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THE JUDICIARY

ART. VIII Sec. 1 Par. 1- The judicial power shall be vested


in one Supreme Court and in such lower courts as may be
established by law
*The Supreme Court is the only constitutional court.
Q. SB?
A. No. It is not a constitutional court, although mentioned in
the Constitution. It is only a constitutionally mandated
court.
*Judicial power is not vested in the Supreme Court alone.
*It is vested as well in such lower courts as may be
established by law.
Such lower courts as may be established by law (BP 129
Judiciary Reorganization Act of 1980)
*Court of Appeals- referred to as lower collegiate courts
*Regional Trial Courts- courts of general jurisdiction
*Courts of limited jurisdiction- (1) Metropolitan Trial Courts
(2) MTCC [chartered cities] (3) Municipal Trial Courts/
Municipal Circuit Trial Courts
*Sandiganbayan- special court having jurisdiction over
public officers; co-equal with the Court of Appeals.
*Court of Tax Appeals- special court having jurisdiction over
tax appeals cases.
*SHARIAH COURTS- pursuant to Muslim Code; 2 levels:
(1) Shariah District Court- equivalent to
RTC
(2) Shariah Circuit Court- equivalent to

JUDICIAL POWER
DOCTRINE

AND

POLITICAL

QUESTION

Q. What is JUDICIAL POWER?


A. 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. (Art. VIII,
Sec. 1, Par. 2)
- Definition of Judicial Power.
- Not found in the 1935 and 1973 Constitution.
- Represents a broadening of judicial power to enable the
courts of justice to review what was before forbidden
territory.
DUTY
-The provision uses the word DUTY
-The settlement of controversies and the determination of
whether or not there has been grave abuse of discretion is
not merely a power- it is a duty of the courts as well.
-in power, the power holder has discretion to exercise.
-if it was only a power, then the courts has the discretion to
exercise it or not.
-Since it is a duty, there is no such discretion- the exercise
of the power is obligatory and mandatory upon the courts.
TWO PARTS OF THE DEFINITION
1. To settle actual controversies involving rights which are
legally demandable and enforceable. (TRADITIONAL)

MTC

-Very limited definition.

*QUASI JUDICIAL BODIES- strictly speaking, they are not


courts- do not form part of the judicial system.

-Maybe defeated by the political question doctrine.

- They are
administrative bodies performing quasi-judicial functions.

2. To determine whether or not there has been grave abuse


of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government. (EXPANDED)

- In Remedial Law, referred to loosely as special courtsDoctrine of Primary Jurisdiction.


- Part of the executive.
Ex. CSC, SEC, COA, COMELEC

-Expanded Power of Judicial Review or the Extraordinary


Power to Determine Grave Abuse of Discretion as referred
to by the Supreme Court.
-Political question doctrine has been greatly diminished.

*Since quasi-judicial bodies are not strictly courts, their


jurisdiction is strictly construed against them.
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

Q. How does the definition of judicial power under the


present Constitution affected the political question
doctrine?
A. The 1987 Constitution expands the concept of judicial
review. Under the expanded definition, the Court cannot
agree xxx that the issues involved is a political question
beyond the jurisdiction of the court to review. When the
grant of power is qualified, conditional or subject to
limitations, the issue of whether the prescribed
qualifications or conditions have been met or the limitations
respected is justiciable the problem being one of legality
or validity, not its wisdom. Moreover, the jurisdiction to
delimit constitutional boundaries has been given to this
court. When political questions are involved, the
Constitution limits the delimitation as to whether or not
there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the official
whose action is being questioned.
Q. What are political questions?

1.

Those questions which under the


Constitution are to be decided by the people
in their sovereign capacity.

Ex. Recall under the LGC


-A mode of removing a local elective official even before
the 3 year term on the ground of loss of trust/confidence.
-There is only one ground for recall-loss of confidence.
EVARDONE VS. COMELEC
*Loss of confidence as a ground for recall is a political
question.
*After all, the initiation of the recall process is not the recall
itself.
*In the recall election, the people will decide whether or not
they have lost their confidence in the official concerned.

A.-Origin: The principle of separation of powers.

*Hence, it is a question which has to be decided by the


people in their sovereign capacity.

-In turn, this principle is the result of our Presidential


System of Government.

*When? In the recall election itself.

(In a Parliamentary government, the executive and the


legislative branches are welded together)

*Not subject to judicial review.


ESTRADA VS. DESIERTO-EDSA 1

-Thus, legislative power is given to Congress; executive


power is given to the President and judicial power is given
to the Supreme Court- 3 great powers distributed among 3
branches of government.

*Lawyers League for a Better Philippines vs. Aquino

-The legislative and the executive are called POLITICAL


BRANCHES of the government, where policies are
formulated, enacted and implemented.

*According to the petition, most of the people who went to


EDSA are not really serious in overthrowing the Marcos
government. (Most were vendors)

-Questions of policy that are formulated by the political


branches and thus cannot be the subject of judicial review.
This includes questions involving the wisdom, propriety,
efficacy or morality of an act.

SC: dismissed the petition.

TAADA VS. CUENCO


-Classic definition of political question.
-POLITICAL QUESTIONS refer to 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.
TWO TYPES OF POLITICAL QUESTIONS

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

*Oliver Lozano filed a petition before the Supreme Court


questioning the legitimacy of the Cory government.

*No matter, We will no longer inquire into the motives of the


people in going to EDSA. The facts were: because of the
magnitude of the people who were in EDSA, Marcos fled to
Hawaii, so that the Cory government was able to take
effective control of the machinery of the State without
resistance from the people. Furthermore, the international
community has recognized the Cory Government. Hence,
there can be no more question as to the de jure status of
the said government.
*The Aquino government was the result of a successful
revolution by the sovereign people-it was installed through
a direct exercise of the power of the Filipino people, in
defiance of the provisions of the 1973 Constitution. The
legitimacy of a government sired by a successful revolution
by people power is beyond judicial scrutiny; such

government automatically orbits out of the constitutional


loop.
Estrada vs. Desierto
*Desierto argues that the legitimacy of Arroyos assumption
to the presidency is a political question, and invokes the
ruling in the Lawyers League case.
SC: No. (Justice Reynato S. Puno)
*Arroyos government is not revolutionary in character. The
oath she took is the oath under the 1987 Constitution.
Indeed, she has stressed that she is discharging the
powers of the presidency under the authority of the 1987
Constitution.
LEGAL DISTINCTIONS BETWEEN EDSA 1 AND EDSA 2
EDSA 1
-Involves the exercise of the people power of revolution which
overthrows the whole government.

-Extra-constitutional and the legitimacy of the new government


that resulted from it cannot be the subject of judicial review.

-Presented a political question.

*When the President calls the armed forces to prevent or


suppress lawless violence, invasion or rebellion, he
necessarily exercises a discretionary power solely vested
in his wisdom. This is clear from the intent of the framers
and from the text of the Constitution. Thus, the Court
cannot be compelled upon to overrule the Presidents
wisdom or substitute its own. However this does not
prevent an examination of whether such power was
exercised within permissible constitutional limits or whether
it was exercised in a manner constituting grave abuse of
discretion.
3 powers under Art. VII, Sec. 18
1.

Calling out power as commander-in-chief of AFP

2.

Declare Martial Law

3.

Suspend the privilege of the writ of habeas


corpus

*Unlike in the past, the power to declare martial law and to


suspend the privilege of the writ of habeas corpus were
expressly made subject of judicial review.
*Article VII, Sec. 18, Par 3- 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
within thirty days from its filing.
CALLING OUT POWER
-It is a political question.

2.

Those in regard to which full discretionary


authority has been delegated by the
Constitution to the executive or legislative
branch of the government.
Ex. Calling out power of the President under
Article VII, Sec. 18

IBP VS. ZAMORA


*During the time of President Estrada, he issued a LOI
ordering the deployment of Marines in the metropolis to
conduct joint visibility patrols with members of the PNP in
various shopping malls.
*IBP asks that the exercise of such power be subjected to
judicial review.
SC: No.

-A question in regard to which full discretionary authority


has been delegated by the Constitution to the President.
SC: It is the unclouded intent of the Court to grant to the
President full discretionary authority. The hands of the
President should not be tied; otherwise, this could be a
veritable proscription for disaster. Unless grave abuse of
discretion is shown, the Presidents exercise of the power
should not be questioned. Mere abuse of discretion will not
suffice. To doubt is to sustain.
Q. What is the effect of the EXPANDED CONCEPT OF
JUDICIAL POWER on the political question doctrine?
A. It has lessened the political question doctrine. Thus,
even if it is a political question, if there appears to be abuse
of discretion, the Court may review it.
*The burden is upon petitioners- the ones assailing the act.
*It must be grave abuse of discretion to warrant judicial
intervention.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

*Mere abuse of discretion is not enough.


*To doubt is to sustain the act of the person.
Q. Why the difference in treatment?
A. Calling out power is the lesser and more benign power
while the power to declare martial law and to suspend the
privilege of the writ of habeas corpus are the greater
powers which involve direct curtailment of civil liberties
thereby necessitating safeguards of Congress and judicial
review of the Court. (IBP VS. ZAMORA)
DAVID VS. GMA
*PGMA exercised the calling out power when she issued
GO 5 and PP 1017, not the martial law power. The acts
taken purportedly to carry out the issuances were ultra
vires, hence, unconstitutional. The exercise of the calling
out power does not involve the direct curtailment and
suppression of civil liberties and individual freedoms.
However GO 5 and PP1017 are constitutional. Petitioners
failed to counteract the factual bases therefore as alleged
by the Solgen.
Q. Why not the martial law powers?
A. There was no case of invasion or rebellion. President
will be required to submit report to (kulang page ko, sorry...)
Q. What are the THREE IMPORTANT FUNCTIONS OF
THE COURT?
A. 1. Checking
2. Legitimizing
3. Symbolic
SYMBOLIC FUNCTION OF THE COURT
-

It is the duty of the Court to formulate guiding and


controlling principles, precepts, doctrines or
rules. It has the symbolic function of educating
the bench and the bar on the extent of protection
given by Constitutional guaranties.

Q. What are the requisites for a proper exercise of the


power of JUDICIAL REVIEW?
A. The time-tested standards for the exercise of judicial
review are:

3. The plea that the function be exercised at the


earliest opportunity; and
4. The necessity that the constitutional question
be passed upon in order to decide the case.
THE MEANING OF ACTUAL CASE OR CONTROVERSY
-It means an existing case or controversy which is both ripe
for resolution and susceptible of judicial determination and
that which is not conjectural or clarificatory, or that which
seeks to resolve hypothetical or feigned constitutional
problems. (IBP VS. ZAMORA)
*There must also be a conflict of rights-opposing views or
contentions-if not, the Court would be resolving issues that
remain unfocused because they lack concreteness.
*The controversy must also be justiciable-meaning
susceptible of judicial determination.
Q. May courts render advisory opinions?
A. No, courts can only decide actual controversies, not
hypothetical questions or cases.
-There must be an actual case or controversy to be
resolved.
-The definition of judicial power under Art. VIII is clear. The
evil sought to be avoided is the possible violation of due
process. It is also repugnant to the Principle of Separation
of Powers. If a case is bought involving the same issue, the
court might be forced to follow.
*On the other hand, INTERNATIONAL COURT OF
JUSTICE can render advisory opinions.
Q. Basis?
A. 1. Statute of ICJ itself
2. UN Charter
2 MAIN FUNCTIONS OF THE ICJ:
1.

To resolve contentious cases

2.

To render advisory opinions to UN organs

MOOT AND ACADEMIC CASES

1. The existence of an appropriate case;


2. An interest personal and substantial by the
party raising the constitutional
question;

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

A moot and academic case is one that ceases to


present a justiciable controversy by virtue of
supervening events, so that a declaration thereon
would be of no practical use or value. Generally,
courts decline jurisdiction over such case or
dismiss it on ground of mootness. (David vs.
GMA)

*The moot and academic principle is not a magical formula


that can automatically dissuade the courts in resolving a
case. Courts will decide cases, otherwise moot and
academic, if:

1.
2.
3.
4.

There is a grave violation of the Constitution;


The exceptional character of the situation and the
paramount public interest involved;
When constitutional issue raised requires
formulation of controlling principles to guide the
bench, the bar, and the public; and
The case is capable of repetition yet evading
review. (David vs. GMA)

PROPER PARTY REQUIREMENT

standi. However, IBP has advanced constitutional issues


which deserve attention of this court, in view of their
seriousness, novelty and weight as precedents.
TAXPAYERS SUIT
To constitute a taxpayers suit, two requisites must be met,
namely:
1.

That public funds are disbursed by a political


subdivision or instrumentality and in doing so, a
law is violated or some irregularity is committed;
and

2.

That the petitioner is directly affected by the


alleged ultra vires act.

KILOSBAYAN VS. MORATO


*Kilosbayan filed 2 petitions as a taxpayer.
SC: Taxpayer suit does not lie because the issue does not
involve the disbursement of public funds. Rather, what is
involved was the interpretation of the charter of the PCSO.
THE CONSTITUTIONAL QUESTION MUST BE RAISED
AT THE EARLIEST OPPORTUNE TIME
-

It is not the date of the filing of the petition that


determines whether the constitutional issue was
raised at the earliest opportunity. The earliest
opportunity to raise a constitutional issue is to
raise it in the pleadings before a competent court
that can resolve the same, such that, if it is not
raised in the pleadings, it cannot be considered
at the trial, and if not considered at the trial, it
cannot be considered on appeal. (Matibag vs.
Benipayo)

However in criminal cases, the accused may


raise the constitutional question even for the first
time on appeal. This is because criminal cases
involve the basic rights of the accused to life and
liberty.

Q. What is the meaning of locus standi?


A. LEGAL STANDING or LOCUS STANDI has been
defined as a personal and substantial interest in the case,
such that a party has sustained or will sustain direct injury
as a result of the governmental act that is being
challenged.
The term INTEREST means a material interest, an
interest in issue affected by the decree, as distinguished
from mere interest in the question involved, or a mere
incidental interest.
*The gist of the question of standing is whether a party
alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions.
(IBP vs. Zamora)
IBP VS. ZAMORA
*IBP has no locus standi. The mere invocation of its duty to
preserve the rule of law is a too general interest. It has not
shown any injury it has suffered nor will suffer by virtue of
the act complained of. The presumed injury is not personal,
too vague, highly speculative and uncertain to confer locus

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

MATIBAG VS. BENIPAYO


*Matibag questioned the legality of the appointments of
Benipayo, Borra and Tuason on 03 August 2001, when
their first appointments were issued on 22 April 2001. Thus,
it is argued that the constitutional question was not raised
on the earliest possible opportunity.
SC: No. It is not the date of the filing that determines
whether the constitutional question was raised at the
earliest possible opportunity. The earliest opportunity to
raise a constitutional issue is to raise it in the pleadings
before a competent court that can resolve it, such that if not

raised in the pleadings, it cannot be raised on appeal.


Here, Matibag questioned the legality of said appointments
when she filed her petition before the Supreme Court,
which is the earliest opportunity for pleading the
constitutional issue before a competent body.

2.

THE CONSTITUTIONAL QUESTION MUST BE THE


VERY LIS MOTA OF THE ENTIRE CONTROVERSY
*The constitutional question must be the main issue of the
controversy.
*There is no way that the Court may resolve the entire
case, unless it first resolves the constitutional question
raised.
AMENDMENTS OR REVISIONS (ARTICLE XVII)
3 ESSENTIAL ELEMENTS OF A GOOD WRITTEN
CONSTITUTION:
1.

Constitution of Government: Articles VI, VII, VIII,


IX, X

2.

Constitution of Liberty: Article III (Bill of Rights)

3.

Constitution of Sovereignty:
(Amendatory Process)

Article

XVII

AMENDMENT
-refers to a change that adds, reduces or deletes without
altering the basic principle involved.

QUALITATIVE TEST: inquires into the qualitative


effects of the proposed change in the
Constitution. The main inquiry is whether the
change will accomplish such far reaching
changes in the nature of our basic governmental
plan as to amount to a revision. Whether there is
an alteration in the structure of government is a
proper subject of inquiry.

*A change in the nature of the basic governmental


plan includes changes in its fundamental framework or
the fundamental powers of its branches. A change in
the nature of the basic governmental plan also
includes changes that jeopardize the traditional form
of government and the system of checks and
balances. (Lambino vs. COMELEC)
*LAMBINO VS. COMELEC
-Under both the quantitative and qualitative tests, the
Lambino groups initiative is a revision, not merely an
amendment. QUANTITATIVELY, the Lambino groups
proposed changes overhaul two Articles-Article VI of the
Legislature and Article VII on the Executive-affecting a total
of 105 provisions in the entire Constitution.
QUALITATIVELY, the proposed changes alter substantially
the basic plan of government from presidential to
parliamentary and from a bicameral to unilateral legislature.
STAGES IN THE AMENDATORY PROCESS
1.

Proposal

2.

Ratification

MODES OF
REVISIONS
-affects only the specific provision being amended.
-isolated or piecemeal changes in the Constitution.
Ex. Lowering of the voting age.

1.

PROPOSING

AMENDMENTS

OR

Congress acting as constituent assembly

-One of the non-legislative powers of Congress


-Congress meets in order to directly propose
amendments or revisions
-Requires vote of all its members

TWO PART TEST


1.

QUANTITATIVE TEST: asks whether the


proposed change is so extensive in its provisions
as to change directly the substantial entirety of
the Constitution by the deletion or alteration of
numerous existing provisions. The court
examines only the number of provisions affected
and does not consider the degree of change.

2.

Constitutional convention

-a separate body the members of which are elected


Article XVII Sec. 3- The Congress may, by a vote of
2/3 of all its Members, call a constitutional convention,
or by a majority vote of all its Members, submit to the
electorate the calling of such convention
2 ways:

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

a.

Congress directly calls a CONCON by 2/3 vote of


all its members.

b.

The issue of calling a CONCON may be


submitted to the people in a plebiscite by majority
vote of all members of Congress.

3.

Peoples initiative on the Constitution (RA 6735)

Article XVII, Sec. 2- Amendments to this Constitution


may likewise be directly proposed by the people
through initiative upon a petition of at least 12
percentum of the total number of registered voters, of
which every legislative district must be represented by
at least 3 percentum of the registered voters therein.
No amendment under this section shall be authorized
within 5 years, following the ratification of this
Constitution or oftener than every 5 years thereafter.
The Congress shall
provide for the implementation of the exercise of this
right.
*This applies only to amendments not revisions.
*REQ: A petition signed by at least 12% of the total
number of registered voters therein of which every
legislative district must be represented by at least 3%
of registered voters therein.
Q. Is the provision on peoples initiative (Art XVII, Sec.
2) self executing?
A.

No. Note the second sentence says- The


Congress shall provide for the implementation of
the exercise of this right. Thus Congress should
enact a law implementing this provision.

Q. Has Congress enacted such law?


A. Yes. Congress enacted a law RA 6735: Initiative
and Referendum Act.
3 SYSTEMS OF INITIATIVE:
1.

Initiative on the Constitution

2.

Initiative on Statutes

3.

Initiative on Local Legislation

SANTIAGO VS. COMELEC (re: Initiative on the


Constitution)
*The right of the people to directly propose amendments to
the Constitution through the system of initiative would
remain entombed in the cold niche of the Constitution until
Congress provides for its implementation.
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

*RA 6735 miserably failed to satisfy the requirements in


subordinate legislation in so far as initiative to propose
amendments to the Constitution is concerned.
*If Congress intended to fully provide for the
implementation of the initiative on amendments to the
Constitution, it could have provided for a subtitle therefore,
considering that in the order of things, the primacy of
interest, or hierarchy of values, the right of the people to
directly propose amendments to the Constitution is far
more important than the initiative on national and local
laws.
*SC declared RA 6735 inadequate to cover the system of
initiative on amendments to the Constitution and have
failed to provide a sufficient standard for subordinate
legislation (there is undue delegation of power to
Comelec). To this extent, RA 6735 is unconstitutional.
*Article XVII, Sec. 2 remains non self executing.
*Peoples Initiative on the Constitution is limited only to
proposing amendments not revisions.
RATIFICATION
*Any proposed change must be submitted to the people in
a plebiscite not a referendum.
*Article XVII, Sec. 4- Any amendment to or revision of this
Constitution under Sec. 1 hereof (Con Ass) shall be valid
when ratified by a majority of the votes cast in a plebiscite
which shall be held not earlier than 60 days not later than
90 days after the approval of such amendment or revision.
Any amendment under Sec.
2 hereof (Con Com) shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held
not earlier than 60 days nor later than 90 days after the
certification by the Comelec of the sufficiency of the
petition.
CHA-CHA NOT ALLOWED
*Article XVII, Sec. 2 remains to be non self executing. The
implementing law was declared unconstitutional. (Santiago
vs. Comelec)
*Peoples initiative is limited only to amendments.
DOCTRINE OF STATE IMMUNITY FROM SUIT
Article XVI, Sec. 3- The State may not be sued without its
consent.
Q. What if the Constitution does not provide for state
immunity?

A. Through the DOCTRINE OF INCORPORATION (Article


II, Sec. 2), the Philippines have adopted the generally
accepted principles of international law as part of the law of
the land. State immunity from suit is a generally accepted
principle of international law. Hence we are bound by it.

A. SC. Decisions of COA are reviewable by SC via petition


for certiorari. (DAR vs. NLRC, J. Vitug)

Q. Ethical basis?

Q. A contract was entered into with DPWH for the


construction of roads. When the roads were finished, the
contractor was not paid. Contractor sued the government
before the RTC. Will the suit prosper?

A. There can be no legal right against the authority which


makes the law on which the right depends. (Justice
Holmes)

A. No. It will be dismissed for lack of cause of action. He


failed to exhaust all administrative remedies provided for by
law under CA 327 as amended by PD 1445.

Q. Does the Doctrine of State Immunity form Suit apply


also to foreign agreements?

2. SPECIAL LAWS

A. Yes. We are bound by the DOCTRINE OF SOVEREIGN


EQUALITY. All states are sovereign equals. An equal may
not assume jurisdiction over another equal. Otherwise it will
unduly vex the peace of nations. This is another generally
accepted principle of international law as expressed in the
Latin maxim par in parem non habet imperium.
Q. Can you sue the State?
A. A State may not be sued without its consent. Hence, you
can actually sue the State, for as long as the State gives its
consent.

Ex. Article 2180, NCC- The State is responsible xxx when


it acts though a special agent xxx.
Ex. Article 2189, NCC- Provinces, cities and municipalities
shall be liable for damages for the death of, or injuries
suffered by any person by reason of the defective condition
of roads, streets, bridges, public buildings, and other public
works under their control or supervision.
TEOTICO VS. CITY OF MANILA
*City of Manila contends that it cannot be held liable under
its charter.

EXPRESSLY: Through the enactment by Congress of a


general law or special law.

*SC held that the provision in the charter is a general


provision in a special law. On the other hand, Article 2189
is a special provision found in a general law. A special
provision found in a general law prevails over the general
provision found in the charter of the City of Manila. City of
Manila is liable.

Q. May the Solgen validly waive immunity from suit?

KILATKO VS. CITY OF DAGUPAN

A. No. A mere lawyer of the government cannot validly


waive immunity from suit. Only the Congress can.
(Republic vs. Purisima)

*City of Dagupan contended that the manhole is found in


the national road.

*Waiver of immunity constitutes a derogation of


sovereignty. Hence, it is always construed strictly or
strictissimi juris.

*SC held that the ownership of the road is immaterial. Even


if it is a national road, the LGU is liable. Article 2189 merely
requires supervision over the maintenance of the national
road. City of Dagupan has supervision. Hence, liable.

Q. How does a State waive its immunity from suit?


A. Either EXPRESSLY or IMPLIEDLY.

1. GENERAL LAW
Ex. Act No. 3083- applies to any money claims arising from
contracts with the government whether express or implied.

Ex. Sec. 24, Local Government Code- Liability for


Damages- Local government units and their officials are
not exempt from liability for death or injury to persons or
damage to property.

-must be correlated with COMMONWEALTH ACT 387 as


amended by PD 1445 or the GENERAL AUDITING LAWany money claim arising from contract with the government
whether expressed or implied must first be presented to
COA and only when COA refuses payment that a party
can sue.

Ex. Charters of GOCC- GSIS, DBP, LBP

Q. Where?

IMPLIEDLY-2 ways:

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

*Charter-special law creating GOCC


*The provision in the charter on whether it may sue or be
sued is an express waiver by special law.

1.

When the State itself commences litigation,


thereby opening itself to counterclaim.

Ex. Government sued A and A filed an answer with a


counterclaim. The government cannot ask for the
dismissal of the counterclaim on the ground of state
immunity from suit. Otherwise, it would be the height
of injustice.
2.

When the State enters into a contract with private


party.

*Here, the government is deemed to have gone down


into the level of a private entity; there is parity now
with the contracting parties; therefore, it is deemed to
have waived its immunity from suit.
*This rule used to be absolute. (US vs. Lyons)
*However, this rule is no longer absoluteUS VS. RUIZ
*This involved the construction of wharves in Subic
Bay at the time Subic was still under the US pursuant
to a treaty.
*Contractor was not paid so he sued the Subic Naval
Authorities.
*Subic Naval Authorities moved to dismiss invoking
State Immunity from Suit.
*On the other hand, the contractor contends that the
State entered into a contract (relying on the old rule).
SC: The traditional rule of immunity exempts a state
from being sued in courts of another state without its
consent or waiver. This rule is a necessary
consequence of the principle of independence and
equality of states. However, rules of international law
are not petrified; they are constantly developing and
evolving. And because the activities of the states have
multiplied, it has been necessary to distinguish them
between sovereign and governmental acts (jure
imperii) and private, commercial and proprietary acts
(jure gestionis). The result is that state immunity now
extends only to acts jure imperii. The restrictive
application of state immunity is now the rule in the US,
UK and other states in Western Europe.
*A state may be said to have descended to the level of
an individual and thus deemed to have tacitly given its
consent to be sued only when it enters into business
contracts.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

*The purpose of the wharves is the defense of US


troops and of the Philippines. Defense of the state is
of the highest order and hence, is jure imperii.
*Case was dismissed because there was no waiver.
*Not all contracts are deemed to be a waiver of state
immunity; must distinguish between:
ACTA JURE IMPERII: contracts entered into by the
government in its sovereign capacity; no waiver of
state immunity from suit.
ACTA JURE GESTIONIS: contracts entered into by
the government in its commercial and proprietary
capacity; there is waiver of state immunity from suit.
(Restrictive Doctrine of State Immunity from Suit)
Q. In the Ruiz case, can the contractor invoke Act No.
3083?
A. No. Because Act No. 3083 waives the immunity of the
Philippine government only; not of other governments.
Q. What is the remedy of the contractor?
A. Under international law, he will have to convince his
state through the assistance of the Department of Foreign
Affairs to take his case up with the other state.
Q. Raintree contracted with the Armed Forces of the
Philippines for the supply of ponchos to be used by the
soldiers. Raintree was not paid. Can Raintree sue?
A. Yes, under Act No. 3083. This is a money claim arising
from contract. There is no need to invoke implied waiver,
since there is already an express waiver.
US VS. GUINTO
*A Filipino cook in a restaurant inside Camp John Hay
poured urine into the soup stock used in cooking the
vegetables served to the customers.
*He was dismissed.
*He filed a complaint for damages against the US Air Force
Recreation Center at Camp John Hay who operates the
restaurant.
*The latter invoked the Doctrine of Immunity from Suit and
moved to dismiss.
SC: The restaurant services offered partake of the nature
of a business enterprise undertaken by the US government
in its proprietary capacity. Such services are not extended
to the American servicemen for free as a perquisite of
membership in the Armed Forces of the US. Neither does it

appear that they are exclusively offered to these


servicemen; on the contrary, it is well known that they are
available to the general public as well, including the tourists
in Baguio City, many of whom make it a point to visit John
Hay for this reason. All persons availing themselves of this
facility pay for the privilege like all other customers in
ordinary restaurants. Although the prices are concededly
reasonable and relatively low, such services are
undoubtedly operated for profit as a commercial and not a
governmental activity.
*The case was remanded to the Labor arbiter. There is
waiver of immunity.
*SUABILITY VS. LIABILITY
*The circumstance that a state is suable does not
necessarily mean that it is liable. A state can never be held
liable if it does not first consent to be sued. SUABILITY is
just a matter of a state giving its consent to be sued.
*LIABILITY is a matter of applicable law and circumstance
of the case. Liability is not conceded by the mere fact that
the state has allowed itself to be sued. When the state
does waive its sovereign immunity, it is only giving the
plaintiff the chance to prove, if it can, that the defendant is
liable.
*Waiver merely gives the claimant the opportunity to prove
that the state is liable.
MUNICIPALITY OF SAN FERNANDO LA UNION VS.
JUDGE FIRME
*San Fernando owned a dump truck being driven by its
official driver, while hauling gravel, it collided with a jeep,
killing the latters passenger. The heirs sued the
municipality for damages. The municipality moved to
dismiss on the ground of immunity of state from suit.
Without resolving the motion, Judge Firme proceeded to
resolve the case and held the municipality liable since its
charter expressly provides that it may sue and be sued.
SC: Suability is not the same as liability. Municipality can
invoke defenses- that at the time the accident happened, it
was engaged in the performance of governmental function
(repair of municipal roads). This is a case of DAMNUM
ABSQUE INJURIA (Damage without injury).
Q. What if the dump truck was then hauling lumber for the
repair of a public market instead of gravel for the repair of
municipal road?
A. The operation of a public market is a proprietary
function. It is classified as a business enterprise of the local
government. Hence, the municipal government would then

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

be in the performance of a proprietary function. As such, it


would not be a valid defense to liability.
TORIO VS. FONTANILLA
*The holding of a town fiesta even if the purpose is to
commemorate a religious or historical event of the town is
in essence an act for the special benefit of the community
and not for the general welfare of the public performed in
pursuance of a policy of the state. xxx It is a proprietary
activity. Thus, the municipality may be held liable.
EXECUTION OF JUDGEMENT
Q. Assume that you are allowed by the State to sue. After
trial, judgement was rendered in your favor, holding the
State liable. Judgement thereafter attained finality. Can you
garnish or levy government funds to execute the
judgement?
A. No. It will paralyze the operations of the government.
Waiver extends only up to the rendition of judgement.
Execution requires another waiver. The disbursement of
public funds requires an appropriate appropriation law.
Q. Remedy?
A. To make representation with the proper legislative
authority for the enactment of an appropriation law
necessary to satisfy the judgement.
Q. What if the legislative authority refuses to enact the law?
A. Go to the courts and ask for MANDAMUS to compel the
legislative authority to enact the required law. True, the
duty to appropriate is discretionary. The exception however,
as in this case, is when there is already a money
judgement against the government, the discretionary duty
becomes ministerial. The state must be the first to respect
and obey the decisions of the Courts. (Municipality of
Makati vs. IAC)
SUITS AGAINST GOVERNMENT AGENCIES AND
INSTRUMENTALITIES
Distinguish:
1.

INCORPORATED AGENCIES: These are


agencies with separate charters creating them.

-They have personality separate and distinct from the


Philippine government.
-The test of suability will depend whether or not its
charter allows it to sue and be sued.
Ex. SSS, GSIS, PCSO, Phil. Postal Corporation

10

2.

UNINCORPORATED
AGENCIES:
agencies have no charter.

These

-They do not have separate personality.


-A suit against them is really a suit against the
government.
-Test of suability depends upon whether or not it is
performing a governmental or proprietary function.
SUIT AGAINST PUBLIC OFFICIALS
Q. When do you consider a suit against public officials as a
suit against the state itself?
A. The suit must be regarded as one against the State
where the satisfaction of judgement against the public
official concerned will require the State itself to perform a
positive act such as appropriation of the amount necessary
to pay the damages awarded to the plaintiff. (LANSANG
VS. GARCIA)
*The official was charged in his official capacity in the
performance of official duties.
*In this case, the official was acting only as an agent of the
State.
*However, this rule does not apply if:
-Acts were unlawful or illegal
-Acts were done in a personal capacity
REPUBLIC VS. SANDOVAL
*This case does not qualify as a suit against the State. xxx
While the Republic in this case is sued by name, the
ultimate liability does not pertain to the government.
Although the military officers and personnel were
discharging their official functions when the incident
occurred, their functions ceased to be official the moment
they exceeded their authority. Based on the commission
findings, there was lack of justification by the government
forces in the use of firearms. Moreover, the members of the
police and military crowd dispersal units committed a
prohibited act under BP 180 as there was unnecessary
firing by them in dispersing the marchers.
EXCEPTIONAL CASES: The doctrine of State Immunity
from Suit cannot serve as an instance to perpetuate
injustice on a citizen.
*However, this should not be invoked indiscriminately
because the circumstances obtaining in the following cases
are peculiar.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

AMIGABLE VS. CUENCA


*Amigable owned a lot in Cebu City. There is no annotation
in favor of the government in the TCT. Then without prior
appropriation or negotiated sale, the government used a
portion of the said lot for the construction of roads.
Amigable then filed a complaint against the Republic, and
Cuenca, in the latters capacity as Commissioner of Public
Highways.
SC: Where the government takes away property from a
private landowner for public use without going through the
legal process of expropriation or negotiated sale. The
aggrieved party may properly maintain a suit against the
government without thereby violating the doctrine of
governmental immunity from suit without its consent.
REASON-MINISTERIO VS. CFI OF CEBU
*The doctrine of governmental immunity from suit cannot
serve as an instrument of perpetration of injustice on a
citizen. Had the government followed the procedure
indicated by the governing law (Rule 87) at the time, a
complaint would not have been filed by it and only upon
payment of compensation fixed by the judgement or after
tender of the party entitled to such payment of the amount
fixed. May it have the right to enter in and upon the land
so condemned, to appropriate the same to the public use
defined in the judgement.
*Actually, in Amigable and Ministerio cases there is an
implied waiver. This implied waiver lies in the failure to
commence the proper action. The action filed by the
petitioners amount to a counterclaim, had the government
fled the proper action. It only became a petition because
the government did not follow the legal procedure.
CITIZENSHIP
(ARTICLE IV, 1987 CONSTITUTION)
The following are the citizens of the Philippines (Sec. 1)
1. Those who are citizens of the Philippines at the time of
the adoption of the 1987 Constitution.
Q. When was the 1987 Constitution adopted?
A. 02 Feb. 1987- at the time of the plebiscite
*Not 11 Feb. 1987=When Pres. Aquino declared
its ratification.
2. Those whose fathers or mothers are citizens of the
Philippines.
*Note that the provision says OR- not and

11

*This means that as long as 1 of your parents is


a Filipino, you are a Filipino.
*This is in accordance with our adherence to the
principle of jus sanguinis.

*History of the provision:


-Under the 1935 Constitution, legitimate minor
children follow the citizenship of their father.

*This results in complications when the country


where you are born applies the principle of jus soli.

-Thus one with an alien father and a


Filipina, mother, would, during minority, be an
alien.

*Complications arise with respect to the matter of


dual allegiance. (See Sec. 5)

-Hence, he is given, upon reaching the


age of majority, the option to elect.

VALLES VS. COMELEC (337 SCRA 543, 09 Aug. 2000)

-Note that this is the reason why the provision


applies only to those born of Filipino mothers.

*Rosalind Lopez was born in 1934, in Australia to a


Filipino-father, who was born in 1879, and an Australianmother. When she came to the Philippines, she was
holding an Australian passport and was registered as an
alien in the BID. Then, Rosalind ran for governor.
SC: Rosalind is a Filipino citizen. (1) Her father is a
Filipino- Her father is a Spanish subject. In 1898, when the
Spanish ceded the Philippines to the US, under the Jones
Law and the Philippine Bill of 01 July 1902, all inhabitants
of the Philippines who were Spanish subjects are deemed
to be Philippine citizens. [This is the first time that there
came to be Filipino citizens. It was an en masse
citizenship because of a change of sovereignty].
(2) Rosalind is a Filipino- Philippine law on citizenship
adheres to the principle of jus sanguinis, where a child
follows the nationality of the parents regardless of the place
of his/her birth. Hence, Rosalinds father is a Filipino, she is
a Filipina. Her being born in Australia is not tantamount to
her losing her Philippine citizenship. Even if Australia
follows jus soli, it only results to her possessing dual
citizenship.
(3) Effect of holding an Australian passport- mere holding of
an Australian passport does not mean renunciation of
Philippine citizenship. In order to lose Philippine citizenship
by renunciation, such renunciation must be expressthe
person renouncing must perform a positive act. (See
Mercado vs. Manzano and Aznar vs. Comelec)
3. Those born before 17 January 1973, of Filipino mothers,
who elect Philippine citizenship upon reaching the age of
majority
3 Requisites for the application of this provision:
(1) They were born before 17 Jan. 1973.
(2) Their mother is a Filipino.
(3) They elect Philippine citizenship upon
reaching the age of majority.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

-One with a Filipino-father and an alien


mother would still be a Filipino, since he follows
his fathers citizenship.
*These are Natural-Born Citizens (See Sec. 2)
*When Should Election Be Made- Reasonable Time from
Reaching Age of MajorityRE: Application for Admission
to the Philippine Bar, Vicente D. Ching (Bar Matter No. 914,
01 Oct.1999)
*Ching was born in 1964, of Chinese father and Filipina
mother. Ching now seeks to elect Philippine citizenship so
he can be admitted to the Philippine Bar.
SC: The 1935 Constitution only states that Philippine
citizenship should be chosen upon age of majority. CA 625
states the child should be given a reasonable time to elect
Philippine citizenship. This reasonable time has been
construed to be 3 years upon reaching the age of majority.
Here, Ching seeks to elect only 14 years after
reaching the age majority. This is way beyond the
contemplated period for electing Philippine citizenship. One
who is privileged to elect Philippine citizenship has only an
inchoate right to such citizenshipas such, he should avail
of the right with fervor, enthusiasm and promptitude.
4. Those who are naturalized in accordance with law
TECSON VS. COMELEC
*FPJ was born in 1939, of a Filipino father and an
American mother. His parents got married only in 1940.
SC: FPJ is an illegitimate child because his parents got
married only after his birth. However, the 1935 Constitution
states that those whose fathers are citizens of the
Philippines acquire Philippine citizenship. Thus, it did not
distinguish whether the child is legitimate or illegitimate.
The rule is different when it is the mother who is
a Filipino. Here, if the child is legitimatehe can elect

12

Philippine citizenship upon reaching the age of majority. If


he is illegitimate, he will follow the mothers citizenship. The
reason for this rule is to ensure Filipino nationality of the
child so as not to prejudice. Normally, since he is
illegitimate, the mother would have custody and have
parental authority.

*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.
*History of the provision:

*Natural-Born Citizens (Sec. 2)

-This provision was carried over from the 1973


Constitution.

2 Kinds of Natural-Born Citizens:

-In the 1935 Constitution, there is no similar provision.

1. Those who are citizens of the Philippines from birth


without having to perform any act to acquire or perfect their
Philippine citizenship.

-Thus, women were prejudicedwhen they


marry a foreigner, they lose their Filipino citizenship.

