT, NO LOCAL
LAW
This is only relevant when there is no applicable law in the
locality and it involves an INTERNATIONAL CONFLICT. If
there is, it conflicts with the local law.
So if there is no applicable law in the locality and you need to
apply the law on a conflict, you may refer to these
international laws that are generally accepted as if it is a
local law.
It is treated like a statute.
CONFLICT BETWEEN LOCAL LAW & GENERALLY ACCEPTED
PRINCIPLE OF INTERNATIONAL LAW.
The problem will only arise if there will be a conflict between
a local law and a generally accepted principle of
international law.
How do you resolve?
First, according to SC, you have to RECONCILE AND
HARMONIZE the differences because after all, there is the
presumption that the government will not be stupid to enter
into an agreement to enter into its laws. Neither would they
pass laws that would be running contrary to international
congregation such as the treaties entered into.
However, if it becomes irreconcilable, how do you resolve the
conflict?
The GR is, it must always be the constitution that prevails.
No problem because a statue and a generally accepted
principle are of the same level, then if the statute is contrary
to the constitution, it will be declared unconstitutional.
Similarly, a generally accepted principle of international law
that is treated as a domestic law when it runs conflict with
the constitution will be declared null and void.
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CONSTITUTIONAL LAW
But if it an ordinary statue and an international law
Case: Ychong vs Hernandezr
treaty = statute
This is the case of internationalization of our retail trade,
where the foreigners are not allowed to enter into trade or
business such as a sari-sari store.
There was a question on which of the laws will prevail, the
Retail Trade Act or the Treaty of Amity and Friendship with
China, where we promised to the Chinese that their
nationals will be treated similarly with the Filipinos in the
matter of business.
According to the Retail Trade Act, only Filipinos were
allowed to engage in that business.
Inasmuch as the case will be resolved by our local courts
that are created by our local laws, it will be stupid to sustain
an international law against a law that created it.
So its understood that our local laws will always prevail
over international laws.
The courts themselves are created by law.
Case: Secretary of Justice vs Lantion
According to SC, the doctrine of incorporation is applied
whenever municipal tribunals are confronted with situations
in which there appears to be a conflict between the rule of
international law and the provisions of the constitution or
statutes of the local state.
Efforts should first be exerted to harmonize them so as to
give effect to both since it is presumed the municipal law
was enacted with proper regard for the generally accepted
principles of international law in observance of the
incorporation clause.
In a situation however where the conflict is irreconcilable
and a choice has to be made within a rule of international
law and municipal law, jurisprudence dictates that municipal
law should be upheld by the municipal courts for the reason
that such courts are organs of municipal law and are
accordingly bound by it in all circumstances.
The fact that international law has been made part of the
law of the land does not pertain or imply the primacy of
international law over national or municipal law in the
municipal sphere.
The doctrine of incorporation as applied in those countries
decrees the rules of international laws are given equal
standing with, but are not superior to national legislative
enactments.
Accordingly, the principle LEX PROSTERIO DEROGAT PRIORI
takes effect. A treaty may repeal a statute. The statute may
repeal a treaty.
In states where the constitution is the highest law of the
land such as the Republic of the Philippines, both statues
and treaties may be invalidated if they are in conflict with
the constitution.
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SEC 3
SECTION 3. Civilian authority is, at all times, supreme over the military. The
Armed Forces of the Philippines is the protector of the people and the
State. Its goal is to secure the sovereignty of the State and the integrity of
the national territory.
inside.
SUPREMACY OF CIVILIAN AUTHORITY HOW ENFORCED
Civilian authority is, at all times, supreme over the military
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CONSTITUTIONAL LAW
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CONSTITUTIONAL LAW
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SEC 4
SEC 6
SECTION 4. The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend the State and,
in the fulfillment thereof, all citizens may be required, under conditions
provided by law, to render personal, military or civil service.
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CONSTITUTIONAL LAW
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SEC 12
TN that these are all principles that are not self executing,
unless there is a law that implements the provision, you
cannot use this as basis for judicial action.
SEC 7
SECTION 7. The State shall pursue an independent foreign policy. In its
relations with other states, the paramount consideration shall be national
sovereignty, territorial integrity, national interest, and the right to selfdetermination.
SECTION 12. The State recognizes the sanctity of family life and shall protect
and strengthen the family as a basic autonomous social institution. It shall
equally protect the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents in the rearing
of the youth for civic efficiency and the development of moral character
shall receive the support of the Government.
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CONSTITUTIONAL LAW
LOCAL AUTONOMY
We do not have a federal system of government. in
understanding what consists of local autonomy is the cases
of Pasco vs Pagcor, Limuna vs Mangilin, Lina vs Tano.
The bottom line there is that there is no transfer of powers
from the national government to local. What has been
transferred is merely administration so that LGUs can make
their own rules in order to implement their own policies, to
manage their own affairs and resolve their own problems.
The power of LGUs to impose taxes and fees are always
subject to limitations which congress may provide by law.
The principle of local autonomy under 1987 Constitution
simply means DECENTRALIZATION.
It does not mean local government sovereign within the state
of an emporium unlike a federal system.
The matter of regulating, taxing or OW dealing with gambling
is a state concern. And hence it is the sole prerogative of the
state to retain and delegate it to local governments.
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POWER TO TAX
To maintain local autonomy there is the lending them power
to tax so that they can raise revenue to become
independent at least from the national government
In fact, even if there is no law conferring upon the local
governments to raise revenue through taxes by express
provision of the constitution on local autonomy, local
governments can impose taxes.
That provision in the constitution is self executing, there is no
need of a legislative enactment. Nonetheless, there are laws
as regards to the limits of the exercise of the powers.
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CONSTITUTIONAL LAW
SEC 26
EQUAL ACCESS OF OPPORTUNITIES FOR PUBLIC SERVICE
SECTION 26. The State shall guarantee equal access to opportunities for
public service and prohibit political dynasties as may be defined by law.
SEC 1
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POLITICAL DYNASTY
On political dynasty, for as long as there no law yet passed
the congress defining what would constitute political
dynasty, there is no such thing as political dynasty. There is
no definition.
SEC 27
SECTION 27. The State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and
corruption.
RELATED LAWS
1. Requirement of statement of assets and liabilities
The point its, it is a constitutional mandate. Unless there are
laws implementing and providing for the measures to go
about it, it is just a state principle.
SEC 28
TRANSPARANCY
SECTION 28. Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its
transactions involving public interest.
LEGISLATIVE POWER
The power is not limited to law making:
1. ordinary
2. constituent
ORDINARY, when it is an ordinary law being passed. It is not
only law the makes law but also people through initiative
and referendum
CONSTITUENT is the power to propose revisions and
amendments to the constitution.
BICAMERAL
TN that the legislative body is bicameral. It consists of two
houses:
1. house of senate
2. house or representatives
see sema vs comelec
aldava vs comelec
atong paglaom inc. vs comelec apr 2, 2013
ang ladlad LGBT vs comelec 2010
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CONSTITUTIONAL LAW
NUMBER OF SENATORS
There are two houses, house of senate consisting of 24 and
house of congress consisting of not more than 250.
Can this be changed by power of legislation?
No. its fixed by the constitution. To increase or decrease
the membership, you have to amend the constitution.
How are they chosen?
They are chosen nationwide.
NUMBER OF REPRESENTATIVES
How about the house of reps?
They are 250 unless OW provided by law. Therefore, they
may be increased or decreased as determined by law.
It is a legislative function. The membership will depend on
PROPORTIONATE REPRESENTATION which is determined
every after 3 years as a result of a census being conducted.
So they are chosen by districts.
In the manner of election, it is by districts, not nationwide.
NO PREPROCLAMATION CONTESTS
Is there a preproclamation contest as regards to members?
And where do you file cases involving election contests,
qualification and returns of members of congress?
Case: Pimentel III vs Comelec, Mar 30, 2008
Like the president and VP, members of congress, as a GR;
the preproclamation cases or matters relating to
preparation, translation, receipt, custody and appreciation
of election returns or certificates of canvass are prohibited.
IOW there is no preproclamation contest.
But that is no longer a problem now with the automation of
the counting of ballots.
JUDRISDICTION OF COMELEC MANIFEST ERROR
But if there is a manifest error in the election return, then you
have:
Affecting composition
Proceeding with the board of canvassers
Determining of the authenticity and the due execution of
the certificates of canvass as provided RA 7166 as amended
by 369,
These can still be taken cognizance by the Comelec.
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CONSTITUTIONAL LAW
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4. CREATION OF DISTRICTS
Case : Sema vs Comelec, July 16, 2008
Congress cannot validly delegate to ARMM (they have
autonomous act to pass laws PVDD not affecting national
laws, and applicable only to autonomous regions)
This has something to do with creation of districts in the
autonomous regions by consolidating the places in Cotabato
to be part of ARMM.
This effects the national affairs. To consolidate cities to be
part of ARMM to create legislative districts, it results to
increase in membership in congress, which is national in
character.
SC said that congress cannot validly delegate to the ARMM
regional assembly, the power to create legislative districts,
the power to increase the allowable membership of the
house of representatives and to reapportion legislative
districts is vested in congress.
The other point is, it affects the national affairs. So the law
creating new legislative districts in ARMM is
unconstitutional.
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CONSTITUTIONAL LAW
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EXERCISE OF POWER
You have original exercise of the power. It is one with the
people delegated to the congress, acting as a constituent
assembly, exercising the constituent power to propose
amendments or revisions to the constitution.
LEGISLATIVE POWER
It is vested with congress
It is the power to propose, enact, amend or repeal the law. It
can be original or derivative. It is vested with congress by
express delegation of the people to them through the
constitution.
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CONSTITUTIONAL LAW
RA 7941 PROHIBITIONS ON ACCREDITATION
The party list must be accredited by the Comelec.
You read the law relating to party list system; RA7941, as
regards to accreditation or registration or the prohibition
against sectoral organization or political party or coalition of
sectoral organization like accreditation of
a. religious sector
b. organization supported by government funds
c. organization supported by a foreign government or
international organization
d. promotes the use of violence
Go over with these prohibition.
UNDERREPRESENTED MARGINALIZED GROUPS
The provision is on representation of the under represented
marginalized groups.
POLITICAL GROUPS
Would these in clued marginalized groups as well? YES.
Provided that they are representing a particular sector.
NUMBER OF MEMBERS IN THEPARTY LIST
As to the number of members coming from the party list, it is
so provided in the constitution that the ceiling is 20%.
To get a guaranteed seat, the party list must have 2% of the
votes cast for the party list system.
For additional seats, for as long as it is still covered in the
20%, even if the organization gets less than 2%, then they
may still get a seat.
If you are to get additional seats, the limitation is not for
more than 3 seats
QUALIFICATION OF MEMBERS OF CONGRESS (SENATE)
1. natural born citizen
2. age: 35 years at the day of election
3. able to read and write
4. registered voter
5. resident in the Philippines for 2 years immediately
preceding the election
RA 9225
Former natural born citizens who become again natural born
citizens, should they run for senate and for congress, they
must have the other qualifications as well provided by law.
On citizenship, the reacquisition there is on the assumption of
office, not on the date of election. For as long as he regained
citizenship before he assumed office, which commences on
the noon time of the 30th day of June following the
election
Of course he must have the requirement of residency of 2
years immediately preceding the election.
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CONSTITUTIONAL LAW
STANDARDS TO DETERMINE WHETHER A GROUP OS
MARGINALIZED OR UNDERREPRESENTED
Case: LGBI vs Comelec, April 8, 2010
On the accreditation of Ladlad, there was the disqualification
of Ladad for being immoral.
SC, insofar as the matter of its accreditation, is an
organization composed of men and women who identify
themselves as lesbians, gays, bisexuals or transgender
individuals, has satisfied that the exacting standards that the
marginalized and under represented sector must
demonstrate.
You have:
1. past subordination or discrimination suffered by the group
2. immutable or distinguishing characteristic or attribute or
characteristic that distinguish or define them as a discrete
group and present political and economic powerlessness
SC said that they have been historically disadvantaged and
discriminated against because of negative public perception
and has even alleged acts of violence perpetrated against
their members by reason of their sexual identification and
gender identity.
The magnitude of opposition against petitioners
participation in the party list system is by itself
demonstrative of the sectors lack of political power.
So too is the fact that proposed legislation seeking to prohibit
discriminatory treatment have been languishing in congress.
So they represent the marginalized group.
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CONSTITUTIONAL LAW
SALARIES OF SENATORS AND MEMBERS OF CONGRESS
They shall be determined by law.
Can they be increased or decreased?
INCREASE
They cannot enjoy the increase until the term of office of
all the members who approved the increase shall have
expired.
This is to avoid conflict of interest or graft and corruption.
This is subject to tax.
DECREASED
It is effective immediately.
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FREEDOM OF SPEECH
The freedom of speech means that you cannot be sued for
civil damages or libel or slander.
Whatever statements he made, while the congress is in
session, if it is relation of course to the matter that is subject
to discussion, he is immune from any suit relating to his
speeches so that he can discuss and debate with anyone for
any issues relevant subject to legislative enactment.
