POLITICAL AND INTERNATIONAL LAW

I. The Philippine Constitution

A. Constitution: definition, nature and concepts

The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials, must defer (Cruz, Constitutional Law, 1998).

The 1987 Constitution took effect on February 2, 1987, which was the date of the plebiscite. (De Leon v. Esguerra, G.R. No. L-78059, August 31, 1987).

B. Parts

1. Constitution of Sovereignty – this refers to the provisions pointing out the modes or procedure in accordance with which formal changes in the Constitution may be made (Art. XVII, Amendments or Revisions).

2. Constitution of Liberty – the series of prescriptions setting forth the fundamental civil and political rights of the citizens and imposing limitations on the power of the government as a means of securing the enjoyment of those rights (Art. III, Bill of Rights).

3. Constitution of Government –provides for a structure and system of government; refers to the provisions outlining the organization of the government, enumerating its powers, laying down certain rules relative to its administration and defining the electorate (Art. VI, Legislative Dep’t, Art. VII, Exec. Dep’t, Art. VIII, Judicial Dep’t, Art. IX, Constitutional Commissions).

C. Amendments and revisions – Article XVII

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:

1. The Congress, upon a vote of three-fourths of all its Members; or

2. A constitutional convention.

Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve 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 therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

Section 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.

Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision.

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition.

D. Self-executing and non-self-executing provisions

The following provisions of the Constitution are considered as self-executing:

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1. Provisions in the Bill of Rights on arrests, searches and seizures, the rights of a person under custodial investigation, the rights of an accused, and the privilege against self-incrimination;

2. Fundamental rights of life, liberty and the protection of property;

3. Provisions forbidding the taking or damaging of property for public use without just compensation.

Note:

GR: A constitutional provision is self-executing.

XPNs: where it merely announces a policy and its language empowers the legislature to prescribe the means by which the policy shall be carried into effect:

a. Article II on "Declaration of Principles and State Policies"

XPNs to the XPN: Art II, Section 16- right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature (Oposa vs. Factoran ,G.R. No. 101083, July 30, 1993).

b. Article XIII on "Social Justice and Human Rights"

c. Article XIV on "Education Science and Technology, Arts, Culture end Sports" (Manila Prince Hotel v. GSIS, G.R. 122156, Feb. 3, 1997)

E. General provisions

ARTICLE XVIGENERAL PROVISIONS

Section 1. The flag of the Philippines shall be red, white, and blue, with a sun and three stars, as consecrated and honored by the people and recognized by law.

Section 2. The Congress may, by law, adopt a new name for the country, a national anthem, or a national seal, which shall all be truly reflective and symbolic of the ideals, history, and traditions of the people. Such law shall take effect only upon its ratification by the people in a national referendum.

II. General Considerations

A. National territory

ARTICLE INATIONAL 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.

1. Archipelagic Doctrine

It means that all waters, around between and connecting different islands belonging to the Philippine Archipelago, irrespective of their width or dimension, are necessary appurtenances of its land territory, forming an integral part of the national or inland waters, subject to the exclusive sovereignty of the Philippines.

It is found in the 2nd sentence of Article 1 of the 1987 Constitution.

B. State immunity (Article XVI)

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Section 3. The State may not be sued without its consent.

C. General principles and state policies

ARTICLE IIDECLARATION OF PRINCIPLES AND STATE POLICIES PRINCIPLES

Section 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.

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.

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.

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.

Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.

Section 6. The separation of Church and State shall be inviolable.

STATE POLICIES

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 self-determination.

Section 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.

Section 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.

Section 10. The State shall promote social justice in all phases of national development.

Section 11. The State values the dignity of every human person and guarantees full respect for human rights.

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.

Section 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.

Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.

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Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.

Section 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

Section 17. The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development.

Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.

Section 19. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.

Section 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments.

Section 21. The State shall promote comprehensive rural development and agrarian reform.

Section 22. The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.

Section 23. The State shall encourage non-governmental, community-based, or sectoral organizations that promote the welfare of the nation.

Section 24. The State recognizes the vital role of communication and information in nation-building.

Section 25. The State shall ensure the autonomy of local governments.

Section 26. The State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law.

Section 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.

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.

D. Separation of powers

In essence, separation of powers means that the legislation belongs to the Congress, execution to the executive, and settlement of legal controversies to the judiciary. Each is therefore prevented from invading the domain of the others.

The purpose of separation of powers is to:

1. Secure action

2. Forestall over-action

3. Prevent despotism

4. Obtain efficiency

Note: To prevent the concentration of authority in one person or group of persons that might lead to irreparable error or abuse in its exercise to the detriment of republican institutions. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of governmental powers among the three departments, to save the people from autocracy.

The powers vested in the three branches of government are:

1. EXECUTIVE - Implementation of laws (Power of the sword)

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2. LEGISLATIVE - Making of laws (Power of the purse)

3. JUDICIARY - Interpretation of laws (Power of judicial review)

Note: Legislative power is given to the Legislature whose members hold office for a fixed term (Sec. 1, Art. VI); executive power is given to a separate Executive who holds office for a fixed term (Sec. 1, Art. VII); and judicial power is held by an independent Judiciary. (Sec. 1, Art. VIII)

E. Checks and balances

The principle of Checks and Balances allows one department to resist encroachments upon its prerogatives or to rectify mistakes or excesses committed by the other departments.

F. Delegation of powers

a. Completeness Test – The law must be complete in all essential terms and conditions when it leaves the legislature so that there will be nothing left for the delegate to do when it reaches him except to enforce it.

b. Sufficient Standard Test – If the law does not spell out in detail the limits of the delegate’s authority, it may be sustained if delegation is made subject to a sufficient standard.

Note: The sufficient standard test maps out the boundaries of the delegate’s authority and indicating the circumstances under which it is to be pursued and effected. Its purpose is to prevent total transference of legislative power).

G. Forms of government

1. De jure government - a government truly and lawfully established by the Constitution of a State but which having been in the meantime displaced is actually cut off from power or control.

2. De facto government - a government of fact; one actually exercising power and control in the State as opposed to the true and lawful government.

III. Legislative Department – Article VI

A. Who may exercise legislative power

1. Congress

Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.

Section 8. Unless otherwise provided by law, the regular election of the Senators and the Members of the House of Representatives shall be held on the second Monday of May.

Section 9. In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term.

2. Regional/Local legislative power

3. People’s initiative on statutes

a. Initiative and referendum

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

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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.

4. The President under a martial law rule or in a revolutionary government

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.

B. Houses of Congress

1. Senate

Section 2. The Senate shall be composed of twenty-four Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law.

Section 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election.

Section 4. The term of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term of which he was elected.

2. House of Representatives

a. Composition / District representatives and questions of apportionment

DISTRICT REPRESENTATIVE PARTY-LIST REPRESENTATIVE

Elected according to legislative district by the constituents of such district.

Elected nationally with party-list organizations garnering at least 2% of all votes cast for the party-list system entitled to 1 seat, which is increased according to proportional representation, but is in no way to exceed 3 seats per organization.

Must be a resident of his legislative district for at least 1 year immediately before the election.

No special residency requirement.

Elected personally, by name. Voted upon by party or organization. It is only when a party is entitled to representation that it designates who will sit as representative.

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Does not lose seat if he/she changes party or affiliation.

If he/she changes party or affiliation, loses his seat, in which case he/she will be substituted by another qualified person in the party /organization based on the list submitted to the COMELEC.

In case of vacancy, a special election may be held provided that the vacancy takes place at least 1 year before the next election.

In case of vacancy, a substitution will be made within the party, based on the list submitted to the COMELEC.

A district representative is not prevented from running again as a district representative if he/she lost during the previous election.

A party-list representative cannot sit if he ran and lost in the previous election.

A change in affiliation within months prior to election does not prevent a district representative from running under his new party.

A change in affiliation within 6 months prior to election prohibits the party-list representatives from listing as representative under his new party or organization.

Legislative districts are apportioned among the provinces, cities, and the Metropolitan Manila area. They are apportioned in accordance with the number of their respect inhabitants and on the basis of a uniform and progressive ratio. (Sec. 5, Art. VI, 1987Constitution)

Each city with a population of at least 250,000 shall have at least one representative. Each province shall have at least one representative.

While Section 5(3) of Art. VI of the Constitution requires a city to have a minimum population of 250,000 to be entitiled to one representative, it does not have to increase its population by another 250,000 to be entitled to an additional district. (Senator Aquino III v. COMELEC, G.R. No. 189793, April7, 2010)

Note: The question of the validity of an apportionment law is a justiciable question. (Macias v. Comelec,G.R. No. L-18684, September 14, 1961)

The conditions for apportionment are:

1. Elected from legislative districts which are apportioned in accordance with the number of inhabitants of each area and on the basis of a uniform and progressive ratio.

2. Uniform – Every representative of Congress shall represent a territorial unit with more or less 250,000 population. All the other representatives shall have the same or nearly the same political constituency so much so that their votes will constitute the popular majority.

3. Progressive – It must respond to the change in times. The number of House representatives must not be so big as to be unwieldy. (Let us say, there is a growth in population. The ratio may then be increased. From 250,000 constituents/1 representative it may be reapportioned to 300, 000 constituents/1 representative).

4. Each city with a population of at least 250,000 or each province shall at least have one representative.

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Note: GR: There must be proportional representation according to the number of their constituents/inhabitants.

XPN: In one city-one representative/one province-one representative rule.

5. Legislative districts shall be re-apportioned by Congress within 3 years after the return of each census. (Senator Aquino III v. COMELEC, G.R. No. 189793, April7, 2010.)

The underlying principle behind the rule for apportionment is the concept of equality of representation which is a basic principle of republicanism. One man’s vote should carry as much weight as the vote of every other man.

Note: Section 5 provides that the House shall be composed of not more than 250 members unless otherwise provided by law. Thus, Congress itself may by law increase the composition of the HR. (Tobias v. Abalos, G.R. No. L-114783, December 8, 1994)

As such, when one of the municipalities of a congressional district is converted to a city large enough to entitle it to one legislative district, the incidental effect is the splitting of district into two. The incidental arising of a new district in this manner need not be preceded by a census. (Tobias v. Abalos, G.R. No. L-114783, December 8, 1994)

Reapportionment can be made thru a special law. (Mariano, Jr. vs. COMELEC, G.R. No. 118577, March 7, 1995)

Gerrymandering is the formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party. It is not allowed because the Constitution provides that each district shall comprise, as far as practicable, contiguous, compact and adjacent territory (Bernas, Reviewer in Philippine Constitution, p. 186)

b. Party-list system

Section 5.

1. The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.

2. The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.

3. Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.

4. Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.

Section 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least

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twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election.

Section 7. The Members of the House of Representatives shall be elected for a term of three years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No Member of the House of Representatives shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

C. Legislative privileges, inhibitions and disqualifications

Section 10. The salaries of Senators and Members of the House of Representatives shall be determined by law. No increase in said compensation shall take effect until after the expiration of the full term of all the Members of the Senate and the House of Representatives approving such increase.

Section 11. A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.

Section 12. All Members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests. They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors.

Section 13. No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected.

Section 14. No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office.

D. Quorum and voting majorities

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.

Section 16.

1. The Senate shall elect its President and the House of Representatives, its Speaker, by a majority vote of all its respective Members. Each House shall choose such other officers as it may deem necessary.

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2. A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner, and under such penalties, as such House may provide.

3. Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days.

4. Each House shall keep a Journal of its proceedings, and from time to time publish the same, excepting such parts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at the request of one-fifth of the Members present, be entered in the Journal. Each House shall also keep a Record of its proceedings.

5. Neither House during the sessions of the Congress shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.

E. Discipline of members

Each house may punish its members for disorderly behavior and, with concurrence of 2/3 of all its members, suspend, for not more than 60 days, or expel a member. (Sec. 16, Par. 3, Art. VI).

The interpretation of the phrase “disorderly behavior” is the prerogative of the House concerned and cannot be judicially reviewed (Osmeña v. Pendatun, G.R. No. L-17144, Oct.28, 1960).

Note: Members of Congress may also be suspended by the Sandiganbayan or by the Office of the Ombudsman. The suspension in the Constitution is different from the suspension prescribed in RA 3019, Anti-Graft and Corrupt Practices Act. The latter is not a penalty but a preliminary preventive measure and is not imposed upon the petitioner for misbehaviour as a member of Congress. (Santiago v. Sandiganbayan, G.R. No. 128055, April 18, 2001).

F. Electoral tribunals and the Commission on Appointments

Section 19. The Electoral Tribunals and the Commission on Appointments shall be constituted within thirty days after the Senate and the House of Representatives shall have been organized with the election of the President and the Speaker. The Commission on Appointments shall meet only while the Congress is in session, at the call of its Chairman or a majority of all its Members, to discharge such powers and functions as are herein conferred upon it.

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

Section 18. There shall be a Commission on Appointments consisting of the President of the Senate, as ex officio Chairman, twelve Senators, and twelve Members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented therein. The chairman of the Commission shall not vote, except in case of a tie. The Commission shall act on all

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appointments submitted to it within thirty session days of the Congress from their submission. The Commission shall rule by a majority vote of all the Members.

G. Powers of Congress

1. Legislative

a. Legislative inquiries and the oversight functions

Section 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in, or affected by, such inquiries shall be respected.

Section 22. The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

b. Bicameral conference committee

What is the purpose of the constitution of the Bicameral Conference Committee?

A Conference Committee is constituted and is composed of Members from each House of Congress to settle, reconcile or thresh out differences or disagreements on any provision of the bill.

If the version approved by the Senate is different from that approved by the House of Representatives, how are the differences reconciled?

In a bicameral system, bills are independently processed by both Houses of Congress. It is not unusual that the final version approved by one House differs from what has been approved by the other.

The “conference committee,” consisting of members nominated from both Houses, is an extra-constitutional creation of Congress whose function is to propose to Congress ways of reconciling conflicting provisions found in the Senate version and in the House version of a bill. (Concurring and Dissenting Opinion, J. Callejo, Sr., G.R. No. 168056, Sept. 1, 2005)

Are the conferees limited to reconciling the differences in the bill?

The conferees are not limited to reconciling the differences in the bill but may introduce new provisions germane to the subject matter or may report out an entirely new bill on the subject. (Tolentino v. Secretary of Finance, G.R.No, 115455, Aug. 25, 1994)

c. Limitations on legislative power

Section 30. No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence.

Section 31. No law granting a title of royalty or nobility shall be enacted.

1.) Limitations on revenue, appropriations and tariff measures

Section 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills, shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments.

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Section 25.

1. The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law.

2. No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates.

3. The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies.

4. A special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposal therein.

5. No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.

6. Discretionary funds appropriated for particular officials shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law.

7. If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed re-enacted and shall remain in force and effect until the general appropriations bill is passed by the Congress.

Section 26.

1. Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof.

2. No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal.

Section 28.

1. The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation.

2. The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government.

3. Charitable institutions, churches and personages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation.

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4. No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress.

Section 29.

1. No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.

2. No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.

3. All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government.

2.) Presidential veto and Congressional override

Section 27.

1. Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof, otherwise, it shall become a law as if he had signed it.

2. The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.

2. Non-legislative

a. Informing function

Section 20. The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses for each Member.

b. Power of impeachment

Impeachment is a method by which persons holding government positions of high authority, prestige, and dignity and with definite tenure may be removed from office for causes closely related to their conduct as public officials.

Note: It is a national inquest into the conduct of public men (Outline on Political Law, Nachura, 2006).

It is primarily intended for the protection of the State, not for the punishment of the offender. The penalties attached to the impeachment are merely incidental to the primary intention of protecting the people as a body politic. (The Law on Public officers by Hector S. De Leon, 2008 ed.)

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The impeachable officers are:

1. President

2. Vice-President

3. Members of the Supreme Court

4. Members of the Constitutional Commissions

5. Ombudsman

Note: The enumeration is exclusive. (Sec. 2, Art. XI, 1987 Constitution)

The grounds for impeachment are:

1. Culpable violation of the Constitution

2. Treason

3. Bribery

4. Graft and Corruption

5. Other high crimes

6. Betrayal of public trust (Sec. 2, Art. XI, 1987 Constitution)

Note: It is an exclusive list.

The steps in the impeachment process are:

1. Initiating impeachment case

a. Verified complaint filed by any member of the House of Representatives or any citizen upon resolution of endorsement by any member thereof.

b. Included in the order of business within 10 session days.

c. Referred to the proper committee within 3 session days from its inclusion.

d. The committee, after hearing, and by majority vote of all its members, shall submit its report to the House of Representatives together with the corresponding resolution.

e. Placing on calendar the Committee resolution within 10 days from submission;

f. Discussion on the floor of the report;

Note: If the verified complaint is filed by at least 1/3 of all its members of the House of Representatives, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (Sec. 3 (4), Art. XI, 1987 Constitution)

g. A vote of at least 1/3 of all the members of the House of Representatives shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the committee or override its contrary resolution. (Sec. 3 (2-3), Art. XI. 1987 Constitution)

2. Trial and Decision in impeachment proceedings

a. The Senators take an oath or affirmation

b. When the President of the Philippines is on trial, the Chief Justice of the SC shall preside but shall not vote.

c. A decision of conviction must be concurred in by at least 2/3 of all the members of Senate.

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Note: The Senate has the sole power to try and decide all cases of impeachment. (Sec. 3(6), Art. XI, 1987 Constitution)

An impeachment deemed initiated when a verified complaint is filed and referred to the Committee on Justice for action. This is the initiating step which triggers the series of step that follow. The term “to initiate” refers to the filing of the impeachment complaint coupled with Congress’ taking initial action of said complaint. (Francisco v. House of Rep., G.R. No. 160261, November 10, 2003)

The power to determine the sufficiency of form and substance of an impeachment complaint is an exponent of the express constitutional grant of rulemaking powers of the House of Representatives. In the discharge of that power and in the exercise of its discretion, the House has formulated determinable standards as to form and substance of an impeachment complaint. Furthermore the impeachment rules are clear in echoing the constitutional requirements in providing that there must be a “verified complaint or resolution” and that the substance requirement is met if there is “a recital of facts constituting the offense charged and determinative of the jurisdiction of the committee”. (Ma.Merceditas Gutierrez v. The House of Representatives Committee on Justice, G.R. No. 193459, Feb. 15,2011)

The salutary reason of confining only one impeachment proceeding in a year:

Justice Azcuna stated that the purpose of the one-year bar is two-fold:

1. To prevent undue or too frequent harassment

2. To allow the legislature to do its principal task of legislation. (Francisco v. House of Rep., G.R. No. 160261, Nov. 10, 2003)

The consideration behind the intended limitation refers to the element of time, and not the number of complaints. The impeachable officer should defend himself in only one impeachment proceeding, so that he will not be precluded from performing his official functions and duties. Similarly, Congress should run only one impeachment proceeding so as not to leave it with little time to attend to its main work of law-making. The doctrine laid down in Francisco that initiation means filing and referral remains congruent to the rationale of the constitutional provision. (Gutierrez v. The House of Representatives Committee on Justice, G.R. No. 193459, Feb. 15, 2011)

The effects of conviction in impeachment are:

1. Removal from office

2. Disqualification to hold any other office under the Republic of the Philippines

3. Party convicted shall be liable and subject to prosecution, trial and punishment according to law. (Sec. 3 (7). Art. XI, 1987 Constitution)

The limitations imposed by the Constitution upon the initiation of impeachment proceedings are:

1. The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

2. Not more than one impeachment proceeding shall be initiated against the same official within a period of one year.

Note: An impeachment case is the legal controversy that must be decided by the Senate while an impeachment proceeding is one that is initiated in the House of Representatives. For purposes of applying the one year ban rule, the proceeding is initiated or begins when a verified complaint is filed and

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referred to the Committee on Justice for action. (Francisco v. House of Representatives, et. al., G.R. No. 160261, Nov. 10, 2003)

The power to impeach is essentially a non-legislative prerogative and can be exercised by Congress only within the limits of the authority conferred upon it by the Constitution. (Francisco v. House of Representatives, et. al., G.R. No. 160261, Nov. 10, 2003)

Initiation takes place by the act of filing of the impeachment complaint and referral to the House Committee on Justice. Once an impeachment complaint has been initiated in the foregoing manner, another may not be filed against the same official within a one year period. (Gutierrez v. House of Representatives Committee on Justice, G.R. No. 193459, February 15, 2011)

c. Other non-legislative powers

IV. Executive Department (Article VII)

Section 1. The executive power shall be vested in the President of the Philippines.

Section 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date, six years thereafter. The President shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.

No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected.

Unless otherwise provided by law, the regular election for President and Vice-President shall be held on the second Monday of May.

The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.

The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately.

The Congress shall promulgate its rules for the canvassing of the certificates.

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose.

Section 5. Before they enter on the execution of their office, the President, the Vice-President, or the Acting President shall take the following oath or affirmation:

"I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President (or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate

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myself to the service of the Nation. So help me God." (In case of affirmation, last sentence will be omitted.)

A. Privileges, inhibitions and disqualifications

Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure, be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.

1. Presidential immunity

Presidential or executive immunity is the immunity from suits during the President’s incumbency.

The rules on executive immunity are:

A. (Rules on immunity during tenure)

1. The President is immune from suit during his tenure. (In re: Bermudez, G.R. No. 76180, Oct. 24, 1986)

2. An impeachment complaint may be filed against him during his tenure. (Art. XI)

3. The President may not be prevented from instituting suit. (Soliven v. Makasiar, G.R. No. 82585, Nov. 14, 1988)

4. There is nothing in our laws that would prevent the President from waiving the privilege. The President may shed the protection afforded by the privilege. (Soliven v. Makasiar, G.R. No. 82585, Nov. 14, 1988)

5. Heads of departments cannot invoke the President’s immunity. (Gloria v. Court of Appeals, G.R. No. 119903, Aug. 15, 2000)

B. (Rule on immunity after tenure)

Once out of office, even before the end of the 6-year term, immunity for non-official acts is lost. Such was the case of former President Joseph Estrada. Immunity cannot be claimed to shield a non-sitting President from prosecution for alleged criminal acts done while sitting in office. (Estrada v. Desierto, G.R. Nos. 146710-15, Mar. 2, 2001)

A non-sitting President does not enjoy immunity from suit, even though the acts were done during her tenure. The intent of the framers of the Constitution is clear that the immunity of the president from suit is concurrent only with his tenure and not his term. Former President Arroyo cannot use the presidential immunity from suit to shield herself from judicial scrutiny that would assess whether, within the context of amparo proceedings, she was responsible or accountable for the abduction of Rodriguez. (In Re: Petition for the Writ of Amparo and Habeas Data in favor of Noriel H. Rodriguez; Noriel H. Rodriguez vs. Gloria Macapagal-Arroyo, et al., G.R. Nos. 191805 &193160. Nov. 15, 2011)

2. Presidential privilege

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Section 6. The President shall have an official residence. The salaries of the President and Vice-President shall be determined by law and shall not be decreased during their tenure. No increase in said compensation shall take effect until after the expiration of the term of the incumbent during which such increase was approved. They shall not receive during their tenure any other emolument from the Government or any other source.

Presidential or executive privilege is the power of the President and high-level executive branch officers to withhold certain types of information from Congress, the courts, and ultimately the public.

Executive privilege must be invoked in relation to specific categories of information and not to categories of persons.

Note: While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. (Senate v. Ermita, G.R. No. 169777, April 20, 2006)

B. Powers

1. Executive and administrative powers in general

2. Power of appointment

a. In general

Section 14. Appointments extended by an Acting President shall remain effective, unless revoked by the elected President, within ninety days from his assumption or reassumption of office.

b. Commission on Appointments confirmation

Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproved by the Commission on Appointments or until the next adjournment of the Congress.

c. Midnight appointments

Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

d. Power of removal

The President derives his implied power of removal from other powers expressly vested in him.

1. It is implied from his power to appoint.

2. Being executive in nature, it is implied from the constitutional provision vesting the executive power in the President.

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3. It may be implied from his function to take care that laws be properly executed; for without it, his orders for law enforcement might not be effectively carried out.

4. The power may be implied from the President’s control over the administrative departments, bureaus, and offices of the government. Without the power to remove, it would not be always possible for the President to exercise his power of control. (Sinco, Philippine Political Law, 1954 ed., p. 275)

The President cannot remove all the officials he appointed. Not all officials appointed by the President are also removable by him since the Constitution prescribes certain methods for the separation from the public service of such officers. (Cruz, Philippine Political Law, 2002 ed., pp. 209-210)

Note: Members of the career service of the Civil Service who are appointed by the President may be directly disciplined by him (Villaluz v. Zaldivar, G.R. No. L-22754, Dec. 31, 1965) provided that the same is for cause and in accordance with the procedure prescribed by law.

Members of the Cabinet and such officers whose continuity in office depends upon the President may be replaced at any time. Legally speaking, their separation is effected not by the process of removal but by the expiration of their term. (Aparri v. CA, G.R. No. L-30057, Jan. 31, 1984)

3. Power of control and supervision

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

a. Doctrine of qualified political agency

The doctrine of qualified political agency or alter ego principle means that the acts of the secretaries of the Executive departments performed and promulgated in the regular course of business are presumptively the acts of the Chief Executive. (Villena v. Secretary of the Interior, G.R. No. L-46570, April 21, 1939)

Exceptions to the alter ego doctrine are:

1. If the acts are disapproved or reprobated by the President;

2. If the President is required to act in person by law or by the Constitution.

Note: The SC held that the Secretary of Finance can act as an agent of the Legislative Dept. to determine and declare the event upon which its expressed will is to take effect. Thus, being the agent of Congress and not of the President, the latter cannot alter, or modify or nullify, or set aside the findings of the Secretary of Finance and to substitute the judgment of the former for that of the latter. (Abakada Guro v. Executive Secretary, G.R. No. 168056, Sept. 1, 2005)

What is the reason for the alter ego doctrine?

Since the President is a busy man, he is not expected to exercise the totality of his power of control all the time. He is not expected to exercise all his powers in person. He is expected to delegate some of them to men of his confidence, particularly to members of his Cabinet.

Note: Applying this doctrine, the power of the President to reorganize the National Government may be validly delegated to his Cabinet Members exercising control over a particular executive department. (DENR v. DENR Region XII Employees, G.R. No. 149724, August 19, 2003)

b. Executive departments and offices

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Department Heads can exercise power of control in behalf of the President. The President’s power of control means his power to reverse the judgment of an inferior officer. It may also be exercised in his behalf by Department Heads.

Note: The Sec. of Justice may reverse the judgment of a prosecutor and direct him to withdraw information already filed. One, who disagrees, however, may appeal to the Office of the President in order to exhaust administrative remedies prior filing to the court.

The Executive Secretary can reverse the decision of another department secretary. The Executive Secretary when acting “by authority of the President” may reverse the decision of another department secretary. (Lacson-Magallanes Co., Inc. v. Paño, G.R. No. L-27811, Nov. 17, 1967)

c. Local government units

The power of general supervision is the power of a superior officer to ensure that the laws are faithfully executed by subordinates. The power of the President over LGUs is only of general supervision. Thus, he can only interfere in the affairs and activities of a LGU if he finds that the latter acted contrary to law. The President or any of his alter egos cannot interfere in local affairs as long as the concerned LGU acts within the parameters of the law and the Constitution. Any directive, therefore, by the President or any of his alter egos seeking to alter the wisdom of a law-conforming judgment on local affairs of a LGU is a patent nullity, because it violates the principle of local autonomy, as well as the doctrine of separation of powers of the executive and the legislative departments in governing municipal corporations. (Dadole v. COA, G.R. No. 125350, Dec. 3, 2002)

4. Military powers

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

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The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

5. Pardoning power

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.

a. Nature and limitations

The limitations to the President’s pardoning power are:

1. Cannot be granted in cases of impeachment. (Sec. 2, Art. XI)

2. Cannot be granted for violations of election laws without favorable recommendations of the COMELEC.

3. Can be granted only after convictions by final judgment (except amnesty).

4. Cannot be granted in cases of civil or legislative contempt.

5. Cannot absolve convict of civil liability.

6. Cannot restore public offices forfeited.

b. Forms of executive clemency

1. Pardons (conditional or plenary)

2. Reprieves

3. Commutations

4. Remission of fines and forfeitures

5. Amnesty

Note: The first 4 require conviction by final judgment while amnesty does not.

6. Borrowing Power

Section 20. The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decision on applications for loans to be contracted or guaranteed by the Government or government-owned and controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law.

7. Diplomatic power

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.

8. Powers relative to appropriation measures (Budgetary Powers)

Section 22. The President shall submit to the Congress, within thirty days from the opening of every regular session as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures.

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9. Delegated powers

By delegation from Congress, the President may exercise emergency (Sec. 23(2), Art.VI) and tariff powers (Sec. 28, Art. VI).

The emergency power of the President. Under Sec. 23 (2) of Art. VI, 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 or later withdrawn by resolution of Congress, such powers shall cease upon next adjournment thereof.

The tariff power of the President is the power of the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. (Sec, 28 (2), Art. VI, 1987 Constitution)

10.Veto powers (See Sec. 27, Art VI)

GR: If the President disapproves a bill enacted by Congress, he should veto the entire bill. He is not allowed to veto separate items of a bill.

XPN: Item-veto is allowed in case of Appropriation, Revenue, and Tariff bills (Sec. 27, Par. 2, Art. VI).

XPNs to the XPN:

1. Doctrine of inappropriate provisions – a provision that is constitutionally inappropriate for an appropriation bill may be singled out for veto even if it is not an appropriation or revenue item.(Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990)

2. Executive impoundment – refusal of the President to spend funds already allocated by Congress for specific purpose. It is the failure to spend or obligate budget authority of any type. (Philconsa v. Enriquez, G.R. No. 113105, August 19, 1994)

11.Residual powers

Whatever power inherent in the government that is neither legislative nor judicial has to be executive. These unstated residual powers are implied from the grant of executive power and which are necessary for the President to comply with his duties under the Constitution. (Marcos v. Manglapus, G.R. No. 88211, Oct. 27, 1989)

12.Executive privilege

Presidential or executive privilege is the power of the President and high-level executive branch officers to withhold certain types of information from Congress, the courts, and ultimately the public.

Q: How is the privilege invoked?

A: Executive privilege must be invoked in relation to specific categories of information and not to categories of persons.

Note: While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. (Senate v. Ermita, G.R. No. 169777, April 20, 2006)

Q: Is the invocation of this privilege through executive orders, prohibiting executive officials from participating in legislative inquiries, violates the constitutional right to information on matters of public concern of the people?

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A: Yes. To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress — opinions which they can then communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression.(Senate v. Ermita, G.R. No. 169777, April 20, 2006)

Q: Who can invoke executive privilege?

1. President

Note: The privilege being an extraordinary power, it must be wielded only by the highest official in the executive department. Thus, the President may not authorize her subordinates to exercise such power.

2. Executive Secretary, upon proper authorization from the President

Note: The Executive Secretary must state that the authority is “By order of the President,” which means he personally consulted with her.

Q: What is required if an official is summoned by Congress on a matter which in his own judgment might be covered by executive privilege?

A: When an official is being summoned by Congress on a matter which, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary of the possible need for invoking the privilege. This is necessary in order to provide the President or the Executive Secretary with fair opportunity to consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress is no longer bound to respect the failure of the official to appear before Congress and may then opt to avail of the necessary legal means to compel his appearance. (Senate v. Ermita, G.R. No. 169777, April 20, 2006)

Q: What is the requirement in invoking the privilege?

A: A formal claim of the privilege is required. A formal and proper claim of executive privilege requires a specific designation and description of the documents within its scope as well as precise and certain reasons for preserving their confidentiality. Without this specificity, it is impossible for a court to analyze the claim short of disclosure of the very thing sought to be protected.

Note: Congress must not require the President to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. (Senate v. Ermita, G.R. No. 169777, April 20, 2006).

Q: Is the privilege absolute?

A: No. Claim of executive privilege is subject to balancing against other interest. Simply put, confidentiality in executive privilege is not absolutely protected by the Constitution. Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. (Neri v. Senate,G.R. No. 180643, Mar. 25, 2008).

Q: Sec. 1 of EO 464 required all heads of departments in the Executive branch to secure the consent of the President before appearing in an inquiry conducted by either House of Congress, pursuant to Art. VI, Sec. 22 of the Constitution. Does this section applies onlyto question hour? Is it valid?

A: Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of any reference to inquiries in aid of legislation, must be construed as limited in its application to appearances of department heads in the question hour contemplated in the provision of said Section 22 of Article VI. The reading is dictated by the basic rule of construction that issuances must be interpreted, as much as possible, in a way that will render it constitutional.

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The requirement then to secure presidential consent under Section 1, limited as it is only to appearances in the question hour, is valid on its face. For under Section 22, Article VI of the Constitution, the appearance of department heads in the question hour is discretionary on their part. (Senate v. Ermita, G.R. No. 169777, April 20, 2006)

Note: Sec. 1 of EO 464 cannot, however, be applied to appearances of department heads in inquiries in aid of legislation. Congress is not bound in such instances to respect the refusal of the department head to appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the President herself or by the Executive Secretary. (Senate v. Ermita, G.R. No. 169777, April 20, 2006)

Q: What are the varieties of executive privilege?

1. State secret privilege – invoked by Presidents on the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives.

2. Informer’s privilege – privilege of the government not to disclose the identity of persons who furnish information in violations of law to officers charged with the enforcement of the law.

3. Generic privilege – for internal deliberations. Said to attach to intra-governmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.

Note: In determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting.

13.Informing Power

Section 23. The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time.

C. Rules of Succession

Section 7. The President-elect and the Vice President-elect shall assume office at the beginning of their terms.

If the President-elect fails to qualify, the Vice President-elect shall act as President until the President-elect shall have qualified.

If a President shall not have been chosen, the Vice President-elect shall act as President until a President shall have been chosen and qualified.

If at the beginning of the term of the President, the President-elect shall have died or shall have become permanently disabled, the Vice President-elect shall become President.

Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall act as President until a President or a Vice-President shall have been chosen and qualified.

The Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified, in case of death, permanent disability, or inability of the officials mentioned in the next preceding paragraph.

Section 8. In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice-President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified.

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The Congress shall, by law, provide who shall serve as President in case of death, permanent disability, or resignation of the Acting President. He shall serve until the President or the Vice-President shall have been elected and qualified, and be subject to the same restrictions of powers and disqualifications as the Acting President.

Section 9. Whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected, the President shall nominate a Vice-President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately.

Section 10. The Congress shall, at ten o'clock in the morning of the third day after the vacancy in the offices of the President and Vice-President occurs, convene in accordance with its rules without need of a call and within seven days, enact a law calling for a special election to elect a President and a Vice-President to be held not earlier than forty-five days nor later than sixty days from the time of such call. The bill calling such special election shall be deemed certified under paragraph 2, Section 26, Article V1 of this Constitution and shall become law upon its approval on third reading by the Congress. Appropriations for the special election shall be charged against any current appropriations and shall be exempt from the requirements of paragraph 4, Section 25, Article V1 of this Constitution. The convening of the Congress cannot be suspended nor the special election postponed. No special election shall be called if the vacancy occurs within eighteen months before the date of the next presidential election.

Section 11. Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate and to the Speaker of the House of Representatives, their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office.

Section 12. In case of serious illness of the President, the public shall be informed of the state of his health. The members of the Cabinet in charge of national security and foreign relations and the Chief of Staff of the Armed Forces of the Philippines, shall not be denied access to the President during such illness.

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V. Judicial Department (Article VIII)

A. Concepts

1. Judicial power

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.

Section 4.

1. The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.

2. All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.

3. Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.

Section 5. The Supreme Court shall have the following powers:

1. Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

a. All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

b. All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.

c. All cases in which the jurisdiction of any lower court is in issue.

d. All criminal cases in which the penalty imposed is reclusion perpetua or higher.

e. All cases in which only an error or question of law is involved.

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3. Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned.

4. Order a change of venue or place of trial to avoid a miscarriage of justice.

5. Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

6. Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law.

2. Judicial review

a. Operative fact doctrine

Operative fact doctrine is a rule of equity. Under this doctrine, the law is recognized as unconstitutional but the effects of the unconstitutional law, prior to its declaration of nullity, may be left undisturbed as a matter of equity and fair play. (League of Cities of the Philippines v. COMELEC, G.R. No. 176951, Nov. 18, 2008)

b. Moot questions

Moot questions are questions whose answers cannot have any practical legal effect or, in the nature of things, cannot be enforced. (Baldo, Jr. v. COMELEC, G.R. No. 176135, June 16, 2009)

It is moot and academic when it ceases to present a justiciable controversy by virtue of supervening events so that a declaration thereon would be of no practical use or value.

c. Political question doctrine

The doctrine means that the power of judicial review cannot be exercised when the issue is a political question. It constitutes another limitation on such power of the judiciary.

Political questions are those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. (Tañada v. Cuenco, G.R. No. L-10520, February 28, 1957)

B. Safeguards of Judicial independence

Section 2. The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof.

No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members.

Section 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released.

Section 11. The Members of the Supreme Court and judges of the lower court shall hold office during good behavior until they reach the age of seventy years or become

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incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of majority of the Members who actually took part in the deliberations on the issues in the case and voted in thereon.

Section 12. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative function.

C. Judicial restraint

It is a theory of judicial interpretation that encourages judges to limit the exercise of their own power.

In terms of legislative acts, the principle of judicial restraint means that every intendment of the law must be adjudged by the courts in favor of its constitutionality, invalidity being a measure of last resort. In construing therefore the provisions of a statute, courts must first ascertain whether an interpretation is fairly possible to sidestep the question of constitutionality. (Estrada v. Sandiganbayan, G.R. No. 148560, Nov. 19, 2001)

The doctrine of separation of powers imposes upon the courts proper restraint born of the nature of their functions and of their respect for the other departments in striking down acts of the legislature as unconstitutional. (Francisco, Jr. v. The House of Representatives, G.R. No. 160261, Bellosillo J., Separate Opinion, Nov. 10, 2003)

D. Appointments to the Judiciary

Section 7.

1. No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines. A Member of the Supreme Court must be at least forty years of age, and must have been for fifteen years or more, a judge of a lower court or engaged in the practice of law in the Philippines.

2. The Congress shall prescribe the qualifications of judges of lower courts, but no person may be appointed judge thereof unless he is a citizen of the Philippines and a member of the Philippine Bar.

3. A Member of the Judiciary must be a person of proven competence, integrity, probity, and independence.

Section 8.

1. A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.

2. The regular members of the Council shall be appointed by the President for a term of four years with the consent of the Commission on Appointments. Of the Members first appointed, the representative of the Integrated Bar shall serve for four years, the professor of law for three years, the retired Justice for two years, and the representative of the private sector for one year.

3. The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and shall keep a record of its proceedings.

4. The regular Members of the Council shall receive such emoluments as may be determined by the Supreme Court. The Supreme Court shall provide in its annual budget the appropriations for the Council.

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5. The Council shall have the principal function of recommending appointees to the judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it.

Section 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees preferred by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.

For the lower courts, the President shall issued the appointment within ninety days from the submission of the list.

E. Supreme Court

1. En banc and division cases

Section 13. The conclusions of the Supreme Court in any case submitted to it for the decision en banc or in division shall be reached in consultation before the case the case assigned to a Member for the writing of the opinion of the Court. A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties. Any Member who took no part, or dissented, or abstained from a decision or resolution must state the reason therefor. The same requirements shall be observed by all lower collegiate court.

Section 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.

No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor.

Section 15.

1. All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts.

2. A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the Rules of Court or by the court itself.

3. Upon the expiration of the corresponding period, a certification to this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon the parties. The certification shall state why a decision or resolution has not been rendered or issued within said period.

4. Despite the expiration of the applicable mandatory period, the court, without prejudice to such responsibility as may have been incurred in consequence thereof, shall decide or resolve the case or matter submitted thereto for determination, without further delay.

2. Procedural rule-making

The scope of the rule making power of the SC is to promulgate rules concerning:

1. The protection and enforcement of constitutional rights

2. Pleadings, practice and procedure in all courts

3. Admission to the practice of law

4. The Integrated Bar

5. Legal assistance to the underprivileged

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The limitations on its rule making power are:

1. It should provide a simplified and inexpensive procedure for the speedy disposition of cases.

2. It should be uniform for all courts of the same grade.

3. It should not diminish, increase, or modify substantive rights.

3. Administrative supervision over lower courts

Section 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof.

4. Original and appellate jurisdiction

F. Judicial privilege

Section 10. The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts shall be fixed by law. During the continuance in office, their salary shall not be decreased.

Section 16. The Supreme Court shall, within thirty days from the opening of each regular session of the Congress, submit to the President and the Congress an annual report on the operations and activities of the Judiciary.

VI. Constitutional Commissions (Article IX)

A. Constitutional safeguards to ensure independence of commissions

A. COMMON PROVISIONS

Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit.

Section 2. No member of a Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which, in any way, may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries.

Section 3. The salary of the Chairman and the Commissioners shall be fixed by law and shall not be decreased during their tenure.

Section 4. The Constitutional Commissions shall appoint their officials and employees in accordance with law.

Section 5. The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly released.

Section 6. Each Commission en banc may promulgate its own rules concerning pleadings and practice before it or before any of its offices. Such rules, however, shall not diminish, increase, or modify substantive rights.

Section 7. Each Commission shall decide by a majority vote of all its Members, any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission

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may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

Section 8. Each Commission shall perform such other functions as may be provided by law.

1. Composition and Appointment

a. Civil Service Commission (CSC) (Article IX-B)

Section 1.

1. The civil service shall be administered by the Civil Service Commission composed of a Chairman and two Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, with proven capacity for public administration, and must not have been candidates for any elective position in the elections immediately preceding their appointment.

2. The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.

Section 4. All public officers and employees shall take an oath or affirmation to uphold and defend this Constitution.

Section 5. The Congress shall provide for the standardization of compensation of government officials and employees, including those in government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for, their positions.

b. Commission on Elections (COMELEC) (Article IX-C)

Section 1.

1. There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective positions in the immediately preceding elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years.

2. The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.

c. Commission on Audit (CoA) (Article IX-D)

Section 1.

1. There shall be a Commission on Audit composed of a Chairman and two Commissioners, who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, Certified Public Accountants with not less than ten years of auditing experience, or members of the Philippine Bar who have been engaged in the practice of law for at least ten

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years, and must not have been candidates for any elective position in the elections immediately preceding their appointment. At no time shall all Members of the Commission belong to the same profession.

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

B. Powers and functions of each commission

1. Civil Service Commission (CSC) (Article IX-B)

Section 3. The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. It shall submit to the President and the Congress an annual report on its personnel programs.

2. Commission on Elections (COMELEC) (Article IX-C)

Section 2. The Commission on Elections shall exercise the following powers and functions:

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

2. Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable.

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

4. Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections.

5. Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their platform or program of government; and accredit citizens' arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused registration.

Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections, constitute interference in national affairs, and, when accepted, shall be an additional

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ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law.

6. File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices.

7. Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies.

8. Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to, its directive, order, or decision.

9. Submit to the President and the Congress, a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall.

Section 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre- proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.

Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space ,and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission.

Section 9. Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety days before the day of election and shall end thirty days thereafter.

Section 11. Funds certified by the Commission as necessary to defray the expenses for holding regular and special elections, plebiscites, initiatives, referenda, and recalls, shall be provided in the regular or special appropriations and, once approved, shall be released automatically upon certification by the Chairman of the Commission

3. Commission on Audit (CoA) (Article IX-D)

Section 2.

1. The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters, and on a post- audit basis:

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a. constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution;

b. autonomous state colleges and universities;

c. other government-owned or controlled corporations and their subsidiaries; and

d. such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the Government, which are required by law or the granting institution to submit to such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep the general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto.

2. The Commission shall have exclusive authority, subject to the limitations in this Article, to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures or uses of government funds and properties.

C. Prohibited offices and interests

1. Civil Service Commission (CSC) (Article IX-B)

Section 6. No candidate who has lost in any election, shall within one year after such election, be appointed to any office in the Government or any Government-owned or controlled corporations or in any of their subsidiaries.

Section 7. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.

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

Section 8. No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government.

Pensions or gratuities shall not be considered as additional, double, or indirect compensation.

2. Commission on Elections (COMELEC) (Article IX-C)

3. Commission on Audit (CoA) (Article IX-D)

Section 3. No law shall be passed exempting any entity of the Government or its subsidiaries in any guise whatever, or any investment of public funds, from the jurisdiction of the Commission on Audit.

D. Jurisdiction of each constitutional commission

1. Civil Service Commission (CSC) (Article IX-B)

Section 2.

1. The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters.

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2. Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and, except to positions which are policy-determining, primarily confidential, or highly technical, by competitive examination.

3. No officer or employee of the civil service shall be removed or suspended except for cause provided by law.

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

5. The right to self-organization shall not be denied to government employees.

6. Temporary employees of the Government shall be given such protection as may be provided by law.

2. Commission on Elections (COMELEC) (Article IX-C)

The cases fall under the jurisdiction of COMELEC by division:

Election cases should be heard and decided by a division. If a division dismisses a case for failure of counsel to appear, the MR may be heard by the division.

Note: According to Balajonda v. COMELEC, G.R. No. 166032, Feb. 28, 2005, the COMELEC can order immediate execution of its own judgments.

Cases fall under the jurisdiction of COMELEC en banc:

Motion for Reconsideration of decisions should be decided by COMELEC en banc. It may also directly assume jurisdiction over a petition to correct manifest errors in the tallying of results by Board of Canvassers.

Note: Any decision, order or ruling of the COMELEC in the exercise of its quasi-judicial functions may be brought to the SC on certiorari under Rules 64 and 65 of the Revised Rules of Court within 30 days from receipt of a copy thereof.

These decisions or rulings refer to the decision or final order of the COMELEC en banc and not of any division thereof.