2. Those who elect Philippine citizenship in accordance


with par (3), Sec. 1
-In this case, the person has to perform an act to
perfect his Philippine citizenship.
-Thus, this constitutes an exception to
the 1st kind of Natural-Born Citizens.
BENGSON III VS. HRET (GR 142840, 07 May 2001)
*Cruz lost his Philippine citizenship when he rendered
service in the US Armed Forces, but re-acquired it through
repatriation under RA 2630. He then ran, and won, as
Congressman. His qualification was questioned on the
ground that he is not a natural-born citizen.
SC: He is a natural-born citizen. (1) Effect of Repatriation
Repatriation results in the recovery of the original
nationality. Thus, a naturalized Filipino who lost his
citizenship will be restored to his prior status as a
naturalized Filipino. On the other hand, if he was originally
a natural-born citizen before he lost his citizenship, he will
be restored to this former status as a natural-born Filipino.
(2) Kinds of Citizens under the ConstitutionThere are
only 2 classes of citizens under the Constitution(a)
natural-born and (b) naturalized in accordance with law. A
citizen who is not a naturalized Filipinoone who did not
undergo the process of naturalizationis a natural-born
Filipino. Noteworthy is the absence in the enumeration of a
separate category for persons who, after losing Philippine
citizenship, subsequently reacquires it. This is because
such whether such persons are natural-born or naturalized
depends on the reasons for the loss of their citizenship and
the mode prescribed by the applicable law for the
reacquisition thereof.
Marriage to foreignersArt. IV, Sec. 4

Ex. Biel vs. Director of Public Schools


-A public School teacher was removed from her position
because she married her Chinese lover.
-However, if the woman just maintains a live-in relationship
with a foreigner, she does not lose her Philippine
citizenshipthere is no marriage.
-Thus, they are better situated than those who
contracted marriage with foreigners.
-Absurd!
*In relation to Sec. 1 (3)
-Under the 1935 Constitution, the children of a Filipinamother and an alien-father who had a common law
relationship are Philippine citizens.
-No need to elect.
Q. Why?
A. Being illegitimate children, they follow the
citizenship of their mothers, who remain to be Filipinos
since they are not married to aliens.
-This is another absurdity.
Thus:
1. In 1970, Filipina married a foreigner
-Filipina loses Philippine citizenship.
-The 1935 Constitution had no provision similar to Art. IV,
Sec. 4
2. In 1975, Filipina married a foreigner
-Filipina retains Philippine citizenship.
-The 1973 Constitution had a provision similar to Art. IV,
Sec. 4.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

13

Modes to Acquire Philippine Citizenship:

*Dual allegiance of citizens is inimical to the national


interest and shall be dealt with in accordance with law.

1. Birth

Q. Is this provision self executing?

2. Naturalization
Loss and Re-Acquisition of Philippine Citizenship

A. No. It says shall be dealt with by law. It means a future


law.

-Art. IV, Sec. 3Philippine citizenship may be lost or


reacquired in the manner provided by law.

Q. Is there now a law that prohibits dual allegiance?

Ways by which Philippine Citizenship may be Re-Acquired:

The following are disqualified from running for any elective


local position: xxx

1. Naturalization
2. Repatriation

(d) Those with dual citizenship (See Mercado vs.


Manzano)

Naturalization vs. Repatriation


Naturalization
1. As to Nature

A. Yes. RA 7160, Sec. 40 (d) (Local Government Code)

MERCADO VS. MANZANO (307 SCRA 630, 26 May 1999)

*Edu Manzano was born in the US, of Filipino parents. In


-A mode of acquisition and reacquisition
1998 he ranoffor vice-mayor of Makati. His qualification was
Philippine citizenship.
challenged. Note that RA 7160, Sec. 40 (d) disqualifies
those with dual citizenship from running for local elective
*As a mode of acquisition- CA 473
governs
office.
*As a mode of re-acquisition- CASC:
63 He
governs.
is qualified to run. (1) Manzano has dual citizenship
since his parents are Filipinos, he is a Filipino; since he
-Very cumbersome and tedious.was born in the US, he is also a US citizen. Thus, he has
dual citizenship.

2. As to process

*Process is simplerequires only:


1. Take oath of allegiance
2. Registration with the Civil Registry
*Available when the loss of citizenship is due to:
(1.) Desertion of the Armed Forces (CA 63)
(2.) Service in the Armed Forces of Allied Forces during
WW 2 (RA 965)
(3.) Service in the US Armed Forces (RA 2630)
*See Bengzon III vs. HRET
(4.) Marriage of Filipino woman to an alien, political or
economic necessity (RA 8171)
3. Direct Act of Congress
*Dual AllegianceArt. IV, Sec. 5

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

(2) Dual Allegiance is Prohibited, Not Dual Citizenship


what is prohibited by the Constitution is dual allegiance, not
dual citizenship. The concern of the Constitutional
Commission was not with dual citizens per se, but with
naturalized citizens who maintain their allegiance to their
countries of origin even after their naturalization. Hence,
the phrase dual citizenship in RA 7160, Sec. 40 (d) must
be understood as referring to dual allegiance. Hence,
persons with mere dual citizenship do not fall under the
disqualification.
Situations Where Dual Citizenship Arises:
a. Those born of Filipino fathers and/or mothers in foreign
countries which follow the principle of jus soli.
b. Those born in the Philippines of Filipino mothers and
alien fathers, if by the laws of their fathers country, such
children are citizens of that country.
c. Those who marry aliens if by the laws of the latters
country the former are considered citizens, unless by their
act or omission they are deemed to have renounced their
Philippine citizenship.
Dual Allegiance vs. Dual Citizenship

14

1. As to how it results

Dual Allegiance(2) Under RA 9225, he is also a dual citizenhence, he


should first renounce his American citizenship.
-A
situation
where
a
person
*Res Judicata
simultaneously owes, by some
positive in Citizenship Cases
act, loyalty to 2 or more states.
GR: No res judicata in cases of citizenship.
EXCEPTION: Burca vs. Republic (51 SCRA 248, 1973)
-Voluntary.

2. As to voluntariness

*RA 9225Dual Citizenship Law (Citizenship Retention


and Re-Acquisition Act of 2003)
RULE: Natural-born Filipinos who lost their Philippine
citizenship by naturalization as citizens of a foreign country
shall re-acquire/retain their Philippine citizenship upon
taking the Oath of Allegiance. (Sec. 3, RA 9225)
Effect of Re-Acquisition on Civil and Political Rights- the
following rights can be exercised, subject to certain
conditions:

When the following requisites concur:


1. When the persons citizenship is raised as a material
issue in a controversy where said person is a party;
2. When the Solicitor General or his authorized
representative took active part in the resolution thereof;
and
3. When the finding on citizenship is affirmed by the SC.
Structure of Government

3 Parts of a Written Constitution:

1. Right to vote- RA 9225 Sec. 5 (1) - must meet


requirements of Sec. 1, Art. V and of RA 9189 (Overseas
Absentee Voting Act of 2003)

(1) Constitution of sovereignty This refers to thee


provisions pointing out the modes or procedure in
accordance with which Formal changes in the constitution
may be made.

2. Elective Public Office RA 9225 Sec. 5 (2) must


renounce foreign citizenship before any public officer
authorized to administer oath.

Ex:

-Done at the time of the filing of the certificate of


candidacy.
-Thus, he will lose his dual citizenship- will have
just 1 citizenship.
3. Appointive Public Office RA 9225 Sec. 5 (3) must
also renounce.
4. Practice of Profession subject to guidelines of proper
regulatory agency.

Article XVIII 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.
Ex:

Article III Bill or Rights

-Art. 12, Sec. 14, 2nd par., 1987 Constitution- The


practice of all professions in the Philippines shall be limited
to Filipino citizens, save in cases prescribed by law.

(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.

Q. X was born in the USA on Jan. 10, 1973, of a Filipino


mother and American father. He studied and worked in the
Philippines. Can he run for Mayor?

Ex:

A. (1) Under the 1935 Constitution, which was governing at


the time of Xs birth, he should elect Philippine citizenship
upon reaching the age of majority.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Article VI Legislative Department


Article VII Executive Department
Article VIII Judicial Department
Article IX Constitutional Commissions

15

Doctrine of Separation of Powers in a presidential type of


government
The 3 great powers are distributed among the 3 great
branches of government:

GR Potesta delegata non potest delegari Power


delegated may no longer be delegated.

XPNs: Instances of permissible delegation PETAL

Legislative power Legislative branch / Congress

Delegation to the People under the systems of initiative


and referendum (plebiscite, Art. VI, Sec 1)

Article VI, Sec 1 The legislative power shall be vested in


the congress of the Philippines

Delegation to the President of Emergency powers (Art VI,


Sec 23)

This is also called the POWER OF THE PURSE.

Delegation to the President of Tariff powers (Art VI, Sec


28[2])

Executive power Executive branch / President


Article VII, Sec 1 The executive power shall be vested in
the President of the Philippines
This also called the POWER OF THE SWORD

Delegation to Administrative Bodies


Delegation to Local governments (Art. X)

There must always be an EXPRESS delegation! (by


Law/Constitution)

Judicial power Judiciary / Supreme Court


Article VIII, Sec 1 The judicial power shall be vested in
one Supreme Court and in such lower courts as may be
established by law.
This is also called the POWER OF JUDICIAL REVIEW

Q. What are the requisites before emergency powers may


be delegated to the President?
A. Under Article VI. Section 23. there are four:
There must be a war or other national emergency.
The delegation shall be for a limited period only

The legislative and the executive branches are called the


POLITICAL BRANCHES.

The delegation must be pursuant to a declared national


policy

Corollary to the principle of separation of powers:

The delegation is subject to such restrictions and


limitations as Congress may prescribe.

Principles of checks and balances


Each branch of the government is a check of the others so
that power will not be concentrated which might lead to
abuse and irreparable damage.
This allows 1 department to resist encroachments upon its
prerogatives or to rectify mistakes or excesses committed
by the other departments.
Ex: veto power of the President.
Principle of non-delegation of Powers

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

The power is delegated from the Congress to the


President (David vs Arroyo)

Q. What is meant by delegation to administrative bodies?


A. It is the delegation of quasi-legislative powers to
administrative agencies.

refers to the rule making power or power of subordinate


legislation or power to promulgate rules and regulations to
implement a given law/legislative policy.

16

Operative word, or meant equivalent terms


The power to ENACT laws still belongs to Congress.

Tests of valid delegation vs. abdication of power


Undue
delegation to the delegate
Completeness Test
The law delegating the power must be complete in itself in
the sense that the body on whom the power is delegated
must have no discretion to exercise the power but to
enforce it.
The law must be complete in all its terms and conditions,
such that there is nothing more to be done by the body but
to enforce it.

The standards need not be found in the law delegating the


power. Instead, standards may be found in other laws
what is important is that the standards are determinate or
at least determinable (Chong Bian vs Ci-Bos)
If the delegation meets the tests, it is valid.
What is prohibited is undue delegation or a delegation
running riot.
If there is undue delegation, it is no longer delegation of
power but abdication of power in favor of the delegate,
which violates the doctrine of separation of powers.
Ratio: You cannot expect the Congress to anticipate all.

Article VI LEGISLATIVE DEPARTMENT


Legislative Power

The law must set forth the policy to be executed, carried


out or implemented by the delegate.
The delegate must not be authorized to fill in the gaps.

Sufficiency of Standards Test


The law must provide for standards that are determinate or
at least determinate, which will define the limits of a
delegates authority.
The standard will guide the delegate in the exercise of the
delegated power which standards must be
determinate/determinable.

Article VI, Sec 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 provisions on initiative
and referendum.

Q. What power is vested in Congress?


A. Legislative Power under Article VI, Sec. 1 (The Power of
the Purse).

Q. Is legislative power exclusively vested in Congress?


Q. What is a sufficient standard?
A. It is one that defines legislative policy, marks its limits,
maps out its boundaries and specifies the public agency to
apply it.
Ex: (1) Power to organize agencies was
delegated to the President
Standard: to streamline the bureaucracy for economy and
sufficiency.
(2) Power to issue franchises delegated to LTFRB
Standard: For public convenience and security

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

A. NO. Unlike in the 1935 constitution where the legislative


power is exclusively vested in Congress, under the 1987
constitution, there is a reservation made to the people
(initiative and referendum). (Art VI, Sec1).

The legislative power is not exclusively vested in Congress!


It is vested in:
Congress made up of 2 houses:
Senate
House of Representatives

17

We have a Bicameral Congress


The houses are co-equal bodies; hence the terms upper
house and lower house are inaccurate!
Bicameral Conference Committee
See Phil. Judges Association vs. Hon. Prado, and
Tolentino vs. Secretary of Finance.

to the extent reserved to the People by initiative and


referendum

A: Initiative is the power of the people to propose


amendments to the Constitution on to propose and enact
legislations through an election for the purpose (Sec 3(a),
RA6735).
Referendum is the power of the electorate to approve or
reject a legislation through an election called for the
purpose (Sec. 3, RA6735).
Q: May the President enact laws?
A: NO. Legislative power is vested in Congress. Legislative
power includes the power to ENACT, AMEND, or REPEAL.
The power vested on the President is the EXECTIVE
POWER or the power to IMPLEMENT laws.

Article VI, Sec. 32 The Congress shall, as early as


possible, provide for a system of initiative and referendum,
and the exceptions there from.

PRESIDENTS PARTICIPATION IN THE LAWMAKING PROCESS

This is no self-executing.

Q: Does the President have any participation in


the Law-making process?
Yes, in the following instances: [SBUVS]

Q. Has the Congress enacted a Law?

When he exercises his veto power

A. YES. R.A. 6735 (Initiative and Referendum Law) is the


implementing provision of Sec 1 Art VI, 1987 Constitution.

Article VI, Sec 27. Every bill passed by 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

3 kinds of Initiative under RA 6735:

When the president vetoes a bill, that bill doesnt become a


law.

Initiative on the Constitution


declared unconstitutional (Santiago vs. COMELEC)

When he calls for a special session


Art VI. Sec 15 The president may call a special session
at any time

Initiative on Statutes
Implemented Article VI. Sec 1
Refers to petitions proposing to enact a national legislation

In effect, he will initiate the process


When the president certifies as the urgency of the bill to
meet a public calamity or emergency.

Initiative on Local Legislation

Art VI, sec 26 (2) No bill passed by either house shall


become a law unless it has passed three (3) readings on
separate days x x x except when the president certifies as
to the necessity of its immediate enactment to meet a
public calamity or emergency.

refers to petitions proposing to enact, amend, or repeal


local ordinances.

The president hastens the process by dispensing with 3


separate readings on 3 separate days rule.

Valid

Valid.
Bar Q: What is initiative? What is Referendum?

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

When the president signs a bill that becomes a law

18

Art VI, sec 27 Every bill passed by Congress shall


before it becomes a law, be presented to the president. If
he approves the same, he shall sign it
The president performs the last operative act for a bill to
become a law.

When the president prepares a budget which is the basis


of the GENERAL APPROPRIATIONS ACT.
Art VII, Sec 22 The president shall submit to the
congress x x x as basis of the general appropriations bill a
budget for expenditures and sources of financing, including
receipts from existing and proposed revenue measures.

NON-LEGISLATIVE POWERS OF CONGRESS (9):


[IBAWI PA CE]
Investigative power / power to conduct investigation
(inquiries in aid of legislation)
Art VI, Sec 21 The senate or the house of
representatives or any of its respective committees may
conduct inquiries in aid of legislation or in accordance with
its duly published rules of procedure
Power to declare the existence of a state of War
Art VI, Sec 23 The congress by a vote of 2/3 of both
houses in joint session assembled, voting separately, shall
have the sole power to declare the existence of a state of
war. [*then based on such declaration, delegate
emergency powers to the President]

Power to impeach and to try cases of impeachment


As a prosecutorial body: Art XI, Sec 3(1) The House of
Representatives shall have the exclusive power to initiate
all cases of impeachment.
As an impeachment Court: Art XI, Sec 3(6) The senate
shall have the sole power to try and decide all cases of
impeachment x x x
Power to judge election contests involving their members
through the Electoral tribunal
Art VI, Sec 17 The senate and House of
Representatives shall each have electoral tribunals which
is the sole judge of all contests relating to the election
returns and qualifications of their respective members x x
x
Power to concur in Amnesty Proclamation
Art VIII, Sec 19(2) He shall have the power to grant
amnesty with the concurrence of a majority of all the
members of the Congress

Power to propose amendments to, or revisions of the


constitution, when acting as constituent assembly
Art XVII, Sec 1(2) Any amendment to, or revision of, this
constitution may be done by: (1) The congress, upon a
vote of of all its members; x x x

Power to act as board of canvassers in presidential and


vice-presidential elections.

Power to confirm a presidential appointments [through


commission on Appointments]
Art VII, Sec 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.

Power to punish for contempt


- Incidental to the power to conduct inquiries in aid of
legislations.
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

19

Art VII, Sec 4(4) Upon receipt of


the certificates of canvass, the
president of the Philippines shall, not
later than 30 days after the day of
the election, open al certificates in the
presence of the Senate of the House
of Representatives in joint and public
session, and the Congress, upon
determination of the authenticity and
due execution thereof in the manner
provided by law, canvass the votes.

Composition of CONGRESS

Senator

Representative

(1) Citizenship

Natural born

(2) LIteracy

Able to read and write

(3) Voter

Registered voter

(4) Age

35 years of age on the


day of election

25 years of age on the day of election

(5) Residence

2 years residence

1 year in the district he is representing.

(6) Term

6 years, 2 consecutive
term-limit

3 years; 3 consecutive term-limit.

Senate 24 senators elected at


large;
Term: 6 years

In her application for candidacy, Imelda wrote 7


months requirement, then amended it and wrote, Since
birth. The SC decided in favor of Imelda.

Term limit: 2 Consecutive terms


House of Representatives

Supreme court held that in political law, residence is


considered as domicile.

Term: 3 years

Kinds of Congressmen:

Term limit: 3 consecutive terms

Art VI, Sec 5(1) The HOR shall be composed of not


more than 250 members, unless otherwise fixed by law,
who shall be elected from legislative districts x x x and
those who, as provided by law, shall be elected through a
party-list system of registered national, regional, and
sectoral parties or organizations.

Art VI, Sec 5(1) The HOR shall be composed of not


more than 250 members, unless otherwise fixed by law,
who shall be elected from legislative districts apportioned
among the provinces, cities, and the metropolitan manila
area x x x
This provision is already Functus Officio!
Congress has the power to reapportion legislative
district every census, under - Art VI, Sec 5(4)
Within 3 years following the term of every census, the
congress shall make a re-apportionment of legislative
districts based on the standards provided in this section.
SEMA v COMELEC
Creation of Shariff Kabunsuan was declared
unconstitutional. Power to create legislative district is
legislative in character. Only Congress can make legislative
district not ARMM Assembly. An inferior legislative body like
ARMM created by a superior legislative body cannot
change the composition of the superior legislative body.

District representatives
Party-list representatives
this absorbed the sectoral representatives
Art VI, Sec 5(2) x x x for 3 consecutive terms after the
ratifications of this constitution, of the seats allocated to
the 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.
[other sectors: fisher folks, elderly, handicapped (Sec 5,
RA7941)].
PUF LICE HWY O
Xpn: Religious sector

Qualifications:

Party list system

Marcos vs. COMELEC (248 SCRA 300 [1995])

Implemented by RA7941 (Party-list law)

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

20

Adopted the German model of the party list system


1998 elections: first time we had party list election
Borrowed concept from parliamentary system
See: Ang bagong-bayani-OFW
COMELEC (June 26, 01 En Banc)

labor

party

vs.

Q: What is the nature of the party-list system?

party list system would not only dilute, but also prejudice
the chance of the marginalized and underrepresented
contrary to the laws intention to enhance it. It would gut the
substance of the party-list system. Instead of generating
hope, it would create a mirage. Instead of enabling the
marginalized, it would further weaken them and aggravate
their marginalization.

Uphold Social Justice principle to give those who have


less life, more in law.

A: The party-list system is a social justice tool designed not


only to
give more in life to the great masses of our people who
have less in life, but also
to enable them to become veritable (genuine/real) law
makers themselves. It
intends to make the marginalized and underrepresented
active participants in the mainstream of representative
democracy.

The party list system is one such tool intended to benefit


those who hae less in life. It gives the great masses of our
people the genuine hope and genuine power. It is a
message to the destitute and the prejudiced, and even to
those in the underground (e.g. rebels), that change is
possible. It is an invitation for them to come our of their
limbo and seize the opportunity.

Q: Is it open to all?
A: No. It is not open to all but only to the marginalized and
the underrepresented.

Allowing all individuals and groups, including those which


now dominate district elections, to have the same
opportunity to participate in the party-list elections would
desecrate this lofty. Objective and mongrelize the social
justice mechanism into an atrocious veneer for traditional
politics (nose bleed!)

To make it open to all, without qualifications would not only


weaken the electoral chances of the marginalized and the
underrepresented it also prejudices them. To allow the
non-marginalized and the overrepresented to vie under the

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Underground group Rebels (p.27 3A notes)

Guidelines for screening party list participants (8)


The political party, sector, organization, or coalition must
represent the marginalized and underrepresented sectors
identified in Sec 5, RA7941.
Sec 5, RA7941 x x x the sectors shall include labor,
peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth,
veterans, overseas workers, and professionals.
This enumeration is NOT exlusive
However, it demonstrates the clear intent of the law that
NOT all sectors can be represented under the party-list
system.

While political parties may participate in the party-list


system, then must comply with the declared statutory
policy of enabling Filipino citizens belonging to the
marginalized and underrepresented sectors x x x to be
enelcted to the HOR.
They must show that they represent the interests of the
marginalized and the underrepresented.
Sec 5, RA 7941 Any organized group of persons may
regilster as a party, organization, or coalition for purposes
of the party-list system x x x
Sec 7, Art IX-C, 1987 Const. 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.
Sec 8, Art IX-C, 1987 Const. Political parties or
organizations or coalitions registered under the party list

21

system shall not be represented in the voters registration


boards x x x

The party or organization must not be disqualified under


sec 6, RA 7941:

Sec 5(1), Art VI, 1987 Const. The HOR shall be


composed of x x x and those who x x x shall be elected
through a party list system of registered national, regional,
and sectoral parties or organizations.

Sec 6, RA 7941 Ground for refusal and/or cancellation of


registration:
It is a religious sector denomination, organization or
association, organized for religious purposes;
It advocates violence or unlawful means to seek its goal;

The religious sector may not be represented in the partylist system or registered as a political party.

It is a foreign party or organization;

Art IX-C Sec 2(5) The COMELEC shall exercise the


following powers and functions x x x (5) Register x x x
political parties, organizations x x x religious denomination
shall not be registered.

It is receiving support from any foreign govt, foreigh


political party, foundation, organization, whether directly or
through any of its officers or members or indirectly through
3rd parties for partisan election purposes.

Art VI, Sec 5(2) x x x from the labor, peasant urban poor
x x x and such other sectors as may be provided by law,
except religious sector

It violates or fails to comply with laws, rules or regulations


relating to elections;

Sec 6(1), RA7941 The COMELEC may x x x refuse or


cancel x x x the registration of any national regional or
sectoral party, organization or coalition on any of the
following grounds: (1) If it is a religious sect or
denomination, organization or association organized for
religious purposes.

It declares untruthful statements in its petition;


It has ceased to exist for at least 1 year;
It fails to participate in the last 2 preceding elections, or
fails to obtain at least 2% of the votes cast under the party
list system in the 2 preceding elections for the constituency
in which it has registered.

Ex: El Shaddai cannot register and participate in the partylist system


The prohibition is on any religious organization registering
as a political party. No prohibition against a priest running
as a candidate. What is prohibited is the registration of a
religious sect as a political party.

The party must not only comply with the requirements of


the law; its nominees must likewise do so x x x
The nominee must also be qualified.
Sec 9, RA 7941 Qualifications for party list nominees

The party or organization must not be an adjunct of, or a


project organized by, or an entity funded or assisted by the
government.
It must be independent of the government
By the very nature of the party-list system, the party or
organization must be a group of citizens, organized and
operated by citizens.
The participation of the government or its officials in the
affairs of a party-list candidate is not only illegal and unfair
to others, but also deleterious to the objective of the law.
Ex: MAD Mamamayan Ayaw sa Droga

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Natural-born citizen of the Philippines


Registered voter
Resident of the Philippines for a perioud of not less than 1
year immediately preceding the day of the electon.
Able to read and write
Bona fide member of the party or organization which he
seeks to represent for at least 90 days preceding the day of
the election.

Not only the candidate party or organization must represent


marginalized and underrepresented sectors; so also must
its nominees.

22

The nominee must also represent the marginalized and


underrepresented
Surely, the interests of the youth cannot be fully
represented by a retiree; neither can those of the urban
poor or the working class by an individualist.

While lacking a well-defined political constituency, the


nominee must likewise be able to contribute to the
formulation and enactment of appropriate legislation that
will benefit the nature of the whole.

4 Inviolable Parameters to determine the winners in a


Party-list election
(As mandated by the Constitution and RA7941)
Bar Question!
See VETERANS FEDERATION PARTY vs. COMELEC
(October 6, 2000 En Banc)

The twenty (20%) percent allocation


The combined member of all party list congressmen shall
not exceed 20% of the total memb ership of the HOR,
including those elected under the party-list.
Art VI, Sec 5(2) The party-list representatives shall
constitute 20% of the total number of representatives
including those under the party-list.
The two (2%) percent threshold
Only those garnering a minimum of 2% of the total valid
votes cast for the party list system are qualified to have a
seat in the HOR.
The base is the total votes cast for the party-list and not the
total number of registered voters.

The additional seats to which a qualified party is entitled to


shall be computed in proportion to their total number of
votes.

Q: To determine the total votes cast for the party-list


system, should the votes tallied to the disqualified
candidates be deducted/excluded in computing the 2%
threshold?
A: Yes. The votes for the disqualified parties should be
excluded.
(Ang Bagong Bayani OFW vs. COMELEC [June 25, 2003
En Banc])

In the case of Labo vs. COMELEC, reaffirmed in the case


of Grego vs. COMELEC, the court declred that the votes
case for an ineligible or disqualified candidate cannot be
considered stray, because this would disenfranchise the
voters/majority; valid votes.
However, votes cast for a notoriously disqualified candidate
may be considered stray and excluded from the canvass.
This does not apply to the party-list elections!
Because of the express rule in Sec 10, RA 7941 x x x
that a vote cast for a party, sectoral organization or
coalition not entitled to be voted for shall not be counted x x
x
The LABO doctrine applies only to SINGLE ELECTIVE
POST/ELECTIONS (e.g. Mayor); In the party-list system,
even the 2nd, 3rd, etc... candidate may get seats.

Concept and Bases of Congressional Oversight


Functions
See MAKALINTAL vs. COMELEC

See RA 7941.
The three (3) seat limit

Q: What is the power of oversight?

Each qualified part, regardless of the number of votes


actually obtained, is entitled to a maximum of 3 seats 1
qualifying and 2 additional seats.

A: Broadly defined, the power of oversight embraces all


activities undertaken by Congress to enhance its
understanding of and influence over the implementation of
legislation it has enacted. Clearly, oversight concerns postenactment measures undertaken by Congress:

Rationale: To avoid domination/monopoly will go against


the purpose of the party-list system.
Proportional Representation

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

to monitor
objectives;

bureaucratic compliance

with program

23

to determine whether agencies are properly administered;

Sec 22 Art VI (Question hour)

to eliminate executive waste and dishonesty;

Legislative Supervision third and most encompassing


form of oversight power.

to prevent executive usurpation of legislative authority; and


to assess executive conformity with the congressional
perception of public interest

Supervision connotes a continuing and informed


awareness on the part of congressional committee
regarding executive operations in a given administrative
area.

Q: What is/are the basis of oversight power of Congress?


A: The power of oversight has been held to be (1) intrinsic
in the grant of legislative power itself and (2) integral to the
checks and balances (3) inherent in a democratic system
of government.

Allows congress to the exercise of delegated law-making


authority and permits congress to retain that part of
delegated authority.
Ex: veto power of Congress.

Q: what are the categories of congressional oversight


functions? [SIS]
A: Three categories:
Scrutiny primary purpose is to determine economy and
efficiency of the operation of government activities.
Based primarily on the power of appropriation of congress
as under the constitution, the power of the purse belongs
to the congress
Ex: Budget hearings usual means of renewing policy and
auditing the use of previous appropriation to ascertain
whether they have been disbursed for purposes authorized
in an appropriation act.
Power of confirmation [through COA,] provides congress
an opportunity to find out whether the nominee possesses
the necessary qualifications, integrity and probity required
for all public servants.

Congress may request information and report from the


other branches of government. It can give
recommendations / pass resolutions for consideration of
the agency involved.

Power to create public office / administrative agency


congress has an additional power to supervise - properly
implemented congress has review powers over these
public offices / administrative agencies.
Ex: GSIS.
Q: What is legislative veto?
A: It is the power of the congress to disapprove a
subordinate
law,
rules
and
regulations
promulgated/enacted by the executive branch pursuant to
a delegation of authority by Congress.
(part 7) Immunities and privileges of members of
Congress
Sec 11, Article VI A senator of member of the HOR shall,
in all offenses punishable by not more than 6 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
Congress or in any committee thereof.
3 Privileges:
(1) Privilege from Arrest
(2) Freedom of speech and debate

Congressional Investigation a more intense digging of


facts.
This is an essential and appropriate auxiliary to the
legislative functions, even in the absence of an express
provision in the Constitution.

(3) Freedom from search (see Article 145, RPC)


Privilege from Arrest
Not absolute!
Limitations: (1) Congress must be in session

Sec 21 Art VI (in aid of legislation)

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

24

(2) The offense must be one punishable by imprisonment


not more than 6 years.
In session does NOT refer to the day to day session
-refers to the entire duration of the session from the
opening to the final/formal adjournment of Congress.

This is a deviation from the 1935 constitution, under which


the opening of the regular session is every 4 th Monday of
January and the duration of the session is for a fixed period
of 100 days. It was patterned after the American
Constitution.
Freedom of Speech and Debate

People v Jalosjos

Section 11, Art. VI

The immunity from arrest of senators and other


members of house of Reps arises from provision of
constitution. Privilege has always been granted in a
restrictive sense and not liberally.

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.

In this case, he was able to appeal. Can he be allowed to


post bail?

Note: In actions for Libel, slander or Defamation, privilege


communication is a defense. Presumption of actual malice
does not apply.

Cf: section 13, Ar. III

Requisites:

No more because of the fact that he was convicted in RTC


indicates that his guilt is strong. Bail is even not a matter of
discretion.

The speech or debate must be made in Congress or in any


committee thereof.

In relation to Doctrine of Condonation (Aguinaldo v Santos)


Note: Doctrine of Condonation is no longer available as
defense. It has been overturned by SC in a recent case.

Art VI, Sec 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 x x x

The congress must be in session.

Q: In a TV interview, a congressman maligns someone.


Can he invoke his freedom of speech?
A. NO. It was not made in congress or any of its
committee.

Q: In his privileged speech, a congressman made remarks


against A. Can A sue him for defamation?
A: NO. It is covered by the immunity.
Q: What is As remedy?

Q: After 15 days of continuous session, congress


adjourned. Can this be done?

A: Ask the house to punish the congressman.

A: YES. Congress has the discretion under Art VI, Sec 15.
It is allowed to remain in session provided only that 30
days before the opening of the next session, it shall
adjourn (compulsory adjournment).

In any other place

the opening of the session is also the time the President


delivers his STATE OF THE NATION ADDRESS (SONA)
part of the informing power of the President (Art VII, Sec
23)
Art VII, Sec 23 The president shall address the
Congress at the opening of its regular session x x x
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

This includes the courts!


Statement made in Congress is a form of privileged
communication.
This is a valid defense of Slander or Libel!
Borjal vs. CA: There are 2 kinds of Privileged
communication:
Absolutely privileged

25

absolutely not actionable even if the author is in bad faith


Ex: Freedom of speech and debate of members of
Congress. Therefore not actionable even if author acted in
bad faith. (sec.11, Art.VI)
Qualifiedly privileged
Not actionable unless the author acted in bad faith or it can
be show that he had no justifiable motive or reason.
Ex. Article 354 of RPC

Rules of Court says


Rule 114 Sec 4 Bail, a matter of right; exception:
All persons in custody shall be admitted to bail as a matter
of right, with sufficient sureties, or released on
recognizance as prescribed by law or this rule.
before / after conviction by the MTC; and
before conviction by RTC of an offense not punishable by
death, R.P, or life imprisonment.
Rule 114 Sec 5 Bail, when discretionary

This does NOT include Congress Itself!


Osmea vs. Pendatun: The Senate expelled Senator
Osmea from the Senate when he maligned the President
in his speech. He was sanctioned for disorderly behavior.
SC: The Senates act is valid. Congress can punish their
members [Art VI, Secc 16(3)]. The freedom of speech and
debate cannot be invoked in Congress itself. The
constitution says, in any other place.
People vs. Jalosjos: To allow Jalosjos to attend
congressional session will virtually make him a free man;
this would be a mockery of the correctional system.

Immunity of Members of the Congress


arises from a constitutional provision

Upon conviction by the RTC of an offense NOT punishable


by death, RP, or LI, admission to bail is discretionary. x x x

Therefore:
Matter or Right before conviction, punishable by penalty
lower than reclusion perpetua
Exception: charged with offense punishable by
RP or death.

Matter of Discretion before conviction punishable by


penalty of reclusion perpetua or higher when the evidence
of guilt is strong, there will be a hearing to determine
whether evidence of guilt is strong.
After conviction, go to Rule 114 sections 4 and 5.

granted in a restrictive sense


cannot be extended by

Intendment
Implication
Equitable
considerations

Q: During pendency of his appeal from conviction of RTC,


should he be allowed to post bail?
A. NO. Evidence of guild is strong; should wait for decision
on appeal inside the penitentiary.
1987 Constitution says
Art III, Sec 13 All persons, except those charged with
offenses punishable by reclusion perpetua, when the
evidence of guilt is strong, shall, before conviction, be
bailable by sufficient sureties, or be released on
recognizance as may be provided by law. x x x

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Power to Conduct Investigations and Inquiries


Sec 21, Art VI 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.

Nature of the power to conduct investigations and inquiries


non-legislative but integral in the grant of Legislative power
It is investigative.

Arnault vs. Nazareno: In the 1935 Constitution, there is


no express provision regarding inquiries in aid of

26

legislation. However, it is intrinsic to conduct inquiries in


aid of legislation. Therefore, even without such provision,
this power is present.

withhold information from the public, the couts and the


Congress.

Q: Is the power absolute?

It must be invoked (not implied) expressly; must not be a


blanket invocation.

A: NO! Section 21 provides for the following limitations:


It must be in aid of legislation.
It must be made in accordance with duly published rules of
procedures
The rights of persons appearing in, or affected by such
inquiries shall be respected.

unless the question is asked, you cannot invoke this


privilege

It is attached to information, and not the person asked.


IF what is involved in Question hour, members of cabinet
and other top level officers, may validly refused to appear
invoking EO 464. After all, QH is not really a regular feature
of presidential form of government. Appearance therein is
not really mandatory. But in not in INQUIRY IN AID OF
LEGISLATION.

The right against self incrimination (Art III sec 17) may
be invoked.
In aid of legislation
Bengzon Jr vs. Senate Blue Ribbon Committee
Senator Enrile made a privileged speech on the alleged
takeover of the SOLOIL Inc. by Ricardo Lopa, a relative of
President Auino, and asked the Senate to look into the
possible violation of the law, particularly with regard to
RA3019, the Anti-Graft and Corrupt Practices Act. The
matter was referred to the Senate Blue Ribbon Committee.
Not an inquiry for inquirys sake.

SC: This cannot be allowed. Enriles speech had no


suggestion of contemplated legislation. The purpose of
inquiry was to find out whether Ricardo Copa violated the
law. Thus, there is not intended legislation involved.
Q: Is this subject to Judicial Review?
A: General Rule: NO! It is a political question.
Exception: When it is tainted with grave abuse of
discretion amounting to lack or excess or jurisdiction. In
view of the expanded power of the Courts, the SC can
inquire whether the inquiry is in accordance with the
limitations under the constitution.

Q: What are the varieties of Executive privilege?


A: (1) State Secrets Privilege Information is of such
nature that its disclosure would subvert crucial military or
diplomatic objective.
Informers Privilege the privilege of the Government not
to disclose the identity of persons who furnish information
of violations of law to officers charged with the enforcement
of that law.
Generic privilege for internal deliberations attached to
intra-governmental documents reflecting advisory opinions,
recommendations, and deliberations comprising part of a
process by which governmental decisions and policies are
formulated.

Power to Conduct a Question Hour


Art VI, Sec 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 x x x

2 ways to initiate a question hour:


Own initiative, with the consent of the President

Q: What is the executive privilege?

Upon request of either house.

A: It is the power of the government (the President or


Executive Secretary acting in behalf of the president) to
Q: What is Question Hour?

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

27

A: It is a period of confrontation initiated by the parliament


to hold the prime minister and other ministers accountable
for their acts and the operation of the government.
(definition borrowed from a parliamentary government).
Senate of the Philippines vs Ermita
Sections 21 and 22, therefore, while closely related and
complementary to each other, should not be considered as
pertaining to the same power of Congress.

A claim of privilege, being a claim of exemption from an


obligation to disclose information must be clearly asserted.
Absent a statement of the specific basis of a claim of
executive privilege, there is no way of determining whether
it falls under one of the traditional privileges, whether given
the circumstances in which it is made. It should be
respected.
Legislative Contempt The power to punish for Contempt
Nature of the power to punish for contempt

Section 21

General Rule: The power is Judicial in nature. It is an


inherent power of the court.
Section 22

- attendance is meant to be compulsory*

Whentoexercised
the Congress
or any of its
- pertainsExeption:
to the power
conduct abyquestions
hour; the
committees
wheninformation
conductingininquiries
in aid
of legislation
aim of which
is to obtain
the pursuit
of the
(legislative
contempt),
one
can
be
held
in
detention/sent
to
congress oversight function
prision.
- in pursuit of Congress oversight function
Q: How long can one be held in detention for legislative
contempt?
- attendance
is meant to be discretionary

- grounded on the necessity of information in the


legislative process (the power of inquiry being coextensive with the power to legislate)

A: For
as longseeks
as he torefuses
to cooperate,
is not limited
- congress
merely
be informed
on ithow
to the
duration
of the sessionthe
of statutes
Congress.
Thus,
department
heads
are implementing
which
it a person
holds the key to his own freedom. (Arnault vs. Nazareno)
has issued.

- relates to the power to conduct inquiries in aid of


legislation; the aim of which is to elicit information that
may be used for legislation.
- co-extensive with the power to legislate

*non-appearance will impair the work of Congress and


violate Section 7 of the Bill of Rights (right to information in
matters of public concern through their duly elected
representatives in Congress)

Q: Does the pardoning power of the president apply to


cases of Legislative Contempt?
A: NO. It is a limitation on the presidents power to pardon
by virtue of the doctrine of separation of powers.
Bodies Attached To Congress:

Q: May members of Cabinet and other top executive


officials validly refuse to appear before congressional
inquiries without the consent of the President by invoking
EO 464 (prohibiting members of the cabinet and other
Executive officials from appearing in Congressional
Inquiries) promulgated by the President?
A: If the requirement then to secure presidential consent
under EO 464 is limited only to appearances in the
Question hour, then it is VALID. For under Section 22,
Article VI of the Constitution, the appearance of department
heads in question hour is discretionary on their part.
However, this cannot be applied to department heads in
inquiries in aid of legislation. Congress is not bound in such
instances to respect the refusal of the department heads to
appear in such inquiry, unless a valid claim of privilege is
subsequently made, either by the President himself, or by
the Executive secretary (Senate of the Philippines vs.
Ermita).

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Commission on Appointments (Art. VI, Sec 18)


Electoral Tribunals (Art VI, Sec 17)
Commission on Appointments- this is one way of
Congress in checking the appointing powers of the
President
Note: COA has no judicial component unlike in electoral
tribunals which include 3 justices each.
Section 18, Art VI 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 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 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.

28

A: Disregard (drop) the fraction. Otherwise, rounding off


would violate the rule on proportional representation!
Although some seats would not be filled, it is not
mandatory that all seats be filled up. What is necessary is
that there be a quorum (Guingona vs. Gonzales)

Organization
Q:
A: 25

How
many
members?
Senate President ex officio chairman
12 Senators

Q: What is main function of the Commission on


Appointments?

12 Representatives (from the House of


Representatives)

A: To act on Presidential Appointments (checks-andbalances)

Q: How are the 24 members chosen?


A: based on proportional representation from political
parties (including party list) having membership in the
senate or House of representatives.

Q: When can CoA meet?