NOT INCLUDE DISORDERLY BEHAVIOR
TN this does not include liability of the member of congress
that may constitute disorderly behavior.
Immunity is limited only to civil and criminal liability. But not
administrative liability.
Case: Osmena vs Pendaton
You can still be held administratively liable but not criminal or
civil.
COVERED
This extends to committee hearings and even agents of the
legislators in their reports.
It is not only limited to oral utterances. Anything that is
communicative in nature is included in the immunity.
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CONSTITUTIONAL LAW
PROHIBITION
If they enjoy some perks, they also have some prohibitions
for being members of congress.
What are some of the prohibition?
1. You cannot be appointed to other positions of the
government.
Unless you resign.
If you are appointed to an office that is inconsistent to
being member of congress, you are considered to have
forfeited your seat.
But in other cases, like forbidden appointments, if you
are responsible for the creation of that office, or increase
its salary or allowances, you cannot be appointed to that
office, even if you resign.
Case: Liban vs Gordon, Jul 15, 2009
Gordon is also a chairman of Red Cross.
There was a question on his appointment that he should
vacate his position as senator having been appointed.
SC said, Gordon did not relinquish his senatorial post
despite his election to and acceptance of the post of
chairman of the Philippine Red Cross.
Because PNRC is a private organization merely
performing a public function. PNRC chairman is not a
government official or employee. Not being a government
office, the PNRC chairmanship may be held by any
individual including a senator, or a member of the house of
congress.
PNRC is autonomous, neutral and independent from the
Philippine government. it is a voluntary organization that
does not have government assets and does not receive any
appropriation from congress.
Gordon may serve as chairman without giving up his
position.
2. Appearing as counsel before any court of office, electoral
tribunal, quasi judicial and administrative bodies.
Any court of justice includes appellate courts.
The prohibition is only against personal appearance. This
does not include consultation and signing pleadings in
cases pending any courts of justice.
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SEC 15
SECTION 15. The Congress shall convene once every year on the fourth
Monday of July for its regular session, unless a different date is fixed by law,
and shall continue to be in session for such number of days as it may
determine until thirty days before the opening of its next regular session,
exclusive of Saturdays, Sundays, and legal holidays. The President may call a
special session at any time.
OFFICERS OF CONGRESS
-IMPORTANT PRINCIPLE IN ELECTION OF OFFICER B4 START
OF SESSION: election of officers by MAJORITY VOTE
IOW even if the president comes from a minority political
party, for as long as he was chosen by the majority of the
members of the house, he is never precluded to be elected
in the position of majority floor leader or as the president of
the senate.
The only requirement is that he is chosen by majority of the
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CONSTITUTIONAL LAW
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house.
But this is on the presumption of a quorum (50% plus 1).
However, it has to be based on the coercive power of the
house concerned, where the house has the power to compel
the member to attend the session even if he is sick. For as
long as he is within the jurisdiction of the house, he may be
compelled.
And still if he is absent, he can still be considered in the
determination of quorum.
VOTES
How many votes are needed to expel a member of congress?
2/3 votes of the members for the house concerned.
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CONSTITUTIONAL LAW
Case: Jalosjos
Did his election as congressman condone his criminal
conviction?
SC said, his election as congressman did not amount to
condonation of his offense. Neither does it entitle him
pending appeal to be free from confinement and to be
allowed to attend session of congress for the people elected
him with full awareness of the limitations of his freedom of
action and movement.
It was never the intention of the framers of constitution to
show the members of congress from the consequences of
his wrong doings.
A member of congress can only invoke immunity from
arrest for relatively minor offenses punishable at most by
correctional penalties.
Case: Paredes vs Sandigan bayan
He was then the Secretary of Health when he was charged
by the SB. It was asked by the office of the prosecutor when
he became a member of congress to suspend him
preventively while the criminal case in SB is pending.
SB placed a member of congress under preventive
suspension without violating the exclusive power of
congress to discipline its own members.
SC said that that preventive suspension imposed by the
court is not yet a penalty. It is just a precautionary measure.
While it is true that the matter of disciplining its members is
exclusive to congress, it does not preclude the courts to
place someone under preventive suspension because of the
pendency of the criminal case before the courts.
There is no similarity here because what is contemplated as
exclusive to congress is the penalty of penalizing disorderly
behavior.
In the case of SB, it is a precautionary measure so that the
evidences would not be tampered neither would the
members of the congress use his office in order to
intimidate possible witnesses of the criminal case in the SB.
PENALTIES
1. Expulsion
2. Suspension
MAXIMUM PERIOD
If the intention of Congress is to suspend a member of the
house for more than 60 days, then he might as well be
expelled.
The maximum suspension therefore that can be imposed by a
member of congress for disorderly behavior should not be
more than 60 days.
Should it be more than 60 days, then it should be an
expulsion.
ADJUNCTS OF CONGRESS-OFFICES
EXTENSIONS OF CONGRESS
1. Electoral Tribunal
2. Commission on Appointments
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CONSIDERED
AS
ELECTORAL TRIBUNAL
It is the sole judge of election contests relating to election,
returns and qualification of members of congress.
KINDS
There are two electoral tribunals:
1. SET Senate Electoral Tribunal
2. HRET House of Representatives Electoral Tribunal
MEMBERSHIP
Both consist of 9 members each. 3 of whom are justices of SC.
6 others are coming from political parties by proportionate
representation.
The basis of the election to the electoral tribunal to represent
a political party is by proportional representation from
political parties including the party list.
IOW, you cannot just choose them from one political party.
They have to be proportionate.
You go by the number of members consisting a political party.
And then divide that by the number of the member of the
house and multiply it by 6 allocated for the political party.
Example. You have two senators from the political party of
Liberal party;
2 X 6 = number of representation in the tribunal
24
What about representative coming from the party list, will
there be a chance for one sectoral organization to be
elected in the electoral tribunal?
SC said, for as long as they qualify the qualification of
proportionate representation, it is for congress to determine
how they can go about it.
Perhaps they can join coalist with other sectoral
organization in the party list just to make sure that they can
get a seat in the electoral tribunal.
INDEPENDENCE OF MEMBERS FROM POLITICAL PARTY
TN the moment you are chosen in the electoral tribunal, you
become independent from your political party that you
represent. This is to maintain the impartiality of the
electoral tribunal, being a quasi judicial body determining
election contest.
The change of political party or the removal of a member of
electoral tribunal from the political party will not be a
ground for the removal from the electoral tribunal itself.
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CONSTITUTIONAL LAW
Case: Bundoc vs Pineda
Here is a member of the electoral tribunal who was expelled
from the political party that he was representing because he
voted against a candidate of the political party in an election
contest that was held for the electoral tribunal
The question there is, would that mean removal because he
does not anymore represent the political party?
SC said, no. Because his seat is permanent and he is
independent from the political party.
JURISDICTION
What is the jurisdiction of the electoral tribunal?
All contests
When you say contests, there has to be two parties:
1. protestant
2. protestee
The protestant is the defeated candidate against the
winning candidate who has been proclaimed and had
assumed office as a member of congress.
If there is no contest, then you file a quo warranto
proceeding with the electoral tribunal; if the person you are
trying to remove has already become a member of the
congress.
Case: Sumaya vs Daza
There was an accusation that he was a green card holder of
US and thus moved for disqualification.
It was dismissed because in the first place, according to SC,
it has already become moot and academic because at that
time, Dazas term of office has already expired.
A case of disqualification should have been filed in earlier
at the time of filing the certificate with the Comelec.
They filed the disqualification case in the SC, it should have
been filed with the electoral tribunal because he is a
member.
There is no contest because this pertains to a qualification
of a member. He is not at all there to replace him in the
event this candidate or member is removed because of
qualification.
Should it be electoral tribunal? Instead of electoral tribunal,
you file it with the house concerned for his exclusion as a
member to protect the integrity of the house that only
qualified members should become members of the house.
Because the jurisdiction of the electoral tribunal is limited
only to contests. There is no contest because there is no
defeated candidate filing an election contest in order to
replace him.
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CONSTITUTIONAL LAW
So Cudilla went to de Vinecia to ask him to let him assume
office because he was a duly elected representative of Leyte
per resolution of the Comelec en banc.
De Vinecia told him to file his Quo Warranto proceedings in
HRET because Locsin has already been proclaimed as a
member of the house.
Is de Vinecia correct?
SC says, no. because the proclamation of Locsin was
premature. There was an appeal seasonably filed, therefore,
the Comelec was never divested of his jurisdiction over the
disqualification case.
Since the proclamation is invalid, it is as if no member has
been proclaimed as such. So it should have been the
Comelec to recognize that he is a member. He does not have
to file a Quo Warranto proceedings in the electoral tribunal
because that is already an pronouncement that he is the
duly elected representative of the district of Leyte.
Case: Limkaichong
Limkaichong ran as congresswoman in Negros Oriental.
Before the election, a disqualification case was filed against
her for lack of the required requisite of citizenship.
According to the complainant, the father was not a
naturalized citizen because the proceedings was invalid. And
because the father was not a citizen of the Philippines, that
makes Limkaichong ot a Filipino.
Despite the pendency of the disqualification case,
Limkaichong won the election. And the exercise of the quasi
legislative function of the Comelec passed a resolution that
all those who have won the election without prejudice that
the pendency of disqualification case should be proclaimed
as the duly elected candidate.
In this case, a resolution was passed and Limkaichong was
then declares as duly elected and she became a member of
congress.
Paras went all the way to SC because the disqualification case
was dismissed. According to Comelec, they were already
been divested of jurisdiction because Limkaichong has
already been proclaimed as a duly elected member of
congress. You continue the proceedings with the electoral
tribunal this time.
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CONSTITUTIONAL LAW
NO APPEAL OF DECISION OF ELETORAL TRIBUNAL
Where do you appeal the decision of the electoral tribunal?
Their decisions are final and executory.
Except when there is an allegation of abuse of discretion
amounting to lack or in excess of jurisdiction.
Case: Abubacar vs HRET
Jurisdiction of SC to review the decisions and resolution of
HRET operates only upon the showing of grave abuse of
discretion on the part of the tribunal tantamount to lack or
in excess of jurisdiction.
Such grave abuse of discretion implies capricious and
whimsical exercise of judgment amounting to lack of
jurisdiction or arbitrary and despotic exercise of power
because passion and personal hostility.
The grave abuse of discretion must be so patent and gross as
to amount to an evasion and refusal to perform any duty
enjoined by law.
In this case, it was absent. And thus the decision of the
electoral tribunal was sustained.
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COMMISSION ON APPOINTMENTS
MEMBERSHIP
It consists of 12 senators and 12 members of the House of
Reps presided over by the President of the senate
FUNCTION
The main function is to act on nominations by the president
on certain appointments where the constitution requires the
confirmation by the Commission of Appointments.
They should act within the period of 30 days while congress is
in session from the submission of the nomination.
APPOINTMENTS REQUIREING THE CONFIRMATIN OF CoA
1. Heads of executive department
2. Members of AFP
From Captain to Corporal in the navy or Cornel to
General in the ARMY.
3. Officers whose appointment are vested in the president by
the constitution
a. Comelec commissioner
b. COA commissioner
c. Civil service commissioner
d. Regular members of the judicial and bar council
4. Ambassadors, consuls and other public ministers
These cannot be expanded by ordinary legislation.
PROCEDURE
One the matter of procedure, CoA can only hold session while
congress is in session.
APPOINTMENTS
Appointments could either be regular or ad interim on the
part of the president.
If it is REGULAR APPOINTMENT, appointment of those I have
enumerated must require confirmation to make the
appointment permanent.
Talking about regular appointments while congress is in
session, if it is only in acting capacity therefore temporary in
nature, even if those referring to I have enumerated, the
president is not compelled to submit the names to the CoA
for confirmation because of the nature of appointment
which is only in acting capacity and that is discretionary on
the president.
APPOINTMENT DURING RECESS
If the president makes an appointment while congress is in
recess, therefore CoA is likewise in recess, what is the nature
of the appointment?
It is permanent but immediately it is effective upon
qualification of the appointee but will last only until the next
adjournment of the congress if it is not confirmed.
By next adjournment, it could mean regular or special
session because there is no distinction.
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CONSTITUTIONAL LAW
So if the congress is not in recess, they should follow that
there is confirmation.
But if the congress is in recess, the president can still make an
appointment even for a secretary of a department. It is still
permanent but the duration is limited. Unless it is confirmed
by the CoA, it shall last only until the next adjournment of
congress.
ADJOURNMENT OF SESSION
The adjournment can be of a regular session or a special
session.
If it is a regular session, it is determined by law, it will last
until 30 days before the opening of the next regular session.
If it is a special session, after the termination of the special
session by congress after they are being called by the
congress.
REAPPOINTMENT
Can you be reappointed or renominated to the same
position?
Yes. For as long as it is not disapproved, you can be
renominated.
If it is only by passed, meaning it is not acted on within 30
days from its submission to the CoA, you can be
renominated.
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Case:
However in the case of this commissioner, he was nominated
by the president to be the chairman of the Comelec. This has
always been by passed by CoA until the president appointed
him in an interim appointment, immediately permanent.
Because he was not confirmed by CoA, upon the next
adjournment of congress, his appointment expired. He was
again reappointment by the president.