The acts that fall under the COMELEC’s power to supervise or regulate are:

1. The enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information.

2. Grants, special privileges or concessions granted by the government or any subdivision, agency or instrumentality thereof, including any GOCC or its subsidiary. (Sec. 4, Art. IX-C)

COMELEC can exercise its constitutional powers and functions:

1. During election period – 90 days before the day of the election and ends 30 days thereafter. In special cases, COMELEC can fix a period.

2. Applies not only to elections but also to plebiscites and referenda.

3. Commission on Audit (CoA) (Article IX-D)

Q: Can the COA be divested of its power to examine and audit government agencies?

A: No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatsoever, or any investment of public funds, from the jurisdiction of the Commission on Audit.

The mere fact that private auditors may audit government agencies does not divest the COA of its power to examine and audit the same government agencies. (DBP v. COA, G.R. No. 88435, Jan. 16, 2002)

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E. Review of final orders, resolutions and decisions

1. Rendered in the exercise of quasi-judicial functions

COA: Judgments or final orders of the Commission on Audit may be brought by an aggrieved party to the Supreme Court on certiorari under Rule 65. Only when COA acts without or excess in jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, may the SC entertain a petition for certiorari under Rule 65.

CSC: In the case of decisions of the CSC, Administrative Circular 1-95538 which took effect on June 1, 1995, provides that final resolutions of the CSC shall be appealable by certiorari to the CA within 15 days from receipt of a copy thereof. From the decision of the CA, the party adversely affected thereby shall file a petition for review on certiorari under Rule 45 of the Rules of Court.

COMELEC: only decision en banc may be brought to the Court by certiorari since Article IX-C, says that motions for reconsideration of decisions shall be decided by the Commission en banc. (Reyes v. Mindoro, G.R. No. 108886, May 5, 1995)

2. Rendered in the exercise of administrative functions

Q; Does the CSC have the power to hear and decide administrative cases?

A: Yes. Under the Administrative Code of 1987, the CSC has the power to hear and decide administrative cases instituted before it directly or on appeal, including contested appointments.

Q: Which body has the jurisdiction on personnel actions, covered by the civil service?

A: CSC. It is the intent of the Civil Service Law, in requiring the establishment of a grievance procedure, that decisions of lower officials (in cases involving personnel actions) be appealed to the agency head, then to the CSC. The RTC does not have jurisdiction over such personal actions. (G. R. No. 140917. October 10, 2003)

Q: What is the jurisdiction of the COMELEC?

A:The COMELEC hasexclusive original jurisdiction over all contests relating to returns, and qualifications of all elective regional, provincial, and city officials.It also hasappellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.

Q: Discuss the certiorari jurisdiction of the SC over these Commissions.

A: Proceedings are limited to issues involving grave abuse of discretion resulting in lack or excess of jurisdiction and does not ordinarily empower the Court to review the factual findings of the Commissions. (Aratuc v. COMELEC, G.R. No. L-49705-09, Feb. 8, 1979)

F. Other Provisions

1. Commission on Elections (COMELEC) (Article IX-C)

a. Free and open party system

Section 6. A free and open party system shall be allowed to evolve according to the free choice of the people, subject to the provisions of this Article.

Section 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list system as provided in this Constitution.

Section 8. Political parties, or organizations or coalitions registered under the party-list system, shall not be represented in the voters' registration boards, boards of election inspectors, boards of canvassers, or other similar bodies. However, they shall be entitled to appoint poll watchers in accordance with law.

b. Protection of Candidates

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Section 10. Bona fide candidates for any public office shall be free from any form of harassment and discrimination.

2. Commission on Audit (CoA) (Article IX-D)

Section 4. The Commission shall submit to the President and the Congress, within the time fixed by law, an annual report covering the financial condition and operation of the Government, its subdivisions, agencies, and instrumentalities, including government-owned or controlled corporations, and non-governmental entities subject to its audit, and recommend measures necessary to improve their effectiveness and efficiency. It shall submit such other reports as may be required by law.

VII. Bill of Rights – Article III

A. Fundamental powers of the state (police power, eminent domain, taxation)

1. Concept, application and limits

a. Police Power

Police power is that inherent and plenary power of the State which enables it to prohibit all that is hurtful to the comfort, safety, and welfare of society. (Ermita-Malate Hotel and Motel Operators Association, Inc. vs. Mayor of Manila, L-24693, July 31, 1967)

Q: What are the characteristics of police power as compared to the powers of taxation and eminent domain?

A: Police power easily outpaces the other two powers. It regulates not only property, but also the liberty of persons. Police power is considered the most pervasive, the least limitable, and the most demanding of the three powers. It may be exercised as long as the activity or property sought to be regulated has some relevance to the public welfare. (Gerochi v. Department of Energy, G. R. 159796, July 17, 2007)

Q: What is the scope of police power?

A: Police Power rests upon public necessity and upon the right of the State and of the public to self-protection. For this reason, its scope expands and contracts with the changing needs.(Churchill vs. Rafferty, 32 Phil. 580, 602-603, 1915)

Q: What are the aspects of police power?

A: Generally, police power extends to all the great public needs. However, its particular aspects are the following:

1. Public health

2. Public morals

3. Public safety

4. Public welfare

Q: Who exercises police power?

A: GR: Police power is lodged primarily in the national legislature.

XPN: By virtue of a valid delegation of legislative power, it may be exercised by the:

1. President

2. Administrative bodies

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3. Lawmaking bodies on all municipal levels, including the barangay. Municipal governments exercise this power under the general welfare clause. (Gorospe, Constitutional Law: Notes and Readings on the Bill of Rights, Citizenship and Suffrage, Vol. 2.)

b. Eminent Domain

Power of eminent domain is the power of the state to forcibly acquire the needed property in order to devote it to the intended public use, upon payment of just compensation. (Cruz, Constitutional Law, p.62)

Q: What properties can be taken?

A: All private property capable of ownership, including services.

Q: What properties cannot be taken?

A: Money and choses in action, personal right not reduced in possession but recoverable by a suit at law, right to receive, demand or recover debt, demand or damages on a cause of action ex contractu or for a tort or omission of duty.

Note: A chose in action is a property right in something intangible, or which is not in one’s possession but enforceable through legal or court action. Ex. cash, a right of action in tort or breach of contract, an entitlement to cash refund, checks, money, salaries, insurance claims

c. Taxation

Taxation is the process by which the government, through its legislative branch, imposes and collects revenues to defray the necessary expenses of the government, and to be able to carry out, in particular, any and all projects that are supposed to be for the common good. (Political Law Reviewer, Suarez , 2011). Simply put, taxation is the method by which these contributions are exacted. (Gorospe, Constitutional Law: Notes and Readings on the Bill of Rights, Citizenship and Suffrage, Vol. 2)

Q: Does the power to tax include the power to destroy?

A: Yes, only if it is used as a valid implement of the police power in discouraging and in effect, ultimately prohibiting certain things or enterprises inimical to public welfare. But where the power to tax is used solely for the purpose of raising revenues, the modern view is that it cannot be allowed to confiscate or destroy. If this is sought to be done, the tax may be successfully attacked as an inordinate and unconstitutional exercise of the discretion that is usually vested exclusively in the legislature in ascertaining the amount of tax (Cruz, Constitutional Law, 2006 Ed., p. 88)

Q: What is the nature of the power of taxation?

1. The power to tax is primarily vested in the legislature. This power, however, may now be exercised by local legislative bodies, no longer by virtue of a valid delegation as before, but pursuant to a direct authority conferred by Article X, Section 5 of the 1987 Constitution.

2. The power to tax is subject to the limitations imposed by the Constitution.

3. The power of taxation is inherent in the State and the State therefore can still exercise this power even if the constitution had not mentioned about it. (Political Law Reviewer, Suarez , 2011).

Q: What is the source of the obligation to pay taxes?

A: Payment of taxes is an obligation based on law, and not on contract. It is a duty imposed upon the individual by the mere fact of his membership in the body politic and his enjoyment of the benefits available from such membership.

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Note: Except only in the case of poll (community) taxes, non-payment of a tax may be the subject of criminal prosecution and punishment. The accused cannot invoke the prohibition against imprisonment for debt as taxes are not considered debts.

Q: What are the matters left to the discretion of the legislature?

1. Whether to tax in the first place

2. Whom or what to tax

3. For what public purpose

4. Amount or rate of the tax

Q: What are the limitations, in general, on the power of taxation?

A: Inherent and Constitutional limitations.

Q: What are inherent limitations?

1. Public purpose

2. Non-delegability of power

3. Territoriality or situs of taxation

4. Exemption of government from taxation

5. International comity

Q: What are Constitutional limitations?

1. Due process of law (Art. III, Sec.1)

2. Equal protection clause (Art. III, Sec.1)

3. Uniformity, equitability and progressive system of taxation (Art. VI, Sec 28)

4. Non-impairment of contracts (Art. III, Sec. 10)

5. Non-imprisonment for non-payment of poll tax (Art. III, Sec. 20)

6. Revenue and tariff bills must originate in the House of Representatives (Art I, Sec. 7)

7. Non-infringement of religious freedom (Art. III, Sec.4)

8. Delegation of legislative authority to the President to fix tariff rates, import and export quotas, tonnage and wharfage dues

9. Tax exemption of properties actually, directly and exclusively used for religious, charitable and educational purposes (NIRC, Sec 30)

10. Majority vote of all the members of Congress required in case of legislative grant of tax exemptions

11. Non-impairment of SC’s jurisdiction in tax cases

12. Tax exemption of revenues and assets of, including grants, endowments, donations or contributions to educational institutions

Q: Should there be notice and hearing for the enactment of tax laws?

A: From the procedural viewpoint, due process does not require previous notice and hearing before a law prescribing fixed or specific taxes on certain articles may be enacted. But where the tax to be collected is to be based on the value of taxable property, the taxpayer is entitled to be notified of the assessment proceedings and to be heard therein on the correct valuation to be given the property.

2. Requisites for valid exercise

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a. Police Power

1. Lawful subject – The interests of the public generally, as distinguished from those of a particular class, require the exercise of the police power

2. Lawful means – The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. (NTC vs. Philippine Veterans Bank, 192 SCRA 257).

b. Eminent Domain

The conditions for the exercise of the power of eminent domain are:

1. Taking of private property

2. For public use

3. Just compensation

4. Observance of due process

The requisites for a valid taking are: PMAPO

1. The expropriator must enter a Private property

2. Entry must be for more than a Momentary period

3. Entry must be under warrant or color of legal Authority

4. Property must be devoted to Public use or otherwise informally appropriated or injuriously affected

5. Utilization of property must be in such a way as to Oust the owner and deprive him of beneficial enjoyment of the property (Republic v. vda. De Castellvi, G.R. No. L-20620, Aug. 15, 1974)

c. Taxation

3. Similarities and differences

The similarities among the fundamental powers of the State are:

1. They are inherent in the State and may be exercised by it without need of express constitutional grant.

2. They are not only necessary but also indispensable. The State cannot continue or be effective unless it is able to exercise them.

3. They are methods by which the State interferes with private rights.

4. They all presuppose an equivalent compensation for the private rights interfered with.

5. They are exercised primarily by the legislature.

The common limitations on these powers are:

1. May not be exercised arbitrarily to the prejudice of the Bill of Rights

2. Subject at all times to the limitations and requirements of the Constitution and may in proper cases be annulled by the courts, i.e. when there is grave abuse of discretion.

POLICE POWER TAXATION EMINENT DOMAIN

Extent of power

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Regulates liberty and property

Affects only property rights

Power exercised by whom

Exercised only by the government Maybe exercised by private entities

Purpose

Property taken is destroyed

Property is taken for public use

Compensation

Intangible; general welfare

Protection and public improvements

Value of the property expropriated

4. Delegation

a. Police Power

Q: Can the MMDA exercise police power?

A: No, the MMDA’s powers are limited to the formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installing a system, and administration. Nothing in RA No. 7924 granted the MMDA police power, let alone legislative power. (MMDA vs. Trackworks GR. No. 179554, December 16, 2009)

Q: What are the requisites for the valid exercise of police power by the delegate?

1. Express grant by law

2. Must not be contrary to law

3. GR: Within territorial limits of LGUs

XPN: When exercised to protect water supply (Wilson v. City of Mountain Lake Terraces, 417 P.2d 632, 1966)

Q: Can anyone compel the government to exercise police power?

A: No. The exercise of police power lies within the discretion of the legislative department. The only remedy against legislative inaction is a resort to the courtof public opinion, a refusal of the electorate to turn to the legislative members who, in their view, have been remiss in the discharge of their duties.

Q: Can the courts interfere with the exercise of police power?

A: No. If the legislature decides to act, the choice of measures or remedies lies within its exclusive discretion, as long as the requisites for a valid exercise of police power have been complied with.

b. Eminent Domain

Q: Who exercises the power of eminent domain?

A: Congress. However, the following may exercise this power by virtue of a valid delegation:

1. The President of the Philippines

2. Various local legislative bodies

3. Certain public corporations like the Land Authority and National Housing Authority

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4. Quasi-public corporations like the Philippine National Railways

Q: What is the difference between the power of expropriation as exercised by Congress and the power of expropriation as exercised by delegates?

A: When exercised by Congress, the power is pervasive and all-encompassing. It can reach every form of property which may be needed by the State for public use. In fact, it can reach even private property already dedicated to public use, or even property already devoted to religious worship. (Barlin v. Ramirez, 7 Phil. 41) But when exercised by delegates, it can only be broad as the enabling law and the conferring authorities want it to be.

As to the question of necessity, the same is a political question when the power is exercised by Congress.

On the other hand, it is a judicial question when exercised by delegates. The courts can determine whether there is genuine necessity for its exercise, as well as the value of the property.

c. Taxation

Q: Do local government units have the power of taxation?

A: Yes. Each LGU shall have the power to create its own sources of revenues and to levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments (Sec. 5, Art. X).

B. Private acts and the Bill of Rights

The Bill of Rights is the set of prescriptions setting forth the fundamental civil and political rights of the individual, and imposing limitations on the powers of government as a means of securing the enjoyment of those rights.

Q: When can the Bill of Rights be invoked?

A: In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked against the State. The Bill of Rights guarantee governs the relationship between the individual and the State. Its concern is not the relation between private individuals. What it does is to declare some forbidden zones in the private sphere inaccessible to any power holder. (People v. Marti, G.R. No. 81561, Jan. 18, 1991)

Q: Can the Bill of Rights be invoked against private individuals?

A: No. In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked. Put differently, the Bill of Rights is not meant to be invoked against acts of private individuals.(Yrasegui vs. PAL, G.R. No. 168081, Oct. 17, 2008)

Note: However, according to the Supreme Court in Zulueta v. CA, G.R. No. 107383, Feb. 20 1996, where the husband invoked his right to privacy of communication and correspondence against a private individual, his wife, who had forcibly taken from his cabinet and presented as evidence against him documents and private correspondence, held these papers inadmissible in evidence, upholding the husband’s right to privacy.

C. Due process – the rights to life, liberty & property

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

1. Relativity of due process

The definition of due process has been left to the best judgment of our judiciary considering the peculiarity and the circumstances of each case. In a litany of cases that have been decided in this jurisdiction, the common requirement to be able to conform to due process is fair play, respect for justice and respect for the

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better rights of others. In accordance with the standards of due process, any court at any particular time, will be well guided, instead of being merely confined strictly to a precise definition which may or may not apply in every case. (Political Law Reviewer, Suarez , 2011).

2. Procedural and substantive due process

Substantive due process is a guarantee that life, liberty and property shall not be taken away from anyone without due process of law. If a law is invoked to take away one’s life, liberty or property, the more specific concern of substantive due process is not to find out whether said law is being enforced in accordance with procedural formalities but whether or not the said law is a proper exercise of legislative power. (Political Law Reviewer, Suarez, 2011).

Procedural due process relates to the mode of procedure which government agencies must follow in the enforcement and application of laws. (Bernas, 1987 Philippine Constitution: A Comprehensive Reviewer, 2006)

3. Constitutional and statutory due process

Constitutional due process - Protects the individual from the government and assures him of his rights in criminal, civil or administrative proceedings

Statutory due process While found in the Labor Code and Implementing Rules, it protects employees from being unjustly terminated without just cause after notice and hearing (Agabon v. NLRC, G.R. No. 158693, November 17, 2004)

4. Hierarchy of rights

There is a hierarchy of constitutional rights. While the Bill of Rights also protects property rights, the primacy of human rights over property rights is recognized. Property and property rights can be lost thru prescription; but human rights are imprescriptible. In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they are essential to the preservation and vitality of our civil and political institutions (Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., G.R. No. L-31195, June 5, 1973).

5. Judicial standards of review

Q: Given the fact that not all rights and freedoms or liberties under the Bill of Rights and other values of society are of similar weight and importance, governmental regulations that affect them would have to be evaluated based on different yardsticks, or standards of review. What are these standards of review?

1. Deferential review – laws are upheld if they rationally further a legitimate governmental interest, without courts seriously inquiring into the substantiality of such interest and examining the alternative means by which the objectives could be achieved

2. Intermediate review – the substantiality of the governmental interest is seriously looked into and the availability of less restrictive alternatives are considered.

3. Strict scrutiny – the focus is on the presence of compelling, rather than substantial governmental interest and on the absence of less restrictive means for achieving that interest (Separate opinion of Justice Mendoza in Estrada v. Sandiganbayan, G.R. No. 148965, Feb. 26, 2002)

6. Void-for-vagueness doctrine

Void for vagueness doctrine holds that a law is vague when it lacks comprehensive standards that men of common intelligence must necessarily guess at its common meaning and differ as to its application. In such instance, the statute is repugnant to the Constitution because:

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1. It violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid

2. It leaves law enforcers an unbridled discretion in carrying out its provisions (People v. de la Piedra, G.R. No. 128777, Jan. 24, 2001)

The test is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. It must be stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or mathematical exactitude. (Estrada vs. Sandiganbayan, G.R. No. 148560, Nov. 19, 2001)

Note: The void-for-vagueness doctrine cannot be used to impugn the validity of a criminal statute using “facial challenge’ but it may be used to invalidate a criminal statute “as applied” to a particular defendant.

D. Equal protection

1. Concept

The concept of equal protection of the laws means that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. It guarantees equality, not identity of rights. It does not forbid discrimination as to persons and things that are different. What it forbids are distinctions based on impermissible criteria unrelated to a proper legislative purpose, or class or discriminatory legislation, which discriminates against some and favors others when both are similarly situated. (2 Cooley, Constitutional Limitations, 824-825)

2. Requisites for valid classification

1. Rest on substantial distinctions

2. Be germane to the purpose of the law

3. Not be limited to existing conditions only;

4. Apply equally to all members of the same class. (People v. Cayat, GR. No. L-45987, May 5, 1939)

3. Standards of judicial review

a. Rational Basis Test

The guaranty of the equal protection of the laws is not violated by legislation based on reasonable classification. This standard of review is typically quite deferential; legislative classifications are “presumed to be valid” largely for the reason that “the drawing of lines that create distinctions is peculiarly a legislative task and unavoidable one”

b. Strict Scrutiny Test

It is applied when the challenged statute either:

a. Classifies on the basis of an inherently suspect characteristic

b. Infringes fundamental constitutional rights; that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. The presumption of constitutionality is reversed; that is, such legislation is assumed to be unconstitutional until the government demonstrates otherwise. (Central Bank Employees Association Inc. vs. BSP, GR. No. 148208. December 15, 2004)

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c. Intermediate Scrutiny Test

This test provides that to withstand constitutional challenge, it must be shown that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest. It is generally applied in sex-based classifications, illegitimacy, sexual orientation and free speech. (Craig v. Boren, 429 U.S. 190).

E. Searches and seizures

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

1. Concept

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and persons or things to be seized. (1987 Constitution, Article 3, Section 2)

The essence of privacy is the right to be left alone. In context, the right to privacy means the right to be free from unwarranted exploitation of one’s person or from intrusion into ones’ private activities in such a way as to cause humiliation to a person’s ordinary sensibilities.

2. Warrant requirement

a. Requisites

1. There should be a search warrant or warrant of arrest

2. Probable cause supported the issuance of such warrant

3. Such probable cause had been determined personally by a judge

4. Judge personally examined the complainant and his witnesses

5. The warrant must particularly describe the place to be searched and the persons or things to be seized.(Gorospe, Constitutional Law: Notes and Readings on the Bill of Rights, Citizenship and Suffrage, Vol. 2., p.334)

Note: General warrant is not allowed. It must be issued pursuant to specific offense.

General warrants are warrants of broad and general characterization or sweeping descriptions which will authorize police officers to undertake a fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to an offense.

3. Warrantless searches

1. Visual search is made of moving vehicles at checkpoints

Objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure even without a search warrant and may be introduced as evidence. Requisites for the application of the doctrine are the following:

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a. The law enforcer in search of the evidence has a prior justification for an intrusion, or is in a position from which he can view a particular area;

b. The discovery of the evidence in plain view is inadvertent;

2. Search is an incident to a valid arrest

Note: An officer making an arrest may take from the person:

a. Any money or property found upon his person which was used in the commission of the offense

b. Was the fruit thereof

c. Which might furnish the prisoner with the means of committing violence or escaping

d. Which might be used as evidence in the trial of the case

3. Search of passengers made in airports

4. When things seized are within plain view of a searching party

5. Stop and frisk (precedes an arrest)

A “stop-and-frisk” search is a limited protective search of outer clothing for weapons. Probable cause is not required but a genuine reason must exist in light of a police officer’s experience and surrounding conditions to warrant the belief that the person detained has weapons concealed. (Malacat v. CA, G.R. No. 123595, Dec. 12, 1997)

6. When there is a valid express waiver made voluntarily and intelligently

Note: Waiver is limited only to the arrest and does not extend to search made as an incident thereto, or to any subsequent seizure of evidence found in the search. (People v. Peralta, G.R. 145176, March 30, 2004)

7. Customs search

8. Exigent and emergency circumstances. (People v. De Gracia, 233 SCRA 716))

4. Warrantless arrests

1. In flagrante delicto – The person to be arrested has either committed, is actually committing, or is about to commit an offense in the presence of the arresting office

2. Hot Pursuit – When an offense has in fact just been committed and the arresting officer has probable cause to believe, based on personal knowledge of the facts and circumstances indicating, that the person to be arrested has committed it

3. Escaped Prisoner or Detainee – When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. (Sec. 5, Rule 113, Rules of Court)

4. Waiver – When the right is waived by the person arrested, provided he knew of such right and knowingly decided not to invoke it.

5. Administrative arrests

There is an administrative arrest as an incident to deportation proceedings.

The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or of any other officer designated by him for the purpose and deported upon the warrant of the Commissioner of Immigration after a

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determination by the Board of Commissioners of the existence of the ground for deportation as charges against the alien.

1. Any alien who enters the Philippines after the effective date of this Act by means of false and misleading statements or without inspection and admission by the immigration authorities at a designated port of entry or at any place other than at a designated port of entry; [As amended by Republic Act No. 503, Sec. 13]

2. Any alien who enters the Philippines after the effective date of this Act, who was not lawfully admissible at the time of entry;

3. Any alien who, after the effective date of this Act, is convicted in the Philippines and sentences for a term of one year or more for a crime involving moral turpitude committed within five years after his entry to the Philippines, or who, at any time after such entry, is so convicted and sentenced more than once;

4. Any alien who is convicted and sentenced for a violation of the law governing prohibited drugs; [As amended by Republic Act No. 503, Sec. 13]

5. Any alien who practices prostitution or is an inmate of a house of prostitution or is connected with the management of a house of prostitution, or is a procurer;

6. Any alien who becomes a public charge within five years after entry from causes not affirmatively shown to have arisen subsequent to entry;

7. Any alien who remains in the Philippines in violation of any limitation or condition under which he was admitted as a non-immigrant;

8. Any alien who believes in, advises, advocates or teaches the overthrow by force and violence of the Government of the Philippines, or of constituted law and authority or who disbelieves in or is opposed to organized government, or who advises, advocates or teaches the assault or assassination of public officials because of their office, or who advises, advocates, or teaches the unlawful destruction of property, or who is a member of or affiliated with any organization entertaining, advocating or teaching such doctrines, or who in any manner whatsoever lends assistance, financial or otherwise, to the dissemination of such doctrines;

9. Any alien who commits any of the acts described in sections forty-five of this Act, independent of criminal action which may be brought against him: Provided, that in the case of alien who, for any reason, is convicted and sentenced to suffer both imprisonment and deportation, said alien shall first serve the entire period of his imprisonment before he is actually deported: Provided, however, that the imprisonment may be waived by the Commissioner of Immigration with the consent of the Department Head, and upon payment by the alien concerned of such amount as the Commissioner may fix and approved by the Department Head; [Paragraph added pursuant to Republic Act No. 144, Sec. 3]

10. Any alien who, at any time within five years after entry, shall have been convicted of violating the provisions of the Philippine Commonwealth Act Numbered Six hundred and fifty-three, otherwise known as the Philippine Alien Registration Act of 1941**(now Alien Registration Act of 1950, Republic Act No. 562, as amended) or who, at any time after entry, shall have been convicted more than once of violating the provisions of the same Act; [Added pursuant to Republic Act No. 503, Sec. 13]

11. Any alien who engages in profiteering, hoarding, or black-marketing, independent of any criminal action which may be brought against him; [Added pursuant to Republic Act No. 503, Sec. 13]

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12. Any alien who is convicted of any offense penalized under Commonwealth Act Numbered Four hundred and seventy-three, otherwise known as the Revised Naturalization Laws of the Philippines, or any law relating to acquisition of Philippine citizenship; [Added pursuant to Republic Act No. 503, Sec. 13]

13. Any alien who defrauds his creditor by absconding or alienating properties to prevent them from being attached or executed. [Added pursuant to Republic Act No. 503, Sec. 13] (Philippine Immigration Act of 1940)

6. Drug, alcohol and blood tests

Q: Is a law requiring mandatory drug testing for students of secondary and tertiary schools unconstitutional?

A: No. It is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements. In sum:

1. Schools and their administrators stand in loco parentis with respect to their students;

2. Minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools;

3. Schools acting in loco parentis, have a duty to safeguard the health and well-being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and

4. Schools have the right to impose conditions on applicants for admission that are fair, just and non-discriminatory. (SJS v. DDB, G.R. No. 157870, Nov. 3, 2008)

Q: Is a law requiring mandatory drug testing for officers and employees of public and private offices unconstitutional?

A: No. As the warrantless clause of Sec. 2, Art. III of the Constitution is couched and as has been held, “reasonableness” is the touchstone of the validity of a government search or intrusion. And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government-mandated intrusion on the individual’s privacy interest against the promotion of some compelling state interest. In the criminal context, reasonableness requires showing probable cause to be personally determined by a judge. Given that the drug-testing policy for employees—and students for that matter—under R.A. 9165 is in the nature of administrative search needing what was referred to in Veronia case as “swift and informal procedures,” the probable cause standard is not required or even practicable. (SJS v. DDB and PDEA, G.R. No. 157870, Nov. 3, 2008)

Q: R.A. 9165 requires mandatory drug testing for persons charged before the prosecutor’s office with criminal offenses punishable with 6 years and 1 day imprisonment. Petitioner SJS questions the constitutionality of the law on the ground that it violates the rights to privacy and against self-incrimination of an accused. Decide.

A: The Court finds the situation entirely different in the case of persons charged before the public prosecutor’s office with criminal offenses punishable with imprisonment. The operative concepts in the mandatory drug testing are “randomness” and “suspicionless”. In the case of persons charged with a crime before the prosecutor’s office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being hauled before the prosecutor’s office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of R.A. 9165. Drug testing in this case would violate a person’s right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves. (SJS v. DDB, G.R. No. 157870, Nov. 3, 2008)

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F. Privacy of communications and correspondence

Section 3.

1. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.

2. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

1. Private and public communications

The general rule is that the right to privacy of communication and correspondence is inviolable. The exceptions are:

1. By lawful order of the court;

2. Public safety or public order as prescribed by law

Note: Any evidence in violation of this or the preceding section shall be inadmissible for any purpose in any proceedings.

2. Intrusion, when allowed

Q: Is a regulation mandating the opening of mail or correspondence of detainees violative of the constitutional right to privacy?

A: No. There is no longer a distinction between an inmate and a detainee with regard to the reasonable expectation of privacy inside his cell. The curtailment of certain rights is necessary to accommodate institutional needs and objectives of prison facilities, primarily internal security. As long as the letters are not confidential communication between the detainee and his lawyer the detention officials may read them. But if the letters are marked confidential communication between detainee and lawyer the officer must not read them but only inspect them in the presence of detainees. A law is not needed before an executive officer may intrude into the rights of privacy of a detainee or a prisoner. By the very fact of their detention, they have diminished expectations of privacy rights. (Alejano vs. Cabuay, G.R. No. 160792,Aug. 25, 2005)

Q: What does the anti-wiretapping act (RA 4200) prohibit?

A: It prohibits any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described:

It also prohibits any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition.

Under Section 3 of RA 4200, a peace officer, who is authorized by a written order of the Court, may execute any of the acts declared to be unlawful in the said law in cases involving the crimes of:

1. Treason

2. Espionage

3. Provoking war and disloyalty in case of war

4. Piracy and mutiny in the high seas

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5. Rebellion (conspiracy and proposal and inciting to commit included)

6. Sedition (conspiracy, inciting included)

7. Kidnapping

8. Violations of C.A. No. 616 (punishing espionage and other offenses against national security)

Q: Is the use of telephone extension a violation of R.A. 4200 (Anti-Wire Tapping Law)?

A: No. The use of a telephone extension to overhear a private conversation is neither among those devices, nor considered as a similar device, prohibited under the law. (Gaanan v. IAC, G.R. No.L-69809 Oct. 16, 1986)

Note: Anti-Wiretapping Act only protects letters, messages, telephone calls, telegrams and the like.

The law does not distinguish between a party to the private communication or a third person. Hence, both a party and a third person could be held liable under R.A. 4200 if they commit any of the prohibited acts under R.A. 4200. (Ramirez v. CA, G.R. No. 93833 Sept. 28, 1995)

Q: Is the tape recording of a telephone conversation containing a person’s admission admissible in evidence? Why?

A: No. The tape-recorded conversation is not admissible in evidence. R.A. 4200 makes the tape-recording of a telephone conversation done without the authorization of all the parties to the conversation inadmissible in evidence. In addition, the taping of the conversation violated the guarantee of privacy of communications enunciated in Section 3, Article III of the Constitution.(Salcedo-Ortanez v. CA, G.R. No. 110662, Aug. 4, 1994)

Q: Are letters of a husband’s paramour kept inside the husband’s drawer, presented by the wife in the proceeding for legal separation, admissible in evidence?

A: No, because marriage does not divest one of his/her right to privacy of communication. (Zulueta v. CA, G.R. No. 107383, Feb. 20, 1996)

Q: What does the exclusionary rule state?

A: Any evidence obtained in violation of the Constitution shall be inadmissible for any purpose in any proceeding. However, in the absence of governmental interference, the protection against unreasonable search and seizure cannot be extended to acts committed by private individuals. (People v. Marti, G.R. No. 78109. Jan. 18,1991)

3. Writ of habeas data

Writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.(Sec. 1, The Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, Jan. 22, 2008)

Q: What are the reliefs that may be obtained in the petition for issuance of writ of habeas data?

A: The reliefs may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent and in case of threats of the unlawful act, the relief may include a prayer for an order enjoining the act complained of. A general prayer for other reliefs that are just and equitable under the circumstances is also allowed.

Q: May a writ of habeas data be issued to protect purely property or commercial concerns?

A: No. It bears reiteration that like the writ of amparo, habeas data was conceived as a response, given the lack of effective and available remedies, to address the extraordinary rise in the number of killings and enforced disappearances. Its intent is to address violations of or threats to the rights to life, liberty or security as a remedy independently from those provided under prevailing rules. Writs of amparo and habeas data will not issue to protect purely property or commercial concerns nor

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when the grounds invoked in support of the petitions therefore are vague or doubtful. Employment constitutes a property right under the context of the due process clause of the constitution. It is evident that respondent’s reservations on the real reasons for her transfer-a legitimate concern respecting the terms and conditions of one’s employment- are what prompted her to adopt the extraordinary remedy of habeas data. (Manila Electric Company vs. Lim, GR. No. 184769, Oct. 5, 2010)

G. Freedom of expression

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

1. Concept and scope

a. Prior restraint (censorship)

The first prohibition of the free speech and press clause is the prohibition of prior restraint. Prior Restraint means official government restrictions on the press or other forms of expression in advance of actual publication or dissemination. (Bernas, The 1987 Philippine Constitution A Comprehensive Reviewer, 2006)

Note: Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008).

Q: Is the prohibition of prior restraint absolute?

A: No. There are exceptions to the rule. In Chavez v. Gonzales G.R. No. 168338, Feb. 15, 2008), Justice Carpio in his concurring opinion named four exceptions:

1. Pornography

2. False or Misleading Advertisement

3. Advocacy of Imminent Lawless Actions

4. Danger to National Security

Near v. Minnesota, 283 US 697 (1931) adds the following to the enumeration:

1. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right.

2. The primary requirements of decency may be enforced against obscene publications.

3. The security of community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.

b. Subsequent punishment

The free speech and press clause also prohibits systems of subsequent punishment which have the effect of unduly curtailing expression. (Bernas, The 1987 Philippine Constitution A Comprehensive Reviewer, 2006, p.64)

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The Doctrine of Fair Comment provides that while as a general rule, every discreditable public imputation is false because every man is presumed innocent, thus every false imputation is deemed malicious, as an exception, when the discreditable imputation is directed against a public person in his public capacity, such is not necessarily actionable. For it to be actionable, it must be shown that either there is a false allegation of fact or comment based on a false supposition. However, if the comment is an expression of opinion, based on established facts; it is immaterial whether the opinion happens to be mistaken, as long as it might reasonably be inferred from facts. (Borjal v. CA, G.R. No. 126466, Jan. 14, 1999)

Q. Is freedom from subsequent punishment absolute?

A: No, it may be properly regulated in the interest of the public. The State may validly impose penal and/or administrative sanctions such as in the following:

1. Libel – a public and malicious imputation of a crime, vice or defect, real or imaginary or any act omission, status tending to cause dishonor, discredit or contempt of a natural or judicial person, or blacken the memory of one who is dead (Art 353, Revised Penal Code)

2. Obscenity – in Pita v Court of Appeals, the Supreme Court declared that the determination of what is obscene is a judicial function.

3. Criticism of Official Conduct – In New York Times v. Sullivan, 376 US 254 (1964), the constitutional guarantee requires a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice.

4. Rights of students to free speech in school premises not absolute – the school cannot suspend or expel a student solely on the basis of the articles he has written except when such article materially disrupts class work or involves substantial disorder or invasion of rights of others.(Miriam College Foundation v. CA, GR 127930, Dec. 15, 2000)

2. Content-based and content-neutral regulations

CONTENT-NEUTRAL REGULATION CONTENT-BASED RESTRAINT

Merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards.

The restriction is based on the subject matter of the utterance or speech. The cast of the restriction determines the test by which the challenged act is assayed with.

No presumption of unconstitutionality There is presumption of unconstitutionality

Note: The burden of proof to overcome the presumption of unconstitutionality is with the government.

Test to be used: Intermediate Approach Test

Test to be used: Clear and Present Danger Test

a. Tests

Intermediate Approach Test:

When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is required for its validity. Because regulations of this type are not designed to suppress any particular message,

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they are not subject to the strictest form of judicial scrutiny but an intermediate approach—somewhere between the mere rationality that is required of any other law and the compelling interest standard applied to content-based restrictions. The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008).

Clear and Present Danger Test:

The government must also show the type of harm the speech sought to be restrained would bring about— especially the gravity and the imminence of the threatened harm – otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, “but only by showing a substantive and imminent evil that has taken the life of a reality already on ground.” As formulated, “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.” The regulation which restricts the speech content must also serve an important or substantial government interest, which is unrelated to the suppression of free expression (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008).

b. Applications

Q: The NTC issued a warning that that the continuous airing or broadcast by radio and television stations of the an alleged wiretapped conversation involving the President allegedly fixing votes in the 2004 national elections is a continuing violation of the Anti-Wiretapping Law and shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies. Were the rights to freedom of expression and of the press, and the right of the people to information on matters of public concern violated?

A: Yes, said rights were violated applying the clear and present danger test. The challenged acts need to be subjected to the clear and present danger rule, as they are content-based restrictions. The acts of NTC and the DOJ Sec. focused solely on but one object—a specific content— fixed as these were on the alleged taped conversations between the President and a COMELEC official. Undoubtedly these did not merely provide regulations as to the time, place or manner of the dissemination of speech or expression.

A governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming the presumed unconstitutionality by the clear and present danger rule. It appears that the great evil which government wants to prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law.

The evidence falls short of satisfying the clear and present danger test. Firstly, the various statements of the Press Secretary obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to the public two versions, one supposed to be a “complete” version and the other, an “altered” version. Thirdly, the evidence on the who’s and the how’s of the wiretapping act is ambivalent, especially considering the tapes’ different versions. The identity of the wire-tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing would violate the anti-wiretapping law. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008)

3. Facial challenges and the overbreadth doctrine

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A facial challenge is a challenge to a statute in court, in which the plaintiff alleges that the legislation is always, and under all circumstances, unconstitutional, and therefore void.

Note: Facial challenge to a statute is allowed only when it operates in the area of freedom of expression. Invalidation of the statute on its face, rather than as applied, is permitted in the interest of preventing a chilling effect on freedom of expression.(Separate opinion of Justice Mendoza in Cruz v. Secretary of Environment and Natural Resources, GR. 135385, Dec. 6, 2000)

Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities.(Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, Oct. 5, 2010

The overbreadth doctrine permits a party to challenge the validity of a statute even though as applied to him it is not unconstitutional but it might be if applied to others not before the Court whose activities are constitutionally protected. (Separate opinion of Justice Mendoza in Cruz v. Secretary of Environment and Natural Resources, GR. 135385, Dec. 6, 2000) It is a type of facial challenge that prohibits the government from achieving its purpose by means that “sweep unnecessarily broadly, reaching constitutionally protected as well as unprotected activity.

Note: The application of the overbreadth doctrine is limited to a facial kind of challenge

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of the third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute “on its face”, not merely “as applied for” so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates court to depart from the normal adjudicatory rules is the concern with the “chilling”, deterrent effect of the overbroad statute on third parties not courageous enough to bring suit.The Court assumes that an overbroad law’s “very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties. .(Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, Oct. 5, 2010)

4. Tests

1. Clear and Present Danger test

Question: Whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree (Schenck v. US, 249 US 47, 1919)

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Emphasis: The danger created must not only be clear and present but also traceable to the ideas expressed. (Gonzales v. COMELEC, G.R. No. L-27833, April 18, 1969)

Note: This test has been adopted by our SC, and is most applied to cases involving freedom of expression.

2. Dangerous Tendency test

Question: Whether the speech restrained has a rational tendency to create the danger apprehended, be it far or remote, thus government restriction would then be allowed. It is not necessary though that evil is actually created for mere tendency towards the evil is enough.

Emphasis: Nature of the circumstances under which the speech is uttered, though the speech per se may not be dangerous.

3. Grave-but-Improbable Danger test

Question: Whether the gravity of the evil, discounted by its improbability, justifies such an invasion of free speech as is necessary to avoid the danger (Dennis v. US, 341 US 494, 1951)

Note: This test was meant to supplant the clear and present danger test.

4. Balancing of interest test

Question: which of the two conflicting interests (not involving national security crimes) demands the greater protection under the particular circumstances presented:

a. When particular conduct is regulated in the interest of public order

b. And the regulation results in an indirect, conditional and partial abridgement of speech (Gonzales v. COMELEC, G.R. No. L-27833, Apr. 18, 1969).

5. O’Brien test

Question: in situations when “speech” and “non-speech” elements are combined in the same course of conduct, whether there is a sufficiently important governmental interest that warrants regulating the non-speech element, incidentally limiting the “speech” element.

Note: A government regulation is valid if:

a. It is within the constitutional power of the government;

b. In furtherance of an important or substantial governmental interest;

c. Governmental interest is unrelated to the suppression of free expression; and

d. The incidental restriction on the freedom is essential to the furtherance of that interest. (US v. O’Brien, 391 US 367, 1968; SWS v. COMELEC, G.R. 147571, May 5, 2001)

6. Direct Incitement test

Question: What words did a person utter and what is the likely result of such utterance

Emphasis: The very words uttered, and their ability to directly incite or produce imminent lawless action.

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Note: It criticizes the clear and present danger test for being too dependent on the specific circumstances of each case.

5. State regulation of different types of mass media

Q: Can an offensive and obscene language uttered in a prime-time television broadcast which was easily accessible to the children be reasonably curtailed and validly restrained?

A: Yes. In Soriano v. MTRCB, G.R. No. 165636, Apr. 29, 2009, the Court, applying the balancing of interest doctrine, ruled that the government’s interest to protect and promote the interests and welfare of the children adequately buttresses the reasonable curtailment and valid restraint on petitioner’s prayer to continue as program host of Ang Dating Daan during the suspension period. Soriano’s offensive and obscene language uttered on prime-time television broadcast, without doubt, was easily accessible to the children. His statements could have exposed children to a language that is unacceptable in everyday use. As such, the welfare of children and the State’s mandate to protect and care for them, as parens patriae, constitute a substantial and compelling government interest in regulating Soriano’s utterances in TV broadcast.

Q: COMELEC promulgated Resolution No. 2772 stating that the Commission shall have free print space in at least one newspaper as “COMELEC Space”. This ad space will be used by candidates for their campaign or platforms of government, and for the Commission’s dissemination of vital information. Moreover, COMELEC released a letter-directive ordering the different newspapers to comply with the said resolution. The petitioner contended that COMELEC violated the prohibition imposed by the Constitution against the taking of properties without just compensation. On the other hand, COMELEC asserts their directive is not mandatory and compelling and that they only asked for a donation. Moreover, they aver that even if the order is mandatory, it would still be valid through the use of police power. Is COMELEC’s action constitutional through the exercise of police power?

A: No. To compel print media companies to donate "Comelec-space,” amounts to "taking" of private personal property for public use or purposes. The taking of private property for public use is, of course, authorized by the Constitution, but not without payment of "just compensation.” And apparently the necessity of paying compensation for "Comelec space" is precisely what is sought to be avoided by the Commission. As such, it does not constitute a valid exercise of the power of eminent domain.

Also, the resolution is a blunt and heavy instrument that purports, without a showing of existence of a national emergency or other imperious public necessity, indiscriminately and without regard to the individual business condition of particular newspapers or magazines located in differing parts of the country, to take private property of newspaper or magazine publishers. No attempt was made to demonstrate that a real and palpable or urgent necessity for the taking of print space confronted the Comelec and that the resolution was itself the only reasonable and calibrated response to such necessity available to the Comelec. Thus, it does not constitute a valid exercise of the police power of the State. (Philippine Press Institute, Inc. v. COMELEC, G.R. No. L-119694, May 22, 1995)

Q: Petitioners challenge the validity of Sec. 92, B.P. 881 which provides: “COMELEC Time – The Commission shall procure radio and television time to be known as the “COMELEC Time” which shall be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to provide radio or television time, free of charge, during the period of campaign.”

Petitioner contends that while Section 90 of the same law requires COMELEC to procure print space in newspapers and magazines with payment, Section 92 provides that air time shall be procured by COMELEC free of charge. Thus, it contends that Section 92 singles out radio and television stations to provide free air time. Is Section 92 valid?

A: Yes. All broadcasting, whether by radio or by television stations, is licensed by the government. Airwave frequencies have to be allocated as there are more individuals who want to broadcast than

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there are frequencies to assign. A franchise is thus a privilege subject, among other things, to amended by Congress in accordance with the constitutional provision that "any such franchise or right granted . . . shall be subject to amendment, alteration or repeal by the Congress when the common good so requires."

In truth, radio and television broadcasting companies, which are given franchises, do not own the airwaves and frequencies through which they transmit broadcast signals and images. They are merely given the temporary privilege of using them. Since a franchise is a mere privilege, the exercise of the privilege may reasonably be burdened with the performance by the grantee of some form of public service.

In the granting of the privilege to operate broadcast stations and thereafter supervising radio and television stations, the state spends considerable public funds in licensing and supervising such stations. It would be strange if it cannot even require the licensees to render public service by giving free air time. (Telecommunications and Broadcast Attorneys of the Philippines, INC. vs. COMELEC, G.R. No. 132922, April 21, 1998)

6. Commercial speech

Commercial speech is communication which “no more than proposes a commercial transaction. Advertisements of goods or of services is an example of this.”(Bernas, the 1987 Constitution of the Republic of the Philippines Comprehensive Reviewer 2006)

7. Private vs. government speech

PRIVATE SPEECH GOVERNMENT SPEECH

The right of a person to freely speak one’s mind is a highly valued freedom in a republican and democratic society. (Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002))

The government may advance its own speech without requiring viewpoint neutrality when the government itself is the speaker. (doctrine was implied in Wooley v. Maynard in 1971)

8. Heckler’s veto

A heckler's veto occurs when an acting party's right to freedom of speech is curtailed or restricted by the government in order to prevent a reacting party's behavior. The term Heckler’s Veto was coined by University of Chicago professor of law Harry Kalven.

It may be in the guise of a permit requirement in the holding of rallies, parades, or demonstrations conditioned on the payment of a fee computed on the basis of the cost needed to keep order in view of the expected opposition by persons holding contrary views. (Gorospe, 2006, citing Forsyth County v. Nationalist Movement, 315 U.S. 568, 1942)

H. Freedom of religion

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

1. Non-establishment clause

a. Concept and basis

Q: What is the basis of the non-establishment clause?