A: Only when the congress is in Session. (Art VI, Sec 19.
2nd sentence) The commission on Appointments shall
meet only while the Congress is in session at the call of its
chairman and a majority of all its members, to discharge
such powers and functions as are herein conferred upon it

Example:
Senate composition:

- Thus, ad interim appointments are allowed (see Section


16, 2nd par. Art VII)

K4 = 10

Electoral Tribunals

KNP = 8
LOP = 4
LAKAS = 2
Formula to determine seats per party in the
Commission on Appointments:
# of senators of party
Total # of senators
12 is the # of CoA seats
Simply put, it is the # of senators of a Party DIVIDED by 2
Follow the same formula for HOR component just use the
# of congressmen.
Therefore:
K4 = 5
KNP = 4
LOP = 2
LAKAS = 1
Q: What if there are decimal places?

Section 17, Art VI 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
12
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.
Two Electoral Tribunals
Senate Electoral Tribunal (SET)
House of Representatives Electoral Tribunal (HRET)
Membership 9 members
Judicial Component 3 Supreme Court Justices; the most
senior is the chairman (designated by the CJ)
Legislative Component 6 senators / congressmen chosen
on the basis of proportional representation
Bondoc vs. Pineda

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

29

FACTS: Congressman Camasura was a member of the


HRET. There was an electoral contest involving his partymate and Bondoc. The party instructed Camasura to vote
for his party-mate. However, Camasura cast a conscience
vote in Bondocs favor. Thus, the party expelled Camasura
from HRET on the grounds of disloyalty to the party and
breach of party discipline.

HELD: The expulsion is VOID. SET/HRET members are


entitled to security of tenure to ensure their impartiality and
independence. As judge-members of the tribunal, they
must be non-partisan; they must discharge their functions
with complete detachment; Independence and impartiality,
even from the party to which they belong. Thus, disloyalty
to party and breach of party discipline are not valid
grounds for expelling a tribunals member. The members
are not supposed to vote along party lines once
appointed, the house/senate leadership should not
interfere with the tribunal. Although they are attached to
congress, yet they are independent of Congress.
Q: Can they meet when Congress is not in session?
A: YES. Unlike the Commission on Appointments, they
shall meet in accordance with their rules, regardless of
whether congress is in session!

Q: From the decision of SET or HRET, is there an appeal?


A: NONE. Sec 17 of Article VI provides that the SET/HRET
is the sole judge of all contests x x x. Hence, from its
decision, there is no appeal. Appeal is not a constitutional
but merely a statutory right. Also, it is not found in the
Constitution.
Q: Is there any remedy from its decision?
A: YES. A special civil action (an original action not a
mode of appeal) for certiorari under Rule 65 may be filed.
This is based on grave abuse of discretion amounting to
lack or excess of jurisdiction. This will be filed before the
SC.
[The other form of Certiorari is Rule 45, which is
a mode of appeal on pure questions of law. This is a mode
of appeal unlike the Special Civil action for Certiorari under
Rule 65]

SET/HRETs jurisdiction is limited to contests


relating to the election x x x of their respective members
Romualdez-Marcos vs. COMELEC

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

FACTS: In the 1995 elections, Imelda ran for HOR. A


disqualification case was filed against her on account of
her residence. The case was not resolved before the
election. Imelda won the election. However, she was not
proclaimed. Imelda now questions the COMELECs
jurisdiction over the case.
HELD: The COMELEC still has jurisdiction. HRETs
jurisdiction as the sole judge of all contests relating to the
elections, etc..of members of congress begins only after a
candidate has become a member of the HOR. Since
Imelda has not yet been proclaimed, she is not yet a
member of the HOR. Thus, COMELEC retains jurisdiction.
(see RA6646, Sec 6, Electoral Reform Law of 1987)
Guerrero vs. COMELEC
FACTS: Rudy Farias of Ilocos Norte ran for
Congressman. A disqualification case was filed against
him, which was not resolved before the elections. He won
and was proclaimed. COMELEC dismissed the pending
disqualification case against Farias. This was questioned
by Guerrero on the ground that HRET has jurisdiction only
if there is a valid proclamation of the winning candidate.
Thus, if a candidate does not ratify the statutory
requirements, his subsequent proclamation is void and
thus, COMELEC still has jurisdiction.
HELD: The dismissal (of the case) is incorrect. This is a
recognition of the jurisdictional boundaries between
COMELEC and HRET. In an electoral contest where the
validity of the proclamation of a winning candidate who has
taken his oath of office and assumed his post as
congressman is raised, the issue is best addressed to the
HRET. This avoids duplicity of proceedings and a dash of
jurisdiction between constitutional bodies.
[Thus, once a winning candidate has been proclaimed,
taken his oath of office and assumed office as a member of
the HOR, the COMELECs jurisdiction over election
contests relating to his election returns and qualifications
ends, and the HRETs own jurisdiction begins.]

Sec. 21, Art.VI Inquiry in aid of legislation


-Investigative power of Congress.
Arnault v Nazareno: SC recognizes the intrinsic power of
congress to inquire.
BENGZON v SENATE BLUE RIBBON COMMITTEE
Q: Is this power absolute?
A: No. Limitations to the power of inquiry:

30

a.

Inquiry must always be IN AID of legislation;

b.

It must be in accordance with duly published


rules of procedure by house of congress
conducting that inquiry; and
The rights of persons appearing in or
affected in that inquiry shall be respected.

c.

STANDARD CHARTER BANK vs SENATE COMMITTEE


SCB is a foreign bank allowed to engage business in Phil.
Apparently, some local investors were defrauded by these
SCB banks. Enrile now urge senate committee to conduct
inquiry in aid of legislation on the matter of foreign banks
allowed to do business in Phil.
SCB questions this inquiry.
RULING: SC disagrees. In this case, it is obvious that the
inquiry is in aid of legislation. The purpose of the inquiry
here is for the Senate committee to determine whether
there are loopholes in our laws to prevent local investors to
be defrauded. So that remedial measures will be enacted.

Q: Is this subject to Judicial Review?


A: SC said this is subject to judicial review. This is not a
political question. Especially in the expanded jurisdiction of
the court to determine whether or not there has been
grave abuse of discretion amounting to lack or excessive
jurisdiction. Given that there are limitations here, hence
courts can take cognizance.
The courts may validly inquire into whether the inquiry were
conducted in accordance with the duly published rules.
Finally, the courts may vaidly inquire into whether the rights
of the persons appearing therein or affected by the inquiry
are protected.
Legislative contempt is applicable during Inquiry- when a
person is summoned and failed to submit or appear.
Senate is not powerless to compel attendance. Here,
pardoning power of president does not apply in view of the
doctrine of separation of powers.

Exceptions: Bills that must originate exclusively with the


HOR [APRIL]

Appropriations bill
Private bills
Revenue or Tariff bills

but senate may propose &


concur with amendments.
Amendment by substitution is
allowed.

Bills Increasing the Public Debt


Bills of Local Application
Source:
Article VI, section 24 All appropriate, revenue or tariff
bills, bills authorizing increase of 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.
Tolentino vs. Secretary of Finance
EVAT is a
revenue bill. It intends to raise income for the govt.
FACTS: There were 2 versions of the EVAT the HOR and
the Senate version. The HOR bill was first filed and the
Senate suspended its own deliberations until the HOR
version was sent to the Senate. Then, the senate passed
its own version. Both versions were sent to the Bicameral
Conference Committee. What eventually became the EVAL
law was the senates version.
HELD: It is not the law, but the revenue bill that is required
to originate exclusively in the HOR. What the constitution
simply means is that the INITIATIVE for filing revenue, tariff
bills, etcmust come from the HOR on the theory that
since the HOR members are elected from the districts, they
can be expected to be more sensitive to the local needs
and problems.

The Legislative Process

A bill originating in the HOR may undergo such extensive


changes in the Senate. The result may be a rewriting of the
whole. To insist that the revenue statute must be
substantially the same as the house bill would deny the
senates power to concur and propose amendments. This
would violate the co-equality of the legislative power
between the HOR and the Senate. Thus, the power of the
senate to propose amendments includes the power to
propose its own version. Amendments may be
amendments by substitution.

Filing of the Bill

2 rules:

General Rule: A bill may be introduced and may originate


either from the Senate or the HOR.

1) One-subject-one-title rule

What is nature of power of contempt? It is judicial.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

31

Sec 26(1), Art VI Every bill passed by the Congress


shall embrace only 1 subject, which shall be expressed in
the title thereof.
Objectives (De Guzman Jr. vs. COMELEC)
1.
2.

3.

To prevent hodge-podge or log-rolling legislation;


To prevent surprise or fraud upon the legislature
by means of provisions in bills of which the title
gives no information and which might thus be
overlooked and carelessly and unintentionally
adopted; and
To fairly appraise the people, through such
publication of legislative proceedings as usually
made, of the subjects of legislation that are being
considered, in order that they may have the
opportunity of being heard thereon by petition or
otherwise, if they shall so desire.

In general, the rule seeks to prevent riders provision


which is totally unrelated to the subject matter of the
legislation being considered and may be the subject of a
separate legislation.

Tobias vs. Abalos


FACTS: San Juan and Mandaluyong used to be
municipalities belonging to one (1) legislative district, with
one congressman. RA7675 was enacted entitled,
converting Mandaluyong into a highly urbanized city.
Section 49 of said law creates a separate legislative district
for Mandaluyong. The people approved the law in a
plebiscite. Tobias now questions the legality of the law on
the ground that it has 2 unrelated subjects: (1) conversion
of Mandaluyong into a highly urbanized city, and (2)
creation of a separate legislative district for Mandaluyong.

HELD: The creation of a separate legislative district for


Mandaluyong is NOT a subject separate from its
conversion into a highly urbanized city. Instead, it is a
natural and logical consequence of such conversion. This
is because of Article VI, Section 5(3), which provides that
each city with a population of at least 250,000 or each
province shall have at least one (1) representative.

Liberal Interpretation Rule:


Title need not be the index or catalog of the contents
thereof, as long as the various provisions are germane to
the main subject matter which is the one required to be
expressed in the title of the Bill.

This, for as long as various provisions are germane to


the subject matter which is expressed in the title the
rule is complied with.

e.g.The NEW CIVIL CODE of Philippines


Philippine Judges Association vs. Prado

2) Three readings on three separate days rule

FACTS: RA7354 is entitled, law creating the Philippine


Postal Corporation. In section 35 (Repealing clause), the
Judiciarys franking privilege was withdrawn. Philippine
Judges Association argues that Section 35 is not
expressed in the title of the law, and also the title does not
reflect the purpose of withdrawing said franking privilege.

Sec 26(2), Art VI No bill passed by either House shall


become a law unless it has passed three readings on
separate days, and printed copied 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.

HELD: The bills title is not required to be an index to the


body of the act, or to be comprehensive as to cover every
single detail in the act. If the title fairly indicates the general
subject and reasonable covers all the provisions of the act,
and is not calculated to mislead the legislature or the
people, there is sufficient compliance with the constitutional
requirement.

[Here, when a statute repeals a former law, such repeal is


the effect not the subject of the law and it is the subject
and not the effect that is required to be briefly expressed in
the title.]

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

General Rule: Each bill must undergo 3 separate readings


on 3 separate days.
(one in Senate, one in HOR = 6
days/readings all-in-all)
First Reading
the bills title is read; it is assigned a number, and then
referred to the appropriate committee

32

no deliberations yet
In the committee to which the bill was referred to, it may die
a natural death if said committee sits on it.
If the members of the committee endorse the bill to the
plenary, it will be calendared for 2nd reading.
Second Reading
The bill is sent back to the plenary.
In the plenary, it will be discussed in its entirety; there will
be sponsorship speech, interpellations, deliberations;
amendments may also be introduced.
Third Reading
Requirement: 3 days before the scheduled 3 rd reading.
Printed copies of the bill will have to be distributed to each
member of the house.
Here, there are no more deliberations, discussions, or
amendments.
There is only voting; the yeas and nays must be entered in
the journal.

If both houses have different versions of the Bill, said


versions will be sent to the Bicameral Conference
Committee for reconciliation.

BICAMERAL CONFERENCE COMMITTEE (Sec


1, Art VI Bicameral Congress)
Q: Is this mentioned in the Constitution?
A: NO! But it can be inferred from:
Power of each house of Congress to have rules of
proceedings under Art VI, Section 16(3) Each house
may determine the rules of its proceedings x x x; and
The fact that we have a bicameral Congress Art VI, Sec 1
The legislative power shall be vested in the Congress x
x x which shall consist of a senate and a HoR.
Nature and Functions of the Bicameral Conference
Committee
Source: Philippine Wages Association vs. Prado
Primarily, it is a mechanism for compromising differences
between the senate and the HoR; this is because we have
a bicameral Congress.

Exception: When the President certifies to the necessity of


its immediate enactment to meet a public calamity or
emergency.

It is capable of producing unexpected results which can


even go beyond its mandate.

Tolentino vs. Secretary of Finance

Referred to as the 3rd house of Congress not correct


under our constitution, because there are only two houses.

When the president certifies as to the necessity of the Bills


immediate enactment, it need not undergo 3 readings on 3
separate days and printed copies of the Bill need not be
distributed to the members 3 days before the 3rd reading.
What constitutes a public calamity or emergency is a
political question into which the courts cannot interfere.
While the sufficiency of the factual basis of the suspension
of the writ of Habeas Corpus or declaration of martial law is
subject to Judicial review because basic rights of
individuals may be at hazard, the factual basis of
presidential certification of bills, which involves doing away
with procedural requirements designed to insure that bill
are duly considered by member of congress, certainly
should elicit a different standard of review.

After 3 readings, the bill will be sent to the other house


where it will undergo the same cumbersome process.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

See Arroyo vs. De Venecia

Referral back to the Senate and the HoR from the


bicameral conference committee, the consolidated bill will
be sent back to each House.
There, the consolidated bill will be subject to voting; no
more readings
If the yeas prevail over the nays the bill is passed and will
be sent to the Senate Predient and the HoR speaker for
signing.
If the nays prevail over the yeas another bicameral
conference committee will be created until an acceptable
version of the bill is created; the court did not say that the
bill is killed. (Tolentino vs Secretary of Finance ***)
Enrolled Bill Doctrine

33

Q: What is the enrolled bill doctrine?


A: Once a bill has become an enrolled bill, it becomes
conclusive upon the courts as to its enactment*, so that the
courts will not inquire into whether that Bill was regularly
enacted or not.
* It is the enactment only and NOT its constitutionality or
validity, which is subject to judicial review.
Q: What is an enrolled bill?
A: It is a bill that contains the signatures of the respective
secretaries of both Houses of Congress, of the House
Speaker and of the Senate President; and is to be sent to
the President for his signature.

Art VI. Sec 26(2) Upon the last reading of a bill x x x the
vote thereon shall be taken immediately thereafter, and the
yeas and nays entered in the Journal.
-The yeas and nays on any question at the request of
1/5 of the members present
Art VI, Sec 16(4) Each house shall keep a journal of its
proceedings x x x and the yeas and nays on any question
shall, at the request of 1/5 of the members present, be
entered in the journal.
-The yeas and nays upon re-passing a bill over the
Presidents veto.

In other words, the following are the signatories


to the enrolled bill:

Art VI Sec 27(1) In 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.

Secretary of the senate and of the

-The presidents objection to a bill he had vetoed.

speaker
Senate president

Art VI Sec 27(1) every bill passed by Congress shall,


before it becomes a law, be presented to the President x x
x 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 x x x

Q: What is the reason for the doctrine?

Astorga vs. Villegas

A: Separation of Powers. The courts should give due


respect because the enrolled bill contains the signatures of
the officers of the co-equal branches of Government.

FACTS: A bill of local application was filed in the and


was there passed on 3rd reading without amendments.
Forthwith, the bill was sent to the Senate for its
concurrence. It was approved with minor amendments
suggested by Senator Roxas, that instead of the City
Engineer, it be the President Protempore of the Municipal
Board who should succeed the Vice Mayor in case of the
latters incapacity to act as Mayor. However, on second
reading, substantial amendments to this were introduced
by Senator Tolentino. These were approved in toto by
Senate. The amendment recommended by Senator Roxas
does not appear in the Journal of the Senate proceedings
as having been acted upon. When the Secretary of the
Senate sent a letter to the that the House Bill No. 9266
had been passed by the Senate with amendments, he
attached a certification of the amendment, which were the
ones actually approved by the senate. The thereafter
signified its approval of the bill and caused copies thereof
to be printed. The printed copies were then certified and
attested by the secretaries of the and the senate and
the speaker of the and the Senate president. When the
printed copies were sent to the President, he affixed his
signature thereto by was of approval. The bill became R.A.
4065. However, Senator Tolentino issued a press
statement that the bill signed into law by the President was
the wrong version. Consequently, the Senate President
withdrew his signature.

Journal Keeping Requirement


Sec 16(4), Art VI 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 x x x

Q: Between the enrolled bill and the Journal, which


prevails?
A: General Rule: Enrolled bill prevails
Exception: Journal prevails as to the matters
required by law to be entered into the Journal.(Arroyo vs
Devenecia)
They are required to be entered in the journal and regarded
as conclusive:
-The yeas and nays on the 3rd and final reading

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

34

HELD: The court went beyond the enrolled bill and looked
into the Journal to determine whether theres legal insertion
or not.

Kinds of Veto

RULE ON PRESENTMENT OF BILLS TO PRESIDENT

Item Veto or Line Veto Art VI, Sec 27, par 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.

Enrolled bill to the President


Last stage

General Veto Art VI, Sec 27, par 1

From Congress, the bill will be sent to the President.


Q: How many options does the president have?
A: 3 options:
(1) President approves the bill
bill becomes a law
(2) President vetoes the bill
does not become a law

General Rule: President may not veto a provision without


vetoing the entire bill.
The rule is all or nothing; selective veto is not allowed.

bill

(3) President does not do anything (inaction)


automatically becomes a law thirty (30) days after receipt
of the bill.

First option: President approves the Bill


Sec 27 (1), Art VI Every bill passed by Congress shall,
before it becomes a law, be presented to the President. If
he approves the same, he shall sign it xxx
Second option: President vetoes the bill
Sec 27 (1), Art VI Every bill passed by Congress shall,
before it becomes a law, be presented to the President x x
x otherwise, he shall veto it and return the same with his
objections to the House where it originated.
Requirements:
Sent the bill back to Congress,
Together with his objections (veto message)

Q: Can Congress overthrow the veto (repass the law)?


A: YES! With a 2/3 vote as provided under Sec 27(1) Art VI
If after such reconsideration, 2/3 of all members of such
House agree to pass the bill, it shall be sent, together with
the objections to the other house by which it shall likewise
be considered, and if approved by 2/3 of all members of
that house, it shall become a law.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

The president may not veto a bill without vetoing the entire
bill. The executive must veto a bill in its entirety or not at
all. He cannot be an editor crossing our provisions which
she dislikes. (Bengzon vs. Drilon)
Exceptions: Selective veto is allowed in 3 kinds o bill (ART)
Appropriation bills
Revenue Bills
Tariff Bills
Grounds for Vetoing Ordinance by the Chief Executive
Sec. 55 of LGC par. A

[UP]

Ultra-vires/
prejudicial to public welfare
Sec 55 of LGC par. B: on Item/line veto:

[PAL]

Appropriation Ordinance
Adopting a local development plan
Ordinance
Authorizing
money/creating Liability

Payment

of

Q: Under the LGC, can Punong-Baranggay veto an


ordinance?
A: NO. He is part of the ordinance-making (or legislative
process) body as the presiding officer of the sessions of
Sangguniang Baranggay.

35

Q: Do Local Chief Executives have veto power?


A: NO.
Q: How about a Governor?
A: Yes. There is a vice-governor.

Q: How about a Mayor?


A. Yes. There is vice-mayor.

FACTS: the General Appropriations Bill contained a


provision prohibiting the President from augmenting the
funds of one department from the other. President Aquino
vetoed that provision. Congress argued that what she
vetoed was a provision, not an item. Thus, she effectively
vetoed the entire bill since the item veto refers to items and
not to provisions.

HELD: The Court sustained the validity of the exercise by


the President of her veto power, invoking the doctrine of
inappropriate provision.

Chief Executive of Baranggay


Chief Executive
Sangguniang Baranggay, presiding officer
Lupong Tagapamayapa

Section 25, par 2, Art VI 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.

Can carry firearms


Q: May the President veto a LAW?
Q: Is the Chief executive of Baranggay an agent, or a
person-in-authority?
A: Person-in-authority (recall Crim Book II can be subject
to direct assault)

A: NO. What the president may validly veto is ONLY a BILL


and neither the provisions of LAW 35 years before his term
nor a final and executory judgment of the Supreme Court.
(Bengzon vs. Drilon)

N.B.: Policeman agent of person-in-authority


Sec. 388 LGC

Item vs. Provision in an appropriation bill

Punong Baranggay

An item is a specific appropriation of money, not some


general provision of law that happens to be in an
appropriation bill.

Sangguniang Baranggay members


Persons-in-authority
Lupong taga-pamayapa

Doctrine of Inappropriate Provisions


Provisions in an appropriation bill must relate to some
particular provision therein (see Art VI, Sec 25(2)). If it does
not, it becomes an inappropriate provision and will be
treated as an item. Thus, it can be subject to the item veto
(Gonzales vs. Macaraig)

Gonzales vs. Macaraig

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Third option: President does not do anything (inaction)


Sec 27 (1), Art VI [last sentence] x x x The president
shall communicate his veto of any bill to the House where
it originated within thirty days after the ate of receipt
thereof; otherwise, it shall become a law as if he had
signed it.

Q: Is pocket veto valid or practiced in our jurisdiction?


A: NO. There is not such thing as pocket veto in the
Philippines. Unlike in the US if within 10 days, the
president fails to act on the Bill and Congress adjourns, the
bill does not become a law. In our jurisdiction, the bill

36

automatically becomes a law if the President does not act


within 30 days after receipt of the Bill.

Example of Bills which lapsed into law by the


Presidents inaction:

-members of Cabinet and heads of the


department are deemed to be alter egos of the president.
So their acts or decisions performed in the regular course
of business are deemed to be acts or decisions of
president unless reprobated or disapproved by him.

Bar Flunkers Act President Quirino

QUALIFICATIONS OF PRESIDENT ARTICLE VII, Sec. 2

Changing the name of Manila Intl Airport to Ninoy Aquino


Intl Airport President Aquino

(1) natural-born citizen


(2) registered voter

Q: What if the President does not veto the inappropriate


item?

(3) able to read and write


(4) at least 40 years of age on the day of the election

A: It becomes a law/ rider which may be a separate subject


of legislation.

(5) resident of the Philippines for at least 10 years


immediately preceding the election

Doctrine of Qualified Political Agency (Alter Ego


Doctrine)

- Enumeration is exclusive!

Members of the Cabinet are considered acts/decisions of


the President UNLESS reprobated by the latter.
Members of the Cabinet are considered alter ego of he
President.
EXECUTIVE DEPARTMENT
EXECUTIVE POWER
ARTICLE VII, Sec. 1: The executive power shall be
vested in the President of the Philippines.

Q: What power belongs to the President?

- The Constitution specifically provided that the Congress


cannot add nor subtract from the list.

TERM OF OFFICE OF THE PRESIDENT ARTICLE VII,


Sec. 4
- 6 years, to begin at noon of June 30 next following the
day of the election and to end at noon of the same date 6
years thereafter.
- no re-election; regardless of whether or not President
finished his term.
- The President shall not be eligible for any re-election.
(Sec. 4)

A: Power of the Sword. (Power of the Purse belongs to


the Congress.)
QUALIFICATIONS AND TERM OF OFFICE OF THE VICE
PRESIDENT
Faithful Execution Clause

- same as the President

The president as chief executive, he shall ensure that the


laws be faithfully executed.

ARTICLE VII, Sec. 3, 1st par. There shall be a Vice


President who shall have the same qualifications and term
of office xxx as the President."

ARTICLE VII, Sec. 17, 2nd sentence: xxx he shall ensure


that the laws be faithfully executed.
Doctrine of Qualified Agency/Alter Ego

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

- may be re-elected once!


ARTICLE VII, Sec. 3, 2nd par. No Vice President shall
serve for more than two successive terms.

37

- no longer an idle official

Q: But was he removed through impeachment?

ARTICLE VII, Sec. 3, 2nd par. The vice President may be


appointed as a Member of the Cabinet. Such appointment
requires no confirmation.

A: No! (remember, a vice president can only be removed


by impeachment)

PRESIDENTIAL SUCCESSION
ARTICLE VII, Sec 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. D-D-R-R
4 INSTANCES:
(1) Death
(2) permanent Disability
(3) Removal
(4) Resignation
-in such instances, VP shall take over as
President.
- The President can only be removed by means
of impeachment. Se.2, Art.XI
- ARTICLE XI, Sec. 2 : the list of impeachable
officer is exclusive!
(1) President
(2) Vice President
(3) Members of the Supreme Court
(4) Members of the Constitutional
Commission
(5) Ombudsman
- Hence, the provision in the law creating the
Sandiganbayan (1980) is already doubtful! (The law
creating Sandiganbayan provides that SB Justices may
only be removed by impeachment.)
- Grounds:
(a) culpable violation of the Consitution
(b) treason
(c) bribery
(d) graft and corruption
(e) high crimes
(f) betrayal of public trust
Q: Was Estrada impeached?
A: Yes!
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

(4) Resignation
Estrada vs. Desierto
(Did Erap resign?)
- Elements of Resignation
(a) there must be an intent to resign, which is
coupled with:
(b) act of relinquishment
- Form of Resignation: the validity of a
resignation is not governed by any formal requirement as
to form it can be oral or written; express or implied as
long as the resignation is clear, it must be given effect.
- TOTALITY OF CIRCUMSTANCES TEST AND
CONSTRUCTIVE RESIGNATION Estrada did not write
any formal letter of resignation before leaving Malacanang.
Thus, whether or not he resigned is to be determined from
his acts and omissions before, during, and after January
20,2001 or by the totality of prior, contemporaneous and
posterior facts and circumstantial evidence bearing a
material relevance on the issue using this test, his
resignation cannot be doubted.
In his final statement, he (a) acknowledged Arroyos oathtaking as President; (b) emphasized he was leaving
Malacanang for the sake of peace and order not because
of some inability; (c) expressed his gratitude to the people
for the opportunity to serve them, etc.

Note; In the Law Public Officers, an essential element of


resignation is the acceptance by the proper authority.
- This element cannot be applied in the instances when the
President resigns.
- The President is the highest officer of the land, hence,
there is no one to act on his resignation.
- Unique situation so SC applied a unique solution.
(Concept of Constructive Resignation)

POWERS OF THE PRESIDENT


I. SPECIFIC POWERS FOUND IN ARTICLE VII
(1) Appointing Power

38

- Carries with it the power of removal


- ARTICLE VII, Sec. 16

(2) Power of Control


- ARTICLE VII, Sec. 17 The
President shall have control of all the executive
departments, bureaus, and offices xxx.
- With respect to local governments,
the President merely has power of general supervision.
(ARTICLE X, Sec. 4)
General supervision- to oversee that LGUs and officials
perform their functions in accordance with law.
Control- means the power of superior officer to
act directly whenever a power or function has been vested
by law to a subordinate.
-to direct the performance of a duty;
-restrain the commission of act;
-to review, revise, modify or alter the
acts of a subordinate; or
- to substitute its own decision over that
of a subordinate
Executive Department- is any of the executive
departments by law(EO 292). This department is headed
by Cabinet Secretary. These departments are alter egos of
the president.
e.g. Dept of Finance, DILG, DOJ,
DepEd, DENR, etc.
Bureau- principal subdivision of a department.
So bigger unit is the department.
Department of Finance=> Bureau of
Customs, Bureau Internal Revenue
ED= DOJ=> NBI, BID, Bureau of Prisons
DILG=>PNP, Bureau of Fire, etc.
Office- a major functional unit of department or
bureau, the term office will include regional offices.
e.g. Major office of Undersecretary of finance,
Regional Office of BIR

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

(3) Military Powers


- ARTICLE VII, Sec. 18
- There are actually 3:
(a) calling-out power as the commander-inchief of all the armed forces:
Instances: lawless violence,
invasion and rebellion
(b) power to declare martial law
Instances: in case of invasion or rebellion,
when public safety requires it.
Olaguer Doctrine: (superseded Aquino v Military) A state of
martial does not authorize the conferment of jurisdiction on
military courts over civilian when civil courts are
functioning. (now incorporated in sec.18, Art.VII)
(c) power to suspend the privilege of writ of
habeas corpus
limitation: Right to Bail
(4) Pardoning Power
- ARTICLE VII, Sec. 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 Members of the Congress.
- 5 matters mentioned:
(a) reprieves
(b) commutations
(c) pardons
(d) remit fines and forfeitures
(in these 4, conviction by final judgment is a
requirement)
(e) amnesty (par.2 of sec.19,
Art. VII)
- require concurrence of the majority of
Congress
- conviction by final judgment is not a
requirement
- if case is still pending, may extend
amnesty
Pardon is a personal act whereas Amnesty is an official act
which is a matter of judicial notice and thus, does not
require proof.
Q: Is Pardon available to one guilty of offense or only those
who commit a crime?

39

A: Llamas vs Orbos SC is available not only to one found


guilty of a crime but to one who is also guilty of an
administrative offense. Since Constitution did not
distinguish criminal from administrative offense. Besides, if
persons convicted of serious offenses can be pardon
where proof requires guilty beyond reasonable doubt, why
shoud be denied to one guilty of administrative offense
where proof is only substantial evidence.
Effect of grant of absolute pardon to a convict:
Monsanto vs Factoran: Pardon may mean
forgiveness but not forgetfulness. Thus, she cannot ask for
backwages and reinstatement. In the eyes of the law, she
is still a convict. Pardon does not look back, it does not
erase the fact of ones guilt, it looks to the future. Unlike
amnesty, it erases the shames of the past.
Unless the grant expressly so provides, she is
not entitled to reinstatement. Since she is not entitled to the
latter it follows that she is not entitled to back wages.
Reprieve- postponement of execution of a death convict
not the sentence! That is probation.
Q: Are members of Armed Forces covered by that Amnesty
Proclamation No. 347 granting amnesty to rebels, etc.?
A: SC ruled that Proc. 347 does not distinguish, it also
covers members of Armed Forces. It extends to ALL
persons who committed the rebellion, it does not exclude
military rebels. Kapunan Jr. v CA, March 13, 2009
Commutation of Sentence- reduction of the penalty
Limitations on the Pardoning power of president:
1.
2.
3.
4.

5.

does not apply in cases of impeachment;


there must be conviction by final judgment
before one may be granted pardon;
does not apply in legislative contempt in
view of separation of powers;
No pardon, amnesty or parole or suspension
of sentence for violation of election laws
shall be granted without favorable
recommendation of the COMELEC; and
President cannot grant pardon to judges, it
constitutes encroachment on the powers of
the SC to discipline or order their dismissal.
(Art. VIII)

(5) Borrowing Power

behalf of the Republic of the Philippines with the prior


concurrence of the Monetary Board, and subject to
limitations as may be provided by law xxx.
State Limitations of the Borrowing Power of the President:
1.
2.

there must be prior concurrence of the


Monetary Board; and
subject to such limitations as ma be
provided by law

(6) Treaty-Making Power


- ARTICLE VII, Sec. 21 No treaty or
international agreement shall be valid and effective unless
concurred in by at least 2/3 of all the Members of the
Senate.
(7) Budgetary Power
- ARTICLE VII, Sec. 22 The
President shall submit to the Congress within 30 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.
Cf: Sec.25(1), Art.VI- Congress may not increase the
appropriation recommended by the president.
The congress may only trim down or slash but not
increase.
Q: Who ratifies a treaty?
A: Bayan vs Zamora; Pimentel vs Office of the Secretary
reiterated Bayan vs Zamora
Power to ratify is vested in the president and not
as commonly believed as in the legislature. The role of the
Senate is limited to giving or withholding its consent or
concurrence to the ratification.
***What requires the ratification by the senate is a treaty or
international agreement.
Q: What about executive agreements?
A: It does not require concurrence by Senate.
Q: Is Executive agreement an equally binding international
obligation?
A: Bayan v Zamora: In international law there is no
difference between treaties and executive agreements in
their binding effect upon the states concerned.

- ARTICLE VII, Sec. 20 The


President may contract or guarantee foreign loans on
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

40

As long as their functionaries remained within their powers.


International law remains to give no distinction between
treaties and executive agreements. They are equally
binding obligations upon nations.
Q: What about exchange of notes? Will that require
concurrence of senate?
A: Abaya vs Ebdane Jr. 02/14/07
-loan application in Japanese government. There
was exchange of notes between secretary of foreign affairs
and Japanese ambassadors. Will that exchange require
concurrence?
-Exchange of notes is considered a form
executive agreement which do not need concurrence by
the senate.

Bayan vs Zamora
Case involving ratification of Visiting Forces
Agreement (VFA) with US.
Issue: Is VFA a treaty or executive agreement?

A: Every 4th Monday of July. That is the opening


of Congress. Sec.15, Art.VI
State Instances when Congress may held special session
even without call of President:
1.
2.
3.
4.

sec. 18, Art.VIIImpeachment Cases


In matter of canvassing in the election of
president and vice president
Sec.10, Art.VII- Permanent Vacancies in
Offices of President and Vice President

-discretion is with Congress how long will it conduct


session.

II. SPECIFIC POWERS FOUND SOMEWHERE ELSE IN


THE CONSITUTION
(1) Power of general supervision over local
governments
- ARTICLE X, Sec. 4 The President
of the Philippines shall exercise general supervision over
local governments xxx.

Held: TREATY. President considers it as treaty thats why


he submitted that too senate for concurrence.
Sec.21, Art.VII deals with treaties or international
agreement in general. This lays down the general rule and
applies to any form of treaty. In contrast, Sec.25, Art.XVIII
is a special provision that applies to treaties which involves
presence of foreign military bases, troops or facilities in the
Philipines. Under this provision, the concurrence of senate
is only one of the requirements.
Undoubtedly, sec.25, Art.XVIII should apply in the instant
case. A special provision prevails over a general one.
However, in latter provision does not provide for number of
votesfor concurrence, so in that acse sec.21, Art.VII is
applicable.
(sec. 25, Article XVIII)
(8) Informing Power
- State of the Nation Address
- ARTICLE VII, Sec. 23 The
President shall address the Congress at the opening of its
regular session. He may also appear before it at any other
time.
Q: When is the opening of the regular session of
Congress?
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

(2) Veto Power


- ARTICLE VI, Sec. 27

(3) Power to call Congress to special session


- ARTICLE VI, Sec. 15 The
President may call a special session at any time.
III. OTHER POWERS
(1) Impoundment Power
- refusal of the President, for whatever
reason, to spend funds made available by Congress. It is
the failure to spend or obligate budget authority or any
type. (PHIILCONSA VS. ENRIQUEZ)
- 3 principal sources:
(a) authority to impound given by Congress
(b)
executive power president as the
commander-in-chief
(c) faithful execution clause
(2) Unstated Residual Powers

41

- powers which are not found in the


Constitution, but he may validly exercise. (Marcos vs.
Manglapuz).
- reserved powers of the president

similar malpractices. On the other hand, placing absolute


power to make appointments in the President with hardly
any check by the legislature, as what happened under
1973 Constitution, leads to abuse of such power. Thus,
was perceived the need to establish a middle ground
between the 1935 and 1973 Constitution.

Q: How do you define executive powers?


A: Executive power is neither legislative nor judicial. (This
implies that it is very broad.)
APPOINTING POWER
- ARTICLE VII, Sec. 16
- correlate with Law on Public Officers

4 INSTANCES WHERE CONFIRMATION IS REQUIRED


(1) Heads of executive departments
- appointment of cabinet secretaries requires
Confirmation
EXCEPTION:
Vice-president may be
appointed as a member of the Cabinet and such
appointment requires no confirmation. (ARTICLE VII, Sec.
3, Par. 2)

Nature of Appointing Power


- vested in the President; executive in nature

(2) Ambassadors, other public ministers and consuls

- subject only to well-known exceptions

- those connected with the diplomatic and


consular services of the country.

- carries with it the removal power (power to hire carries


with it the power to fire)

Structure of ARTICLE VII, Sec. 16: 2 Paragraphs


(1) list of officers who are to appointed by the President
(2) ad interim appointments- when congress is not in
session
FIRST SENTENCE, FIRST PARAGRAPH
Q: Will all appointments of the President require
confirmation of the Commission on Appointments?
A: Not all appointments require confirmation under the
present Constitution. Only those officers enumerated in the
1st sentence require confirmation. (Sarmiento vs. Mison)

- Under the 1935 Constitution, all appointments need


confirmation.
- Under the 1973 Constitution, all appointments no longer
need confirmation (because Congress was then abolished
by President Marcos).
- Experience shows that when all appointments required
Confirmation, it became a venue for horse-trading and
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

(3) Officers of the armed forces from the rank of


colonel or naval captain
Q: What about officers of PNP of equivalent
ranks?
A: No.
MANALO VS. SISTOZA
- President Aquino promoted 15 police officers
by appointing them to positions in the PNP with the rank of
Chief Superintendent to Director. Without their names
submitted to the Commission on Appointments for
confirmation, the said police officers took their oath and
assumed their respective positions. Manalo questioned
this on the ground that both under Sec. 16, ARTICLE VII of
the 1987 Constitution and RA. 6975 (Local Govt Act of
1990) require their appointments to be submitted for
confirmation and that PNP is akin to the AFP.

SC: Only presidential appointments belonging to


the first group require confirmation by the Commission on
Appointments. The appointments of police officers who are
not within the first category need not be confirmed by the
Commission on Appointments.
Consequently,

42

unconstitutional are Sections 26 and 31 of RA. 6975 which


empowers the Commission on Appointments to confirm the
appointments of public officials whose appointments are
not required by the Constitution to be confirmed.

- The PNP is separate and distinct from the AFP.


The Constitution no less, sets forth the distinction. Under
Sec. 4, ARTICLE XVII, the armed forces of the Philippines
shall be composed of a citizen armed force which shall
undergo military training and service, as may be provided
by law. It shall keep a regular force necessary for the
security of the state. On the other hand, Sec. 6 of the
same article ordains that: The state shall establish and
maintain one police force, which shall be national in scope
and civilian in character to administered and controlled by a
national police commission. The authority of local
executives over the police units in their jurisdiction shall be
provided by law.

- To so distinguish the police force from the


armed force, Congress enacted RA. 6975. Thereunder the
police force is different from and independent of the armed
forces and the ranks int eh military are not similar to those
in the PNP.

INSTANCES WHEN CONFIRMATION IS NO LONGER


REQUIRED
(1) All other officers of the government whose
appointments are not otherwise provided by law

(2) Those who 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.
(3) Officers lower in rank whose appointment, the
congress may by law vest in the president

SARMIENTO VS. MISON


- It is evident that the position of Commissioner of Bureau
of Customs (a bureau head) is not one of those within the
first group of appointments where the consent of the
Commission on appointments is required.

MARY CONCEPCION BAUTISTA VS. SALONGA


- Present PNP is no longer part of the AFP; is a
civilian institution placed under DILG. Unlike PCINP, which
is a part of AFP, it is in fact armed forces.