Was there a violation of the prohibition on reappointment of
the commissioner?
No. because the appointment was ad interim, not a regular
appointment. The prohibition against reappointment applies
only to a regular appointment, meaning appointed or
nominated by the president, confirmed by the CoA, he had
finished his term, then he cannot anymore be reappointed.
But for an ad interim appointment, it will last only upon the
next adjournment of the congress and therefore expires if
not confirmed. Upon the next adjournment he can still be
renominated to the same position.
MEMBERSHIP OF CoA
It is the same, PROPORTIONATE REPRESENTATION from the
political parties.
CHANGE OF POLITICAL AFFILIATION
And this is highly partisan in the sense that the moment that
you seize to be a member of the party, automatically, you
are removed as a member of CoA.
The change of political affiliation has to be permanent. If you
it is only a coalition, that is not considered a permanent
change of political party affiliation to remove you as a
member of CoA.
NUMBER OF MEMBERS
There are 24 members all in all. 25, if you include the
president of the senate.
But there is no need to fully fill up the 24 membership in the
CoA. It is upon their discretion, as long as:
1. they constitute majority of the membership
2. at least a political party is represented by 2 members in
order to qualify to get a seat in the CoA.
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CONSTITUTIONAL LAW
AIDING IN LEGISLATIVE ENACTMENTS
LEGISLATIVE INQUIRY and QUESTION HOUR as part of the
oversight function of congress.
LEGISLATIVE INQUIRY
It is the power of congress to inquire into any matter that
may be a subject of legislative enactment.
Either it is pending or not pending at all, for as long as it will
help congress in formulating a law.
WITNESSES
So those persons who may be summoned to appear before a
legislative inquiry are witnesses. They are not accused. And
sometime we would wonder why in the course of the
session, they become defensive.
So they cannot invoke the right against self incrimination
because it is supposedly an enlightening session. You as a
witness to enlighten congress, help them in legislation.
EXECUTIVE PRIVILEGE
EO 461
Case: Drillon vs Executive Secretary
Arroyo passed an Executive Order 461 on Executive Privilege,
saying that cabinet members should not appear in a
legislative inquiry either in Congress, house or Committee
Hearing without her consent.
So if one is served with summons to appear, they would say,
ask the president first.
Then you have Drillon questioning the constitutionality of EO
461.
Is it correct for the president to invoke executive privilege?
SC said yes. However, that can only be invoked by the
president. IT IS NOT EXTENDED TO THE CABINET MEMBERS.
So SC partially nullified the provisions of EO 461.
It is not by the position that you hold as a cabinet member
that makes you exempt from legislative inquiry, but it is the
information that you are in possession with because it
involves the privilege of the president. It is an executive
privilege.
Precisely, to determine WON information will affect the office
of the president, or it will affect the integrity of the office of
the president, it will discharge the functions of the
president, one has to ask the president if the information
being held by the cabinet member that the congress wants
to inquire into is an executive privilege.
And so they have to stay the purpose of the summons of this
cabinet member so that to give time to the president to
invoke the executive privilege.
It is not the cabinet member who enjoys the executive
privilege but it is the president.
The information being held by the cabinet member that the
president may invoke executive privilege.
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CONSTITUTIONAL LAW
availability of the information elsewhere by an appropriate
investigating authority. You can get the information
elsewhere.
IOW in this case, the executive privilege was sustained.
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LEGISLATIVE INQUIRY
It is the power of congress to inquire and investigate on any
matter WON there is a pending subject matter on legislation
which includes the power of contempt.
POWER OF CONTEMPT
The power of contempt may not have been expressly granted
in the constitution, but inherent in the power of congress to
conduct investigation, to give teeth to that power OW it will
be useless to call people and give them option to attend or
not.
LEGISLATIVE POWER OF CONGRESS
This power is discretionary, and cannot be encroached upon
by the two other branches of the government due to
separation of powers.
Case: Neri vs Senate
In fact, if cited for contempt in a legislative inquiry, the
president cannot grant him pardon, neither can the court
issue an injunction to enjoin the implementation of
contempt made by congress unless of course there is an
abuse of that discretion amounting to lack of in excess of
jurisdiction.
EXECUTIVE PRIVILEGE
There are certain information that may not be disclosed such
that matter of executive privilege of the president.
The information that is in the possession of the president or
of his executive officer or cabinet members that cannot be
disclosed even to congress and to public at large for it might
affect the office of the president or his integrity.
Examples:
1. discussions or deliberations during a cabinet hearing
2. conversation between the president and advisors
3. conversation with consultant for policy making
4. city negotiation by petition
5. matters relating to the presidents power as a commander
in chief with respect to military secrets or strategy
These are information that may not be disclosed to congress
even if a cabinet member is summoned by congress to
appear.
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CONSTITUTIONAL LAW
BALANCING OF EXECUTIVE PRIVILEGE
However, according to SC, this has to be balanced with
1. the power of legislative inquiry on the part of congress
2. the right of people to information on matters of public
concern insofar as the public at large
3. insofar as the exercise of the power of SC and other courts
in the settling of disputes,
And how to balance it, that has to be determined by the
courts.
IOW it is not absolute, it still has to be looked into by SC.
Which of these two equally important interest must be given
priority? Executive privilege? Or the three other public
interest?
CASES
Case: Senate vs Ermita
This is the declaration of the unconstitutionality of EO 464 on
Executive Privilege, as to the extent of the exercise of the
executive privilege of the president.
Case:Neri vs Senate
They discussed what kind of privileges of the president that
the president or his cabinet members cannot be compelled
to disclose.
Case: Akbayan vs Aquino
This has something to do with Jepepa where there is a
question whether Secretary Aquino was asked to give a copy
of Jepepa for the study of congress.
Because it was still under negotiation, it is confidential and
part of the executive privilege of the president.
According to SC, he cannot be compelled because after all, it
is the very matter or if they want to inquire about it, there
are other sources other than from the office of the BPI.
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CONSTITUTIONAL LAW
WITNESS SUMMONED CAN BE COMPELLED
While we would say that the mere filing of a criminal or
administrative complaint against a witness or person
summoned before a legislative inquiry can be compelled to
appear before the senate or the congress.
Because they are not accused in a legislative inquiry. Rather,
they are mere witnesses.
So they do not violate the separation of powers between the
legislative branch or any court or quasi judicial bodies where
there is also a case filed against witnesses.
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CABINET MEMBERS
As regards to the cabinet being sovereign before the
legislative inquiry, they have to ask for the consent to
appear to give the president the chance to invoke the
privilege.
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CONSTITUTIONAL LAW
QUESTION HOUR
APPROVAL OF PRESIDENT
Does it need the approval of the president?
Yes.
LIMITED TO CABINET
How is a question hour conducted?
This is limited to cabinet members. So not any person will
be summoned before any committee or senate or
congressional inquiry.
So it is either
a. the cabinet requesting an audience with the senate or
congress or any of its committee insofar as matters that
affect or they want to clarified about.
b. the president to be informed of the sessions on reaching
the congress,
c. congress summoning a member of the cabinet.
POWER OF OVERSIGHT OF CONGRESS
If it is just a follow up on laws that are to be enforced by the
different departments that is part of the oversight function
of congress which would include scrutiny, investigation and
supervision.
Power of oversight embraces all activities undertaken by
congress to enhance its understanding of and influence the
over the implementation of the legislation it has enacted.
Clearly, oversight concerns post enactment measures under
taken by congress to monitor beurocratic compliance with
program activities, to determine whether the agencies are
properly administered to eliminate executive dishonesty and
prevent executive usurpation of legislative authority to
assess executive conformity with congressional perception
of public interest.
This may be done in a question hour.
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DECLARATION OF WAR
Who has the power to declare war?
It is the president who declared war. But there cannot be
declaration of war should there be no definition of the
existence of a state of war.
The law does not make it a condition sine qua non to the
declaration of war.
But in the matter of the existence of the state of war is for
the purpose of granting or vesting in the president
emergency power, that is why they have to determine WON
there exist a state of war.
But WON there is a determination of the existence f a state of
war, of course the president can declare war as the
commanding chief of the AFP.
OW if the president has to wait for congress to hold session
and vote WON we are on a state of war, then we are already
invaded.
DECLARATION OF STATE OF WAR
However, for purposes of the prosecution of the war such as
granting emergency power to the president so that the
president can incorporate funds for the war, it is important
that there has to be a declaration of state of war, and that is
vested with the congress.
How many votes are needed?
2/3 votes both houses, voting separately.
EMERGENCY POWER
Where is emergency power vested?
It is not in the president but it is delegated to the president.
It is vested in congress.
This is the power that is delegated to the president in a
statute under sec 23.
Because you might think that this power is exercised by the
president; this can only be exercised by the president if it is
delegated by the congress to the president.
Under what cases?
Only in cases of:
1. national emergency
2. war
And thus precisely a determination of congress whether we
are in a state of war.
But in the determination if we are in the state of rebellion or
national emergency, that may be done by the president
only. (David et al vs Arroyo).
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CONSTITUTIONAL LAW
LAW MAKING PROCESS
There is a sponsor of the bill which will be under first reading.
Only the title will be read.
Thereafter, it is referred to a committee for referral.
The committee could either conduct a further study on a bill
that is being sponsored through hearings or may just lay it
on the table, meaning not act on it.
In the event the committee concerned acts on it, it goes back
to the plenary session for a second reading.
On the second reading, not only will the title be read but the
whole text of the sponsored bill including the recommended
changes made by the committee.
Thereafter, there will be discussion and debate on the bill.
Then it will be recommended for printing.
After the printing, it will distributed at least three days before
the plenary session is held and then there will be a third
reading.
After the third reading, no amendment will be made, then
they will take a vote.
Thereafter, it will be transferred to the other house.
The three readings is indispensible.
But where the president certifies that the bill is urgent
because of an exigency or emergency, the three readings
may be done on the same day. And the printing may be
dispensed with. After the third reading, there will be the
taking of the vote.
If there are differences between the two houses version, it
will be referred to a bicameral conference committee. It can
even make a practically new version of the bill of both
houses.
There will be no violation here. It is not superior to the two
other houses because after all, the recommendation of the
bicameral conference committee still has to be submitted to
the plenary sessions of both houses where they will take a
vote whether to agree to the bicameral conference
committee or not.
So ultimately, if it is carried out, it is approved by both
houses. The amendments could take as a substitute.
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House
of
1. general bill
-ex. ANNUAL BUDGET
-prepared by the president to be submitted before the
regular session
-MAY NOT BE INCRESSED BY CONGRESS
-MAY BE DECREASED BY CONGRESS
-must specifically to some particular appropriation
and the legislation or enactment must be limited in
its operation to the appropriation to which it relates
-of course there must be an available fund for that
purpose
-NO JUGGLING OF FUNDS
-if there is an amount appropriated for a specific
purpose, you cannot transfer it as GR to another
purpose or from one item to another item
-EXCEPTION:
-depends on whose budget, who will approve
a. executive - president
b. legislative - president of the senate or the
speaker of the house of representatives
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CONSTITUTIONAL LAW
c. judiciary - chief justice of SC
d. constitutional commissions - chairman
-example. The budget of the military cannot be
transferred from one item to another, it has to be
with the consent of the president, not in his capacity
as the commander in chief but his being the
president to avoid the juggling of the funds.
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CONSTITUTIONAL LAW
POWER OF CONGRESS TO IMPOSE TAXES
Except for sec 28, where tariff powers are vested in the
president, the congress is the one that imposes taxes.
WHO IS SUBJECTED
And as a GR, in the imposition of taxes, everybody is
subjected to tax except by vote of majority of the members
of congress.
TREATY TAX CREDITS
Tax credits granted by treaty. How many votes are needed?
It needs no concurrence from congress. But because it is a
treaty, it needs concurrence of 2/3 of senate.
TAX EXEMPTIONS ON CERTAIN INSTITUTIONS
Churches, personagesproperties that are directly, actually
and exclusively used for religious purposes and for
charitable institutions.
Case: Lung Center vs Quezon City
Under 1973, 1987 Constitution and RA 7160, in order to be
entitled to exemption, petitioner is burdened to prove by
unequivocal proof that it is a charitable institution and the
properties are actually, directly and exclusively used for
charitable institution.
EXCLUSIVELY USED
TN of the definition of EXCLUSIVE. It is defined as possessed
or enjoyed to the exclusion of others, barred from
participation or enjoyment.
And exclusively is defined in a manner to exclude or enjoy the
privilege exclusively.
The words DOMINANT USE and PRINCIPAL USE cannot be
substituted for the words used exclusively without doing
violence to the constitution and the law.
SOLELY is synonymous to the word exclusively.
Case: Lung Center vs Quezon City
Part of its property was for charitable purposes for free for
indigent purposes. But there is a part of a property which
they had for a fee. So those who are well off enough to pay
for fees will pay.
They are now asking for exemption because they are taxed
for the income that they derived, and on the property as
well because it was with a fee. They say that this institution
is principally a charitable institution.
SC said, that would not mean exclusive. So there is the
definition of exclusive use there.