A: Article III, Sec. 5- “No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof”.

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Q: What is the concept of the non- establishment clause?

A: It means that the state should adopt a “position of neutrality” when it comes to religious matters. (Political Law Reviewer, Suarez ,p. 252 citing CJ Fernando, 2011).

Q: What is the purpose of the non-establishment clause?

A: There is no unanimous interpretation of this clause as a political principle, but there seems to be a substantial agreement that this protects voluntarism and insulation of the political process from interfaith dissension. (The 1987 Philippine Constitution A Comprehensive Reviewer by Fr. Bernas, p. 83).

“Voluntarism as a value is both personal and social. As a personal value, it is nothing more than the inviolability of the human conscience which is also protected by the free exercise clause. As a social value, protected by the non-establishment clause, it means that the growth of a religious sect as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular society will benefit if religions are allowed to compete on ther own intrinsic merit without benefit of official patronage. Such voluntarism cannot be achieved unless the political process is insulated from religion and unless religion is insulated from politics. Non establishment assures such insulation and thereby prevents interfaith dissention.” (Bernas, S.J., 2011)

b. Acts permitted and not permitted by the clause

Q: What acts are not permitted under the non-establishment clause?

A: The non-establishment clause states that the State cannot:

1. Set up a church

2. Pass laws which aid one or all religions or prefer one over another

3. Influence a person to go to or stay away from church against his will

4. Force him to profess a belief or disbelief in any religion

Q: How does one distinguish allowable from non-allowable aid?

A: To be allowable, government aid must:

a. Have a secular legislative purpose;

b. Have a primary effect that neither advances nor inhibits religion;

c. Not require excessive entanglement with recipient intitutions. (Bernas, S.J., 2011)

Q: What are the constitutional provisions which express the non-establishment clause?

1. Art VI, Sec 29- no public money/property given to religious sect or minister/religious personnel (except for those assigned to army, penal institution, government orphanage and leprosarium)

2. Art II, Sec 6- Separation of church and state is inviolable

3. Art IX(C), Sec 2 (5)- No religious sects can be registered as political parties

Q: What are the constitutionally created exceptions to the non-establishment clause?

1. Article 6, Section 29

2. Article 6, Section 28 (3) (exemption from taxation of properties actually, directly and exclusively used for religious purposes

3. Article 14, Section 3 (3) (optional religious instruction in public elementary and high schools)

4. Article 14, Section 4 (2) (citizenship requirement of ownership of educational institutions, except those established by religious groups and mission boards)

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5. Article 6, Section 29 (2) (appropriation allowed where ecclesiastic is employed in armed forces, in a penal institution, or in a government-owned orphanage or leprosarium)

c. Test

2. Free exercise clause

Q: What are the aspects of freedom of religious profession and worship?

A: These are the right to

1. Believe, which is absolute; and

2. Act on one’s belief, which is subject to regulation.

Q: Give some exceptions to the non-establishment clause as held by jurisprudence.

1. Tax exemption on property actually, directly and exclusively used for religious purposes;

2. Religious instruction in public schools:

a. At the option of parents/guardians expressed in writing;

b. Within the regular class hours by instructors designated or approved by religious authorities of the religion to which the children belong;

c. Without additional costs to the government;

3. Financial support for priest, preacher, minister, or dignitary assigned to the armed forces, penal institution or government orphanage or leprosarium;

4. Government sponsorship of town fiestas, some purely religious traditions have now been considered as having acquired secular character; and

5. Postage stamps depicting Philippines as the venue of a significant religious event – benefit to the religious sect involved was merely incidental as the promotion of Philippines as a tourist destination was the primary objective.

Q: What is the Lemon test?

A: It is a test to determine whether an act of the government violates the non-establishment clause. To pass the Lemon test, a government act or policy must:

1. Have a secular purpose;

2. Not promote or favor any set of religious beliefs or religion generally; and

3. Not get the government too closely involved (“entangled”) with religion.

3. Tests

a. Clear and Present Danger Test

The clear and present danger test be can applied with regard to the Freedom of Religion when what is involved is religious speech as this is often used in cases of freedom of expression.

b. Compelling State Interest Test

The Compelling State Interest test is the test used to determine if the interests of the State are compelling enough to justify infringement of religious freedom. It involves a three-step process:

1. Has the statute or government action created a burden on the free exercise of religion? – Courts often look into the sincerity of the religious belief, but without inquiring into the truth of the belief since the free exercise clause prohibits inquiring about its truth.

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2. Is there a sufficiently compelling state interest to justify this infringement of religious liberty? – In this step, the government has to establish that its purposes are legitimate for the State and that they are compelling.

3. Has the State in achieving its legitimate purposes used the least intrusive means possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the State? – The analysis requires the State to show that the means in which it is achieving its legitimate State objective is the least intrusive means, or it has chosen a way to achieve its legitimate State end that imposes as little as possible intrusion on religious beliefs.

c. Conscientious Objector Test

A conscientious objector is an "individual who has claimed the right to refuse to perform military service on the grounds of freedom of thought, conscience, and/or religion.(International Covenant on Civil and Political Rights, Article 18)

I. Liberty of abode and freedom of movement

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

1. Limitations

The liberty of abode may be impaired only upon lawful order of the court and within the limits prescribed by law.

Example:

1. Persons in the danger zone areas (i.e. Mt. Pinatubo, Taal Volcano) may be relocated to safer areas and evacuation centers in case of danger and emergency to save lives and property.

2. Insane persons who roam around in Roxas Boulevard may be committed by the government to the National Mental Hospital for appropriate treatment and medical attention. (Political Law Reviewer, Suarez, 2011)

2. Right to travel

Right to travel is the right of a person to go where he pleases without interference from anyone. (Political Law Reviewer, Suarez, 2011).

The limitation on the right to travel are the interest of national security, public safety or public health, as may be provided by law.

With respect to the right to travel, it is settled that only a court may issue a hold departure order against an individual addressed to the Bureau of Immigration and Departure. However, administrative authorities, such as passport-officers, may likewise curtail such right in the interest of national security, public safety, or public health, as may be provided by law.

a. Watch-list and hold departure orders

A watch-list (WLO) is an order issued to prevent an individual from travelling. It may be issued by the Secretary of Justice motu proprio or upon request, under any of the following circumstances:

1. Against the accused, irrespective of nationality, in criminal cases pending trial before the RTCs or before courts below the RTCs.

2. Against the respondent, irrespective of nationality, in criminal cases pending preliminary investigation, petition for review, or motion for

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reconsideration before the DOJ or any of its provincial or city prosecution offices.

3. The Secretary of Justice may likewise issue a WLO against any person, either on his own, or upon the request of any government agency, including commissions, task forces or similar entities created by the Office of the President, pursuant to the "Anti-Trafficking in Persons Act of 2003" (R.A. No. 9208) and/or in connection with any investigation being conducted by it, or in the interest of national security, public safety or public health.. (Section 2, DOJ Circ. 41, s.2010)

Note: WLO is available for (a) criminal cases pending before lower courts, or even for (b) cases still under preliminary investigation. A WLO is good for sixty (60) days (Section 4, DOJ Circ. 41, s.2010).

A Hold Departure Order (HDO) is an order issued to prevent an individual from travelling. It may be issued by the Secretary of Justice motu proprio or upon request, under any of the following circumstances:

1. Against the accused, irrespective of nationality, in criminal cases falling within the jurisdiction of courts below the Regional Trial Courts (RTCs):

i. If the case against the accused is pending trial, the application under oath of an interested party must be supported by (a) a certified true copy of the complaint or information; and (b) a Certification from the Clerk of Court concerned that criminal case is still pending.

ii. If the accused has jumped bail or has become a fugitive from justice, the application under oath of an interested party must be supported by (a) a certified true copy of the complaint or information; (b) a certified true copy of the warrant/order of arrest; and (c) a Certification from the Clerk of Court concerned that the warrant/order of arrest was returned unserved by the peace officer to whom the same was delivered for service.

2. Against the alien whose presence is required either as a defendant, respondent, or witness in a civil or labor case pending litigation, or any case before a quasi-judicial or an administrative agency of the government.

The application under oath of an interested party must be supported by (a) a certified true copy of the subpoena or summons issued against the alien; and (b) a certified true copy complaint in civil, labor or administrative case where the presence of the alien is required.”

3. The Secretary may likewise issue an HDO against any person, either on his own, or upon the request by the Head of a Department of the Government, the head or a constitutional body or commission, the Chief Justice of the Supreme Court for the Judiciary, the Senate President or the House Speaker for the Legislature, when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health.” (Section 1, DOJ Circ. 41, s.2010).

Note: A Hold Departure Order can be issued against (a) an accused in criminal cases under the jurisdiction of the Regional Trial Courts and even (b) against aliens whose presence is required either as respondents or as witnesses.

Note: A HDO is valid for five (5) years from issuance.

Q: When can the WLO or HDO be cancelled or lifted?

A: The HDO and WLO can be lifted or cancelled as follows:

1. When the validity period of the HDO has already expired;

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2. When the accused subject of the HDO has been allowed to leave the country during the pendency of the case, or has been acquitted of the charge, or the case in which the warrant/order of arrest was issued has been dismissed or the warrant/order of arrest has been recalled;

3. When the civil or labor case or case before an administrative agency of the government wherein the presence of the alien subject of the HDO/WLO has been dismissed by the court or by appropriate government agency, or the alien has been discharged as a witness therein, or the alien has been allowed to leave the country.

The WLO may be lifted or cancelled under any of the following grounds:

1. When the validity period of the WLO has already expired;

2. When the accused subject of the WLO has been allowed by the court to leave the country during the pendency of the case, or has been acquitted of the charge;

3. When the preliminary investigation is terminated, or when the petition for review, or motion for reconsideration has been denied and/or dismissed.

3. Return to one’s country

Q: Is the right to return to one’s country guaranteed in the Bill of Rights?

A: The right to return to one’s country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to travel. Nevertheless, the right to return may be considered as a generally accepted principle of International law, and under the Constitution, is part of the law of the land. However, it is distinct and separate from the right to travel and enjoys a different protection under the Intl. Covenant of Civil and Political Rights. (Marcos v. Manglapus, G.R. No. 88211, Sept. 15, 1989 & Oct. 27, 1989)

Q: The military commander in charge of the operation against rebel groups directed the inhabitants of the island which would be the target of attack by government forces to evacuate the area and offered the residents temporary military hamlet. Can the military commander force the residents to transfer their places of abode without a court order?

A: No, the military commander cannot do so without a court order. Under Sec. 6, Art. III of the Constitution, a lawful order of the court is required before the liberty of abode and of changing the same can be impaired.

J. Right to information

Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

1. Limitations

GR: The access must be for a lawful purpose and is subject to reasonable conditions by the custodian of the records.

XPNS: The right does not extend to the following:

1. Information affecting national security, military and diplomatic secrets. It also includes inter-government exchanges prior to consultation of treaties and executive agreement as may reasonably protect the national interest

2. Matters relating to investigation, apprehension, and detention of criminals which the court may not inquire into prior to arrest, prosecution and detention

3. Trade and industrial secrets and other banking transactions as protected by the Intellectual Property Code and the Secrecy of Bank Deposits Act

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4. Other confidential information falling under the scope of the Ethical Safety Act concerning classified information

2. Publication of laws and regulations

There a need for publication of laws to reinforce the right to information. In Tanada v. Tuvera, the Court said Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark, deep secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people.

3. Access to court records

Q: During the pendency of the intestate proceedings, O’jay, a creditor of the deceased, filed a motion with a prayer that an order be issued requiring the Branch Clerk of Court to furnish him with copies of all processes and orders and to require the administratrix to serve him copies of all pleadings in the proceedings. The judge denied the motion because the law does not give a blanket authority to any person to have access to official records and documents and papers pertaining to official acts. The judge said that his interest is more of personal than of public concern. Is the judge correct?

A: No. The right to information on matters of public concern is a constitutional right. However, such is not absolute. Under the Constitution, access is subject to limitations as may be provided by law. Therefore, a law may exempt certain types of information from public scrutiny such as national security. The privilege against disclosure is recognized with respect to state secrets bearing on the military, diplomatic and similar matters. Since intestate proceedings do not contain any military or diplomatic secrets which will be disclosed by its production, it is an error on the part of the judge to deny Ramon’s motion. (Hidalgo v. Reyes, AM No. RTJ-05-1910, Apr. 15, 2005)

4. Right to information relative to:

a. Government contract negotiations

Q: May the government, through the PCGG, be required to reveal the proposed terms of a compromise agreement with the Marcos heirs as regards their alleged ill-gotten wealth?

A: It is incumbent upon the PCGG, and its officers, as well as other government representatives, to disclose sufficient public information on any proposed settlement they have decided to take up with the ostensible owners and holders of ill-gotten wealth. Such information must pertain to definite propositions of the government. (Chavez v. PCGG, G.R. No. 130716, Dec. 9, 1998)

b. Diplomatic negotiations

Q: Petitioners request that they be given a copy of the text of the JPEPA and the offers and negotiations between the Philippines and Japan. Are these matters of public concern? Can they be disclosed?

A: There is a distinction between the text of the treaty and the offers and negotiations. They may compel the government to disclose the text of the treaty but not the offers between RP and Japan, because these are negotiations of executive departments. Diplomatic Communication negotiation is privileged information. (Akbayan v. Aquino, G.R. No. 170516, July 16, 2008)

K. Right of association

Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

L. Eminent domain

Section 9. Private property shall not be taken for public use without just compensation.

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1. Concept

Power of eminent domain is the power of the state to forcibly acquire the needed property in order to devote it to the intended public use, upon payment of just compensation. (Cruz, Constitutional Law, p.62)

2. Expansive concept of “public use”

The requisite of public use DOES NOT mean “use by the public at large. Whatever may be beneficially employed for the general welfare satisfies the requirement. Moreover, that only few people benefits from the expropriation does not diminish its public-use character because the notion of public use now includes the broader notion of indirect public benefit or advantage.(Manosca v. CA, G.R. 166440, Jan. 29, 1996).

3. Just compensation

Just compensation is the full and fair equivalent of the property taken from the private owner (owner’s loss) by the expropriator. It is usually the fair market value (FMV) of the property and must include consequential damages (damages to the other interest of the owner attributed to the expropriation) minus consequential benefits (increase in the value of other interests attributed to new use of the former property).

Note: FMV is the price fixed by the parties willing but not compelled to enter into a contract of sale.

Q: Does compensation have to be paid in money?

GR: Yes.

XPN: In cases involving CARP, compensation may be in bonds or stocks, for it has been held as a non-traditional exercise of the power of eminent domain. It is not an ordinary expropriation where only a specific property of relatively limited area is sought to be taken by the State from its owner for a specific and perhaps local purpose. It is rather a revolutionary kind of expropriation (Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. No. 78742, 14 July 1989).

Q: Is the owner entitled to the payment of interest? How about reimbursement of taxes paid on the property?

A: Yes, the owner is entitled to the payment of interest from the time of taking until just compensation is actually paid to him. Taxes paid by him from the time of the taking until the transfer of title (which can only be done after actual payment of just compensation), during which he did not enjoy any beneficial use of the property, are reimbursable by the expropriator.

Q: What legal interest should be used in the computation of interest on just compensation?

A: An interest of 12% per annum on the just compensation due the landowner. (LBP v. Wycoco G.R. No. 140160, January 13, 2004)

a. Determination

The value of the property must be determined either at the time of taking or filing of the complaint, whichever comes first.(EPZA v. Dulay, G.R. No. 59603, April 29, 1987).

b. Effect of delay

GR: Non-payment by the government does not entitle private owners to recover possession of the property because expropriation is an in rem proceeding, not an ordinary sale, but only entitle them to demand payment of the fair market value of the property.

Exceptions:

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1. When there is deliberate refusal to pay just compensation

2. Government’s failure to pay compensation within 5 years from the finality of the judgment in the expropriation proceedings. This is in connection with the principle that the government cannot keep the property and dishonor the judgment. (Republic v. Lim, G.R. No. 161656, June 29, 2005)

4. Abandonment of intended use and right of repurchase

Q: Several parcels of lands located in Lahug, Cebu City were the subject of expropriation proceedings filed by the Government for the expansion and improvement of the Lahug Airport. The trial court rendered judgment in favor of the Government and ordered the latter to pay the landowners the fair market value of the land. The landowners received the payment.

The other unsatisfied landowners appealed. Pending appeal, the Air Transportation Office (ATO), proposed a compromise settlement whereby the owners of the lots affected by the expropriation proceedings would either not appeal or withdraw their respective appeals in consideration of a commitment that the expropriated lots would be resold at the price they were expropriated in the event that the ATO would abandon the Lahug Airport, pursuant to an established policy involving similar cases. Because of this promise, the landowners did not pursue their appeal. Thereafter, the lot was transferred and registered in the name of the Government. The projected improvement and expansion plan of the old Lahug Airport, however, was not pursued. From the date of the institution of the expropriation proceedings up to the present, the public purpose of the said expropriation (expansion of the airport) was never actually initiated, realized, or implemented.

Thus, the landowners initiated a complaint for the recovery of possession and reconveyance of ownership of the lands based on the compromised agreement they entered into with the ATO. On the other hand, the Government anchor their claim to the controverted property on the supposition that the decision in the pertinent expropriation proceedings did not provide for the condition that should the intended use of the land for the expansion of the Lahug Airport be aborted or abandoned, the property would revert to respondents, being its former owners. Do the former owners have the right to redeem the property?

A: Yes. It is well settled that the taking of private property by the Government’s power of eminent domain is subject to two mandatory requirements: (1) that it is for a particular public purpose; and (2) that just compensation be paid to the property owner. These requirements partake of the nature of implied conditions that should be complied with to enable the condemnor to keep the property expropriated.

More particularly, with respect to the element of public use, the expropriator should commit to use the property pursuant to the purpose stated in the petition for expropriation filed, failing which, it should file another petition for the new purpose. If not, it is then incumbent upon the expropriator to return the said property to its private owner, if the latter desires to reacquire the same. Otherwise, the judgment of expropriation suffers an intrinsic flaw, as it would lack one indispensable element for the proper exercise of the power of eminent domain, namely, the particular public purpose for which the property will be devoted. Accordingly, the private property owner would be denied due process of law, and the judgment would violate the property owner’s right to justice, fairness, and equity.

In light of these premises, we now expressly hold that the taking of private property, consequent to the Government’s exercise of its power of eminent domain, is always subject to the condition that the property be devoted to the specific public purpose for which it was taken. Corollarily, if this particular purpose or intent is not initiated or not at all pursued, and is peremptorily abandoned, then the former owners, if they so desire, may seek the reversion of the property, subject to the return of the amount of just compensation received. In such a case, the exercise of the power of eminent domain has become improper for lack of the required factual justification (Mactan-Cebu International Airport Authority and Air Transportation Office v. Lozada, et. al, G.R. No. 176625, Feb. 25, 2010).

5. Miscellaneous application

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Q: An ordinance of Quezon City requires memorial park operators to set aside at least 6% of their cemetery for charity burial of deceased persons. The same ordinance also imposes sanction in case of violation in the form of fine or imprisonment and revocation or cancellation of permit to operate. Is this a valid exercise of police power?

A: No, it constitutes taking of property without just compensation. The power to regulate does not include the power to prohibit. The power to regulate does not include the power to confiscate. The ordinance in question not only confiscates but also prohibits the operation of a memorial park cemetery, because under Section 13 of said ordinance, 'Violation of the provision thereof is punishable with a fine and/or imprisonment and that upon conviction thereof the permit to operate and maintain a private cemetery shall be revoked or cancelled’. The confiscatory clause and the penal provision in effect deter one from operating a memorial park cemetery. Moreover, instead of building or maintaining a public cemetery for this purpose, the city passes the burden to private cemeteries. (City Government of Quezon City v. Ericta, G.R. No. L-34915, Jun. 24, 1983)

Q: Can there be expropriation in right of way easement?

A: Yes. Expropriation is not limited to the acquisition of real property with a corresponding transfer of title or possession – the right of way easement resulting in a restriction of limitation on property right over the land traversed by transmission lines also falls within the ambit of the term expropriation. (NPC v. Maria Mendoza San Pedro, G.R. No. 170945 Sept. 26, 2006)

Q: Causby sued the United States for trespassing on his land, complaining specifically about how "low-flying military planes caused the plaintiffs' chickens to 'jump up against the side of the chicken house and the walls and burst themselves open and die. Are they entitled to compensation by reason of taking clause?

A: There is taking by reason of the frequency and altitude of the flights. Causby could not use his land for any purpose (US v. Causby, 328 U.S. 256 , 1946).

Q: The National Historical Institute declared the parcel of land owned by Petitioners as a national historical landmark, because it was the site of the birth of Felix Manalo, the founder of Iglesia ni Cristo. The Republic of the Philippines filed an action to appropriate the land. Petitioners argued that the expropriation was not for a public purpose. Is this correct?

A: Public use should not be restricted to the traditional uses. The taking is for a public use because of the contribution of Felix Manalo to the culture and history of the Philippines. (Manosca v. CA , G.R. No. 106440, Jan. 29, 1996)

Q: Is expropriation of private lands for slum clearance and urban development for public purpose?

A: Yes. The Constitution itself allows the State to undertake, for the common good and in cooperation with the private sector, a continuing program of urban land reform and housing which will make at affordable cost decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas. The expropriation of private property for the purpose of socialized housing for the marginalized sector is in furtherance of the social justice provision under Section 1, Article XIII of the Constitution. To this end, the State shall require the acquisition, ownership, use and disposition of property and its increments. Thus, it follows that the low cost housing project of respondent NHA on the expropriated lots is compliant with the “public use” requirement. It is for public purpose even if the developed area is later sold to private homeowners, commercial firms, entertainment and service companies and other private concerns. (Reyes v. NHA,G.R. No. 47511, Jan. 20, 2003)

M. Contract clause

Section 10. No law impairing the obligation of contracts shall be passed.

1. Contemporary application of the contract clause

Q: When does a law impair the obligation of contracts?

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1. If it changes the terms and conditions of a legal contract either as to the time or mode of performance

2. If it imposes new conditions or dispenses with those expressed if it authorizes for its satisfaction something different from that provided in its terms

Note: Mere technical change which does not change the substance of the contract, and which still leaves an efficacious remedy for enforcement does NOT impair the obligation of contracts. A valid exercise of police power is superior to obligation of contracts.

Q: When can this be applied?

A: This constitutional provision is applicable only if the obligation of contract is impaired by legislative act (statute, ordinance, etc.). The act need not be by a legislative office; but it should be legislative in nature. Furthermore, the impairment must be substantial (Philippine Rural Electric Cooperatives Assoc. v. DILG Secretary, G.R. 143076, June 10, 2003).

Q: May laws be enacted even it might result to impairment of contracts?

GR: Valid contracts should be respected by the legislature and not tampered with by subsequent laws that will change the intention of the parties or modify their rights and obligations. The will of the parties to a contract must prevail. A later law which enlarges, abridges, or in any manner changes the intent of the parties to the contract necessarily impairs the contract itself and cannot be given retroactive effect without violating the constitutional prohibition against impairment of contracts. (Sangalang v. IAC, G.R. No. 71169, Dec. 22, 1988)

XPN: Enactment of laws pursuant to the exercise of police power because public welfare prevails over private rights. It is deemed embedded in every contract a reservation of the State’s exercise of police power, eminent domain and taxation, so long as it deals with a matter affecting the public welfare.(PNB v Remigio, G.R. No 78508, Mar. 21, 1994)

Q: What constitutes impairment?

A: Any statute which introduces a change into the express terms of the contract, or its legal construction, or its validity, or its discharge, or the

remedy for its enforcement, impairs the contract. (Black’s Law Dictionary)

Note: Franchises, privileges, licenses, etc. do not come within the context of the provision, since these things are subject to amendment, alteration or repeal by Congress when the common good so requires.

Q: PAL (a former GOCC) and Kuwait Airways entered into a Commercial Agreement and Joint Services Agreement. The Commercial Agreement established a joint commercial arrangement whereby Philippine Airlines and Kuwait Airways were to jointly operate the Manila-Kuwait (and vice versa) route, utilizing the planes and services of Kuwait Airways. Subsequently, Philippine Airlines was privatized. After 14 years, delegations from the Philippine government and Kuwait government met in Kuwait. The talks culminated in a Confidential Memorandum of Understanding (CMU). Can the execution of the Commercial Memorandum of Understanding (CMU) between Kuwait and Philippine Government automatically terminate the aforementioned agreement?

A: No, because an act of the Phil. Gov’t negating the commercial agreement between the two airlines would infringe the vested rights of a private individual. Since PAL was already under private ownership at the time the CMU was entered into, the Court cannot presume that any and all commitments made by the Phil. Gov’t are unilaterally binding on the carrier even if this comes at the expense of diplomatic embarrassment. Even granting that the police power of the State may be exercised to impair the vested rights of privately-owned airlines, the deprivation of property still requires due process of law. (Kuwait Airline Corporation v. PAL, G.R. No. 156087, May 8, 2009)

Q: May there be a valid impairment of contracts even if the act in question is done by an entity other than the legislature?

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A: Yes. The act need not be by a legislative office; but it should be legislative in nature. (Philippine Rural Electric Cooperatives Assoc. v. DILG Sec, G.R. No. 143076, June 10, 2003)

Q: May non-impairment clause be invoked in a pure contract between the parties?

A: No, non-impairment clause cannot be invoked if there is neither public interest involved nor a law that supports the claim. It can only be invoked if it is against the government or when the government intervenes in contract between the parties. (Pacific Wide Realty and Development Corp. v Puerto Azul Land, Inc., G.R. No. 180893, Nov 25, 2009)

N. Legal assistance and free access to courts

Section 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.

O. Rights of suspects

Section 12.

1. Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

2. No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

3. Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

4. The law shall provide for penal and civil sanctions for violations of this Section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families.

1. Availability

During custodial investigation or as soon as the investigation ceases to be a general inquiry unto an unsolved crime and direction is aimed upon a particular suspect, as when the suspect who has been taken into police custody and to whom the police would then direct interrogatory questions which tend to elicit incriminating statements.

Note: Sec. 2 of R.A. 7438 provides that custodial investigation shall include the practice of issuing an invitation to a person who is under investigation in connection with an offense he is suspected to have committed

Rights during custodial investigation apply only against testimonial compulsion and not when the body of the accused is proposed to be examined (i.e. urine sample; photographs; measurements; garments; shoes) which is a purely mechanical act.

In the case of Galman v. Pamaran, it was held that the constitutional safeguard is applied notwithstanding that the person is not yet arrested or under detention at the time. However, Fr. Bernas has qualified this statement by saying that jurisprudence under the 1987 Constitution has consistently held, following the stricter view, that the rights begin to be available only when the person is already in custody. (People v. Ting LanUy, G.R. No. 157399, Nov.17, 2005)

Furthermore, in the case of People v. Reyes, GR No. 178300, Mar. 17, 2009, we can find this line: “The mantle of protection afforded by the above-quoted provision covers the period from the time a person is taken into custody for the investigation of his possible participation in the commission of a crime of from the

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time he was singled out as a suspect in the commission of the offense although not yet in custody.

The Miranda rights are unavailable:

1. During a police line-up, unless admissions or confessions are being elicited from the suspect (Gamboa Vs. Cruz, G.R. No. L-56291, June 27, 1988)

2. During administrative investigations (Sebastian, Jr v Garchitorena, G.R. No 114028)

3. Confessions made by an accused at the time he voluntarily surrendered to the police or outside the context of a formal investigation; (People v Baloloy, G.R. No 140740, April 12, 2002) and

4. Statements made to a private person (People v Tawat, G.R. No 62871, May 25, 1985)

5. Forensic investigation is not tantamount to custodial investigation, therefore Miranda rights is not applicable (People v. Tranca, 235 SCRA 455, 1994)

2. Requisites

The requisites for a valid waiver of these rights are:

1. Made voluntarily, knowingly and intelligently

2. Waiver should be made in writing

3. Made with the presence of counsel (People vs Galit, GR. No. L-51770, Mar. 20, 1985)

3. Waiver

The rights that may be waived are

1. Right to remain silent

2. Right to counsel

Note:

1. However, the right to be informed of these rights cannot be waived; and

2. The waiver must be in writing and in the presence of counsel. (Political Law Reviewer, Suarez, p. 295, 2011).

P. Rights of the accused

Section 14.

1. No person shall be held to answer for a criminal offense without due process of law.

2. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable.

1. Bail

Section 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by

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sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

2. Criminal due process

The requisites of criminal due process are:

1. Accused is heard by a court of competent jurisdiction

2. Accused is proceeded against under the orderly processes of law

3. Accused is given notice and opportunity to be heard

4. Judgment rendered was within the authority of a constitutional law

3. Presumption of innocence

Every circumstance favoring the innocence of the accused must be taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment (People v. Austria, G.R. No. 55109, Apr. 8, 1991)

The presumption of innocence can be invoked only by an individual accused of a criminal offense; a corporate entity has no personality to invoke the same.

The rules regarding presumption of innocence are:

1. The prosecution has the burden to prove the guilt of the accused beyond reasonable doubt. (People vs. Colcol., Jr., 219 SCRA 107, February 19, 1993)

2. The prosecution must rely on the strength of its evidence and not in the weakness of the defense. (People vs. Solis, 182 SCRA 182, February 14, 1990)

3. The right to be presumed innocent must be offset by guilt beyond reasonable doubt. (People vs. Ortiz, 198 SCRA 836, December 3, 1990)

4. Any doubt as to the guilt of the accused must be resolved in his favor and against the state. (People vs. Mortos, 226 SCRA 29, September 1, 1993)

4. Right to be heard

Q: In a murder case, Christian was convicted in the trial court but was not given the right to testify and to present additional evidence on their behalf. Is the conviction correct?

A: No, an accused has the constitutional right “to be heard by himself and counsel” and the right “to testify as a witness in his own behalf “. The denial of such rights is a denial of due process. The constitutional right of the accused to be heard in his defense is inviolate. “No court of justice under our system of government has the power to deprive him of that right.”(People vs. Lumague, G.R. No. L-53586)

5. Assistance of counsel

The right of a person under investigation is to have a “competent and independent counsel preferably of his own choice”. The purpose is to preclude the slightest coercion as would lead the accused to admit something else. (People vs Evanoria, 209 SCRA 577, June 8, 1992)

This right does NOT pertain to mere presence of a lawyer in the courtroom. The accused must be amply accorded legal assistance extended by a counsel who commits himself to the cause of the defense and acts accordingly; an efficient and truly decisive legal assistance, and not simply a perfunctory representation. (People v. Bermas, G.R. No. 120420, Apr. 21, 1999)

A PAO lawyer can be considered an independent counsel within the contemplation of Sec 12, Art III, 1987 Constitution considering that he is not a special counsel, public or private prosecutor, counsel of the police, or a

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municipal attorney whose interest is admittedly adverse of the accused-appellant. Thus, the assistance of a PAO lawyer satisfies the constitutional requirement of a competent and independent counsel for the accused. (People v. Bacor, 306 SCRA 552, April 30, 1999)

6. Right to be informed

Q: What is the rationale for this right?

1. To furnish the accused with such a description of the charge against him as will enable him to make his defense

2. To avail himself of his conviction or acquittal for protection against further prosecution for the same cause

3. To inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction, if one should be had (US v. Karelsen G.R. No. 1376, Jan. 21, 1904)

Q: What would determine the nature and cause of accusation?

A: Description, not designation of the offense, is controlling. The real nature of the crime charged is determined from the recital of facts in the information. It is neither determined based on the caption or preamble thereof nor from the specification of the provision of the law allegedly violated.

Q: What are the requisites for properly informing the accused of the nature and cause of accusation?

1. Information must state the name of the accused

2. Designation given to the offense by statute

3. Statement of the acts or omission so complained of as constituting the offense

4. Name of the offended party

5. Approximate time and date of commission of the offense

6. Place where offense was committed

7. Every element of the offense must be alleged in the complaint or information

Q: What happens if the information fails to allege the material elements of the offense?

A: The accused cannot be convicted thereof even if the prosecution is able to present evidence during the trial with respect to such elements.

Q: How is the void for vagueness doctrine related to this right?

A: The accused is also denied the right to be informed of the charge against him, and to due process as well, where the statute itself is couched in such indefinite language that it is not possible for men of ordinary intelligence to determine therefrom what acts or omissions are punished. In such a case, the law is deemed void.

Q: May a person be convicted of the crime proved if the same is different from the crime charged?

A: Yes, under the variance doctrine, in spite of the difference between the crime that was charged and that which was eventually proved, the accused may still be convicted of whatever offense that was proved even if not specifically set out in the information provided it is necessarily included in the crime charged. (Teves v. Sandiganbayan, G.R. No. 154182, Dec. 17, 2004)

Q: May the right to be informed of the nature and cause of accusation be waived?

A: No. However, the defense may waive the right to enter a plea and let the court enter a plea of “not guilty”.

7. Right to speedy, impartial and public trial

Q: What is meant by speedy trial?

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A: The term “speedy” means free from vexatious, capricious and oppressive delays. The factors to be considered are:

1. Time expired from the filing of information

2. Length of delay

3. Reasons for the delay

4. Assertion or non-assertion of the right by the accused

5. Prejudice caused to the defendant

Note: The denial of the right to speedy trial is a ground for acquittal.

Q: What is meant by impartial trial?

A: The accused is entitled to cold neutrality of an impartial judge, one who is free from interest or bias.

Q: Why must the trial be public?

A: It is in order to prevent possible abuses which may be committed against the accused. The attendance at the trial is open to all, irrespective of their relationship to the accused.

XPN: If the evidence to be adduced is “offensive to decency or public morals,” the public may be excluded.

Q: Can the public be excluded from the courtroom without violating the right of the accused to a public trial?

A: Yes, under Section 21, Rule 119 of the Rules of Criminal Procedure it is provided that the judge may motu propio exclude the public from the courtroom when the evidence to be adduced is offensive to decency and public morals.

Q: Is there a difference between the right to speedy trial, as guaranteed in Section 14 (2), Article III, and speedy disposition of cases, as guaranteed in Section 16?

A: Yes. The right to speedy trial particularly refers to criminal prosecutions which are at the trial stage, while the right to speedy disposition of cases applies to all cases before judicial, quasi-judicial or administrative bodies. (Political Law Reviewer, Suarez , p. 362, 2011).

8. Right of confrontation

Q: What is the purpose of the right of confrontation?

1. To afford the accused an opportunity to test the testimony of a witness by cross-examination;

2. To allow the judge to observe the deportment of the witness.

Q: What is the effect of failure to cross-examine?

A: If the failure of the accused to cross-examine a witness is due to his own fault or was not due to the fault of the prosecution, the testimony of the witness should not be excluded.

Q: Are affidavits of witnesses who are not presented during trial admissible?

A: No. They are inadmissible for being hearsay. The accused is denied the opportunity to cross-examine the witnesses.

Note: Depositions are admissible under circumstances provided by the Rules of Court.

9. Compulsory process

Q: What are the means available to the parties to compel the attendance of witnesses and the production of documents and things needed in the prosecution or defense of a case?

1. Subpoena ad testificandum and subpoena duces tecum

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2. Depositions and other modes of discovery

3. Perpetuation of testimonies

10.Trials in absentia

Trial in absentia may proceed if the following requisites are present:

1. Accused has been validly arraigned

2. Accused has been duly notified of the dates of hearing

3. Failure to appear is unjustifiable

Q. Writ of habeas corpus

Section 15. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion, when the public safety requires it.

R. Right to Speedy Disposition of Cases

Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.

S. Writs of amparo, habeas data, and kalikasan

Writ of Amparo is a remedy available to any person whose right to life, liberty, and security has been violated or is threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ covers extralegal killings and enforced disappearances or threats thereof. (Rule on Writ of Amparo)

The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.(Sec. 1, The Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, Jan. 22, 2008)

A writ of habeas data cannot be issued to protect purely property or commercial concern. It bears reiteration that like the writ of amparo, habeas data was conceived as a response, given the lack of effective and available remedies, to address the extraordinary rise in the number of killings and enforced disappearances. Its intent is to address violations of or threats to the rights to life, liberty or security as a remedy independently from those provided under prevailing rules. Writs of amparo and habeas data will not issue to protect purely property or commercial concerns nor when the grounds invoked in support of the petitions therefore are vague or doubtful. Employment constitutes a property right under the context of the due process clause of the constitution. It is evident that respondent’s reservations on the real reasons for her transfer-a legitimate concern respecting the terms and conditions of one’s employment- are what prompted her to adopt the extraordinary remedy of habeas data. (Manila Electric Company vs. Lim, 632 SCRA 195, 2010)

Writ of Kalikasan: Under Sec. 1, Rule 7 , Rules of Procedure for Environmental Cases, the writ is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. (A.M. No. 09-6-8-SC)

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T. Self-incrimination clause

Section 17. No person shall be compelled to be a witness against himself.

1. Scope and coverage

The right is available:

1. Criminal cases

2. Civil cases

3. Administrative cases

4. Impeachment

5. and other legislative investigations that possess a criminal or penal aspect

XPN: Private investigations done by private individual (BPI vs. CASA, GR.No.149454, May 28, 2004).

A question tends to incriminate when the answer of the accused or the witness would establish a fact which would be a necessary link in a chain of evidence to prove the commission of a crime by the accused or the witness.

The privilege against self-incrimination can be claimed only when the specific question, incriminatory in character, is actually addressed to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed.

The privilege against self-incrimination is not self-executing or automatically operational. It must be claimed. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time.

a. Foreign laws

2. Application

3. Immunity statutes

DERIVATIVE-USE IMMUNITY TRANSACTIONAL IMMUNITY

Only prevents the prosecution from using the witness' own testimony, or any evidence derived from the testimony, against him. However, should the prosecutor acquire evidence substantiating the supposed crime—independent of the witness's testimony—the witness may then be prosecuted for the same.

Completely protects the witness from future prosecution for crimes related to his or her testimony.

Does not protect the witness quite as much, because here the witness is only protected from future prosecution based on exactly what he or she says on the witness stand, and not from any evidence the prosecutor finds to substantiate the witness’ crime.

Gives the witness the most protection from prosecution because that witness can never be prosecuted in the future for any crimes related to his or her testimony.

Also known as blanket or total immunity

U. Involuntary servitude and political prisoners

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Section 18.

1. No person shall be detained solely by reason of his political beliefs and aspirations.

2. No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.

V. Excessive fines and cruel and inhuman punishments

Section 19.

1. Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua.

2. The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.

W. Non-imprisonment for debts

Section 20. No person shall be imprisoned for debt or non-payment of a poll tax.

X. Double jeopardy

Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

When a person was charged with an offense and the case was terminated by acquittal or conviction or in any other manner without his consent, he cannot again be charged with the same or identical offense. (Melo v.People, G.R. No. L-3580, Mar. 22, 1950).

1. Requisites

1. Court of competent jurisdiction

2. A Complaint or Information sufficient in form and substance to sustain a conviction

3. Arraignment and plea by the accused;

4. Conviction, acquittal, or dismissal of the case without the express consent of the accused. (Sec 7, Rule 117, Rules of Court; People v. Obsania, G.R. No. L-24447, June 29, 1968)

2. Motions for reconsideration and appeals

Q: When may the court grant a new trial or reconsideration?

A: At any time before a judgment of conviction becomes final, the court may on motion of the accused, or on its own instance with the consent of the accused, grant a new trial or reconsideration. (Rule 121, Sec. 1 of the Revised Rules of Criminal Procedure)

Q: What is a motion for reconsideration?

A: It is a motion generally filed by the accused whereby he seeks the modification of the conclusions of the court in the judgment of conviction on the basis of what is already on record. It does not call for the introduction of evidence unlike in new trial. (Pineda, The Revised Rules of Criminal Procedure, 2006 ed., 536-537)

Q: Who may appeal?

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A: Any party may appeal from a judgment or final order, unless the accused will be placed in double jeopardy. (Rule 122, Sec. 1 of the Revised Rules of Criminal Procedure)

Note: The authority to represent the State in appeals of criminal cases before the Supreme Court and the CA is solely vested in the Office of the Solicitor General (OSG).

To be sure, in criminal cases, the acquittal of the accused or the dismissal of the case against him can only be appealed by the Solicitor General, acting on behalf of the State. The private complainant or the offended party may question such acquittal or dismissal only insofar as the civil liability of the accused is concerned.

In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of Court wherein it is alleged that the trial court committed a grave abuse of discretion amounting to lack of jurisdiction or on other jurisdictional grounds, the rules state that the petition may be filed by the person aggrieved. In such case, the aggrieved parties are the State and the private offended party or complainant. The complainant has an interest in the civil aspect of the case so he may file such special civil action questioning the decision or action of the respondent court on jurisdictional grounds. In so doing, complainant should not bring the action in the name of the People of the Philippines. The action may be prosecuted in name of said complainant (Bautista & Alcantara v. Cuneta-Pangilinan, G.R. No. 189754, Oct. 24, 2012).

Q: May the prosecution appeal an acquittal?

GR: The prosecution may not appeal an acquittal and an acquittal is immediately final

XPNs:

1. The dismissal is on motion or with the express consent of the accused

XPN to the XPN: If motion is based on violation of the right to a speedy trial or on demurrer to evidence

2. The dismissal does not amount to an acquittal or dismissal on the merits

3. The question to be passed upon is purely legal

4. The dismissal violates the right of due process of the prosecution

5. The dismissal is made with grave abuse of discretion.

3. Dismissal with consent of accused

Q: When is the defense of double jeopardy not available?

GR: Double jeopardy is not available when the case is dismissed other than on the merits or other than by acquittal or conviction upon motion of the accused personally, or through counsel, since such dismissal is regarded as with express consent of the accused, who is therefore deemed to have waived the right to plea double jeopardy.

XPNs:

1. Dismissal based on insufficiency of evidence

2. Dismissal because of denial of accused’s right to speedy trial

3. Accused is discharged to be a State witness

Y. Ex post facto laws and bills of attainder

Section 22. No ex post facto law or bill of attainder shall be enacted.

VIII. Citizenship – Article IV

A. Who are Filipino citizens

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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 the accordance with law.

B. Modes of acquiring citizenship

Section 2. Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens.

Section 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law to have renounced it.

C. Naturalization and denaturalization

CA No. 473 - Revised Naturalization Law

Section 2. Qualifications. – Subject to section four of this Act, any person having the following qualifications may become a citizen of the Philippines by naturalization:

First. He must be not less than twenty-one years of age on the day of the hearing of the petition;

Second. He must have resided in the Philippines for a continuous period of not less than ten years;

Third. He must be of good moral character and believes in the principles underlying the Philippine Constitution, and must have conducted himself in a proper and irreproachable manner during the entire period of his residence in the Philippines in his relation with the constituted government as well as with the community in which he is living.

Fourth. He must own real estate in the Philippines worth not less than five thousand pesos, Philippine currency, or must have some known lucrative trade, profession, or lawful occupation;

Fifth. He must be able to speak and write English or Spanish and any one of the principal Philippine languages; and

Sixth. He must have enrolled his minor children of school age, in any of the public schools or private schools recognized by the Office of Private Education1 of the Philippines, where the Philippine history, government and civics are taught or prescribed as part of the school curriculum, during the entire period of the residence in the Philippines required of him prior to the hearing of his petition for naturalization as Philippine citizen.

Section 3. Special qualifications. The ten years of continuous residence required under the second condition of the last preceding section shall be understood as reduced to five years for any petitioner having any of the following qualifications:

1. Having honorably held office under the Government of the Philippines or under that of any of the provinces, cities, municipalities, or political subdivisions thereof;

2. Having established a new industry or introduced a useful invention in the Philippines;

3. Being married to a Filipino woman;

4. Having been engaged as a teacher in the Philippines in a public or recognized private school not established for the exclusive instruction of children of persons of a particular nationality or race, in any of the branches of education or industry for a period of not less than two years;

5. Having been born in the Philippines.

Section 4. Who are disqualified. - The following cannot be naturalized as Philippine citizens:

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a. Persons opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized governments;

b. Persons defending or teaching the necessity or propriety of violence, personal assault, or assassination for the success and predominance of their ideas;

c. Polygamists or believers in the practice of polygamy;

d. Persons convicted of crimes involving moral turpitude;

e. Persons suffering from mental alienation or incurable contagious diseases;

f. Persons who, during the period of their residence in the Philippines, have not mingled socially with the Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions, and ideals of the Filipinos;

g. Citizens or subjects of nations with whom the United States 2and the Philippines are at war, during the period of such war;

h. Citizens or subjects of a foreign country other than the United States 3whose laws do not grant Filipinos the right to become naturalized citizens or subjects thereof.

RA 9139, June 08, 2001 - The Administrative Naturalization Law of 2000

Section 3. Qualifications. - Subject to the provisions of the succeeding section, any person desiring to avail of the benefits of this Act must meet the following qualifications:

(a) The applicant must be born in the Philippines and residing therein since birth;

(b) The applicant must not be less than eighteen (18) years of age, at the time of filing of his/her petition;

(c) The applicant must be of good moral character and believes in the underlying principles of the Constitution, and must have conducted himself/herself in a proper and irreproachable manner during his/her entire period of residence in the Philippines in his relation with the duly constituted government as well as with the community in which he/she is living;

(d) The applicant must have received his/her primary and secondary education in any public school or private educational institution dully recognized by the Department of Education, Culture and Sports, where Philippine history, government and civics are taught and prescribed as part of the school curriculum and where enrollment is not limited to any race or nationality: Provided, That should he/she have minor children of school age, he/she must have enrolled them in similar schools;

(e) The applicant must have a known trade, business, profession or lawful occupation, from which he/she derives income sufficient for his/her support and if he/she is married and/or has dependents, also that of his/her family: Provided, however, That this shall not apply to applicants who are college degree holders but are unable to practice their profession because they are disqualified to do so by reason of their citizenship;

(f) The applicant must be able to read, write and speak Filipino or any of the dialects of the Philippines; and

(g) The applicant must have mingled with the Filipinos and evinced a sincere desire to learn and embrace the customs, traditions and ideals of the Filipino people.