(4)
Other officers of the government whose
appointments are vested in him in this Constitution
EX: Chairmen and members of CSC, Comelec, COA (by
express provision)
Regular members of JBC (ARTICLE VII, Sec. 8, Par.
2)
EXCEPTION: Judges, Justices, Ombudsman
(by the creation of the JBC, their appointments no longer
require confirmation)
Sectoral representatives in Congress (Teresita
Quintos deles et al vs. Commision on Constitutional
Commission)

SECOND SENTENCE

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

- The appointment of the chairman and members of the


Commission on Human Rights is not specifically provided
for in the Constitution itself. Unlike the Chairmen and
Members of the CSC, the Comelec and the COA, whose
appointments are expressly vested by the Constitution in
the President with the consent of the Commission on
Appointments. The Human Rights pursuant to the second
sentence in Sec. 16, ARTICLE VII, that is, without the
Confirmation of the Commission on Appointments because
they are among the officers of the government whom he
may be authorized by law to appoint. And Sec. 2(c) EO.
135 (5 May 1987) authorizes the President to appoint the
chairman and members of the Commission on Human
Rights.
CALDERON VS. CARALE
- Calderon questions the constitutionality and legality of
the permanent appointments extended by the President to
respondents chairman and members of the NLRC without
submitting the same to the Commission on Appointments
for confirmation pursuant to ARTICLE 215 of the Labor
Code, as amended by RA. 6715 (Herrrera-Veloso Law or
the Act amending the Labor Code reorganizing the NLRC)
SC: The NLRC Chairman and Commissioners fall within
the 2nd sentence of Sec. 16, ARTICLE VII of the

43

Constitution more specifically under the third group of


appointees those whom the President may be authorized
by law to appoint. Undeniably, the chairman and members
of the NLRC are not among the officers mentioned in the 1st
sentence of Sec. 16, ARCTICLE VII whose appointments
require confirmation by the Commission on Appointments.
To the extent that RA. 6715 requires confirmation by the
Commission on Appointments of the appointments of
respondent chairman and members of NLRC, it is
unconstitutional.
- SC clarified that this list is EXCLUSIVE. Congress by a
mere legislative act may not validly amend the constitution
by adding or deducting anything from that list
SECOND PARAGRAPH: AD INTERIM APPOINTMENTS

not in session, the President is not precluded from making


an appointment.
Q: What are regular appointments?
A: These are appointments made by the President when
Congress is in session.
Q: What is the real distinction between the two?
A: The real distinction between ad interim and regular
appointment lies in the effectivity of the appointment.
AD INTERIM
takes effect immediately, so appointee
may assume immediately

does not take effect immedia


takes effect only upon confirmatio
the Commission on Appointme
appointee may not immedi
assume office

there is risk of losing both positions (upon


assumption of new office), he
loses his
former
position

no risk involved (appointee ca


assume until appointment
confirmed)

actually, the President appoints, subject


only to the resolutory condition that it be
confirmed later on by the Commission on
Appointments

actually, the President does


appoint; he merely nominates su
to confirmation by the Commissio
Appointments

Q: What are ad interim appointments?


A: AD INTERIM literally means in the meantime or for
the time being.
- These are appointments made by the President when
Congress is not in session.
- Sec. 16, ARTICLE VII, Par. 2 should be correlated to
Sec. 19, ARTICLE VI xxx The Commission on
Appointments shall meet only while the Congress is in
session xxx.
- RATIONALE: Commission on Appointments meets
when Congress is in session so that even if Congress is

MATIBAG VS. BENIPAYO READ


- Benipayo, Tuason, and Borra were appointed Chairman
and Commissioners respectively of the COMELEC by the
President when Congress was not in session. These ad
interim appointments were by-passed by the Commission
on Appointments. However, they were subsequently reappointed by the President to the same positions. Upon
assumption to office, Benipayo transferred Matibag to
another department. Matibag now questions the validity of
the appointments on the grounds that: (1) the ad interim
appointments violate ARTICLE IX-C, Sec. 1, Par. 2 In no
case shall any member be appointed or designated in a
temporary or acting capacity (Matibag is of the impression
that such ad interim appointments are temporary because
they are revocable at the will of the President); and (2)
even assuming they are valid, their re-appointment violates
ARTICLE IX-C, Sec. 1, Par. 2 The chairman and the
commissioners shall be appointed xxx for a term of seven
years without reappointment.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

REGULAR

SC: (1) An ad interim appointment is permanent in


character (Summers vs. Ozaeta). The Consitution imposes
no condition on the effectivity of an ad interim appointment
and thus an ad interim takes effect immediately.
- The Constitution itself makes ad interim permanent
appointment.
- An ad interim appointment is not descriptive of the nature
of the appointment, that is, it is not indicative of whether the
appointment is temporary or in an acting capacity, rather it
denotes the manner in which the appointment was made.
(Marohombsar vs. CA)
(2) There are four situations where ARTICLE IX-C, Sec. 1,
Par. 2 will apply:
a) where an ad interim appointee to the
Comelec, after confirmation by the Commission on
appointment, serves his full seven-year term;
b) where the appointee, after confirmation,
serves a part of his term and then resigns before his
seven-year term of office ends;

44

c) where the appointee is confirmed to serve the


unexpired term of someone who died or resigned and the
appointee completes the unexpired term;

- Hence, the President cannot be compelled especially


since the positions of cabinet secretary require trust and
confidence.

d) where the appointee has previously served a


term of less than seven years, and a vacancy arises from
death or resignation.

Distinctions between Ad Interim and Acting Appointments


Ad Interim

- 2nd issue is of first impression! (not yet asked in the bar)


- In any of these four situations, it presupposes that the
appointment had already been confirmed by the
Commission on Appointments. It will not apply in this case
where the appointments were by-passsed.

Acting Appointments

extended only during a recess of


Congress

extended anytime there is a vacancy

permanent in nature

merely temporary

requires
confirmation
by
Commission on Appointments

the

does not require such confirmation

Q: What if the appointments were actually disapproved


and not simply by-passed, can they still be validly
reappointed?

Note: Mootness of the Petition When the Congress


adjourned, GMA extended ad interim appointments but this
is an exception because the case is capable of repetition
yet evading review.

A: No. The disapproval is actually a judgment on the


merits of their qualification. The principle of checks and
balances will come into play.

LIMITATIONS ON THE APPOINTING POWER OF THE


PRESIDENT

PIMENTEL VS. ERMITA


- The cabinet secretaries were appointed as acting
secretaries of their respective departments while Congress
is in session. Thus, the Senators filed a petition to compel
the president to extend regular appointments.

(1) ARTICLE VII, Sec. 13, Par. 2 The spouse and


relative by consanguinity or affinity within the fourth civil
degree of the President shall not, during his tenure be
appointed as member of the Constitutional Commissions,
or the Office of the Ombudsman, or as secretaries,
undersecrataries, chairmen or heads of bureaus or offices,
including government-owned or controlled corporations and
their subsidiaries. (nepotic appointments)
- This is a prohibition against NEPOTISM on the President.

SC: Nature of the Power to Appoint


- The power to appoint is essentially executive in nature,
and the legislature may not interfere with the exercise of
this power except in those instances when the Constitution
expressly allows it to interfere.

Q: To what positions?
A: (1) Constitutional Commissions COA, Comelec, CSC
(2) Office of the Ombudsman
(3) Secretaries
(4) Undersecretaries

- Appointment is discretionary.
- The essence of an appointment in an acting capacity is
its temporary nature. It is a stop-gap measure intended to
fill an office for a limited time until the appointment of a
permanent occupant to the office. In case of vacancy in a
n office occupied by an alter ego of the President, such as
the office of a department secretary, the President must
necessarily appoint an alter ego of her choice as acting
secretary before the permanent appointee of her choice
could assume office.
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

(5) Chairmen or heads of bureaus or offices, including


GOCCs and their subsidiaries
(2) ARTICLE VII, Sec. 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 appointment to executive
positions when continued vacancies therein will prejudice
public service or endanger public safety.
- This applies only to a presidential election: every 6 years.

45

Q: To what kind of appointment is this directed against?


A: This is directed against 2 types of appointments: (In
Re: Valenzuela and Vallaria)
(1) those made for buying votes (to influence the
outcome of Presidential elections)
- refers to those appointments made
within the 2 months preceding a Presidential election and
are similar to those which are declared election offenses in
the Omnibus Election Code.
(2) those made for partisan considerations (the
so-called midnight appointments) sec.15, Art.VII
- refers to appointments made after
election day but before the term of the next president
begins (30 June).
- Hence, this provision contemplate not only midnight
appointments (appointments made for partisan
considerations where an outgoing President fells up all
vacant positions thereby preempting an incoming president
of his prerogative) but also appointments presumed made
for the purpose of influencing the outcome of the
Presidential election.
AYTONA VS. CASTILLO
- After the proclamation of Diosdado Macapagal as duly
elected President, President Carlos P. Garcia, who was
defeated in his bid for reelection, became no more than a
caretaker administrator, whose duty was to prepare for
the orderly transfer of authority to the incoming President.
IN RE: HON. MATEO VALENZUELA AND HON. PLACIDO
VALLARTA
- Before the 11 May 1998 elections, President Ramos
appointed on 30 March 1998 2 gentlemen as RTC judges.
On 14 May 1998, already after the elections, their
appointments were transmitted to the Office of the Chief
Justice. However, the 2 were able to secure advance
copies of their appointments so they were able to take their
oaths and assumed office.
SC: The questioned appointments are void. They were
unquestionably made during the period of the ban.
Consequently, they come within the prohibition relating to
appointments which are considered to be for the purpose
of buying votes or influencing the elections.
- The only exception is temporary appointments to
executive positions when continued vacancies therein will
prejudice public service or endanger public safety.
However, this case does not even fall within the exception.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Their appointments are not temporary and not to an


executive but to the judiciary.
Q: How do you detect if its a midnight appointment or for
purpose of vote-buying?
A: If the appointment was made within 2 months
immediately preceding the presidential election, then the
purpose is for vote-buying or to influence the outcome of
the elections. IF the appointment was made after the
Presidential election but before the outgoing presidents
term end (his term ends noon of June 30), then it is
midnight appointment.
DE RAMA VS. CA
- Ma. Evelyn S. Abeja was a municipal Mayor. When her
term is about to end, she filled up all the positions before
she vacated her position. When her successor sit, there
was no more vacancy and all the appointments were
nullified by the latter on the ground that they were midnight
appointments.
SC: The records reveal that when De Rama brought the
matter of recalling the appointments of the 14 respondents
before the CSC, the only reason he cited to justify his
action was that these were midnight appointments that
are forbidden under ARTICLE VII, Sec. 15 of the
Constitution. However, the CSC ruled and correctly so,
that the said prohibition applies only to presidential
appointments. In truth and in fact, there is no law that
prohibits local elective officials from making appointments
during the last days of his or her tenure.
(3) ARTICLE VII, Sec. 13, Par. 1 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 and controlled
corporations or their subsidiaries. They shall strictly avoid
conflict in the conduct of their office.
- This is a prohibition against HOLDING MULTIPLE
POSITIONS.

Q: Directed against whom?


A: (1) President
(2) Vice President

46

(3) Member of the Cabinet and their deputies or


assistants
- applies to private employment
- the idea is for them to focus in their functions
Q: What are the exceptions?
A: (1) unless otherwise provided in this Constitution
EX: The Vice President may be appointed as a
Member of the Cabinet xxx. (ARTICLE VII, Sec. 3, Par. 2)
The Secretary of Justice is an ex-officio
Member fo the Judicial and Bar Council (ARTICLE VIII,
Sec. 8, Par. 1)
(2) If they will hold that other office in an ex-officio
capacity. (Civil Liberties Union vs. Exec. Sec.)
CIVIL LIBERTIES UNION VS. EXECUTIVE SECRETARY
President Aquino issued EO 284 allowing member of
cabinet to hold not more than 2 other positions in the
government including government-owned and controlled
corporations. EO 284 was issued when President Aquino
still exercises legislative powers. The idea was to have
them earn more. Pursuant to EO 284, President Aquino
appointed member of her Cabinet to other positions. Civil
Liberties Union questioned this on the ground that as
Members of the Cabinet, they are prohibited from holding
other positions under ARTICLE VII, Sec. 13. On the other
hand, the Solicitor General contends that they are covered
by ARTICLE IX-B, Sec. 7, Par. 2 because they are
appointive officials. As members of cabinet, they can hold
other office if a law allows it, in this case, there is a law, EO
284.
SC: The contention of Civil Liberties Union is correct.
Section 7, ARTICLE IX-B, Par. 2 (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.) is meant to
lay down the general rule applicable to all appointive public
officials and employees while Section 13, ARTICLE VII is
meant to be the exception applicable only to the President,
Vice President, Members of the Cabinet and their deputies
and assistants.
- The evident purpose of the framers of the 1987
Constitution is to impose a stricter prohibition.
- Section 13, ARTICLE VII is a new provision not found in
1935 and 1973 Constitution.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

- This was a reaction to what happened during the Marcos


Regime. There was proliferation of newly created
agencies, instrumentalities, and government-owned or
controlled corporations created by presidential decrees and
other modes of presidential issuances where cabinet
members, their deputies and assistants were designated to
head or sit as member of the board with the corresponding
salary, emoluments, per diems, allowances, and other
perquisites of the office. This practice of holding multiple
offices or positions in the government soon led to abuses
by unscrupulous public officials who took advantage of this
scheme for purposes of self-enrichment.
- EO 284 was declared null and void!
PUBLIC INTEREST CENTER, INC. VS. ELMA
Magdangal B. Elma was appointed by the President as
Chairman of the PCGG. At the same time, he was
appointed as Chief Presidential Legal Counsel. At that
time, PCGG was placed directly under the Office of the
President and PCGG Chairman has the same rank,
position, and salary as that of a cabinet secretary. Public
Interest center questioned this on the ground that Elma, as
a member of cabinet, he is prohibited from holding 2
positions under ARTICLE VII, Section 14.
SC: The prohibition in Section 13, ARTICLE VII of the
1987 Constitution does not apply to Elma since neither the
PCGG Chairman nor the CPLC is a cabinet secretary,
undersecretary, or assistant secretary even if the former
may have the same rank as the latter positions. Even if
Section 13, ARTICLE VII is not applicable, Elma still could
not be appointed concurrently to the offices of the PCGG
Chairman and CPLC because neither office was occupied
by him in an ex-officio capacity and the primary functions of
one office do not require an appointment to the other post.
Moreover, even if the appointments in question are not
covered by Section 13, ARTICLE VII of the 1987
Constitution, said appointments are still prohibited under
Section 7, ARTICLE IX-B, which covers all appointive and
elective officials, due to the incompatibility between the
primary functions of the offices of the PCGG Chairman and
the CPLC.
- PRINCIPLE OF INCOMPATIBLE OFFICE : one which
may not be held by a member during his term without
forfeiting his seat.
EX: Fiscal and PAO
Treasurer and Auditor
Congressman and Cabinet Secretary
ARTICLE VI, Sec 13 No Senator or
Member of the House of Representatives may hold any

47

other office or employment in the Government, or any


subdivision, agency, or instrumentality thereof, including
GOCCs or their subsidiaries, during his term without
forfeiting his seat. Neither shall he be appointed to any
office which may have been created or emoluments thereof
increased during the term for which he was elected.
INCOMPATIBLE OFFICE
referred to in the first sentence
one which may not be held by a member
during his TERM of office without
forfeiting his seat.

ARTICLE VII, Sec. 17 The President shall have control


of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed.

CONTROL

FORBIDDEN OFFICE
exercised
over
all
executive
referred to in the seconddepartments
sentence bureaus, and offices

exercised over local governments

one which is forbidden by law even if


he is willing to forfeit his seat.

ARTICLE X, Section 4 The Presi


of the Philippines shall exercise gen
supervision over local governments x
ARTICLE II, Section 25 The State
ensure the autonomy of
governments.

TERM: provided by law


TENURE: actual stay in office
-not necessary for him to resign before he
accepts the other office; It is automatic.
a member may be validly appointed but
he forfeits his seat.

Q: What is CONTROL?
he may not be validly appointed

more of an inhibition

more of a prohibition

Q: Congressman X was appointed as


Secretary of DENR, can he validly accept
the appointment?
A: Yes.

Q: Can he still go back to his former


position?
A: No!

GENERAL SUPERVISION

A: (1) to direct the performance of a duty;


(2) to restrain the commission of acts;
(3) to review, reverse, revise, alter, or modify the
decisions
of his subordinates; or
Q: Congress created a new office,
(4)
to
substitute
his own decision over that of his
Urban Poor Commission.
It
subordinates.X
appropriated P10B. Congressman
resigned and applied for that position.
Can he be validly appointed?
Q: Does the President have CONTROL over local
government
units?
A: No. It was created during
the term
in which he was elected. Even if he is
A: No. still
His be
power is limited to GENERAL SUPERVISION.
willing to resign, He cannot
The
power
appointed because it is a forbiddenof supervision means overseeing or the
authority of an officer to see that the subordinate officers
office.
perform their duties. If the subordinate officers fail or
neglect to fulfill their duties, the official may take such
action or step as prescribed by law to make them perform
their duties. The Presidents power of general supervision
means no more than the power of ensuring that laws are
faithfully executed or that subordinate officers act within the
law. (JOSON VS. TORRES)

- In this case, the function of CPLC is to review decisions


of officers under the Office of the President and among
them is the PCGG.

- Hence, the Presidents power of general supervision


means to oversee; to see to it that the local governments
and their officials perform their functions in accordance with
law. No more than that.
- Control is said to be the very heart of the power of the
President. (Joson vs. Torres)

CONTROL POWER

Q: What is an EXECUTIVE DEPARTMENT, BUREAU, OR


OFFICE?
A: EO 292 : ADMINISTRATIVE CODE OF 1987:

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

48

DEPARTMENT: any of the executive departments created


by law.
Ex: Depatment of Finance
BUREAU: a principal subdivision of a department.
Ex: Bureau of Internal Revenue and Bureau of
Customs
OFFICE: a major functional unit of a department or
bureau.
Ex: Office of the Secretary of Finance, Regional
Office of BIR
- All of these are under the control of the President.
DOCTRINE OF QUALIFIED POLITICAL AGENCY or
ALTER EGO
The acts, decisions of the members of the cabinet, heads
of bureaus and offices, being alter ego of the President,
rendered or performed in the regular course of business
are deemed to the acts of the President, unless reprobated
by him.
PIMENTEL VS. AGUIRRE
Allegedly, we were experiencing economic difficulties then
so President Estrada issued AO 43, amending Section 4 of
AO 372, by reducing to five percent the amount of Internal
revenue Allotment (IRA) to be withheld from the LGUs.
Pimentel, Jr. et al. contends that in issuing AO 43, the
President was in effect exercising the power of control over
LGUs while the Constitution vests in the President,
however, only the power of general supervision over
LGUs. Also, they argued that the directive is in
contravention of Section 286 of the LGC and of Section 6,
Article X of the Constitution providing for the automatic
release to each of these units its share in the national
internal revenue.

SC: Such withholding clearly contravenes the Constitution


and the law. The Constitution vests the President with the
power of supervision, not control, over LGUs. Such power
enables him to see to it that LGUs and their officials
execute their tasks in accordance with law. While he may
issue advisories and seek their cooperation in solving
economic difficulties, he cannot prevent them from
performing their tasks and using available resources to
achieve their goals. He may not withhold or alter any
authority or power given them by law. Thus, the
withholding of a portion of internal revenue allotments
legally due them cannot be directed by administrative fiat.

of the President investigated. DILG Secretary, as the


Presidents alter ego, preventively suspended Ganzon.
Ganzon questioned this contending that the Constitution
has left the President mere supervisory powers which
supposedly excludes the power of investigation and denied
her control which allegedly embraces disciplinary authority.
According to him, the President may not validly investigate
and much more cannot place him under preventive
suspension which is an incident of the power to investigate.
SC: The impression of Ganzon is mistaken. Legally,
supervision is not incompatible with disciplinary authority.
Investigating is not inconsistent with overseeing although it
is a lesser power than altering.
- How can you expect the President to determine that the
following performs their powers and functions in
accordance with law if you will deny him the power to
investigate.
- The power to investigate is an incident of the power of
control.
MILITARY POWERS
ARTICLE VII, Sec 18
3 DISTINCT MILITARY POWERS OF THE PRESIDENT
(1) Calling out power as the Commander-in-chief of the
Armed Forces of the Philippines
(2) Power to proclaim martial law
(3) Power to suspend the privilege of the writ of habeas
corpus
INSTANCES WHEN THE PRESIDENT MAY CALL OUT
AFP To suppress
(1) lawless violence
(2) invasion
(3) rebellion
INSTANCES WHEN THE PRESIDENT MAY DECLARE
MARTIAL LAW or SUSPEND THE PRIVILEGE OF THE
WRIT OF HABEAS CORPUS
(1) invasion }
} when public safety requires it
(2) rebellion }

GANZON VS. CA

Other Limitations

There were 10 administrative charges against Mayor


Ganzon of Iloilo in the Office of the President. The Office

- For a period not exceeding 60 days

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

49

- Expressly been made subject to judicial review under


ARTICLE VII, Sec. 18, Par. 3 The Supreme Court may
review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the proclamation of
Martial Law or the suspension of the privilege of the writ of
habeas corpus or the extension thereof, and must
promulgate its decision thereon within thirty days from its
filing. (LANSANG VS. GARCIA)
- Within 48 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 24 hours
following such proclamation or suspension, convene in
accordance with its rules without need of a call.
- 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,
(OLAGUER DOCTRINE) Nor automatically suspend the
privilege of the writ.
OLAGUER DOCTRINE
- Superseded AQUINO VS. COMMISSIONER
- during martial law, military courts may assume
jurisdiction over civilians
- Ninoy Aquino questioned the assumption of
jurisdiction of the military tribunals
- predictably, he was sentenced to death by
musketry (firing squad)
- sentence was not carried out but he died just
the same
- Several Filipinos abroad were against the
decision in Aquino vs. Commission they were known as
Olaguer group.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

- They were out to embarrass the Marcos


Government.
- Unfortunately, the Lovely brothers, among their
con-conspirators accidentally detonated a bomb.
- They did not die and the group was arrested.
- All were sentenced to die by musketry.
- While the case was pending before the SC,
EDSA I happened.
- Justice Teehankee, the lone dissenter in the
Aquino case, became the Chief Justice of SC and he
penned the Olaguer doctrine.

- ARTICLE VII, Sec. 18, Par. 5 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.
- In connection with ARTICLE III, Sec. 13 If the offense is
bailable, one can still post bail because under this The
right to bail shall not be impaired even if the privilege of the
writ of habeas corpus is suspended.
- ARTICLE VII, sec. 18, Par. 6 During the suspension of
the privilege of the writ, any person thus arrested or
detained shall be judicially charged within 3 days,
otherwise he shall be released.

PARDONING POWER
ARTICLE VII, Sec.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.
FIVE MATTERS COVERED
(1)
(2)
(3)
(4)
(5)

To grant reprieves
To grant commutations
To grant pardons
To remit fines and forfeitures
To grant amnesty

AMNESTY

50

- segregated from the 4 others


- concurrence of the majority of all member of congress is
required
- conviction by final judgment is not required unlike the 4
others

(4) not applicable to election offenses without favorable


recommendation of Comelec (ARTICLE IX-C, Sec. 5)

REPRIEVE suspension or stay of execution of a death


convict
PARDON
AMNESTY
Probation suspension of penalty
concurrence of congress is not required
concurrence of congress is required
COMMUTATION reduction of penalty by 1 degree from
to RP
conviction by final judgment is required
may be granted even death
without
prior
conviction by final judgment
Q: Is pardon available to those guilty of administrative
may mean forgiveness but not erases whatever shade offenses?
of guilt there
forgetfulness
was
A: Yes. Pardon is available not only to those guilty of
criminal
offense but also to those guilty of administrative
usually extended to individuals extended to group of
individuals
offense.
Section 19, ARTICLE VII makes no distinction
convicted of common crimes
charged of political offenses
between criminal offense and administrative offense except
private act of the President
official act of the Presidentwith respect to impeachment. If persons convicted of
heinous crimes where evidence of guilt is beyond
reasonable doubt are entitled to pardon, why do we have to
deny the same to those convicted of administrative
offenses where only substantial evidence is required?
(LLAMAS VS. ORBOS)
- Important to know distinction because of judicial notice
- Under the law on evidence, there are 3 things which
need not be proven:
(1) those matters which the court must take
judicial notice of
(2) judicial admissions
(3) presumptions
- Under Section1, Rule 129 of the Rules of Court, one of
the matters which the courts must take judicial notice of is
the official acts of the legislative, executive and judicial
departments of the Philippines.
- Hence, amnesty, which is an official act of the President,
no longer requires proof.
- On the other hand, pardon, being a private act of the
President, requires proof and the convict who was granted
such pardon has the burden of proof.

LIMITATIONS OF THE PARDONING POWER


(1) does not apply in cases of impeachment (ARTICLE VII,
Sec. 19)
(2) there must first be conviction by final judgment
(ARTICLE VII, Sec. 19)

MONSANITO VS. FACTORAN Not entitle to be


reinstated; no backwages
The Assistant Municipal Treasurer was convicted of
malversation through falsification of public document.
Later, he was granted absolute pardon by the President,
when he was released, he demanded to be reinstated to
his former position and be paid backwages.
SC: Pardon granted after conviction frees the individual
from all the penalties and legal disabilities and restores him
to all his civil rights. But unless expressly grounded on the
persons innocence (which is rare), it cannot bring back lost
reputation for honesty, integrity, and fair dealing. This must
be constantly kept in mind, lest we lose track of the true
character and purpose of the privilege. Pardon does not
ipso facto restore a convicted felon to public office
necessarily relinquished or forfeited by reason of the
conviction although such pardon undoubtedly restores his
eligibility for appointment to that office.
- The very essence of a pardon is forgiveness or remission
of guilt. Pardon implies guilt. It does not erase the fact of
the commission of the crime and the conviction thereof. It
does not wash out moral stain. It involves forgiveness not
forgetfulness.

(3) not applicable to legislative contempt

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

51

- A pardon looks to the future. It is not retrospective. It


makes no amends for the part. It affords no relief for what
has been suffered by the offender.
- Hence, she is excused from serving sentence; but in the
eyes of the law, she is still a convict. Unless the grant
expressly so provides, she cannot be reinstated. And since
she is not entitled to be reinstated, with more reason that
she is not entitled to backwages.
- It does not impose upon the government any obligation
to make reparation for what has been suffered since the
offense has been established by judicial proceedings, that
which has been done or suffered while they were in force is
presumed to have been rightfully done and justly suffered
and no satisfaction for it can be required.

GARCIA VS. COA


Garcia was an employee of the Bureau of
Telecommunications. Several properties of BT were lost.
He was summarily dismissed from the service on the
ground of dishonesty. It became final subsequently. A
criminal case for qualified theft was filed against Garcia
based on the same facts obtaining in the administrative
actions. After a full blown trial, Garcia was acquitted not
based on lack of proof beyond reasonable doubt but based
on an express finding that he was innocent of the crime
charged. Garcia sought reinstatement to his former
position in view of his acquittal in the criminal case.
Bureau of Telecommunications denied his request. Hence,
Garcia pleaded to the President for executive clemency.
Acting on the favorable endorsements of the then Ministry
of Transportation and Communications and the CSC, the
President granted Garcia executive clemency. Then
Garcia filed with COA a claim for payment of backwages.
This was denied by COA on the ground that executive
clemency granted to him did not provide for the payment of
back salaries and that he has not been reinstated in the
service.
SC: Garcia should not be considered to have left his office
for all legal purposes, so that he is entitled to all the rights
and privileges that accrued to him by virtue of the office
held, including backwages. If the pardon is based on the
innocence of the individual, it affirms this innocence and
makes him a new man and as innocent as if he had not
been found guilty of the offense charged. When a person
is given pardon because he did not truly commit the
offense, the pardon relieves the party from all punitive
consequences of his criminal act, thereby restoring him his
clean name, good reputation and unstained character prior
to the finding of guilt.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

- The bestowal of executive clemency on Garcia in effect


completely obliterated the adverse effects of the
administrative decision which found him guilty of
dishonesty and ordered his separation from the service.
This can be inferred from the executive clemency itself
exculpating Garcia from the administrative charge and
thereby directing his reinstatement, which is rendered
automatic by the grant of the pardon. This signifies that
petitioner need no longer apply to be reinstated to his
former employment. He is reinstated to his office ipso facto
upon the issuance of the clemency. His automatic
reinstatement entitles him to backwages.
- He is entitled to full backwages for 8 years. Verily, law,
equity, and justice dictate that Garcia be afforded
compassion for the embarrassment, humiliation, and above
all injustice caused to him and his family by his unfounded
dismissal. This is a little measure. SC even commended
him for protecting government property.

ESTRADA VS. DESIERTO


Leo Echegaray was convicted of qualified rape. At that
time, the death penalty is still in effect. On the date he is to
be executed by lethal injection, the SC issued a TRO. This
was criticized on the ground, among others, that it
encroached on the power of the President to grant reprieve
under Sec. 19, ARTICLE VII of the 1987 Constitution.
SC: Sec. 19, ARTICLE VII of the 1987 Constitution is
simply the source of power of the President to grant
reprieves, commutations, and pardons and remit fines and
forfeiture after conviction by final judgment. This provision,
however, cannot be interpreted as denying the power of the
courts to control the enforcement of their decisions after
the finality. In truth, an accused who has been convicted
by final judgment still possesses collateral rights and these
rights can be claimed in the appropriate courts. The
suspension of such a death sentence is indisputably an
exercise of judicial power. It is not usurpation of the
presidential power of reprieve though its effect is the same
the temporary suspension of the execution of the death
convict. The powers of the Executive, Legislative, and the
Judiciary to save the life of a death convict do not exclude
each other for the simple reason that there is no higher
right than the right to life.
Q: Discuss the nature of a CONDITIONAL PARDON.
A: A CONDITIONAL PARDON is in the nature of a contract
between the sovereign power of the Chief Executive and
the convicted criminal to the effect that the former will
release the latter subject to the condition that if he does not
comply with the terms of the pardon, he will be
recommitted to prison to serve the unexpired portion of the

52

sentence or an additional one. By the pardonees consent


to the terms stipulated in this contract, the pardonee has
thereby placed himself under the supervision of the Chief
Executive or his delegate who is duty-bound to see to it
that the pardonee complies with the terms and conditions
of the pardon. (In Re: Wilfredo Sumulong Torres)
Q: Is the grant or revocation of conditional pardon by the
President subject to judicial review?
A: No! This exercise of presidential judgment is beyond
judicial scrutiny. (In Re: Wilfredo Sumulong Torres)
BORROWING POWER
ARTICLE VII, Sec. 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 xxx.

LIMITATIONS ON THE BORROWING POWER:


(1) There must be prior concurrence of the Monetary
Board.
(2) Subject to such limitations as may be provided by law.

A: Yes. In international law, there is no difference between


treaties and executive agreements in their binding effect
upon states concerned as long as the functionaries have
remained within their powers. International law continues
to make no distinction between treaties and executive
agreements. They are equally binding obligations upon
nations.

- The distinction between TREATY and EXECUTIVE


AGREEMENT is more of a municipal law whether
concurrence of the Senate is required or not.

Q: How to determine whether an agreement is executive


or international?
A:

INTERNATIONAL
EXECUTIVE

- involves major policy


involves implementation of that policy
- more or less permanent and of
temporary longer duration
and of short duration

more or less

Q: Is VFA a treaty?
TREATY-MAKING POWER
ARTICLE VII, Sec. 21 No treaty or international
agreement shall be valid and effective unless concurred in
by at least 2/3 of all the Members of the Senate.

Q: Who has the power to ratify treaties?


A: The power to ratify is vested in the President and not in
the legislature. The role of the Senate is limited only to
giving or withholding its consent or concurrence to the
ratification. (Bayan vs. Zamora)

- What requires concurrence is a treaty or international


agreement NOT an executive agreement.

Q: Is an EXECUTIVE AGREEMENT equally binding as an


INTERNATIONAL AGREEMENT?

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

A: Yes. The President himself considered it as a treaty.


He referred the VFA to the Senate for concurrence.
Q: What are the conditions before foreign military bases,
troops, or facilities may be allowed in the Philippines
pursuant to ARTICLE XVIII, Sec. 25 of the 1987
Constitution?
A: Sec. 25, ARTICLE XVIII disallows foreign military
bases, troops or facilities in the country unless the following
conditions are sufficiently met:
(a) it must be under a treaty;
(b) the treaty must be duly concurred in by the
Senate and when so required by Congress, ratified by a
majority of the votes cast by the people in a national
referendum; and
(c) recognized as a treaty by the other
contracting state

BAYAN VS. ZAMORA

53

The President entered into a VFA with the US under which


American troops will be allowed to enter the Philippines to
conduct joint military exercises with members of the
Philippine armed forces. He subsequently transmitted said
VFA to the Senate for concurrence invoking his treatymaking power under Section 21, ARTICLE VII of the 1987
Constitution. Petitioners, who are opposed to the VFA,
challenged the constitutionality of said VFA contending that
it was grave abuse of discretion on the part of the
President to transmit the same to the Senate invoking
Section 21, ARTICLE VII of the Constitution as the
controlling provision should have been Section 25,
ARTICLE XVIII.
Q: Which Constitutional provision was upheld?
A: Petitioners contention on this point was upheld.
- Section 21, ARTICLE VII deals with treaties or
international agreements in general, in which case, the
concurrence of at least 2/3 of all the Members of the
Senate is required to make the subject treaty or
international agreement valid and binding on the part of the
Philippines. This provision lays down the general rule on
treaties or international agreements and applies to any
form of treaty with a wide variety of subject matter, such as,
but not limited to, extradition or tax treaties or those
economic in nature.
All treaties or international
agreements, entered into by the Philippines, regardless of
subject matter, coverage, or particular designation or
appellation, requires the concurrence of the Senate to be
valid and effective.
- In contrast, Section 25, ARTICLE XVIII is a special
provision that applies to treaties which involve the
presence of foreign military bases, troops, or facilities in the
Philippines. Under this provision, the concurrence of the
Senate is only one of the requisites to render compliance
with the constitutional requirement and to consider the
agreement binding on the Philippines.

A: No! The President, in ratifying the VFA and in


submitting the same to Senate for concurrence, acted
within the confines and limits of the powers vested in him
by the Constitution. It is of no moment that the President,
in the exercise of his wide latitude of discretion and in the
honest belief that VFA falls within the ambit of Section 21,
ARTICLE VII of the Constitution referred to the Senate for
concurrence. Certainly, no abuse of discretion much less a
grave, patent and whimsical abuse of judgment, may be
imputed to the President in his act of ratifying the VFA and
referring the same to the Senate for the purpose of
complying with the concurrence requirement embodied in
the fundamental law. In doing so, the President merely
performed a constitutional task and exercised a prerogative
that chiefly pertains to the functions of his office.
BUDGETARY POWER
ARTICLE VII, Sec. 22 The President shall submit to the
Congress within 30 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.
- Correlate with Section 25(1), ARTICLE VI Congress
may not increase the appropriations recommended by the
President for the operation of the Govt as specified in the
budget. The form, content, and manner of preparation of
the budget shall be prescribed by law.
- The most that Congress could do is to trim down or slash
the budget!
INFORMING POWER
ARTICLE VII, Sec. 23 The President shall address the
Congress at the opening of the regular session. He may
also appear before it at any other time.
JUDICIAL DEPARTMENT
JUDICIAL POWER
ARTICLE VIII, Sec. 1

Undoubtedly, section 25, ARTICLE XVIII which


specifically deals with treaties involving foreign military
bases, troops, or facilities should apply in the instant case.
It is a finely-imbedded principle in statutory construction
that special provision or law prevails over a general one.
To a certain extent and in a limited sense, however the
provisions of Section 21, ARTICLE VII will find applicability
with regard to the issue and for the sole purpose of
determining the number of votes required to obtain the
valid concurrence of the Senate.
Q: The nature of the petition filed was for certiorari and
prohibition. Did it constitute grave abuse of discretion on
the part of the President when he submitted the VFA to the
Senate invoking Section 21 instead of Section 25?

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Q: Who appoints justices?


A: President
Q: Who removes them?
A: Supreme Court, as an exception to the principle that
appointing power carries with it removal power.
-Appointments in judiciary no longer need confirmation by
Comm on Appointment. It is now the Judicial and Bar
Council
Composition of Judicial and Bar and Council (sec.8, VIII)

54

TYPES OF POLITICAL QUESTIONS


THREE IMPORTANT FUNCTIONS OF THE COURT
REQUISITES FOR THE EXERCISE OF JUDICIAL
REVIEW
COMPOSITION OF THE SUPREME COURT Section 4,
ARTICLE VIII
- 15 Justices: Chief Justice and 14 associate Justices
- May sit en banc or, in its discretion, in divisions of 3, 5, or
7 members
- In practice, sits in division of 5
- First division: Chief Justice = Chairman
- Second division: 1st most senior = Chairman
- Third division: 2nd most senior = Chairman
Sidenote: Memorials is the term use in referring to
Pleadings in International Court

Q: What cases are to be heard by the Supreme Court en


banc?
A: (1) Cases in which the constitutionality or validity of any
treaty, international or executive agreement, law, executive
order, or presidential decree, proclamation, order,
instruction, ordinance or regulation is in question;
(2) Criminal cases in which the appealed decision
imposes the death penalty;
(3) Cases raising novel questions of law;
(4) Cases affecting ambassadors, other public
ministers and consuls;
(5) Cases involving decisions, resolutions, or orders of
the CSC, Comelec, and COA;

QUALIFICATION Section 7, ARTICLE VIII


OF MEMBERS OF SUPREME COURT OF ANY LOWER COLLEGIATE
(6) Cases where the penalty to be imposed is the
COURT
dismissal of a judge, officer or employee of the judiciary,
(1) natural born citizen of the Phils.
(1) citizen of the Phils. disbarment of a lawyer, or either the suspension of any of
(2) at least 40 years of age
(2) member of the Bar them for a period of more than one (1) year or a fine
(3) must have been for 15 years or (3)
possesses the exceeding
qualifications
P10,000 or both;
more a judge of a lower court or prescribed by Congress
(7) Cases where a doctrine or principle laid down by
engaged in the practice of law in the
the court en banc or in division may be modified or
Phils
reversed;
(4) must be a person of proven (4) must be a person
of proven
competence, integrity, probity and competence, integrity
independence
probity and independence (8) Cases assigned to a division which in the opinion of
at least (3) members thereof merit the attention of the court
en banc and are acceptable to a majority of the actual
membership of the court en banc; and
QUORUM = 8
MAJORITY = 5
(9) All other cases as the court en banc by a majority
of its actual membership may deem of sufficient importance
VOTING
to merit its attention.
- Only the members present and who participated in the
deliberations on the issues in the case shall vote.
CONSTITUTIONAL PROVISIONS THAT TEND TO
- All cases xxx which shall be heard en banc xxx shall be
STRENGTHEN THE INDEPENDENCE OF THE
decided with the concurrence of a majority of members
JUDICIARY
who actually took part in the deliberations on the issues in
the case and voted thereon.
(1) ARTICLE VIII, Sec. 9 The Members of the Supreme
- Cases or matters heard by division shall be decided or
Court and judges of lower courts shall be appointed by the
resolved with the concurrence of a majority of Members
President from a list of at least three nominees prepared by
who actually took part in the deliberations on the issues in
the Judicial and bar Council for every vacancy. Such
the case and voted thereon and in no case, without the
appointments need no confirmation.
concurrence of a t least 3 such members.
- When the required number is not obtained, the case shall
be decided en banc.
- No doctrine or principle of law laid down by the court in a
decision rendered en banc or in a division may be modified
or reversed except by the court sitting en banc.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

JUDICIAL AND BAR COUNCIL (Section 8, Article


VIII)
Functions:

55

-principal function of recommending appointees


to the judiciary
-may exercise such other functions and duties as
the SC may assign to it
Composition:

(3) A representative of the Congress

I.

General Considerations:

Taada v. Angara By its very nature, Art. II are policies


and principles that may guide the Legislature in the
enactment of laws and the courts in its interpretation

(1) Chief Justice- as ex officio Chairman


(2) Secretary of Justice
officio members

STATE PRINCIPLES AND POLICIES


ARTICLE II (AND RELATED PROVISIONS), 1987
CONSITUTION

as ex

Hence, as a general rule, these provisions are


non-self-executing

BUT a provision that is complete in


itself, and provides sufficient rules for
the exercise of rights, is self-executing

(4) A representative of the Integrated Bar ]as


regular members
(5) A professor of law
]

executing

(6) A retired member of the SC


]

Factoran)

(7)
]

A representative of the private sector

- Term:
The regular members of the Council
shall be appointed by the President for a term of 4 years
with the consent of the Commission on Appointments.

(2) ARTICLE VIII, Sec. 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.

Q: What is fiscal autonomy?