Kwin
EDUCATIONAL PURPOSES
The application of the exemption refers to non stock non
profit educational institutions that would include their
revenues. Not only the properties that they are in
possession with, including the revenues.
They are exempt from taxation for as long as it is in relation
of educational purposes.
In contracts, you have those proprietary educational
institution, do they enjoy the same privilege as a non stock
non profit institution? Because this is the issue of some
schools here that is for business?
The law says, unless OW provided by law. So they may be
exempt. But our local laws are subjecting them to taxation,
so they cannot complain.
This includes foundations that are non stock non profit, like
USC foundation. They are exempt also from taxation.
PROCEDURAL LIMITATION
Every bill must embrace one subject matter. Same thing as
when laws are initiated by the people on the process of
initiative and referendum.
OW, if there will be several subject matters, that will be a
HODGE PODGE LAW and is prohibited by law and can be
prohibited by the president on the concept of
INAPPROPRIATE PROVISIONS.
RECORDS OF THE PROCEEDING OF THE DELIBERATIONS
Records of the proceeding of the deliberations:
1. journal
2. enrolled bill
Which of these two will prevail in case of conflict?
What is their probative value?
ENROLLED BILL is the certified and authenticated version of
the bill that is signed by the president before becoming a
law.
After both houses through their respective heads certify
that that is their version, it will be enrolled. It will be
authenticated by the president of the senate and the
speaker of the house of representative and signed by the
president.
In case there is a conflict and a question on what is the
version of the law, the enrolled bill is conclusive upon the
courts as to the contents, the tenor of the legislative
proposal.
Should they think that it is actually not the version that
both houses intended, then they need to amend it. They
cannot just set aside the enrolled bill. So far as the court is
concerned, it is conclusive
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CONSTITUTIONAL LAW
What if it conflict with the journal?
The JOURNAL is required by the constitution to be kept by
the secretary of each house in order to contain the
following:
1. veto message of the president
2. voting of both houses overriding the veto
3. yeas and nays of the members of both houses in the
passing of the bill
4. yeas and nays requested by 1/5 of the members of the
house to be entered in the journal
Insofar as those information are concerned, they are
conclusive upon the courts. So you must know what are
these information that need to be entered in the journal.
In case of conflict of the voting, the journal always prevails.
If you go by the matter WON the bill is valid in its content
or tenor, you have to go by the enrolled bill.
Case: Abakada Guro Party list vs Ermita, Oct 18, 2005
The signing of the bill by speaker of the house and the
president of the senate and the certification of the
secretaries of both houses of congress that it was passed are
conclusive of its due enactment.
Case: Pons vs US
This about the substances.
This is important. One, as regards to the conclusiveness of
the journal, and the another one is the conclusiveness of the
enrolled bill.
This has something to do with the time when the bill was
passed because there was an allegation that the bill was
signed after the term of office of the office.
But it was stated in the journal that it was passed before 12
midnight.
So which two will prevail as far as the court is concerned?
It should be the journal because according to the SC, the
memory of man may fail but definitely what was recorded in
the journal. And it is inclusive upon the courts because the
courts must accord respect to the two branches of the
government, having these records prepared by co-equal
braches of government which is congress.
SEC 32
SECTION 32. The Congress shall, as early as possible, provide for a system of
initiative and referendum, and the exceptions therefrom, whereby the
people can directly propose and enact laws or approve or reject any act or
law or part thereof passed by the Congress or local legislative body after the
registration of a petition therefor signed by at least ten per centum of the
total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters thereof.
Kwin
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CONSTITUTIONAL LAW
thus they moved for the dismissal of the case.
TN this can only be invoked by the president. It is personal
to the president. So it is up to the president to invoke it or
waive that right.
So when the president files a case against a private
individual, president is considered to have impliedly waived
his immunity.
But its up to the president. It cannot be used as a defense
on the part of the person being sued by the president
IMMUNITY FROM SUIT IS PERSONAL TO THE PRESIDENT
TN immunity from suit is personal to the president. It cannot
be invoked under qualified political agency by the alter egos
of the president. This cannot be delegated to the different
secretaries of the different departments.
Case: Secretary Gloria Arroyo
She invoked immunity from suit being the secretary of the
Department of Education.
SC said that it is not extended to the cabinet members.
This is only personal to the president.
QUALIFICATIONS
1. natural born
2. resident of Philippines for 10 years immediately preceding
the election
3. 40 years on the days of election
4. citizen before assuming office
TERM
PRESIDENT
6 years
Unless OW provided by law
Term begins at noon of Jun 30 following the election.
When we say, unless OW provided by law, can his term of
office be extended?
No. It refers to the commencement of his term of office. It
could be other than June 30 following the day of election.
VICE PRESIDENT
6 years but in no case for 2 successive terms.
So he can serve for more than 12 years as long as it is not
successive.
Can the VP who assumes the presidency run again as
president after the expiration of his term?
It depends.
If he had served for more than four years in the office of his
predecessor, he is disqualified.
If 4 years or less, he can still run as president.
Kwin
MANNER OF ELECTION
PRESIDENT
How are they chosen?
They are chosen by direct votes.
BOARD OF CANVASSERS
Who canvass the election returns from the different
provinces and cities? Who serves as the board of
canvassers?
The congress. The congress cannot delegate that to
Comelec. It is directly transmitted to congress.
But they can conduct a joint committee to authenticate the
election returns that have been submitted. But I dont think
that is now a controversial thing now that we are
automated.
Still it is the congress that will canvass and thereafter they are
going to make a proclamation.
BTW, remember that during the election time, usually, the
term of office of the members are already expiring except
for the 12 senators whose term of office have not already
expired yet.
Is it not that they adjourn sine die? What is adjournment sine
die?
When they adjourn as a legislative body. Meaning, in the
matter of law making.
Elections are held every 2nd Sunday of May. Before an
election is made, they adjourn sine die. This is without
prejudice to continuing their session not as a legislative body
but as to perform other functions vested in them or
conferred upon them by the constitution such as the
canvassing of votes for president and VP.
This is a function that they can be compelled to stay in
session and attending and performing the function
notwithstanding that they have already adjourned insofar as
being a legislative body.
So they adjourn as a legislative body insofar as lawmaking
but not insofar as performing functions that are required of
them by the constitution such as acting as the board of
canvassers.
PROCLAMATION
Then they have to vote. To proclaim, they have to have
majority votes in a joint session voting separately.
DEADLOCK
In case there would be a deadlock or a tie, they have to break
the tie with majority of both houses.
ELECTION CONTEST OR PROTEST
In the mean time, any election contest or protest, where is it
filed?
You have the PET Presidential Electoral Tribunal.
Kwin transcripts
Page 71
CONSTITUTIONAL LAW
Kwin
Case: Estrada
In the case of Estrada running again as president. Supposedly
6 years without reelection. So meaning, you have to finish
the term in 6 years.
Because it did it say: voluntary renunciation is considered an
interruption of the continuity of the term of office like in
the case of members of congress.
So, the presume that the president in order to be disqualified
to run for election, he will have to finish the 6 years term.
Kwin transcripts
Page 72
CONSTITUTIONAL LAW
FILLING UP OF THE VACANCY
It may occur at the beginning of the term or during the term
of the president or VP.
BEFORE ASSUMPTION - DEATH
If it occurs before the term or even before the president
assumes office, he died or he suffered permanent disability,
the VP becomes the president.
If there is no VP, then it would be the president of the senate,
the speaker of the house of representatives, in that order
acting as the president in the mean time until the VP has
succeeded, qualified or chosen.
BEFORE ASSUMPTION FAILED TO QUALIFY OR NONE
CHOSEN
If at the beginning of the term, the president failed to qualify,
then the president or the senate shall act as the president.
Or if no president has been chosen, then the president of the
senate or the speaker of the house of representatives, in
that order will be acting as the president.
In the absence of the speaker, they will have to convene and
provide for a law that will serve to provide the manner of
succession who shall be acting as the president in the
mean time the elect president has not yet been chosen or
failed to qualify.
WHEN THERE IS ASSUMPTION
During this time, the term of the president, you go into the
succession, only when there is permanent vacancy caused
by:
1. death
2. permanent disability
3. resignation
4. impeachment
2. PERMANENT DISABILITY
In the case of PERMANENT DISABILITY, should it always be
physical?
What about FUNCTIONAL DISABILITY? Meaning you cannot
anymore function effectively as a president because you do
not have anymore the support of your cabinet, AFP or LGUs.
Case: Estrada
It is not so much on the resignation but on the functional
disability of the president. Virtually, he was a laying duck
because he cannot command anymore the leadership
insofar as the government is concerned because he lost the
support of the key officials of the government especially the
support from the AFP.
That has to be defined by the SC because it was a mere
opinion of one of the justices.
Kwin
3. RESIGNATION
This is defined in the case of:
Case: Estrada vs Disierto
No formal process is required like when you have to tender
a resignation letter. For as long as there is a manifestation of
the relinquishment of the power and the act is more to the
relinquishment by abandoning physically the office that he is
abandoning, that is already considered as resignation.
There were enumerated manifestations of the act of
relinquishment of the power which the SC has concluded
that indeed, he has resigned.
4. IMPEACHMENT
The president can only be removed through impeachment.
Because he is the president, you have the initiation by the
house of representatives, and then you have the senate
acting as the tribunal.
You will have the chief justice of SC as the presiding officer.
How about the VP? Same manner in creating a vacancy in
the office of the VP.
1. death
2. permanent disability
3. resignation
4. impeachment
Insofar as the VP is concerned, the one who is going to
preside the impeachment proceedings in the senate will be
the president of the senate.
SUCCESSION DUE TO VACANCY OF PRESIDENT
In case a vacancy occurs, there will be the succession. The VP
shall become the new president by operation of law.
In the absence of the VP, you will have the president of the
senate o act until the election shall be held. Or you have the
speaker.
But TN in the absence of either, congress will meet and
provide for the manner of succession. Here, they will call for
a special election.
No special election however will be called unless the vacancy
occurs within 18 months before the next regular election.
SUCCESSION DUE TO VACANCY OF VP
The president nominates and the members of congress shall
vote by majority votes, voting separately.
There will be no special election.
Special election will be held when both offices of the
president and VP are vacant.
Kwin transcripts
Page 73
CONSTITUTIONAL LAW
TEMPORARY DISABILITY OF THE PRESIDENT
There is a discussion on the temporary disability in the case
of:
Estrada vs Disierto
In the determination WON there is a conflict between the
presidents pronouncements and that of the majority of his
cabinet, it will be for congress to decide, WON indeed the
president suffers temporary disability in order to have the
VP to take over and act as the president.
VOTES REQUIRED TO DECLARE TEMPORARY DISABILITY
How many votes are needed to declare the temporary
disability on the part of the president?
2/3 votes voting separately.
It is only when on the second time that the majority of the
cabinet will declare that the president to be under
temporary disability.
INITIATIVE OF DECLARATION OF TEMPORARY DISABILITY
So the declaration of temporary disability could either be by
the initiative of:
1. the president himself informing congress that he is under
temporary disability
2. the majority of its cabinet
INITIATIVE OF MAJORITY OF CABINET MEMBERS
This can be protested by the president. And the moment the
president contradicts that, then he can reassume the
functions of the president.
Then the cabinet again can go back to congress and tell then
that indeed the president is in temporary disability.
The second time that they will do that, then congress has to
decide.
And the matter of declaring temporary disability is
discretionary of congress. Not even the SC can interfere.
Case: Estrada vs Disierto
The question whether there is temporary disability of Estrada
is a political question beyond SCs power of review.
The decision that President Arroyo is a de jure president,
made by a co-equal branch of government cannot be
reviewed by the SC because that is discretionary of the SC.
DECALARTION OF TEMPORARY DISABILITY
In relation to this, you have also the requirement that while
the president is ill, it has to be declared and the public has to
be informed about it.
Kwin
Kwin transcripts
Page 74
CONSTITUTIONAL LAW
APPOINTMENT POWER OF THE PRESIDENT
Being the chief executive, by nature, appointing power is
vested in the president.
What are the different kinds of appointments?
1. heads of executive departments
Kwin
Kwin transcripts
Page 75
CONSTITUTIONAL LAW
LIMITATIONS OF APPOINTMENT
1. CONFIRMATION OF CoA
The first four appointments that we have mentioned are
subject to the confirmation of the Commission of
Appointments.
KINDS OF APPOINTMENTS
TN of the different kinds of appointments relating to this,
insofar as confirmation:
1. permanent
2. temporary
1. regular
2. ad interim
PERMANENT APPOINTMENT
If the appointment is permanent, and congress is in session,
the process is like this:
The president nominates, and then the CoA supposedly
should act in it within 30 days.
If the CoA confirms the nomination, then the president
issues what they call, COMMISSION. And thereafter the
appointee accepts the appointment and assumes office.
If the CoA disapproves, then the president cannot
renominate the same candidate.
Can the appointee return to the previous position he was
occupying before the nomination of the president? YES.
Cen he be renominated? NO.
If the CoA does not act on the nomination within 30 days
from submission, then the nomination is as good as by
passed.
Can the appointee return to the previous position he was
occupying before the nomination of the president? YES.
Cen he be renominated? YES.
Because his removal or separation of office shall take effect
only upon confirmation.