Section 4. Disqualifications, - The following are not qualified to be naturalized as Filipino citizens under this Act:

(a) Those opposed to organized government or affiliated with any association of group of persons who uphold and teach doctrines opposing all organized governments;

(b) Those defending or teaching the necessity of or propriety of violence, personal assault or assassination for the success or predominance of their ideas;

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(c) Polygamists or believers in the practice of polygamy;

(d) Those convicted of crimes involving moral turpitude;

(e) Those suffering from mental alienation or incurable contagious diseases;

(f) Those who, during the period of their residence in the Philippines, have not mingled socially with Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions and ideals of the Filipinos;

(g) Citizens or subjects with whom the Philippines is at war, during the period of such war; and

(h) Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to be naturalized citizens or subjects thereof.

Section 11. Status of Alien Wife and Minor Children. - After the approval of the petition for administrative naturalization in cancellation of applicant's alien certificate of registration, applicant's alien lawful wife and minor children may file a petition for cancellation of their alien certificates of registration with the Committee subject to the payment of the filing fee of Twenty thousand pesos (P20,000.00) and naturalization fee of Forty thousand pesos (P40,000.00) payable as follows: Twenty thousand pesos (P20,000.00) upon the approval of the petition and Twenty thousand pesos (P20,000.00) upon the taking of the oath of allegiance to the Republic of the Philippines.

Section 12. Status of Alien Husband and Minor Children. - If the applicant is a married woman, the approval of her petition for administrative naturalization will not benefit her alien husband but her minor children may file a petition for cancellation of their alien certificates of registration with the BI subject to the requirements of existing laws.

D. Dual citizenship and dual allegiance

Section 5. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.

E. Loss and re-acquisition of Philippine citizenship

Section 3. Philippine citizenship may be lost or reacquired in the manner provided by law.

R.A. 9225 - Citizenship Retention and Re-acquisition Act of 2003

Section 4. Derivative Citizenship - The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizenship of the Philippines.

Section 5. Civil and Political Rights and Liabilities - Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:

(1) Those intending to exercise their right of surffrage must Meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws;

(2) Those seeking elective public in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath;

(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath;

(4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and

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(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who:

(a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or

(b) are in active service as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized citizens.

F. Natural-born citizens and public office

Q: Who are natural-born citizens?

1. Citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship

2. Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority

Note: The term “Natural-born citizens,” is define to include “those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship.” [Tecson vs. COMELEC, GR. No. 161434, Mar. 3, 204)

Q: What is the rule regarding marriage of a Filipino with an alien?

GR: The Filipino retains Philippine citizenship.

XPN: If, by their act or omission they are deemed, under the law, to have renounced it. (Sec.4, Art. IV, 1987 Constitution)

Q: Who are the government officials required to be natural-born Filipino citizens?

1. President (Sec.2, Art VII)

2. Vice-President (Sec. 3, Art VII)

3. Members of Congress (Secs. 3 and 6, Art VI)

4. Justices of Supreme Court and lower collegiate courts (Sec. 7(1), Art VIII)

5. Ombudsman and his deputies (Sec. 8, Art XI)

6. Members of Constitutional Commissions

7. Members of the Central Monetary Authority (Sec. 20, Art XII)

8. Members of the Commission on Human Rights (Sec 17 (2), Art XIII)

Q: Are persons possessing dual citizenship by virtue of birth barred from running for public office?

A: No, the fact that a person has dual citizenship does not disqualify him from running for public office. (Cordora v. COMELEC, G.R. No. 176947, Feb. 19, 2009)

IX. Law on Public Officers

A. General principles

Q: Define public office.

A: It is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public (Fernandez v. Sto. Tomas, G.R. No. 116418, Mar. 7, 1995).

Q: What is the purpose of a public office?

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A: A public office is created to effect the end for which government has been instituted which is the common good; not profit, honor, or private interest of any person, family or class of persons (63 A Am Jur 2d 667)

Q: What are the characteristics of a public office?

1. It is a public trust.

The principle of “public office is a public trust” means that the officer holds the public office in trust for the benefit of the people—to whom such officers are required to be accountable at all times, and to serve with utmost responsibility, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. (Sec. 1, Art. XI, Constitution)

2. It is not a property.

The concept "public office is not a property” means that it is outside the commerce of man; hence, it cannot be the subject of a contract. (Santos v. Secretary of Labor, G.R. No.L-21624, Feb 27, 1968)

3. It is not a vested right.

Note: However, right to a public office is nevertheless a protected right. With the exception of constitutional offices that provide for some immunity as regards salary and tenure, right to a public office is protected by the constitutional provision on security of tenure. It cannot be taken from its incumbent without due process. (Morfe v. Mutuc,G.R. No. L-20387, Jan. 31, 1968; Aparri v. Court of Appeals, G.R. No. L-30057, Jan. 31, 1984)

4. It is personal to the public officer.

It is not a property transmissible to the heirs of the public officer upon the latter’s death. (Santos v. Secretary of Labor, G.R. No.L-21624, Feb 27, 1968;)

5. It is not a natural right.

Under our political system, the right to hold public office exists only because and by virtue of some law expressly or impliedly creating and conferring it.

Q: How are public offices created?

A: By: VAT

1. The Constitution

2. Valid statutory enactments

3. Authority of law (Secretary of Department of Transportation and Communications v. Mabalot, G.R. No. 138200, Feb. 27, 2002)

Q: What are the elements of a public office?

A: PILAC

1. Created by Constitution or by law or by some body or agency to which the power to create the office has been delegated;

2. Invested with Authority to exercise some portion of the sovereign power of the State

3. The powers conferred and the duties to be discharged must be defined directly or impliedly by the Legislature or through legislative authority;

4. Duties are performed Independently without control unless those of a subordinate.

5. Continuing and Permanent (Fernandez v. Sto. Tomas, G.R. No. 116418, Mar. 7, 1995; Tejada v. Domingo, G.R. No. 91860, Jan. 13, 1992)

Q: Who is a public officer?

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A: Any person who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the government of the Philippine Islands, or shall perform in said Government or in any of its branches, public duties as an employee, agent, or subordinate official, of any rank or class. (Art. 203, Revised Penal Code)

Note: Under Sec 2. R.A. 3019, the term public officer includes elective and appointive officials and employees, permanent or temporary, whether in the classified, unclassified or exempt service, receiving compensation, even nominal, from the government.”

Q: What are the classifications of a public officer?

A: A public officer may be:

1. Constitutional or statutory

2. National or local

3. Legislative, executive, or judicial

4. Lucrative or honorary

5. Discretionary or ministerial

6. Appointive or elective

7. Civil or military

8. De jure or de facto

Q: What are the classifications of government employment and distinguish the same?

1. Career Service

2. Non-career Service

B. Modes of acquiring title to public office

Public offices are filled up either by:

1. Appointment

2. Election

3. Designation – the mere imposition of new or additional duties upon an officer to be performed by him in a special manner.

4. In some instances by contract or by some other modes authorized by law. (Preclaro v. Sandiganbayan, G.R. No. 111091, Aug. 21, 1995)

Note: A public office, being a trust or agency created for the benefit of the people, can be obtained only in the manner prescribed by the Constitution or by law. (The Law on Public officers by Hector S. De Leon, 2008 edition, Chapter 3, page 48)

The manner of selecting persons for public office is generally by election or by appointment. (63A Am. Jur. 2d 733)

C. Modes and kinds of appointment

Appointment is the act of designation by the executive officer, board or body to whom that power has been delegated, of the individual who is to exercise the powers and functions of a given office. In this sense, it is to be distinguished from the selection or designation by a popular vote. [Borromeo v. Mariano, G.R. No. L-16808, Jan. 3, 1921; F. MECHEM, A Treaties on the Law of Public and Officers, p.42 (1890)]

It refers to the nomination or designation of an individual to an office. (Borromeo v Mariano, G.R. No. L-16808, Jan. 3, 1921)

It is, in law, equivalent to “filling a vacancy”. (Conde v. National Tobacco Corp., G.R. No. L-11985 Jan. 28, 1961)

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The classifications of appointments are:

1. Permanent – Extended to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility required, for the position and thus enjoys security of tenure.

Under Section 25(a) of the Civil Service Decree, an appointment in the civil service is permanent when issued to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof. It lasts until lawfully terminated

2. Temporary – Extended to a person who may not possess the requisite qualifications or eligibility and is revocable at will without necessity of just cause or investigation. However, if the appointment is for a specific period, the appointment may not be revoked until the expiration of the term.

Under the Civil Service Decree, an appointment in the civil service is temporary when the appointee does not possess civil service eligibility. Subsequent acquisition of the required eligibility will not make a temporary appointment regular permanent.

Note: Temporary appointments shall not exceed 12 months. Acquisition of civil service eligibility will not automatically convert the temporary appointment into a permanent one (Prov. Of Camarines Sur v. CA, G.R. No. 104639, July 14, 1995).

3. Regular appointment – one made by the President while the Congress is in session, which takes effect only after confirmation by the Commission on Appointment and, once approved, continues until the end of the term of the appointee.

4. Ad interim appointment – one made by the President while Congress is not in session, which takes effect immediately, but ceases to be valid if:

a. disapproved by the Commission on Appointments; or

b. upon the next adjournment of Congress, either in regular or special session (inaction by the CA).

Purpose: Ad interim appointments are intended to prevent a hiatus in the discharge of official duties. Obviously, the public office would be immobilized to the prejudice of the people if the President had to wait for Congress and the Commission of Appointments to reconvene before he could fill a vacancy occurring during the recess. (Guevara v. Inocentes, G.R. No. L-25577, Mar. 15, 1966)

Nature: Ad interim appointments are permanent appointments. It is permanent because it takes effect immediately and can no longer be withdrawn by the President once the appointee qualified into office. The fact that it is subject to confirmation by the CA does not alter its permanent character. In cases where the term of said ad interim appointee had expired by virtue of inaction by the Commission on Appointments, he may be reappointed to the same position without violating the Constitutional provision prohibiting an officer whose term has expired from being re-appointed (Matibag v. Benipayo, G.R. No. 130657, Apr. 1, 2002).

Being a permanent appointment, an ad interim appointee pending action by the Commission on Appointments enjoys security of tenure. (Marombhosar v. CA, G.R. No. 126481, Feb. 18, 2000)

D. Eligibility and qualification requirements

The requirements for public office are:

1. Eligibility – It is the state or quality of being legally fit or qualified to be chosen.

2. Qualification – This refers to the act which a person, before entering upon the performance of his duties, is by law required to do such as the taking, and often,

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subscribing and filing of an official oath, and, in some cases, the giving of an official bond. It may refer to:

a. Endowments, qualities or attributes which make an individual eligible for public office, (e.g. citizenship); or

b. The act of entering into the performance of the functions of a public office, (i.e. taking oath of office).

Note: To entitle a public officer to hold a public office, he must possess all the qualifications and none of the disqualifications prescribed by law for the position not only at the time of his election or appointment but also during his incumbency.

The formal requirements of public officers are:

1. Citizenship

2. Age

3. Residence

4. Education

5. Suffrage

6. Civil service examination

7. Ability to read and write

8. Political affiliation as a rule, it is not a qualification

XPN: in Party-List, Membership in the Electoral Tribunal, Commission on Appointment

Note: The qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer’s entire tenure. Once any of the required qualification is lost, his title may be reasonably challenged. (Frivaldo V. COMELEC, G.R. No. 87193, June 23, 1989; Labo v. COMELEC, G.R. No. 86564 August 1, 1989; Aguila v. Genato, G. R No. L-55151, Mar. 17, 1981)

Section 6, PD 807

Section 6. The Non-Career Service shall be characterized by (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made.

The Non-Career Service shall include:

1. Elective officials and their personal or confidential staff;

2. Department Heads and other officials of Cabinet rank who hold positions at the pleasure of the President and their personal or confidential staff(s);

3. Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff;

4. Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and

5. Emergency and seasonal personnel.

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Sections 7, 9 Title I, Subtitle A, Book V, 1987 Administrative Code

Section 7. Career Service. - The Career Service shall be characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure.

The Career Service shall include:

(1) Open Career positions for appointment to which prior qualification in an appropriate examination is required;

(2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems;

(3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President;

(4) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Department of Foreign Affairs;

(5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system;

(6) Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who do not fall under the non-career service; and

(7) Permanent laborers, whether skilled, semi-skilled, or unskilled.

Section 9. Non-Career Service. - The Non-Career Service shall be characterized by (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made.

The Non-Career Service shall include:

(1) Elective officials and their personal or confidential staff;

(2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff(s);

(3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff;

(4) Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and

(5) Emergency and seasonal personnel.

E. Disabilities and inhibitions of public officers

Q: State the prohibitions imposed under the 1987 Constitution against the holding of 2 or more positions.

A. Members of Congress shall not:

1. Appear as counsel before any court, electoral tribunal, or quasi-judicial and other administrative bodies;

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2. Shall not be interested in any contract with, or in any franchise, or special privilege granted by the Government, or any subdivision, agency or instrumentality thereof, including GOCCs, or its subsidiary;

3. Shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office

B. The President, Vice President, Members of the Cabinet, and their deputies or assistants, unless otherwise allowed by the Constitution, shall not:

1. Directly or indirectly practice any other profession;

2. Participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government, or any subdivision, agency or instrumentality thereof, including GOCCs, or its subdivisions; shall avoid conflict of interest in the conduct of their office

C. Members of the Constitutional Commission shall not:

1. Hold any other office or employment or engage in the practice of any profession or in the active management or control of any business that may be affected by the functions of his office;

2. Be financially interested, directly or indirectly, in any contract with, or in any franchise, or special privilege granted by the Government, or any subdivision, agencies or instrumentalities including GOCCs, or their subsidiaries. These shall also apply to the Ombudsman and his deputies during his term.

D. Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including GOCCs or their subsidiaries. (Art. IX – B, Sec. 7; Flores vs. Drilon, G.R. No. 104732 June 22, 1993)

E. No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the government including GOCCs or any of their subsidiaries. (Art XVI Sec. 5 par. 4)

Q: What are the grounds for disqualification to hold office?

1. Mental or physical incapacity

2. Misconduct or commission of a crime

3. Impeachment

4. Removal or suspension from office

5. Previous tenure of office

6. Consecutive terms exceeding the allowable number of terms

7. Holding more than one office (except ex officio)

8. Relationship with the appointing power (nepotism)

9. Office newly created or the emoluments of which have been increased (forbidden office)

10. Being an elective official (Flores v Drilon, G.R. No. 104732, June 22, 1993)

11. Losing candidate in the election within 1 year following the date of election (prohibitions from office not employment); and

12. Grounds provided for under the local government code.

Q: State the two classes of office which a member of Congress is disqualified to hold under Article VI, Section 13 of the constitution.

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1. Incompatible Office

2. Forbidden Office

Note: See further discussion under Legislative Department chapter.

Q: What is the rule against the appointment of members of the official family of the President?

A: The spouses and relatives by consanguinity or affinity within the 4th civil degree of the President shall not be appointed as members of the Constitutional Commissions, Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including GOCCs and their subsidiaries during his tenure. (Sec. 13, Art. VII, Constitution)

Q: What are the exceptions to the rule against holding 2 or more positions by public officers, as allowed by the Constitution?

A: The Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

Note: The Supreme Court held that while all other appointive officials in the Civil Service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. (Civil Liberties Union v Executive Secretary, 194 SCRA 317)

Q: What are the other prohibitions imposed on public officers?

1. Prohibition against solicitation of gifts (Sec. 7(d), R.A. No. 6713)

Note: Public officers, however, may accept the following gifts from foreign governments:

a. Gifts of nominal value received as souvenir or mark of courtesy;

b. Scholarship or fellowship grant or medical treatment;

c. Travel grants or expenses for travel outside the Philippines (Sec. 7(d), R.A. No. 6713)

2. Prohibition against partisan political activities (Sec. 2(4), Art. IX(B), Constitution)

Note: Partisan political activity is an act designed to promote the election or defeat of a particular candidate/s to a public office. It is also known as “electioneering” (Sec. 79, Omnibus Election Code).

3. Prohibition against engaging in strike (Social Security System Employees Assn. v. CA, G.R No. 85279, Jul 28,1989).

4. Restriction against engaging in the practice of law (Sec. 90, R.A. No. 7160)

5. Prohibition against practice of other professions (Sec. 90, R.A. No. 7160)

6. Restriction against engaging in private business (Abeto v. Garces, A.M. No. P-88-269, Dec. 29, 1995)

7. Restriction against accepting certain employment (Sec. 7(b), R.A. No. 6713)

Q: Can appointive officials engage in partisan political activities?

A: No. Officers or employees in the Civil Service including members of the Armed Forces cannot engage in such activity except to vote. They shall not use their official authority or influence to coerce the political activity of any person (Sec. 55, Subtitle A, Title I, Book V, 1987 Administrative Code).

Note: Officers and employees in the Civil Service can nonetheless express their views on current political issues and mention the names of the candidates they support.

Q: What kind of public officers may engage in partisan political activities?

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1. Those holding political offices, such as the President of the Philippines, Vice President of the Philippines; Executive Secretary/ Department Secretaries and other Members of the Cabinet; All other elective officials at all levels; and those in the personal and confidential staff of the above officials.

Note: However, it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code.

2. National, provincial, city and municipal elective officials. (Santos v. Yatco, G.R. No. L- 16133, Nov. 6, 1959)

Q: Describe the extent of the right to self- organization of employees in the public service?

A: While the Constitution recognizes the right of public employees to organize, they are prohibited from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which may result to temporary cessation of work or disturbance of public service. Their right to self-organization is limited only to form unions or to associate without including the right to strike. Labor unions in the government may bargain for better terms and conditions of employment by either petitioning the Congress for better terms and conditions, or negotiating with the appropriate government agencies for the improvement of those not fixed by law. (SSS Employees Assn. v. CA, G.R No. 85279, July 28,1989)

Q: Does the election or appointment of an attorney to a government office disqualify him from engaging in the private practice of law?

A: As a general rule, judges, other officials of the superior courts, of the office of the Solicitor General and of other Government prosecution offices; the President; Vice-President, and members of the cabinet and their deputies or assistants; members of constitutional commissions; and civil service officers or employees whose duties and responsibilities require that their entire time be at the disposal of the government are strictly prohibited from engaging in the private practice of law. (Ruben E. Agpalo, Legal Ethics, 6th 1997 ed., pp.42 et. seq.)

Q: Combo, a lawyer, is also a member of the Legislature. Is Combo absolutely prohibited from engaging the private practice of law?

A: No. He is only prohibited from “appearing” as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. The word appearance includes not only arguing a case before any such body but also filing a pleading on behalf of a client such as filing a motion, plea or answer. Neither is his name allowed to appear in such pleadings by itself or as part of a firm name under the signature of another qualified lawyer. (Ruben E. Agpalo, Administrative Law, Law on Public Officers and Election Law, 2005 ed., p. 410)

Q: Under the Local Government Code, can the members of Sanggunian engage in the practice of law?

A: GR: Yes.

XPNs:

1. Cannot appear as counsel in any civil case where in a local government unit or any office, agency or instrumentality of the Govt. is the adverse party;

2. Cannot appear as counsel in any criminal case wherein an officer or employee of the national or local Govt. is accused of an offense committed in relation to his office;

3. Shall not collect any fee for their appearance in administrative proceeding involving the LGU of which he is an official; and

4. May not use property and personnel of the Govt., except when defending the interest of the Govt.

Q: Under the Local Government Code, what are the prohibitions against the practice of other professions?

1. Local Chief Executives (governors, city and municipal mayors) are prohibited from practicing their profession

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2. Sanggunian members may practice their profession, engage in any occupation, or teach in schools except during session hours

3. Doctors of medicine may practice their profession even during official hours of work in cases of emergency provided that they do not derive monetary compensation therefrom.

Q: What are the prohibitions under RA 6713 or Code of Conduct and Ethical Standards for Public Officials and Employees?

1. Prohibition against financial and material interest - directly or indirectly having any financial or material interest in any transaction requiring the approval of their office.

2. Prohibition against outside employment and other activities related thereto - owning, controlling, managing or accepting employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office.

3. Engaging in the private practice of their profession

4. Recommending any person to any position in any private enterprise which has a regular or pending official transaction with their office.

Note: These prohibitions shall continue to apply for a period of one year after resignation, retirement, or separation from public office, except in the case of subparagraph (b) (2) above, but the professional concerned cannot practice his profession in connection with any matter before the office he used to be with, in which case the one-year prohibition shall likewise apply.

F. Powers and duties of public officers (Article XI)

Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.

Section 17. A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.

Section 18. Public officers and employees owe the State and this Constitution allegiance at all times and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law.

G. Rights of public officers

Right to:

1. Office

2. Compensation/salary

3. Appointment

4. Vacation and sick leave

5. Maternity leave

6. Retirement pay

7. Longevity pay

8. Pension

9. Self-organization

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10. Protection of temporary employees.

H. Liabilities of public officers

GR: A Public officer is not liable for injuries sustained by another due to official acts done within the scope of authority

XPNs:

1. Otherwise provided by law;

2. Statutory liability under the Civil Code (Articles 27, 32, & 34);

3. Presence of bad faith, malice, or negligence;

4. Liability on contracts entered into in excess or without authority;

5. Liability on tort if the public officer acted beyond the limits of authority and there is bad faith (United States of America v. Reyes, G.R. No. 79253, Mar. 1, 1993).

Note: Absent of any showing of bad faith or malice, every public official is entitled to the presumption of good faith as well as regularity in the performance or discharge of official duties. [Blaquera v. Alcala, G.R. No. 109406, Sept. 11, 1998

1. Preventive suspension and back salaries

Preventive suspension is not a penalty by itself; it is merely a measure of precaution so that the employee who is charged may be separated from the scene of his alleged misfeasance while the same is being investigated, to prevent him from using his position or office to influence prospective witnesses or tamper with the records which may be vital in the prosecution of the case against him. (Beja v. CA, G.R. No. 91749, Mar. 31, 1992)

It can be ordered even without a hearing because this is only preliminary step in an administrative investigation. (Alonzo v. Capulong, et al., G.R. No. 110590, May 10, 1995)

Note: When a public officer is charged with violation of the Anti-Graft and Corrupt Practices Act or R. A No. 3019, a pre-suspension hearing is required solely to determine the applicability of such law and for the accused be given a fair and adequate opportunity to challenge the validity of the criminal proceedings against him. This may be done through various pleadings. (Torres v. Garchitorena, G.R. No. 153666, Dec. 27, 2002)

Q: What are the periods for preventive suspension? Under what law are they imposable?

1. For administrative cases:

a. Civil Service Law – 90 days

b. Local Government Code (R.A. 7160) –

i. Sec.85: 60 days for appointive officials (suspension to be imposed by the local chief executive)

ii. Sec. 63: 60 or 90 days for elective officials

c. Ombudsman Act – 6 months

2. For criminal cases: Anti-Graft and Corrupt Practices Act (R.A. 3019) – 90 days by analogy.(Gonzaga vs. Sandiganbayan G.R. No. 96131 September 6, 1991)

Note: Service of preventive suspension will not be credited to the penalty of suspension after having been found guilty because they are of different character. If however the preventive suspension is indefinite wherein his term is about to expire and suspension is not lifted such will be considered unconstitutional for being violated of due process of law. (Layno, Sr. v. Sandiganbayan, G.R. No. L-65848, May 24, 1985)

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Q: Is a public officer entitled to back wages during his suspension pending appeal when the result of the decision from such appeal does not amount to complete exoneration but carries with it a certain number of days of suspension?

GR: No. Although entitled to reinstatement, he is not entitled to back wages during such suspension pending appeal. Only one who is completely exonerated, or merely reprimanded is entitled to such back wages. (Sec. of Education, etc. v. CA. G.R. No. 128559, Oct. 4, 2000)

XPN: 2 conditions before an employee may be entitled to back salaries:

1) The employee must be found innocent of the charges and

2) His suspension must be unjustified (Civil Service Commission v. Cruz GR No. 187858, Aug. 9,2011)

2. Illegal dismissal, reinstatement and back salaries

Q: What is a disciplinary action?

A: It is a proceeding which seeks the imposition of disciplinary sanction against, or the dismissal or suspension of, a public officer or employee on any of the grounds prescribed by law after due hearing. (Ruben E. Agpalo, Administrative Law, Law on Public Officers and Election Law, 2005 ed., p 416)

Q: Is appeal available in administrative disciplinary cases?

A: It depends on the penalty imposed:

1. Appeal is available if the penalty is:

a. Demotion

b. Dismissal, or

c. Suspension for more than 30 days or fine equivalent to more than 30 day salary (P.D. 807, Sec.37 par [a]).

Note: Decisions are initially appealable to the department heads and then to the CSC.

Only the respondent in the administrative disciplinary case, not the complainant, can appeal to the CSC from an adverse decision. The complainant in an administrative disciplinary case is only a witness, and as such, the latter cannot be considered as an aggrieved party entitled to appeal from an adverse decision. (Mendez v. Civil Service Commission, G. R. No. 95575, Dec. 23, 1991)

2. Appeal is NOT available if the penalty is:

a. Respondent is exonerated

b. Suspension for not more than 30 days

c. Fine not more than 30 day salary

d. Censure

e. Reprimand

f. Admonition

Note: In the second case, the decision becomes final and executory by express provision of law.

I. Immunity of public officers

Q: What is Immunity?

A: It is an exemption that a person or entity enjoys from the normal operation of the law such as a legal duty or liability, either criminal or civil.

Q: Are public officers immune from liabilities?

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A: It is well settled as a general rule that public officers of the government, in the performance of their public functions, are not liable to third persons, either for the misfeasances or positive wrongs, or for the nonfeasances, negligences, or omissions of duty of their official subordinates. (McCarthy vs. Aldanese, G.R. No. L-19715, March 5, 1923)

Q: What is the rationale behind official immunity?

A: It promotes fearless, vigorous, and effective administration of policies of government. The threat of suit could also deter competent people from accepting public office. (De Leon, Law on Public Officers 2008 ed.)

The immunity of public officers from liability for the non-feasances, negligence or omissions of duty of their official subordinates and even for the latter’s misfeasances or positive wrongs rests upon obvious considerations of public policy, the necessities of the public service and the perplexities and embarrassments of a contrary doctrine. (Alberto V. Reyes, Wilfredo B. Domo-Ong and Herminio C. Principio vs Rural Bank of San Miguel (Bulacan), INC., G.R. No. 154499, Feb. 27, 2004)

Q: When is this doctrine applicable?

A: This doctrine is applicable only whenever a public officer is in the performance of his public functions. On the other hand, this doctrine does not apply whenever a public officer acts outside the scope of his public functions.

Note: A public officer enjoys only qualified, NOT absolute immunity.

Q: Distinguish official immunity from State immunity.

A: Immunity of public officials is a more limited principle than governmental immunity, since its purpose is not directly to protect the sovereign, but rather to do so only collaterally, by protecting the public official in the performance of his government function, while, the doctrine of State immunity principally rested upon the tenuous ground that the king could do no wrong. It served to protect the impersonal body politic or government itself from tort liability. (The Law on Public Officers by Hector S. De Leon, 2008 ed, pp. 259-260)

J. De facto officers

A de facto officer is one who assumed office under the color of a known appointment or election but which appointment or election is void for reasons that the officer was not eligible, or that there was want of power in the electing body, or that there was some other defect or irregularity in its exercise, wherein such ineligibility, want of power, or defect being unknown to the public.

The effects of the acts of de facto officers are:

1. The lawful acts, so far as the rights of third persons are concerned are, if done within the scope and by the apparent authority of the office, are considered valid and binding

2. The de facto officer cannot benefit from his own status because public policy demands that unlawful assumption of public office be discouraged

Note: The general rule is that a de facto officer cannot claim salary and other compensations for services rendered by him as such. However, the officer may retain salaries collected by him for services rendered in good faith when there is no de jure officer claiming the office.

3. The de facto officer is subject to the same liabilities imposed on the de jure officer in the discharge of official duties, in addition to whatever special damages may be due from him because of his unlawful assumption of office

A challenge to a de facto officer is made:

1. The incumbency may not be challenged collaterally or in an action to which the de facto officer is not a party

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2. The challenge must be made in a direct proceeding where title to the office will be the principal issue

3. The authorized proceeding is quo warranto either by the Solicitor General in the name of the Republic or by any person claiming title to the office

K. Termination of official relation

1. Expiration of term or tenure

2. Reaching the age limit for retirement

3. Resignation

4. Recall

5. Removal

6. Abandonment

7. Acceptance of an incompatible office

8. Abolition of office

9. Prescription of the right to office

10. Impeachment

11. Death

12. Failure to assume office

13. Conviction of a crime

14. Filing for a certificate of candidacy

L. The Civil Service

1. Scope

The Civil Service Commission (CSC) is the central personnel agency of the Philippine government and is one of the three independent constitutional commissions with adjudicative responsibility in the national government structure. It is tasked to render final arbitration on disputes and personnel actions on Civil Service matters. The Commission is composed of a Chairman and 2 Commissioners appointed by the President for a term of 7 years without reappointment and may be removed only by impeachment (Cruz, Law on Public Officers)

The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including GOCCs with original charters. (Sec. 2(1), Art. IX-B, 1987 Constitution)

2. Appointments to the civil service

Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and, except to positions which are policy-determining, primarily confidential, or highly technical, by competitive examination. (Sec. 2(2), Art. IX-B, 1987 Constitution)

Q: On the basis of appointment, what are the two principal groups of position in the Civil Service?

1. Competitive positions – according to merit and fitness to be determined by competitive examinations, as far as practicable.

2. Non-competitive positions – do not have to take into account merit and fitness. No need for competitive examinations.

a. Policy-determining – tasked to formulate a method of action for the government or any of its subdivisions.

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b. Primarily confidential – duties are not merely clerical but devolve upon the head of an office, which, by reason of his numerous duties, delegates his duties to others, the performance of which requires skill, judgment, trust and confidence.

Note: The test used to determine confidentiality of a position is the Proximity rule. The occupant of a particular position could be considered a confidential employee if the predominant reason why he was chosen by the appointing authority was the latter’s belief that he can share a close intimate relationship with the occupant which ensures freedom of discussion without fear of embarrassment or misgivings of possible betrayals of personal trust and confidential matters of State. (De los Santos v. Mallare, G.R. No. L-3881, Aug. 31, 1950)

c. Highly technical – requires technical skill or training in the highest degree

Note: The test to determine whether the position is non-competitive is the nature of the responsibilities, not the description given to it. The Constitution does not exempt the above-given positions from the operation of the principle that “no officer or employee of the civil service shall be removed or suspended except for cause provided by law.”

Q: What is the nature of an appointment?

A: Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. (Luego v. CSC, G.R. No. L-69137, Aug. 5, 1986)

Q: What characterizes the career service and what are included therein?

A: Under Sec. 7, Chapter 2, Title 1, Book V of the Administrative Code of 1987, the career service is characterized by:

1. Entrance based on merit and fitness to be determined as far as practicable by competitive examination or based on highly technical qualification;

2. Opportunity for advancement to higher career position; and

3. Security of tenure.

Q: What are the positions included in career service?

1. Open career positions for appointment to which prior qualifications in an appropriate examination is required

2. Closed career positions which are scientific or highly technical in nature

3. Positions in the Career executive service

4. Career officers other than those in the career executive service, who are appointed by the President

5. Commissioned officers and enlisted men of the Armed Forces

6. Personnel of GOCCs, whether performing governmental or proprietary functions, who do not fall under the non-career service; and

7. Permanent laborers, whether skilled, semi-skilled, or unskilled (Sec. 5, P.D. No. 807).

Q: What are the positions included in non-career service?

1. Elective officials;

2. Department heads and other officials of Cabinet rank who hold positions at the pleasure of the President;

3. Chairmen and members of commissions and boards with fixed terms of office;

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Note: The personal and confidential staffs of the above three enumerated positions are considered included in non-career service.

4. Contractual personnel whose job requires special or technical skills not available in the employing agency, to be accomplished within a period not exceeding one year; and

5. Emergency and seasonal personnel.

Q: Who may be appointed in the civil service?

A: Whoever fulfills all the qualifications prescribed by law for a particular position may be appointed therein.

Note: The CSC cannot disapprove an appointment just because another person is better qualified, as long as the appointee is himself qualified. It cannot add qualifications other than those provided by law. (Cortez v. CSC, G.R. No. 92673, March 13, 1991)

Q: What does the security of tenure of officers or employees of the civil service guarantee?

A: Officers or employees of the Civil Service cannot be removed or suspended except for cause provided by law. It guarantees both procedural and substantive due process. (Sec. 32, R.A. 2260)

Q: What characterizes security of tenure?

A: It is the nature of the appointment that characterizes security of tenure and not the nature of one’s duties or functions. Where the appointment is permanent, it is protected by the security of tenure provision. But if it is temporary or in an acting capacity, which can be terminated at any time, the officer cannot invoke the security of tenure.

Note: The holder of a temporary appointment cannot claim a vested right to the station to which assigned, nor to security of tenure thereat. Thus, he may be reassigned to any place or station. (Teotico v. Agda, G.R. No. 87437, May 29, 1991)

Q: When does security of tenure attach?

A: It attaches once an appointment is issued and the moment the appointee assumes a position in the civil service under a completed appointment, he acquires a legal, not merely equitable, right (to the position) which is protected not only by statute, but also by the constitution, and cannot be taken away from him either by revocation of the appointment, or by removal, except for cause, and with previous notice and hearing. (Aquino v. CSC, G.R. No. 92403, April 22, 1992)

Q: What is legal cause?

A: It is a cause related to and affects the administration of office and must be substantial - directly affects the rights and interests of the public.

Q: Discuss the security of tenure for non-competitive positions.

1. Primarily confidential officers and employees hold office only for so long as confidence in them remains. If there is genuine loss of confidence, there is no removal, but merely the expiration of the term of office.

2. Non-career service officers and employees’ security of tenure is limited to a period specified by law, coterminous with the appointing authority or subject to his pleasure, or which is limited to the duration of a particular purpose.

3. Political appointees in Foreign Service possess tenure coterminous with that of the appointing authority or subject to his pleasure.

Note: One must be validly appointed to enjoy security of tenure. Thus, one who is not appointed by the proper appointing authority does not acquire security of tenure.

3. Personnel actions

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Any action denoting movement or progress of personnel in the civil service. (City Mayor Debulgado v. CSC, G.R. No. 111471, Sept. 26, 1994)

Personnel action includes the following:

1. Appointment through Certification – issued to a person who has been selected from a list of qualified person who has been selected from a list of qualified persons certified by the Commission from an appropriate register of eligible and who meets all other requirements of the position

2. Promotion

3. Transfer – a movement from one person to another which is of equivalent rank, level or salary without break in service involving issuance of an appointment.

4. Reinstatement – a person who has been permanently appointed to a position in the career service and who has, through no delinquency or misconduct, been separated therefrom, may be reinstated to a position in the same level for which he is qualified.

5. Reemployment – persons who have been appointed permanently to positions in the career service and who have been separated as result of reduction in force and or reorganization shall be entered in a list from which selection for reemployment shall be made.

6. Detail – a movement of an employee from one agency to another without issuance of an appointment and shall be allowed, only for a limited period in the case of employees occupying professional, technical and scientific positions.

7. Reassignment – an employee may be reassigned from one organizational unit to another in the same agency, provided that such reassignment shall not involve a reduction in rank, status or salary.

8. Demotion – a movement from one position to another involving the issuance of an appointment with diminution in duties, responsibilities, status or rank which may or may not involve reduction in salary. (Cruz, Law on Public Officers)

M. Accountability of public officers (Article XI)

1. Impeachment

Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

Section 3.

1. The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

2. A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution or endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

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3. A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.

4. In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

5. No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

6. The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.

7. Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.

8. The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.

Section 16. No loan, guaranty, or other form of financial accommodation for any business purpose may be granted, directly or indirectly, by any government-owned or controlled bank or financial institution to the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, and the Constitutional Commissions, the Ombudsman, or to any firm or entity in which they have controlling interest, during their tenure.

2. Ombudsman (Sections 5 to 14, Article XI of the 1987 Constitution, in relation to R.A. No. 6770, or otherwise known as "The Ombudsman Act of 1989.")

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

Section 6. The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the Ombudsman, according to the Civil Service Law.

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

During their tenure, they shall be subject to the same disqualifications and prohibitions as provided for in Section 2 of Article 1X-A of this Constitution.

Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be filled within three months after they occur.

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Section 10. The Ombudsman and his Deputies shall have the rank of Chairman and Members, respectively, of the Constitutional Commissions, and they shall receive the same salary which shall not be decreased during their term of office.

Section 11. The Ombudsman and his Deputies shall serve for a term of seven years without reappointment. They shall not be qualified to run for any office in the election immediately succeeding their cessation from office.

a. Functions

Section 7. The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution.

Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.

Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

2. Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.

3. Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.

4. Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action.

5. Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents.

6. Publicize matters covered by its investigation when circumstances so warrant and with due prudence.

7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency.

8. Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.

Section 14. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly released.

b. Judicial review in administrative proceedings

R.A. 6770 - The Ombudsman Act of 1989

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Section 19. Administrative Complaints. — The Ombudsman shall act on all complaints relating, but not limited to acts or omissions which:

(1) Are contrary to law or regulation;

(2) Are unreasonable, unfair, oppressive or discriminatory;

(3) Are inconsistent with the general course of an agency's functions, though in accordance with law;

(4) Proceed from a mistake of law or an arbitrary ascertainment of facts;

(5) Are in the exercise of discretionary powers but for an improper purpose; or

(6) Are otherwise irregular, immoral or devoid of justification.

Section 20. Exceptions. — The Office of the Ombudsman may not conduct the necessary investigation of any administrative act or omission complained of if it believes that:

(1) The complainant has an adequate remedy in another judicial or quasi-judicial body;

(2) The complaint pertains to a matter outside the jurisdiction of the Office of the Ombudsman;

(3) The complaint is trivial, frivolous, vexatious or made in bad faith;

(4) The complainant has no sufficient personal interest in the subject matter of the grievance; or

(5) The complaint was filed after one (1) year from the occurrence of the act or omission complained of.

c. Judicial review in penal proceedings

The authority granted to the Ombudsman in reviewing Penal Proceedings:

In the exercise of its investigative power, this Court has consistently held that courts will not interfere with the discretion of the fiscal or the Ombudsman to determine the specificity and adequacy of the averments of the offense charged. He may dismiss the complaint forthwith if he finds it to be insufficient in form and substance or if he otherwise finds no ground to continue with the inquiry; or he may proceed with the investigation of the complaint if, in his view, it is in due and proper form. (Ocampo v. Ombudsman, 225 SCRA 725, 1993)

Note: In Garcia-Rueda v. Pascasio, G.R. No. 118141, Sept. 5, 1997, the Court held that “while the Ombudsman has the full discretion to determine whether or not a criminal case is to be filed, the Court is not precluded from reviewing the Ombudsman’s action when there is grave abuse of discretion.”

3. Sandiganbayan

Section 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law.

4. Ill-gotten wealth

Section 15. The right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches, or estoppel.

R.A. 7080 – An Act Defining and Penalizing the Crime of Plunder

Section 1. d) Ill-gotten wealth means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:

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1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;

2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;

3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or -controlled corporations and their subsidiaries;

4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promise of future employment in any business enterprise or undertaking;

5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or

6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.

N. Term limits

Three (3) kinds of terms:

1. Term fixed by law

2. Term dependent on good behavior until reaching retirement age

3. Indefinite term, which terminates at the pleasure of the appointing authority. (Borres v. Court of Appeals, G.R. No. L-36845, Aug. 21, 1998; Ruben E. Agpalo, Administrative Law, Law on Public Officers and Election Law, 2005 ed., p. 304)

The concept of “hold-over”:

In the absence of an express or implied constitutional or statutory provision to the contrary, an officer is entitled to hold office until his successor is elected or appointed and has qualified. (Lecaroz v. Sandiganbayan, G.R. No. 130872, Mar. 25,1999)

The term limits of elective officers are:

1. President – 6 years, without reelection

2. Vice President – 6 years, with 1 reelection

3. Senators – 6 years, with 1 reelection

4. Representative – 3 years, with 2 reelections

5. Local Executive Officials – 3 years, with 2 reelections

Note: The term of office of barangay officials was fixed at three years under R.A. No. 9164 (19 March 2002). Further, Sec.43 (b) provides that "no local elective official shall serve for more than three (3) consecutive terms in the same position. The Court interpreted this sectionreferring to all localelective officials without exclusions or exceptions. (COMELEC v. Cruz, G.R. No. 186616, 19 Nov. 2009)

X. Administrative Law

A. General principles

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Administrative Law is a branch of public law fixing the organization and determines the competence of administrative authorities, and indicates the individual remedies for the violation of the rights.

The scope of Administrative Law:

1. Fixes the administrative operation and structure of the government

2. Executes or enforces that which is entrusted to administrative authorities (all those public officers and organs of the government charged with the amplification, application and execution of the law)

3. Governs public officers

4. Creates administrative officers

5. Provides the remedies to those aggrieved by these agencies

6. Governs Judicial Review

7. Includes rules, regulation, orders and decisions made by administrative authorities

8. Includes the body of judicial/doctrines on any of the above

The kinds of Administrative Law:

1. Statutes setting up administrative authorities.

2. Body of doctrines and decisions dealing with the creation, operation, and effect of determinations and regulations of such administrative authorities.

3. Rules, regulations, or orders of such administrative authorities in pursuance of the purposes, for which administrative authorities were created or endowed.

Example: Omnibus Rules Implementing the Labor Code, circulars of Central Monetary Authority

5. Determinations, decisions, and orders of such administrative authorities in the settlement of controversies arising in their particular field.

Example: Awards of NLRC with respect to money claims of employees

Classifications of Administrative Law:

As to Source

Law that controls administrative authorities

Law made by the administrative authorities

Constitution, statutes, judicial decisions, Executive Orders, Administrative Orders,etc.

General regulations and particular determinations; constitute under delegations of power embodied in statutory administrative law, and imposing and constantly expanding body of law.

As to Purpose

Adjective or Procedural Administrative Law

Substantive Administrative Law

Establishes the procedure which an agency must or may follow in the pursuit of its legal purpose.

Derived from same sources but contents are different in that the law establishes primary rights and duties.

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As to Applicability

General Administrative Law Special/ particular administrative law

Part that is of general nature and common to all, or most, admin agencies; chiefly but not exclusively procedural law.

Part that pertains to particular services; proceeds from the particular statute creating the individual agency

B. Administrative agencies

1. Definition

E.O. 292 - Administrative Code of 1987

Section 2. General Terms Defined. - Unless the specific words of the text, or the context as a whole, or a particular statute, shall require a different meaning:

(1) Government of the Republic of the Philippines refers to the corporate governmental entity through which the functions of government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government.

(2) National Government refers to the entire machinery of the central government, as distinguished from the different forms of local governments.

(3) Local Government refers to the political subdivisions established by or in accordance with the Constitution.

(4) Agency of the Government refers to any of the various units of the Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporations, or a local government or a distinct unit therein.

(5) National Agency refers to a unit of the National Government.

(6) Local Agency refers to a local government or a distinct unit therein.

(7) Department refers to an executive department created by law. For purposes of Book IV, this shall include any instrumentality, as herein defined, having or assigned the rank of a department, regardless of its name or designation.

(8) Bureau refers to any principal subdivision or unit of any department. For purposes of Book IV, this shall include any principal subdivision or unit of any instrumentality given or assigned the rank of a bureau, regardless of actual name or designation, as in the case of department-wide regional offices.

(9) Office refers, within the framework of governmental organization, to any major functional unit of a department or bureau including regional offices. It may also refer to any position held or occupied by individual persons, whose functions are defined by law or regulation.

(10) Instrumentality refers to any agency of the National Government, not integrated within the department framework vested within special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually through a charter. This term includes regulatory agencies, chartered institutions and government-owned or controlled corporations.

(11) Regulatory agency refers to any agency expressly vested with jurisdiction to regulate, administer or adjudicate matters affecting substantial rights and interests of private persons, the

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principal powers of which are exercised by a collective body, such as a commission, board or council.

(12) Chartered institution refers to any agency organized or operating under a special charter, and vested by law with functions relating to specific constitutional policies or objectives. This term includes the state universities and colleges and the monetary authority of the State.

(13) Government-owned or controlled corporation refers to any agency organized as a stock or non-stock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the Government directly or through its instrumentalities either wholly, or, where applicable as in the case of stock corporations, to the extent of at least fifty-one (51) per cent of its capital stock: Provided, That government-owned or controlled corporations may be further categorized by the Department of the Budget, the Civil Service Commission, and the Commission on Audit for purposes of the exercise and discharge of their respective powers, functions and responsibilities with respect to such corporations.

(14) "Officer" as distinguished from "clerk" or "employee", refers to a person whose duties, not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government. When used with reference to a person having authority to do a particular act or perform a particular function in the exercise of governmental power, "officer" includes any government employee, agent or body having authority to do the act or exercise that function.

(15) "Employee", when used with reference to a person in the public service, includes any person in the service of the government or any of its agencies, divisions, subdivisions or instrumentalities.