A: Fiscal autonomy contemplates a guarantee of
full flexibility to allocate and utilize their resources with the
wisdom and dispatch that their needs require. It
recognizes the power and authority to levy, assess and
collect fees, fix rates of compensation not exceeding the
highest rates authorized by law for compensation and pay
plans of the govt and allocate and disburse such sums as
may be provided by law or prescribed by them in the
course of the discharge of their functions. Fiscal autonomy
means freedom from the outside control.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Thus, certain provisions under Art. II are selfEg.: Sec. 16 (See Oposa v.
The 1st sections are entitled Principles, while the rest are
entitled Policies
However, there seems to be no clear distinction
between what are Principles and what are Policies.
II.

Sec. 1, Art. Ii The Philippines I a


democratic and republican State.
Sovereignty resides in the people and all
government authority emanates from
them.

This is prescriptive of the kind of government that we


should have it should be democratic and republican.
We cannot have any other kind of government
Note that in International Law, it is not concerned
with the kind of government. What is essential is that there
is a government, since it is an essential element of the
State.
Republican hence, we have a representative
type of government we elect our leaders.
Thus, we have Art. V on Suffrage, and
Art. IX-C on COMELEC
Relate to Art. XI, Sec 1 Public office is a public trust.
Public officers and employees must at all times be
accountabels to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with
patriotism and justice, and lead modest lives.

56

Because sovereignty resides in the


people, public office is a public trust. Hence, there is the
sense of accountability.
III.
Sec. 2, Art II 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 adhere
to the policy of peace, equality, justice,
freedom, cooperation, and amity with all
nations

sovereignty of the State snd the integrity


of the national territory.
This is known as the Civilian Supremacy Clause
It is expressly stated that it is SUPREME over the
military
Role of the AFP:
1. Secure State sovereignty
2. Secure integrity of the national territory
Q:

War is renounced as an instrument of national policy.


Thus, no one has the power to declare war
BUT: Congress can declare a State of War
Also, the President can only use military powers
in case of invasion, rebellion, etc. He has no power to
declare war.

The provision says the AFP is the


protector of the people and the State
Does this justify a coup d etat?

A:
NO! This clause should not be lifted out
of context. Look at the 1st sentence of the provision that
the civilian authority is supreme over the military. Thus, the
AFPs role must be understood within the context of civilian
supremacy.

BUT, does not that when we are attacked, we cannot


engage in war!
Constitution only renounces offensive war, not
defensive war
This is one of the Rights of States:
1. Sovereignty and Independence
2. Property and Jurisdiction
3. Equality
4. Existence and Self-Defense
5. Diplomatic Intercourse
This is constituent with the policy of the UN, of which we
are a member.
Adopt: the generally accepted principles of international
law as part of the law of the land
Reaffirms the Doctrine of Incorporation
Examples of generally accepted principles of
International Law
1. Pacta sunt servanda
2. Rebus sic stantibus
3. State Immunity from Suit
4. Sovereign Equality of States
5. Right to self-determination
IV.

Sec. 3, Art II Civilian authority is at all


times, supreme over the military. The
AFP is the protector of the people and
the State. Its goal is to secure the

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

INTEGRATED BAR OF THE PHILS. v. ZAMORA


FACTS : Estrada issued an LOI deploying the marines all
over Metro Manila
HELD: (1) Civilian Supremacy Clause not Violated The
calling of the marines in this case constitutes permissible
use of military assets for civilian enforcement. The limited
participation of the Marine is evident in the provisions of the
LOI, which provides the metes and bounds of their
authority. The local police forces are in charge of the
visibility patrols the real authority belongs to the PNP, the
Metro Manila Police Chief is the overall leader of the PNPPhilippine Marines joint visibility patrols.
(2) Deployment of Marines to assist the
PNP does not unmake the civilian
character of the PNP the Marines
render only assistance in conducting
the patrols. There is no insidious
incursion of the military in civilian
affairs. In fact, military assistance to
civilian authorities is rendered in the
following
actuations:
elections,
administration of the Philippine Red
Cross, relief and rescue operations
during calamities and disasters,
amateur sports, promotion and
development, development of the
culture and the arts, conservation of
natural resources, implementation of
the
agrarian
reform
program,
enforcement of customs laws,
composite
civilian-military
law

57

enforcement activities, conduct of


licensure examinations, conduct of
nationwide tests for elementary and
highschool
students,
anti-drug
enforcement
activities,
sanitary
inspections, conduct of census work,
administration of the Civil Aeronautics
Board, assistance in installation of
weather forecasting devices, and
peace and order policy formulation in
LGUs.
V.

VI.

Sec. 16, Art. II 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.
Q:
This refers to a right of the
people. Why is this found in Art. II and
not in Art. III (Bill of Rights)?
A:
This right belongs to a
different category of rights! Oposa v.
Factoran (224 SCRA 792, 1993)

Sec. 4, Art. II 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 on civil
service.
Q:
Duty?

What is the Governments

A:
people

To serve and protect the

HELD: While this right is


found under the Declaration of
Principles and State Polivies, it does
not follow that it is less important than
any of the c ivil and political rights
under the Bill of Rights. This right
belongs to a different category of rights,
since it concerns nothing less than self
preservation and self- perpetuation, the
advance of which may be said to
predate
all
governments
and
Constitutions, since they are presumed
to exist from the inception of
humankind.

Service to the State


Q:

It states that the government


may call upon the people to
defend the State. Does this
amount
to
involuntary
servitude?

A:
NO! This is an exception to
the rule n involuntary servitude:

This is self-executing provision! (Oposa v.


Factoran)
Thus, its violation gives rise to a cause of action.
In relation to the Preferential Right of
Subsistence Fishermen to the Use of Communal Marine
and Fishing Resources
Art. XIII, Sec. 7 The State shall
protect the rights of subsistence
fishermen,
especially
of
local
communities, to the preferential use of
communal marine and fishing
resources, both inland and offshore.

Exceptions to the rule on


involuntary servitude:
1.
2.
3.
4.
5.

Military
service
to
defend the State
Penal punishment
Assumption
of
jurisdiction of DOLE in
labor cases
Mariners and pilots
Minor children under the
patria
potestas
of
parents

Note that the provisions says PERSONAL


service
Thus, one cannot hire mercenaries to
take ones place.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

TANO v. SOCRATES (GR. 110249, 21


Aug. 1997)
FACTS: The Province of
Palawan and City of Pierto
Princesa enacted ordinances
prohibiting the catching and
exportation of live tropical
fishes.
Some fishermen
were
apprehended
for
violating said ordinances,
They now challenge the

58

constitutionality of
said
ordinances, invoking their
preferential
rights
as
subsistence fishermen to the
use of our communal marine
resources.
HELD:
The preferential
rights
of
subsistence
fishermen to the use of
marine resources is not
absolute. Marine resources,
per the Regalian Dontrine
and under Art. XII, Sec. 2,
belongs to the State, and
their
exploration,
development and utilization
shall be under the States full
control and supervision. It is
a policy enshrined in the
Constitution that the State
has the duty to protect and
advance the right of the
people to a balanced and
healthful ecology in accord
with the rhythm and harmony
of nature. The ordinances
are meant precise to this, so
that the enjoyment of our
resources
may
be
guaranteed for the present
and future generations. The
right to a balanced and
healthful ecology carries with
it a correlative duty to refrain
from
impairing
the
environment.
VII.

Provisions on Economic Policy


1.

Art. XII, Sec. 10(2) In the grant of


rights, privileges, and concessions
covering the national economy and
patrimony, the State shall give
preference to qualified Filipinos
This is known as the Filipino
First Policy

MANILA PRINCE HOTEL v. GSIS


(GR. 118295, 02 May 1997, 267 SCRA 402)
FACTS: The Manila Hotel,
which was previously owned
by a US Corporation, was
then owned by GSIS.
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

Pursuant to the policy of


Privatization, the GSIS held it
up for bidding. The Filipino
Corporation lost. However, it
offered to match the bid of
the
winning
foreign
corporation.
HELD: (1) Art. XI, Sec. 10
(2) is a self-executing
provision. It is a mandatory,
positive command that is
complete in itself and which
needs no further guidelines
or implementing laws or rules
for its enforcement, it does
not require any legislation to
put it in operation.
(2) The word patrimony
means heritage. Heritage
includes not only natural
resources but also our
national and cultural heritage.
While the Manila Hotel was
not originally Filipino, it has
become truly Filipino, with its
own history. It is a mute
witness to our history.
2.

Art. II, Sec. 19 The State shall


develop a self-reliant and independent
national economy effectively controlled
by Filipinos
TAADA v. ANGARA (272 SCRA 18,

[1997])
HELD: This economic policy
does not rule out the entry of
foreign investments, goods,
and services, nor does it
contemplate
economic
exclusion or mendicancy in
the international community.
Aside from envisioning a
trade policy based on
equality and reciprocity, the
fundamental law encourages
industries
that
are
competitive
in
bothe
domestic
and
foreign
markets,
thereby
demonstrating a clear policy
against a sheltered domestic
trade environment, but one in

59

favor of the gradual


development
of
robust
industries that can compete
with the best in the foreign
market.

4.

Who may be admitted to


study?
This refers to the
students

Right of the School to Determine Who may be


Admitted to Study
VIII.

Provisions on Education
Academic Freedom Art. XIV, Sec. 5 (2)
Academic freedom shall be enjoyed in all
institutions of higher learning.
Note that the provision
institutions of higher learning

says

This refers to the tertiary


level only!

Q:

What

is

academic

A:

This is the right of the school


or college to dictate for itself,
its aims and objectives, and
how best to attain them
free from outside coercion or
interference save possible
when the overriding public
welfare calls fro some
restraint. It has a wide
sphere
of
autonomy.
(University of San Agustin
v. CA [23 SCRA 761])

Thus, mandamus would not lie to


compel a school to accept a student
BUT: once the school admitted the
student, there is now a contract
between them this a contract with
PUBLIC INTEREST
Thus, the school may not
arbitrarily dismiss or expel a
student it should be based
on either:
1.

Freedom?

Subsumed in the tern academic


freedom is the freedom to determine,
on academic grounds, the following:
1.

Who may teach?


This refers to the
faculty

2.

What may be taught?


This refers to the
subject
and
courses to be
offered

3.

How it shall be taught?


This refers to the
method of teaching

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

2.

Failure
to
meet minimum
academic
requirements
prescribed for
the school or
for the subject;
Violation
of
the schools
rules
of
discipline

Also, the school must


conduct an investigation it
must observe due process to
establish the culpability of the
student
UP BOARD OF REGENTS v. CA (GR. 134625,
31 Aug. 1999)
FACTS: Aroklaswamy Willuan Margaret
Celine was given a masteral degree
and was allowed to graduate.
Subsequently, however, it was
discovered that her thesis was
plagiarized. Thus, UP revoked her
degree.
HELD: If an institution of higher
learning can decide who can and who
cannot study in it, it can also determine
on whom it can convey the honor and
distinction of being its graduates. If the

60

conferment of an honor or distinction


was obtained through fraud, a
university can revoke or withdraw such
honor or distinction. This freedom does
not terminate upon a students
graduation, since it is precisely the
graduation that is in question.

indigenous
peoples
(IPs) as a distinct sector
in the Philippine society
(2) Grants
them
the
ownership
and
possession of their
ancestral domains and
ancestral lands, and
defines the extent of
these
lands
and
domains,

Art. XIV, Sec. 4(1) The State recognizes the


complementary role of public and private
institution in the educational system and shall
exercise reasonable supervision and regulation
of all educational institutions

(3) Gives the indigenous


concept of ownership
under customary law
which traces its origin to
native title.

This deals with the States power to


regulate educational institutions
MIRIAM COLLEGE FOUNDATION v.
CA (348 SCRA 265, 15 Dec. 2000)
2.
HELD: The power of the
State to regulate educational
institutions is subject to the
requirement
of
reasonableness. Moreover,
what is allowed is only the
regulation and supervision of
educational institutions not
the deprivation of their rights.
IX.

Rights of Indigenous Peoples


CRUZ v. SECRETARY of DENR (GR.
135385, 06 Dec 2000)
FACTS: The constitutionality
of RA 8371 (Indigenous Peoples
Reform Act) was quesrioned. The SC
en banc voted 7-7, hence, since the
presumption is for constitutionality,
such presumption was not overthrown,
and
the
law
was
declared
unconstitutional. Each justice wrote a
separate opinion, and all opinions form
part of the decision.

Definition and Distinction ICCs/IPs


(Separate Opinion of J. Kapunan)
Sec. 3, RA 8371 IPs/ICCs
refer to a group of people or
homogenous
societies
identified by self-ascription
and ascription of others, who
have continuously lived as
organized community on
communally bounded and
defined territory, and who
have, under claims of
ownership
since
time
immemorial,
occupied,
possessed and utilized such
territories, sharing common
bonds of language, customs,
traditions,
and
other
distinctive cultural traits, or
who have, through resistance
to political, social and cultural
inroads of colonization, nonindigenous religions and
cultures, became historically
differentiated
from
the
majority of Filipinos.

SALIENT POINTS
1.

Nature of RA 8371(Separate
Opinion of J. Puno)
RA 8371:
(1) Recognizes
the
existence
of
the
indigenous
cultural
communities (ICCs) or

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

NOTE: There is really no


difference between the 2
terms, except:
ICCs the term
used in the Constitution

61

IPs the term used


in
the
international
community and the UN
NOTE: The terms are always
used in the plural form
3.

Ancestral Domain and Ancestral


Lands, Definition and Nature
(Separate Opinion of J. Puno)
Nature:
These are private
property
of
indigenous
peoples it does not
constitute part of the land of
the public domain
Definitions:
(1) Ancestral
Domain

Sec.
3(a),
IPRA
Ancestral
Domain
all
areas
belonging to
ICCs/ IPs held
under a claim
of ownership,
occupied or
possessed by
ICCs/IPs by
themselves or
through their
ancestors,
communally or
individually
since
time
immemorial,
continuously
until
the
present,
except when
interrupted by
war,
force
majeure
or
displacement
by
force,
deceit, stealth
or
as
a
consequence
of government
projects or any
other

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

voluntary
dealings with
government
and/or private
individuals or
corporations
It
comprise
lands, inland
waters,
coastal areas,
and
natural
resources
therein,
including
ancestral
lands, forests,
pasture,
residential,
agricultural
and
other
lands whether
alienable or
not, hunting
grounds,
burial
grounds,
worship areas,
bodies
of
water, mineral
and
other
natural
resources.
(2) Ancestral
Land - Sec.
3(b), IPRA
These
are
lands held by
the ICCs/IPs
under
the
same
conditions as
ancestral
domains
except
that
these
are
limited
to
lands and that
these land are
not
merely
occupied and
possessed but
are
also
utilized
by

62

them under
claims
of
individual or
traditional
group
ownership.

This right of private


ownership
is
peculiarly granted
to ICCs/IPs over
their
Ancestral
Lands
and
Domains.

Thus,
Ancestral
Domain
is
a
broader concept
it
includes
Ancestral Lands

4.

Formal recognition of this


right is embodies in a
Certificate
of Ancestral
Domain Title (CADT)
A CADT is just like
a Torrens Title it
is evidence of
private ownership
of land by native
title.

Acquisition by ICCs/IPs of their


Rights to their Ancestral Domains
and Lands (Separate Opinion of J.
Puno)
6.
2 ways:
(1) By Native Title
over both
Ancestral
Domain and
Ancestral
Lands
(2) By
Torrens
Title under the
Public Land
Act over
Ancestral
Lands only.

5.

Native Title, Concept (Separate


Opinion of J. Puno)
This refers to the ICCs/IPs
pre-conquered rights to lands
and domains held under a
claim of private ownership as
far back as memory reaches.
Theses lands are
deemed NEVER to
have been public
lands and are
presumed to have
been held privately
since before the
Spanish Conquest.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Ownership
by
Acquisitive
Prescription v. Ownership by
Native Title (Separate Opinion of
J. Kapunan)
Ownership by Acquisitive
Prescription
Involves
a
conversion of the propertys
character from alienable
public l and to private land
Thus, there is a
transfer for title from the
State to a private person
Meaning, the land
is originally public land, which
is converted to private
Note: This requires
that the land is alienable
Public
Land
Art. XII,
sec. 3
Lands of
the public
domain
are
classified
into
agricultur
al, forest

63

or timber,
mineral
lands,
and
national
parks
Of these,
only
agricultur
al lands
are
alienable
Requirement
for
Acquisitive
Prescription the
private individual
must
have
possessed the land
open, continuously,
exclusively,
adversely,
and
notoriously, in the
concept of an
owner, for either of
the
following
periods:
(1) 30 years
bad faith
(2) 10 years
good faith

Ownership by Native Title


Here, the land has
been held by its
possessor and his
predecessor-ininterest in the
concept of an
owner since time
immemorial
Thus, the land is
not acquired from
the State there
was no transfer
from the State
The land is private
in character as far back as
memory reaches.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

7.

Jura Regalia requires that


private title to land must be traced
to some grant express or implied
from the Spanish Crown or its
successors the American
Colonial Government and after,
the Philippine Government.
Q:
Does jura regalia
negate native title?
A:

NO!

In
Cario
v.
Insular Government, the SC
has held that when as far
back as testimony or memory
goes, the land has been held
by individuals under a claim
of private ownership, it will be
presumed to have been held
in the same way from before
the Spanish conquest, and
never to have been public
land.
Native title is an
exception to jura regalia.
Art. XII, Sec 2. All lands of
the public domain, waters,
minerals, coal, petroleum,
and other mineral oils, all
forces of potential energy,
fisheries, forest or timber,
wildlife, flora and fauna and
other natural resources are
owned by the State
This
is
the
recognition of the Doctrine of
Jura Regalia
ELECTION LAW
Significant Laws
BP 881 Omnibus Election Code
RA 6646 Electoral Reform Law of 1987
RA 7166
RA9006 Fair Election Act
RA 9189 Absentee Voters Act of 2003
Election Process divided into 3 stages:

64

(1) Pre-election
(2) During election
(3) Post Election

President, Vice-President, Senators and Party-List


representatives. This is a clear intent to enfranchise
Filipinos abroad, to allow them to have a voice in the
selection of our leaders. This refers to IMMIGRANTS and
those who acquire the right to reside therein. It does not
pertain to NATURALIZED CITIZENS. However, there must
be an affidavit executed by these Filipinos abroad that they
will return and resume residence in the Philippines within 3
years.

PRE-ELECTION STAGE
Registration of Voters
Q:

Who may register?

A:

Only those who are qualified.

VOTERS QUALIFICATIONS
Art. V, Sec. 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
preceding the election. No literacy, property or other
substantive requirement shall be imposed on the exercise
of suffrage.
(1) citizens of the Philippines
(2) not otherwise disqualified by law
(3) at least 18 years of age
(4) resident of the Philippines for at least one year and of
the place wherein they propose to vote for at least six
months immediately preceding the elections
Election Period: 90 days before the day of the election and
shall end 30 days thereafter
-Registration
Art. V. Sec 1
-Political Parties
Art. IX-C, Sec 2(5)

Section 8, BP 881
-

Failure of Elections
Sec. 6 OEC
Sec. 4 RA 7166
Mitmug v. COMELEC

Pre-Proclamation
Sec. 241,242,243 OEC
Sec. 15, RA 7166

Effects of Disqualification
Sec. 6, RA 7166
Guerrero v. COMELEC
Loong v. COMELEC
Salcedo v. COMELEC
Tecson v. COMELEC

Sec. 4 (
Sec. 17
Sec. 2(2

Counter
-

-Filing of Certificate of Candidacy


Sec. 79(A) OEC
Art. V, Sec. 2 The Congress shall provide a
Sec. 73 OEC
system for securing the secrecy and sanctity of
Monsale v. Nico
the ballot as well as a system for absentee voting
Sec. 66 OEC
by qualified Filipinos abroad xxx
PNOC-EDC v. NLRC
Sec. 26 OEC
Provides for:
COMELEC Resolution (1) A system for securing the security and sanctity of
ballots
(2) A system for absentee voting

Q:
Is there an exception to the residence
qualification?
A:

This is an exception to residence qualification


For purposes of election law, ones domicile is
that to which the Constitution refers when it
speaks of residence

Yes. RA 9189 (Absentee Voters Act of 2003)

MACALINTAL v. COMELEC
Exception to Residence qualification of a voter
HELD: Under the RA 9189 ABSENTEE VOTERS ACT OF
2003, overseas absentee voters are allowed to vote for
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

EXIT POLLS
The reason for securing the sanctity/secrecy of ballots is to
avoid vote buying through voter identification. What is
forbidden is the association of voters with their respective
votes for the purpose of assuring that votes have been cast
in accordance with the instruction of a third party.
Exit polls conducted by ABS-CBN does not violate the
sanctity of ballots. The contents of the ballots are not
exposed. The revelation is not compulsory but voluntary.

65

Also, voters are not required to reveal their names. (ABSCBN v. COMELEC)
Q:

Even if you possess all qualifications and none of


the disqualifications. If you fail to register you will
not be able/ allowed to vote. Is registration then
an additional qualification of a voter?

A:

No. It is merely a condition precedent for the


exercise of the right of suffrage. Registration
laws are police power measures designed to
ensure that only those who possess
qualifications and none of the disqualifications
can be allowed to exercise the right of suffrage.
They are for the purpose of conducting an honest
and free election.

REGISTRATION OF POLITICAL PARTIES


Q:

Who has the power to register political parties?

A:

COMELEC in accordance with Article IX-C, Sec.


2(5). It is the registration with COMELEC that
vests personality to an organization as a political
party.

Art. IX-C, Sec. 2(5) ORGANIZATIONS THAT MAY NOT


BE REGISTERED AS POLITICAL PARTIES
(1) religious denominations and sects
(2) those which seek to achieve their goals through
violence or unlawful means
(3) those which refuse to uphold and adhere to the
Constitution
(4) those which are supported by any foreign
government
Art. IX-C, Sec. 2(5) Par. 2 Financial
contributions from foreign governments and their
agencies to political parties, organization,
coalitions, or candidates related to elections
constitute interference in national affairs, and
when accepted, shall be an additional ground for
the cancellation of their registration with the
Commission, in addition to their penalties that
may be prescribed by law.
This constitute an election offense in accordance
to Section 81, Omnibus election Code Intervention of
foreigners- it shall be unlawful for any foreigners, whether
judicial (juridical) or natural person, to aid any candidate or
political party, directly or indirectly, or to take part in or
influence in any manner any election, or to contribute or
make any expenditure in connection with any election
campaign or partisan political activity.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

MULTI-PARTY SYSTEM
We are supposed to have a multi-party system as provided
under Art. IX-C, Sec. 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.
ELECTION PERIOD
Q:

What is the election period?

A:

Art. IX-C, Sec. 9 provides that unless otherwise


fixed by the Commission in special cases, the
election period shall commence 90 days before
the day of election and shall end 30 days
thereafter.

PROHIBITED ACTIVITIES DURING ELECTION PERIOD


(1) construction of public highways/ public works
(2) public employment, appointment
CAMPAIGN PERIOD
- duration usually shorter
- depends on the office aspired for
-usually starts after the last day of filing of the certificate of
candidacy and always ends one day before elections.
ELECTION CAMPAIGN
- Election Campaign and partisan political
activity are the same.
They are used
interchangeably.
- Under Sec. 79 (b) Omnibus Election Code, it
refers to an act designed to promote the election
or defeat of a particular candidate or candidates
to a public office xxx
Section 80, Omnibus Election Code ELECTION
CAMPAIGN OR PARTISAN POLITICAL ACTIVITY
OUTSIDE CAMPAIGN PERIOD It shall be unlawful for
any person, whether or not a voter or candidate, or for any
party, or association of persons, to engage in an election
campaign or partisan political activity except during the
campaign period: PROVIDED, that political parties may
hold political conventions or meetings to nominate their
official candidates within 30 days before the
commencement of the campaign period and 45 days for
Presidential and Vice-Presidential election.
GENERAL RULE: It is unlawful for any person to engage in
an election campaign except during the campaign period.
Otherwise, it will be an election offense.
EXCEPTION:
Political parties may hold political
conventions to nominate their candidates within 30 days

66

before the commencement of the campaign period within


45 days for President and Vice-President elections.

and if he files his certificate of candidacy for more than one


office, he shall not be eligible for any of them xxx

CANDIDATE
Sec. 79(a) Omnibus Election Code the term
CANDIDATE refers to any person aspiring for or seeking
an elective public office, who has filed a certificate of
candidacy by himself of through an accredited political
party, aggroupment, or coalition of parties.

The certificate of candidacy must be filed for only one office


in an election
If a candidate files his certificate of candidacy for more than
one office, he shall not be eligible for any of them.

Q:
Does Pichays as itanim sa senado even before
the elections and campaign period violate Sec. 80 of the
OEC?

Q:

A:
No. At that time, Pichay has not yet filed his
certificate of candidacy. He is not yet a candidate within
the meaning of the law. Therefore, it cannot be considered
as an election campaign.
FILING OF CERTIFICATE OF CANDIDACY
Sec.76. Omnibus Election Code 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.
It is a ministerial duty on the part of the election official to
receive and acknowledge receipt of the certificate of
candidacy. The question of whether or not a person is
disqualified belongs to another tribunal in an appropriate
disqualification case.
Q:
Ka Roger went to Laguna to file COC. The
election officer refused because he seeks to achieve goals
through violence. Valid?
A:
No. It is the ministerial duty on the part of the
election official to receive and acknowledge receipt of the
certificate of candidacy. The question of whether or not a
person is disqualified belongs to another tribunal in an
appropriate disqualification case.
PERIOD
Sec. 73, 1st sentence, OEC No person shall be eligible
for any elective public office unless he files a sworn
certificate of candidacy within the period fixed herein xxx
The certificate of candidacy must be filed within the period
prescribed by law.
Late filing not allowed

WITHDRAWAL
Can you withdraw the certificate of candidacy?

A:
Yes. 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. (Sec. 73, 2nd sentence, OEC)
MONSALE v. NICO
On the last day of filing of certificate of candidacy. March
31, Jose Monsale withdrew his certificate of candidacy.
April 1, campaign started. On April 2, he wanted to run
again so he filed a written declaration withdrawing his
withdrawal.
HELD: The withdrawal of the withdrawal of the certificate
of candidacy made after the last day of filing is considered
as filing of a new certificate of candidacy. Hence, it was not
allowed since it was filed out of time.
EFFECT OF
CANDIDACY

FILING

OF

CERTIFICATE

OF

Appointive Officials
Sec. 66. OEC Candidates holding appointive office or
position Any person holding a public appointive office or
position, including active members of the Armed Forces of
the Philippines, and officers and employees in the
government-owned or controlled corporations, shall be
considered ipso facto resigned from his office upon the
filing of his certificate of candidacy.
Q:
X, a municipal treasurer filed a certificate of
candidacy for governor. What is the effect?
A:
He is considered ipso facto resigned.
Q:
Is there a need to resign?
A:
NO! The appointive official is ipso facto resigned.
Ipso facto means no need to resign.
QUINTO vs COMELEC
-sustained the constitutionality of sec.66 of OEC.
No violation of equal protection clause. There is a valid
classification based on substantial distinction between
those holding appointive and elective offices.

Sec. 73, 3rd sentence, OEC No person shall be eligible


for more than one office to be filled in the same election,
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

67

Q:
A:

What if after filing, the appointive official withdrew


his certificate of candidacy. Can he be reinstated
to his former position?
No! What matters is the moment of filing.

PNOC-EDC v. NLRC
HELD: The OEC does not distinguish between employees
of GOCCs which have original charters and those that do
not have one.
Elective Officials
Sec. 67, OEC Candidates holding elective office xxx
has already been repealed by the Repealing Clause of the
Fair Election Act under Sec. 14, RA 9006 Repealing
Clause. Sec 67 and 85 0f the EOC xxx are hereby
repealed.
Q:

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.
Q:
A:

When may substitution take place?


Substitution can only take place on the first day
of campaign period until NOT later than mid-day
of election day.

Q:

Martin de Guzman, a candidate for mayor, died 3


days before the election. Can his wife substitute
him?
It depends. Under Sec. 77, only a candidate
belonging to the same political party may be
substituted. By implication, an independent or
those who do not belong to any political party
may not be validly substituted because nobody
will qualify.

What governs now?

A:
Secton 38, COMELEC Resolution 7767 (30
Nov 2006), Implementing Rules of the Fair Election Act
Effect of Filing Certificate of Candidacy of Elective Officials
Any elective official, whether national or local, who has
filed a certificate of candidacy for the same or other office
shall not be considered resigned from his office.
FARIAS v. EXECUTIVE SECRETARY
HELD: The provision of the Fair Election Act (RA 9006) to
the extent that it repealed Sec.67 of OEC is constitutional.
Q:
Vice-governor filed a certificate of candidacy for
governor. What is the effect?
A:
He is NOT ipso facto considered resigned. Sec.
67 OEC has been repealed by the FAIR ELECTION ACT
(RA 9006). Any elective official, national or local shall not
be considered as resigned from their elective office.

A:

Q:
A:

What are the requirements for substitution?


(1) nominated by the political party concerned
(2) certified by the political party concerned

Q: Martin de Guzman died while campaigning. His son


substituted him. Voters on the day of the election
wrote Martin de Guzman instead of casting the same
in the name of his son, Joel de Guzman. Should the
votes be counted in favor of Joel?

SUBSTITUTION OF CANDIDATES
A:
Q:
What are the GROUNDS for substitution of
candidates?
A:

Sec.77, OEC enumerates 3Grounds:


(1) Death
(2) Disqualification
(3) Withdrawal of another

Section 77. OEC 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
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

Yes! As a general rule, under RA 9006, Sec. 12, the


same will be considered as stray votes but will not
invalidate the whole ballot. Exception is when the
substitute carries the same family name, the said
provision will not apply.

Section 12. RA 9006 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.

68

MIRANDA v. ABAYA
FACTS: In the 1998 election, mayor Miranda of Isabela,
already served 8 consecutive terms, yet he still filed a
certificate of candidacy. As a result, Abaya filed a
disqualification case. COMELEC then disqualified Miranda
and cancelled his certificate of candidacy. The son of
Miranda, Joel, upon nomination of their political party, filed
a certificate as a substitute. Joel Miranda won.
HELD: There was no valid substitution. COMELEC did not
only disqualify Miranda but also cancelled his certificate of
candidacy. Therefore, he cannot be validly substituted. It
is as if he was not a candidate.
Even on the most basic and fundamental
principles, it is already understood that the concept of a
substitute presupposes the existence of the person to be
substituted, for how can a person take the place of
somebody who does not exist or who never was. The court
has no other choice but to rule that in all instances
enumerated in Sec.77 of the OEC, the existence of a valid
certificate of candidacy seasonably filed is a requisite sine
quo non.
All told, a disqualified candidate may only be
substituted if he had a valid certificate of candidacy in the
first place because if the disqualified candidate did not
have a valid and seasonably filed COC, he is and was not
a candidate at all. If a person was not a candidate, he
cannot be substituted under Sec. 77 of the OEC.
The purpose of the law in requiring the filing of the COC
and in fixing the time limit therefore are:
(a) To enable the voters to know at least 60 days
before the regular election, the candidates
among whom they are to make the choice and
(b) To avoid confusion and inconvenience in the
tabulation of the votes cast
Q:

Considering that Joel possesses all the


qualifications, can he be considered as a
candidate in his own right?
A:
No. The certificate of candidacy was filed long
after the last day of filing (Sec. 73, OEC)
The existence of a certificate of candidacy is a condition
sine qua non under Section 77.
Q:
Since there was no valid substitution, should the
candidate who obtained the second highest vote be
proclaimed?
A:
No. Under the doctrine on the rejection of second
placer, the second placer is just like that second placer.
He was not the choice of the electorate. The wreath
(crown) of victory cannot be transferred to the repudiated
loser. (Cayat v. COMELEC citing Butch Aquino v.
COMELEC and Sunga v. COMELEC)
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

Q:
A:
Mayor.

Who will now assume the position of mayorship?


Following the rule on succession, it is the Vice-

LABO DOCTRINE
The thrust is what to do with the votes cast for a
disqualified candidate. Should they be considered as stray
votes?
SC:
No! That would disenfranchise the majority. The
votes cast for the disqualified are not stray votes they are
valid votes only that the candidate was later on found to be
disqualified.
It would have been different if his disqualification
was so apparent, so notorious, so much so that the people,
notwithstanding that they knew him to be disqualified, they
still voted for him in which case the votes cast for him shall
be considered as protest votes. Protest votes are
considered as stray votes. But not in this case, where the
people of Baguio voted for Labo only to find out that he is
disqualified.
You cannot apply Labo Doctrine in Party-List because of
Section 10, RA 7941
CAYAT v. COMELEC
FACTS: Rev. Fr. Nardo Cayat ran for Mayor. Palileng, his
opponent, found out that Cayat, before the elections, was
previously convicted of acts of lasciviousness although he
was granted probation.
His candidacy was then
questioned in a disqualification case invoking Section 40 pf
the LGC. (Disqualification 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 (2) years after serving
sentence ; xxx) . COMELEC disqualified Cayat on the
ground of conviction of an offense involving moral
turpitude. However, Cayat alleged that he did not receive a
copy of the judgment. That decision disqualifying Cayat
became final even 2 weeks before the election. Still, Cayat
won in the election. Palileng claimed that since Cayat is
disqualified, he should be the one proclaimed.
HELD: The Court agreed and did not apply the doctrine
of the rejection of the second placer. The one who
obtained the second highest number of votes was the one
actually proclaimed. This is very peculiar because here,
there is only one candidate. Since Cayat was disqualified,
it is as if he is not a candidate. Hence, there is no second
placer here.

69

The doctrine of the rejection of second placer is not


applicable because of Sec.6 of RA 6646
Also, under Section 6, RA 6646 (Electoral Reform Law of
1987 Effect of disqualification) which contemplates of 2
situations, it is the 1st sentence which applies to Cayat. He
was declared by final judgment, to be disqualified because
the decision attained finality even 2 weeks before the
election. He shall therefore not be voted for and the votes
cast for him shall not be counted.
The second sentence contemplates that there was a
disqualification case filed before the COMELEC but for
whatever reason, COMELEC was not able to render a
decision before the election and such candidate won in the
election, in which case, the court or Commission shall
continue with the trial and hearing of the election, inquiry or
protest.
DISQUALIFICATIONS/REMEDIES BEFORE ELECTION
Any disqualification filed before the election, whether
pursuant to Sections 68, 69 and 78 of OEC, the jurisdiction
is with the COMELEC
(1)

Section 68, OEC Disqualifications. - Any


candidate who, in an action or protest in which he
is a party is declared by final decision of a
competent court guilty of, or found by the
Commission of having:
(a) given money or other material consideration
to influence, induce or corrupt the voters or public
officials performing electoral functions;
(b) committed acts of terrorism to enhance his
candidacy;
(c) spent in his election campaign an amount in
excess of that allowed by this Code;
(d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104;
or
(e) violated any of Sections 80, 83, 85, 86 and
261, paragraphs d, e, k, v, and cc, subparagraph 6,
shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the
office.
Any person who is a permanent resident of or an immigrant
to a foreign country shall not be qualified to run for any
elective office under this Code, unless said person has
waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence
requirement provided for in the election laws.
Violation of election laws is without prejudice to the filing of
criminal action.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

(2)
Section 69, OEC 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 the candidate is a nuisance
candidate.
Q:
Who is NUISANCE CANDIDATE?
A:
A nuisance candidate is a candidate who has no
bona fide intention to run, his purpose is merely 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 intended to prevent a faithful determination of the true
will of the electorate. (Bautista v. COMELEC)
Period to file a petition
Within five (5) days from the last day of filing of the
certificate of candidacy assuming that COMELEC did not
act motu proprio.
(3)
Section 78, OEC 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. Xxx
Period to file a petition
Within twenty-five (25) days from the time the candidate
filed his certificate of candidacy/ from the date the
candidate alleged to have made misrepresentation in the
COC filed.
LOONG v. COMELEC
FACTS: Loong was a candidate for Vice-Governor in
ARMM. There was an election held but there was yet no
proclamation. Eventually, it was found out that Loong was
still underage. Can the petition to disqualify Loong on the
ground of material misrepresentation prosper?
HELD: No. The petition was filed out of time. The
disqualification case under Sec. 78 should be filed within
25 days from the date the candidate who made the
misrepresentation filed his certificate of candidacy, not on
the date of discovery. The 25-day period is mandatory.
Q:

What then is the remedy?

A:
There is a GAP in the law, which must be
addressed by Congress.
SALCEDO v. COMLELEC
HELD: Material misrepresentation refers to the
QUALIFICATIONS of the elective official for the elective
office and NOT to any innocuous mistake. There must be

70

a deliberate intent to deceive the people to ones


qualification for public office.
TECSON v. COMELEC
FACTS: A disqualification case was filed against FPJ in
accordance with Sec. 78 on the ground of material
representation as to the citizenship.
HELD: There was no material misrepresentation. The
misrepresentation must not only be material. There must
also be a deliberate intent to mislead or deceive as to ones
qualification to public office.
EFFECT OF DISQUALIFICATION CASES
Section 6. RA 6646 Effect of Disqualification Case. Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for
him shall not be counted. If for any reason a candidate is
not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action,
inquiry, or protest and, upon motion of the complainant or
any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong.
ROMUALDEZ-MARCOS v. COMELEC
There was yet no proclamation, hence not yet a member of
the HOR. COMELEC still has jurisdictom
GUERRERO v. COMELEC
Farias was elected, proclaimed and took his oath. The
COMELEC ousted itself of jurisdiction. SC upheld
COMELEC. It was recognition of the power of the HRET
and the constitutional boundaries.
Sec.17, Art.VI-HRET as sole judge of all contests, returns
and qualifications of their respective members.
Election 7am 3pm, then counting, members of Board of
Canvassers
Return usually 7 copies:
(1)COMELEC
(2)Treasurer
(3)Municipal Judge
The idea is that in case of lost return, they can refer to the
other copies.
Number of votes written in words and number
CAYAT vs COMELEC Apr. 24, 2007 (case of 1st
impression!)
Priest- convicted of acts of lasciviousness- for
DQ
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

Held: he won in the election


Here SC did not apply the doctrine of rejection of 2 nd placer
because for all intents and purposes there was no 2 nd
placer here. Kayat was as if not a candidate at all.
Applying Section 6 of Republic Act No. 6646, The
Electoral Reforms Law of 1987, states:
Sec. 6. Effect of Disqualification Case. Any
candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for
him shall not be counted. If for any reason a candidate is
not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action,
inquiry, or protest and, upon motion of the complainant or
any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong. (Emphasis
added)

POST ELECTION
PRE-PROCLAMATION CASE
Q:
After election, but before proclamation, what is
the remedy?
A:
Pre-proclamation case. But this presupposes
that there was election
Q:
A:

After proclamation, what is the remedy?