TEMPORARY APPOINTMENT
Even a temporary appointment or a mere designation, does
that require confirmation by the CA? Assuming it refers to
heads of executive department, officers of AFP, consul, etc
If its only temporary or in acting capacity, or its a mere
designation (additional functions to the regular function),
that would not require confirmation by the CoA.
Acting appointment can be made even if congress is in
session because it does not anyway require confirmation by
the CoA.
Kwin
REGULAR APPOINTMENT
It is made by the president while congress is in session.
TN that CoA cannot act if the congress is not in session.
The president has to submit the nomination to the CoA.
If the CoA disapproves, then he cannot renominate the same
candidate.
If the CoA approves, then the appointment takes effect upon
confirmation.
If the CoA does not act on it within 30 days, then it is good as
by passed. The president can still renominate the same
candidate.
AD INTERIM APPOINTMENT
It is made by the president while congress is not in session,
therefore CoA is not in session.
It is effective immediately upon qualification of the
appointee. And it is permanent.
However, it will last only until it is disapproved by the CoA
upon the resumption of the session.
If it is not confirmed, then it shall last only until the next
adjournment of congress. So there is a limit on its duration
although it is permanent.
Can the same candidate be renominated after the expiration
of the appointment because it was not confirmed even after
the adjournment of congress?
YES. It is only when it is disapproved when he cannot be
renominited.
Even if there is a prohibition on reappointment in the case of
Constitutional Commissioners of COA, Civil Service or
Comelec?
YES. Because the prohibition against reappointment as to
the officers I have mentioned applies only to regular
appointment, not interim appointment.
Case: Matibag vs Beripayo
Case: Binamira vs Garucho
SC said, an ad interim appointment is a permanent
appointment because it takes effect immediately and can no
longer be withdrawn by the president once an appointee is
qualified into office.
The fact that it is subject to confirmation by the CoA, does
not alter its permanent character.
It is effective until disapproved by the CoA or until the next
adjournment of congress.
It is extended only during the recess of congress.
If it is disapproved by CoA, appointing can no longer
extended in the new appointment.
If by passed, the president is free to renew the ad interim
appointment.
Kwin transcripts
Page 76
CONSTITUTIONAL LAW
Case: Pimentel vs Executive Secreatry
The law allows the president top make such acting
appointment. The president may even appoint in acting
capacity a person not in the government service as long as
the president deemed that person competent.
Acting appointment is temporary in nature. It is intended to
fill up an office for a limited time until the appointment of
permanent occupant to the office.
In case of vacancy in an office occupied by an alter ego of
her choice as acting secretary before the permanent
appointee of her choice and assume office, it may be
extended anytime there is vacancy even while congress is in
session.
Kwin
Kwin transcripts
Page 77
CONSTITUTIONAL LAW
POWER OF CONTROL AND SUPERVISION BY THE PRESIDENT
CONTROL VS SUPERVISIONS
C: -when the president nullify, alter or set aside what a
subordinate officer has done in the performance of his
duties and to substitute the judgment of the officer or
subordinate
S:
EXAMPLE
C: -control over executive department
S: -supervision over local governments
REORGANIZATION OF OFFICES
In relation of the power of control of the president over the
different departments, bureaus and agency under the
executive branch or office of the president, TN of presidents
REORGANIZATION OF OFFICES which may include even
1. the transfer of functions from one department to another
2. the merger of offices under the executive branch
3. the abolition of offices in the executive branch
Case: Buklod vs Zamora
This was the deactivation of the EIIB because some of the
functions were already performed by the other offices of the
government. Some of the personnel were transferred
offices. And those who cannot be transferred lost their job.
Thus the question of the authority of the president to do
that because virtually it abolished EIIB. According to them
only congress that created the office can do that.
But SC said that GR has been the power to abolish the
public office is dislodged with the legislature. The exception
however is that as far as bureaus, agencies or offices in the
executive department is concerned, the presidents power
of control may justify him to inactivate the power and
functions of an office or certain laws may grant him broad
authorities to carry out the reorganization measures.
The chief executive under our laws has the continuing
authority to reorganize the administrative structure of the
office of the president.
TN only the office of the president or the executive office
proper.
Kwin
Case: Malaria
Malaria Employees and Workers Association of the Phils.
Inc. were some of the functions the DOH have been
transferred.
SC said that the president has the authority to carry out the
reorganization of the DOH under the constitution and
statutory laws.
This authority is an adjunct of his power to control under
art 7 sec 1 and 17 of the 1987 constitution.
The presidents power to reorganize the executive branch
is also an exercise of his residual power, which grants the
president broad organizational power to implement the
reorganization measures. Be that as it may, the president
must exercise good faith in carrying out the reorganization
of any branch or agency of the executive department.
Case:
SC said the control of the organization of the national
government and agencies may include the power
1. to group, consolidate bureaus and agencies
2. to abolish offices to transfer functions
3. to transfer functions
4. to create and classify functions, services and activities
5. to standardize salaries and materials
The validity of the laws are unquestionable. The 1987
constitution clearly provides that all laws, decrees, executive
orders and proclamations, letters of instructions and other
executive instruments not inconsistent with the constitution
shall remain operative.
Case: Domingo vs Zamora
The presidents power to reorganize offices outside of the
office of the president proper is limited. Merely transferring
functions or agencies from the office of the president to the
departments or agencies and vice versa.
In DECS, it is now DoE. What happened to Culture and
Sports? The functions have been transferred to the
Philippine Sports Commission. It was removed. It is now
attached to the office of the president.
See section 16.
Beraugo vs Truth Commission
Kwin transcripts
Page 78
CONSTITUTIONAL LAW
QUALIFIED POLITICAL AGENCY DOCTRINE
TN as regard of the power of control is the QUALIFIED
POLITICAL AGENCY DOCTRINE.
That power of control of the president is delegated to the
different secretaries of the different departments as adjunct
to the office of the president, or acting as alter egos of the
president.
They perform the function and they are considered as the
functions being performed by the president himself unless
the acts are disapproved or repropriated by the president or
if the president is require to act in person by law or by the
constitution.
This is important; that while we have this qualified political
agency which practically makes the act of the secretary as
the act of the president; precisely in the exhaustion of
administrative remedies, the moment it is decided by the
secretary of the department, you need not go to the
president because the act of the secretary has exhausted
the administrative remedy, you can now go to the courts; as
an exception to exhaustion of administrative remedies.
NON DELIGABLE ACTS
TN however that there are certain acts that cannot be
delegated to a delegate such a secretary of a department. So
that even if it is acted upon by the secretary, that is not
considered as an act of the president.
Even if ratified by the president, still, it cannot be considered
as final. Still, it has to be acted upon by the president
himself.
What are these functions?
1. residual power of immunity from suit
-this cannot be also enjoyed by an alter ego
2. declaration of martial law
3. suspension of the privilege of the writ of habeas corpus
4. pardoning power of the president
-this is the grant of pardons, commutations, reprieves, and
remissions of fines and forfeitures
Kwin
Kwin transcripts
Page 79
CONSTITUTIONAL LAW
COMMANDER IN CHIEF POWERS OF THE PRESIDENT
POWERS
What are the powers?
1. call out AFP (cannot decipher)
-the power to call out the AFP to prevent or suppress
lawless violation, invasion or rebellion
2. suspend writ of habeas corpus
3. proclaim a state of martial law
4. control the acts of the AFP
POWER TO CALL OUT AFP
This is the power to call out the AFP to prevent or suppress
lawless violation, invasion or rebellion.
It is not subject to judicial review. It is discretionary of the
president.
He doesnt have to report to congress, unlike the suspension
of the writ of habeas corpus or the declaration of martial
law, where there are constitutional limitations.
CONSTITUTIONAL LIMITATIONS OF SUSPENSION OF WRIT OF
HABEAS CORPUS AND PROCLAMATION OF STATE OF
MARTIAL LAW
REQUISITES
Only two requisites:
1. invasion or rebellion, AND
2. public safety requires it
Invasion or rebellion must be actual and not merely
imminent.
EXPIRATION
On 60 days, automatically it is lifted by operation of law upon
the expiration of the period unless it is revoked earlier or if
not it is extended by congress by majority votes in a joint
session voting jointly. (!this is one of the exceptions where
the houses vote jointly!)
The president cannot set it aside neither can it be reviewed
by SC.
REPORT TO CONGRESS
Then the president has to report to congress within 48 hours
from the declaration of suspension. He must submit a repot
to congress.
The purpose of the report is for the congress to determine
whether it should be revoked.
Kwin
LENGTH OF DETENTION
For how long can you be detained where the court cannot
interfere into the detention after a warrantless arrest
pursuant to the suspension of the writ of habeas corpus?
You cannot be detained for more than 72 hours, unless you
are judicially charged.
-RIGHT TO BAIL
And the right to bail is still available unless it is not bailable,
like coup d etat.
Of course this is without prejudice to hearing. Because
there are two requisites to deny you of your right to bail:
1. charged with capital offense
2. evidence of guilt is strong
Kwin transcripts
Page 80
CONSTITUTIONAL LAW
SEC 19 EXECUTIVE CLEMENCY
Grant of:
1. Pardon
2. Amnesty
3. Reprieve
4. Commutations
5. Remittance of fines and forfeitures
GRANT OF PARDON
Usually this is granted to persons or accused who are charged
with ordinary offenses whether criminal or administrative in
nature
It can only be granted when the judgment of conviction has
become final and executory.
EFFECT OF GRANT
What will be effect of granted?
He will be relieved of further punishment.
Meaning, if convicted and the judgment of conviction has
become final and executory, even if he has served it already,
still he can be granted pardon because that will relieve him
of further punishment.
So he need not serve his remaining years if there is still a
number of years that he has to serve as part of his sentence.
KINDS OF PARDON
The moment he is granted pardon, it could either be absolute
or conditional.
ABSOLUTE, WON it will be accepted by the pardonee, it
doesnt matter.
CONDITIONAL, that requires the consent of the pardonee
because it can be more burdensome on his part.
GRANT IN ADMINISTRATIVE CASES
What is the effect of grant of pardon in administrative cases?
Would it reinstate him?
That depends on the nature of pardon that may be granted
by the president.
The president has to specify that it is including his
reinstatement in office.
EFFECT ON FULLY SERVED SENTENCE
This may also be served to persons who have fully served his
sentence because there are some cases where you have
conviction for more than 2 years of imprisonment or when
you are dismissed from the service.
There are accessory penalties included in the penalty or
sentence.
Like the forfeiture of your:
Right to vote
Parental authority over children
Administration over conjugal property
Right to run for public office.
Kwin
Kwin transcripts
Page 81
CONSTITUTIONAL LAW
GRANT OF AMNESTY
It is a pardon granted by the president however with the
concurrence of the majority of the members of congress.
Without the concurrence of congress, the president cannot
grant amnesty.
Kwin
GRANT OF REPRIEVE
It is a matter of postponing the execution of death penalty to
another day or the execution of his sentence.
Case: Echegaray
It was the SC who issued the injunction to suspend the
execution of death penalty of Echegaray.
They were questioning SC because the power of reprieve is
vested only in the president.
The justification of SC that they are never precluded form
looking in to the case again specially when it is the life of the
person that is at stake. Just because the judgment has
become final and executory, they are not deprived of
control over the judgment. They have the duty to protect
the fundamental rights of an individual, as emphasized in a
law particularly section 15 regarding the rules for the
protection of fundamental rights of individuals.
Case: Estrada
What was granted to Estrada was not amnesty. It was
pardon. Thats why he had to withdraw his motion for
reconsideration to make the judgment final and executory
to qualify him to pardon.
GRANT OF COMMUTATION
The grant of commutation of penalty is simply to reduce the
penalty to a degree or 2 degrees lower depending on the
circumstances.
That is the prerogative of the president.
Section 20.
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CONSTITUTIONAL LAW
SEC 21
SECTION 21. No treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of the Senate.
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Sec 22 & 23
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CONSTITUTIONAL LAW
ACCEPTANCE OF AMBASSADORS, CONSULS, ETC
This is discretionary of the president.
DEPORTATION OF THE ALIENS
Deportation of the aliens is not provided in the constitution
but it is part of its residual power.
CLASSIFICATION AND SALE OF PUBLIC LANDS
The classification of public lands and to sell the same, belongs
to the president.
Only lands that is classified as alienable may be sold. There
must be a law authorizing its sale or alienation.
Case: SRP
They are saying that there has to be with the consent of
congress if that is acquired by the LGU in its proprietary
capacity.
Its not a lot belonging to the Republic of the Philippines.
Because when you sell it, there has to be a declaration that
it is disposable and alienable. It must be with the consent of
congress.
So the president may not covey or sell real property of the
government on her sole will. He must be authorized by law
through congress.
Remember that property in Japan, Repongi property. If it is a
property owned by the state in its sovereign capacity, it has
to be with the consent of congress.
PROVISION OVER LOCAL GOVERNMENTS
We have discussed this already.
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SECTION 1. The judicial power shall be vested in one Supreme Court and in
such
lower
courts
as
may
be
established
by
law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
JUDICIAL POWER
1. settling disputes
2. judicial power of review
We will know what judicial power is. Because in 1987
constitution, there has been an EXPANDED JURISDICTION of
the courts including the lower courts.