2. Manner of creation

1. Constitutional provision

2. Authority of law

3. Legislative enactment

3. Kinds

The common kinds of administrative agencies have been classified according to their purpose

1. Those created to function in situations wherein the government is offering some gratuity, grant, or special privilege

Examples: GSIS, SSS, PAO

2. Those set up to function in situations wherein the government is seeking to carry on certain functions of government

Examples: BIR, BOC, BOI

3. Those set up in situations wherein the government is performing some business service for the public

Examples: PNR, MWSS, NFA, NHA

4. Those set up to function in situations wherein the government is seeking to regulate businesses affected with public interest

Examples: Insurance Commission, LTFRB, NTC

5. Those set up to function in situations wherein the government is seeking under the police power to regulate private businesses and individuals

Examples: SEC, MTRCB

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6. Those agencies set up to function in situations wherein the government is seeking to adjust individual controversies because of some strong social policy involved

Examples: NLRC, ECC, SEC (Source: De Leon, Jr., Administrative Law: Text and Cases. 2010)

C. Powers of administrative agencies

1. Quasi-legislative (rule-making) power

a. Kinds of administrative rules and regulations

1. Supplementary or detailed legislation

2. Interpretative legislation

3. Contingent legislation

4. Procedural

5. Interpretative

6. Internal

7. Penal

b. Requisites for validity

1. The statute is complete in itself, setting forth the policy to be executed by the agency (Completeness test); and

2. Said statute fixes a standard, mapping out the boundaries of the agency’s authority to which it must conform (Sufficient standard test).

2. Quasi-judicial (adjudicatory) power

a. Administrative due process

Administrative proceeding is NOT bound by technical rules of procedure and evidence. The technical rules of procedure and of evidence prevailing in courts of law and equity are not controlling in administrative proceedings to free administrative boards or agencies from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent in judicial proceedings would not invalidate an administrative order.

Note: The rules of procedure of quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

The cardinal requirements of due process in administrative proceedings:

1. Right to a hearing which includes the right to present one’s case and submit evidence in support

2. The tribunal must consider the evidence presented

3. The decision must be supported by evidence

4. Such evidence must be substantial

5. The decision must be based on the evidence presented at the hearing or at least contained in the record, and disclosed to the parties affected

6. The tribunal or body of any of its judges must act on its own independent consideration of the law and facts of the controversy in arriving at a decision;

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7. The board or body should render decision that parties know the various issues involved and reason for such decision

8. Officer or tribunal must be vested with competent jurisdiction and must be impartial and honest. (Ang Tibay v. CIR, G.R. No. L-46496, Feb. 27, 1940)

Note: The essence of due process in administrative proceedings is the opportunity to explain one’s side or seek a reconsideration of the action or ruling complained of. As long as the parties are given the opportunity to be heard before judgment is rendered, the demands of due process are sufficiently met. What is offensive to due process is the denial of the opportunity to be heard. (Flores v. Montemayor, G.R. No. 170146, June 6, 2011)

The effect of non-observance of notice and hearing: As a rule, the non-observance of notice and hearing will invalidate the administrative proceedings. A failure to comply with the requirements may result in a failure to acquire jurisdiction.

Note: Right to notice may be waived.

Administrative due process does NOT always entail notice and hearing prior to the deprivation of a right. A hearing may occur after the deprivation. What the law prohibits is not the absence of previous notice but the absolute absence thereof and the lack of opportunity to be heard.

Note: There has been no denial of due process if any irregularity in the premature issuance of the assailed decision has been remedied by an order giving the petitions the right to participate in the hearing of the MR. The opportunity granted by, technically, allowing petitioners to finally be able to file their comment in the case, resolves the procedural irregularity previously inflicted upon petitioners. (Nasecore v. ERC, G.R. No. 190795, July 6, 2011)

When is the requirement of notice and hearing not necessary:

1. Urgency of immediate action

2. Tentativeness of administrative action

3. Grant or revocation of licenses or permits to operate certain businesses affecting public order or morals

4. Summary abatement of nuisance per se which affects safety of persons or property

5. Preventive suspension of public officer or employee facing administrative charges

6. Cancellation of a passport of a person sought for criminal prosecution

7. Summary proceedings of distraint and levy upon property of a delinquent taxpayer

8. Replacement of a temporary or acting appointee

9. Right was previously offered but not claimed

Due process clause does NOT encompass the right to be assisted by counsel during an administrative inquiry. The right to counsel which may not be waived, unless in writing and in the presence of counsel, as recognized by the Constitution, is a right of a suspect in a custodial investigation. It is not an absolute right and may, thus, be invoked or rejected in criminal proceeding and, with more reason, in an administrative inquiry. (Lumiqued v. Exevea, G.R No.. 117565, Nov. 18, 1997)

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Quantum of proof required in administrative proceedings: Only substantial evidence – that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.

Note: The right against self-incrimination may be invoked in administrative proceedings. (Cabal v. Kapunan, G.R. No. L-19052, December 29, 1962)

b. Administrative appeal and review

Concept of Administrative Appeal: It refers to the review by a higher agency of decisions rendered by an administrative agency, commenced by petition of an interested party.

Note: Under the 1987 Administrative Code, administrative appeals from a decision of an agency are taken to the Department Head, unless such appeal is governed by a special law.

Concept of administrative review: Administrative appeals are not the only way by which a decision of an administrative agency may be reviewed. A superior officer or department head may upon his or her own volition review a subordinate’s decision pursuant to the power of control.

Administrative reviews by a superior officer are, however, subject to the caveat that a final and executory decision is not included within the power of control, and hence can no longer be altered by administrative review.

The different types and kinds of administrative appeal and review:

1. Which inheres in the relation of administrative superior to administrative subordinate

2. Embraced in statutes which provide for determination to be made by a particular officer or body subject to appeal, review or redetermination by another officer or body in the same agency or in the same administrative system.

3. In which the statute makes or attempts to make a court a part of the administrative scheme by providing in terms or effect that the court, on review of the action of an administrative agency.

4. In which the statute provides that an order made by a division of a commission or board has the same force and effect as if made by the subject to a rehearing by the commission.

5. In which the statute provides for an appeal to an officer on an appeal to the head of the department or agency.

6. Embraced in statutes which provide for appeal at the highest level namely, the president. (De Leon, page 311)

c. Administrative res judicata

The doctrine of res judicata applies only to judicial or quasi-judicial proceedings and not to the exercise of purely administrative functions. Administrative proceedings are non-litigious and summary in nature; hence, res judicata does not apply.

The doctrine of res judicata does not apply to the following administrative cases:

1. Naturalization proceedings or those involving citizenship and immigration;

2. Labor relations

3. Family relations, personal status or condition, and capacity of persons

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Note: It is well settled that findings of fact of quasi-judicial agencies, such as the COA, are generally accorded respect and even finality by this Court, if supported by substantial evidence, in recognition of their expertise on the specific matters under their jurisdiction. (Reyna v. Commission on Audit, G.R. No. 167219, February 8, 2011)

3. Fact-finding, investigative, licensing and rate-fixing powers

GR: Findings of facts by administrative agencies are binding on the courts.

Exceptions:

1. Findings are vitiated by Fraud, imposition, or collusion

2. Procedure which led to factual findings is Irregular

3. Palpable errors are committed

4. Factual findings not supported by Evidence

5. Grave abuse of discretion, arbitrariness, or capriciousness is manifest

6. When expressly allowed by Statute; and

7. Error in appreciation of the pleadings and in the interpretation of the documentary evidence presented by the parties

Investigatory power is the power to inspect, secure, or require the disclosure of information by means of accounts, records, reports, statements and testimony of witnesses. This power is implied and not inherent in administrative agencies.

Licensing Power. The action of an administrative agency in granting or denying, or in suspending or revoking, a license, permit, franchise, or certificate of public convenience and necessity. (De Leon, Administrative Law, 2010)

Rate-Fixing Power is the power usually delegated by the legislature to administrative agencies for the latter to fix the rates which public utility companies may charge the public. (De Leon, Administrative Law, 2010)

D. Judicial recourse and review

1. Doctrine of primary administrative jurisdiction

Under the principle of primary jurisdiction, courts cannot or will not determine a controversy involving question within the jurisdiction of an administrative body prior to the decision of that question by the administrative tribunal where the:

1. question demands administrative determination requiring special knowledge, experience and services of the administrative tribunal;

2. question requires determination of technical and intricate issues of a fact;

3. uniformity of ruling is essential to comply with purposes of the regulatory statute administered

Note: In such instances, relief must first be obtained in administrative proceeding before a remedy will be supplied by the courts even though the matter is within the proper jurisdiction of a court. The judicial process is accordingly suspended pending referral of the claim to the administrative agency for its view.

The reasons for this doctrine is to:

1. Take full advantage of administrative expertness; and

2. Attain uniformity of application of regulatory laws which can be secured only if determination of the issue is left to the administrative body

The doctrine inapplicable when:

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1. By the court's determination, the legislature did not intend that the issues be left solely to the initial determination of the administrative body.

2. The issues involve purely questions of law.

3. Courts and administrative bodies have concurrent jurisdiction.

The court may motu proprio raise the issue of primary jurisdiction and its invocation cannot be waived by the failure of the parties to argue it, as the doctrine exists for the proper distribution of power between judicial and administrative bodies and not for the convenience of the parties. In such case the court may:

1. Suspend the judicial process pending referral of such issues to the administrative body for its review, or

2. If the parties would not be unfairly disadvantaged, dismiss the case without prejudice. (Euro-Med laboratories Phil. vs. Province of Batangas, G.R No. 148706, July 17, 2006)

2. Doctrine of exhaustion of administrative remedies

The doctrine of exhaustion of administrative remedies calls for resort first to the appropriate administrative authorities in the resolution of a controversy falling under their jurisdiction and must first be appealed to the administrative superiors up to the highest level before the same may be elevated to the courts of justice for review.

The premature invocation of court intervention is fatal to one’s cause of action. Exhaustion of administrative remedies is a prerequisite for judicial review; it is a condition precedent which must be complied with.

The reasons for exhausting administrative remedies are:

1. To enable the administrative superiors to correct the errors committed by their subordinates.

2. Courts should refrain from disturbing the findings of administrative bodies in deference to the doctrine of separation of powers.

3. Courts should not be saddled with the review of administrative cases.

4. Judicial review of administrative cases is usually effected through special civil actions which are available only if there is no other plain, speedy, and adequate remedy.

5. To avail of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies.

The exceptions to the application of the doctrine are:

1. Violation of Due process

2. When there is Estoppel on the part of the administrative agency concerned

3. When the issue involved is a purely Legal question

4. When there is Irreparable injury

5. When the administrative action is patently illegal amounting to Lack or excess of jurisdiction

6. When the respondent is a Department Secretary whose acts as an Alter ego of the President bears the implied and assumed approval of the latter

7. When the subject matter is a Private land case proceedings

8. When it would be Unreasonable

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9. When no administrative review is provided by Law

10. When the rule does not provide a Plain, speedy, and adequate remedy

11. When the issue of non-exhaustion of administrative remedies has been rendered Moot

12. When there are circumstances indicating the Urgency of judicial intervention

13. When it would amount to a Nullification of a claim; and

14. Where the rule of Qualified political agency applies. (Laguna CATV Network v. Maraan, G.R. No. 139492, Nov. 19, 2002)

The effect of non-exhaustion of administrative remedies” is that, it will deprive the complainant of a cause of action, which is a ground for a motion of dismiss.

Non-compliance with the doctrine of primary jurisdiction or doctrine of exhaustion of administrative remedies is not jurisdictional for the defect may be waived by a failure to assert the same at the earliest opportune time.

3. Doctrine of finality of administrative action

The doctrine of finality of administrative action provides that no resort to courts will be allowed unless administrative action has been completed and there is nothing left to be done in the administrative structure.

The instances where the doctrine finds no application are:

1. To grant relief to Preserve the status quo pending further action by the administrative agency

2. When it is Essential to the protection of the rights asserted from the injuries threatened

3. Where an administrative officer Assumes to act in violation of the Constitution and other laws

4. Where such order is not Reviewable in any other way and the complainant will suffer great and obvious damage if the order is carried out

5. To an Interlocutory order affecting the merits of a controversy

6. To an order made in excess of power, contrary to specific prohibition in the statute governing the agency and thus operating as a Deprivation of a right assured by the statute

7. When review is Allowed by statutory provisions.

Note: Appeal to the CA is allowed because a quasi-judicial agency is equivalent in rank with the RTC.(Rule 43, RoC)

XI. Election Law

BP Blg. 881 – Omnibus Election Code:

Section 3. Election and campaign periods. - Unless otherwise fixed in special cases by the Commission on Elections, which hereinafter shall be referred to as the Commission, the election period shall commence ninety days before the day of the election and shall end thirty days thereafter.

The period of campaign shall be as follows:

1. Presidential and Vice-Presidential Election - 90 days;

2. Election of Members of the Batasang Pambansa and Local Election - 45 days; and

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3. Barangay Election - 15 days.

The campaign periods shall not include the day before and the day of the election.

However, in case of special elections under Article VIII, Section 5, Subsection (2) of the Constitution, the campaign period shall be forty-five days.

A. Suffrage

Right of suffrage is the right to vote in the election of officers chosen by the people and in the determination of questions submitted to the people. It includes:

1. Election

2. Plebiscite

3. Initiative and

4. Referendum

The right of suffrage in NOT absolute. Needless to say, the exercise of the right of suffrage, as in the enjoyment of all other rights, is subject to existing substantive and procedural requirements embodied in our Constitution, statute books and other repositories of law. (AKBAYAN-YOUTH v. COMELEC, G.R. No. 147066, March 26, 2001)

B. Qualification and disqualification of voters

Article V, 1987 Constitution:

Section 1. Suffrage may be exercised by all citizens of the Philippines, not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote, for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.

Section 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad.

The Congress shall also design a procedure for the disabled and the illiterates to vote without the assistance of other persons. Until then, they shall be allowed to vote under existing laws and such rules as the Commission on Elections may promulgate to protect the secrecy of the ballot.

BP Blg. 881 – Omnibus Election Code:

Section 115. Necessity of Registration. - In order that a qualified elector may vote in any election, plebiscite or referendum, he must be registered in the permanent list of voters for the city or municipality in which he resides.

Section 117. Qualifications of a voter. - Every citizen of the Philippines, not otherwise disqualified by law, eighteen years of age or over, who shall have resided in the Philippines for one year and in the city or municipality wherein he proposes to vote for at least six months immediately preceding the election, may be registered as a voter.

Any person who transfers residence to another city, municipality or country solely by reason of his occupation; profession; employment in private or public service; educational activities; work in military or naval reservations; service in the army, navy or air force; the constabulary or national police force; or confinement or detention in government institutions in accordance with law, shall be deemed not to have lost his original residence.

Section 118. Disqualifications. - The following shall be disqualified from voting:

(a) Any person who has been sentenced by final judgment to suffer imprisonment for not less than one year, such disability not having been removed by plenary pardon or granted amnesty: Provided,

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however, That any person disqualified to vote under this paragraph shall automatically reacquire the right to vote upon expiration of five years after service of sentence.

(b) Any person who has been adjudged by final judgment by competent court or tribunal of having committed any crime involving disloyalty to the duly constituted government such as rebellion, sedition, violation of the anti-subversion and firearms laws, or any crime against national security, unless restored to his full civil and political rights in accordance with law: Provided, That he shall regain his right to vote automatically upon expiration of five years after service of sentence.

(c) Insane or incompetent persons as declared by competent authority.

C. Registration of voters

R.A. 8189 - The Voter’s Registration Act of 1996:

Section 8. System of Continuing Registration of Voters. The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election.

Section 9. Who may Register. All citizens of the Philippines not otherwise disqualified by law who are at least eighteen (18) years of age, and who shall have resided in the Philippines for at least one (1) year, and in the place wherein they propose to vote, for at least six (6) months immediately preceding the election, may register as a voter.

Any person who temporarily resides in another city, municipality or country solely by reason of his occupation, profession, employment in private or public service, educational activities, work in the military or naval reservations within the Philippines, service in the Armed Forces of the Philippines, the National Police Forces, or confinement or detention in government institutions in accordance with law, shall not be deemed to have lost his original residence.

Any person, who, on the day of registration may not have reached the required age or period of residence but, who, on the day of the election shall possess such qualifications, may register as a voter.

Section 14. Illiterate or Disabled Applicants. Any illiterate person may register with the assistance of the Election Officer or any member of an accredited citizen’s arms. The Election Officer shall place such illiterate person under oath, ask him the questions, and record the answers given in order to accomplish the application form in the presence of the majority of the members of the Board. The Election Officer or any member of an accredited citizen’s arm shall read the accomplished form aloud to the person assisted and ask him if the information given is true and correct The accomplished form shall be subscribed by the applicant in the presence of the Board by means of thumbmark or some other customary mark and it shall be subscribed and attested by the majority of the members of the Board.

The attestation shall state the name of the person assisted, the name of the Election Officer or the member of the accredited citizen’s arm who assisted the applicant, the fact that the Election Officer placed the applicant under oath, that the Election Officer or the member of the accredited citizen’s arm who assisted the applicant read the accomplished form to the person assisted, and that the person assisted affirmed its truth and accuracy, by placing his thumbmark or some other customary mark on the application in the presence of the Board.

The application for registration of a physically disabled person may be prepared by any relative within the fourth civil degree of consanguinity or affinity or by the Election Officer or any member of an accredited citizen’s arm using the data supplied by the applicant. The fact of illiteracy or disability shall be so indicated in the application.

R.A. 9189 - The Overseas Absentee Voting Act of 2003

Sec. 4. Coverage. – All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators and party-list representatives.

Sec. 5. Disqualifications. – The following shall be disqualified from voting under this Act:

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1. Those who have lost their Filipino citizenship in accordance with Philippine laws;

2. Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country;

3. Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than one (1) year, including those who have committed and been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, such disability not having been removed by plenary pardon or amnesty; Provided, however, That any person disqualified to vote under this subsection shall automatically acquire the right to vote upon expiration of five (5) years after service of sentence; Provided, further, That the Commission may take cognizance of final judgments issued by foreign courts or tribunals only on the basis of reciprocity and subject to the formalities and processes prescribed by the Rules of Court on execution of judgments;

4. An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be the cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia.

5. Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or foreign service establishments concerned, unless such competent authority subsequently certifies that such person is no longer insane or incompetent.

Sec. 6. Personal Overseas Absentee Registration. – Registration as an overseas absentee voter shall be done in person.

Qualified citizens of the Philippines abroad who failed to register under Republic Act No. 8189, otherwise known as the "The Voters Registration Act of 1996", may personally apply for registration with the Election Registration Board of the city or municipality where they were domiciled immediately prior to their departure from the Philippines, or with the representative of the Commission at the Philippine embassies, consulates and other foreign service establishments that have jurisdiction over the locality where they temporarily reside. Subject to the specific guidelines herein provided, the Commission is hereby authorized to prescribe additional procedures for overseas absentee registration pursuant to the provisions of Republic Act No. 8189, whenever applicable, taking into strict consideration the time zones and the various periods and processes herein provided for the proper implementation of this Act. The embassies, consulates and other foreign service establishments shall transmit within (5) days from receipt the accomplished registration forms to the Commission, after which the Commission shall coordinate with the Election Officer of the city or municipality of the applicant’s stated residence for verification, hearing and annotation in the permanent list of voters.

All applications for the May, 2004 elections shall be filed with the Commission not later than two hundred eighty (280) calendar days before the day of elections. For succeeding elections, the Commission shall provide for the period within which applications to register must be filed.

In the case of seafarers, the Commission shall provide a special mechanism for the time and manner of personal registration taking into consideration the nature of their work.

6.1. Upon receipt of the application for registration, the Election Officer shall immediately set the application for hearing, the notice of which shall be posted in a conspicuous place in the premises of the city or municipal building of the applicant’s stated residence for at least one (1) week before the date of the hearing. The Election Officer shall immediately furnish a copy of the application to the designated representatives of political parties and other accredited groups.

6.2. If no verified objection to the application is filed, the Election Officer shall immediately forward the application to the Election Registration Board, which shall decide on the application within one

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(1) week from the date of hearing without waiting for the quarterly meeting of the Board. The applicant shall be notified of the approval or disapproval of his/her application by registered mail.

6.3. In the event that an objection to the application is filed prior to or on the date of hearing, the Election Officer shall notify the applicant of said objection by registered mail, enclosing therein copies of affidavits or documents submitted in support of the objection filed with the said Election Officer, if any. The applicant shall have the right to file his counter-affidavit by registered mail, clearly stating therein facts and defenses sworn before any officer in the host country authorized to administer oaths.

6.4. The application shall be approved or disapproved based on the merits of the objection, counter-affidavit and documents submitted by the party objecting and those of the applicant.

6.5 A Certificate of Registration as an overseas absentee voter shall be issued by the Commission to all applicants whose applications have been approved, including those certified as registered voters. The Commission shall include the approved applications in the National Registry of Absentee Voters.

6.6. If the application has been approved, any interested party may file a petition for exclusion not later than two hundred ten (210) days before the day of elections with the proper municipal or metropolitan trial court. The petition shall be decided within fifteen (15) days after its filing on the basis of the documents submitted in connection therewith. Should the court fail to render a decision within the prescribed period, the ruling of the Election Registration Board shall be considered affirmed.

6.7. If the application has been disapproved, the applicant or his authorized representative shall, within a period of five (5) days from receipt of the notice of disapproval, have the right to file a petition for inclusion with the proper municipal or metropolitan trial court. The petition shall be decided within five (5) days after its filing on the basis of documents submitted in connection therewith.

Qualified citizens of the Philippines abroad, who have previously registered as voters pursuant to Republic Act No. 8189 shall apply for certification as absentee voters and for inclusion in the National Registry of Overseas Absentee Voters, with a corresponding annotation in the Certified Voters’ List.

Sec. 7. System of Continuing Registration. – The Commission shall ensure that the benefits of the system of continuing registration are extended to qualified overseas absentee voters. Towards this end, the Commission shall optimize the use of existing facilities, personnel and mechanisms of the various government agencies for purposes of data gathering, data validation, information dissemination and facilitation of the registration process.

Pre-departure programs, services and mechanisms offered and administered by the Department of Foreign Affairs, Department of Labor and Employment, Philippine Overseas Employment Administration, Overseas Workers’ Welfare Administration, Commission on Filipinos Overseas and other appropriate agencies of the government shall be utilized for purposes of supporting the overseas absentee registration and voting processes, subject to limitations imposed by law.

Sec. 17. Voting by Mail. –

17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not more than three (3) countries, subject to the approval of the Congressional Oversight Committee. Voting by mail may be allowed in countries that satisfy the following conditions:

a. Where the mailing system is fairly well-developed and secure to prevent the occasion of fraud;

b. Where there exists a technically established identification system that would preclude multiple or proxy voting; and,

c. Where the system of reception and custody of mailed ballots in the embassies, consulates and other foreign service establishments concerned are adequate and well-secured.

Thereafter, voting by mail in any country shall be allowed only upon review and approval of the Joint Congressional Oversight Committee.

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17.2. The overseas absentee voters shall send his/her accomplished ballot to the corresponding embassy, consular or other foreign service establishment that has jurisdiction over the country where he/she temporarily resides. He/She shall be entitled to cast his/her ballot at any time upon his/her receipt thereof, provided that the same Is received before the close of voting on the day of elections. The overseas absentee voter shall be instructed that his/her ballot shall not be counted if not transmitted in the special envelope furnished him/her.

17.3. Only mailed ballots received by the Philippine embassy, consulate and other foreign service establishments before the close of voting on the day of elections shall be counted in accordance with Section 18 hereof. All envelopes containing the ballots received by the embassies, consulates and other foreign service establishments after the prescribed period shall not be opened, and shall be cancelled and disposed of appropriately, with a corresponding report thereon submitted to the Commission not later than thirty (30) days from the day of elections.

D. Inclusion and exclusion proceedings

Court that has jurisdiction over inclusion and exclusion proceedings:

1. MTC - original and exclusive

2. RTC - appellate jurisdiction

3. SC - appellate jurisdiction over RTC on question of law

The following may file a petition in an inclusion or exclusion proceedings:

INCLUSION:

1. Any private person whose application was disapproved by the Election Registration Board

2. Those whose name was stricken out from the list of voters

3. COMELEC

EXCLUSION:

1. Any registered voter in the city or municipality

2. Representative of political party

3. Election officer

4. COMELEC (BP 881 Omnibus Election Code)

The period for filing a petition in an inclusion or exclusion proceeding:

INCLUSION: Any day except 105 days before regular election or 75 days before a special election. (COMELEC Reso. No. 8820)

EXCLUSION: Anytime except 100 days before a regular election or 65 days before a special election. (COMELEC Reso. No. 9021)

The Grounds for Inclusion and Exclusion Proceedings are:

INCLUSION:

1. Application for registration has been disapproved by the board

2. Name has been stricken out

EXCLUSION:

1. Not Qualified for possessing disqualification

2. Flying voters

3. Ghost voters

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Decisions in an inclusion or exclusion proceedings does NOT acquire the nature of res judicata. The proceedings for the exclusion or inclusion of voters in the list of voters are summary in character. Except for the right to remain in the list of voters or for being excluded therefrom for the particular election in relation to which the proceedings had been held, a decision in an exclusion or inclusion proceeding, even if final and unappealable, does not acquire the nature of res judicata. In this sense, it does not operate as a bar to any further action that a party may take concerning the subject passed upon in the proceeding. Thus, a decision in an exclusion proceeding would neither be conclusive on the voter’s political status, nor bar subsequent proceedings on his right to be registered as a voter in any other election.(Domino vs. COMELEC, G.R. No. 134015, July 19, 1999)

A voter can NOT be excluded for stating a fake address. The right to vote is a most precious political right, as well as a bounden duty of every citizen, enabling and requiring him to participate in the process of government to ensure that it can truly be said to derive its power solely from the consent of its constituents.

A citizen cannot be disenfranchised for the flimsiest of reasons. Only on the most serious grounds, and upon clear and convincing proof, may a citizen be deemed to have forfeited this precious heritage of freedom. (Asistio v. Aguirre, G.R. No. 191124, April 27, 2010)

E. Political parties

1. Jurisdiction of the COMELEC over political parties

2. Registration

R.A. 7941 - Party-List System Act:

Section 3. Definition of Terms.

(a) The party-list system is a mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions thereof registered with the Commission on Elections (COMELEC). Component parties or organizations of a coalition may participate independently provided the coalition of which they form part does not participate in the party-list system.

(b) A party means either a political party or a sectoral party or a coalition of parties.

(c) A political party refers to an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidates for public office.

It is a national party when its constituency is spread over the geographical territory of at least a majority of the regions. It is a regional party when its constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region.

(d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special interest and concerns of their sector,

(e) A sectoral organization refers to a group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics, employment, interests or concerns.

(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes.

Section 4. Manifestation to Participate in the Party-List System. Any party, organization, or coalition already registered with the Commission need not register anew. However, such party, organization, or coalition shall file with the Commission, not later than ninety (90) days before the election, a manifestation of its desire to participate in the party-list system.

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Section 5. Registration. Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching thereto its constitution, by-laws, platform or program of government, list of officers, coalition agreement and other relevant information as the COMELEC may require: Provided, That the sectors shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.

The COMELEC shall publish the petition in at least two (2) national newspapers of general circulation.

The COMELEC shall, after due notice and hearing, resolve the petition within fifteen (15) days from the date it was submitted for decision but in no case not later than sixty (60) days before election.

Section 6. Refusal and/or Cancellation of Registration. The COMELEC may, motu propio or upon verified complaint of any interested party, refuse or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds:

(1) It is a religious sect or denomination, organization or association, organized for religious purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes;

(5) It violates or fails to comply with laws, rules or regulations relating to elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered.

F. Candidacy

1. Qualifications of candidates

a. President and Vice-President (Article VII)

Section 2. No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election.

Section 3. There shall be a Vice-President who shall have the same qualifications and term of office and be elected with, and in the same manner, as the President. He may be removed from office in the same manner as the President.

The Vice-President may be appointed as a Member of the Cabinet. Such appointment requires no confirmation.

b. Local Officials

R.A. 7160 - Local Government Code of 1991

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Section 39. Qualifications. -

(a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect.

(b) Candidates for the position of governor, vice-governor, or member of the sangguniang panlalawigan, or mayor, vice-mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty-one (21) years of age on election day.

(c) Candidates for the position of mayor or vice-mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day.

(d) Candidates for the position of member of the sangguniang panlungsod or sangguniang bayan must be at least eighteen (18) years of age on election day.

(e) Candidates for the position of punong barangay or member of the sangguniang barangay must be at least eighteen (18) years of age on election day.

(f) Candidates for the sangguniang kabataan must be at least fifteen (15) years of age but not more than twenty-one (21) years of age on election day.

Section 40. Disqualifications. - The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;

(b) Those removed from office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or non-political cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble-minded.

2. Filing of certificates of candidacy

a. Effect of filing

BP Blg. 881 – Omnibus Election Code:

Section 66. Candidates holding appointive office or positions. - Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

b. Substitution of candidates

Comelec Resolution No. 9518:

SEC. 15. Substitution of Candidates in case of death, disqualification or withdrawal of another. - If after the last day for the filing of Certificates of Candidacy, an official candidate of a duly registered political party or coalition of political parties dies, withdraws or is disqualified for any cause, he may be substituted by a candidate belonging to, and nominated by, the same political party.  No substitute shall be allowed for any independent candidate.

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The substitute of a candidate who has withdrawn on or before December 21, 2012 may file his Certificate of Candidacy for the office affected not later than December 21, 2012, so that the name of the substitute will be reflected on the official ballots.

No substitution due to withdrawal shall be allowed after December 21, 2012.

The substitute for a candidate who died or is disqualified by final judgment, may file his Certificate of Candidacy up to mid-day of election day, provided that the substitute and the substituted have the same surnames.

If the death or disqualification should occur between the day before the election and mid-day of election day, the substitute candidate may file his Certificate of Candidacy with any Board of Election Inspectors in the political subdivision where he is a candidate, or in the case of a candidate for Senator, with the Law Department of the Commission on Elections in Manila, provided that the substitute and the substituted candidate have the same surnames.

BP Blg. 881 – Omnibus Election Code:

Section 73. Certificate of candidacy. - No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein.

A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the office concerned a written declaration under oath.

No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them.

However, before the expiration of the period for the filing of certificates of candidacy, the person who was filed more than one certificate of candidacy may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices.

The filing or withdrawal of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred.

Section 77. Candidates in case of death, disqualification or withdrawal of another. - If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission.

Section 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election.

R.A. 9006 – Fair Election Act of 2001:

Section 12. Substitution of Candidates. – In case of valid substitutions after the official ballots have been printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. For this purpose, the official ballots shall provide spaces where the voters may write the name of the substitute candidates if they are voting for the latter: Provided, however, That if the substitute candidate of the same family name, this provision shall not apply.

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c. Ministerial duty of COMELEC to receive certificate

BP Blg. 881 – Omnibus Election Code:

Section 76. Ministerial duty of receiving and acknowledging receipt. - The Commission, provincial election supervisor, election registrar or officer designated by the Commission or the board of election inspectors under the succeeding section shall have the ministerial duty to receive and acknowledge receipt of the certificate of candidacy.

d. Nuisance candidates

BP Blg. 881 – Omnibus Election Code:

Section 69. Nuisance candidates. - The Commission may motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate.

e. Petition to deny or cancel certificates of candidacy

BP Blg. 881 – Omnibus Election Code:

Section 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election.

f. Effect of disqualification

Rule 25, COMELEC Resolution 9523, 25 September 2012

Section 5. Effect of Petition if Unresolved Before Completion of Canvass. - If a Petition for Disqualification is unresolved by final judgment on the day of elections, the petitioner may file a motion with the Division or Commission En Banc where the case is pending, to suspend the proclamation of the candidate concerned, provided that the evidence for the grounds to disqualify is strong. For this purpose, at least three (3) days prior to any election, the Clerk of the Commission shall prepare a list of pending cases and furnish all Commissioners copies of said the list.

In the event that a candidate with an existing and pending Petition to disqualify is proclaimed winner, the Commission shall continue to resolve the said Petition.

g. Withdrawal of candidates

Comelec Resolution No. 9518:

SEC. 15. Substitution of Candidates in case of death, disqualification or withdrawal of another. - If after the last day for the filing of Certificates of Candidacy, an official candidate of a duly registered political party or coalition of political parties dies, withdraws or is disqualified for any cause, he may be substituted by a candidate belonging to, and nominated by, the same political party.  No substitute shall be allowed for any independent candidate.

The substitute of a candidate who has withdrawn on or before December 21, 2012 may file his Certificate of Candidacy for the office affected not later than December 21, 2012, so that the name of the substitute will be reflected on the official ballots.

No substitution due to withdrawal shall be allowed after December 21, 2012.

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The substitute for a candidate who died or is disqualified by final judgment, may file his Certificate of Candidacy up to mid-day of election day, provided that the substitute and the substituted have the same surnames.

If the death or disqualification should occur between the day before the election and mid-day of election day, the substitute candidate may file his Certificate of Candidacy with any Board of Election Inspectors in the political subdivision where he is a candidate, or in the case of a candidate for Senator, with the Law Department of the Commission on Elections in Manila, provided that the substitute and the substituted candidate have the same surnames.

G. Campaign

1. Premature campaigning

BP Blg. 881 – Omnibus Election Code:

Section 79. Definitions. - As used in this Code:

(a) The term "candidate" refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties;

(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as election campaign or partisan election activity.

Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article.

2. Prohibited contributions

BP Blg. 881 – Omnibus Election Code:

Section 94. Definitions. - As used in this Article:

(a) The term "contribution" includes a gift, donation, subscription, loan, advance or deposit of money or anything of value, or a contract, promise or agreement to contribute, whether or not legally enforceable, made for the purpose of influencing the results of the elections but shall not include services rendered without compensation by individuals volunteering a portion or all of their time in behalf of a candidate or political party. It shall also include the use of facilities voluntarily donated by other persons, the money value of which can be assessed based on the rates prevailing in the area.

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(b) The term "expenditure" includes the payment or delivery of money of anything of value, or a contract, promise or agreement to make an expenditure, for the purpose of influencing the results of the election. It shall also include the use of facilities personally owned by the candidate, the money value of the use of which can be assessed based on the rates prevailing in the area.

(c) The term "person" includes an individual, partnership, committee, association, corporation, and any other organization or group of persons.

Section 95. Prohibited contributions. - No contribution for purposes of partisan political activity shall be made directly or indirectly by any of the following:

(a) Public or private financial institutions: Provided, however, That nothing herein shall prevent the making of any loan to a candidate or political party by any such public or private financial institutions legally in the business of lending money, and that the loan is made in accordance with laws and regulations and in the ordinary course of business;

(b) Natural and juridical persons operating a public utility or in possession of or exploiting any natural resources of the nation;

(c) Natural and juridical persons who hold contracts or sub-contracts to supply the government or any of its divisions, subdivisions or instrumentalities, with goods or services or to perform construction or other works;

(d) Natural and juridical persons who have been granted franchises, incentives, exemptions, allocations or similar privileges or concessions by the government or any of its divisions, subdivisions or instrumentalities, including government-owned or controlled corporations;

(e) Natural and juridical persons who, within one year prior to the date of the election, have been granted loans or other accommodations in excess of P100,000 by the government or any of its divisions, subdivisions or instrumentalities including government-owned or controlled corporations;

(f) Educational institutions which have received grants of public funds amounting to no less than P100,000.00;

(g) Officials or employees in the Civil Service, or members of the Armed Forces of the Philippines; and

(h) Foreigners and foreign corporations.

It shall be unlawful for any person to solicit or receive any contribution from any of the persons or entities enumerated herein.

Section 96. Soliciting or receiving contributions from foreign sources. - It shall be unlawful for any person, including a political party or public or private entity to solicit or receive, directly or indirectly, any aid or contribution of whatever form or nature from any foreign national, government or entity for the purposes of influencing the results of the election.

Section 97. Prohibited raising of funds. - It shall be unlawful for any person to hold dances, lotteries, cockfights, games, boxing bouts, bingo, beauty contests, entertainments, or cinematographic, theatrical or other performances for the purpose of raising funds for an election campaign or for the support of any candidate from the commencement of the election period up to and including election day; or for any person or organization, whether civic or religious, directly or indirectly, to solicit and/or accept from any candidate for public office, or from his campaign manager, agent or representative, or any person acting in their behalf, any gift, food, transportation, contribution or donation in cash or in kind from the commencement of the election period up to and including election day; Provided, That normal and customary religious stipends, tithes, or collections on Sundays and/or other designated collection days, are excluded from this prohibition.

3. Lawful and prohibited election propaganda

Comelec Resolution No. 9615:

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SECTION 6. Lawful Election Propaganda. - Election propaganda, whether on television or cable television, radio, newspaper or any other medium, is hereby allowed for all parties and for all bona fide candidates seeking national and local elective positions subject to the limitation on authorized expenses of candidates and parties, observation of truth in advertising, and to the supervision and regulation by the Commission.

Lawful election propaganda shall include:

(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the size of which does not exceed eight and one-half inches (8 1/2") in width and fourteen inches (14") in length;

(b) Handwritten or printed letters urging voters to vote for or against any particular political party or candidate for public office;

(c) Posters made of cloth, paper, cardboard or any other material, whether framed or posted, with an area not exceeding two feet (2') by three feet (3');

(d) Streamers not exceeding three feet (3') by eight feet (8') in size displayed at the site and on the occasion of a public meeting or rally. Said streamers may be displayed five (5) days before the date of the meeting or rally and shall be removed within twenty-four (24) hours after said meeting or rally;

(e) Mobile units, vehicles motorcades of all types, whether engine or manpower driven or animal drawn, with or without sound systems or loud speakers and with or without lights;

(f) Paid advertisements in print or broadcast media subject to the requirements set forth in Section 9 hereof and Republic Act No. 9006;

(g) In headquarters or residences of candidates, lawful election paraphernalia may be displayed, but banners or streamers referred to in paragraph (d) above shall not be allowed;

(h) All other forms of election propaganda not prohibited by the Omnibus Election Code or these rules.

Parties and candidates are hereby encouraged to use recyclable and environment-friendly materials and avoid those that contain hazardous chemicals and substances in the production of their campaign and election propaganda. In local government units where local legislation governing the use of plastic and other similar materials exist, parties and candidates shall comply with the same.

SECTION 7. Prohibited Forms of Election Propaganda. - During the campaign period, it is unlawful:

(a) To print, publish, post or distribute any newspaper, newsletter, newsweekly, gazette or magazine advertising, pamphlet, leaflet, card, decal, bumper sticker, poster, comic book, circular, handbill, streamer, sample list of candidates or any published or printed political matter and to air or broadcast any election propaganda or political advertisement by television or radio or on the internet for or against a candidate or group of candidates to any public office, unless they bear and be identified by the reasonably legible, or audible words "political advertisement paid for," followed by the true and correct name and address of the candidate or party for whose benefit the election propaganda was printed or aired. It shall likewise be unlawful to publish, print or distribute said campaign materials unless they bear, and are identified by, the reasonably legible, or audible words "political advertisements paid by," followed by the true and correct name and address of the payor.

(b) To print, publish, broadcast or exhibit any such election propaganda donated or given free of charge by any person or publishing firm or broadcast entity to a candidate or party without the written acceptance by the said candidate or party and unless they bear and be identified by the words "printed free of charge," or "airtime for this broadcast was provided free of charge by", respectively, followed by the true and correct name and address of the said publishing firm or broadcast entity;

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(c) To show, display or exhibit publicly in a theater, television station, or any public forum any movie, cinematography or documentary portraying the life or biography of a candidate, or in which a character is portrayed by an actor or media personality who is himself a candidate;

(d) For any newspaper or publication, radio, television or cable television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or election propaganda purposes to any candidate or party in excess of the size, duration or frequency authorized by law or these rules;

(e) For any radio, television, cable television station, announcer or broadcaster to allow the scheduling of any program, or permit any sponsor to manifestly favor or oppose any candidate or party by unduly or repeatedly referring to, or unnecessarily mentioning his name or including therein said candidate or party; and

(f) To post, display or exhibit any election campaign or propaganda material outside of authorized common poster areas, in public places, or in private properties without the consent ot the owner thereof.

(g) Public places referred to in the previous subsection (f) include any of the following:

1. Electronic Announcement boards, such as LED display boards located along highways and streets, LCD TV displays posted on walls of public buildings, and other similar devices which are owned by local government units, government-owned and controlled corporations, or any agency or instrumentality of the Government;

2. Motor vehicles used as patrol cars, ambulances, and other similar purposes that are owned by local government units, government-owned and controlled corporations, and other agencies and instrumentalities of the Government, particularly those bearing red license plates;

3. Waiting sheds, sidewalks, street and lamp posts, electric posts and wires, traffic signages and other signboards erected on public property, pedestrian overpasses and underpasses, flyovers and underpasses, bridges, main thoroughfares, center islands of roads and highways;

4. Schools, shrines, barangay halls, health centers, public structures and buildings or any edifice thereof;

5. Public utility vehicles such as buses, jeepneys, trains, taxi cabs, ferries, pedicabs and tricycles, whether motorized or not;

6. Within the premises of public transport terminals, such as bus terminals, airports, seaports, docks, piers, train stations, and the like.

The violation of items 4 and 5 under subsection (g) shall be a cause for the revocation of the public utility franchise and will make the owner and/or operator of the transportation service and/or terminal liable for an election offense under Section 9 of Republic Act No. 9006 as implemented by Section 18 (n) of these Rules.

The printing press, printer, or publisher who prints, reproduces or publishes said campaign materials, and the broadcaster, station manager, owner of the radio or television station, or owner or administrator of any website who airs or shows the political advertisements, without the required data or in violation of these rules shall be criminally liable with the candidate and, if applicable, further suffer the penalties of suspension or revocation of franchise or permit in accordance with law.

4. Limitations on expenses

Comelec Resolution No. 9615:

SECTION 5. Authorized Expenses of Candidates and Parties. -

The aggregate amount that a candidate or party may spend for election campaign shall be as follows:

a. For candidates - Three pesos (P3.00) for every voter currently registered in the constituency where the candidate filed his certificate of candidacy;

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b. For other candidates without any political party and without support from any political party - Five pesos (P5.00) for every voter currently registered in the constituency where the candidate filed his certificate of candidacy.

c. For Political Parties and party-list groups - Five pesos (P5.00) for every voter currently registered in the constituency or constituencies where it has official candidates.

5. Statement of contributions and expenses

R.A. 7166 (1991)

Section 14. Statement of Contributions and Expenditures: Effect of Failure to File Statement. - Every candidate and treasurer of the political party shall, within thirty (30) days after the day of the election, file in duplicate with the offices of the Commission the full, true and itemized statement of all contributions and expenditures in connection with the election.

No person elected to any public offices shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required.

The same prohibition shall apply if the political party which nominated the winning candidate fails to file the statement required herein within the period prescribed by this Act.

Except candidates for elective barangay office, failure to file the statements or reports in connection with electoral contributions and expenditures are required herein shall constitute an administrative offense for which the offenders shall be liable to pay an administrative fine ranging from One thousand pesos (P1,000.00) to Thirty thousand pesos (P30,000.00), in the discretion of the Commission.

The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be enforceable by a writ of execution issued by the Commission against the properties of the offender.

It shall be the duty of every city or municipal election registrar to advise in writing, by personal delivery or registered mail, within five (5) days from the date of election all candidates residing in his jurisdiction to comply with their obligation to file their statements of contributions and expenditures.

For the commission of a second or subsequent offense under this section, the administrative fine shall be from Two thousand pesos (P2,000.00) to Sixty thousand pesos (P60,000.00), in the discretion of the Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office.

H. Board of Election Inspectors and Board of Canvassers

1. Composition

BP Blg. 881 – Omnibus Election Code:

Section 221. Board of canvassers. - There shall be a board of canvassers for each province, city, municipality, and district of Metropolitan Manila as follows:

(a) Provincial board of canvassers. - the provincial board of canvassers shall be composed of the provincial election supervisor or a senior lawyer in the regional office of the Commission, as chairman, the provincial fiscal, as vice-chairman, and the provincial superintendent of schools, and one representative from each of the ruling party and the dominant opposition political party in the constituency concerned entitled to be represented, as members.

(b) City board of canvassers. - the city board of canvassers shall be composed of the city election registrar or a lawyer of the Commission, as chairman, the city fiscal and the city superintendent of schools, and one representative from each of the ruling party and the dominant opposition political party entitled to be represented, as members.

(c) District board of canvassers of Metropolitan Manila - the district board of canvassers shall be composed of a lawyer of the Commission, as chairman, and a ranking fiscal in the district and the most senior district school supervisor in the district to be appointed upon consultation

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with the Ministry of Justice and the Ministry of Education, Culture and Sports, respectively, and one representative from each of the ruling party and the dominant opposition political party in the constituency concerned, as members.

(d) Municipal board of canvassers. - the municipal board of canvassers shall be composed of the election registrar or a representative of the Commission, as chairman, the municipal treasurer, and the district supervisor or in his absence any public school principal in the municipality and one representative from each of the ruling party and the dominant opposition political party entitled to be represented, as members.

(e) Board of canvassers for newly created political subdivisions - the Commission shall constitute a board of canvassers and appoint the members thereof for the first election in a newly created province, city or municipality in case the officials who shall act as members thereof have not yet assumed their duties and functions.

Section 227. Supervision and control over board of canvassers. - The Commission shall have direct control and supervision over the board of canvassers.

Any member of the board of canvassers may, at any time, be relieved for cause and substituted motu proprio by the Commission.

Section 229. Manner of delivery and transmittal of election returns. -

(a) For the city and municipal board of canvassers, the copy of the election returns of a polling place intended for the city or municipal board of canvassers, duly placed inside a sealed envelope signed and affixed with the imprint of the thumb of the right hand of all the members of the board of election inspectors, shall be personally delivered by the members of the board of election inspectors to the city or municipal board of canvassers under proper receipt to be signed by all the members thereof.

(b) For the provincial and district boards of canvassers in Metropolitan Manila, the copy of the election returns of a polling place intended for the provincial or district board of canvassers in the case of Metropolitan Manila, shall be personally delivered by the members of the board of election inspectors to the election registrar for transmittal to the proper board of canvassers under proper receipt to be signed by all the members thereof.