(1) Election Protest
(2) Quo Warranto

In pre-proclamation cases, the governing provisions are


Section 241, 242, 243 OEC.
Section 241, OEC 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, OEC 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

71

made, as the evidence shall warrant in accordance with the


succeeding sections.
Section 243,OEC Issues that may be raised in preproclamation 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 243, OEC refers to issues that may ne raised in a
pre-proclamation controversy. There are four (4) grounds,
which can be summarized into two (2):
(1) illegality in the composition of proceedings of the
BOC (a)
(2) illegality in the preparation, transmission, receipt,
custody, or appreciation of election returns (b, c,d)
Eg. Ballot box switching not proper for pre-proclamation
case; does not fall under any of the instances under Art.
243 of OEC.
Once a candidate has been proclaimed, the pending preproclamation case should be dismissed. After all, the
issues pending in the pre-proclamation case will also be
raised in the subsequent Election Protest or Quo Warranto
case filed.
DOCTRINE OF STATISTICAL IMPROBABILITY
LAGUMBAY DOCTRINE
Where there exist similarities in the tallies in favor of
candidates belonging to one party, and results in the
blanking out of the opposing candidates, the election
returns are obviously manufactured on the basis of the
doctrine of statistical improbability.
As watcher, object to the inclusion of the canvass of the
particular return on the ground that the election returns are
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

obviously manufactured on the basis of the doctrine of


statistical improbability. If still included, it can result to a
pre-proclamation controversy.
Pre-proclamation cases is NOT allowed in barangay
elections.
Section 15, RA 7166 Pre-proclamation Cases Not
Allowed in Elections for President Vice-President, Senator,
and Member of the House of Representatives. - For
purposes 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 the election returns or the certificates of
canvass, as the case may be. 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 returns before it.
Questions 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 returns before the city or
municipal board of canvassers, or on the municipal
certificates of canvass before the provincial board of
canvassers or district boards of canvassers in Metro Manila
Area, shall be specifically noticed in the minutes of their
respective proceedings.
For purposes of election of
(1) President
(2) Vice-President
(3) Senators
(4) House of Representatives
There can be no pre-proclamation case on matters
relating to transmission, custody of election returns;
the only issue that can be raised illegality of the
composition or proceeding of the Board of Canvassers
Therefore, there can only be a pre-proclamation case on
the following:
(1) Municipal officials
(2) City officials
(3) Provincial officials
(4) Autonomous officials
FAILURE OF ELECTION
Section 6, OEC Failure of election. - If, on account of force
majeure, violence, terrorism, fraud, or other analogous
causes the election in any polling place has not been held
on the date fixed, or had been suspended before the hour

72

fixed by law for the closing of the voting, or after the voting
and during the preparation and the transmission of the
election returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of such
cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of
a verified petition by any interested party and after due
notice and hearing, call for the holding or continuation of
the election not held, suspended or which resulted in a
failure to elect on a date reasonably close to the date of the
election not held, suspended or which resulted in a failure
to elect but not later than thirty days after the cessation of
the cause of such postponement or suspension of the
election or failure to elect.

elections as provided in Sec. 5, 6, and 7 of the OEC shall


be decided by the Commission sitting en banc by a
majority vote of its Members. The causes for the
declaration of a failure of election may occur before or after
the casting of votes or n the day of the election xxx)

GROUNDS FOR FAILURE OF ELECTION


(1) Force majeure
(2) Violence
(3) Terrorism
(4) Fraud
(5) Analogous Causes

Exception: A petition to declare a failure of election shall be


heard by the COMELEC en banc.]

SITUATIONS
(1) No election
The election in any polling place has
not been held on the date fixed on
account of FVTFA
(2) Election is suspended
The election in any polling place has
been suspended before the hour fixed
by law for the closing of the voting on
account of FVTFA
(3) There is a failure to elect
After the voting and during the
preparation and transmission of the
election returns or to the custody or
canvass thereof, such election results
in a failure to elect on account of
FVTFA; nobody emerged as winner

BANAGA v. COMELEC
Failure of election is the same with petition to annul
election returns
General Rule: xxx All such election cases shall be heard
and decided in division, provided that motions for
reconsideration of decisions shall be decided by the
Commision en banc. (Art IX-C, Section 3)

PRE-PROCLAMATION v. FAILURE OF ELECTION


In pre-proclamation, there is actually an election that took
place
In failure of election, there was no election at all or it was
suspended or there was a failure to elect.
MITMUG v. COMELEC
There were 3 candidates for mayor. The total registered
voters is 10, 000. Only 3,000 voted. There was a low turn
out of voters. A petition was filed to declare a failure of
election
HELD: The petition cannot be granted. There was an
election that took place. The law does not require the
majority of voters to cast their votes. There can onlybe a
failure of election if the will of the people is defiled and
cannot be determined.
PROCLAMATION
Q:
A:

Q:
A:

What are the two (2) conditions that must concur


before the COMELEC can act on a verified
petition seeking to declare a failure of election?
(1) no voting took place in the precinct
(2) on the date fixed by law or even if there was
voting, the election resulted in a failure to elect.

Q:
Where to file a petition to declare a failure of
election?
A:
COMELEC EN BANC. The majority of the
Commission may grant the petition and schedule special
election in areas affected.
(Section 4, RA 7166 Postponement, Failure of
election and special Elections The postponement,
declaration of failure of election and the calling of special
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

Who proclaims the winner?


(1) Board of Canvassers
(2) President, Vice-President Elections: Congress
acting as Board of Canvassers
(3) Senators: COMELEC
(4) Congressman
(a) Lone Congressional district
Provincial BOC
(b) Several districts District BOC

It is the ministerial duty of the BOC to proclaim the winning


candidate. It has no discretion whether to proclaim or not.
After the last official act, which is the proclamation, the
BOC becomes functus officio and may not validly
reconvene motu proprio. However, when the COMELEC
ordered the reconveyance of the BOC, it may.

73

POST-ELECTION REMEDIES After election

(Art. IX-C, Sec. 2[2])

ELECTION PROTEST v. QUO WARRANTO***

(6) Elective Barangay Official

ELECTION PROTEST
- who really won in the election?, determination of real choice
of electorate

-MTC (Original)
(trial courts of limited jurisdictio
-COMELEC (Appellate) (Art.
Sec. 2[2])

- only the candidate running for the same can file


- if the protestant wins, he shall be proclaimed and shall
replace the previously proclaimed winner.
- eg. coercion, terrorism, ballot box switching, vote buying.

REYES v. RTC OF ORIENTAL MINDORO


From the decision of the COMELEC, file first a motion for
reconsideration. It is only the decision of COMELEC EN
BANC that is reviewable by the SC.
TECSON v. COMELEC cf: sec.4(7), Art.VII

DUMAYAS v. COMELEC
Election Protest is a contest between the defeated and
winning candidates on the ground of frauds or irregularities
in the casting and counting of the ballots or in the
preparation of returns. It resolves the question of who
actually obtained the plurality of the legal votes and
therefore is entitled to hold the office.

Before the election, a petition was filed on the ground of


material misrepresentation. COMELEC dismissed the
petition. TECSON et. al. argued that the jurisdiction with
the SC.
HELD: Contest refers to post-election scenario and not
pre-election scenario. It shall consist of either an election
protest or quo warranto which are two (2) distinct remedies
but with one objective in view, to unseat winning candidate.

Quo warranto raises in issue the disloyalty or ineligibility of


the winning candidate. It is a proceeding to unseat the
respondent from office but not necessarily to install the
petitioner in his place.
JURISDICTION
(1) President/ VP

(2) Members of the Congress


-Senators
-Congressmen
-Partylist Reps

(3) Governor/ Vice-Governor

(4) Regional/ Provincial/City


(5) Elective Municipal Official

SC has jurisdiction over election contests of


President/Vice-President and NOT candidates. It does
NOT include a petition qualifying a candidate for
President/Vice-President. SC is the sole judge for
President/Vice-President and NOT over candidates for
President/Vice-President.
Hence, the action was
dismissed for lack of jurisdiction and prematurity.
- SC en banc , acting as Presidential
Electoral Tribunal
election returns refers to election protest
(Art. VII, Sec. 4[7])
qualification refers to quo warranto
sole judge
Remedy: MFR only GALIDO v. COMELEC
Notwithstanding the finality of COMELECs decision, the
parties are NOT precluded from filing a petition for certiorari
with the SC.
-Senate Electoral Tribunal
-HR Electoral Tribunal
FRIVALD0 v. COMELEC ; LOONG v. COMELEC
(Art. VI, Sec. 17)
If the ground relied upon is lack of citizenship or disloyalty
No appeal
theAction
Republic, the period must be extended.
Or Rule 65 (Special to
Civil
on Certiorari based on GAD)
-COMELEC (Original) EFFECT OF DEATH OF A PARTY
What is the effect of death of a party in an
(Art. IX-C, Sec. 2[2]) Q:
election protest? Should it warrant the dismissal
-SC (Appellate)
of the protest?
-COMELEC (Original)
A:
The death of the protestant neither constitutes a
-SC (Appellate)
ground for the dismissal of the contest not ousts the trial
court of its jurisdiction to decide the election contest. An
-RTC (Original)
protest involves both the private interests of the
(trial courts of generalelection
jurisdiction)
-COMELEC (Appellate)rival candidates and the public interest in the final

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

74

determination of the real choice of the electorate, and for


this reason, an election contest necessarily survives the
death of the protestant or the protestee. But while the right
to public office is personal and exclusive to the public
officer, an election protest ins not purely personal and
exclusive to the protestant or to the protestee such that
after the death of either would oust the court of all authority
to continue the protest proceedings. An election contest,
after all, involves not merely conflicting private aspirations
but is imbued with paramount public interests. (DE
CASTRO v. COMELEC)
COUNTER-PROTEST available to a proclaimed winner if
his election is protested.
A remedy available to a duly proclaimed winner in order to
protect ones lead. Allege also the precinct where your
opponent cheated.
KHO v. COMELEC
Counter protest must be filed within 5 days from receipt of
the copy of the protest. The period is not only mandatory
but also jurisdictional. It partakes the nature of a
counterclaim. So that the court is ousted of jurisdiction to
entertain a counter protest belatedly filed.
If a counter protest was belatedly filed, but was erroneously
admitted, the remedy is to file a motion to expunge the
counter protest from the records. If not expunged from the
record, file a petition for certiorari under Rule 65.

certiorari. Because sec.3, Art.IX-C refers to final order of


division of COMELEC which must first be resolve by
motion for reconsideration.
ELECTION OFFENSE
Q:
Who has jurisdiction over election offenses?
A:
RTC, except in cases where there is failure to
register to vote which shall be under the MTC.
Section 268, OEC Jurisdiction of courts. - The
regional trial court shall have the exclusive original
jurisdiction to try and decide any criminal action or
proceedings for violation of this Code, except those relating
to the offense of failure to register or failure to vote which
shall be under the jurisdiction of the metropolitan or
municipal trial courts. From the decision of the courts,
appeal will lie as in other criminal cases.
Q:
Who shall prosecute election offenses?
A:
COMELEC not the fiscal unless the latter is
deputized by the COMELEC
Q:
In case of public official, should COMELEC still
prosecute?
A:
COMELEC can still prosecute. It is not the
personality of the accused but the nature of the
offense.
INCLUSION/EXCLUSION PROCEEDINGS

DE CASTRO vs. COMELEC


Effect of death of the protestant in election protest
SC: Election protest involves both private and public
interest of the electorate. For this reason an election
protest survives the death of protestant and protestee.

- within the jurisdiction of MTC appealable to RTC


-RTC decision is not appealable
WHEN ELECTION PROTEST BECOMES MOOT
Defensor Santiago filed an Election Protest. Subsequently,
she ran for Senator and won. She abandoned her protest
when she ran for an office different frim that of the
President.
RULES ON APPRECIATION OF BALLOTS

REYES vs RTC of Oriental Mindoro


It is this decision of COMELEC en banc that may be
reviewed by SC by way of certiorari.
Sec.3, Art.IX-C
-All election cases including pre-proc cases shall
be first heard by COMELEC Division and MFR shall be
heard by COMELEC en banc.
GEMENTIZA v COMELEC
SC: If what is involve is a mere interlocutory
order of COMELEC, the party may go directly to SC by
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

(1) GENERAL RULE After the elections, the liberal


interpretation rule shall be applied. IN CASE OF
DOUBT, the rule in favor of the vote being valid
as to give effect to the will of the electorate shall
be followed.
(2) EQUITY OF INCUMBENT RULE 2 or more
candidates running for the same office, they bear
the same first name, surname or both and the
voter in his ballot wrote only either of the 2, the
vote shall be appreciated in favor of the
incumbent. If neither of them is incumbent, the
votes shall be considered stray votes.

75

(3) IDEM SONANS RULE or SAME SOUNDS RULE


If the name of the candidate is misspelled by
the voter, for as long as when it is pronounced, it
sounds like the name of the candidate, the vote
is counted in the latters favor UNLESS it can be
considered as marking, in which case the entire
ballot is invalid.
(4) DESCRIPTIO PERSONAE rule is the same in
idem sonans rule.

If penalty imposed is dismissal, demotion, removal or a


fine equivalent to more than 20 days salary: APPEAL is
AVAILABLE
If penalty is suspension of less than 30 days or fine not
equivalent to not more than 30 days of salary or anything
lower like censure, reprimand or admonition: APPEAL IS
NOT AVAILABLE.
PAREDES vs CSC

ADMINISTRATIVE LAW
Related Laws:
1. Civil Service Law
2. RA 6770 Ombudsman Act
3. RA 7160 Local Government Code
CIVIL SERVICE LAW
Q: When you want to file administrative complaint against
public officer, where shall you file the complaint (original
jurisdiction)?
A: Under Civil Service Law, Original jurisdiction is vested in
the Secretary or Head of Office, Agency or Bureau as the
case maybe.
Q: In LGUs where do you file?
A: In Local chief executive.
Appeal here goes to Civil Service Commission.
From CSC, the appeal goes to Court of Appeals by virtue
of its expanded appellate jurisdiction.
Q: Can you file directly against public official in CSC?
A: Yes. It has bot original and appellate jurisdiction over
admin cases of employees.
RA 6770 Ombudsman Act of 1989
-the
Ombudsman(In
its
Administrative
jurisdiction) has administrative disciplinary authority over all
public officers, whether elective or appointive, national or
local. Except impeachable officers, the members of
Congress and members of Judiciary.
-Ombudsman has concurring jurisdiction with
CSC. From decision of Ombudsman in its administrative
jurisdiction, the appeal is filed before the Supreme Court.
But this was later on declared unconstitutional by SC.
FABIAN vs DESIERTO
Henceforth, from the decision of Ombudsman the
appeal goes to CA and not in SC.
On Question of Availability of APPEAL:
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

SC: Appeal is not a constitutional right. So if there is no law


granting it, you cannot appeal. A reading of CSC law shows
that appeal available only to the party adversely affected by
the decision. Thus, the party affected here is the
respondent who was found guilty. In fact, if one is found
guilty and the penalty was suspension for not more than 30
days or a fine not exceeding 30 days salary, he may not
even appeal. With more reason that if he is not found guilty,
there is no more appeal there.
Remember in the administrative case, the real offended
party is the government. The complainant is plainly the
witness for the government.
This Paredes is now abandoned in the case of CSC vs
DACOYCOY***:
SC: by this ruling , we now expressly abandon
and overrule extant jurisprudence that the phrase party
adversely affected by the decision refers to government
employee against whom the administrative case was filed
for the purpose of disciplinary action, etc
Note: it was not the whole PAREDES case which was
abandoned. Only one aspect was abandoned. It is that part
the party adverse affected by the decision to the extent
the ruling has to be vacated.
National Appellate Board of NAPOLCOM vs Mamauag?
(August 2005)
Nature of Preventive Suspension- it is not penalty. It is
merely a measure of precaution so that EE who is charge
may be separated for obvious reasons.(Baje vs CA)
Yabot vs Ombudsman
Gervacio(?)

Vasquez;

Quimbo

vs

SC: the first 60 day suspension imposed by


Ombudsman while case is being investigated was not a
penalty, it was merely a preventive suspension. Second
suspension imposed after finding guilty is the penalty of
suspension.

76

Service of that preventive suspension may not be credited


by the penalty service of suspension that was later on
imposed as a penalty after finding him guilty of
administrative charge because 2 suspensions are different
in nature.

Book 4: Executive Branch


Book 5: Constitutional Commissions
Book 6: National Government Budgeting
Book 7: Administrative Procedure
- includes the Civil Service Law.

Layno vs Sandiganbayan
Two important definitions of Administrative Law
-

Indefinite suspension is equivalent to a penalty


not merely a preventive suspension. So that is
the preventive suspension is indefinite, it should
be nullified for being violative of due process of
law.
Note: preventive suspension is not an action in itself. There
must be a principal action. You have to ask, was it impose
as incident in an admin case or as an incident in criminal
case?
SEE page 100
IMPORTANT LAWS concerning Preventive Suspension:
1. Civil Service Law
2. RA 7160
3. RA 6770
4. Sec. 13, RA 3019 (In criminal cases)
Civil Service Law
While you are investigated administratively, you
may be preventively suspended for 90 days. After 90 days
if the investigation has not yet been terminated, you shall
be automatically be reinstated. However, if you contributed
in the delay the period of delay or certiorari will not be
included in the 90 day period.
- Promulgated by Pres. Aquino when she still had
legislative powers pursuant to Article XIII, Section 6 (The
incumbent President shall continue to exercise legislative
powers until the First Congress is convened).
-took effect in 1989, only after 2 years.
The Code is a general law and incorporates into a unified
document the major structural, functional and procedural
principles of governance and embodies changes in
administrative structures and procedures designed to serve
the people (Ople v. Torres).
- The Code is divided into seven books:
Book 1 : Sovereignty and General Administration
Book 2: Distibution of Powers of the Three Branches of the
Government
Book 3: Office of the President
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

1. Dean Roscoe Pound


it is that branch of modern law under the executive
department of the government, acting in quasi-legislative or
quasi-judicial capacity, interferes with the conduct of
individual for the purpose of promoting the well being of the
community.
2. Professor Goodnow
it is that part of public law which fixes the organization of
the government and determines the competence of the
authorities who execute the law and indicates to the
individual remedies for the violation of his rights.
In both definitions, the focus is on the executive
department acting in quasi-legislative and quasi-judicial
functions.
THREE IMPORTANT DOCTRINES
(1) DOCTRINE OF QUALIFIED POLITICAL AGENCY
The members of the cabinets are deemed alter
egos of the President so that their decision and acts
performed in the regular course of business are deemed
acts or decisions of the President UNLESS reprobated by
the President.
(2) EXHAUSTION OF ADMINISTRATIVE REMEDY
Whenever there is an available administrative
remedy provided by law, no judicial recourse can be made
until all such remedies have been availed of and
exhausted.
(3) DOCTRINE OF PRIMARY JURISDICTION OR PRIOR
RESORT
The courts cannot and will not resolve a
controversy involving a question, which is within the
jurisdiction of an administrative tribunal.
ADMINISTRATIVE AGENCIES

Generally, the function is EXECUTIVE

It implements or enforces
Ex: COMELEC - main function is to enforce the laws
relative to the conduct of election.
- This is an executive function.

But the law may vest the agency quasi-judicial

77

and quasi-legislative powers.


GOVERNMENT
PHILIPPINES
-

OF

THE

REPUBLIC

OF

THE

refers to the corporate governmental


entity through which the functions of
the government are exercised
throughout the Philippines including
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 COMPONENTS:
(1) Corporate governmental entity, through which the
functions of government are exercised throughout the
Philippines.
(2) Various arms through which political authority is made
effective in the Philippines.

Thus, LOCAL GOVERNMENTS are included in


the definition of GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES

Q. Are government owned or controlled corporations


(GOCC's) part of the definition of the GOVERNMENT
OF THE REPUBLIC OF THE PHILIPPINES?
A. It depends (1) If the GOCC is performing governmental function,
then it is part of the definition.
(2) If the GOCC is performing proprietary function,
then it is not part of the definition.
Q. When is a GOCC deemed to be performing
proprietary function? Governmental function?
A. If the purpose is to obtain special corporate
benefits, or earn pecuniary profit intended for private
benefit, advantage - the function is proprietary. If it is
in the interest of health, safety or the advancement of
public good and welfare affecting the public in general
- the function is governmental.
VARIOUS ADMINISTRATIVE AGENCIES
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
district unit therein. (Section

*LGU's are not under the control power of the President. It


(a) They are referred to as various arms through
falls under the general supervision of the President.
which political authority is made effective in the
DEPARTMENT
Philippines (ADMINISTRATIVE CODE)
refers to man executive department created
ARTICLE VII, Section 17
ARTICLE X, Section 4
(b) They are Control power of the President Power of General Supervision referred to as The President shall have control of all executive The President of the Philippines shall exercise general supervision
territorial and departments, bureaus and offices. He shall ensure over local governments xxx
political
that the laws be faithfully executed.
subdivisions of CONTROL is the power of the superior to direct the POWER OF GENEREAL SUPERVISION means to generally
the Republic of performance of a duty, restrain the commission of oversee, see to it that the local governments and their officials
the Philippines acts, review, revise, modify, reverse or alter the perform their functions in accordance with law (no more than that)
(Article
X, decisions and even to substitute the superiors own
Section 1, 1987 decision.
CONTROL is the very heart of the power of the
President. (Joson V. Torres)
CONSTITUTION).
by law. (Section 2[7] Introductory Provisions
The territorial and political subdivisions of the
E.O. 292)
Republic of the Philippines are the provinces, cities,
Ex: DOJ, DENR, DOH
municipalities and barangays. There shall be
autonomous regions in Muslim Mindanao and the
BUREAU
Cordilleras.
any principal subdivision or unit of a
department (Section 2 [8] Introductory
*Under the first component, whether the agency is an
Provisions E.O. 292)
incorporated or unincorporated agency of the
Ex: BIR under DOF, NBI under DOJ
government is included in the definitions.
OFFICE
refers to any major functional unit of a

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

78

department or bureau including regional


offices.
Ex: Regional Office of the Bureau of Lands.

framework for the internal policies of the attached


corporation or agency.
OTHER AGENCIES

3 IMPORTANT ADMINISTRATIVE RELATIONSHIPS


(Section 38, Chapter 7, Book IV)
(1) SUPERVISION AND CONTROL
Supervision and Control shall include authority
to act directly whenever a specific function is entrusted by
law or regulation to a subordinate; direct the performance
of duty, restrain the commission of acts; review, approve,
reverse or modify acts and decision of subordinate officials
or units; determine priorities in the execution of plans and
programs; and prescribe standards, guidelines, plans and
programs. Unless a different meaning is explicitly provided
in the specific law governing the relationship of particular
agencies, the word control shall encompass supervision
and control as defined in this paragraph.
(2) ADMINISTRATIVE SUPERVISION
Administrative Supervision which shall govern
the administrative relationship between a department or its
equivalent and regulatory agencies or other agencies as
may be provided by law, shall be limited to the authority of
the department or its equivalent to generally oversee the
operations of such agencies and to insure that they are
managed effectively, efficiently and economically but
without interference with day to day activities; or require the
submission of reports and cause the conduct of
management audit, performance evaluation and inspection
to determine compliance with policies, standards and
guidelines of the department, to take such actions as may
be necessary for the proper performance of official
functions, including rectification of violations, abuses and
other forms of mal-administration, and to review and pass
upon budget proposals such agencies but may not
increase or add to them.
ATTACHMENT
This refers to the lateral relationship between
the department or its equivalent and the attached agency
or corporation for purposes of policy and program
coordination. The coordination may be accomplished by
having the department represented in the governing board
of the attached agency or corporation either as chairman or
as a member, with or without voting rights.
If this is permitted by the charter, having the
attached corporation or agency comply with a system of
periodic reporting which shall reflect the progress of
programs and projects and having the department or its
equivalent provide general policies through its
representative in the board, which shall serve as the
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

INSTRUMENTALITY
refers to any agency of the National
Government, not integrated within the
department framework vested with 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 GOCC's. (Sec.2
[16], Introductory Provisions, E.O. 292)
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
principal powers of which are exercised by a
collective body, such as a commission,
board or council. (Sec. 2[4] Introductory
Provisions, E.O. 292)
Ex: PRC, NLRC, SEC, Insurance
Commission
CHARTERED INSTITUTIONS
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. Section 2 [12] Introductory Provisions,
E.O. 292)
Ex: BSP
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 fifty-one (51%)
percent of its capital stock xxx (Section 2[13]
Introductory provisions, E.O. 292)

79

Provided, the GOCC's may be further


categorized by the Department of Budget,
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.

These instrumentalities are NOT integrated to the


department framework.
They do not fall within the control power of the
president over the departments.
Under Article VII, Section 17, Instrumentalities
are not included.

Q. What are the administrative relationships involved?


A. (1) Regulatory Agencies - mere administrative
supervision, to oversee with no interference with the dayto-day operation.
Ex: the relationship between NLRC and
Secretary of Labor (Vertical relationship)
(2) Chartered Institution/GOCC - attachment, lateral
relationship involving planning and program coordination.
BEJA JR. V. COURT OF APPEALS
An attached agency enjoys more autonomy than
an agency placed under administrative supervision. It is
free from departmentalized control. Likewise, an agency
under administrative supervision has more autonomy than
an agency placed under supervision and control.
ILLUSTRATION

Legislative
Process
Supplemental
Power

Note: Not all administrative agencies perform all kind of


functions.
Ex: NLRC - exercises in general quasi-judicial
function
DOLE - the agency that administers labor law
SEC - has an executive function and quasilegislative; no more quasi-judicial
LTFRB - has quasi-judicial function
CSC - has an executive, quasi-legislative and
quasi-judicial power
QUASI-LEGISLATIVE POWER
Q. What do you mean by Quasi-legislative?
A. It refers to the power or authority of an administrative
agency to promulgate rules and regulations in order to
implement a law or a given legislative policy.

Jurisdiction Rules of

Interpretative
Contingent

Q. What kind of function?


A. Executive. These agencies belong to the executive
branch. They do not perform legislative and judicial
functions. However, these agencies may perform quasilegislative and quasi-judicial functions.
Ex: COMELEC - to administer all laws relative to
plebiscite, referendum, recall
CSC - to administer the Civil Service Law

Q. Other names?
A. (1) Rule-making power of an agency
(2) Power of Subordinate Legislation

Delegation of Powers
Conferment of Jurisdiction
QUASI- LEGISLATIVE ADMINISTRATIVE AGENCY
QUASI JUDICIAL
Administrative Regulations
Procedure

POWERS AND FUNCTIONS OF ADMINISTRATIVE


AGENCIES
Q. Generally, how will you describe the functions of an
administrative agency?
A. The functions of an administrative agency are to
enforce, implement, administer and execute laws.

Due
Contempt

QUASI-LEGISLATIVE POWER includes the


power to promulgate ADMINISTRATIVE
REGULATIONS or IMPLEMENTING RULES
AND REGULATIONS (IRR), which are pieces of
subordinate legislation called mini-laws, which
may take the form of circulars or memoranda, but
which cannot prevail over the laws.

Q. In what capacity did the Secretary of Labor acted in


promulgating the rules and regulations implementing the
Labor Code?
A. He acted in his quasi-legislative capacity.

Appeals

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

In exercising quasi-legislative functions, the

80

administrative agency is acting like Congress but


not to enact laws. They cannot have more
powers than Congress.

An administrative agency may not exercise this


quasi-legislative function unless it has been
expressly delegated to it. It is a delegated power.

DOCTRINE OF DELEGATION OF POWERS


GENERAL RULE: A power that has already been
delegated may no longer be delegated.
EXCEPTIONS: Instances of Permissible Delegation of
Powers:
(1) Delegation to the PEOPLE through plebiscite
and referendum
(2) Delegation of EMERGENCY POWERS to the
President
(3) Delegation to the President of TARIFF
POWERS
(4) Delegation to ADMINISTRATIVE BODIES
(5) Delegation to the LOCAL GOVERNMENT

The delegation to administrative bodies simply


deals with Quasi-Legislative powers.

Ex: Under Section 244, NIRC, The Secretary of


Finance, upon recommendation of the Commissioner
shall promulgate all needful rules and regulations for
the effective enforcement of the provisions of this
code.
-

This is a delegation to the Secretary of


Finance. Without this delegated
authority, the Secretary of Finance may
not exercise the power.

The delegation must be valid. Even if the power


has been delegated, if the delegation is invalid,
the exercise of the power becomes an abdication
of powers. Hence, it is not just a matter of
delegating the power. The delegation must be
valid.

TEST OF A VALID DELEGATION


(1) COMPLETENESS TEST: The law delegating the power
must be complete in all its terms and conditions when it
leaves the Congress, so when it reaches the delegates, it
will have nothing to do but to enforce it.
(2) SUFFICIENT STANDARD TEST: The law must offer a
sufficient standard, which are determinate, or at least
determinable to specify the limits of the delegates
authority, announce the legislative policy and specify the
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

conditions under which is to be implemented.


KINDS OF ADMINISTRATIVE REGULATIONS
(1) LEGISLATIVE Regulation
a. Contingent
b. Supplemental
(2) INTERPRETATIVE Regulation
Q. What is their distinction?
A. If the regulation is merely interpretative, it will not require
publication.

When Article 2 of the New Civil Code refers to


laws, these do not only refer to those enacted by
Congress but includes administrative regulations
promulgated by administrative bodies in their
quasi-legislative functions except those which are
merely internal or interpretative in nature.
(Tanada v. Tuvera)

Q. What are the REQUISITES OF A VALID


ADMINISTRATIVE REGULATION?
A. (1) Its promulgation must be authorized by the
legislature
(2) It must be within the scope of authority given by the
legislature
(3) It must be promulgated in accordance with the
prescribed procedure
(4) It must be reasonable
FIRST REQUISITE: its promulgation must be authorized by
the legislature - meaning, there is a valid delegation of
power.
SECOND REQUISITE: it must be within the scope of
authority given by the legislature.
in the exercise of the delegated authority to
promulgate administrative regulations, the
administrative agency cannot amend the
main law it seeks to implement. Otherwise,
the delegate will act in excess of authority.
TOLEDO v. COMELEC
Attorney Augusto Toledo, at the time of his
appointment was already 57 years old. Upon discovery,
COMELEC nullified his appointment on the ground that a
provision in the Civil Service Rules on Personal Actions
and Policies provides that no person shall be appointed or
reinstated in the service if he is already 57 years old,
unless the President of the Philippines, President of the
Senate, Speaker of the House of Representatives or the
Chief Justice of the Supreme Court, as the case may be,
determines that he possesses special qualifications and his
services are needed.

81

SC: The provision on 57 year old person in the Revised


Civil Service Rules under R.A. 2260 cannot be accounted
validity. It is entirely a creation of Civil Service Commission,
having no basis in the law itself that it was meant to
implement. The power vested in the Civil Service
Commission was to implement the law or put it into effect,
not to add to it, to carry the law into effect or execution; not
to supply perceived omissions in it. By its administrative
regulations, of course, the law itself cannot be extended;
said regulations cannot amend an act of Congress. The
Civil Service Commission is not the Congress. It may not
add anything to the Civil Service Law.
THIRD REQUISITE: it must be promulgated in accordance
with the prescribed procedure.
among the prescribed procedure is the
requirement of:
a. PUBLICATION

The clear objective of Article 2 of the NCC is to


give the general public adequate notice of the
various laws, which are to regulate their actions
and conduct as citizens. Without such notice and
publication, there would be no basis for the
application of the maxim ignorantia legis non
excusat. It would be the height of injustice to
punish or otherwise burden a citizen for the
transgression of a law which he had no notice
whatsoever, not even a constructive one.

GR: Publication is required not only to laws passed by


Congress, but includes administrative regulations,
which are issued in the exercise of quasi-legislative
power of the administrative agencies.
XPNs:
(1) interpretative regulation
(2) internal regulation
b. Furnish a copy of the administrative
regulation to the UP LAW CENTER
- Every agency shall file with the UP
Law Center three (3) certified copies of
every rule adopted by it
- there is nothing in the Administrative
Code of 1987 which implies that the filing of
the rules with the UP Law Center is the
operative act that gives the rules force and
effect.

- must pass the test of reasonableness


- absence of one of these, the administrative
regulation ought to be invalidated.

LAW ON PUBLIC OFFICER


What is a public office?
It refers to the right, authority or 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 sovereign power of the
sovereign function of the government, to be exercised by
that individual for the benefit of the public.
Elements: CD-DIP
1. It is created by law or authority of law
-the powers to create and abolish public office
are vested in the legislative
-power to abolish is not absolute, it must be done
in good faith
2. Possess a delegation of a portion of the sovereign
powers of the government, to be exercised for the benefit
of the public.
3. Powers conferred and duties imposed must be defined
directly of impliedly by the legislature.
4. Duties must be performed independently and without
the control of a superior power other than the law.
5. Must have permanence or continuity.

Is salary an element in public office?


No. It is merely an incident of public office.
Congress can pass a law eliminating salaries. As
a rule this cannot be questioned. If Congress can remove
the public office itself, then by all means. It may remove its
incidence. However, everything must be done on good
faith.

Characteristics of a public office: PHOP


1. Public office is a public trust

FOURTH REQUISITE: it must be reasonable


it must not be unreasonable, whimsical,
oppressive, confiscatory
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

It is merely entrusted to the public officer

82

Article XI (Accountability of Public Officer), Sec. 1


provides: Public Office is a public trust. Public Officers
and employees must at all means be accountable to the
people, serve them with utmost responsibility, integrity,
loyalty and efficiency, and act with patriotism, justice and
lead with modest lives.

Government of the Philippines or shall perform in said


Govt or any of its branches public duties as employer,
agent, subordinate, or official of any rank or class, shall be
deemed to be a public officer.
May a notary public be considered as a public officer?
Yes

2. It is not a heritable possession


Y? We live in a democratic and republican state.
Art. II, Sec. 26 provides: The State shall
guarantee equal access to opportunities for public service
and prohibit political dynasties as may be defined by law
(provision is not self-executing).

SELECTION
How is public officer chosen?
2 ways:
1. Election
2. Appointment

3. It is outside the commerce of man.


It cannot be the subject of a valid contract.
If it is a subject, the contract is void.
4. It is not a property.
It is therefore not protected or guaranteed by the
due process clause.
Ex: A is holding public office, Congress decided to abolish
it. A cannot complain that there was a violation of the due
process clause if he was not given an opportunity to be
heard, provided that the abolition is done in good faith.

DESIGNATION -refers to the imposition of additional


duties, usually by law, on any person already in public
office. It presupposes that a person is already appointed.
SEVILLA VS CA
Generoso Sevilla was appointed as Asst. City
Engineer of Palayan City, Nueva Ecija until he was
designated as the Acting Engr of Cabanatuan City. After
the EDSA Revolution, Sevilla was ousted when the City
Mayor of Cabanatuan appointed Nerito Santos as the new
City Engineer. This was later confirmed by the Ministry of
Public Works and Highways and approved by the CSC.
This was questioned by Sevilla in an action/petition for Quo
warranto filed against Santos.

ABOLITION VS REMOVAL
In abolition, what is abolished is the office itself,
while in removal, it is the occupant that is removed, but the
office remains.

SC: The petition is devoid of merit. An acting appointment


is merely temporary, one which is good only until another
appointment is made to take its place.
APPOINTMENT VS DESIGNATION

Ex: A is holding a public office, he was removed. In this


case, A may validly invoke his security of tenure. He can
only be removed for a just and valid cause and there must
be an observance of due process.
PUBLIC OFFICER
Who is a public officer?
A public office is one who holds a public office.
Any person, who by direct provision of law,
popular election of by appointment of competent authority,
shall take part in the performance of public function on the

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Appointment selection by the proper authority


of an individual who is to exercise the functions of an office.
Designation connotes merely the imposition of
additional duties upon a person who is already in the public
service by virtue of an earlier appointment or election. A
mere designation does not confer upon the designee
security of tenure in the position or office which he
occupies only in an acting capacity.
Nature of designation
Essentially temporary and not entitled to security
of tenure

83

APPOINTMENT in focus
Nature of appointment
1. Executive on character
2. Discretionary

No elective official shall be eligible for


appointment or designation in any capacity to any public
office or position during his tenure. This prohibits elective
officers from being appointed or designated to any public
office. The only exception is when the public office is to be
held in ex-officio capacity.

LUEGO VS CSC
Felimon Luego was appointed by Mayor Solon as
Administrative Officer II. His appointment was described
as permanent, but CSC approved it on a temporary basis
subjecting it to the final action to be taken on the protest
filed by Felicula Tuazo. Subsequently, CSC found Tuazo to
be better qualified than Luego and directed that Tuazo be
instead appointed. Luego questioned this.
SC: CSC has no authority to revoke said appointment
simply because it believed that Tuazo was better qualified,
for that would have constituted an encroachment on the
discretion vested solely in the City Mayor.
Appointment is essentially a discretionary power and must
be performed by the power on which it is vested. The only
condition being that the appointee should possess the
qualification 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.
LUEGO DOCTRINE:
This is a political question involving consideration
of wisdom which only the appointing authority may
determine. For as long as the appointee has the minimum
requirements, the CSC and the SC are powerless to render
that a better one is more qualified.

2. Doctrine of Separation of Powers


Congress encroached on the power of
the President to appoint. The President was not given an
option at all. The Appointment was limited to the Mayor of
Olongapo. The heart or core of appointment is the power
to choose. Also, the nature of appointment is discretionary,
not a ministerial act.

Hence, when the Congress clothes the President with the


power to appoint an officer, it cannot at the same time limit
the choice of the President to only one candidate. Once
the power of appointment is conferred on the President,
such conferment necessarily carries the discretion on
whom to appoint.
NEXT IN RANK RULE
Where can you find the said rule?
Civil Service Law
What is the next in rank rule?
If there is a vacancy in a government office that
ought to be filled up by promotion, the person holding the
position next thereto shall be considered for promotion.

REMONTE VS CSC:
The head of an agency who is the appointing
power is the one who is most knowledgeable to decide who
can best perform the function of an office.
FLORES VS DRILON
When the US-Phils treaty expired, Congress
enacted RA 7227, creating the SBMA. The Charter
provided that for the first year of operation, the President
shall appoint the Mayor of Olongapo City as head chairman
and CEO of SBMA. Thus, then Mayor Gordon assumed
the positions.
SC: The Charter violates:
1. Art IX-B, Section 7, part 1:

Q: If the next to the Head Chief Accountant is the Deputy


accountant and the third is the Administering Officer IV,
then the office of Chief Accountant became vacant and the
then Deputy accountant and Administering Officer IV
applied, assume that another Chief Accountant applied and
was appointed, can the Deputy Accountant claim that there
was a violation of the next in rank rule?
A: No. The next in rank rule applies only in case of
promotion. What is involved here is a mere transfer, a
lateral movement involving same rank and position.
In case of a promotion, vertical movement from lower to a
higher position.
Q: What if the one that was appointed was the
Administering Officer, can Deputy Accountant complain?

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

84

A: Yes, because it was filled by a promotion.

Q: Can the Deputy Officer claim that he should be the one


to be appointed?
A: No, appointment is discretionary.

position next in rank thereto shall be considered for


promotion.
The one who is next in rank is only entitled to preferential
consideration.
The next in rank rule is not absolute. Even in promotion, it
can be disregarded.

Rules:
1. It applies only in cases of promotion.

PRINCIPLE OF VACANCY

2. Even in promotions, it can be disregarded for sound


reasons made known to the next in rank as the concept
does not import any mandatory or preemptory requirement
that the person next in rank must be appointed to the
vacancy.

Q: Jose, an employee working for ten years already, was


surprised to learn that Pedro replaced him. Jose was
removed. But the CSC ordered the reinstatement of Jose
which became final. Can Pedro validly complain that there
was a violation of security of tenure?

3. The appointing authority is allowed to fill vacancies by


promotion, transfer, reinstatement, etc.

A: No. This is because there was no vacancy, hence


security of tenure did not attach.

4. There is no legal fiat that a vacancy must be filled only


by promotion, the appointing authority is given wide
discretion to fill a vacancy from among several alternatives
provided by law.

2 PRINCIPLIES:

5. One who is next in rank is entitled to preferential


consideration for promotion to higher vacancy BUT it does
not necessarily follow that he and no one else can be
appointed.

2. One who is illegally dismissed from office is, by fiction of


law, deemed not to have vacated his office. His security of
tenure did not attach.

ABILA VS CSC
When Amado Villafuerte retired from his position
as Admin Officer IV in DOH-Qeuzon City, the Officer-inCharge appointed Alex Abila, who had been the Acting
Asst. Civil Security Officer, as his successor. This was
questioned by Florentina Aleria, the Admin Officer III of
DOH.

SC: A vacant position in the CSC may be filled by


promotion, transfer of present employees, reinstatement,
re-employment or appointment of outsiders who have the
necessary eligibility. The next in rank rule invoked by the
CSC to justify its choice of Eleria over Abila APPLIES
ONLY when a vacancy is filled by promotion, a process
which denotes a scalar ascent of an officer to another
position higher in rank or salary.
Even of the vacancy here had been filled by promotion
rather by a lateral transfer, the concept of next in rank rule
does not import any mandatory or preemptory requirement
that the person next in rank must be appointed to the
vacancy. What the Civil Service Law provides is that if the
vacancy is filled up by promotion, the person holding the
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

1. A person no matter how qualified cannot be appointed


to an office which is not vacant.