Not only that the function is to settle disputes justiciable in
nature, involving rights which are demandable and
enforceable; meaning his rights have been violated and you
are seeking redress in the courts
Because the 1973 Constitution, the definition of Judicial
power is limited only to settling disputes, this time, it
includes the determination whether there has been a grave
abuse of discretion amounting to lack or in excess of
jurisdiction.
This is what we call the JUDICIAL REVIEW POWER OF THE
COURTS, also known as the EXPANDED JURISDICTION OF
THE COURTS or the POWER OF JUDICIAL INQUIRY.
1. SETTLING DISPUTES
TN as regards to the matter of settling disputes, it only
involves justiciable questions, and one is asking for reliefs or
redress of the violation of his rights.
So there has to be an applicable law such as statutes or the
constitution as basis for the settling of disputes.
2. JUDICIAL REVIEW
OTOH, on judicial review, as a GR, laws passed by congress
and policies made by the executive branch cannot be
reviewed by the courts because it might violate the
separation of power.
So on issues of policies and wisdom, TN, that should be
answered by the people on their sovereign capacity which
capacity has been delegated the full discretionary power to
the president who makes the policies or to congress who
makes the rules.
So as a GR, it should not be interfered with OW there may be
a violation of the separation of powers.
Its only when this discretion is abused amounting to lack or
in excess of jurisdiction that the courts may look into in
order to comply with its mandate under the constitution to
make sure that whatever laws that may be passed or
policies of the government may formulate, must be in
accordance of law.
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CONSTITUTIONAL LAW
This is not an assertion of the superiority of the courts, rather
the supremacy of the constitution.
Case: Angara vs Electoral Commission
Case: Marcos vs Manlapus
Because of this requirement, TN as a GR, only JUSTICIABLE
QUESTION right for judicial adjudication, that may be the
subject of the subject of a judicial inquiry as a GR.
However, POLITICAL QUESTIONS may be look into if there is
allegation of abuse of discretion. Only to that extent.
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POLITICAL QUESTIONS
TN on political questions. The court cannot look into them
because its a matter of questions of policies or issues of
wisdom and thus it cannot be looked into as a GR.
Only when there is allegation of abuse of discretion that it
may be looked into by the courts.
DECLARATORY RELIEF
On the matter of declaratory relief, where you have to
declare the rights and obligations of the parties under the
contract; although there is no conflict yet, may the court
review the contract on its validity based on the
constitutional provision or an existing statute? Even if no
rights yet that are involved that are in conflict, but it may
happen that if it is not interpreted, then there may be cases
that would be cases that would be filed in court? Is this
hypothetical or only asking for advisory opinion?
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CONSTITUTIONAL LAW
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As a GR, the court will no longer look into the matter if the
issue has become moot and academic unless when the
issues involved the four requisites.
e. voter
-only when it involves:
1. right to vote
2. election laws
TRANSCENDENTAL IMPORTANCE
Is it a necessary requisite before the courts to consider
before it will take cognizance that may be complaint that
may be filed relating to questions of constitutionality of any
law or acts of the president?
NO.
There is a exception to this: when the issue involved is of
transcendental importance or of paramount public interest,
if not constitutional significance, the court may set aside the
requisite of proper party as a mere procedural technicality
and may proceed in assuming jurisdiction and take
cognizance over the petition only to resolve that issue.
In many cases, even if the party concerning may not be
directly affected by it, but it is not pervasive, if it is not
resolved, the court may still look into the matter.
Again, you go into the transcendental importance in the
matter of determining whether a person is a proper party.
PROPER PARTY
A PROPER PARTY is one who has sustained injury or is
imminent danger of sustaining injury.
Therefore, injury could either be actual or potential.
Specifically, who are considered proper party to question
the validity of the law?
a. ordinary citizen
-if he is injured by the application of the law complained
of
b. taxpayer
-if the law :
1. involves disbursement of pubic funds contrary to law
2. is anomalous
3. involves imposition of tax that is unreasonable or
excessive
c. congress
-if it encroaches with the legislative imperatives
-ex. Senate vs Ermita as regards to EO 464
d. minor children
-Case: Oposa vs Factoram
The right is potential only. Because it is imminent that
if there will be no regulation in the grant of logging
concession, eventually you will be destroying the land
and forest. So what patrimony will these children inherit
if they are all destroyed?
So they are considered proper party under the
PRINCIPLE OF INTEGENARTIONAL RESPONSIBILITY to
preserve our timberland because of the public right of
the people to a healthful and balanced ecology.
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CONSTITUTIONAL LAW
3. RAISED AT THE EARLIEST OPPORTUNITY OF TIME
If it is not stated in the pleadings, at least during the trial, one
cannot be able to raise the issue on constitutionality for the
first time on appeal.
EXCEPTIONS
TN of the exceptions where it can be raised even for the first
time on appeal:
a. in a criminal case, when it involves constitutionality of a
law as basis in the conviction of the accused
b. when the issue is jurisdiction
-because the proceedings is void, judgment is void as
well
c. in civil cases, only when it is unavoidable that they have
first to resolve the issue on constitutionality before they
resolving the main case itself to grant or deny the releifs of
court.
4. LIS MOTA OF THE CASE
(the main case cannot be decided without resolving the issue
on constitutionality)
Meaning if there are other ways to resolve the case without
touching the constitutionality of the law, then the courts
should avail of the other grounds to not violate separation
of powers, and thereby accord respect to co-equal branches
of government such that of congress or president.
It is only when it is unavoidable that first, it has to resolve the
constitutionality of the law in question before the courts can
resolve the issue.
So grounds like:
a. lack of jurisdiction
b. issue of estoppel
c. lack of prerequisites
So the case can be disposed of by those grounds.
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EFFECTS
WHEN
COURT
DECLARES
A
LAW
UNCONSTITUTIONAL
The thing that you should TN is the consequences or the
effect when the courts exercises the power and declares the
law as unconstitutional.
1. traditional view
2. modern view
In this jurisdiction, we follow the modern view.
1. TRADITIONAL VIEW
It is void from the very conception of the law. It is as if the
law never existed.
It confers no rights, it poses no obligations, t creates no
office and it affords no protection. It will be as if that law has
never been passed.
2. MODERN VIEW
OPERATIVE FACT DOCTRINE
What happens to the consequences when the law was still
applied for?
It was not declared as unconstitutional, or still considered
as valid?
This is what we call the OPERATIVE FACT DOCTRINE.
You cannot simply ignore that once upon a time, that law
existed and has created certain rights, imposes certain
obligations; and this cannot be ignored because you might
prejudice substantial rights.
So then how do you treat the law that has been declared as
unconstitutional?
In modern view, they are only considered as voidable; valid
until, they are declared a nullity.
Therefore, before declared a nullity, you have to recognize
the operative fact as to its existence before it is declared a
nullity, the consequences and the effects of that law.
If it has created rights, then these rights must be respected.
Case: Agbayani vs PNP
Case: Flores
In this jurisdiction, until it is declared as a nullity, it is
applied and we have to respect the consequences and the
effects of that law.
But the moment it is declared unconstitutional, there will
be no compromise. It imposes no obligations, confers no
rights, affords no protection, creates no office. It is as if it
was never passed since the time it was declared a nullity.
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CONSTITUTIONAL LAW
LOWER COURTS VESTED JUDICIAL REVIEW POWER
This judicial review power is not exclusive to the SC.
This is also exercised by the lower courts.
What are these courts vested with judicial review power?
1. SC and
2. such other courts that are created by statutes:
a. intermediate appellate courts
1. court of appeals
2. sandigan bayan
3. court of tax appeals
b. lower courts
1. first level RTC
2. second level MTC
They exercise judicial review because in sec 1, it says judicial
power is vested in SC and such other courts established by
law.
So when judicial power is defined as not just settling disputes
but as well as determining abuse of discretion, then it is
understood that the power is likewise by the lower courts.
You also have the provisions of sec 5 art 8, under the
appellate jurisdiction of SC what will the SC review on the
constitutionality if in the first place the lower courts do not
exercise judicial review.
So you have:
1. sec 1, art 8
2. sec 5, art 8
JUDGMENT OF LOWER COURTS BINDS PARTIES OF THE CASE
ONLY
The only difference is that the declaration of nullity by
lower courts may not be final or binding. Because even if the
order is already final, it is not jurisprudential. It cannot be
used to guide the judges and the lawyers as well as the
public as to the constitutionality of the law.
It is when only it is declared with finality by SC that the
issue on constitutionality is resolved or settled.
So even if RTC declares an ordinance unconstitutional, and
even if the judgment becomes final, that cannot be used as
basis no to apply anymore the ordinance because that binds
only the parties with respect to that case
It may be repeated. And then finally it reaches the SC. Only
the SC can say with finality WON the ordinance or any law
for that matter is in consonance with the constitution.
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CONSTITUTIONAL LAW
4. appointment of personnel is vested in the SC
a. appointed by SC
The personnel of the courts from the janitor to the clerks
of courts except the judges are appointed by the SC en
banc in accordance with the civil service law.
Can they be dismissed by the president? NO.
Can they be disciplined by the ombudsman? NO.
This is exclusive to the SC to maintain independence of
the SC.
If you have any complaints against the court personnel or
judge or justice, you do not file it with the office of the
president or with the office of the ombudsman. You file it
directly with the SC.
Because in the manner of disciplining court personnel
and judges, that is exclusive to the SC.
b. not subject to the confirmation of the CoA
Another point on respect to the guaranty of its
independence, this is with respect to their appointments.
They are not subject to the confirmation of the CoA.
However, they are screened by the JBC and the
appointment by the president is limited only by the list
submitted by the JBC. And for every vacancy, there should
be at least 3 nominees.
However the president, although appoints the judges
and justices, cannot remove them from office. Judges can
only be removed by SC. Justices of the SC can be removed
only through impeachment.
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CONSTITUTIONAL LAW
June 27, 2011
JUDICIAL POWER
What we were discussing was the extent of the judicial power
of the courts particularly of the SC.
We have discussed the nature of judicial power and the
extent of judicial review as well as on the effects of
declaration of nullity.
JUDICIAL INDEPENDENCE
We also explained the safeguards of judicial independence.
APPOINTMENT OF COURT PERSONNEL
As part of the guaranty of the independence of the courts,
the matter of appointment of personnel from the court to a
clerk of court or even higher position than that except for
judges of the lower courts, such power is vested in SC,
subject to the rules of the civil service law.
DISCIPLINING COURT PERSONNEL
So in the matter of dismissal from the service, that is also
exclusive to the SC considering that the matter of
disciplining court personnel and judges is within the power
of SC under the exclusive supervision of the SC over courts
and court personnel.
SC EN BANC
In this connection, TN, while the judges are appointed by the
president, they can only be disciplined by the SC sitting en
banc. So that if there are complaints filed against judges and
court personnel, TN that insofar as administrative
complaints is concerned, that is exclusive of the SC.
REQUIREMENT OF FILING CRIMINAL CASE IN OFFICE OF
OMBUDSMAN AGAINST COURT PERSONNEL
Should you file a case in the office of the ombudsman, with
respect to the criminal aspect of the compliant;
Case: Maceda vs Ombudsman
SC has emphasized that still, it should be first referred to
the office of the SC to take cognizance over the complaint.
and only when the SC makes a recommendation of an
indictment, the conduct of the preliminary investigation, the
criminal aspect that the ombudsman may take over the
investigation.
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JURISDICTION
LOWER COURTS
Insofar as jurisdiction of the lower courts, these are
determined by congress. You have the rules of court
governing jurisdiction of the rules of court, which rules of
court are subject to changes or amendments by the SC as
part of its rule making power, or promulgating rules
governing procedure and pleadings.
SUPREME COURT
Insofar as the SC OTOH, we have provisions in the
constitution defining its original as well as appellate
jurisdiction.
ORIGINAL JURISDICTION OF SC
1. cases against foreign ambassadors stationed in the
Philippines and consuls and other public ministers
-concurrent with CA and RTC
2. petitions for certiorari, mandamus, prohibition, quo
warranto and habeas corpus
CANNOT BE REDUCED
The original jurisdiction of the SC cannot be reduced. SC
cannot be divested of that jurisdiction.
CAN BE INCREASED
Can it be increased without the consent or the concurrence
of the SC?
YES.
APPELLATE JURISDICTION OF SC
Basically you have two:
1. petition for review
2. petition for certiorari
What are the cases that are heard by the SC in its appellate
jurisdiction?
1. all cases involving the constitutionality of treaty,
international agreement or executive agreement or law
2. constitutionality insofar as application or operation of
presidential decrees, proclamations, orders, instructions,
ordinances and other regulations
3. tax imposts, assessment or any other penalties imposed in
relation thereto
4. all cases in which the jurisdiction of any lower court is an
issue
5. criminal cases where the penalty imposed is reclusion
perpetua or higher
6. cases where only errors or questions of law are involved
CANNOT BE REDUCED
Can they be increased or reduced? Can SC be divested of its
appellate jurisdiction?
NO. It is part of the guaranty of his independence.