The election registrar concerned shall place all the returns intended for the board of canvassers inside a ballot box provided with three padlocks whose keys shall be kept as follows: one by the election registrar, another by the representative of the ruling party and the third by the representative of the dominant political opposition party.

For this purpose, the two political parties shall designate their representatives whose names shall be submitted to the election registrar concerned on or before the tenth day preceding the election. The three in possession of the keys shall personally transmit the ballot box, properly locked, containing the election returns to the board of canvassers. Watchers of political parties, coalition of political parties, and of organizations collectively authorized by the Commission to designate watchers shall have the right to accompany transmittal of the ballot boxes containing the election returns.

It shall be unlawful for any person to delay, obstruct, impede or prevent through force, violence, coercion, intimidation or by any means which vitiates consent, the transmittal of the election returns or to take away, abscond with, destroy, deface or mutilate or substitute the election returns or the envelope or the ballot box containing the election returns or to violate the right of the watchers.

The watchers of the political parties, coalition of political parties and the candidates shall have the right to accompany the members of the board of election inspectors or the election registrar in making the delivery to the boards of canvassers.

Section 230. Safekeeping of transmitted election returns. - The board of canvassers shall keep the ballot boxes containing the election returns in a safe and secure room before and after the canvass. The door to the room must be padlocked by three locks with the keys thereof kept as follows: one with the chairman, the other with the representative of the ruling party, and the

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other with the representative of the dominant opposition political party. The watchers of candidates, political parties, coalition of political parties and organization collectively authorized by the Commission to appoint watchers shall have the right to guard the room. Violation of this right shall constitute an election offense.

Section 231. Canvass by the board. - The board of canvassers shall meet not later than six o'clock in the afternoon of election day at the place designated by the Commission to receive the election returns and to immediately canvass those that may have already been received. It shall meet continuously from day to day until the canvass is completed, and may adjourn but only for the purpose of awaiting the other election returns from other polling places within its jurisdiction. Each time the board adjourns, it shall make a total of all the votes canvassed so far for each candidate for each office, furnishing the Commission in Manila by the fastest means of communication a certified copy thereof, and making available the data contained therein to the mass media and other interested parties. As soon as the other election returns are delivered, the board shall immediately resume canvassing until all the returns have been canvassed.

The respective board of canvassers shall prepare a certificate of canvass duly signed and affixed with the imprint of the thumb of the right hand of each member, supported by a statement of the votes received by each candidate in each polling place and, on the basis thereof, shall proclaim as elected the candidates who obtained the highest number of votes cast in the province, city, municipality or barangay. Failure to comply with this requirement shall constitute an election offense.

Subject to reasonable exceptions, the board of canvassers must complete their canvass within thirty-six hours in municipalities, forty-eight hours in cities and seventy-two hours in provinces. Violation hereof shall be an election offense punishable under Section 264 hereof.

With respect to the election for President and Vice-President, the provincial and city boards of canvassers shall prepare in quintuplicate a certificate of canvass supported by a statement of votes received by each candidate in each polling place and transmit the first copy thereof to the Speaker of the Batasang Pambansa. The second copy shall be transmitted to the Commission, the third copy shall be kept by the provincial election supervisor or city election registrar; the fourth and the fifth copies to each of the two accredited political parties.

Section 232. Persons not allowed inside the canvassing room. - It shall be unlawful for any officer or member of the Armed Forces of the Philippines, including the Philippine Constabulary, or the Integrated National Police or any peace officer or any armed or unarmed persons belonging to an extra-legal police agency, special forces, reaction forces, strike forces, home defense forces, barangay self-defense units, barangay tanod, or of any member of the security or police organizations of government ministries, commissions, councils, bureaus, offices, instrumentalities, or government-owned or controlled corporations or their subsidiaries or of any member of a privately owned or operated security, investigative, protective or intelligence agency performing identical or similar functions to enter the room where the canvassing of the election returns are held by the board of canvassers and within a radius of fifty meters from such room: Provided, however, That the board of canvassers by a majority vote, if it deems necessary, may make a call in writing for the detail of policemen or any peace officers for their protection or for the protection of the election documents and paraphernalia in the possession of the board, or for the maintenance of peace and order, in which case said policemen or peace officers, who shall be in proper uniform, shall stay outside the room within a radius of thirty meters near enough to be easily called by the board of canvassers at any time.

Section 233. When the election returns are delayed, lost or destroyed. - In case its copy of the election returns is missing, the board of canvassers shall, by messenger or otherwise, obtain such missing election returns from the board of election inspectors concerned, or if said returns have been lost or destroyed, the board of canvassers, upon prior authority of the Commission, may use any of the authentic copies of said election returns or a certified copy of said election returns issued by the Commission, and forthwith direct its representative to investigate the case and immediately report the matter to the Commission.

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The board of canvassers, notwithstanding the fact that not all the election returns have been received by it, may terminate the canvass and proclaim the candidates elected on the basis of the available election returns if the missing election returns will not affect the results of the election.

Section 234. Material defects in the election returns. - If it should clearly appear that some requisites in form or data had been omitted in the election returns, the board of canvassers shall call for all the members of the board of election inspectors concerned by the most expeditious means, for the same board to effect the correction: Provided, That in case of the omission in the election returns of the name of any candidate and/or his corresponding votes, the board of canvassers shall require the board of election inspectors concerned to complete the necessary data in the election returns and affix therein their initials: Provided, further, That if the votes omitted in the returns cannot be ascertained by other means except by recounting the ballots, the Commission, after satisfying itself that the identity and integrity of the ballot box have not been violated, shall order the board of election inspectors to open the ballot box, and, also after satisfying itself that the integrity of the ballots therein has been duly preserved, order the board of election inspectors to count the votes for the candidate whose votes have been omitted with notice thereof to all candidates for the position involved and thereafter complete the returns.

The right of a candidate to avail of this provision shall not be lost or affected by the fact that an election protest is subsequently filed by any of the candidates.

Section 235. When election returns appear to be tampered with or falsified. - If the election returns submitted to the board of canvassers appear to be tampered with, altered or falsified after they have left the hands of the board of election inspectors, or otherwise not authentic, or were prepared by the board of election inspectors under duress, force, intimidation, or prepared by persons other than the member of the board of election inspectors, the board of canvassers shall use the other copies of said election returns and, if necessary, the copy inside the ballot box which upon previous authority given by the Commission may be retrieved in accordance with Section 220 hereof. If the other copies of the returns are likewise tampered with, altered, falsified, not authentic, prepared under duress, force, intimidation, or prepared by persons other than the members of the board of election inspectors, the board of canvassers or any candidate affected shall bring the matter to the attention of the Commission. The Commission shall then, after giving notice to all candidates concerned and after satisfying itself that nothing in the ballot box indicate that its identity and integrity have been violated, order the opening of the ballot box and, likewise after satisfying itself that the integrity of the ballots therein has been duly preserved shall order the board of election inspectors to recount the votes of the candidates affected and prepare a new return which shall then be used by the board of canvassers as basis of the canvass.

Section 236. Discrepancies in election returns. - In case it appears to the board of canvassers that there exists discrepancies in the other authentic copies of the election returns from a polling place or discrepancies in the votes of any candidate in words and figures in the same return, and in either case the difference affects the results of the election, the Commission, upon motion of the board of canvassers or any candidate affected and after due notice to all candidates concerned, shall proceed summarily to determine whether the integrity of the ballot box had been preserved, and once satisfied thereof shall order the opening of the ballot box to recount the votes cast in the polling place solely for the purpose of determining the true result of the count of votes of the candidates concerned.

Section 237. When integrity of ballots is violated. - If upon the opening of the ballot box as ordered by the Commission under Sections 234, 235 and 236, hereof, it should appear that there are evidence or signs of replacement, tampering or violation of the integrity of the ballots, the Commission shall not recount the ballots but shall forthwith seal the ballot box and order its safekeeping.

Section 238. Canvass of remaining or unquestioned returns to continue. - In cases under Sections 233, 234, 235 and 236 hereof, the board of canvassers shall continue the canvass of the remaining or unquestioned election returns. If, after the canvass of all the said returns, it should be determined that the returns which have been set aside will affect the result of the election, no

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proclamation shall be made except upon orders of the Commission after due notice and hearing. Any proclamation made in violation hereof shall be null and void.

Section 239. Watchers. - Each candidate, political party or coalition of political parties shall be entitled to appoint one watcher in the board of canvassers. The watcher shall have the right to be present at, and take note of, all the proceedings of the board of canvassers, to read the election returns without touching them, to file a protest against any irregularity in the election returns submitted, and to obtain from the board of canvassers a resolution thereon.

Section 240. Election resulting in tie. - Whenever it shall appear from the canvass that two or more candidates have received an equal and highest number of votes, or in cases where two or more candidates are to be elected for the same position and two or more candidates received the same number of votes for the last place in the number to be elected, the board of canvassers, after recording this fact in its minutes, shall by resolution, upon five days notice to all the tied candidates, hold a special public meeting at which the board of canvassers shall proceed to the drawing of lots of the candidates who have tied and shall proclaim as elected the candidates who may be favored by luck, and the candidates so proclaimed shall have the right to assume office in the same manner as if he had been elected by plurality of vote. The board of canvassers shall forthwith make a certificate stating the name of the candidate who had been favored by luck and his proclamation on the basis thereof.

Nothing in this section shall be construed as depriving a candidate of his right to contest the election. 

2. Powers

I. Remedies and jurisdiction in election law

1. Petition not to give due course to or cancel a certificate of candidacy

BP Blg. 881 – Omnibus Election Code:

Section 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election.

2. Petition for disqualification

2013 COMELEC Rules of Procedure: Rule 25 - Disqualification of Candidates

Section 1. Grounds for Disqualification. - Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a candidate.

Section 2. Who May File Petition for Disqualification. - Any citizen of voting age, or duly registered political party, organization or coalition of political parties may file with the Law Department of the Commission a petition to disqualify a candidate on grounds provided by law.

Section 3. Period to File Petition. - The petition shall be filed any day after the last day for filing of certificates of candidacy but not later than the date of proclamation.

Section 4. Summary Proceeding. - The petition shall be heard summarily after due notice.

Section 5. Effect of Petition if Unresolved Before Completion of Canvass. - If the petition, for reasons beyond the control of the Commission, cannot be decided before the completion of the canvass, the votes cast for the respondent may be included in the counting and in the canvassing;

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however, if the evidence of guilt is strong, his proclamation shall be suspended notwithstanding the fact that he received the winning number of votes in such election.

3. Petition to declare failure of elections

BP Blg. 881 – Omnibus Election Code:

Section 45. Postponement or failure of election. - When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous causes of such nature that the holding of a free, orderly and honest election should become impossible in any barangay, the Commission, upon a verified petition of an interested party and after due notice and hearing at which the interested parties are given equal opportunity to be heard, shall postpone the election therein for such time as it may deem necessary.

If, on account of force majeure, violence, terrorism, fraud or other analogous causes, the election in any barangay has not been held on the date herein fixed or has been suspended before the hour fixed by law for the closing of the voting therein and such failure or suspension of election would affect the result of the election, the Commission, on the basis of a verified petition of an interested party, and after due notice and hearing, at which the interested parties are given equal opportunity to be heard shall call for the holding or continuation of the election within thirty days after it shall have verified and found that the cause or causes for which the election has been postponed or suspended have ceased to exist or upon petition of at least thirty percent of the registered voters in the barangay concerned.

When the conditions in these areas warrant, upon verification by the Commission, or upon petition of at least thirty percent of the registered voters in the barangay concerned, it shall order the holding of the barangay election which was postponed or suspended.

4. Pre-proclamation controversy

BP Blg. 881 – Omnibus Election Code:

Section 241. Definition. - A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns.

Section 242. Commission's exclusive jurisdiction of all pre-proclamation controversies. - The Commission shall have exclusive jurisdiction of all pre-proclamation controversies. It may motu proprio or upon written petition, and after due notice and hearing, order the partial or total suspension of the proclamation of any candidate-elect or annual partially or totally any proclamation, if one has been made, as the evidence shall warrant in accordance with the succeeding sections.

Section 243. Issues that may be raised in pre-proclamation controversy. - The following shall be proper issues that may be raised in a pre-proclamation controversy:

(a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code;

(c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and

(d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates.

Section 244. Contested composition or proceedings of the board. - When the composition or proceedings of the board of canvassers are contested, the board of canvassers shall, within twenty-four hours, make a ruling thereon with notice to the contestant who, if adversely affected,

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may appeal the matter to the Commission within five days after the ruling with proper notice to the board of canvassers. After due notice and hearing, the Commission shall decide the case within ten days from the filing thereof. During the pendency of the case, the board of canvassers shall suspend the canvass until the Commission orders the continuation or resumption thereof and citing their reasons or grounds therefor.

Section 245. Contested election returns. - Any candidate, political party or coalition of political parties, contesting the inclusion or exclusion in the canvass of any election returns on any of the grounds authorized under this article or in Sections 234, 235 and 236 of Article XIX shall submit their verbal objections to the chairman of the board of canvassers at the time the questioned returns is presented for inclusion or exclusion, which objections shall be noted in the minutes of the canvassing.

The board of canvassers upon receipt of any such objections shall automatically defer the canvass of the contested returns and shall proceed to canvass the rest of the returns which are not contested by any party.

Within twenty-four hours from and after the presentation of a verbal objection, the same shall be submitted in written form to the board of canvassers. Thereafter, the board of canvassers shall take up each contested return, consider the written objections thereto and summarily rule thereon. Said ruling shall be made oral initially and then reduced to writing by the board within twenty-four hours from the time the oral ruling is made.

Any party adversely affected by an oral ruling on its/his objection shall immediately state orally whether it/he intends to appeal said ruling. The said intent to appeal shall be stated in the minutes of the canvassing. If a party manifests its intent to appeal, the board of canvassers shall set aside the return and proceed to rule on the other contested returns. When all the contested returns have been ruled upon by it, the board of canvassers shall suspend the canvass and shall make an appropriate report to the Commission, copy furnished the parties.

The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party and any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election.

Section 246. Summary proceedings before the Commission. - All pre-proclamation controversies shall be heard summarily by the Commission after due notice and hearing, and its decisions shall be executory after the lapse of five days from receipt by the losing party of the decision of the Commission, unless restrained by the Supreme Court.

Section 247. Partial proclamation. - Notwithstanding the pendency of any pre-proclamation controversy, the Commission may, motu proprio or upon the filing of a verified petition and after due notice and hearing, order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy.

Section 248. Effect of filing petition to annual or to suspend the proclamation. - The filing with the Commission of a petition to annual or to suspend the proclamation of any candidate shall suspend the running of the period within which to file an election protest or quo warranto proceedings.

R.A. 9369 (2007) Automated Election Law:

SEC.15. Pre - proclamation Cases in Elections for President, Vice-President, Senator, and Member of the House of Representatives. - For purpose of the elections for president, vice - president, senator, and member of the House of Representatives, no pre-proclamation cases shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of election returns or the certificates of canvass, as the case may be, expect as provided for in Section 30 hereof. However, this does not preclude the authority of the appropriate canvassing body motu propio or upon written complaint of an interested person to correct manifest errors in the certificate of canvass or election before it.

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Question affecting the composition or proceedings of the board of canvassers may be initiated in the board or directly with the Commission in accordance with Section 19 hereof.

Any objection on the election return before the city or municipal board of canvassers, or the municipal certificates of canvass before the provincial board of canvassers or district board of canvassers in Metro Manila Area, shall specifically notice in the minutes of their respective proceeding.

5. Election protest

Post-election disputes are disputes which arise or are instituted after proclamation of winning candidates and which issues pertain to the casting and counting of votes (Election Protests), or to the eligibility or disloyalty of the winning candidates (Quo Warranto).

The nature of an election contest is a special summary proceeding the object of which is to expedite the settlement of controversies between candidates as to who received the majority of legal votes.

Note: Statutes providing for election contests are to be liberally construed to the end that the will of the people in the choice of public officers may not be defeated by mere technical objections. An election contest, unlike an ordinary action, is imbued with public interest since it involves not only the adjudication of the private interests of rival candidates but also the paramount need of dispelling the uncertainty which beclouds the real choice of the electorate with respect to who shall discharge the prerogatives of the office within their gift. Moreover, it is neither fair nor just to keep in office for an uncertain period one who’s right to it is under suspicion. It is imperative that his claim be immediately cleared not only for the benefit of the winner but for the sake of public interest, which can only be achieved by brushing aside technicalities of procedure which protract and delay the trial of an ordinary action. (Vialogo vs. COMELEC, G.R. No. 194143, Oct. 4, 2011)

Election protests are filed in:

1. COMELEC – sole judge of all contests relating to elections, returns, and qualifications of all elective regional, provincial and city officials. (reviewable by SC under Rule 64 using Rule 65.)

2. Presidential Electoral Tribunal – President and Vice President

3. SET – Senator

4. HRET – representative

5. RTC – over contests for municipal officials which may be appealed to COMELEC

6. MeTC or MTC – for barangay officials which may be appealed to COMELEC

The grounds for the filing of election protests are:

1. Fraud

2. Vote-buying

3. Terrorism

4. Presence of flying voters

5. Misreading or misappreciation of ballots

6. Disenfranchisement of voters

7. Unqualified members of board of election inspector

8. Other election irregularities.

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Note: Pendency of election protest is not sufficient basis to enjoin the protestee from assuming office.

A protestant has the right to withdraw his protest or drop polling places from his protest. The protestee, in such cases, has no cause to complain because the withdrawal is the exclusive prerogative of the protestant.

Election protest must be initiated by filing a protest that must contain the following allegations:

a. The protestant is a candidate who duly filed a certificate of candidacy and was voted for in the election.

b. The protestee has been proclaimed

c. The date of the proclamation. (Miro vs. COMELEC, G.R.No. L-57574, April 20, 1983)

6. Quo warranto

Quo warranto proceeding for an elective office is a proceeding to determine the right to the use or exercise of an office and to oust the holder from its enjoyment, if his claim is not well-founded or if he has forfeited his right to enjoy the privilege.

Unlike an election protest, which can only be filed by a candidate, any voter can file a petition for quo warranto.

Note: Election Protests and Quo warranto proceedings against a Congressman-elect, Senator-elect, President-elect and VP-elect are brought before the appropriate electoral tribunals created by the Constitution.

ELECTION PROTEST QUO WARRANTO

Who may file

By a losing candidate for the same office for which the winner filed his certificate of candidacy

By any voter who is a registered voter in the constituency where the winning candidate sought to be disqualified ran for office

Issue/s Who received the majority or plurality of the votes which were legally cast

Whether there were irregularities in the conduct of the election which affected its results

Whether the candidate who was proclaimed and elected should be disqualified because of ineligibility or disloyalty to the Philippines

J. Prosecution of election offenses

BP Blg. 881 – Omnibus Election Code:

Section 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted.

Section 267. Prescription. - Election offenses shall prescribe after five years from the date of their commission. If the discovery of the offense be made in an election contest proceedings, the period of

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prescription shall commence on the date on which the judgment in such proceedings becomes final and executory.

Section 261. Prohibited Acts. - The following shall be guilty of an election offense:

(a) Vote-buying and vote-selling. -

(1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection process of a political party.

(2) Any person, association, corporation, group or community who solicits or receives, directly or indirectly, any expenditure or promise of any office or employment, public or private, for any of the foregoing considerations.

(b) Conspiracy to bribe voters. - Two or more persons, whether candidates or not, who come to an agreement concerning the commission of any violation of paragraph (a) of this section and decide to commit it.

(c) Wagering upon result of election. - Any person who bets or wagers upon the outcome of, or any contingency connected with an election. Any money or thing of value or deposit of money or thing of value situated anywhere in the Philippines put as such bet or wager shall be forfeited to the government.

(d) Coercion of subordinates. -

(1) Any public officer, or any officer of any public or private corporation or association, or any head, superior, or administrator of any religious organization, or any employer or land-owner who coerces or intimidates or compels, or in any manner influence, directly or indirectly, any of his subordinates or members or parishioners or employees or house helpers, tenants, overseers, farm helpers, tillers, or lease holders to aid, campaign or vote for or against any candidate or any aspirant for the nomination or selection of candidates.

(2) Any public officer or any officer of any commercial, industrial, agricultural, economic or social enterprise or public or private corporation or association, or any head, superior or administrator of any religious organization, or any employer or landowner who dismisses or threatens to dismiss, punishes or threatens to punish be reducing his salary, wage or compensation, or by demotion, transfer, suspension, separation, excommunication, ejectment, or causing him annoyance in the performance of his job or in his membership, any subordinate member or affiliate, parishioner, employee or house helper, tenant, overseer, farm helper, tiller, or lease holder, for disobeying or not complying with any of the acts ordered by the former to aid, campaign or vote for or against any candidate, or any aspirant for the nomination or selection of candidates.

(e) Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion. - Any person who, directly or indirectly, threatens, intimidates or actually causes, inflicts or produces any violence, injury, punishment, damage, loss or disadvantage upon any person or persons or that of the immediate members of his family, his honor or property, or uses any fraudulent device or scheme to compel or induce the registration or refraining from registration of any voter, or the participation in a campaign or refraining or desistance from any campaign, or the casting of any vote or omission to vote, or any promise of such registration, campaign, vote, or omission therefrom.

(f) Coercion of election officials and employees. - Any person who, directly or indirectly, threatens, intimidates, terrorizes or coerces any election official or employee in the performance of his election functions or duties.

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(g) Appointment of new employees, creation of new position, promotion, or giving salary increases. - During the period of forty-five days before a regular election and thirty days before a special election,

(1) any head, official or appointing officer of a government office, agency or instrumentality, whether national or local, including government-owned or controlled corporations, who appoints or hires any new employee, whether provisional, temporary or casual, or creates and fills any new position, except upon prior authority of the Commission. The Commission shall not grant the authority sought unless, it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and that the position shall not be filled in a manner that may influence the election.

As an exception to the foregoing provisions, a new employee may be appointed in case of urgent need: Provided, however, That notice of the appointment shall be given to the Commission within three days from the date of the appointment. Any appointment or hiring in violation of this provision shall be null and void.

(2) Any government official who promotes, or gives any increase of salary or remuneration or privilege to any government official or employee, including those in government-owned or controlled corporations.

(h) Transfer of officers and employees in the civil service. - Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon prior approval of the Commission.

(i) Intervention of public officers and employees. - Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member or the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer.

(j) Undue influence. - It is unlawful for any person to promise any office or employment, public or private, or to make or offer to make an expenditure, directly or indirectly, or to cause an expenditure to be made to any person, association, corporation or entity, which may induce anyone or the public in general either to vote or withhold his vote, or to vote for or against any candidate in any election or any aspirant for the nomination or selection of an official candidate in a convention of a political party. It is likewise unlawful for any person, association, corporation or community, to solicit or receive, directly or indirectly, any expenditure or promise or any office, or employment, public or private, for any of the foregoing considerations.

(k) Unlawful electioneering. - It is unlawful to solicit votes or undertake any propaganda on the day of registration before the board of election inspectors and on the day of election, for or against any candidate or any political party within the polling place and with a radius of thirty meters thereof.

(l) Prohibition against dismissal of employees, laborers, or tenants. - No employee or laborer shall be dismissed, nor a tenant be ejected from his landholdings for refusing or failing to vote for any candidate of his employer or landowner. Any employee, laborer or tenant so dismissed or ejected shall be reinstated and the salary or wage of the employee or laborer, or the share of the harvest of the tenant, shall be restored to the aggrieved party upon application to the proper court.

(m) Appointment or use of special policemen, special agents, confidential agents or the like. - During the campaign period, on the day before and on election day, any appointing authority who appoints or any person who utilizes the services of special policemen, special agents, confidential agents or persons performing similar functions; persons previously appointed as special policemen, special agents, confidential agents or persons performing similar functions who continue acting as such, and those who fail to turn over their firearms, uniforms, insignias and other badges of authority to the proper officer who issued the same.

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At the start of the aforementioned period, the barangay chairman, municipal mayor, city mayor, provincial governor, or any appointing authority shall submit to the Commission a complete list of all special policemen, special agents, confidential agents or persons performing similar functions in the employ of their respective political subdivisions, with such particulars as the Commission may require.

(n) Illegal release of prisoners before and after election. - The Director of the Bureau of Prisons, any provincial warden, the keeper of the jail or the person or persons required by law to keep prisoners in their custody who illegally orders or allows any prisoner detained in the national penitentiary, or the provincial, city or municipal jail to leave the premises thereof sixty days before and thirty days after the election. The municipal or city warden, the provincial warden, the keeper of the jail or the person or persons required by law to keep prisoners in their custody shall post in three conspicuous public places a list of the prisoners or detention prisoners under their care. Detention prisoners must be categorized as such.

(o) Use of public funds, money deposited in trust, equipment, facilities owned or controlled by the government for an election campaign. - Any person who uses under any guise whatsoever, directly or indirectly, (1) public funds or money deposited with, or held in trust by, public financing institutions or by government offices, banks, or agencies; (2) any printing press, radio, or television station or audio-visual equipment operated by the Government or by its divisions, sub-divisions, agencies or instrumentalities, including government-owned or controlled corporations, or by the Armed Forces of the Philippines; or (3) any equipment, vehicle, facility, apparatus, or paraphernalia owned by the government or by its political subdivisions, agencies including government-owned or controlled corporations, or by the Armed Forces of the Philippines for any election campaign or for any partisan political activity.

(p) Deadly weapons. - Any person who carries any deadly weapon in the polling place and within a radius of one hundred meters thereof during the days and hours fixed by law for the registration of voters in the polling place, voting, counting of votes, or preparation of the election returns. However, in cases of affray, turmoil, or disorder, any peace officer or public officer authorized by the Commission to supervise the election is entitled to carry firearms or any other weapon for the purpose of preserving order and enforcing the law.

(q) Carrying firearms outside residence or place of business. - Any person who, although possessing a permit to carry firearms, carries any firearms outside his residence or place of business during the election period, unless authorized in writing by the Commission: Provided, That a motor vehicle, water or air craft shall not be considered a residence or place of business or extension hereof.

This prohibition shall not apply to cashiers and disbursing officers while in the performance of their duties or to persons who by nature of their official duties, profession, business or occupation habitually carry large sums of money or valuables.

(r) Use of armored land, water or air craft. - Any person who uses during the campaign period, on the day before and on election day, any armored land, water or air craft, provided with any temporary or permanent equipment or any other device or contraption for the mounting or installation of cannons, machine guns and other similar high caliber firearms, including military type tanks, half trucks, scout trucks, armored trucks, of any make or model, whether new, reconditioned, rebuilt or remodelled: Provided, That banking or financial institutions and all business firms may use not more than two armored vehicles strictly for, and limited to, the purpose of transporting cash, gold bullion or other valuables in connection with their business from and to their place of business, upon previous authority of the Commission.

(s) Wearing of uniforms and bearing arms. - During the campaign period, on the day before and on election day, any member of security or police organization of government agencies, commissions, councils, bureaus, offices, or government-owned or controlled corporations, or privately-owned or operated security, investigative, protective or intelligence agencies, who wears his uniform or uses his insignia, decorations or regalia, or bears arms outside the immediate vicinity of his place of work: Provided, That this prohibition shall not apply when said member is in pursuit of a person who has committed or is committing a crime in the premises he

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is guarding; or when escorting or providing security for the transport of payrolls, deposits, or other valuables; or when guarding the residence of private persons or when guarding private residences, buildings or offices: Provided, further, That in the last case prior written approval of the Commission shall be obtained. The Commission shall decide all applications for authority under this paragraph within fifteen days from the date of the filing of such application.

During the same period, and ending thirty days thereafter any member of the Armed Forces of the Philippines, special, forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who wears his uniform or bears arms outside the camp, garrison or barracks to which he is assigned or detailed or outside their homes, in case of members of para-military units, unless (1) the President of the Philippines shall have given previous authority therefor, and the Commission notified thereof in writing, or (2) the Commission authorizes him to do so, which authority it shall give only when necessary to assist it in maintaining free, orderly and honest elections, and only after notice and hearing. All personnel of the Armed Forces authorized by the President or the Commission to bear arms or wear their uniforms outside their camps and all police and peace officers shall bear their true name, rank and serial number, if any, stitched in block letters on a white background on the left breast of their uniform, in letters and numbers of a clearly legible design at least two centimeters tall, which shall at all times remain visible and uncovered.

During the election period, whenever the Commission finds it necessary for the promotion of free, orderly, honest and peaceful elections in a specific area, it shall confiscate or order the confiscation of firearms of any member or members of the Armed Forces of the Philippines, police forces, home defense forces, barangay self-defense units, and all other para-military units that now exist, or which may hereafter be organized, or any member or members of the security or police organization, government ministries, commissions, councils, bureaus, offices, instrumentalities, or government-owned or controlled corporations and other subsidiaries, or of any member or members of privately owned or operated security, investigative, protective or intelligence agencies performing identical or similar functions.

(t) Policemen and provincial guards acting as bodyguards or security guards. - During the campaign period, on the day before and on election day, any member of the city or municipal police force, any provincial or sub-provincial guard, any member of the Armed Forces of the Philippines, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who acts as bodyguard or security guard of any public official, candidate or any other person, and any of the latter who utilizes the services of the former as bodyguard or security guard: Provided, That, after due notice and hearing, when the life and security of a candidate is in jeopardy, the Commission is empowered to assign at the candidate's choice, any member of the Philippine Constabulary or the police force of any municipality within the province to act as his bodyguard or security guard in a number to be determined by the Commission but not to exceed three per candidate: Provided, however, That when the circumstances require immediate action, the Commission may issue a temporary order allowing the assignment of any member of the Philippine Constabulary or the local police force to act as bodyguard or security guard of the candidate, subject to confirmation or revocation.

(u) Organization or maintenance of reaction forces, strike forces, or other similar forces. - Any person who organizes or maintains a reaction force, strike force or similar force during the election period.

The heads of all reaction forces, strike forces, or similar forces shall, not later than forty-five days before the election, submit to the Commission a complete list of all members thereof with such particulars as the Commission may require.

(v) Prohibition against release, disbursement or expenditure of public funds. - Any public official or employee including barangay officials and those of government-owned or controlled corporations and their subsidiaries, who, during forty-five days before a regular election and thirty days before a special election, releases, disburses or expends any public funds for:

(1) Any and all kinds of public works, except the following:

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(a) Maintenance of existing and/or completed public works project: Provided, That not more than the average number of laborers or employees already employed therein during the six-month period immediately prior to the beginning of the forty-five day period before election day shall be permitted to work during such time: Provided, further, That no additional laborers shall be employed for maintenance work within the said period of forty-five days;

(b) Work undertaken by contract through public bidding held, or by negotiated contract awarded, before the forty-five day period before election: Provided, That work for the purpose of this section undertaken under the so-called "takay" or "paquiao" system shall not be considered as work by contract;

(c) Payment for the usual cost of preparation for working drawings, specifications, bills of materials, estimates, and other procedures preparatory to actual construction including the purchase of materials and equipment, and all incidental expenses for wages of watchmen and other laborers employed for such work in the central office and field storehouses before the beginning of such period: Provided, That the number of such laborers shall not be increased over the number hired when the project or projects were commenced; and

(d) Emergency work necessitated by the occurrence of a public calamity, but such work shall be limited to the restoration of the damaged facility.

No payment shall be made within five days before the date of election to laborers who have rendered services in projects or works except those falling under subparagraphs (a), (b), (c), and (d), of this paragraph.

This prohibition shall not apply to ongoing public works projects commenced before the campaign period or similar projects under foreign agreements. For purposes of this provision, it shall be the duty of the government officials or agencies concerned to report to the Commission the list of all such projects being undertaken by them.

(2) The Ministry of Social Services and Development and any other office in other ministries of the government performing functions similar to said ministry, except for salaries of personnel, and for such other routine and normal expenses, and for such other expenses as the Commission may authorize after due notice and hearing. Should a calamity or disaster occur, all releases normally or usually coursed through the said ministries and offices of other ministries shall be turned over to, and administered and disbursed by, the Philippine National Red Cross, subject to the supervision of the Commission on Audit or its representatives, and no candidate or his or her spouse or member of his family within the second civil degree of affinity or consanguinity shall participate, directly or indirectly, in the distribution of any relief or other goods to the victims of the calamity or disaster; and

(3) The Ministry of Human Settlements and any other office in any other ministry of the government performing functions similar to said ministry, except for salaries of personnel and for such other necessary administrative or other expenses as the Commission may authorize after due notice and hearing.

(w) Prohibition against construction of public works, delivery of materials for public works and issuance of treasury warrants and similar devices. - During the period of forty-five days preceding a regular election and thirty days before a special election, any person who (a) undertakes the construction of any public works, except for projects or works exempted in the preceding paragraph; or (b) issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds.

(x) Suspension of elective provincial, city, municipal or barangay officer. - The provisions of law to the contrary notwithstanding during the election period, any public official who suspends, without prior approval of the Commission, any elective provincial, city, municipal or barangay officer, unless said suspension will be for purposes of applying the "Anti-Graft and Corrupt Practices Act" in relation to the suspension and removal of elective officials; in which case the provisions of this section shall be inapplicable.

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(y) On Registration of Voters:

(1) Any person who, having all the qualifications and none of the disqualifications of a voter, fails without justifiable excuse to register as a voter in an election, plebiscite or referendum in which he is qualified to vote.

(2) Any person who knowingly makes any false or untruthful statement relative to any of the data or information required in the application for registration.

(3) Any person who deliberately imprints or causes the imprinting of blurred or indistinct fingerprints on any of the copies of the application for registration or on the voter's affidavit; or any person in charge of the registration of voters who deliberately or through negligence, causes or allows the imprinting of blurred or indistinct fingerprints on any of the aforementioned registration forms, or any person who tampers with the fingerprints in said registration records.

(4) Any member of the board of election inspectors who approves any application which on its face shows that the applicant does not possess all the qualifications prescribed by law for a voter; or who disapproves any application which on its face shows that the applicant possesses all such qualifications.

(5) Any person who, being a registered voter, registers anew without filing an application for cancellation of his previous registration.

(6) Any person who registers in substitution for another whether with or without the latter's knowledge or consent.

(7) Any person who tampers with or changes without authority any data or entry in any voter's application for registration.

(8) Any person who delays, hinders or obstruct another from registering.

(9) Any person who falsely certifies or identifies another as a bona fide resident of a particular place or locality for the purpose of securing the latter's registration as a voter.

(10) Any person who uses the voter's affidavit of another for the purpose of voting, whether or not he actually succeeds in voting.

(11) Any person who places, inserts or otherwise includes, as approved application for registration in the book of voters or in the provincial or national central files of registered voters, the application of any fictitious voter or any application that has not been approved; or removes from, or otherwise takes out of the book of voters or the provincial or national central files of registered voters any duly approved voter's application, except upon lawful order of the Commission, or of a competent court or after proper cancellation as provided in Sections 122, 123, 124 and 125 hereof.

(12) Any person who transfers or causes the transfer of the registration record of a voter to the book of voters of another polling place, unless said transfer was due to a change of address of the voter and the voter was duly notified of his new polling place.

(13) Any person who asks, demands, takes, accepts or possesses, directly or indirectly, the voter's affidavit of another, in order to induce the latter to withhold his vote, or to vote for or against any candidate in an election or any issue in a plebiscite or referendum. It shall be presumed prima facie that the asking, demanding, taking, accepting, or possessing is with such intent if done within the period beginning ten days before election day and ending ten days after election day, unless the voter's affidavit of another and the latter are both members of the same family.

(14) Any person who delivers, hands over, entrusts, gives, directly or indirectly his voter's affidavit to another in consideration of money or other benefit or promises thereof, or takes or accepts such voter's affidavit directly or indirectly, by giving or causing the giving of money or other benefit or making or causing the making of a promise thereof.

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(15) Any person who alters in any manner, tears, defaces, removes or destroys any certified list of voters.

(16) Any person who takes, carries or possesses any blank or unused registration form already issued to a city or municipality outside of said city or municipality except as otherwise provided in this Code or when directed by express order of the court or of the Commission.

(17) Any person who maliciously omits, tampers or transfers to another list the name of a registered voter from the official list of voters posted outside the polling place.

(z) On voting:

(1) Any person who fails to cast his vote without justifiable excuse.

(2) Any person who votes more than once in the same election, or who, not being a registered voter, votes in an election.

(3) Any person who votes in substitution for another whether with or without the latter's knowledge and/or consent.

(4) Any person who, not being illiterate or physically disabled, allows his ballot to be prepared by another, or any person who prepares the ballot of another who is not illiterate or physically disabled, with or without the latter's knowledge and/or consent.

(5) Any person who avails himself of any means of scheme to discover the contents of the ballot of a voter who is preparing or casting his vote or who has just voted.

(6) Any voter who, in the course of voting, uses a ballot other than the one given by the board of election inspectors or has in his possession more than one official ballot.

(7) Any person who places under arrest or detains a voter without lawful cause, or molests him in such a manner as to obstruct or prevent him from going to the polling place to cast his vote or from returning home after casting his vote, or to compel him to reveal how he voted.

(8) Any member of the board of election inspectors charged with the duty of reading the ballot during the counting of votes who deliberately omits to read the vote duly written on the ballot, or misreads the vote actually written thereon or reads the name of a candidate where no name is written on the ballot.

(9) Any member of the board of election inspectors charged with the duty of tallying

the votes in the tally board or sheet, election returns or other prescribed form who deliberately fails to record a vote therein or records erroneously the votes as read, or records a vote where no such vote has been read by the chairman.

(10) Any member of a board of election inspectors who has made possible the casting of more votes than there are registered voters.

(11) Any person who, for the purpose of disrupting or obstructing the election process or causing confusion among the voters, propagates false and alarming reports or information or transmits or circulates false orders, directives or messages regarding any matter relating to the printing of official ballots, the postponement of the election, the transfer of polling place or the general conduct of the election.

(12) Any person who, without legal authority, destroys, substitutes or takes away from the possession of those having legal custody thereof, or from the place where they are legally deposited, any election form or document or ballot box which contains official ballots or other documents used in the election.

(13) Any person having legal custody of the ballot box containing the official ballots used in the election who opens or destroys said box or removes or destroys its contents without or against the order of the Commission or who, through his negligence, enables any person to commit any of the aforementioned acts, or takes away said ballot box from his custody.

(14) Any member of the board of election inspectors who knowingly uses ballots other than the official ballots, except in those cases where the use of emergency ballots is authorized.

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(15) Any public official who neglects or fails to properly preserve or account for any ballot box, documents and forms received by him and kept under his custody.

(16) Any person who reveals the contents of the ballot of an illiterate or disabled voter whom he assisted in preparing a ballot.

(17) Any person who, without authority, transfers the location of a polling place.

(18) Any person who, without authority, prints or causes the printing of any ballot or election returns that appears as official ballots or election returns or who distributes or causes the same to be distributed for use in the election, whether or not they are actually used.

(19) Any person who, without authority, keeps, uses or carries out or causes to be kept, used or carried out, any official ballot or election returns or printed proof thereof, type-form mould, electro-type printing plates and any other plate, numbering machines and other printing paraphernalia being used in connection with the printing of official ballots or election returns.

(20) Any official or employee of any printing establishment or of the Commission or any member of the committee in charge of the printing of official ballots or election returns who causes official ballots or election returns to be printed in quantities exceeding those authorized by the Commission or who distributes, delivers, or in any manner disposes of or causes to be distributed, delivered, or disposed of, any official ballot or election returns to any person or persons not authorized by law or by the Commission to receive or keep official ballots or election returns or who sends or causes them to be sent to any place not designated by law or by the Commission.

(21) Any person who, through any act, means or device, violates the integrity of any official ballot or election returns before or after they are used in the election.

(22) Any person who removes, tears, defaces or destroys any certified list of candidates posted inside the voting booths during the hours of voting.

(23) Any person who holds or causes the holding of an election on any other day than that fixed by law or by the Commission, or stops any election being legally held.

(24) Any person who deliberately blurs his fingerprint in the voting record.

(aa) On Canvassing:

(1) Any chairman of the board of canvassers who fails to give due notice of the date, time and place of the meeting of said board to the candidates, political parties and/or members of the board.

(2) Any member of the board of canvassers who proceeds with the canvass of the votes and/or proclamation of any candidate which was suspended or annulled by the Commission.

(3) Any member of the board of canvassers who proceeds with the canvass of votes and/or proclamation of any candidate in the absence of quorum, or without giving due notice of the date, time and place of the meeting of the board to the candidates, political parties, and/or other members of the board.

(4) Any member of the board of canvassers who, without authority of the Commission, uses in the canvass of votes and/or proclamation of any candidate any document other than the official copy of the election returns.

(bb) Common to all boards of election inspectors and boards of canvassers:

(1) Any member of any board of election inspectors or board of canvassers who deliberately absents himself from the meetings of said body for the purpose of obstructing or delaying the performance of its duties or functions.

(2) Any member of any board of election inspectors or board of canvassers who, without justifiable reason, refuses to sign and certify any election form required by this Code or prescribed by the Commission although he was present during the meeting of the said body.

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(3) Any person who, being ineligible for appointment as member of any board of election inspectors or board of canvassers, accepts an appointment to said body, assumes office, and actually serves as a member thereof, or any of public officer or any person acting in his behalf who appoints such ineligible person knowing him to be ineligible.

(4) Any person who, in the presence or within the hearing of any board of election inspectors or board of canvassers during any of its meetings, conducts himself in such a disorderly manner as to interrupt or disrupt the work or proceedings to the end of preventing said body from performing its functions, either partly or totally.

(5) Any public official or person acting in his behalf who relieves any member of any board of election inspectors or board of canvassers or who changes or causes the change of the assignments of any member of said board of election inspectors or board of canvassers without authority of the Commission.

(cc) On candidacy and campaign:

(1) Any political party which holds political conventions or meetings to nominate its official candidates earlier that the period fixed in this Code.

(2) Any person who abstracts, destroys or cancels any certificate of candidacy duly filed and which has not been cancelled upon order of the Commission.

(3) Any person who misleads the board of election inspectors by submitting any false or spurious certificate of candidacy or document to the prejudice of a candidate.

(4) Any person who, being authorized to receive certificates of candidacy, receives any certificate of candidacy outside the period for filing the same and makes it appear that said certificate of candidacy was filed on time; or any person who, by means of fraud, threat, intimidation, terrorism or coercion, causes or compels the commission of said act.

(5) Any person who, by any device or means, jams, obstructs or interferes with a radio or television broadcast of any lawful political program.

(6) Any person who solicits votes or undertakes any propaganda, on the day of election, for or against any candidate or any political party within the polling place or within a radius of thirty meters thereof.

(dd) Other prohibitions:

(1) Any person who sells, furnishes, offers, buys, serves or takes intoxicating liquor on the days fixed by law for the registration of voters in the polling place, or on the day before the election or on election day: Provided, That hotels and other establishments duly certified by the Ministry of Tourism as tourist oriented and habitually in the business of catering to foreign tourists may be exempted for justifiable reasons upon prior authority of the Commission: Provided, further, That foreign tourists taking intoxicating liquor in said authorized hotels or establishments are exempted from the provisions of this subparagraph.

(2) Any person who opens in any polling place or within a radius of thirty meters thereof on election day and during the counting of votes, booths or stalls of any kind for the sale, dispensing or display of wares, merchandise or refreshments, whether solid or liquid, or for any other purposes.

(3) Any person who holds on election day, fairs, cockfights, boxing, horse races, jai-alai or any other similar sports.

(4) Refusal to carry election mail matter. - Any operator or employee of a public utility or transportation company operating under a certificate of public convenience, including government-owned or controlled postal service or its employees or deputized agents who refuse to carry official election mail matters free of charge during the election period. In addition to the penalty prescribed herein, such refusal shall constitute a ground for cancellation or revocation of certificate of public convenience or franchise.

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(5) Prohibition against discrimination in the sale of air time. - Any person who operates a radio or television station who without justifiable cause discriminates against any political party, coalition or aggroupment of parties or any candidate in the sale of air time. In addition to the penalty prescribed herein, such refusal shall constitute a ground for cancellation or revocation of the franchise.

XII. Local Governments (Article X)

Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.

Section 13. Local government units may group themselves, consolidate or coordinate their efforts, services, and resources for purposes commonly beneficial to them in accordance with law.

A. Public corporations

Local Government Code:

SEC. 15. Political and Corporate Nature of Local Government Units.

Every local government unit created or recognized under this Code is a body politic and corporate endowed with powers to be exercised by it in conformity with law. As such, it shall exercise powers as a political subdivision of the national government and as a corporate entity representing the inhabitants of its territory.

1. Concept

a. Distinguished from government-owned or controlled corporations

PUBLIC CORPORATION GOCCs

Purpose

Administration of local government

Performance of functions relating to public needs whether Governmental or Proprietary in nature

Who creates

By the state either by general or special act

By Congress or by incorporators

How created

By legislation (1) Original charters or special laws or

(2) general corporation law as a stock or non-stock corporation

2. Classifications

a. Quasi-corporations

Quasi-public corporations - Private corporations that render public service, supply public wants, or pursue other eleemosynary objectives. While purposely organized for the gain or benefit of its members, they are required by law to discharge functions for the public benefit. It must be stressed that a quasi-public corporation is a species of private corporations, but the qualifying factor is the type of service the former renders to the public: if it performs a public service, then it becomes a quasi-public corporation. (Philippine Society

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for the Prevention of Cruelty to Animals vs. Commission on Audit, G.R.169752, Sept. 25, 2007)

b. Municipal corporations

Municipal corporations – body politic and corporate constituted by the incorporation of inhabitants for purposes of local government. It is established by law partly as an agency of the State to assist in the civil government of the country, but chiefly to regulate and administer the local or internal affairs of the city, town or district which is incorporated. (Dillon, Municipal Corporations, Vol.1, pp. 58-59.