QUALIFICATION TO PUBLIC OFFICE


The power to prescribe qualifications to public office is
vested with the LEGISLATURE.
THREE IMPORTANT LIMITATIONS ON THE PART OF
THE CONGRESS:
1. If the qualifications are prescribed by the Constitution
itself in an exclusive manner, then the Congress may not
add nor subtract from the enumerated qualifications.
2. The qualification prescribed must be germane to the
functions to be performed.
3. The qualification must be expressed in general terms
only.
TWO SENSES OF QUALIFICATION:
1. As an act
2. As an endowment
QUALIFICATION AS AN ACT
-consists in taking of an oath

85

-in case of an accountable officer (Ex: Treasurer), consist


in the posting of a bond.

his title is imperfect, he runs the risk of not receiving a


salary that attaches to the office.

Constitutional provisions related to it:

EXCEPTIONS:

1. Art. 7, sec. 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 XXX.

1. There is no de jure officer claiming for the salary OR

2. Art IX-B, Sec. 4 All public officers and employees shall


take an oath or affirmation to uphold and defend the
Constitution.

FLORES VS DRILON

3. Art. XV, Sec. 5, par. 1 All members of the armed


forces shall take an oath or affirmation to uphold and
defend the Constitution.

2. Assumption was made in good faith.

SC: Gordon should not be made to reimburse for such


emoluments. Otherwise the govt will be unjustly enriched
by his services. Gordon was a de facto officer.
Prescriptive Period to attack a colorable title:

Q: A public officer was appointed/elected. Then he


assumed the office but failed to take an oath. He
nonetheless preformed his duties. Are his acts valid?

1 year from the disposition from office. After 1


year, the de facto officer will ripen into a de jure
one.
REQUIREMENTS OF A DE FACTO OFFICERSHIP

A: Yes, insofar only as third persons are concerned and


the general public relied on the said acts. He is a de facto
officer.

1. Existence of a de jure office (NO such thing as a de


facto office, office is either valid or void)

DE JURE VS DE FACTO VS USURPER/INTRUDER

2. Color of title.

De Jure Officer One who has lawful title

3. Actual physical possession of the office.

His acts are valid

QUALIFICATION AS AN ENDOWMENT

His title may not be questioned

- possession of attributes to be qualified

De Facto Officer One who is in actual possession but


only has a colorable title. His title is imperfect.

- refers to Citizenship, Age, Civil service eligibility,


Education, Residence (CACER)

His acts are valid insofar only as


third persons are concerned and the general public relied
on the said acts.

- qualifications are continuing

His title may only be questioned


directly in a quo warranto proceedings.

a. citizenship
- this is the most important
- only Filipinos may hold public office
b. residence

Intruder/Usurper No Title but in actual possession


His acts are entirely void
His acts may be questioned
collaterally or directly.
Q: Is a De Facto Officer entitled to salary?
A: As a rule, No. This is because he is not allowed to
benefit from his acts. Otherwise it will encourage people to
usurp other office. When he assumes office knowing that

- only in elective office as an elective official, he/she


must serve in a particulare constituent
In Civil Law, residence and domicile are different. In the
said law, a person may only have several residences but
may only have one domicile. In Ploitical Law, particularly in
election law, residence and domicile are the same.
3 CLASSES OF DOMICILE
1. Domicile of Birth
2. Domicile of Choice

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

86

3. Domicile by Operation of Law


MACALINTAL VS COMELEC
At any given point, a person may only have one domicile
Domicile of Origin
-

this is acquired by any person at birth


it is the domicile of the childs parents and not
necessarily the place of birth.

Domicile of Choice
-

take place if one leaves his original domicile, he


was able to establish his physical presence in
another locality.

Domicile by Operation of Law


-

domicile law attributes to a person; independent


to his intention or residence
EX: woman (resident of Cabanatuan City)
marries husband (resident of Pasig City), woman
will adopt the residence of husband.

IMELDA ROMUALDEZ-MARCOS VS COMELEC


Imelda run as a congresswoman in Leyte. For the resident
requirement, she should be a resident thereof for a period
of not less than 1 year immediately preceding the election.
Her qualification was questioned on the ground that under
the Civil Code, when the woman gets married, she gets the
residence of the husband by operation of law. Pres.
Marcos was a resident of San Juan. At that time, Family
Code does not exist yet.
SC: With the death of her husband, her adoption of the
San Juan residency is lost.
CAASI VS COURT OF APPEALS
Miguel Merito ran for mayor in Bolinao,
Pangasian. A disqualification case was filed against him by
Mateo Caasi, a rival candidate for the position on account
of his being a green cardholder. His defense was that (1)
he was voted by the people, hence the defect was cured.
Also, he alleged that (2) he never really intended to live
there permanently, for all he wanted was a green card to
enable him to come and go to the U.S. with ease because
he had to undergo a regular check-up.

SC: Argument No.1) he was voted by the people, hence


the defect was cured:
Merito was disqualified. People of Bolinao
cannot amend the Omnibus Election Code (OEC). His
election thereto was null and void. The law applicable to
him is Sec. 68 of the OEC Any person who is a
permanent resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office under this
Code, UNLESS such person has waived his status as
permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in
the election laws.

To be qualified to run for any elective office in the


Philippines, the law requires that the candidate who is a
green cardholder must have waived his status as a
permanent resident or immigrant of a foreign country.
Therefore his act of filing a certificate of candidacy for
elective office in the Philippines did not of itself constitute
as a waiver of his status as a permanent resident of U.S.
The waiver of his green card should be manifested by
some act or acts independent of and done prior to filing
his candidacy for elective office in this country. Without
such waiver, he was disqualified to run for any elective
office.
The fact was that he is a green cardholder and
has acquired the right to reside in other country. The
renunciation of the green card requires a separate act; the
filing of the certificate of candidacy is not renunciation.
What is involved in this case is not citizenship but rather
permanent residency in another country.
SC on Argument No (2) -- He never really intended to live
there permanently, for all he wanted was a green card to
enable him to come and go to the U.S. with ease because
he had to undergo a regular check-up:
Even if he never really intended to live there
permanently, this court will not allow itself to be a party to
his duplicity by allowing him to benefit from it and giving
him the best of both worlds to speak.

OTHER QUALIFICATIONS AS AN ENDOWMENT


c). age
--must be possessed on the day of the election
d). education
--a qualification under Civil Service Law

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

87

--true only to appointive officials, in case of elective official,


minimum requirements are that he must be able to read
and write

Q: What offenses?

e). civil service eligibility

A: Those sentenced by final judgment

Religious Affiliations
--cannot be a valid disqualification to hold public office

1. Moral turpitude
2.
Punishable by one year or more of
imprisonment

--No religious test shall be required for the exercise of civil


or political rights
DELA TORRE VS COMELEC
Political Affiliation

Violation of Anti-Fencing Law constitute an


offense involving moral turpitude.

G.R. Not a valid qualification


Xpn: Can be a valid qualification under:
1. Party-list system
2.
Appointments
3.
Sanggunian

2. Those removed from office as a result of an


administrative offense:

Membership in the Commission on


LINGATING VS COMELEC
In case of permanent vacancies in the

DISQUALIFICATIONS:
Sec. 40, LGC. Disqualifications. The following persons
are disqualified from running for any elective local position:
1. Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable by
one year or more of imprisonment within two years after
serving the offense;
2. Those removed from office as a result of an
administrative offense;
3. Those convicted by final judgment for violating an oath
of allegiance to the Republic;

The administrative case must have attained


finality for the disqualification to apply. If still pending
appeal or on certiorari, disqualification is not applicable.

If the penalty is removal disqualification shall apply


If the penalty is suspension disqualification not applicable
by express provision of Sec. 66, LGC, as long as he meets
the qualifications required.

4. Those with dual citizenship:


- this refers to dual allegiance (Mercado vs Manzano)

4. Those with dual citizenship;


5. Fugitives from justice in criminal or non-political cases
here or abroad;

5. Fugitives from justice in criminal or non-political cases


here or abroad:

6. 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

MARQUEZ JR VS COMELEC

7. The insane or feeble-minded.


1. Within two years after serving the offense:
-partial disqualification
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

88

In May 1995 election, Rodriguez ran for


Governor (Quezon Province). He won. Marquez, a
defeated candidate, filed a disqualification case against
Rodriguez under sec. 40(e) after finding out that Rodriguez
had criminal charges against him of insurance fraud or
grand theft of personal property.
Contention of Rodriguez Not fugitive from justice
because he is not yet convicted by final judgment.

three consecutive terms in an elective local office, he must


also have been elected to the same position for the same
number of times before the disqualification can apply.

TWO POLICIES EMBODIED HERE:


1. To prevent the establishment of political dynasties
2. To enhance the freedom of choice of the people

SC: No. Fugitive from justice applies not only to those


convicted by final judgment and who absconds to evade
punishment BUT also to one, where a valid criminal
information is already filed and he absconded to evade
jurisdiction.
RODRIGUEZ VS COMELEC
Although there was indeed fraud insurance case
before the California court, HE IS NOT A FUGITIVE FROM
JUSTICE because the cases were filed 5 months after he
has returned to the Philippines, the controlling factor was
the intent to evade jurisdiction. He could not have the
intent to evade because there is no information yet.

LIMITATION ON THE TERM OF THE ELECTIVE


OFFICIALS
Art. X, 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 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.

Term: 3 years except barangay officials


Can serve for three consecutive terms

2 CONDITIONS for the Limitation to Apply (BOTH must


concur):
sec.8, Art.X
1.
The local official must be elected for three
consecutive terms for the same position.
2. He has fully served the 3 consecutive terms.

If resigned: voluntary renunciation, not considered as an


interruption from office, limitation will apply
If suspended:
renunciation

interruption from office involuntary

Q: Mayor was elected in 1988. He ran and won again on


1992 and 1995 election. But there was an election protest
regarding the 1995 election. On March 1998, he was
removed because of a COMELEC decision. Is he qualified
to run in the 1998 election?
A: YES. He was only elected twice since he eventually
lost in the election protest. In 1995, he is merely a
presumptive winner. There is a failure of the two conditions
(Mayor LONZANIDA of Zambales VS COMELEC).

BORJA VS COMELEC

Read: Francis Ong vs Alegre and Comelec, 01-23-06

Borja was first elected as Vice Mayor in 1988 at


Pateros. In 1989, the Mayor died, so he replaced the
Mayor. During the 1992 elections, he ran and won. In
1995, he again ran and won. In 1998, he ran again. His
qualification was questioned.

Q: X was elected Mayor in 1992 election. In 1995 and


1998 elections, he ran and won again. In December 2000,
as a result of an administrative case, he was removed. He
did not appeal. The administrative case becomes final. Is
he qualified to run in the 2001 election?

SC: Borja is qualified. The term limit for elective local


officials must be taken to refer to the right to be elected as
well as the right to serve in the same elective position.
Consequently, it is not enough that an individual has served

A: NO! He is disqualified to run because of Sec. 40 of the


LGC and not because of Art. X, Sec. 8.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

89

LINGATING VS COMELEC The administrative case


must have attained finality before the disqualification to
apply. If still pending appeal or certiorari, disqualification is
not applicable.

Q: X was elected in 1992. In 1995 and 1998, he ran and


won again. In 2000, as a result of an administrative case,
he was removed but he has able to appeal seasonably. In
May 2001, he filed his certificate of candidacy. The
administrative case was not yet decided. Is he qualified?
A: Yes he is qualified to run.

MENDOZA VS COMELEC, 12-17-02, En banc, GR149736


*READ
In 1992, Tet Garcia won as governor. In 1993,
Recall election was made, Ting Roman won as governor.
In 1995 and 1998 elections, Roman won again. In 2001,
Roman ran again. Is he qualified to run?

SC: He is qualified. Recall term is not a full term. Looking


at the Constitutinal records and the Constitution, it can be
seen that they both envision continuance and uninterrupted
service of term. The service of recall term should not be
counted in applying the disqualification.

Q: What happens to his pending appeal?


A: It becomes moot and academic because of the Doctrine
of Condonation. The rationale for this is that when the
electorate puts him back to the position, it is presumed that
they did so with knowledge of his life, character and past
mistakes.

SOCRATES VS COMELEC (Nov. 12, 2002, En


Banc)***Read
Hagedorn was elected as Mayor in 1992, 1995
and 1998 elections. In the next election, he ran as
governor. However, he lost. Meanwhile, the one elected
as Mayor of Puerto Princesa was Socrates. Socrates term
started June 30, 2001. After a year, a resolution calling for
a special election was passed. On the said special
election, Hagedorn filed his certificate of candidacy. His
qualification was questioned.

SC: He is qualified. The three term limit is found in Art. X,


Sec. 8 and reiterated in Sec. 43, par. B of LGC. WHAT IS
PROHIBITED IS IMMEDIATE RE-ELECTION to the SAME
OFFICE for a FOURTH CONSECUTIVE TERM. In this
case there is an intervening date.

Q: With this ruling, has the ruling in Socrates been


abandoned?
A: No. What has been abandoned in Socrates was a
mere Obiter Dictum. No actual controversy yet.
Service of recall term which is less then 3year will not
constitute one full term in applying the disqualification.
Aldovino vs COMELEC, 12-23-09
-During his 3rd term he was placed under preventive
suspension. On the 4th term he won.
SC: There was no interruption. What constitutes
interruption to the term is lost of title to the office.
Bolos vs Comelec, 03-17-09
During 3rd term he ran as kagawad while being punong
barangay.
SC: there was no interruption. Tantamount to voluntary
renunciation of office as punong barangay.
Montebon vs Comelec 04-09-08
Municipal Councilor for 3 consecutive terms,
(1998,2001,2004)

Q: What if in 2004 and 2007 he wins again, then in 2010,


he wants to run again, is he qualified to run?

In 2001 Vice Mayor retired and he was the


highest ranking councilor so he took over. 2007 he ran for
councilor.

A: SC in the same case said that: The service of a recall


term shall constitute one full term. Reason: Elected official
in a recall election should know that the service of recall
term shall constitute one full term. (OBITER DICTUM)

SC: Montebon is qualified because there was an


interruption when he assumed the position of Vice Mayor. It
was not voluntary renunciation so by operation of law he
has to assume as Vice Mayor.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

90

CIVIL SERVICE COMMISSION


One of the Constitutional Commissions
It is the central personnel agency of the
government tasked to administer all the civil service.
COMPOSITION AND QUALIFICATION
Art. IX-B, Sec. 1(1) The civil service shall be administered
by the Civil Service Commission composed of a Chairman
and 2 Commissioners who shall be a natural born citizens
of the Philippines, and at the time of their appointment, at
least 35 years of age, with proven capacity for public
administration, and must not have been a candidates for
any elective position in the elections immediately preceding
their appointment.

No less than 7 members of the Cabinet are members of the


BSP. In short, there is so much government exposure.
They are governed Civil Service Laws and not the Labor
Code.
CAMPOREDONDO VS NLRC
Baltazar Camparedondo was a chapter
administrator of PNRC. During a field audit, he was found
short. His request for a re-audit by an independent auditor
of his account was denied. Thereafter, he filed with NLRC
a complaint for illegal dismissal. PNRC moved to dismiss
the complaint on the ground of lack of jurisdiction over the
subject matter, alleging that it is embraced within the Civil
Service rules and regulations, being a GOCC with an
original charter.
Camporedendo questioned this
contending that its charter was already amended corverting
it to a public corporation.

SCOPE
Art. IX-B, sec. 2(1) The Civil Service embraces all
branches, subdivisions, instrumentalities and agencies of
the government, including the GOCC with original charters.

TEST: WITH OR WITHOUT ORIGIANL CHARTERS


(1) If a GOCC was created by special law, it is with original
charter

SC: Philippine National Red Cross is a GOCC with an


original charter under R.A> 95, as amended. The test to
determine whether a corporation is government owned or
controlled or private in nature is simple. Is it created by its
own charter for the exercise of a public function or by
incorporation under the general incorporation law? Those
with special charters are government corporations subject
to its own provisions and its employees are under the
jurisdiction of CSC and are compulsory members of the
GSIS. The PNRC was not impliedly converted to a private
corporation simply because its charter was amended.

- The special law creating it is the charter


- It is governed by the Civil Service law
- In case of illegal termination, it is under the
jurisdiction of the regular courts
Ex: DBP, Land Bank, PCSO, PAGCOR, GSIS

(2) If a GOCC was incorporated pursuant to the General


Corporation, it is without original charter
-It is nor governed by Civil Service Law
-In case of illegal termination, jurisdiction is with
the Labor Arbiter or NLRC, hence governed by Labor
Code.

BOY SCOUTS OF THE PHILIPPINES VS NLRC


The BSP is an instrumentality attached to DECS
and no less than the President himself is the Chief Scout.
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

KINDS OF APPOINTMENTS
1. Permanent extended to one who possesses all the
qualifications including civil service eligibility.
2. Temporary - extended to one who possesses all the
qualifications but without the civil service eligibility.

The law requires publication of all vacant positions in the


government. This is mandatory so that all eligible can
apply.

Positions that need not be published include PRIMARILY


CONFIDENTIAL POSITIONS, which are co-terminus with
the appointing authority.

Duration of Temporary Appointment

91

one year
but it may even be shorter

3. Limited to the duration of a


particular project for which the purpose for employment
was made.

Q: X was given an extended temporary appointment to a


given office. In the meantime, A took the Civil Service
examination and passed. Is the appointment status of X
automatically converted to permanent?

Q: How do you classify position of members of the


Sangguniang Panlalawigan?

A: NO! There is a need for a new appointment.

A: Non-career. It is an elective office.

Regular employee used in Labor Code only, not in Civil


Service

All elective officials occupy non-career positions since no


examination is required to be taken and the tenure is
limited to a period specified by law.

CLASSIFICATION OF __(DI Ko TALAGA MABASA,


MALABO COPY KO)___IN CIVIL SERVICE

HIGHLY TECHNICAL POSITIONS


-

1. Career Service
2. Non-career Service

One which requires the possession of skill or


training in the supreme or superior degree
Ex: Scientist in the government service
Professors in the state universities

BAR Question:
What are the characteristics pf career positions as well as
non-career positions?

Q: How do you classify highly technical positions?


A: Career

1. Career
a. Entrance is based on merit and fitness to be
determined based on competitive examination or it is
based on highly technical qualifications;
b. There is security of tenure;

Q: Are engineers in the government occupy highly


technical positions?
A: NO! They may possess technical skills or training but
not in the supreme or superior degree, hence non-career.

c. Opportunity for advancement to a higher


position.
PRIMARILY CONFIDENTIAL POSITIONS
2. Non-Career

Q: What are their classifications?

a. Entrance is based other than those tests of


merit and fitness utilized for the career service;

A: Non-Career. There tenure is co-terminous with that of


the appointing authority or subject to his pleasure.

b. Tenure is:
1. Limited to a period specified by law;
2. Coterminous with that of the
appointing authority or subject to his pleasure; or

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

DEFINITION OF PRIMARILY CONFIDENTIAL POSITIONS


It is one which denotes not only confidence in the
aptitude of the appointee for the duties of the office bur
primarily close intimacy which insures freedom from the
intercourse without embarrassment from misgivings or
betrayals of personal trust or confidential matters of state.

92

GRINO VS CSC
The position of a provincial attorney is both highly
technical and primarily confidential position. But its
predominant feature is primarily confidential. Hence, he
can be removed based on loss of trust or confidence.
However his staff is highly technical. He holds the position
co-terminous with the pleasure of the appointing authority.
There is no removal but only expiration of term.

When pleasure becomes displeasure, the term becomes


fixed and automatically expires. One who is holding a
primarily confidential position, who was removed from in
the ground of loss of trust and confidence cannot complain
on the ground that there was a violation of his security of
tenure.

PROXIMITY RULE
- This is the test to determine whether or not the position is
primarily confidential or not. The distance between the
positions of the appointing authority and the employee is
considered.

was chosen by the appointing authority was the latters


belief that he can share a close intimacy with the occupant
which ensures freedom of discussion without fear of
embarrassment or misgivings of possible betrayal of
personal trust or confidential matters of the State.

Art. IX-B sec. 2 par. 2 Appointment 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. (It has
nothing to do with the classification of his position as career
on non-career).

ADMINISTRATIVE DISCIPILINARY CASES

Q: Who has jurisdiction over administrative disciplinary


cases?
A: Under the Civil Service Law:
ORIGINAL: CSC or head of office, agency or
bureau
APPEAL: CA under its expanded jurisdiction

CSC VS SALAS
Salas was an employee of PAGCOR, a GOCC
with an original charter. He was a supervisor of the dealers
in the casino. He was suspected in engaging in proxy
betting. There was a discreet investigation conducted of
his act. He was later removed on the ground of loss of
trust and confidence. His defense was that he cannot be
removed from office on the ground that under the
Constitution, no employee of the Civil Service shall be
removed except for causes provided by law. On the other
hand, PAGCOR contends that under its charter, all
positions are primarily confidential and hence may be
removed in the ground of loss of confidence. CSC affirmed
his dismissal. On appeal, CA reversed and applied the
proximity rule.

SC: Applying the proximity rule, Salas cannot be removed


on the said ground. The position of Salas as a supervisor
is too remote from the appointing authority, the Chairman.
There are so many intermediaries between them.

The occupant of a particular position could be considered a


confidential employee if the predominant reason why he
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

Secretary/head of bureau-CSC-CA
CSCCA

Q: Can you bring an administrative case directly with the


CSC?
A: Yes. CSC has original and appellate jurisdiction. Under
the Civil Service law, a complaint against a government
official or employee may be filed directly to the CSC (not
only to the heads of office).

Q: Under LGC, where do you file?


A: Local Chief Executive

OMBUDSMAN ACT OF 1989 (RA 6770)


-

the charter of the Ombudsman

93

under this law, the Ombudsman has disciplinary


authority overall public officers whether
appointive or elective, national or local, except:
(1) Impeachable officers Pres, VP, Members of
SC, ConCon, Ombudsman (Justices of the
Sandiganbayan not included).
(2) Members of Congress
(3) Members of the Judiciary

Appeal from the decision of Ombudsman in an


administrative case
Under the Ombudsman Act - Directly to the
Supreme Court (Remember, the Constitution provides that
no law shall be passed increasing the appellate jurisdiction
of the SC without its advice and concurrence.)

d. reprimand;
e. admonition
EXCLUSIO UNIUS EST INCLUSIO ALTERIUS The
suspension against Lapid is clearly not among those
enumerated as immediately executory. The clear import of
these provisions, taken together, is that all other
decisions of the Office of the Ombudsman which impose
penalty outside than those which are enumerated are not
final and unappealable, hence not immediately executory.
An appeal timely filed will suspend or stay immediate
execution of the decision.

APPEALS IN ADMINISTRATIVE DISCIPLINARY CASES


Q: Is appeal available in administrative disciplinary cases?
A: Depends on the penalty imposed
1. If the penalty is:
a. demotion;

FABIAN VS DESIERTO
Direct appeal to the SC has been declared
unconstitutional. Its enactment was in violation of Art. VI
Sec. 30 of the Constitution which provides that no law shall
be passed increasing the appellate jurisdiction of the SC
without its advice and concurrence. The provision in the
Ombudsman Act has the effect of increasing the appellate
jurisdiction of the SC without its advice and concurrence.

b. dismissal;
c. suspension for more than 30 days or
a fine equivalent to more than 30 day salary;
Appeal is available.

2. If the penalty is:


Now, the rule is: OmbudsmanCA

a. suspension for not more than 30


days;
b. fine not more than 30 days salary;

GOVERNOR LITO LAPID VS CA


An administrative case was filed against Lapid by
the Ombudsman. After investigation, it was found that he
was guilty. The penalty was suspension from office for one
year without pay. He was able to appeal seasonably.
Ombudsman Desierto wanted to execute the decision
pending appeal.
SC: Under the Ombudsman Act, only the following cases
are final and executory:
1. Provisional orders of the Ombudsman;
2. Decision where the penalty is:
a. suspension for not more than 30 days;
b. fine not more than 30 days salary;
c. censure;
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

c. censure;
d. reprimand;
e. admonition
Appeal will not lie; the decision is final and executory
by express provision of the law.
Appeal is not a constitutional right but merely a
statutory right.
Why? Not part of the Constitution
Q: X was charged administratively, she was later on
exonerated. May the complainant appeal?

94

A: No. However, with respect to the meaning of party


adversely affected, the ruling under Paredes has already
been abandoned. Hence the answer now is YES.
PAREDES VS CSC
Appeal is not a constitutional right but merely a
statutory right. A reading of the Civil Service Law will tend
to show that appeal is available only to the party adversely
affected by the decision. A further reading of the law, the
party adversely affected by the decision is the respondent
who was found guilty. In fact, even if he was found guilty
but the penalty was suspension or fine for not more than 30
days, appeal cannot be made because the decision in such
a case becomes final and executory. With more reason that
if he is exonerated, no more appeal. In an administrative
case, the real offended party is the government; the
complainant is a mere complaining witness so that he has
no personality to pursue the appeal. Hence, party
adversely affected was limited to the defendant.

CSC VS DACOYCOY
Dacoycoy was the head of a government
vocational school in Samar. Two of his sons were
extended permanent appointment under his administrative
supervision although he was not the one who neither
appointed nor recommended them. A case was filed
against him for violation of the law on nepotism. CSC found
him guilty. The penalty was dismissal.
As the party
adversely affected, he appealed to CA. CA exonerated
him. If we will follow the Paredes ruling, there is no more
appeal and the complainant cannot appeal because is
merely a complaining witness.
SC: CSC can appeal because it was their decision that
was reversed by the CA. To this extent only, CSC became
the party adversely affected. By this ruling, the Paredes
Doctrine, up to this extent, is abandoned. The phrase
party adversely affected refers to the government
employee against whom the administrative case is filed for
the purpose of a disciplinary action which may take the
form of suspension, demotion in rank or salary, etc. and not
included are the cases where the penalty imposed is
suspension for not more than 30 days or fine in an amount
not exceeding 30 days salary. (PAREDES VS CSC)

Nature: Not a penalty. It is imposed while the case is


being investigated or pending appeal. It should be
distinguished from dismissal or suspension which may only
be imposed upon investigation and subsequent finding of
guilt.

BEJA, SR VS CA
Preventive suspension is not a penalty by itself; it
is imposed only during the pendency of an administrative
investigation. It is merely a measure of precaution so that
the employee who is charged may be separated for
obvious reasons, from the scene of his alleged
misfeasance, ehilr the same is being investigated. Thus,
preventive suspension is distinct from the administrative
penalty of removal from office such as the one mentioned
in Sec 8 (d) of PD 807. While preventive suspension may
be imposed on a respondent during the investigation of the
charges against him, the removal from office is a penalty
which may only be meted out upon him at the termination
of the investigation or the final disposition of the case.
GLORIA VS CA
Preventive suspension pending investigation is
not a penalty. It is simply a means of preventing the latter
from interfering or intimidating the witnesses against him.
YABOT VS OMBUDSMAN VASQUEZ
An administrative case was filed against ViceMayor Yabot by an American doctor. He was placed under
preventive suspension for 60 days. Yabot contends that he
was already suspended and hence, can no longer be
suspended again.

SC: The first suspension that was imposed was not the
penalty. It is merely a preventive suspension. The second
suspension was the penalty. The two suspensions are of
different nature. The service of preventive suspension
cannot be credited with the service of suspension as
penalty.

LAYNO VS SANDIGANBAYAN
PREVENTIVE SUSPENSION (pending investigation)

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

If the preventive suspension, however,


becomes indefinite, so much that the term of the elective
official is about to expire and his suspension is not yet
lifted, in effect he was being penalized and considering that
after the investigation is not yet terminated, to that extent,
there was a denial of due process, hence must be nullified.

95

Also, the right to due process of the people who voted for
him is likewise violated.
A preventive suspension that lasted for 5 years
becomes an indefinite suspension and therefore violative of
due process.
A preventive suspension is not an action by itself
but merely an incident to an action.
To know what law is applicable in case of a preventive
suspension, determine first if administrative or
criminal case.
A. ADMINISTRATIVE CASE
1. Civil Service Law
Period - 90 days

2. Local Government Code


Period 60 days for appointive officials
60 or 90 days fro elective
officials

3. Ombudsman Act

GLORIA VS CA
During the teachers strike, the public school
teachers in this case did not report for work.
Accordingly, they were administratively charged and
placed under preventive suspension.
The
investigation concluded before their 90 day
suspension and they were found guilty. On appeal,
Merit Systems and Protection Board, later affirmed by
the CSC, dismissed their claim. Before the CA, they
asked that they be paid for their salaries during their
suspension beyond 90 days. This was granted.
Hence, Sec. Gloria questioned this.

There are two kinds of preventive suspension of


civil service employees who are charged with offenses
punishable by removal or suspension:
1. Preventive Suspension pending investigation

Period 6 months

2. Preventive suspension pending appeal, if the


penalty imposed is suspension or dismissal and after
review the respondent is exonerated on appeal.

Case Hagad vs Gonzales


B. CRIMINAL CASE
1. Anti-Graft and Corrupt Practices Act
Period 90 days applying by analogy
PREVENTIVE
SUSPENSION
ADMINISTRATIVE CASE

A: The CHIEF of the office, agency or bureau shall be


the disciplinary authority.

SC: The public school teachers are entitled to their


salaries computed from the time of their dismissal or
suspension until their actual reinstatement, for a
period of not exceeding 5 years.

Case Gloria vs CA

Q: Who shall impose the preventive suspension?

IN

AN

I. CIVIL SERVICE LAW


If one is charged administratively, while pending
investigation, he can be preventively suspended for a
period of 90 days.
If after the lapse of the 90 day period and the
investigation has not been terminated, there will be an
automatic reinstatement.
However if one contributed to the delay of the
proceedings or has filed a petition for certiorari, the
period of the delay or certiorari will not be included in
the computation of the 90 day period of preventive
suspension.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Preventive suspension pending investigation is


not a penalty. It is a measure intended to enable the
disciplining authority to investigate charges against
the respondent by preventing the latter from
intimidating or in any way influencing witnesses
against him. If the investigation is not finished and the
decision is not rendered within the period, the
suspension will be lifted and the respondent will
automatically be reinstated. If after the investigation,
the respondent is found innocent of the charges and is
exonerated, he should be reinstated. However, no
compensation was due for the preventive suspension
pending investigation.
In case of a suspension pending appeal, he is
entitled to compensation for the period of their
suspension pending appeal if eventually he is found
innocent. Why? It is actually punitive in character
although it is in effect subsequently considered illegal
if respondent is exonerated and the administrative
decision finding him guilty is reversed. Hence, he
should be reinstated with full pay for the period of the
suspension.

96

SIGNIFICANCE OF THE DIFFERENCE:


Pending Investigation not entitled. Why? Not a
penalty but is entitled t reinstatement.
Pending Appeal if on appeal he is exonerated, he is
entitled to full backwages and reinstatement; it is
punitive in character.

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 he barangay

II. LOCAL GOVERNMENT CODE


1.) Sec. 85 LGC 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.
b.) Upon the 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.

Q: Maximum period of preventive suspension?


A: 60 days

Q: Who shall impose?


A: the local chief executives

2.) Sec. 63 LGC- Preventive Suspension.


a.) Preventive suspension may be imposed:
(1) By the President, if the respondent is an
elective official of a province, a highly
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

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
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 officials 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
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.

Q: Period?
A: 60 days for every administrative charge

97

90 days if there are several administrative charges,


during a given year

GANZON vs. CA

Ombudsman Act (RA 6770) administrative jurisdiction


Q: who shall impose?
A: if respondent isa.) Barangay official mayor
b.) Official of component city or municipality
Governor
c.) Official of independent component or highly
urbanized city or province- President

JURISDICTION

Appointive Officials
Q: Where do you file an administrative complaint
against local appointive officials?
A: From Local chief executive Civil Service
Commission Court of Appeals

Elective Officials
Q: where do you file an administrative complaint
against local elective offificals?
A: (1) Barangay official in a
a.
b.

Municipality- sangguniang bayan


City sangguniang panglungsod

(2) Official of a municipality sangguniang


panlalawigan
(3) City official and provincial official Office
of the President

*Sec. 63 relate to Sec. 62 (c) LGC xxx 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 the 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.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

The ombudsman or his deputy has the


power to preventively suspend
For a period of 6 months

HAGAD vs. JUDGE GOZO-DADOLE


An administrative case was filed against a Mayor
in one of the towns in Visayas. He was placed under
preventive suspension for 6 months. He argued that being
a local elective official his preventive suspension cannot
exceed 60 days as provided in the LGC and the LGC being
later enactment, is deemed to have repealed the
Ombudsman Act with respect to the imposition of the
preventive suspension.
SC:
There is nothing in the LGC (RA 7160) to indicate
that it has repealed the pertinent provisions of the
Ombudsman Act (RA 6770). Repeals by implication are not
favored. Every statute must be so interpreted and brought
into account with other laws as to form a uniform system of
jurisprudence. Besides, the grounds to impose preventive
suspension under the LGC and the Ombudsman Act are
different. The Ombudsman has concurrent jurisdiction with
the officers who have authority to impose preventive
suspension pursuant to Section 63 of LGC.
PREVENTIVE SUSPENSION IN CRIMINAL CASE
Anti-Graft and Corrupt Practices Act (RA 3019)
Section 13 RA 3019 Suspension and Loss of
Benefits Any incumbent public officer against whom any
criminal prosecution under a valid information under this
Act or under Title 7, Book II of the RPC or for any offense
involving fraud upon government or public funds or
property whether as simple or as complex offenses and in
whatever stage of execution and mode of participation, is
pending in court shall be suspended from office. Should he
b e convicted by final judgment, he shall lose all retirement
or gratuity benefits under any law, but if he is acquitted, he
shall be entitled to reinstatement and to the salaries and
benefits which he failed to receive during the suspension,
unless in the meantime administrative proceedings have
been filed against him.
Q: Who has the authority to impose preventive
suspension?

98

A: the law is silent. However in LUCIANO vs. PROVINCIAL


GOVERNOR, the Court interpreting Sec.13 held that It is
the court where the criminal case was filed that has the
authority to impose preventive suspension pursuant to Sec.
13. It is not the fiscal or prosecutor nor the Ombudsman. A
court that has acquired jurisdiction will have to exercise
jurisdiction also over the incidence of the case.
Note: Ombudsman has no authority to impose preventive
suspension in criminal cases unlike in administrative
actions.
Q: Before what court should the case be filed?
A: Depends
a. Salary grade 27 and over Sandiganbayan
b. Below salary grade 27 RTC or MTC
shall be suspended from office
Preventive Suspension is mandatory. The
Court has no discretion whether to place the
officer under preventive suspension or not.
While preventive suspension is mandatory, it
is NOT automatic. The court must conduct a
PRE-SUSPENSION HEARING, the purpose
of which is for the court to determine the
validity of the criminal information filed
against the accused public officer. It is only
when the court is satisfied that the criminal
information was validly filed that the court
will impose preventive suspension. Only
then that the preventive suspension
becomes mandatory. (SOCRATES vs.
SANDIGANBAYAN)
Q: What is the duration of the preventive suspension?
A: The law is silent. However in GONZAGA vs.
SANDIGANBAYAN, the court held that the Civil Service
Law should be applied by analogy since Sec. 13, RA 3019
is silent as to the duration of the preventive suspension.
Hence, the duration is ninety (90) days. There are no more
cases now of indefinite suspension.
BAYOT vs. SANDIGANBAYAN; SEGOVIA vs.
SANDIGANBAYAN; DELLOSA vs. SANDIGANBAYAN
X was a municipal mayor. He was criminally
charged before the Ombudsman. While the Ombudsman
was investigating the criminal complaint, there was an
election. X ran for governor and won. In the meantime, the
Ombudsman filed the criminal case against him with the
Sandiganbayan. The Sandiganbayan issued the preventive
suspension against X. X now contends that he can no

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

longer be preventively suspended for the acts he did when


he is still a mayor.
SC:
the contention is not correct. The amendatory
provisions clearly states that any incumbent public officer
against whom any criminal prosecution under a valid
information under RA 3019 or for any offense involving
fraud upon the government or public funds or property
whether as a simple or as a complex offense and in
whatever stage or execution and mode of participation, is
pending in court shall be suspended from office. Thus by
the use of the word office the same applies to any office
which the officer charged may be holding and not only the
particular office which he was charged.
*Section 13 RA 3019 does not state that the officer
concerned must be suspended only for the office he was
charged.
*Moreover, should the purposes behind preventive
suspension become manifest, the respondent court is not
bereft of remedies or sanctions. The petitioner may still be
suspended but for specifically expressed reasons and not
from an automatic application of Section 13, RA 3019.
SANTIAGO vs. SANDIGANBAYAN/ PAREDES vs.
SANDIGANBAYAN
When X was a governor, a criminal complaint
against him for violation of anti-graft was filed. While the
Ombudsman was investigating, there was an election. X
ran for Congressman and won. In the meantime, the
Ombudsman filed the criminal information against X before
the Sandiganbayan. The Sandiganbayan issued a
suspension order addressed to the Speaker of the House
of Representatives for him to carryout the order. The
Speaker refused to execute because it violated Section 16
par 3 Article VI of the Constitution (Each House may
determine the rules of its proceedings, punish its own
members for disorderly behavior and either the
concurrence of 2/3 of all its members, suspend or expel a
member. A penalty of suspension, when imposed shall not
exceed 60 days)
SC:
there is no encroachment here. What is being
imposed by the Sandiganbayan is not a penalty but merely
a preventive suspension. Members of Congress are not
exempted from the operation of Section 10, RA 3019. The
law says any incumbent public officer. We are only
interpreting the law as you wrote it. The Speaker of the
House was held in contempt of the Sandiganbayan.
SUSPENSION AS A PENALTY
Q: Can imprisonment of 10 days be imposed if found
guilty?

99

A: No. Administrative cannot impose penalties which


involve deprivation of life and liberty. Hence cannot impose
imprisonment,
Doctrine of Condonation only in administrative cases
AGUINALDO vs. SANTOS term of elective
officials are distinct from each other and when elected
again the public is deemed to have condoned his past
misconduct; he cannot be punished under the new term of
office.
PROHIBITIONS/ INHIBITIONS/ DISQUALIFICATIONS
1.

Article IX-B, Section 7, par 1 No elective


official shall be eligible for appointment or
designation in any capacity to any public office or
position during his tenure.

General Rule: No elective official shall be eligible for


appointment or designation in any capacity to any public
office or position during his tenure.
Exception: Elective official can hold other positions/ office
in an ex-officio capacity. The prohibition extends only to
public and not to private positions. (FLORES vs. DRILON)
2.

Article IX-B, Section 7, par 2 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 and
controlled corporations or their subsidiaries.

General Rule: Appointive official not allowed from holding


other position in the government
Exceptions:

3.

a. allowed by law
b. allowed by the primary
functions of their position
(CIVIL LIBERTIES UNION
vs. EXECUTIVE SECRETARY)

Article VII Section 13, par 1 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

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

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 duties.
General Rule: President, Vice President, Cabinet
Members, deputies, assistants shall not hold any office or
employment
*the provision is new
*the prohibition is broad covers both public and
private position
Exception: Unless otherwise provided in the 1987
Constitution
e.g. 1) Vice President may become
member of the Cabinet
2) Secretary of Justice is an exofficio member of JBC
CIVIL LIBERTIES UNION vs. EXECUTIVE SECRETARY
President Aquino issued an executive order
(EO284) allowing her Cabinet members to hold more than
2 offices. The appointments were challenged by the Civil
Liberties Union. Defense of the Solicitor General, members
of the Cabinet are appointive officials hence Article IX-B
sec 7 (2) shall apply and that they fall under the exception.
SC:
this cannot be allowed. The work of the
cabinet members demands full time work. Their position
is sui generis. Article VII, section 13 is a new provision. The
reason is to avoid what happened in the Marcos era. It is a
special provision which applies to
Cabinet members.
Article IX-B sec. 7 (2) on the other hand is a general
provision. Hence, the EO is unconstitutional.
*see also PUBLIC INTEREST CENTER vs.
ELMA June 30, 2006
4.

Article VI 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 nor the emoluments thereof
increased during the term for which he was
elected.
Prohibition on incompatible and forbidden
office

100

5.

6.