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CONSTITUTIONAL LAW
GR: CANNOT BE INCREASED
Can it be increased?
NO. If it is without the advise or the concurrence of the SC.
Case: Fabian vs Disierto
With respect to RA 6770 when the law provides that the
decisions of the ombudsman in the criminal cases are
reviewable only by the SC; on purely questions of law or
abuse of discretion amounting to lack or in excess of
jurisdiction.
SC said, that law increasing the appellate jurisdiction of the
had no prior concurrence or advise of the SC and thus the
provision was declared unconstitutional.
Kwin
Does this mean that insofar as amending the rules of the SC,
that is exclusive to SC to do so?
While it is true that insofar as the power to amend the
rules is vested in the SC under its rule making power,
however you take note of the case of:
Case: Gingoon vs Republic
Where the law was passed that determines just
compensation in expropriation cases involving national
infrastructures which in effect amended the rules of court
on the matter of determination of just compensation.
Because while rule 67 of the rules of court provides that all
that is needed for the writ of possession to be issued is 10%
of the estimated value based on assessed value of the
municipal assessor, TN that on RA 8974 on national
infrastructure, just compensation in expropriation cases
where SC said that that will not preclude however the power
of congress to pass any law including amending the rules of
court considering that the legislative power vested in
congress is plenary.
SC said congress has the plenary legislative power. The
silence of the constitution, the subject can only be
interpreted as meaning there is no intention to diminish that
plenary power.
RA 8974, which require full payment before the state may
exercise proprietary rights, contrary to rule 67 which require
only a deposit was recognized by the SC.
AUTOMATIC APPEAL TO SC NOW PASS TO CA
On the matter on appeals on judgment of conviction where
the penalty is reclusion perpetua supposedly it is only
exclusive to SC where you file an appeal by filing a notice of
appeal because it is not automatic.
It is only when the penalty is death when appeal is automatic
even if accused does not file a notice of appeal.
TN that under the new rules of the office of the SC, as it was
enunciated n the case of People vs Mateo, the appeal
should first pass to the CA before it goes to the SC.
Case: People vs Mateo
The SC said, the fundamental law requires mandatory review
by SC of cases where the penalty perpetua, life
imprisonment or death, nowhere has it been prohibited an
intermediate review.
SC deems it wise and compelling to provide in these cases a
review by the CA before the case is elevated in the CA.
Justification. Procedural first and foremost falls more
squarely within the rules making prerogative of the SC than
the law making power of congress.
The rule allowing the CA, a subordinate appellate court
before the case is elevated to the SC for automatic review is
such a procedural matter.
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CONSTITUTIONAL LAW
LIMITATIONS ON RULE MAKING POWER OF SC
TN on the limitation of the rule making power of SC, it should
be:
1. simplified and inexpensive procedure for the speedy
disposition of cases
2. uniform for all courts of the same grade
3. not diminish, increase or modify substantive rights
(rearranged)
VOTES
How many votes is required to arrive at a decision OW the
appeal is dismissed?
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CONSTITUTIONAL LAW
DECISION OF SC
PERIOD
The requirement is, court should decide cases for a period of:
1. SC:
24 months
2. IAC:
12 months
3. lower courts: 3 months
BOTH MANDATORY AND DIRECTORY
All from the time the case is deemed submitted for decision
or resolution.
TN that in the requirement, is it mandatory is directory?
It is DIRECTORY because even if judgment is rendered after
the prescribed period, judgment is still valid.
It is MANDATORY in a sense, specially for lower courts
because if they fail to comply or follow the prescribed
period, that would be subject to a disciplinary action against
a judge.
AS TO FORM AND MANNER
TN of the requirement, under sec 14, it must state the past
and applicable law and jurisprudence.
Kwin
MEMORANDUM DECISION
On memorandum decision, is that acceptable?
Case: Oil and National Gas Commission
SC said, sec 14 does not preclude the validity of
memorandum decision where the SC makes only a referral
of the decision already made by the lower court which the
by the reference, the findings of facts and conclusions of law
contained in the decisions of inferior tribunal.
It is intended to avoid cumbersome reproduction of the
decision or portions of the lower court.
Also you must learn the definition of the term:
Obiter dictum
Pro hac vice
PRO HAC VICE
This was used in the case of Ampatuan as regards to the
matter of having the proceedings of the case broadcast.
It is only applicable with respect to this case and may not be
used as a precedent. Thats a pro hac vice decision.
EXCEPTIONS
What is important in sec 14 are the exceptions. Insofar the SC
dismissing a petition for review or certiorari by the mere
statement for lack of merit, the decision is dismissed. Does
this violate section 14?
TN of the following cases:
Case: Comacho vs CA
Case: German Machineries Inc. vs Indaya
Case: Solid Homes vs Lacerna
Case: Aregado vs Yama
Where the SC stressed that SC has discretion to decide
whether a minute resolution should be used in lieu of a full
blown decision in any particular case.
Further, SC explained that the grant of due course to a
petition for review is not a matter of right but of some
judicial discretion.
While if forced to find any reversible error committed by CA,
there is no need to fully explain the courts denial as it
means that means that the SC agrees with or adopts the
findings and conclusions of the CA.
There is no point in reproducing or restating in the resolution
of the denial the conclusions of the appellate court affirmed.
The constitutional requirement of sec 14 art 8 of a clear
presentation of facts and laws applies to decisions where
the petition is given due course but not where the petition is
denied due course with the resolution stating the legal basis
for the dismissal.
IOW if the SC denies a petition for review, the SC need not
explain that.
But the moment the SC gives due course to the petition, even
if the SC ultimately will dismiss the petition, still SC has to
comply with sec 14.
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CONSTITUTIONAL LAW
CONSTITUTIONAL PROVISIONS
COMMON PROVISIONS
CONSTITUTIONAL COMMISSIONS
Civil Service Commission is the central personnel agency.
COMELEC will guaranty a clean and honest and orderly
election.
COA is the watchdog of Philippine funds and expenditure.
SAFEGUARDS TO GUARRANTY INDEPENDENCE
What are the safeguards that guaranty the independence of
these constitutional commissions?
1. they are created by the constitution and therefore, they
cannot be amended abolished by statute
Each is expressly described as an independent body. It is
conferred with powers and functions which cannot be
reduced by statutes.
2. members and chairman are removable only through
impeachment
3. term of office is 7 years
4. they cannot be appointed in acting capacity, permanent
appointment, including ad interim appointment
5. salaries cannot be increased during the continuance of
office
6. enjoy fiscal autonomy
7. may promulgate own rules
PVDD that they will not diminish, increase or modify
substantive rights.
8. appointment of own personnel
In accordance with the Civil Service law.
In the disqualification of Constitutional Commissioners,
the thing that you should TN is the matter that they should
not be a candidate of election immediately preceding the
appointment. (!!!!!)
SALARIES
PROCEDURE
QUALIFICATION
PROCEDURE RELATING TO APPEALS
Kwin
GOCCS
Those that are created with the original charters, they are
governed by law.
As to ordinary GOCC, they are governed by the corporation
code. And in which case, they are not within the jurisdiction
of the Civil service law
Only those created by special law and those with original
charters are under the CS.
INSTRUMENTALITY VS AGENCY
Case: Liberisa vs IAC
SC said, AGENCY of the government refers to the various
units of the government, including a department, bureau,
office, instrumentality of government, GOCC, local
government or any distinct unit therein, usually exercising
governmental functions.
INSTRUMENTALITY refers to agency of the national
government not integrated with the department framework
vested with special functions or jurisdiction by law, with
some if not all corporate powers administering special funds
and enjoying operational autonomy, usually through a
charter. This includes regulatory agencies, institutes of the
government or controlled corporation.
WATER DISTRICTS
How about water districts? Are they under CS?
YES. If one is employed under the GOCC whether a regular
or not, the CS law applies. It is not true either with respect
to money claims that labor code applies.
So TN that insofar as the water districts, they are under the
CS.
They are governed with an original charters.
STATE UNIVERSITIES
How about the state universities? Are they under the civil
service? So that if there is any complaint, you should file it
with the civil service or the board of trustees that elected
the president of a state university or college?
Case: CSC vs Sohor, May 22, 2008
SC said that a state university with a fixed term of office
appointed by the governing board of trustees of the
university is non carrier civil service officer.?
Appointed by the chairman and members of the governing
board of CVPC, it is a non carrier under the jurisdiction of
the civl service commission.
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CONSTITUTIONAL LAW
Because state universities are governed by special laws or
chartered by special laws.
The president is non carrier within the jurisdiction o f the
civil service.
CLASSIFICATIONS OF THE POSITION OF THE CIVL SERVICE
1. carrier
2. non carrier
C: is based on competitive examination.
eligibility based on examinations.
there are qualifications prescribed by law.
NC: is usually entrance based on other than the usual test of
merit and fitness
-could be by election
C: enjoys security of tenure
NC: could be limited by the term prescribed by law
could be coterminous to the appointing authority
could be limited to the duration of the project for which
he is employed or appointed to
C: with opportunity of advancement
NC: no opportunity of advancement
no promotion
SECURITY OF TENURE
Who enjoys the security of tenure assuming that he is a
carrier? Especially for the requirement of executive civil
service eligibility that is now an issue
Remember that after the change of administration, some
directors are to be replaced? Although they are civil service
eligible but it is not eligibility that is required of the position.
What is the requirement of an executive position?
You have to have an executive civil service eligibility like
CESO Carrier Executive Eligibility.
OW even if you are a first grade professional, civil service
eligibility holder, that is not the kind of eligibility that is
required of the position, you can still be removed. You dont
enjoy the security of tenure.
Let me explain the extent of the enjoyment of security of
tenure. You have to have not only the prescribed
qualification but as well as the required eligibility.
For a regional director for example, what are the
requirements of a bureau?
Of course the qualifications needed for the position as
required by law and secondly, the requisite eligibility for that
position.
Meaning, even if you have the qualifications, like for
example, relating to the requirement that in order to
acquire the position, you have to be an engineer. And you
have to be a CES holder, Executive Eligibility.
Even if you are an engineer but you dont have the
eligibility, you dont enjoy security of tenure. You can be
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CONSTITUTIONAL LAW
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SUSPENSION OF AN EMPLOYEE
1. preventive suspension
2. penalty
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CONSTITUTIONAL LAW
DOUBLE COMPENSATION
This is prohibited.
How about if he is retired and received pension and he is
reemployed, will that be considered as double
compensation?
Case: Santos vs CA
The rule on double compensation is not applicable to
pension. A retiree receiving the pension of gratuity after
retirement can continue to receive such pension or gratuity
if he accepts another government position to which another
compensation is attached.
Kwin
COMMISSION ON ELECTION
APPOINTMENT OF THE COMMISSIONERS
PERMANENT, NOT SUBJECT TO REAPPOINTMENT
Just like the rest of the officers of the constitutional
commission, appointment must be permanent and not
subject to reappointment.
SUBJECT TO CONFIRMATION BY CoA
The appointment is subject to confirmation by the CoA.
When you say not subject to reappointment, that affects
only to regular appointments which had been confirmed by
CoA. (Matibag vs Benipayo)
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CONSTITUTIONAL LAW
Comelec when he was ordered but in connection with the
case that was investigated by the Comelec.
Therefore, the citation of contempt of Bidol was in
accordance with law.
As far as its quasi judicial function, the Comelec can cite for
contempt.
Kwin
MANUAL COUNT
As to the manual count, the Comelec may validly order a
manual count not withstanding the automated counting of
ballots in RA 8486.
The law grants to the commission the use of automated
election system if that is the only way to count votes. It
ought to be self evident that the constitution did not
envision a Comelec that cannot count a result election.
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CONSTITUTIONAL LAW
Kwin
Appealable to where?
From MTC to Comelec.
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CONSTITUTIONAL LAW
COMMISSION ON AUDIT
FUNCTIONS
1. administrative functions
2. quasi judicial functions
CONDUCT OF AUDIT
In the matter of conducting audit, that is not exclusive to
COA.
Private accounting firms or auditors contracted by
government to conduct audit on funds of government that
were derived from the proceeds of the loan for example
from an international bank or from donations made form
international sources, that can also be audited by private
companies.
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CONSTITUTIONAL LAW
ART 10 LOCAL GOVERNMENTS
This will again be discussed by Atty Largo.
POLITICAL SUBDIVISIONS
The political subdivisions are the
1. Autonomous regions
2. Provinces
3. Cities
4. Municipalities
5. Barangays
RA 3160 - LGC
They are governed by RA 3160 LGC that provides for the
rules relating to
1. term of office
2. structure and organization of LGUs
TERM OF OFFICE
Under the constitution, how long is the perm of office of the
LG officials?
3 years, but not more that 3 consecutive terms.
Can this be changed by ordinary legislation?
NO.
Except barangay officials.
CONSECUTIVENESS OF THE TERM
When would you consider it as prohibited that will
disqualify an incumbent to run for reelection?
When it would be his 4th election to the same position that
is successive.
When is it considered SUCCESSIVE for purposes of
determining disqualification? (!!!)