B. Municipal corporations

Local Government Code:

SEC. 13. Naming of Local Government Units and Public Places, Streets and Structures.

(a) The sangguniang panlalawigan may, in consultation with the Philippine Historical Commission (PHC), change the name of the following within its territorial jurisdiction:

(1) Component cities and municipalities, upon the recommendation of the sanggunian concerned;

(2) Provincial roads, avenues, boulevards, thorough-fares, and bridges;

(3) Public vocational or technical schools and other post-secondary and tertiary schools;

(4) Provincial hospitals, health centers, and other health facilities; and

(5) Any other public place or building owned by the provincial government.

(b) The sanggunian of highly urbanized cities and of component cities whose charters prohibit their voters from voting for provincial elective officials, hereinafter referred to in this Code as independent component cities, may, in consultation with the Philippine Historical Commission, change the name of the following within its territorial jurisdiction:

(1) City barangays, upon the recommendation of the sangguniang barangay concerned;

(2) City roads, avenues, boulevards, thoroughfares,and bridges;

(3) Public elementary, secondary and vocational or technical schools, community colleges and non-chartered colleges;

(4) City hospitals, health centers and other health facilities; and

(5) Any other public place or building owned by thecity government.

(c) The sanggunians of component cities and municipalities may, in consultation with the Philippine Historical Commission, change the name of the following within its territorial jurisdiction:

(1) city and municipal barangays, upon recommendation of the sangguniang barangay concerned;

(2) city, municipal and barangay roads, avenues, boulevards, thoroughfares, and bridges;

(3) city and municipal public elementary, secondary and vocational or technical schools, post-secondary and other tertiary schools;

(4) city and municipal hospitals, health centers and other health facilities; and (5)Any other public place or building owned by the municipal government.

 (d) None of the foregoing local government units, institutions, places, or buildings shall be named after a living person, nor may a change of name be made unless for a justifiable reason and, in any case, not oftener than once every ten (10) years. The name of a local government unit or a public place, street or structure with historical, cultural, or ethnic significance shall not be changed, unless by a unanimous vote of the sanggunian concerned and in consultation with the PHC.

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 (e) A change of name of a public school shall be made only upon the recommendation of the local school board concerned.

 (f) A change of name of public hospitals, health centers, and other health facilities shall be made only upon the recommendation of the local health board concerned.

 (g) The change of name of anylocal government unit shall be effective only upon ratification in a plebiscite conducted for the purpose in the political unit directly affected. In any change of name, the Office of the President, the representative of the legislative district concerned, and the Bureau of Posts shall be notified.

SEC. 14. Beginning of Corporate Existence. - When a new local government unit is created, its corporate existence shall commence upon the election and qualification of its chief executive and a majority of the members of its sanggunian, unless some other time is fixed therefor by the law or ordinance creating it.

SEC. 15. Political and Corporate Nature of Local Government Units. - Every local government unit created or recognized under this Code is a body politic and corporate endowed with powers to be exercised by it in conformity with law. As such, it shall exercise powers as a political subdivision of the national government and as a corporate entity representing the inhabitants of its territory.

1. Elements

1. Legal creation or incorporation;

2. Corporate name;

The sangguniang panlalawigan may, in consultation with the Philippine Historical Institute, change the name of component cities and municipalities, upon the recommendation of the sanggunian concerned; provided that the same shall be conducted for the purpose in the political unit directly affected. (Sec. 13, RA 7160)

3. Inhabitants; and

4. Territory (Nachura, 2006, p.553).

2. Nature and functions

Every LGU created or organized under the LGC is a body politic and corporate endowed with powers to be exercised by it in conformity with law. As such, it shall exercise powers as a political subdivision of the National Government and as a corporate entity representing the inhabitants of its territory (Sec. 15, RA.A 7160).

Accordingly, it has dual functions, namely:

a.) Public or governmental – it acts as an agent of the State or the government of the territory and the inhabitants.

b.) Private or proprietary – it acts as an agent of the community in the administration of local affairs. As such, it acts as a separate entity, for its own purposes, and not as a subdivision of the State (Bara Lidasan v. Comelec, 21 SCRA 496).

3. Requisites for creation, conversion, division, merger or dissolution

Section 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

Section 11. The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executive and legislative assemblies. The jurisdiction of the

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metropolitan authority that will thereby be created shall be limited to basic services requiring coordination.

Section 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials.

Local Government Code:

SEC. 6. Authority to Create Local Government Units. - A local government unit may be created, divided, merged, abolished, or its boundaries substantially altered either by law enacted by Congress in the case of a province, city, municipality, or any other political subdivision, or by ordinance passed by the sangguniang panlalawigan or sangguniang panlungsod concerned in the case of a barangay located within its territorial jurisdiction, subject to such limitations and requirements prescribed in this Code.

SEC. 7. Creation and Conversion. - As a general rule, the creation of alocal government unit or its conversion from one level to another level shall be based on verifiable indicators of viability and projected capacity to provide services, to wit:

(a) Income. - It must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensu- rate with the size of its population, as expected of the local government unit concerned;

(b) Population. - It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and

(c) Land Area. - It must be contiguous, unless it comprises two or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its populace. Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the NationalStatistics Office (NSO), and the Lands Management Bureau(LMB) of the Department of Environment and Natural Resources(DENR).

SEC. 8. Division and Merger. - Division and merger of existinglocal government units shall comply with the same requirements herein prescribed for their creation: Provided, however, That such division shall not reduce the income, population, or land area of the local government unit or units concerned to less than the minimum requirements prescribed in this Code: Provided, further, That the income classification of the original local government unit or units shall not fall below its current income classification prior to such division. The income classification of local government units shall be updated within six (6) months from the effectivity of this Code to reflect the changes in their financial position resulting from the increased revenues as provided herein.

SEC. 9. Abolition of Local Government Units. - A local government unit may be abolished when its income, population, or land area has been irreversibly reduced to less than the minimum standards prescribed for its creation under Book III of this Code, as certified by the national agencies mentioned in Section 17 hereof to Congress or to the sanggunian concerned, as the case may be.

 The law or ordinance abolishing a local government unit shall specify the province, city, municipality, or barangay with which thelocal government unitsought to be abolished will be incorporated or merged.

SEC. 10. Plebiscite Requirement. - No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by the Commission on Elections (Comelec) within one hundred twenty (120) days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date.

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SEC. 11. Selection and Transfer of Local Government Site, Offices and Facilities. –

(a) The law or ordinance creating or merging local government units shall specify the seat of government from where governmental and corporate services shall be delivered. In selecting said site, factors relating to geographical centrality, accessibility, availability of transportation and communication facilities, drainage and sanitation, development and economic progress, and other relevant considerations shall be taken into account.

(b)When conditions and developments in the local government unit concerned have significantly changed subsequent to the establishment of the seat of government, its sanggunian may, after public hearing and by a vote of two-thirds (2/3) of all its members, transfer the same to a site better suited to its needs. Provided, however, That no such transfer shall be made outside the territorial boundaries of the local government unit concerned.

The old site, together with the improvements thereon, may be disposed of by sale or lease or converted to such other use as the sanggunian concerned may deem beneficial to the local government unit concerned and its inhabitants.

(c) Local government offices and facilities shall not be transferred, relocated, or converted to other uses unless public hearings are first conducted for the purpose and the concurrence of the majority of all the members of the sanggunian concerned is obtained.

C. Principles of local autonomy

Section 2. The territorial and political subdivisions shall enjoy local autonomy.

Section 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units.

Section 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.

Section 14. The President shall provide for regional development councils or other similar bodies composed of local government officials, regional heads of departments and other government offices, and representatives from non-governmental organizations within the regions for purposes of administrative decentralization to strengthen the autonomy of the units therein and to accelerate the economic and social growth and development of the units in the region.

Local Government Code:

Section 17. Basic Services and Facilities. -

(e) National agencies or offices concerned shall devolve to local government units the responsibility for the provision of basic services and facilities enumerated in this Section within six (6) months after the effectivity of this Code.

As used in this Code, the term "devolution" refers to the act by which the national government confers power and authority upon the various local government units to perform specific functions and responsibilities.

D. Powers of local government units (LGUs)

1. Police power (general welfare clause)

Local Government Code:

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SEC. 16. General Welfare. - Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance  the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological  capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

2. Eminent domain

Local Government Code:

SEC. 19. Eminent Domain. - A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however,  That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted: Provided, further, That the local government unit may  immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for the expropriated  property shall be determined by the proper court, based on the fair market value at the time of the taking of the property.

3. Taxing power

Section 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments.

Section 6. Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them.

Section 7. Local governments shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas, in the manner provided by law, including sharing the same with the inhabitants by way of direct benefits.

Local Government Code:

Section 130. Fundamental Principles. - The following fundamental principles shall govern the exercise of the taxing and other revenue-raising powers of local government units:

(a) Taxation shall be uniform in each local government unit;

(b) Taxes, fees, charges and other impositions shall:

(1) be equitable and based as far as practicable on the taxpayer's ability to pay;

(2) be levied and collected only for public purposes;

(3) not be unjust, excessive, oppressive, or confiscatory;

(4) not be contrary to law, public policy, national economic policy, or in the restraint of trade;

(c) The collection of local taxes, fees, charges and other impositions shall in no case be let to any private person;

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(d) The revenue collected pursuant to the provisions of this Code shall inure solely to the benefit of, and be subject to the disposition by, the local government unit levying the tax, fee, charge or other imposition unless otherwise specifically provided herein; and,

(e) Each local government unit shall, as far as practicable, evolve a progressive system of taxation.

Section 187. Procedure for Approval and Effectivity of Tax, Ordinances and Revenue Measures; Mandatory Public Hearings. - The procedure for approval of local tax ordinances and revenue measures shall be in accordance with the provisions of this Code: Provided, That public hearings shall be conducted for the purpose prior to the enactment thereof: Provided, further, That any question on the constitutionality or legality of tax ordinances or revenue measures may be raised on appeal within thirty (30) days from the effectivity thereof to the Secretary of Justice who shall render a decision within sixty (60) days from the date of receipt of the appeal: Provided, however, That such appeal shall not have the effect of suspending the effectivity of the ordinance and the accrual and payment of the tax, fee, or charge levied therein: Provided, finally, That within thirty (30) days after receipt of the decision or the lapse of the sixty-day period without the Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings with a court of competent jurisdiction.

Section 168. Surcharges and Penalties on Unpaid Taxes, Fees, or Charges. - The sanggunian may impose a surcharge not exceeding twenty-five (25%) of the amount of taxes, fees or charges not paid on time and an interest at the rate not exceeding two percent (2%) per month of the unpaid taxes, fees or charges including surcharges, until such amount is fully paid but in no case shall the total thirty-six (36%) months.

Section 173. Local Government's Lien. - Local taxes, fees, charges and other revenues constitute a lien, superior to all liens, charges or encumbrances in favor of any person, enforceable by appropriate administrative or judicial action, not only upon any property or rights therein which may be subject to the lien but also upon property used in business, occupation, practice of profession or calling, or exercise of privilege with respect to which the lien is imposed. The lien may only be extinguished upon full payment of the delinquent local taxes fees and charges including related surcharges and interest.

Section 174. Civil Remedies. - The civil remedies for the collection of local taxes, fees, or charges, and related surcharges and interest resulting from delinquency shall be:

(a) By administrative action thru distraint of goods, chattels, or effects, and other personal property of whatever character, including stocks and other securities, debts, credits, bank accounts, and interest in and rights to personal property, and by levy upon real property and interest in or rights to real property;

(b) By judicial action.

Either of these remedies or all may be pursued concurrently or simultaneously at the discretion of the local government unit concerned.

4. Closure and opening of roads

Local Government Code:

SEC. 21. Closure and Opening of Roads. –

(a) A local government unit may, pursuant to an ordinance, permanently or temporarily close or open any  local road, alley, park, or square falling within its jurisdiction: Provided, however, That in case of permanent closure, such ordinance must be approved by at least two-thirds (2/3) of all the members of the  sanggunian, and when necessary, an adequate substitute for the public facility that is subject to closure is provided.

(b) No such way or place or any part thereof shall be permanently closed without making provisions for the maintenance of public safety therein. A property thus permanently withdrawn from public use may be used or conveyed for any purpose for which other real property belonging to the local government unit concerned may be lawfully used or conveyed: Provided,

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however, That no freedom park shall be closed permanently without provision for its transfer or relocation to a new site.

(c) Any national or local road, alley, park, or square may be temporarily closed during an actual emergency, or fiesta celebrations, public rallies, agricultural or industrial fairs, or an undertaking of public works and highways, telecommunications, and waterworks projects, the duration of which shall be specified by the local chief executive concerned in a written order: Provided, however, That no national or local road, alley, park, or square shall set temporarily closed for athletic, cultural, or civic activities not officially sponsored, recognized, or approved by the local government unit concerned.

(d) Any city, municipality, or barangay may, by a duly enacted ordinance, temporarily close and regulate the use of any local street, road, thoroughfare, or any other public place where shopping malls, Sunday, flea or night markets, or shopping areas may be established and where goods, merchandise, foodstuffs, commodities, or articles of commerce may be sold and dispensed to the general public.

5. Legislative power

Section 9. Legislative bodies of local governments shall have sectoral representation as may be prescribed by law.

Local Government Code:

SEC. 48. Local Legislative Power. - Local legislative power shall be exercised by the sangguniang panlalawigan for the province; the sangguniang panlungsod for the city; the sangguniang bayan for the municipality; and the sangguniang barangay for the barangay.

Section 49. Presiding Officer. -

(a) The vice-governor shall be the presiding officer of the sangguniang panlalawigan; the city vice-mayor, of the sangguniang panlungsod; the municipal vice-mayor, of the sangguniang bayan; and the punong barangay, of the sangguniang barangay. The presiding officer shall vote only to break a tie.

(b) In the event of the inability of the regular presiding officer to preside at a sanggunian session, the members present and constituting a quorum shall elect from among themselves a temporary presiding officer. He shall certify within ten (10) days from the passage of ordinances enacted and resolutions adopted by the sanggunian in the session over which he temporarily presided.

Section 52. Sessions. -

(a) On the first day of the session immediately following the election of its members, the sanggunian shall, by resolution, fix the day, time, and place of its regular sessions. The minimum numbers of regular sessions shall be once a week for the sangguniang panlalawigan, sangguniang panlungsod, and sangguniang bayan, and twice a month for the sangguniang barangay.

(b) When public interest so demands, special sessions may be called by the local chief executive or by a majority of the members of the sanggunian.

(c) All sanggunian sessions shall be open to the public unless a closed-door session is ordered by an affirmative vote of a majority of the members present, there being a quorum, in the public interest or for reasons of security, decency, or morality. No two (2) sessions, regular or special, may be held in a single day.

(d) In the case of special sessions of the sanggunian, a written notice to the members shall be served personally at the member's usual place of residence at least twenty-four (24) hours before the special session is held.

Unless otherwise concurred in by two-thirds (2/3) vote of the sanggunian members present, there being a quorum, no other matters may be considered at a special session except those stated in the notice.

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(e) Each sanggunian shall keep a journal and record of its proceedings which may be published upon resolution of the sanggunian concerned.

SEC. 53. Quorum. –

(a) A majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum to transact official business. Should a question of quorum be raised during a session, the presiding officer shall immediately proceed to call the roll of the members and thereafter announce the results.

(b) Where there is no quorum, the presiding officer may declare a recess until such time as a quorum is constituted, or a majority of the members present may adjourn from day to day and may compel the immediate attendance of any member absent without justifiable cause by designating a member of the sanggunian, to be assisted by a member or members of the police force assigned in the territorial jurisdiction of the local government unit concerned, to arrest the absent member and present him at the session.

(c) If there is still no quorum despite the enforcement of the immediately preceding subsection, no business shall be transacted. The presiding officer, upon proper motion duly approved by the members present, shall then declare the session adjourned for lack of quorum.

a. Requisites for valid ordinance

Local Government Code:

SEC. 54. Approval of Ordinances. –

(a) Every ordinance enacted by the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan shall be presented to the provincial governor or city or municipal mayor, as the case may be. If the local chief executive concerned approves the same, he shall affix his signature on each and every page thereof; otherwise, he shall veto it and return the same with his objections to the sanggunian, which may proceed to reconsider the same. The sanggunian concerned may override the veto of the local chief executive by two-thirds (2/3) vote of all its members, thereby making the ordinance or resolution effective for all legal intents and purposes.

(b) The veto shall be communicated by the local chief executive concerned to the sanggunian within fifteen (15) days in the case of a province, and ten (10) days in the case of a city or a municipality; otherwise, the ordinance shall be deemed approved as if he had signed it.

(c) ordinances enacted by the sangguniang barangay shall, upon approval by the majority of all its members, be signed by the punong barangay.

SEC. 55. Veto Power of the Local Chief Executive. –

(a) The local chief executive may veto any ordinance of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan on the ground that it is ultra vires or prejudicial to the public welfare, stating his reasons therefor in writing.

(b) The local chief executive, except the punong barangay, shall have the power to veto any particular item or items of an appropriations ordinance, an ordinance or resolution adopting a local development plan and public investment program, or an ordinance directing the payment of money or creating liability. In such a case, the veto shall not affect the item or items which are not objected to. The vetoed item or items shall not take effect unless the sanggunian overrides the veto in the manner herein provided; otherwise, the item or items in the appropriations ordinance of the previous year corresponding to those vetoed, if any, shall be deemed reenacted.

(c) The local chief executive may veto an ordinance or resolution only once. The sanggunian may override the veto of the local chief executive concerned by two-thirds (2/3) vote of all its members, thereby making the ordinance effective even without the approval of the local chief executive concerned.

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Section 58. Enforcement of Disapproved Ordinances or Resolutions. - Any attempt to enforce any ordinance or any resolution approving the local development plan and public investment program, after the disapproval thereof, shall be sufficient ground for the suspension or dismissal of the official or employee concerned.

SEC. 59. Effectivity of Ordinances or Resolutions.

(a) Unless otherwise stated in the ordinance or the resolution approving the local development plan and public investment program, the same shall take effect after ten (10) days from the date a copy thereof is posted in a bulletin board at the entrance of the provincial capitol or city, municipal, or barangay hall, as the case may be, and in at least two (2) other conspicuous places in the local government unit concerned.

(b) The secretary to the sanggunian concerned shall cause the posting of an ordinance or resolution in the bulletin board at the entrance of the provincial capitol and the city, municipal, or barangay hall in at least two (2) conspicuous places in the local government unit concerned not later than five (5) days after approval thereof.

The text of the ordinance or resolution shall be disseminated and posted in Filipino or English and in the language or dialect understood by the majority of the people in the local government unit concerned, and the secretary to the sanggunian shall record such fact in a book kept for the purpose, stating the dates of approval and posting.

(c) The gist of all ordinances with penal sanctions shall be published in a newspaper of general circulation within the province where the local legislative body concerned belongs. In the absence of any newspaper of general circulation within the province, posting of such ordinances shall be made in all municipalities and cities of the province where the sanggunian of origin is situated.

(d) In the case of highly urbanized cities, the main features of the ordinance or resolution duly enacted or adopted shall, in addition to being posted, be published once in a local newspaper of general circulation within the city: Provided, That in the absence thereof the ordinance or resolution shall be published in any newspaper of general circulation.

b. Local initiative and referendum

Local Government Code:

SEC. 120. Local Initiative Defined. - Local initiative is the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance.

SEC. 121. Who May Exercise. - The power of local initiative and referendum may be exercised by all registered voters of the provinces, cities, municipalities, and barangays.

SEC. 122. Procedure in Local Initiative. –

(a) Not less than one thousand (1,000) registered voters in case of provinces and cities, one hundred (100) in case of municipalities, and fifty (50) in case of barangays, may file a petition with the sanggunian concerned proposing the adoption, enactment, repeal, or amendment of an ordinance.

(b) If no favorable action thereon is taken by the sanggunian concerned within thirty (30) days from its presentation, the proponents, through their duly authorized and registered representatives, may invoke their power of initiative, giving notice thereof to the sanggunian concerned.

(c) The proposition shall be numbered serially starting from Roman numeral I. The Comelec or its designated representative shall extend assistance in the formulation of the proposition.

(d) Two (2) or more propositions may be submitted in an initiative.

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(e) Proponents shall have ninety (90) days in case of provinces and cities, sixty (60) days in case of municipalities, and thirty (30) days in case of barangays, from notice mentioned in subsection (b) hereof to collect the required number of signatures.

(f) The petition shall be signed before the election registrar, or his designated representatives, in the presence of a representative of the proponent, and a representative of the sanggunian concerned in a public place in the local government unit, as the case may be. Stations for collecting signatures may be established in as many places as may be warranted.

(g) Upon the lapse of the period herein provided, the Comelec, through its office in the local government unit concerned, shall certify as to whether or not the required number of signatures has been obtained. Failure to obtain the required number defeats the proposition.

(h) If the required number of signatures is obtained, the Comelec shall then set a date for the initiative during which the proposition shall be submitted to the registered voters in the local government unit concerned for their approval within sixty (60) days from the date of certification by the Comelec, as provided in subsection (g) hereof, in case of provinces and cities, forty-five (45) days in case of municipalities, and thirty (30) days in case of barangays. The initiative shall then be held on the date set, after which the results thereof shall be certified and proclaimed by the Comelec.

SEC. 123. Effectivity of Local Propositions. - If the proposition is approved by a majority of the votes cast, it shall take effect fifteen (15) days after certification by the Comelec as if affirmative action thereon had been made by the sanggunian and local chief executive concerned. If it fails to obtain said number of votes, the proposition is considered defeated.

SEC. 124. Limitations on Local Initiatives. –

(a) The power of local initiative shall not be exercised more than once a year.

(b) Initiative shall extend only to subjects or matters which are within the legal powers of the sanggunians to enact.

(c) If at any time before the initiative is held, the sanggunian concerned adopts in toto the proposition presented and the local chief executive approves the same, the initiative shall be canceled. However, those against such action may, if they so desire, apply for initiative in the manner herein provided.

SEC. 125. Limitations upon Sanggunians. - Any proposition or ordinance approved through the system of initiative and referendum as herein provided shall not be repealed, modified or amended by the sanggunian concerned within six (6) months from the date of the approval thereof, and may be amended, modified or repealed by the sanggunian within three (3) years thereafter by a vote of three-fourths (3/4) of all its members: Provided, That in case of barangays, the period shall be eighteen (18) months after the approval thereof.

SEC. 126. Local Referendum Defined. - Local referendum is the legal process whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the sanggunian. The local referendum shall be held under the control and direction of the Comelec within sixty (60) days in case of provinces and cities, forty-five (45) days in case of municipalities and thirty (30) days in case of barangays. The Comelec shall certify and proclaim the results of the said referendum.

SEC. 127. Authority of Courts. - Nothing in this Chapter shall prevent or preclude the proper courts from declaring null and void any proposition approved pursuant to this Chapter for violation of the Constitution or want of capacity of the sanggunian concerned to enact the said measure.

6. Corporate powers

Local Government Code:

SEC. 22. Corporate Powers. –

(a) Every local government unit, as a corporation, shall have the following powers:

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(1) To have continuous succession in its corporate name;

(2) To sue and be sued;

(3) To have and use a corporate seal;

(4) To acquire and convey real or personal property;

(5) To enter into contracts; and

(6) To exercise such other powers as are granted to corporations, subject to the limitations provided in this Code and other laws.

(b) Local government units may continue using, modify, or change their existing corporate seals: Provided, That newly established local government units or those without corporate seals may create their own corporate seals which shall be registered with the Department of the Interior and Local Government: Provided, further, That any change of corporate seal shall also be registered as provided herein.

(c) Unless otherwise provided in this Code, contract may be entered into by the local chief executive in behalf of the local government unit without prior authorization by the sanggunian concerned. A legible copy of such contract shall be posted at a conspicuous place in the provincial capitol or the city, municipal or barangay hall.

(d) Local government units shall enjoy full autonomy in the exercise of their proprietary functions and in the management of their economic enterprises, subject to the limitations provided in this Code and other  applicable laws.

SEC. 23. Authority to Negotiate and Secure Grants. - Local chief executives may, upon authority of the sanggunian, negotiate and secure financial grants or donations in kind, in support of the basic services or facilities enumerated under Section 17 hereof, from local and foreign assistance agencies without necessity of securing clearance or approval therefor from any department, agency, or office of the national government or from any higher local government unit: Provided, That projects financed by  such grants or assistance with national security implications shall be approved by the national agency concerned: Provided, further, That when such national agency fails to act on the request for approval within thirty (30) days from receipt thereof, the same shall be deemed approved.

The local chief executive shall, within thirty (30) days upon signing of such grant agreement or deed of donation, report the nature, amount, and terms of such assistance to both Houses of Congress and the President.

a. To sue and be sued

b. To acquire and sell property

c. To enter into contracts

1.) Requisites

1. The local government unit has the express, implied or inherent power to enter into the particular contract

2. The contract is entered into by the proper department board, committee, officer or agent.

Note: No contract may be entered into by the local chief executive on behalf of the local government without prior authorization by the sanggunian concerned, unless otherwise provided (Sec 22(c) R.A. 7160).

3. The contract must comply with certain substantive requirements:

a. Actual appropriation; and

b. certificate of availability of funds

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4. The contract must comply with the formal requirements of written contracts. (e.g., Statue of Frauds)

Note: This includes the power to acquire and convey properties by the LGU through written contracts.

2.) Ultra vires contracts

These are contracts entered into without the first and third requisites. Such are null and void and cannot be ratified or validated. Ratification of defective municipal contracts is possible only when there is non-compliance with the second and/or fourth requirements above. Ratification may either be expressed or implied.

7. Liability of LGUs

Local Government Code:

SEC. 24. Liability for Damages. - Local government units and their officials are not exempt from liability for death or injury to persons or damage to property.

8. Settlement of boundary disputes

Local Government Code:

SEC. 118. Jurisdictional Responsibility for Settlement of Boundary Dispute. - Boundary disputes between and among local government units shall, as much as possible, be settled amicably. To this end:

(a) Boundary disputes involving two (2) or more barangays in the same city or municipality shall be referred for settlement to the sangguniang panlungsod or sangguniang bayan concerned.

(b) Boundary disputes involving two (2) or more municipalities within the same province shall be referred for settlement to the sangguniang panlalawigan concerned.

(c) Boundary disputes involving municipalities or component cities of different provinces shall be jointly referred for settlement to the sanggunians of the provinces concerned.

(d) Boundary disputes involving a component city or municipality on the one hand and a highly urbanized city on the other, or two (2) or more highly urbanized cities, shall be jointly referred for settlement to the respective sanggunians of the parties.

(e) In the event the sanggunian fails to effect an amicable settlement within sixty (60) days from the date the dispute was referred thereto, it shall issue a certification to that effect. Thereafter, the dispute shall be formally tried by the sanggunian concerned which shall decide the issue within sixty (60) days from the date of the certification referred to above.

SEC. 119. Appeal. - Within the time and manner prescribed by the Rules of Court, any party may elevate the decision of the sanggunian concerned to the proper Regional Trial Court having jurisdiction over the area in dispute. The Regional Trial Court shall decide the appeal within one (1) year from the filing thereof. Pending final resolution of the disputed area prior to the dispute shall be maintained and continued for all legal purposes.

9. Succession of elective officials

Local Government Code:

SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-Mayor. –

(a) If a permanent vacancy occurs in the office of the governor or Mayor, the vice-governor or vice-mayor concerned shall become the governor or Mayor. If a permanent vacancy occurs in the offices of the governor, vice-governor, Mayor, or vice-mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice-governor, Mayor or vice-mayor, as the case may be. Subsequent

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vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein.

(b) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sanggunian barangay member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the punong barangay.

(c) A tie between or among the highest ranking sanggunian members shall be resolved by the drawing of lots.

(d) The successors as defined herein shall serve only the unexpired terms of their predecessors. For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office.

For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election.

SEC. 45. Permanent Vacancies in the Sanggunian. –

(a) Permanent vacancies in the sanggunian where automatic successions provided above do not apply shall be filled by appointment in the following manner:

(1) The President, through the Executive Secretary, in the case of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities;

(2) The governor, in the case of the sangguniang panlungsod of component cities and the sangguniang bayan;

(3) The city or municipal Mayor, in the case of sangguniang barangay, upon recommendation of the sangguniang barangay concerned.

(b) Except for the sangguniang barangay, only the nominee of the political party under which the sanggunian member concerned had been elected and whose elevation to the position next higher in rank created the last vacancy in the sanggunian shall be appointed in the manner hereinabove provided. The appointee shall come from the same political party as that of the sanggunian member who caused the vacancy and shall serve the unexpired term of the vacant office. In the appointment herein mentioned, a nomination and a certificate of membership of the appointee from the highest official of the political party concerned are conditions sine qua non, and any appointment without such nomination and certification shall be null and void ab initio and shall be a ground for administrative action against the official responsible therefor.

(c) In case the permanent vacancy is caused by a sanggunian member who does not belong to any political party, the local chief executive shall, upon recommendation o;O7 of the sanggunian concerned, appoint a qualified person to fill the vacancy.

(d) In case of vacancy in the representation of the youth and the barangay in the sanggunian, said vacancy shall be filled automatically by the official next in rank of the organization concerned.

SEC. 46. Temporary Vacancy in the Office of the Local Chief Executive. –

(a) When the governor, city or municipal Mayor, or punong barangay is temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension from office, the vice-governor, city or municipal vice-mayor, or the highest ranking sangguniang barangay member shall automatically exercise the powers and perform the duties and functions of the local chief executive concerned, except the power to appoint, suspend, or dismiss employees which can only be exercised if the period of temporary incapacity exceeds thirty (30) working days.

(b) Said temporary incapacity shall terminate upon submission to the appropriate sanggunian of a written declaration by the local chief executive concerned that he has reported back to office. In

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cases where the temporary incapacity is due to legal causes, the local chief executive concerned shall also submit necessary documents showing that said legal causes no longer exist.

(c) When the incumbent local chief executive is traveling within the country but outside his territorial jurisdiction for a period not exceeding three (3) consecu tive days, he may designate in writing the officer-in-charge of the said office. Such authorization shall specify the powers and functions that the local official concerned shallexercise in the absence of the local chief executive except the power to appoint, suspend, or dismiss employees.

(d) In the event, however, that the local chief executive concerned fails or refuses to issue such authorization, the vice-governor, the city or municipal vice-mayor, or the highest ranking sangguniang barangay member, as the case may be, shall have the right to assume the powers, duties, and functions of the said office on the fourth (4th) day of absence of the said local chief executive, subject to the limitations provided in subsection (c) hereof.

(e) Except as provided above, the local chief executive shall in no case authorize any local official to assume the powers, duties, and functions of the office, other than the vice-governor, the city or municipal vice- Mayor, or the highest ranking sangguniang barangay member, as the case may be.

SEC. 47. Approval of Leaves of Absence. –

(a) Leaves of absence of local elective officials shall be approved as follows:

(1) Leaves of absence of the governor and the Mayor of a highly urbanized city or an independent component city shall be approved by the President or his duly authorized representative;

(2) Leaves of absence of a vice-governor or a city or municipal vice-mayor shall be approved by the local chief executive concerned: Provided, That the leaves of absence of the members of the sanggunian and its employees shall be approved by the vice-governor or city or municipal vice- mayor concerned;

(3) Leaves of absence of the component city or municipal Mayor shall be approved by the governor; and

(4) Leaves of absence of a punong barangay shall be approved by the city or municipal mayor: Provided, That leaves of absence of sangguniang barangay members shall be approved by the punong barangay.

(b) Whenever the application for leave of absence hereinabove specified is not acted upon within five (5) working days after receipt thereof, the application for leave of absence shall be deemed approved.

10.Discipline of local officials

a. Elective officials

1.) Grounds

Local Government Code:

SEC. 60. Grounds for Disciplinary Actions. - An elective local official may be disciplined, suspended, or removed from office on any of the following grounds:

(a) Disloyalty to the Republic of the Philippines;

(b) Culpable violation of the Constitution;

(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;

(d) Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor;

(e) Abuse of authority;

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(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay;

(g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and

(h) Such other grounds as may be provided in this Code and other laws. An elective local official may be removed from office on the grounds enumerated above by order of the proper court.

2.) Jurisdiction

Local Government Code:

SEC. 61. Form and Filing of Administrative Complaints. - A verified complaint against any erring local elective official shall be prepared as follows:

(a) A complaint against any elective official of a province, a highly urbanized city, an independent component city or component city shall be filed before the Office of the President;

(b) A complaint against any elective official of a municipality shall be filed before the sangguniang panlalaw igan whose decision may be appealed to the Office of the President; and

(c) A complaint against any elective barangay official shall be filed before the sangguniang panlungsod or sangguniang bayan concerned whose decision shall be final and executory.

SEC. 62. Notice of Hearing. –

(a) Within seven (7) days after the administrative complaint is filed, the Office of the President or the sanggunian concerned, as the case may be, shall require the respondent to submit his verified answer within fifteen (15) days from receipt thereof, and commence the investigation of the case within ten (10) days after receipt of such answer of the respondent.

(b) When the respondent is an elective official of a province or highly urbanized city, such hearing and investigation shall be conducted in the place where he renders or holds office. For all other local elective officials, the venue shall be the place where the sanggunian concerned is located.

(c) However, no investigation shall be held within ninety (90) days immediately prior to any local election, and no preventive suspension shall be imposed within the said period. If preventive suspension has been imposed prior to the 90-day period immediately preceding local election, it shall be deemed automatically lifted upon the start of aforesaid period.

3.) Preventive suspension

Local Government Code:

SEC. 63. Preventive Suspension. –

(a) Preventive suspension may be imposed:

(1) By the President, if the respondent is an elective official of a province, a highly urbanized or an independent component city;

(2) By the governor, if the respondent is an elective official of a component city or municipality; or

(3) By the mayor, if the respondent is an elective official of the barangay.

(b) Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great

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probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence: Provided, That, any single preventive suspension of local elective fficials shall not extend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension.

(c) Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within one hundred twenty (120) days from the time he was formally notified of the case against him. However, if the delay in the proceedings of the case is due to his fault, neglect, or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case.

(d) Any abuse of the exercise of the power of preventive suspension shall be penalized as abuse of authority.

SEC. 64. Salary of Respondent Pending Suspension. - The respondent official preventively suspended from office shall receive no salary or compensation during such suspension; but, upon subsequent exoneration and reinstatement, he shall be paid full salary or compensation including such emoluments accruing during such suspension.

SEC. 65. Rights of Respondent - The respondent shall be accorded full opportunity to appear and defend himself in person or by counsel, to confront and cross-examine the witnesses against him, and to require the attendance of witnesses and the production of documentary evidence in his favor through the compulsory process of subpoena or subpoena duces tecum.

4.) Removal

Local Government Code:

SEC. 66. Form and Notice of Decision. –

(a) The investigation of the case shall be terminated within ninety (90) days from the start thereof. Within thirty (30) days after the end of the investigation, the Office of the President or the sanggunian concerned shall render a decision in writing stating clearly and distinctly the facts and the reasons for such decision. Copies of said decision shall immediately be furnished the respondent and all interested parties.

(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long as he meets the qualifications required for the office.

(c) The penalty of removal from office as a result of an administrative investigation shall be considered a bar to the candidacy of the respondent for any elective position.

SEC. 82. Resignation of Elective Local Officials. –

(a) Resignations by elective local officials shall be deemed effective only upon acceptance by the following authorities:

(1) The President, in the case of governors, vice- governors, and mayors and vice-mayors of highly urbanized cities and independent component cities;

(2) The governor, in the case of municipal mayors, municipal vice-mayors, city mayors and city vice-mayors of component cities;

(3) The sanggunian concerned, in the case of sanggunian members; and

(4) The city or municipal mayor, in the case of barangay officials.

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(b) Copies of the resignation letters of elective local officials, together with the action taken by the aforesaid authorities, shall be furnished the Department of Interior and Local Government.

(c)  The resignation shall be deemed accepted if not acted upon by the authority concerned within fifteen (15) working days from receipt thereof.

(d)  Irrevocable resignations by sangguniang members shall be deemed accepted upon presentation before an open session of the sanggunian concerned and duly entered in its records:  Provided, however, That this subsection does not apply to sanggunian members who are subject to recall elections or to cases where existing laws prescribe the manner of acting upon such resignations.

5.) Administrative appeal

Local Government Code:

SEC. 67. Administrative Appeals. - Decisions in administrative cases may, within thirty (30) days from receipt thereof, be appealed to the following:

(a) The sangguniang panlalawigan, in the case of decisions of the sangguniang panlungsod of component cities and the sangguniang bayan; and

(b) The Office of the President, in the case of decisions of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities. Decisions of the Office of the President shall be final and executory.

SEC. 68. Execution Pending appeal. - An appeal shall not prevent a decision from becoming final or executory. The respondent shall be considered as having been placed under preventive suspension during the pendency of an appeal in the event he wins such appeal. In the event the appeal results in an exoneration, he shall be paid his salary and such other emoluments during the pendency of the appeal.  

6.) Doctrine of condonation

The rule that public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefore, has no application to pending criminal cases against petitioner for the acts he may have committed during a failed coup. (Aguinaldo v. Santos, G.R. No. 94115, Aug. 21, 1992)

b. Appointive officials

Local Government Code:

SEC. 83. Grievance Procedure. - In every local government unit, the local chief executive shall establish a procedure to inquire into, act upon, resolve or settle complaints and grievances presented by local government employees.

SEC. 84. Administrative Discipline. - Investigation and adjudication of administrative complaints against appointive local officials and employees as well as their suspension and removal shall be in accordance with the civil service law and rules and other pertinent laws.   The results of such administrative investigations shall be reported to the Civil Service Commission.   SEC. 85. Preventive Suspension of Appointive Local Officials and Employees. –

(a) The local chief executives may preventively suspend for a period not exceeding sixty (60) days any subordinate official or employee under his authority pending investigation if the charge against such official or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty, or if there is reason to believe that the respondent is guilty of the charges which would warrant his removal from the service.

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(b)  Upon expiration of the preventive suspension, the suspended official or employee shall be automatically reinstated in office without prejudice to the continuation of the administrative proceedings against him until its termination.  If the delay in the proceedings of the case is due to the fault, neglect or request of the respondent, the time of the delay shall not be counted in computing the period of suspension herein provided.

SEC. 86. Administrative Investigation. - In any local government unit, administrative investigation may be conducted by a person or a committee duly authorized by the local chief executive.  Said person or committee shall conduct hearings on the cases brought against appointive local officials and employees and submit their findings and recommendations to the local chief executive concerned within fifteen (15) days from the conclusion of the hearings.  The administrative cases herein mentioned shall be decided within ninety (90) days from the time the respondent is formally notified of the charges.

SEC. 87. Disciplinary Jurisdiction. - Except as otherwise provided by law, the local chief executive may impose the penalty of removal from service, demotion in rank, suspension for not more than one (1) year without pay, fine in an amount not exceeding six (6) months' salary, or reprimand and otherwise discipline subordinate officials and employees under his jurisdiction. If the penalty imposed is suspension without pay for not more than thirty (30) days, his decision shall be final. If the penalty imposed is heavier than suspension of thirty (30) days, the decision shall be appealable to the Civil Service Commission, which shall decide the appeal within thirty (30) days from receipt thereof.

SEC. 88. Execution Pending Appeal. - An appeal shall not prevent the execution of a decision of removal or suspension of a respondent-appellant. In case the respondent-appellant is exonerated, he shall be reinstated to his position with all the rights and privileges appurtenant thereto from the time he had been deprived thereof.

11.Recall

Local Government Code:

SEC. 69. By Whom Exercised. - The power of recall for loss of confidence shall be exercised by the registered voters of a local government unit to which the local elective official subject to such recall belongs.

SEC. 70. Initiation of the Recall Process. –

(a) Recall may be initiated by a preparatory recall assembly or by the registered voters of the local government unit to which the local elective official subject to such recall belongs.

(b) There shall be a preparatory recall assembly in every province, city, district, and municipality which shall be composed of the following:

(1) Provincial level. - All mayors, vice-mayors, and sanggunian members of the municipalities and component cities;

(2) City level. - All punong barangay and sangguniang barangay members in the city;

(3) Legislative District level. - In cases where sangguniang panlalawigan members are elected by district, all elective municipal officials in the district; and in cases where sangguniang panlungsod members are elected by district, all elective barangay officials in the district; and

(4) Municipal level. - All punong barangay and sangguniang barangay members in the municipality.

(c) A majority of all the preparatory recall assembly members may convene in session in a public place and initiate a recall proceeding against any elective official in the local government unit concerned. Recall of provincial, city, or municipal officials shall be validly initiated through a resolution adopted by a majority of all the members of the preparatory recall assembly concerned during its session called for the purpose.

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(d) Recall of any elective provincial, city, municipal, or barangay official may also be validly initiated upon petition of at least twenty-five percent (25%) of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected.

(1) A written petition for recall duly signed before the election registrar or his representative, and in the presence of a representative of the petitioner and a representative of the official sought to be recalled, and in a public place in the province, city, municipality, or barangay, as the case may be, shall be filed with the Comelec through its office in the local government unit concerned. The Comelec or its duly authorized representative shall cause the publication of the petition in a public and conspicuous place for a period of not less than ten (10) days nor more than twenty (20) days, for the purpose of verifying the authenticity and genuineness of the petition and the required percentage of voters.

(2) Upon the lapse of the aforesaid period, the Comelec or its duly authorized representative shall announce the acceptance of candidates to the position and thereafter prepare the list of candidates which shall include the name of the official sought to be recalled.

SEC. 71. Election on Recall. - Upon the filing of a valid resolution or petition for recall with the appropriate local office of the Comelec, the Commission or its duly authorized representative shall set the date of the election on recall, which shall not be later than thirty (30) days after the filing of the resolution or petition for recall in the case of the barangay, city, or municipal officials, and forty-five (45) days in the case of provincial officials. The official or officials sought to be recalled shall automatically be considered as duly registered candidate or candidates to the pertinent positions and, like other candidates, shall be entitled to be voted upon.

SEC. 72. Effectivity of Recall. - The recall of an elective local official shall be effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall. Should the official sought to be recalled receive the highest number of votes, confidence in him is thereby affirmed, and he shall continue in office.

SEC. 73. Prohibition from Resignation. - The elective local official sought to be recalled shall not be allowed to resign while the recall process is in progress.

SEC. 74. Limitations on Recall. –

(a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence.

(b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year immediately preceding a regular local election.

SEC. 75. Expenses Incident to Recall Elections. - All expenses incident to recall elections shall be borne by the Comelec. For this purpose, there shall be included in the annual General Appropriations Act a contingency fund at the disposal of the Comelec for the conduct of recall elections.  

12.Term limits

Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Local Government Code:

SEC. 43. Term of Office. –

(a) The term of office of all local elective officials elected after the effectivity of this Code shall be three (3) years, starting from noon of June 30, 1992 or such date as may be provided for by law, except that of elective barangay officials: Provided, That all local officials first elected during the

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local elections immediately following the ratification of the 1987 Constitution shall serve until noon of June 30, 1992.

(b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected.

(c) The term of office of barangay officials and members of the sangguniang kabataan shall be for three (3) years, which shall begin after the regular election of barangay officials on the second Monday of May 1994.

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XIII. National Economy and Patrimony (Article XII)

Section 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged.

The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full of efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all region s of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership.

Section 9. The Congress may establish an independent economic and planning agency headed by the President, which shall, after consultations with the appropriate public agencies, various private sectors, and local government units, recommend to Congress, and implement continuing integrated and coordinated programs and policies for national development.

Until the Congress provides otherwise, the National Economic and Development Authority shall function as the independent planning agency of the government.

Section 22. Acts which circumvent or negate any of the provisions of this Article shall be considered inimical to the national interest and subject to criminal and civil sanctions, as may be provided by law.

A. Regalian doctrine

The Regalian Doctrine (jura regalia) is the doctrine which reserves to the State the full ownership of all natural resources or natural wealth that may be found in the bowels of the earth. (Albano, Political Law Reviewer)

Note: All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests, or timber, wildlife, flora and fauna, and natural resources belong to the State. With the exception of agricultural lands, all other natural resources shall not be alienated. (Sec. 2, Art. XII, 1987 Constitution)

The exception to the Regalian Doctrine is any land in the possession of an occupant and of his predecessors-in-interest since time immemorial. (Oh Cho v. Director of Land, G.R. No. 48321, Aug. 31, 1946)

The consequence of the Regalian Doctrine is that any person claiming ownership of a portion of a land of the public domain must be able to show title from the State according to any of the recognized modes of acquisition of title. (Lee Hong Kok v. David, G.R. No. L-30389, Dec. 27, 1972)

B. Nationalist and citizenship requirement provisions

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

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

C. Exploration, development and utilization of natural resources

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Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least 60 per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of waterpower, beneficial use may be the measure and limit of the grant.

The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish workers in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.

D. Franchises, authority and certificates for public utilities

Article XVI, Section 11.

1. The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens.

The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed.

2. The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare.

Only Filipino citizens or corporations or associations at least seventy per centum of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry.

The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof, and all the executive and managing officers of such entities must be citizens of the Philippines.

Article XII, Section 11.

Section 11. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or

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to corporations or associations organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by such citizens; nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines.

E. Acquisition, ownership and transfer of public and private lands

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

Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor.

Section 4. The Congress shall, as soon as possible, determine, by law, the specific limits of forest lands and national parks, marking clearly their boundaries on the ground. Thereafter, such forest lands and national parks shall be conserved and may not be increased nor diminished, except by law. The Congress shall provide for such period as it may determine, measures to prohibit logging in endangered forests and watershed areas.

Section 5. The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being.

The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain.

Section 6. The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands.

F. Practice of professions

Section 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive.