EFFECT OF PREVENTIVE
SUSPENSION ON THE
SUCCESSIVENESS OF THE TERM
Case: Aldovino vs Comelec, Dec 23, 2009
The question here is whether preventive suspension of a
public official interrupts the consecutiveness of the term. Or
if not interrupted, ay not have finished because there is a
period of time where he had not served because he was
placed under preventive suspension. Would that be
considered an interruption?
SC said, the preventive suspension of public official does
not interrupt their term for the purposes of the THREE
TERM LIMIT RULE under the constitution and LGC.
Preventive suspension by its nature does not involve an
effective interruption of its service within the term and
should therefore not be a reason to avoid the three term
limitation.
Kwin
INTERRUPTION OF TERM
The interruption of a term exempting an elective official
from the three term limit is one that involves no less than
INVOLUNTARY LOSS OF OFFICE.
In all cases of preventive suspension, the suspended official
is barred from performing the functions of his office and
does not vacate or lose title of his office.
Loss of office is a consequence that only results upon the
eventual filing of guilt or liability.
EFFECT OF SUSPENSION AS A PENALTY ON THE
SUCCESSIVENESS OF THE TERM
So it is preventive suspension, that will not interrupt. But if
it is suspension as a penalty, then that would be a different
story.
If it is only preventive, it does not interrupt because
precisely he was suspended because he is still connected to
his office.
But if it is now a penalty after filing his case, then definitely
there would be an interruption.
Case: Bolos vs Comelec, Mar 18, 2009
He was punong barangay at his third term. He resigned
because he ran as municipal councilor as a Sanguniang
Bayan member. Therafter, he resigned and ran again as
Barangay Captain.
So the question there is WON there has been an
interruption after he resigned as Barangay Captain and ran
as Sanguniang Bayan member?
SC said, Bolos was serving his third term as Punong
Banrangay when he ran as Sanguniang Bayan member. And
upon winning, assume the position as SB member; thus
voluntarily relinquishing his office as punong barangay which
the court deems as volunytary renunciation and therefore
not considered as an interruption.
RECALL - INTERRUPTION
As regards to recall, is that considered an interruption? Is it
considered as your 4th election.
Example. Supposedly, you had 3 terms and there was a
recall election, can you run as an opponent against the
barangay official?
Case: Adromeo vs Comelec
The winner in a recall election can be charged or credited
with the full term of three years for purposes of counting
the consecutiveness of an officials term in office.
Thus in a situation where a candidate loses the election to
gain a third consecutive term, but later wins in the recall
election, the recall term cannot be stitched in his two
previous consecutive terms.
The period of time prior to the recall term when another
public official holds the office constitutes an interruption of
the continuity of his service.
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CONSTITUTIONAL LAW
TERM BY ELECTION, NOT BY SUCCESSION
Case: Borja vs Comelec
On consecutive terms, that must be by election, not by
succession.
For example. If at first by succession, and thereafter he ran
for election twice which is supposedly his third term, TN you
should not count that term where he merely succeeded in
office. It is an interruption or not counted in the
determination of continuity of the three limit rule relating to
term of office.
VOLUNTARY RENUNCIATION
Case: Lonzanita
Voluntary renunciation is not considered an interruption.
Case: Ong vs Alegre
Ong was considered to have fully served the three terms.
Kwin
MMDA
MMDA is not a political subdivision, it is merely an
administrative coordinating body whose purpose is to
coordinate with the LGU comprising of Metropolitan Manila.
The more recent cases involving MMDA in exercising police
power is:
Case: MMDA vs Truckworks
SC said, MMDA has no authority to dismantle billboards
and other forms of advertisements posted in the structures
of MRT3, the latter being a private property. Because
MMDAs power is limited only to the formulation,
coordination, regulation, implementation, preparation,
management, monitoring, settling of policies, installing a
system and administration and therefore it has no power to
dismantle the billboards under the guise of police and
legislative powers.
Case: MMDA vs MCOR Transport System
This is with reference to the elimination of certain
terminals in EDSA. They dont have that power because they
are not vested with police power.
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CONSTITUTIONAL LAW
ART 11 ACCOUNTABILITY OF PUBLIC OFFICIALS
You just master impeachment.
SEC 1
Memorize sec 1.
SECTION 1. Public office is a public trust. Public officers and employees must,
at all times, be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency; act with patriotism and
justice, and lead modest lives.
Kwin
PROCESS OF IMPEACHMENT
So you go through the process of who initiates the
impeachment HOUSE OF REPRESENTATIVES.
What are the REQUIREMENTS?
1. initiation of the proceedings
a. if it is a member who initiates the complaint or files
the complaint, there is no need of an endorsement
b. if it is a private individual, it has to be indorsed in order
that it will be take action by the Committee on Justice
When is there initiation?
Initiation of the proceedings (not the complaint)
commences upon the filing and the referral (whatever
action is to be taken by the committee at the moment).
In the case of Ombudsman Merciditas Gutierrez, there
were several complaints, different complainants, they
were simultaneously referred at the same time to the
committee in justice. Will that be taken as one initiation
proceedings?
YES. According to SC.
Why is this important?
Because you cannot initiate an
proceedings more than once in a year.
impeachment
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CONSTITUTIONAL LAW
POWERS AND FUNCTIONS OF THE OMBUDSMAN
1. criminal cases, the Ombudsman has jurisdiction
-on all public officials, temporary or permanent
-except out of courtesy to SC relating to court personnel
and judges
-they must wait until SC makes a recommendation for
the investigation in the criminal case
2. administrative cases, the Ombudsman has jurisdiction
-not on all public officials like:
a. impeachable officials
b. members of congress
c. members of the judiciary
Kwin
3. preventive suspension
-Ombudsman has the power to suspend an erring public
officer suspensive
-period: not exceeding 6 months
4. teachers, Ombudsman has jurisdiction
-they are saying that magna carta exclusive jurisdiction is
exclusive with DECS. Wrong.
-case: Masing et al vs Office of the Ombudsman
Teachers, notwithstanding the magna catra,
Ombudsman has jurisdiction.
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CONSTITUTIONAL LAW
ART 12 NATIONAL ECONOMY AND PATRIMONY
REGALIAN DOCTRINE (!!!)
All lands and mineral resources belong to the state.
Including the ancestral domain and ancestral lands?
NO. Because they belong to the indigenous people or
community on the basis of native title.
KINDS OF LANDS
Not all lands belong to the state.
1. agricultural lands
2. timber lands
3. forest lands
4. mineral lands
5. national parks
Of all these lands, which is disposable and alienable?
Agricultural lands.
There are two kinds of lands:
1. public lands
a. alienable lands (agricultural lands)
b. inalienable lands
2. private lands
Kwin
AGRICULTURAL LANDS
It does not mean lands devoted to agriculture. It refers to
lands that is alienable like:
1. reclaimed
2. foreshores
Who owns it?
The state. Because the sea is inalienable. Supposedly,
likewise, it is inalienable.
Except when it is classified as agricultural and disposable
lands of the government and of the state.
Who can acquire it?
Only individual citizen, not corporation.
How come Amari and MOA are acquired by corporations?
Because there is no prohibition against directors of Filipino
corporations who are Filipino citizens to acquire. And the
moment it is acquired by private individuals, it becomes a
private land, and it can be sold in turn to a Filipino
corporation.
So this explains why some reclaimed lands are being
acquired by Filipino corporations.
Originally, they are agricultural lands.
There has to be a classification that they are disposable.
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CONSTITUTIONAL LAW
PATRIMINIAL PROPERTY
Freedom Islands are inalienable lands of public domain.
Government owned lands, as long as they are patrimonial
property can be sold to private parties who are Filipino
citizens or qualified private corporation.
So there is a difference; owned as a public domain alienable
with the consent of congress. But if patrimonial, no need for
consent of congress.
Now they are claiming that SRP is part of public domain.
Should there be a sale, it has to be with the approval of
congress, and it has to be done at public auction.
But the LGU maintains that it is a patrimonial property, and
therefore it can be acquired by qualified private corporation.
There is no bidding required because it is a private property
insofar as Cebu City Government is concerned.
CA ruled sustaining the trial court that it can be acquired by
a corporation.
ACQUISITION BY PRESCRIPTION
Case: Malabanan vs Republic of the Philippines, April 29,
2009 (!!!)
This is with reference to the acquisition of the property by
prescription. They are saying that they are applying for
registration of title because they have been occupying the
property since time immemorial.
The issue is whether it can be applied for by an individual for
title.
SC said, public domain lands become patrimonial or private
property of the government only upon declaration that
these are alienable or disposable lands together with
express government manifestation that the property is
already patrimonial or no longer retained for public service
or the development of national wealth.
Only when the property has become patrimonial can the
prescriptive period for the acquisition of the property of
public property domain begin to run.
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CONSTITUTIONAL LAW
Kwin
CLASSIFICATION OF LANDS
Case: Dauriano vs Hermoso et al, April 24 2009
SC said, the classification of lands of public domain of 2 types:
1. primary classification
a. Agricultural
b. Forest
c. Timber
d. Mineral lands
e. Natural parks
2.secondary classification
And I think this was the case that was invoked in the SRP case
as against the Chavez case.
RECLAMATION OF LANDS
In that case relating to WON reclaiming corporation can be
paid by lands.
Diba kung reclaimed, pubic domain, only individual citizens
can acquire the land.
If you pay land to the corporation that reclaimed it, is that
allowed?
Case: Chavez vs NHA (patrimonial property)
It was allowed because the land was not considered a
public domain but a patrimonial property of the
government. And therefore it can be acquired by the
corporation.
SC said that NHA is a government agency. Its function is to
distribute lands. It is not exercising public functions.
NHA is a government agency not tasked to dispose of
public lands under its charter. The Revised Administrative
Code of 1987, the NHA is an end user agency authorized by
law to administer and dispose of reclaimed lands.
The moment titles over reclaimed lands based on the
special patents or transferred to the NHA by the registry of
deeds, they are automatically converted to a patrimonial
property of the state which can be sold to Filipino citizen
and private corporations, 60% of which are owned by
Filipinos.
The reason is obvious. If the reclaimed land is not
converted to patrimonial lands, was transferred, then it
would be useless to transfer it to NHA because you cannot
legally transfer any lands of public domain.
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CONSTITUTIONAL LAW
In this decision, the SC recognize the inherent right of ICC and
IPs to recover their ancestral lands from outsiders and
usurpers, seen by many as a victory attained by the private
respondents after a long and costly effort.
IOW because of this case, it was an assertion of the rights of
the indigenous people over the ancestral lands and domain.
There was the revocation of the license that was granted
previously to private individuals as regards to pubic lands,
particularly the use of public lands as a grazing lands.
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CONSTITUTIONAL LAW
AREAS OF INVESTMENT REQUIREMENT
OPERATION OF PUBLIC UTILITY
How many percentage if it is a qualified Filipino corporation?
60% by a Filipino citizen.
MEDIA
100%
ADVERTISING
70%
EDUCATIONAL INSTITUTION
60% qualified Filipino corporation.
But the management and administration is all Filipino citizens
in all of these corporations. Only the capital investment
where there is allowing foreigners.
FRANCHISE OF PUBLIC UTILITY
For how many years?
25 years, renewable for another 25 years.
Subject to amendments, repeal, or modifications when public
interest so requires.
You TN of the exceptions because while a franchise is a
contract between the government and private individual
citizen or corporation; because it involves public interest,
the constitution no less provides for the reservation of its
change.
It is protected in the non impairment clause supposedly but
this is an exception.
FISHING
ONLY INDIVIDUAL CITIZENS (specially on small scale) and
cooperatives.
PRACTICE OF PROFESSION
Filipino citizens only.
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CONSTITUTIONAL LAW
Kwin
ACADEMIC FREEDOM
Memorize academic freedom.
TAX EXEMPTION
For non stock non profit
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CONSTITUTIONAL LAW
ART 16 GENERAL PROVISIONS
What is the color of flag?
How many suns and stars?
Can you change the design of your flag?
NO. Without amending the constitution.
Can you change then name of the country by ordinary
legislation, national anthem and national seal?
YES. Subject to ratification in a referendum (not plebiscite).
SOVEREIGNTY OF THE STATE
-discussed
ARMED FORCED OF THE PHILIPPINES
It is a citizen armed force. That is one of the manifestation of
the supremacy of the civilian authority.
The chief of staff has a limited term of 3 years unless it is
extended by president when there is a national emergency
declared by congress. So there has to be a national
emergency.
Is PNP under AFP?
NO.
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CONSTITUTIONAL LAW
ART 18 TRANSITORY PROVISION
MILITARY BASES AGREEMENT
That has already expired. We now have the PFA. So the
question is, should it require the concurrence of the senate?
Is it valid?
That has already been settled, even without the
concurrence of senate. Because it is an executive agreement
implementing a mutual defense agreement between the
president and the US.
Case: Lim vs Executive Secretary
SC said that sec 25 of the transitory provision shall mark
antipathy towards foreign military presence in the country.
The foreign troops are allowed entry in the Philippines only in
a way of exception.
Under the constitution, the US forces are prohibited from
engaging in an offensive war in the territory.
Sc however cannot accept the allegation that the Arroyo
administration engaged in double ___ in trying to pass off as
a mere training exercise, an offensive effort by foreign
troops on native soil.
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