Section 14. The sustained development of a reservoir of national talents consisting of Filipino scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled workers and craftsmen in all fields shall be promoted by the State. The State shall encourage appropriate technology and regulate its transfer for

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

G. Organization and regulation of corporations, private and public

Section 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities.

Section 15. The Congress shall create an agency to promote the viability and growth of cooperatives as instruments for social justice and economic development.

Section 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability.

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

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

H. Monopolies, restraint of trade and unfair competition

Section 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.

Section 19. The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed.

Section 20. The Congress shall establish an independent central monetary authority, the members of whose governing board must be natural-born Filipino citizens, of known probity, integrity, and patriotism, the majority of whom shall come from the private sector. They shall also be subject to such other qualifications and disabilities as may be prescribed by law. The authority shall provide policy direction in the areas of money, banking, and credit. It shall have supervision over the operations of banks and exercise such regulatory powers as may be provided by law over the operations of finance companies and other institutions performing similar functions.

Until the Congress otherwise provides, the Central Bank of the Philippines operating under existing laws, shall function as the central monetary authority.

Section 21. Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public.

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XIV. Social Justice and Human Rights – Article XIII

Section 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.

Section 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance.

A. Concept of social justice

Social justice is “neither communism, nor despotism, nor atomism, nor anarchy,” but the humanization of laws and the equalization of social and economic force by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all competent elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex. (Calalang v. Williams, 70 Phil 726, [1940])

Social justice simply means the equalization of economic, political, and social opportunities with special emphasis on the duty of the state to tilt the balance of social forces by favoring the disadvantaged in life. (Bernas, The 1987 Philippines Constitution: A Reviewer - Primer, 2006)

Q: What are the two principal activities which the State is commanded to attend to in order to achieve the goals of social justice?

1. The creation of more economic opportunities and more wealth; and

2. Closer regulation of the acquisition, ownership, use, and disposition of property in order to achieve a more equitable distribution of wealth and power.(Bernas,2011)

Q: What aspects of human life are covered by Art.XIII?

1. Social justice

2. Labor

3. Agrarian and natural resources reform

4. Urban land reform and housing

5. Health

6. Women

7. Role and rights of people’s organization

8. Human rights

Q: What factors must be weighed in regulating the relations between workers and employers?

A: Among the factors that must be considered are:

1. The right of labor to its just share in the fruits of production

2. The right of enterprises to reasonable returns of investments, and to expansion and growth.

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Note: It must be remembered, however, that the command to promote social justice itself might make it necessary to tilt the balance in favor of underprivileged workers. (Bernas, 2011)

Q: What are the provisions of the Constitution on women?

1. The State shall equally protect the life of the mother and the life of the unborn from conception. (Sec. 12, Art II, 1987 Constitution)

2. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men. (Sec. 14, Art. II, 1987 Constitution)

3. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such faculties and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation. (Sec. 14, Art. XIII, 1987 Constitution)

Q: Is there a need for consultation before urban and rural dwellers can be relocated?

A: Yes. The urban and rural dwellers and the communities where they are to be relocated must be consulted. Otherwise, there shall be no resettlement. (Sec. 15 [2], Art. XIII)

Q: What is meant by people’s organization?

A: People’s Organizations are bona fide associations of citizens with demonstrated capacity to promote the public interest and with identifiable leadership, membership and structure. (Sec. 15 [2], Art. XIII)

B. Commission on Human Rights

Section 17.

1. There is hereby created an independent office called the Commission on Human Rights.

2. The Commission shall be composed of a Chairman and four Members who must be natural-born citizens of the Philippines and a majority of whom shall be members of the Bar. The term of office and other qualifications and disabilities of the Members of the Commission shall be provided by law.

3. Until this Commission is constituted, the existing Presidential Committee on Human Rights shall continue to exercise its present functions and powers.

4. The approved annual appropriations of the Commission shall be automatically and regularly released.

Section 18. The Commission on Human Rights shall have the following powers and functions:

1. Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights;

2. Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court;

3. Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the under-privileged whose human rights have been violated or need protection;

4. Exercise visitorial powers over jails, prisons, or detention facilities;

5. Establish a continuing program of research, education, and information to enhance respect for the primacy of human rights;

6. Recommend to Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights, or their families;

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7. Monitor the Philippine Government's compliance with international treaty obligations on human rights;

8. Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority;

9. Request the assistance of any department, bureau, office, or agency in the performance of its functions;

10. Appoint its officers and employees in accordance with law; and

11. Perform such other duties and functions as may be provided by law.

Section 19. The Congress may provide for other cases of violations of human rights that should fall within the authority

XV. Education, Science, Technology, Arts, Culture and Sports

A. Academic freedom

Q: Whose academic freedom is protected by the Constitution?

1. Institution itself

2. Faculty

3. Students

Q: What are the aspects of Academic Freedom?

A: There are3 views:

1. From the standpoint of the educational institution - To provide that atmosphere which is most conducive to speculation, experimentation and creation;

2. From the standpoint of the faculty –

a. Freedom in research and in the publication of the results, subject to the adequate performance of his other academic duties

b. Freedom in the classroom in discussing his subject less controversial matters which bear no relation to the subject

c. Freedom from institutional censorship or discipline, limited by his special position in the community

3. From the standpoint of the student – right to enjoy in school the guarantee of the Bill of Rights. (Non v. Dames, G.R. No. 89317, May 20, 1990)

Q: What are the limitations to academic freedom?

1. Dominant police power of the State

2. Social Interest of the community

Q: What are the freedoms afforded to educational institutions relating to its right to determine for itself on academic grounds?

1. Who may teach

2. What may be taught

3. How shall it be taught

4. Who may be admitted to study (Miriam College Foundation v. CA, G.R. No. 127930, Dec. 15, 2000)

B. Constitutional Provisions – Article XIV

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EDUCATION

Section 1. The State shall protect and promote the right of all citizens to quality education at all levels, and shall take appropriate steps to make such education accessible to all.

Section 2. The State shall:

1. Establish, maintain, and support a complete, adequate, and integrated system of education relevant to the needs of the people and society;

2. Establish and maintain, a system of free public education in the elementary and high school levels. Without limiting the natural rights of parents to rear their children, elementary education is compulsory for all children of school age;

3. Establish and maintain a system of scholarship grants, student loan programs, subsidies, and other incentives which shall be available to deserving students in both public and private schools, especially to the under-privileged;

4. Encourage non-formal, informal, and indigenous learning systems, as well as self-learning, independent, and out-of-school study programs particularly those that respond to community needs; and

5. Provide adult citizens, the disabled, and out-of-school youth with training in civics, vocational efficiency, and other skills.

Section 3.

1. All educational institutions shall include the study of the Constitution as part of the curricula.

2. They shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline, encourage critical and creative thinking, broaden scientific and technological knowledge, and promote vocational efficiency.

3. At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.

Section 4.

1. The State recognizes the complementary roles of public and private institutions in the educational system and shall exercise reasonable supervision and regulation of all educational institutions.

2. Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of which is owned by such citizens. The Congress may, however, require increased Filipino equity participation in all educational institutions. The control and administration of educational institutions shall be vested in citizens of the Philippines.

No educational institution shall be established exclusively for aliens and no group of aliens shall comprise more than one-third of the enrollment in any school. The provisions of this sub section shall not apply to schools established for foreign diplomatic personnel and their dependents and, unless otherwise provided by law, for other foreign temporary residents.

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3. All revenues and assets of non-stock, non-profit educational institutions used actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties. Upon the dissolution or cessation of the corporate existence of such institutions, their assets shall be disposed of in the manner provided by law.

Proprietary educational institutions, including those cooperatively owned, may likewise be entitled to such exemptions, subject to the limitations provided by law, including restrictions on dividends and provisions for reinvestment.

4. Subject to conditions prescribed by law, all grants, endowments, donations, or contributions used actually, directly, and exclusively for educational purposes shall be exempt from tax.

Section 5.

1. the State shall take into account regional and sectoral needs and conditions and shall encourage local planning in the development of educational policies and programs.

2. Academic freedom shall be enjoyed in all institutions of higher learning.

3. Every citizen has a right to select a profession or course of study, subject to fair, reasonable, and equitable admission and academic requirements.

4. The State shall enhance the right of teachers to professional advancement. Non-teaching academic and non-academic personnel shall enjoy the protection of the State.

5. The State shall assign the highest budgetary priority to education and ensure that teaching will attract and retain its rightful share of the best available talents through adequate remuneration and other means of job satisfaction and fulfillment.

LANGUAGE

Section 6. The national language of the Philippines is Filipino. As it evolves, it shall be further developed and enriched on the basis of existing Philippine and other languages.

Subject to provisions of law and as the Congress may deem appropriate, the Government shall take steps to initiate and sustain the use of Filipino as a medium of official communication and as language of instruction in the educational system.

Section 7. For purposes of communication and instruction, the official languages of the Philippines are Filipino and, until otherwise provided by law, English.

The regional languages are the auxiliary official languages in the regions and shall serve as auxiliary media of instruction therein.

Spanish and Arabic shall be promoted on a voluntary and optional basis.

Section 8. This Constitution shall be promulgated in Filipino and English and shall be translated into major regional languages, Arabic, and Spanish.

Section 9. The Congress shall establish a national language commission composed of representatives of various regions and disciplines which shall undertake, coordinate, and promote researches for the development, propagation, and preservation of Filipino and other languages.

SCIENCE AND TECHNOLOGY

Section 10. Science and technology are essential for national development and progress. The State shall give priority to research and development, invention, innovation, and their utilization; and to science and technology education, training, and services. It shall support indigenous, appropriate, and self-reliant scientific and

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technological capabilities, and their application to the country's productive systems and national life.

Section 11. The Congress may provide for incentives, including tax deductions, to encourage private participation in programs of basic and applied scientific research. Scholarships, grants-in-aid, or other forms of incentives shall be provided to deserving science students, researchers, scientists, inventors, technologists, and specially gifted citizens.

Section 12. The State shall regulate the transfer and promote the adaptation of technology from all sources for the national benefit. It shall encourage the widest participation of private groups, local governments, and community-based organizations in the generation and utilization of science and technology.

Section 13. The State shall protect and secure the exclusive rights of scientists, inventors, artists, and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such period as may be provided by law.

ARTS AND CULTURE

Section 14. The State shall foster the preservation, enrichment, and dynamic evolution of a Filipino national culture based on the principle of unity in diversity in a climate of free artistic and intellectual expression.

Section 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nation's historical and cultural heritage and resources, as well as artistic creations.

Section 16. All the country's artistic and historic wealth constitutes the cultural treasure of the nation and shall be under the protection of the State which may regulate its disposition.

Section 17. The State shall recognize, respect, and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies.

Section 18.

1. The State shall ensure equal access to cultural opportunities through the educational system, public or private cultural entities, scholarships, grants and other incentives, and community cultural centers, and other public venues.

2. The State shall encourage and support researches and studies on the arts and culture.

SPORTS

Section 19.

1. The State shall promote physical education and encourage sports programs, league competitions, and amateur sports, including training for international competitions, to foster self-discipline, teamwork, and excellence for the development of a healthy and alert citizenry.

2. All educational institutions shall undertake regular sports activities throughout the country in cooperation with athletic clubs and other sectors.

XVI. Public International Law

A. Concepts

1. Obligations erga omnes

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It is an obligation of every State towards the international community as a whole. All states have a legal interest in its compliance, and thus all States are entitled to invoke responsibility for breach of such an obligation. (Case Concerning The Barcelona Traction, ICJ 1970)

Note: Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law others are conferred by international instruments of universal or quasi universal character. (Romulo v. Vinuya GR. 162230, April 29, 2010)

2. Jus cogens

It literally means “compelling law”. A jus cogens norm is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. (Art. 53, Vienna Convention on the Law of Treaties)

3. Concept of ex aequo et bono

It is a judgment based on considerations of fairness, not on considerations of existing law, that is, to simply decide the case based upon a balancing of the equities. (Brownlie, 2003)

B. International and national law

Grand divisions of PIL:

1. Laws of Peace – govern normal relations between States in the absence of war.

2. Laws of War – govern relations between hostile or belligerent states during wartime.

3. Laws of Neutrality – govern relations between a non-participant State and a participant State during wartime or among non-participating States.

The theory of Monism: Both international law and domestic law are part of a single legal order; international law is automatically incorporated into each nation’s legal system and that international law is supreme over domestic law.

Theory of Dualism affirms that the international law and municipal law are distinct and separate; each is supreme in its own sphere and level of operation.

International law vs. municipal law under the theory of Dualism:

INTERNATIONAL LAW MUNICIPAL LAW

Adopted by states as a common rule of action

Issued by a political superior for observance

Regulates relation of state and other international persons

Regulates relations of individuals among themselves or with their own states

Derived principally from treaties, international customs and general principles of law

Consists mainly of enactments from the lawmaking authority of each state

Resolved thru state-to-state transactions

Redressed thru local administrative and judicial processes

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Collective responsibility because it attaches directly to the state and not to its nationals

Breach of which entails individual responsibility

Municipal laws are NOT subject to judicial notice before international tribunals. Municipal laws are only evidence of conduct attributable to the State concerned, which create international responsibility, like legislative measures or court decisions. They are not subject to judicial notice and are only treated as mere facts which are required to be proven.

Doctrine of Incorporation: Under this doctrine, rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. The doctrine decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments.

Doctrine of Transformation: This doctrine holds that the generally accepted rules of international law are not per se binding upon the state but must first be embodied in legislation enacted by the lawmaking body and so transformed into municipal law.

Types of Transformation Theories:

1. Hard Transformation Theory – only legislation can transform International Law into domestic law. Courts may apply International Law only when authorized by legislation.

2. Soft Transformation Theory – Either a judicial or legislative act of a state can transform International Law into domestic law.

Pacta sunt servanda means that international agreements must be performed in good faith. A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties.

Principle of Auto-Limitation: Under the principle of auto-limitation, any State may by its consent, express or implied, submit to a restriction of its sovereign rights. There may thus be a curtailment of what otherwise is a plenary power. (Reagan v. CIR, G.R. No.L-26379, Dec. 27, 1969)

Correlate Reciprocity and the Principle of Auto-Limitation:

When the Philippines enter into treaties, necessarily, these international agreements may contain limitations on Philippine sovereignty. The consideration in this partial surrender of sovereignty is the reciprocal commitment of other contracting States in granting the same privilege and immunities to the Philippines.

Note: For example, this kind of reciprocity in relation to the principle of auto-limitation characterizes the Philippine commitments under WTO-GATT. This is based on the Constitutional provision that the Philippines "adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of cooperation and amity with all nations." (Tanada v. Angara, G.R.No.118295, May 2, 1997)

C. Sources

Primary Sources:

1. International conventions, whether general or particular, establishing rules expressly recognized by the contesting state

2. International custom, as evidence of a general practice accepted as law; and

3. The general principles of law recognized by civilized nations; (Article 38(1), Statute of the International Court of Justice)

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Note: Sources of law refer to norms derived from international conventions on treaties, customs, and general principles of law. The distinctive character of these norms is that they are created or they acquire binding effect through the methods pointed above.

Secondary Sources:

1. Decisions of international tribunals; and

2. Teachings of the most highly qualified publicists of various nations.

Formal sources vs. material sources of international law: Formal sources refer to the various processes by which rules come into existence while material sources refer to the substance and the content of the obligation.

Note: The material sources supplies the substance of the rule to which the formal sources gives the force and nature of law. Thus, custom as a norm creating process is a formal source of law.

Hard law means binding laws. To constitute law, a rule, instrument or decision must be authoritative and prescriptive. In International law, hard law includes treaties or international agreements, as well as customary laws. These instruments result in legally enforceable commitments for countries (states) and other international subjects.

Soft law means commitments made by negotiating parties that are not legally binding. By implication, those set of international customary rules, laws and customs which do not carry any binding effect whatsoever or impose no obligation at all to states for its compliance.

Q: What are the types of treaties or international conventions?

1. Contract treaties (Traite contract)

2. Law making treaty (Traite loi)

Q: What are contract treaties?

A: Bilateral arrangements concerning matters of particular or special interest to the contracting parties. They are sources of particular international law but may become primary sources of public international law when different contract treaties are of the same nature, containing practically uniform provisions, and are concluded by a substantial number of States.

Q: What are law-making treaties?

A: Treaties which are concluded by a large number of States for purposes of:

1. Declaring, confirming, or defining their understanding of what the law is on a particular subject;

2. Stipulating or laying down new general rules for future international conduct; and

3. Creating new international institutions.

Q: Who are bound by treaties and international conventions?

GR: Only the parties.

XPN: Treaties may be considered a direct source of international law when concluded by a sizable number of States, and is reflective of the will of the family of nations.

Q: What are the elements of international custom?

1. General practice, characterized by uniformity and consistency;

2. Opinio juris, or recognition of that practice as a legal norm and therefore obligatory; and

3. Duration

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Q: Is a particular length of time required for the formation of customary norms?

A: No particular length of time is required. What is required is that within the period in question, short though it may be, State practice, including that of States whose interest are specially affected, should have extensive and virtually uniform and in such a way as to show a general recognition that a rule of law or legal obligation is involved.

Q: What are the requisites in order to consider a person to be a highly qualified publicist?

1. His writings must be fair and impartial representation of law;

2. An acknowledged authority in the field.

Q: Are dissenting States bound by international customs?

GR: Yes

XPN: If they had consistently objected to it while the project was merely in the process of formation. Dissent, however protects only the dissenter and does not apply to other States. A State joining the international law system for the first time after a practice has become customary law is bound by such practice.

D. Subjects

A subject of international law is an entity with capacity of possessing international rights and duties and of bringing international claims.

The subjects are:

1. Direct subjects

a. States

b. Colonies and dependencies

c. mandates and trust territories; belligerent communities;

d. The Vatican;

e. The United Nations; international administrative bodies; and

f. To a certain extent, individuals.

2. Indirect subjects

a. international organizations;

b. Individuals; and

c. Corporations.

3. Incomplete subjects

a. Protectorates

b. Federal states

c. Mandated and trust territories.

The objects of international law are person or thing in respect of which rights are held and obligations assumed by the subject.

Subject vs. object of international law

SUBJECT OBJECT

Entity that has rights and responsibilities under that law

Person or thing in respect of which rights are held and obligations assumed by the subject

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Has international personality that it can directly assert rights and can be held responsible under the law of nations

Not directly governed by the rules of international law

It can be a proper party in transactions involving the application of the law of nations among members of international communities

Its rights are received and its responsibilities imposed indirectly through the instrumentality of an intermediate agency

Note: Under the Traditional concept, only states are considered subjects of international law. However, under the Contemporary concept, individuals and international organizations are also subjects because they have rights and duties under international law.

1. States

A State is a community of persons, more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing an organized government to which the great body of inhabitants render habitual obedience.

The elements of a State are:

1. People – an aggregate of individuals of both sexes, who live together as a community despite racial or cultural differences.

2. Territory – fixed portion of the earth’s surface which the inhabitants occupy.

3. Government – the agency through which the will of the state is formulated, expressed and realized.

4. Independence/sovereignty – the power of a state to manage its external affairs without direction or interference from another state.

The concept of Association:

An association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free association represents a middle ground between integration and independence.

Example: Republic of the Marshall Islands and the Federated States of Micronesia formerly part of the U.S. Administered Trust Territory of the Pacific Islands.

The associated state arrangement has usually been used as a transitional device of former colonies on their way to full independence.

Example: Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada.

2. International organizations

An International Organization is a body created by sovereign states and whose functioning is regulated by international law, not the law of any given country. They have functional personality which is limited to what is necessary to carry out their functions as found in the instruments of the organization.

Note: The auxiliary status of Red Cross Society means that it is at one and the same time a private institution and a public service organization because the very nature of its work implies cooperation with the state. The PNRC, as a National

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Society of the International Red Cross and Red Crescent Movement, can neither be “classified as an instrumentality of the state, so as not to lose its character of neutrality” as well as its independence, nor its strictly as a private corporation since it is regulated by international humanitarian law and is treated as an auxiliary of the state. (Liban v. Gordon, G.R. 175352, Jan. 18, 2011)

3. Individuals

Status of an individual under public international law:

According to Hans Kelson, while as a general rule international law has as its subject states and obliges only immediately, it exceptionally applies to individuals because it is to man to whom norms of international law entrusts the responsibilities of law and order.

E. Diplomatic and consular law

DIPLOMATIC CONSULAR

“Premises of the mission” includes the building or parts of building and the land irrespective of the ownership used for the purpose of the mission including the residence of the head of mission

“Consular premises” includes the buildings or parts of buildings and the land irrespective of ownership used exclusively for the purposes of consular posts

GR: The agents of the receiving state may not enter the premises of the mission

XPN: consent of the head of the mission

GR: The agents of the receiving state may not enter the consular premises

XPN: consent of the head of the consular post

Consent is assumed in case of fire or other disasters requiring prompt protective action

Personal baggage of a diplomatic agent shall not be opened

Consular bag shall not be opened

It may be requested that the bag be opened in their presence by an authorized representative of the receiving state if they have serious reason to believe that the bag contains objects of other articles, documents, correspondence or articles

Not obliged to give evidence as a witness

May be called upon to attend as a witness; if declined, no coercive measure or penalty may be applied

F. Treaties

A treaty is an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.

Essential requisites of a valid treaty: VACLA

1. Be entered into by parties with the treaty-making Capacity

2. Through their Authorized representatives

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3. Without the attendance of duress, fraud, mistake, or other Vice of consent

4. On any Lawful subject-matter

5. In accordance with their respective constitutional process

The usual steps in the treaty-making process:

1. Negotiation– conducted by the parties to reach an agreement on its terms.

2. Signature – the signing of the text of the instrument agreed upon by the parties.

3. Ratification– the act by which the provisions of a treaty are formally confirmed and approved by the State.

4. Accession– a State can accede to a treaty only if invited or permitted to do so by the contracting parties. Such invitation or permission is usually given in the accession clause of the treaty itself.

5. Exchange of instruments of ratification;

6. Registration with the United Nations.

G. Nationality and statelessness

1. Vienna Convention on the Law of Treaties

Vienna Convention on the Law of Treaties (or VCLT) is a treaty concerning the international law on treaties between states. It was adopted on 22 May 1969 and opened for signature on 23 May 1969. The Convention entered into force on 27 January 1980.

The scope of the Convention is limited. It applies only to written treaties between States, excluding treaties concluded by international organizations (Article 1, Vienna Convention).

The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization. (Article 5, Vienna Convention)

H. State responsibility

1. Doctrine of state responsibility

Doctrine of State Responsibility states that a State may be held responsible for an international delinquency directly or indirectly imputable to it which causes injury to the national of another State. Liability will attach to the State where its treatment of the alien falls below the international standard of justice or where it is remiss in according him the protection or redress that is warranted by the circumstances.

The requisites for the enforcement of the doctrine of State Responsibility are:

1. The injured alien must first exhaust all local remedies; and

2. He must be represented in the international claim for damages by his own State

The elements of State Responsibility:

1. Breach of an international obligation

2. Attributability

Two kinds of State Responsibility?

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1. Direct State responsibility – Where the international delinquency was committed by superior government officials or organs like the chief of State or the national legislature, liability will attach immediately as their acts may not be effectively prevented or reversed under the constitution or laws of the State.

2. Indirect State responsibility – Where the offense is committed by inferior government officials or by private individuals. The State will be held liable only if, by reason of its indifference in preventing or punishing it, it can be considered to have connived in effecting its commission.

I. Jurisdiction of States

In Public International Law, jurisdiction is defined as the right of a State to exercise authority over persons and things within its boundaries subject to certain exceptions.

1. Territoriality principle

Principle of Territoriality states that a state has absolute, but not necessarily exclusive, power to prescribe, adjudicate and enforce rules of conduct that occurs within its territory.

Note: An aspect of this principle us the “effects doctrine” – which provides that a state has jurisdiction over acts occurring outside its territory but having effects within it.

Extra-territoriality is the exemption of foreign persons from the jurisdiction of the State of residence and it arises from treaty provisions.

2. Nationality principle and statelessness

Nationality Doctrine states that a State may exercise jurisdiction over its nationals, with respect to their conduct, whether within or outside its territory.

3. Protective principle

Protective Principle states that any State has the right to punish acts even if committed outside its territory, when such acts constitute attacks against its security, as long as that conduct is generally recognized as criminal by states in the international community.

Note: Examples are plots to overthrow the government, forging its currency, and plot to break its immigration regulations.

4. Universality principle

Universality of Jurisdiction states that certain offenses are so heinous and so widely condemned that any state that captures an offender may prosecute and punish that person on behalf of the international community regardless of the nationality of the offender or victim or where the crime was committed.

5. Passive personality principle

This principle authorizes states to assert jurisdiction over offenses committed against their citizens abroad. It recognizes that each state has a legitimate interest in protecting the safety of its citizens when they journey outside national boundaries.

6. Conflicts of jurisdiction

The three modes of addressing conflicts of jurisdiction:

1. Balancing Test

2. International Comity

3. Forum non conveniens

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J. Treatment of aliens

1. Extradition

a. Fundamental principles

1. Based on the consent of the State expressed in a treaty

2. Principle of Specialty – a fugitive who is extradited may be tried only for the crime specified in the request for extradition and included in the list of offenses in the extradition treaty, unless the requested State does not object to the trial of such person for the unlisted offense

3. Any person may be extradited, whether he is a national of the requesting State, of the State of refuge or of another State. He need not be a citizen of the requesting State.

4. Political or religious offenders are generally not subject to extradition.

Note: Attentant clause is a provision in an extradition treaty which states that the murder or assassination of the head of a state or any member of his family will not be considered as a political offense and therefore extraditable.

5. The offense must have been committed within the territory of the requesting State or against its interest

6. Double Criminality Rule – The act for which the extradition is sought must be punishable in both States

b. Procedure

1. File/issue request through diplomatic representative with:

a. Decision of conviction

b. Criminal charge and warrant of arrest

c. Recital of facts

d. Text of applicable law designating the offense

e. Pertinent papers

2. DFA forwards request to DOJ

3. DOJ files petition for extradition with RTC

4. Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make, as soon as possible, a prima facie finding whether (a) they are sufficient in form and substance, (b) they show compliance with the Extradition Treaty and Law, and (c) the person sought is extraditable. At his discretion, the judge may require the submission of further documentation or may personally examine the affiants and witnesses of the petitioner. If, in spite of this study and examination, no prima facie finding is possible, the petition may be dismissed at the discretion of the judge.

5. On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately issue a warrant for the arrest of the extraditee, who is at the same time summoned to answer the petition and to appear at scheduled summary hearings.

6. Hearing (provide counsel de officio if necessary);

7. Appeal to CA within ten days whose decision shall be final and executory;

8. Decision forwarded to DFA through the DOJ;

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9. Individual placed at the disposal of the authorities of requesting State – costs and expenses to be shouldered by requesting State.

c. Distinguished from deportation

EXTRADITION DEPORTATION

Effected at the request of the State of origin

Unilateral act of the local State

Based on offenses committed in the State of origin

Based on causes arising in the local State

Calls of the return of the fugitive to the State or origin

Undesirable alien may be deported to a State other than his own or the State of origin.

K. International Human Rights Law

1. Universal Declaration of Human Rights

Universal Declaration of Human Rights is the basic international statement of the inalienable rights of human beings. It is the first comprehensive international human rights instrument. It covers Civil and Political rights and economic, social and cultural rights.

Note: Rights covered by UDHR are customary international law, hence, even during the times the times when the bill of rights under the constitution are inoperative, rights under UDHR remained in effect. (Republic v. Sandiganbayan, G.R. No. 104768, July 21,2003)

2. International Covenant on Civil and Political Rights

The rights guaranteed in the International Covenant on Civil and Political rights are:

1. Right to self-determination

2. Right to an effective remedy

3. Equal right of men and women to the enjoyment of all the civil and political rights

4. Right to life

5. Not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, freedom from medical or scientific experimentation except with his consent

6. Freedom from slavery and servitude

7. Right to liberty and security of person

8. Right to be treated with humanity and with respect for the inherent dignity of the human person

9. No imprisonment on the ground of inability to fulfill a contractual obligation

10. Right to liberty of movement and freedom to choose his residence

11. Right to a fair and public hearing by a competent, independent and impartial tribunal established by law

12. No one shall be held guilty of an criminal offense on account of any act or omission which did not constitute a criminal office, under national or international law, at the time when it was committed

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13. Right to recognition everywhere as a person before the law

14. Right to privacy

15. Right to freedom of thought, conscience and religion

16. Right to freedom of expressions

17. Right of peaceful assembly

18. Right of freedom of association

19. Right to marry and to found a family

20. Right to such measures of protection as are required by his status as a minor, name and nationality

21. Right to participation, suffrage and access to public service

22. Right to equal protection of the law

23. Right of minorities to enjoy their own culture, to profess and practice their religion and to use their own language.

3. International Covenant on Economic, Social and Cultural Rights

The rights guaranteed under International Covenant on Economic, Social and Cultural Rights (ICESR):

1. Right of Self Determination

2. Right to work and accompanying rights thereto

3. Right to Social Security and other social rights

4. Adequate standard of living which includes;

5. Right to adequate housing

6. Right to adequate food

7. Right to adequate clothing

8. Right to health

9. Right to education

10. Cultural Rights

L. International Humanitarian Law and neutrality

1. Categories of armed conflicts

a. International armed conflicts

Between two or more States including belligerent occupation.

Differentiate between an armed conflict contemplated under the IHL and under R.A. 9851:

1. “All cases of declared war or any other armed conflict which may arise between two or more of the Highest contracting parties, even if the State of war is not recognized by one of them” (Article 2, Geneva convention of 1949). It also applies to armed conflict between the government and a rebel or insurgent movement (Article 3, Geneva convention of 1949).

2. Under R.A. 9851, it is any use of force or armed violence between States or a protracted armed violence between governmental authorities and organized groups or between such groups within a State provided that it gives rise or may give rise to a situation to which the Geneva Conventions of 12 August 1949 including their common Article 3, apply

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Instances that are not covered by an armed conflict:

1. Riots

2. Isolated and sporadic acts of violence

3. Other acts of a similar nature

b. Internal or non-international armed conflict

between governmental authorities and organized armed groups or between such groups within a State.

Note: It does not cover internal disturbances or tensions such as riots, isolated and sporadic acts of violence or other acts of a similar nature. (R.A. 9851)

c. War of national liberation

An armed struggle waged by a people through its liberation movement against the established government to reach self-determination. (Ronzitti, Cassese, 1975). It is also used to denote conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the U.N. Charter and the Declaration of Principles of International Law. [Article 1(4), Protocol I]

Wars of national liberation are armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination. [Article 1(4), Protocol I] These are sometimes called insurgencies, rebellions or wars of independence.

2. Core international obligations of states in International Humanitarian Law

Essential rules of IHL:

1. The parties to a conflict must at all times distinguish between the civilian population and combatants.

2. Neither the civilian population as a whole nor individual civilians may be attacked

3. Attacks may be made sole against military objectives.

4. People who do not or can no longer take part in the hostilities are entitled to respect for their lives and for their physical and mental integrity and must be treated with humanity, without any unfavorable distinction whatever.

5. It is forbidden to kill or wound an adversary who surrenders or who can no longer take part in the fighting.

6. Neither the parties to the conflict nor members of their armed forces have an unlimited right to choose methods and means of warfare.

7. It is forbidden to use weapons or methods of warfare that are likely to cause unnecessary losses and excessive suffering.

8. The wounded and sick must be collected and cared for by the party to the conflict which has them in its power.

9. Medical personnel and medical establishments, transports and equipment must be spared. The red cross or red crescent is the distinctive sign indicating that such persons and objects must be respected.

10. Captured combatants and civilians who find themselves under the authority of the adverse party are entitled to respect for their lives, their dignity, their

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personal rights and their political, religious and other convictions and must be protected against all acts of violence or reprisals; entitled to exchange of news with their families and receive aid and enjoy basic judicial guarantees.

3. Principles of International Humanitarian Law

a. Treatment of civilians

Martens clause/Principle of Humanity: In cases not covered by other international agreements, civilians and combatants remain under the protection and authority of the principles of International Law derived from established custom, from the Principles of Humanity and from the dictates of public conscience

b. Prisoners of war

Prisoners of war are those lawful combatants who have fallen into the power of the enemy.

The rights and privileges of prisoners of war are: :

1. To be treated humanely

2. Not to be subject to torture

3. To be allowed to communicate with their families

4. To receive food, clothing, religious articles, and medicine

5. To bare minimum of information

6. To keep personal belongings

7. To proper burial

8. To be grouped according to nationality

9. To the establishment of an informed bureau

10. To repatriation for sick and wounded (1949 Geneva Convention)

4. Law on neutrality

Neutrality is non-participation, directly or indirectly, in a war between contending belligerents. This exists only during war time and is governed by the law of nations. Examples of these states are Switzerland, Sweden, The Vatican City, Costa Rica.

Non-alignment (Neutralism) refers to peacetime foreign policies of nations desiring to remain detached from conflicting interests of other nations or power groups.

A neutralist policy is the policy of the state to remain neutral in future wars. Non-alignment is the implementation of neutralism.

M. Law of the sea

International Law of the Sea (ILS) is a body of treaty rules and customary norms governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes.

United Nations Convention on the Law of the Sea (UNCLOS) defines the rights and obligations of nations in their use of the world’s oceans, establishing rules for business, the environment and the management of marine natural resources.

Mare liberum principle or the Free Sea or Freedom of the Sea means international waters are free to all nations and belongs to none of them.

1. Baselines

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A baseline is a line from which the breadth of the territorial sea, the contiguous zone and the exclusive economic zone is measured in order to determine the maritime boundary of the coastal State.

How is the normal baseline determined? It is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state. (Article 5, UNCLOS)

Baseline is formed in the following:

1. Mouths of Rivers – If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the low-water line of its banks. (Article 9, UNLOS)

2. Bays – Where the distance between the low-water marks of the natural entrance points:

a. Does not exceed 24 nautical miles – closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters. (Article 10 [4], UNCLOS)

b. Exceeds 24 nautical miles–straight baseline of 24 nautical miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length. (Article 10 [5], UNCLOS)

Note: This relates only to bays the coasts of which belong to a single State and does not apply to “historic” bays (Article 10 (1), UNCLOS)

2. Archipelagic states

Archipelago means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such (Article 46, UNCLOS)

Archipelagic State is a state constituted wholly by one or more archipelagos and may include other islands. (Article 46, UNCLOS)

a. Straight archipelagic baselines

How may an archipelagic State draw straight archipelagic Baselines? By joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ration of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. (Article 47, UNCLOS)

Guidelines in drawing archipelagic baselines:

1. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. (Article 47 [2], UNCLOS)

2. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. (Article 47[3], UNCLOS)

3. Such baselines shall not be drawn to and from low tide elevations (Article 47[4], UNCLOS)

Note: Unless lighthouses or similar installations which are permanently above sea level have been built on them or where a low-tide elevation is situated wholly or partly at a distances not exceeding the breath of the territorial sea from the nearest island. (Ibid)

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4. It shall not be applied in such a manner as to cut off from the high seas or the exclusive economic zone the territorial sea of another State. (Article 47[5], UNCLOS)

5. If a part of the archipelagic water of an archipelagic State lies between two parts of an immediately adjacent neighboring State, existing rights and all other legitimate interests which the latter State has traditionally exercised in such waters and all rights stipulated by agreement between those States shall continue and be respected. (Article 47[6], UNCLOS)

b. Archipelagic waters

Archipelagic waters are waters enclosed by the archipelagic baselines, regardless of their depth or distance from the coast. (Article 49[1], UNCLOS)

c. Archipelagic sea lanes passage

Right of Archipelagic Sea Lanes Passage is the right of foreign ships and aircraft to have continuous, expeditious and unobstructed passage in sea lanes and air routes through or over the archipelagic waters and the adjacent territorial sea of the archipelagic state, “in transit between one part of the high seas or an exclusive economic zone.” All ships and aircraft are entitled to the right of archipelagic sea lanes passage. (Magallona, 2005; Article 53[1] in relation with Article 53[3], UNCLOS)

3. Internal waters

Internal waters are waters of lakes, rivers and bays landward of the baseline of the territorial sea. Waters on the landward side of the baseline of the territorial sea also form part of the internal waters of the coastal state. However, in the case of archipelagic states, waters landward of the baseline other than those of rivers, bays, and lakes, are archipelagic waters. (Magallona, p. 409; Article 8 [1], UNCLOS)

4. Territorial sea

The breadth of the territorial sea: Every State has the right to establish the breadth of the territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines. (Article 3, UNCLOS)

The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea. (Article 4, UNCLOS)

Distinguish briefly but clearly between the territorial sea and the internal waters of the Philippines. (2004 Bar Question)

Territorial water is defined by historic right or treaty limits while internal water is defined by the archipelago doctrine. The territorial waters, as defined in the Convention on the Law of the Sea, has a uniform breadth of 12 miles measured from the lower water mark of the coast; while the outermost points of our archipelago which are connected with baselines and all waters comprised therein are regarded as internal waters.

Importance of the distinction between internal waters and territorial sea: In the territorial sea, a foreign State can claim for its ships the right of innocent passage, whereas in the internal waters of a State no such right exists. (Salonga & Yap, 1992)

Methods used in defining territorial sea:

1. Normal baseline method – the territorial sea is simply drawn from the low-water mark of the coast, to the breadth claimed, following its sinuousness and curvatures but excluding the internal waters in the bays and gulfs. (Article 5, UNCLOS)

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2. Straight baseline method – where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measure. (Article. 7, UNCLOS)

Note: The Philippines uses this method in drawing baselines.

The right of innocent passage means navigation through the territorial sea of a State for the purpose of traversing the sea without entering internal waters, or of proceeding to internal waters, or making for the high seas from internal waters, as long as it is not prejudicial to the peace, good order or security of the coastal State. (Articles 18 [1][2], 19[1], UNCLOS)

When is the right of innocent passage considered prejudicial?

If the foreign ship engages in the following activities:

1. Any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

2. Any exercise or practice with weapons of any kind;

3. Any act aimed at collecting information to the prejudice of the defense or security of the coastal State;

4. Any act aimed at collecting information to the prejudice of the defense or security of the coastal State;

5. Any act of propaganda aimed at affecting the defense or security of the coastal State;

6. The launching, landing or taking on board of any aircraft;

7. The launching, landing or taking on board of any military device;

8. The loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

9. Any act of willful and serious pollution contrary the Convention;

10. Any fishering activities;

11. The carrying out of research or survey activities;

12. Any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;

13. Any other activity not having a direct bearing on passage. (Article 19 [2], UNCLOS)

5. Exclusive economic zone

The exclusive economic zone gives the coastal State sovereign rights overall economic resources of the sea, sea-bed and subsoil in an area extending not more than 200 nautical miles beyond the baseline from which the territorial sea is measured. (Magallona, 2005, p. 416; Articles 55 & 57, UNCLOS))

6. Continental shelf

a. Extended continental shelf

Extended Continental Shelf is that portion of the continental shelf that lies beyond the 200 nautical miles limit in the juridical/legal continental Shelf. (Ibid)

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Benham Plateau also known as the Benham Rise, it is an area currently claimed, as part of its continental shelf, by the Republic of the Philippines. It has lodged its claim on the area with the United Nations Commission on the Limits of the Continental Shelf on April 8, 2009. (A Partial Submission of Data and Information on the Outer Limits of the Continental Shelf of the Republic of the Philippines pursuant to Article 76(8) of the UNCLOS)

Note: The UNCLOS already approved the claim of the Philippines that the Benham Plateau is part of Philippine Territory in April 2012.

7. International Tribunal for the Law of the Sea

International Tribunal of the Law of the Sea (ITLoS) is an independent judicial body established by the Third United Nations Convention on the Law of the Sea that adjudicates disputes arising out of the interpretation and application of the Convention. It was established after Ambassador Arvido Pardo Malta addressed the General Assembly of the United Nations and called for “an effective international regime over the seabed and ocean floor beyond a clearly defined national jurisdiction”. Its seat is in Hamburg, Germany.

The jurisdiction of the Tribunal: Its jurisdiction comprises all disputes and all applications submitted to it and all matters specifically provided for in any other agreement which confers jurisdiction to the Tribunal.

Rules with regard to membership of the Tribunal:

1. No two members of the Tribunal may be nationals of the same State. (Article 3[1], UNCLOS)

Note: Otherwise, the person shall be deemed to be a national of the one in which he ordinarily exercises civil and political rights. (Ibid)

2. There should be no fewer than three members from each geographical group to be established by the GA. (Article 3[2] , UNCLOS)

3. No member of the Tribunal may exercise any political or administrative function, or associate actively with or be financially interested in any of the operations of any enterprise concerned with the exploration for or exploitation of the resources of the sea or the seabed or other commercial use of the sea or the seabed. (Article 7[1], UNCLOS)

4. No member of the Tribunal may act as agent, counsel or advocate in any case. (Article 7[2], UNCLOS)

5. No member of the Tribunal may participate in the decision of any case in which he has previously taken part as agent, counsel or advocate for one of the parties, or as a member of a national or international court or tribunal, or in any other capacity. (Article 8[1], UNCLOS)

6. If for some special reason a member of the Tribunal should not sit in a particular case:

a. Member should inform the President of the Tribunal; (Article 8[2], UNCLOS) or

b. President should give the member notice accordingly. (Article 8[3], UNCLOS)

Note: Any doubt shall be resolved by decision of the majority of other members of the Tribunal present. (Article 7, 8, UNCLOS)

N. Madrid Protocol and the Paris Convention for the Protection of Industrial Property

Madrid Protocol is the Protocol relating to the Madrid Agreement which governs the system of international registration of marks. The system makes it possible to protect

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a mark in a large number of countries by obtaining an international registration which has effect in each of the Contracting Parties that has been designated.

The process for securing protection of marks through international registration:

1. Where an application for the registration of a mark has been filed with the Office of a Contracting Party or registered in the register of the of the Office of a Contracting party, the person in whose name that application (basic application) or that registration (basic registration) stands may, subject to the provisions of the Madrid Protocol, secure protection for his mark in the territory of the Contracting Parties, by obtaining the registration of that mark in the register of the International Bureau of the World Intellectual Property Organization, provided that: where the basic application has been filed with the Office of a Contracting State or Organization or where the basic registration has been made by such an Office, the person in whose name that application or registration stands is a NATIONAL of that Contracting State or Organization, or is DOMICILED, or has a REAL AND EFFECTIVE INDURSTRIAL OR COMMERCIAL ESTABLISHMENT, in the said Contracting State.

2. The application for international registration (international application) shall be filed with the International Bureau through the intermediary of the Office with which the basic application was filed or by which the basic registration was made, as the case may be.

Note: Any reference to an “Office” shall be construed as a reference to the office that is in charge, on behalf of a Contracting Party ,of the registration of marks, and any reference to “marks” shall be construed to pertain to trademarks and service marks.

“Territory of a Contracting Party” means, where the Contracting Party is a State, the territory of that State, and where the Contracting Party is an intergovernmental organization, the territory in which the constituting treaty of that intergovernmental organization applies. (Art. 2, Madrid Protocol)

O. International environmental law

International Environmental Law (IEL) is the branch of public international law comprising "those substantive, procedural and institutional rules which have as their primary objective the protection of the environment," the term environment being understood as encompassing "both the features and the products of the natural world and those of human civilization. (Philippe Sands, Principles of International Environmental Law, 2003)

1. Principle 21 of the Stockholm Declaration

Stockholm Declaration, or the Declaration of the United Nations Conference on the Human Environment, was adopted on June 16, 1972 in Stockholm, Sweden. It contains 26 principles and 109 recommendations regarding the preservation and enhancement of the right to a healthy environment.

Principle 21 of the Stockholm Declaration provide that:

1. The sovereign right to exploit their own resources pursuant to their own environmental policies, and

2. The responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

Is Principle 21 of the Stockholm Declaration a part of customary law? Yes. The Court recognizes that the environment is daily under threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The court also recognizes that the environment is not an abstraction but represents

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the living space, the quality of life and the very human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment. (Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, July 8, 1996). The Court has also no difficulty in acknowledging that the concerns expressed by Hungary for its natural environment in the region affected by the Gabcikovo-Nagyamaros Project related to an “essential interest” of the State, within the meaning given to that expression in Article 33 of the Draft of the International Law Commission. (Case Concerning the Gabcikovo-Nagyamaros Project, Sept. 25, 1997)

P. International economic law

The characteristics of International Economic Law:

1. It is part of public international law

2. It is intertwined with municipal law

3. It requires multi-disciplinary thinking involving as it does not only economics but also political science, history, anthropology, geography, etc.

4. Empirical research is very important for understanding its operation.

Key principles of International Trade Law?

1. Agreed tariff levels. The GATT contains specified tariff levels for each state. Each state agrees not to raise tariff levels above those contained in the schedule.

2. The most favored nation principle (MFN). The principle means that any special treatment given to a product from one trading partner must be made available for like products originating from or destined for other contracting parties.

3. Principle of National Treatment. This prohibits discrimination between domestic producers and foreign producers.

2. Principle of Tariffication. This principle prohibits the use of quotas on imports or exports and the use of licenses on importation or exportation.

The exceptions to the abovementioned key principles are:

Some of the exceptions are general in nature such as those referring to public morals, public health, currency protection, products of prison labor, national treasures of historic, artistic or archeological value, and protection of exhaustible natural resources.

IMPORTANT NOTES:

1. This listing of covered topics is not intended and should not be used by the law schools as a course outline. This was drawn up for the limited purpose of ensuring that Bar candidates are guided on the coverage of the 2014 Bar Examinations.

2. All Supreme Court decisions - pertinent to a given Bar subject and its listed topics, and promulgated up to March 31, 2014 - are examinable materials within the coverage of the 2014 Bar Examinations.

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