Article XVI, Section 5, par 4 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 government owned or controlled
corporations or any of their subsidiaries
Law on Nepotism
- Violation results to dismissal with forfeiture
of benefits
- Found in the Civil Service Law
- Under Section 59, Civil Service Law All
appointments in the national, provincial, city,
and municipal governments or in any branch
or instrumentality thereof, including
government
owned
or
controlled
corporations, made in favor of a relative of
the appointing or recommending authority,
or of the chief of the bureau or office or of
the
persons
exercising
immediate
supervision over him, are hereby prohibited.
The word relative and members of the
family referred to are those related within
third (3rd) degree of either consanguinity of
affinity.

CSC vs. DACOYCOY

April 1999 En Banc

Under the law on nepotism, a public official is guilty


of nepotism, if an appointment is issued in favor of a
relative within the third civil degree of consanguinity or
affinity of any of the following:
a. Appointing
authority
b. Recommendin
g authority
c. Chief
of
bureau
or
office
d. One
who
exercises
immediate
supervision
over
the
appointee
SC:
Clearly, there are four situations covered. In the
last two mentioned situations, it is immaterial who the
appointing or recommending authority is.
To constitute a violation of the law, it suffices that an
appointment is extended or issued in favor of a relative
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

within the third civil degree of consanguinity or affinity of


the chief of the bureau or office, or the person exercising
immediate supervision over the appointee.
EXCEPTIONS TO THE LAW ON NEPOTISM
1. Teachers
2. Physicians
3. Persons employed in a confidential capacity
4. Members of the Armed Forces of the
Philippines
5. Member of a family who, after his or her
appointment to any position in an office or
bureau, contacts marriage with someone in
the same office or bureau, in which event,
the employment or retention therein of both
husband and wife may be allowed.
Under Article VII, Section 13 The President may not
appoint his spouse or relatives within the 4 th civil degree of
consanguinity or affinity to
a. Member
of
Constitutional
Commission
b. Office
of
the
Ombudsman
c. Secretaries
and
Undersecretaries
d. Chairman, heads of
bureau or offices
Prohibited relationships
- Under the Civil Service Law = 3 rd Civil
Degree
- Under the LGC = 4th civil degree SEC. 79.
Limitation on Appointments. - No person
shall be appointed in the career service of
the local government if he is related within
the fourth civil degree of consanguinity or
affinity to the appointing or recommending
authority.

DEBULGADO vs. CIVIL SERVICE COMMISSION


It was contended that the law on nepotism
applies only to original appointments but not to promotional
appointments.
SC:
The law on nepotism applies to all kinds of
appointment because the law does not distinguish.
A textual examination of Section 69 at once
reveals that the prohibition was cast in comprehensive and
unqualified terms. Firstly, it explicitly covers all
appointments without seeking to make ay distinction
between differing kinds or types of appointments. Secondly,

101

Section 59 covers all appointments to the national,


provincial, city, and municipal governments, as well as any
branch or instrumentality thereof and all government
owned or controlled corporations. Thirdly, there is a list of
exceptions set out in Section 59 itself, but it is a short list.
Both an original appointment and a promotion
are particular species of personnel action. The original
appointment of a civil service employee and all subsequent
personnel actions undertaken by or in respect of that
employee such as promotion, transfer, reinstatement,
reemployment, etc. must comply with the Implementing
Rules including of course the prohibition against nepotism
in Rule XVIII.
The conclusion we reach is that Section 59 Book
V, EO 292 means exactly what it says in plain and ordinary
language. It refers to all appointments whether original or
promotional in nature. The public policy embodied in
section 59 is clearly fundamental in importance, and the
court has neither authority nor inclination to dilute that
important public policy by introducing a qualification or
discretion here.
LAUREL vs. CSC
Laurel who was the governor of Batangas
granted his brother, Benjamin Laurel a promotional
appointment as Civil Security Officer, a position classified
as primary confidential by the Civil Service.
Q: Was there a violation of the law on nepotism?
A: No. It is under the exceptions of the law
Later on, he designated his brother to the
position of Provincial Administrator a position in the Career
Civil Service. Laurel contends that he did not violate the
law on nepotism because he merely designated his brother
not appointed him. Designation presupposes that he has
already been appointed and merely given additional
function.
SC:
The appointment or designation as Acting
Provincial Administrator was violative of the prohibition
against nepotism, then embodied in Section 49 PD No.
807. Moreover, the Court emphatically agrees with the
CSC that although what was extended to Benjamin was
merely a designation and not an appointment xxx the
prohibitive mantle on nepotism would include designation
because what cannot be done directly cannot be done
indirectly. We cannot accept petitioners view. His specious
and tenuous distinction between appointment and
designation is nothing more than either a play ingeniously
conceived to circumvent the rigid rule on nepotism or a last
ditch maneuver to cushion the impact of its violation. The
rule admits of no distinction between appointment and
designation. Designation is also defined as all
appointment or assignment to a particular office, and to

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

designate means to indicate, select, appoint, or set apart


for a purpose of duty.
*for purposes of the law on nepotism, appointment and
designation are the same.
7. Section 90, LGC Practice of Profession
(a) All governors, city and municipal mayors are
prohibited from practicing their profession or engaging
in any occupation other than the exercise of their
functions as local chief executives.
(b) Sanggunian members may practice their
professions, engage in any occupation, or teach in
schools except during session hours, Provided, that
sanggunian members who are also members of the
Bar shall not:
(1) Appear as counsel before any court in any
civil case wherein a local government unit or any office,
agency or instrumentality of the government is the adverse
party;
(2) Appear as counsel in any criminal case
wherein an officer or employee of the national or local
government is accused of an offense committed in relation
to his office;
(3) Collect any fee for their appearance in
administrative proceedings involving the local government
unit of which he is an official; and
(4) Use property and personnel of the
Government except when the Sanggunian member
concerned is defending the interest of the government.
(c) Doctors of medicine may practice their profession even
during official hours of work only on occasions of
emergency. Provided, that officials concerned do not derive
monetary compensation therefrom.
Q: Can a mayor practice his profession?
A: No.
Q: Can members of the sanggunian practice their profession?
A: Yes, except during session hours.
Q: Can Vice mayor exercise his profession?
A: Yes. Vice Mayor belongs to the legislative, while sanggunian
members must be interpreted in general terms. There is no
prohibition. Hence, the Vice Mayor can e belongs to the
legislative, while sanggunian members must be interpreted
in general terms. There is no prohibition. Hence, the Vice
Mayor can exercise or practice his profession. However, in
case the Vice Mayor becomes acting mayor or acting
governor, he cannot practice or exercise his profession
because in such case then, he exercises an executive
position. (Atty. Sandoval)
JAVELLANA vs. DILG

102

Atty. Javellana is a member of the


Sanggunian Panlalawigan. Two of the employees of
the Provincial Engineers Office were removed. They
asked for his assistance and so Atty. Javellana
appeared in their behalf. He was prohibited from
appearing on the ground that the same is prohibited
by the LGC where the adverse party is the
government. He went to the Supreme Court and
challenged the constitutionality of Section 90, LGC on
two grounds: 1) the provision is unconstitutional
because it encroached the power of the Supreme
Court to regulate the practice of law; and 2) the
provision violates the equal protection clause because
the law profession was singled out.
SC:
There is no encroachment on the
power of the SC to regulate the practice of law.
Section 90 LGC is a reasonable regulation designed
to ensure that there shall be no conflict of interest in
the exercise of his functions as a sanggunian member
and his function as a lawyer.
There is no violation of the equal
protection clause. Under the equal protection clause,
not all classifications are invalid. There is a substantial
distinction between the law profession and the other
professions. Of all the professions, it is this profession
that is most likely to affect the area of public service.
Moreover, Section 90 LGC does not
discriminate against lawyers and doctors. It applies to
all provincial and municipal officials in the professions
or engaged n any occupation. It explicitly provides that
Sanggunian members may practice their professions,
engage in any occupation, or teach in schools except
during session hours. If there are some prohibitions
that apply particularly to lawyers, it is because of all
the professions, the practice of law is more likely than
others to relate to, or affect, the area of public service.
7.

SEC. 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 nonpolitical
cases here or abroad; (Marquez Jr. vs COMELEC and
Rodriguez vs COMELEC)
(f) Permanent residents in a foreign country or those
who have acquired the right to reside abroad and

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

continue to avail of the same right after the effectivity


of this Code; and
(g) The insane or feeble-minded.
VACANCIES AND SUCCESSIONS (Section 44-45, LGC)
Section 44, LGC Permanent vacancies in the
offices of the Governor, Vice Governor, Mayor and Vice
Mayor. - 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 shall become the governor, vice
governor, mayor or vice mayor as the case may be.
Subsequent vacancies in the said offices 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 sangguniang
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 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, refuse 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.
*In case of permanent vacancy (section 44) automatic
succession applies, so in case of death of mayor, the vice
mayor succeeds, in case of the vice mayor, the highest
ranking sangguniang member succeeds.
Illustration:
1.
2.
3.

Pedro
Manuel
Jose

District I (10,000)
5,000
5,000

103

Q: For purposes of succession, how do you determine


ranking?
A: For purposes of succession, 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 44, LGC last par)
*Therefore Manuel is the highest ranking member.
Q: Who is ranking between Pedro and Jose?
A: A tie between or among the highest ranking Sanggunian
members shall be resolved by the drawing of lots. (Sec. 44
par c, LGC)

(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
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.
Q: Who shall appoint?
A: (1) Sangguniang Bayan
Governor
Sangguniang PAnglungsod in component cities

Q: Let us assume that 8 sanggunian members, the last


ranking died. What happens?
A: Apply sec. 45 LGC, not the rule on automatic
succession.
Section 45, LGC 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 sanggunian
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 herein after 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 therein mentioned, a nomination and
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
ground for administrative action against the official
responsible therefor.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

(2) Sangguniang Panglungsod of Highly Urbanized


Cities
Sangguniang Panglungsod of Independent
Component Cities President
Sangguniang Panlalawigan
*If one who will be replaced belongs to a political party, the
successor must come from the same political party.
If he does not belong to a political party then apply Sec.
45(c)
Q: Who shall appoint?
A: Local chief executive upon the recommendation of the
sanggunian concerned.
FARIAS vs. BARBA sec.45(c), LGC
The last ranking sanggunian bayan member who did not
belong to any political party resigned. To fill the vacancy,
both the mayor and the governor appointed their own
choice.
SC:
Neither of the two appointees should
assume position. Sec 45 (c) LGC must be read together
with Sec 45 (a). Since this is a municipality, the governor
should appoint but with the recommendation of the
sanggunian concerned which is the sanggunian bayan
where the vacancy took place.
NAVARRO vs. CA sec.45(b), LGC
Composition of the municipal government:
Mayor
Lakas NUCD
Vice
Mayor. Lakas NUCD

104

1st
to
5th
member.. Reporma
6th
Member.. Lakas NUCD
7th
Member.. Reporma
8th
Member.. Lakas NUCD

sanggunian

Q: Who appoints the barangay treasurer, secretary and


other appointive officials of the barangay?

Sanggunian
Sanggunian
Sanggunian

Therefore in the Sanggunian, there were 6


Reporma and 2 Lakas. The mayor died. The Vice mayor
became the Mayor. The last ranking position became
vacant so the governor appointed someone from Reporma.
Lakas protested because the vacancy came from Lakas.
SC:
Governor is correct. What is crucial is the
interpretation of Sec. 45 (6). The reason behind the right
given to the political party to nominate a replacement is to
maintain the party representation as willed by the people in
the election.
With the elevation of Tamayo (Reporma) as the
Vice Mayor it diminished the Repormas representation in
the Sanggunian. Hence, the one appointed should come
from Reporma.
GAMBOA JR. vs. AGUIRRE JR.
July 20,
1994
The governor went abroad. He was away for 3
months. Governor issued an administrative order
designating the Vice governor as acting governor. The
acting governor wants to preside in the session of the
sanggunian.
SC:
Being the acting governor, he cannot
simultaneously exercise the functions of his office. The
power of the vice governor to preside over sanggunian
session is suspended as long as he is the acting governor.
The creation of temporary vacancy in the office of
the governor creates a corresponding vacancy in the office
of the vice governor.
Q: Then who will preside in the meantime?
A: Under sec. 49 (b) LGC 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. Hence, the members present and constituting a
quorum shall elect from themselves the temporary
presiding officer. Do not apply the rule in permanent
vacancy.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

A: Punong barangay appoints barangay secretary,


treasurer, and other appointive official with the approval of
the majority of the members of the sangguniang barangay.
(ALGUIZOLA vs. GALLARDO)
*Conjoint action by members of Sanggunian and punong
barangay
The power of appointment is exercised with approval of
sanggunian, therefore in removing or replacing an
appointive official, there must also be approval of the
majority of sanggunian barangay members.
Sec. 388, LGC Persons in authority For
purposes of the RPC, the punong barangay, sanggunian
barangay members and members of the lupong
tagapamayapa in each barangay shall be deemed as
persons in authority in their jurisdiction, while other
barangay officials and members who may be designated by
law or ordinance and charged with the maintenance of
public order, protection and security of life and property, or
the maintenance of a desirable and balanced environment
and any barangay member who comes to the aid of
persons in authority shall be deemed agents of persons in
authority.
RECALL
-

Provided in Section 69-75, LGC. This is a


mode of removing a local elective official
before the expiration of his term. On the
groud of LOSS of CONFIDENCE.

GARCIA vs. COMELEC


- There is no need for a criminal charge
before a recall may be initiated.
- There is only one ground, loss of confidence
EVARDONE vs. COMELEC
A recall is a political question not subject to
judicial review. It is a political question that has to be
decided by the people in their sovereign capacity.
2 STAGES
1.
2.

Initiatory
Special Recall Election

*The official sought to be recalled becomes a candidate


automatically. Hence, he is prohibited from resigning.
* There is only one way of initiating a recall through a
petition signed by at least:

105

25% of registered voters below or 20,000 total


registered voters of LGU concerned
20% of registered voters more than 20,000 but
less than 75,000 total registered voters
of LGU concerned
15% of registered voters more than 75,000 but
less than 300,000 total registered
voters of LGU
concerned
10% of registered voters more than 300, 000
total registered voters of LGU concerned
*The PREPARATORY RECALL ASSEMBLY (PRA) has
been REPEALED. (RA 9244, Feb 19, 2004)
ANGOBUNG vs. COMELEC
A was a mayor, a year after his election was
sought to be recalled. There was a recall process initiated
by only one person. The COMELEC approved the petition
and assigned a signing day. Angubong went to the SC
alleging grave abuse of discretion.
SC:
The petition for recall signed by only one person
is a violation of the 25% statutory requirement. The law is
plain and unequivocal as to what constitutes a recall
proceeding.

1998. On 19 May 1999, members of the then Preparatory


Recall Assembly convened on their plans to initiate a
petition for recall against Claudio. On 29 May 1999,
majority of the members of the PRA adopted a resolution
calling for the recall of Mayor Claudio. It was submitted 2
July 1999. The Comelec scheduled a special recall
election.
SC:
the resolution was validly adopted. The recall
refers to the election itself wherein the voters themselves
decide whether or not to retain the official concerned. It
does not refer to the initiation proceedings.
SOCRATES vs. COMELEC
On May 2001, the governor elected was
Socrates. 2 July 2002, members of the Preparatory Recall
Assembly adopted a resolution calling for the recall of
Governor Socrates. 24 September 2002 there would be a
recall election. On 15 July 2002, there was a barangay
election. Most of the members who signed the recall
resolution lost in the election. Hence, it was contended that
those who signed have no mandates because they lost in
the election.
SC:
The contention is not correct, when the members
adopted the resolution, their term of office have not yet
expired. They were still de jure officers with no legal
disqualification to participate.

LIMITATION ON RECALL (SEC.74)


a.
b.

An elective official can be subjected to recall only


once
No recall shall take place within one year from
the assumption of office or one year immediately
preceding a regular local election.

PARAS vs. COMELEC


Paras was a punong barangay. There was a
petition for recall. The SK election was scheduled during
that year when the petition was filed. The contention of
PAras was that there would be a regular election; hence
the recall cannot push through.
SC:
The term regular local election refers to one
where the position of one sought to be recalled is actually
to be contested and filled by the electorate.
ANGOBUNG vs. COMELEC
The limitation on recall shall not apply if the
official sought to be recalled is a Mayor and the
forthcoming election is a barangay election.
CLAUDIO vs. COMELEC
The issue in this case is the interpretation of
within one year from the date of assumption to office.
Claudio was elected as Mayor. His term started 30 June
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

AFIALDO vs. COMELEC


Miranda was elected Mayor. On the other hand,
Navarro was elected the Vice Mayor. Members of the
Preparatory Recall Assembly adopted a resolution calling
for the recall of Vice mayor Navarro. Mayor Miranda was
removed by SC. The Vice mayor assumed office.
SC:
The recall elections become moot and
academic. It is clear from the resolution that they wanted to
remove him from being a vice mayor.
AFIALDO vs. COMELEC
Before vice mayor Amelita Navarro assumed
mayorship, Joel Miranda was still mayor. Decision in
MIRANDA vs. ABAYA was not yet promulgated. When she
was vice mayor, the members of the PRA of Santiago City
adopted a resolution calling for the recall of vice mayor.
This resolution was submitted to Comelec. A special recall
election was then scheduled. Meanwhile the decision in the
Miranda vs. Abaya was promulgated. Vice mayor Navarro
assumed the mayorship upon the removal of Joel Miranda
as mayor. What happens now to the special recall election
for vice mayor?
SC:
it has been rendered moot and academic. It is
clear from the resolution of the members of the preparatory
center of Santiago City that they wanted to recall her as

106

vice-mayor. They got what they wanted. She is no longer


the Vice-mayor. She is now the Mayor.

the Metropolitan Authority that will thereby be created shall


be limited to basic services requiring coordination.

LOCAL GOVERNMENT UNITS/ AUTONOMOUS


REGIONS/ ADMINISTRATIVE REGIONS

Q: Is MMDA a special metropolitan political subdivision?


A: No! The creation of MMDA was not subject to a
plebiscite. Also MMDA has no police or ordinance power. It
is purely administrative.

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 herein after provided.

MMDA vs. BEL-AIR VILLAGE


In view of the traffic congestion, Bel-Air was
compelled to open its village to the public.

AUTONOMOUS REGIONS
Article X, Section 15 There shall be created
autonomous regions in Muslim Mindanao and in the
Cordilleras consisting of provinces, cities, municipalities,
and geographical areas sharing common and distinctive
historical and cultural heritage, economic and social
structures, and other relevant characteristics within the
framework of this Constitution and the national sovereignty
as well as territorial integrity of the Republic of the
Philippines.
ADMINISTRATIVE REGIONS
Mere grouping of provinces for administrative
purposes. They are not considered as political and
territorial subdivision. There is a need for a plebiscite to be
a political subdivision.
E.g. Region 1
Q: Who has the power to create administrative regions?
A: It has been traditionally exercised by the President in
line with his supervisory powers over the LGUs.
LIMBORA vs. MARGELIN
Concept of Local Autonomy
Decentralization of Administration
- Central government delegates administrative power
to local government in order to broaden the base of
the government.

Q: What kind of autonomy is contemplated by the


Constitution?
A: Only decentralization of administration, as not to make
the LGU sovereign within the state. But with regards to
autonomous region, decentralization of power which
contemplates grant of political autonomy.
METROPOLITAN POLITICAL SUBDIVISION
Article X 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
executives and legislative assemblies. The jurisdiction of
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

SC:
This cannot be done. The MMDA is not a political
unit; not a LGU; nor a metropolitan political subdivision.
The chairman was not elected by the people. It is the LGU
that possesses legislative and police power.
DUAL NATURE OF LGU
1. Body politic
2. Body corporate
DUAL FUNCTION OF LGU
1. Acting as body politic- governmental
2. Acting as a corporate entity representing the
inhabitants- proprietary
TWO KINDS OF PROPERTY OF LGU
1. Properties for public service owned in the
governmental capacity e.g. streets
2. Patrimonial property owned in their proprietary
capacity e.g. north cemetery
DACANAY Case
Property owned for public service cannot be a
subject of a contract.
CONDITIONS BEFORE A PROPERTY OWNED FOR
PUBLIC SERVICE BE CONVERTED TO PATRIMONIAL
PROPERTY
1. Continuous non use for public service
2. Positive act from legislative branch
withdrawing use of property from public
service
MAKASIANO vs. COMELEC
In this case, there was a positive act from
Congress but the same is not enough because the two
requirements must be met.
CREATION, DIVISION, MERGER, ABOLITION, OR
SUBSTANTIAL ALTERATION OF BOUNDARY
Article X, 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

107

the votes cast in a plebiscite in the political units directly


affected.
TWO REQUIREMENTS
1. It must be according to the criteria
established in the LGC.
Criteria established under the LGC:
Veritable indicators
a. income
b. population
c. land area
2.
3.

Subject to the approval by a majority of the


votes cast in a plebiscite in the political units
directly affected.
SEMA vs COMELEC: Such creation must not
conflict with any provision in the constitution.

1.

Article X, 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 government.
2. IRA
Article X, 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.
3. Equitable share in the proceeds of the utilization
and development of national wealth.
Article X, Section 7 Local governments shall be entitled
to an equitable share in the proceeds of the utilization and
development of national wealth within their respective
areas, in the manner provided by law, including sharing the
same with the inhabitants by way of direct benefits.

Q: Who shall vote?

MUNICIPALITY OF PARAAQUE vs. VM REALTY

A: PADILLA vs. COMELEC


Voters are not limited to the voters of the new
area but also the voters of the parent unit. Since the parent
unit is also affected.

The municipality expropriated a property to be converted


into a Youth Center. The issue is: what is required in order
for LGU to exercise its eminent domain powers?

*The doctrine under Paredes has been abandoned by TAN


vs. COMELEC, as reaffirmed in the Padilla vs. Comelec.
Q: In the income requirement, should the IRA be included
in the computation?
A: Yes.
ALVAREZ vs. GUINGONA
Congress passed a law creating Santiago. The
IRA was excluded.
SC:
The basis of IRA is Article X, Sec 6. This is not
self-executing. It is implemented in the LGC.
LGUs are entitled to 40% of the total national
taxes. The allocations in Sec 285 LGC- Allocations to Local
Government Units.- The share of local government units in
the internal revenue allotment shall be allocated in the
following manner:
a. Provinces 23%
b. Cities 23%
c. Municipalities 34%
d. Barangays 20%
Hence, IRAs are regular recurring income. It
does not constitute as a mere transfer. It should be
included in the computation. It is an income of the LGU.
MAIN SOURCES OF INCOME OF LGUs

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

SC:

Under Section 19, LGC, an ordinance is required.


Section 19, LGC 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.
Ordinance vs. Resolution
Ordinance
-is a law

Resolution
- merely a dec
body
- temporary
- no reading i
majority of san

- possesses a general; permanent character


- a third reading on its enactment is required

108

Q: Do LGUs have inherent powers?


A: None. They are pure creations of the legislative branch.
POWER TO TAX
Of the three powers of the state, the power to tax
is constitutionally delegated power to LGU, subject to
guidelines as the Congress may provide in accordance
with Article X sec. 5.
POLICE POWER ; EMINENT DOMAIN
They are delegated by the Congress not by the
Constitution
*Police Power: Section 16, LGC 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.
*Eminent Domain: 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.
---- End---Good Luck and God Bless Us all.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

DEVELOPMENTS IN PUBLIC INTERNATIONAL LAW


By:

Atty. Edwin Sandoval

(1) An individual person as subject of international law


Subject of international law defined
-

an entity which has an


international personality

an entity has an international legal


personality if it has rights which
may be directly enforced or it has
obligations for which it may be
held directly accountable under
international law.

an entity although it has rights, but


which can be enforced only through
another medium is not a subject. It is merely an
object.

* Two views:
a.) Traditional view only states are subject of
international law.
- only states have rights which may be
directly enforced or have obligation
for which
it may be held directly accountable under international law.
b.) Modern view not only states are proper
subjects of international law.
- international organizations (ie. United
Nations) are also proper subjects
of international law.
- to a limited extent, the individual is
now considered as proper subject of
international law.
Govt. of HK special administrative region (represented
by Phil. DOJ) vs. Hon. Olalia
- the modern trend in public international law is
the primacy place on the worth of the individual person and
the sanctity of human rights.

109

- slowly, the recognition that the individual person


may properly be a subject of international law is taking root.
- the vulnerable doctrine that the subject of
international law are limited only to states was dramatically
eroded towards the second half of the past century.
- for one, the Nurumberg and Tokyo trials after
WWII resulted in the unprecedented spectacle of individual
defendants prosecuted for acts
characterized as
violations of the laws of war, crimes against peace, and
crimes against humanity.

-regardless of the changes in the 4 elements of a


state, the state continues to exist. As long as ALL the
essential elements are present.
e.g. Change in government
RECOGNITION as understood in International Law
1.

Recognition of States- Recognition is a legal act,

2.

2 Schools of Thought
a. Constitutive School of Thought
of Recognition- recognition of a
state is a legal act for as long
conditions of fact exist, it must be
given recognition. It is not a matter
of will to whether or not give a
recognition. For as long as
conditions of fact exist, an entity
may demand recognition and must
be accorded recognition.
b. Declaratory School- recognition
of state is a political act. It is a
matter of policy and discretion
whether to give recognition or not.
Recognition of Governments-

- recently, under the Nurumberg principle,


Serbian leaders have been prosecuted for war crimes and
crimes against humanity committed in the former
Yugoslavia.
- these significant events show that the individual
person is now a valid subject of international law.
when the individuals were held directly
accountable for their crimes, he is no longer regarded as a
mere object of international law, he has become a subject
of international law.
the justification for assumption of jurisdiction
over the individual is that crimes against international law
are committed by men and not by abstract
entities. It
is only by punishing individuals who commit such crimes
can the provisions of international law be enforced.

2 TYPES:
a.

another instance when an individual is


regarded as subjects of international law is in case of
human rights violations.
- more often, an individuals human
rights is violated by his own government such that he
cannot have a recourse against his own government.

b.

Minimum Tests for Recognition of Govt:


a.

- he may have recourse to the


international human rights body.
STATE- community of persons more or less numerous,
permanently occupying fixed portion of the surface of the
earth, having a government organized for political ends,
majority of the inhabitants render habitual obedience.
Elements:
1.
2.
3.
4.

people
Territory
Government
Sovereignty or Independence or capacity to
enter into relations(Montevideo Convention)

State Continuity Principle

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

De
Factorecognition
is
provisional; limited to certain
juridical transaction
De Jure- recognition is more or
less permanent; brings about full
diplomatic relations

b.

Objective Test- govt must be effective and


stable. It is in possession of machinery of
state with no substantial resistance to its
authority.
Subjective Test- willingness and ability of
govt to comply with its international
obligations.

Recognition to a state is deemed a recognition to


government since govt is an element of a state.
Recognition of state is generally permanent whereas
recognition of govt it does not follow that there is
recognition of state. Generally, recognition of states is
irrevocable.
TOBAR or WILSON Doctrine
-A policy of not giving recognition to a new
government that was brought about by means of

110

revolution. Unless the duly elected representatives of the


people have constitutionally reorganized the country.
ESTRADA DOCTRINE
Mexican Foerign Minister. Reaction to Tobar
doctrine. The policy of not giving any statement or
recognition but of dealing of to whosoever is in effective
control of the state. A policy of not giving pronouncement of
recognition.
Legal Consequences
governments:
1.
2.
3.
4.

5.

of

according

recognition

-When we enter intro treaty with other states it is


understood that we have to surrender some aspects of our
power. Especially in view of pacta sunt servanda.
(2) Creation/establishment of International Criminal
Court
* ICC vs. ICJ
ICJ

to

Recognized state or government acquires


the right of entering diplomatic relations and
make treaties with the recognizing state;
It acquires right to sue before your courts;
It becomes immune from suits;
Recognized government acquires right to
demand and received possession of
property situated within jurisdiction of the
recognizing state which formerly belong to
former govt; and
Recognition validates the acts and decrees
of recognizing state so that courts of law of
the recognizing state is precluded from
passing judgment on the legality of the acts
of recognized states.

Act of State Doctrine- the courts of law of one state are not
competent to pass judgment of an act of another state
committed in its territory.

- was created pursuant to the charter of the UN


itself.

- was created by a sepa


of July 17, 1988

- it is the principal judicial organ of the UN.

- it is a separate body.

- only states may be parties to disputes in


international court of justice.

- international criminal
states, who commit the
concern.

* Jurisdiction of the International Criminal


Court over the following offenses:
a.) genocide
b.) crimes against humanity
c.) war crimes
d.) crimes of aggression
common characteristics of the four they are the most
serious crimes
of international concern.
terrorism is not included.

3.

Recognition of Belligerency
This may be understood in 2 senses:
a.
b.

State of war between 2 or more


states-states at war are called
belligerents;
Actual hostilities amounting to civil
war within a single state

Genocide the deliberate destruction or


annihilation of a racial, ethnic or
religious group.
Ex. Holocaust during the WWII
deliberate policy of Hitler to eliminate
all the jews in the world.
2 FUNCTIONS OF ICJ:
1.
2.

Taada vs Angara
-ratification of GATT treaty which created the
WTO. Purpose of GATT Treaty is free exchange of goods
and services between and among nations. Parties must do
away with trade barriers like imposing import or export
quotas to promote trade liberalization.
AUTO-LIMITATION of SOVEREIGNTY

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

resolve contentious cases; and


render advisory opinions to gen ass,
security council and other organs of UN.

Legal Disputes which ICJ may resolve:


1.
2.
3.

interpretation of Treaty;
any question in ILaw;
existence of any fact which if
established would constitute a
breach of international obligation;
and

111

4.

Nature and extent of reparations


to be made in case of breach of
international obligation

* Organization of International Criminal Court


- 18 judges
- subject to increase in number by
authority of Article 36 of its statute
- organized into: a) appeal
division/chamber president and four other judges
b)

trial

division/chamber three judges


c) pre-trial
division/chamber three judges

Human Rights
- those liberties, immunities, and
benefits which all human beings should
be able to claim as of right of the
society in which they live by accepted
contemporary values.
- those fundamental and inalienable
rights which are essential for life as a
human being.

- pertain to rights of an individual as a


human being which are recognized
by the international community as a whole
through their protection and
promotion under contemporary international law.
International Law on Human Rights

- the judicial functions are carried out


by judges in chambers
- the workload of the court may require
more than one trial chamber or pre-trial chamber

- the law which deals with the


protection of individuals and groups against
violations by government of their internationally
guaranteed rights, and
with the
promotion of these rights.

- judges of Appeals chamber shall


serve only in that division

* Classification of Human Rights/ Three


Generation of Human Rights:

- other organs of the court:


a) presidency
b) office of the prosecutor
c) registry (office of clerk of court)
Principle of Complementarity
- the international criminal court shall
be complementary to national criminal jurisdiction.
- this gives primacy to national
jurisdiction. If the national court has already assumed
jurisdiction, icc can no longer assume jurisdiction.
EXCEPTIONs- unless, the proceeding in the
national court is:
a) for the purpose of shielding the person concerned from
liability; or
b) not conducted independently or impartially.

a.) 1st generation of human rights consisting of civil and


political rights
b.) 2nd generation of human rights consisting of
economic, social and
cultural
rights.
c.) 3rd generation of human rights consisting of right to
development,
right to peace and
right to environment.
* Human rights are either:
a) individual-provided in our BORights
b) collective right to self
determination of people; the permanent
sovereignty over natural
resources; right to environment
International Bill of Rights
- the term used to designate the three
main instrument of human rights in
the international plane, which are:

(3) International Human Rights


Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

112

a) the universal declaration of


human rights
b) the international covenant
on economic, social & cultural rights
c) the international covenant
on civil & political rights
Recognition and importance given to
Human Rights by international organizations and
states
- on December 10, 1948, the UN
General Assembly adopted the Universal
Declaration of Human Rights in which the right to
life, liberty and all other fundamental rights of every person
were proclaimed.
- while not a treaty, the principles
contained in the said declaration are now recognized as
customarily binding upon the members of the international
community.
* Sources of International Law:
1) Primary
a) treaties or international
conventions
b) international custom
c) general principles of law
recognized by civilized nations
2) Secondary
d) judicial decisions
e) teachings of authoritative
publicists of various nations.

- it provides: The state values the


dignity of every human person and
guarantees full respect for human rights.
- The Philippines has the responsibility
of protecting and promoting the
right of every person to liberty and due process,
ensuring that those
detained
or arrested can participate in the proceedings before a
court, to
enable it to decide without
delay or the legality of the detention and order
their release.
Govt. of HK special administrative region (represented
by Phil. DOJ) vs. Hon. Olalia
- the Philippine authorities are under obligation to
make available to every person under detention such
remedies which safeguard their fundamental right to liberty.
- these remedies include the right to be admitted
to bail
- while this court in the Purganan case, limited
the exercise of the right to bail to criminal proceedings,
however, in the light of various international treaties giving
recognition and protection to human rights, particularly the
right to life and liberty, a re-examination of this Courts
ruling in the Purganan case is in order.
(4) International Humanitarian Law (IHL)
- used to be called laws of war/ laws of armed
conflict (which may refer to both international armed
conflict and internal armed conflict)
- that branch of public international law which
governs armed conflict to the end that the use of violence
is limited and that human suffering is mitigated or reduced
by regulating or limiting the means of military operations
and by protecting persons who do not or no longer
participate in hostilities.
* Three Grand Divisions of International Law:

Universal Declaration of Human Rights, while


not a treaty, has evolved as an
international
custom, a primary source of international law.
The Philippines commitment to uphold the
fundamental human rights as well as the worth and dignity
of every person

a) Laws of Peace govern relations between and among


nations under
normal
circumstances.
b) Laws of War govern relations between and among
belligerent states
(states at
war) during wartime.

- commitment is enshrined in Section 2,


Article II of our Constitution.
c) Laws of Neutrality govern the relations of third states
not parties to the war with any of the belligerent states. (but

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

113

the relations of third


parties
governed by the laws of peace)

inter se shall still be

International Armed
Conflicts

* Principal legal documents of IHL are:

- Protocol II of June 8, 1977

1.) Geneva Convention of 1949 define


fundamental rights for combatants
removed
from the fighting due to injury, illness or capture and for
civilians.
a) Geneva Convention for the
Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the field of
August 12, 1949 (LAND WARFARE)

IHL encompasses both humanitarian


principles and international treaties that
seek to
save lives and alleviate suffering of combatants and noncombatants
during armed conflict. It is not
concerned with the lawfulness or unlawfulness of
armed conflicts.
* International Humanitarian Law vs. Human Rights
Law

- first Geneva convention

IHL

- applies to armed forces in


the field (land)
b) Geneva Convention for the
Amelioration of the Condition of Wounded,
Sick and Shipwrecked Members of Armed Forces
at Sea of Aug 12, 1949 (NAVAL WARFARE)
- second Geneva convention

- applies in situations of armed conflict

- protects individ
alike)

- no derogation from certain rights are permitted because it


was conceived for emergency situations namely armed
conflict

- may permit of s
situations of publi

- aims to protect people who do not or are no longer taking


part in hostilities

- tailored primarily

- applies to armed forces ate


sea (navy)
c) Geneva Convention Relative to the
Treatment of Prisoners of War of
August
12,
1949
- third Geneva convention
- deals with prisoners of war
d) Geneva Convention
Protection of the Civilian Person in time of
war of August 12, 1949

to

the

- fourth Geneva convention


- applies to civilians
2.) 1977 Additional Protocols supplement the
Geneva convention
a) Protocol Additional to Geneva
Conventions of August 12, 1949 and
Relating to the Protection of Victims of
International Armed Conflicts
- Protocol I of June 8, 1977
b) Protocol Additional to Geneva
Conventions of August 12, 1949 and
Relating to the Protection of Victims of NonPolitical Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa

the rules embodied in IHL impose duties on all parties


to a conflict
- provides for specific mechanisms that help its
implementation
* Basic Rules of IHL:
(1.) Attacks must be limited to combatants and
military targets
Combatants persons taking direct
part in hostilities or members of the
armed forces.
Military targets combatants and
objects which by their nature, location,
purpose
or use make an effective contribution to military action and
whose
destruction offers a definite military
advantage.
Civilians shall not be attacked!
In case of doubt, a person shall be
considered a civilian.
* Four Categories of Combatants:

114

their principa
arbitrary behavior

HRL does not

- human rights
complex and inclu

a) Regular Forces members of the armed forces except


medical personnel and chaplain.
b) Irregular Forces consists of the guerilla and the militia
- they are treated as lawful combatants, provided:
i) they must be under the command of an officer
responsible for the conduct of his men.
ii) they wear uniforms or insignia recognizable
from a distance.
iii) they carry arms openly.
the

iv) they observe the laws and customs of war in


conduct of their hostilities.

c) Levee En Masse civilians of an occupied territories


who
upon
approach of the enemy forces and without having
time to
organize, spontaneously take up arms to resist the
invading
forces.
- once captured, they are considered as combatants (not
civilians)
and will be treated as a prisoner of war.
d) Officers and Crew of Merchant marine vessels who
forcibly
resist attack
once captured, they are considered as combatants
and will be treated as prisoners of war.
Others:
Non-Privileged Combatants although they have rights
(limited/minimal), when captured, are not entitled
to be treated as
prisoners
of war.
- they do not form part of the regular or irregular
forces but
actually takes part directly or indirectly
in the hostilities as:
a) spies
b) mercenaries soldiers for a fee/ soldiers of
fortune
A soldier, not wearing uniform
during hostilities, runs the risk of being
treated as a spy; thus, not to be treated as a
prisoner of war.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

BAR 1993:
Reden, Jolan and Andy,
Filipino tourists, were in Bosnia-Herzegovina when
hostilities erupted between the Serbs and the Moslems.
Penniless and caught in the crossfire, Reden,
Jolan and Andy, being retired generals,
offered
their
services to the Moslems for a handsome salary, which offer
was accepted. When the Serbian National Guard
approached Sarajero, the
Moslem civilian population
spontaneously took up arms to resist the invading
troops. Not finding time to organize, the Moslems
wore armbands to identify themselves,
vowing
to
observe the laws and customs of war. The three Filipinos
fought side by side with the Moslems. The Serbs
prevailed resulting in the capture
of Reden, Jolan
and Andy, and part of the civilian fighting force.
1) Are Reden, Jolan and Andy considered
combatants thus entitled to treatment as prisoners of
war?
NO. Reden, Jolan and Andy are not
combatants because they are mercenaries. They offered
their services to the Moslems for a handsome salary.
They are soldiers of fortune. They are not
members of the armed forces but took part in the hostilities.
They are non-privileged combatants and are not entitled to
treatment as prisoners of war.
2) Are the captured civilians likewise
prisoners of war?
YES. The captured civilians are
prisoners of war. They fall under the category of levee
en masse. When the Serbian National Guard approached
Sarjero, the Moslem civilian population spontaneously took
up arms and resist the
invading troops without
having time to organize. The Moslems wore armbands to
identify themselves, vowing to observe the laws and
customs of war.
Civilian objects may not be
attacked.
-using civilians to shield military targets
is prohibited
- it is prohibited for combatants to pose
as civilians
- starvation of civilians as a method of
combat is prohibited
- it is prohibited to attack objects that
are indispensable to the
survival of civilian population

115

- it is prohibited to attack dams, dykes,


nuclear power plants, if such attack may cause
severe losses among the civilian population.

(2.) Attacks or weapons which indiscriminately


strike civilian and military objects and persons. And which
cause excessive injury or suffering are prohibited.
Specific weapons are prohibited.
- it is prohibited to order or
threaten that there shall be no
survivors.
(No Quarters
Order take no prisoners, kill all)
(3) Civilians, wounded combatants and prisoners
should be spared , protected and treated humanely.
Hors De Combat literally means out
of combat
- disabled soldiers
(4) Military and civilian medical personnel and
facilities (hospitals, clinics, ambulances, etc.) must be
respected and protected and must be granted all available
help for the performances of their duties.
* Concept of Belligerency
- may be understood in two senses:
a) state of war between two or more states

* Stages of Development of a Rebel


Movement within a State
1) Stage of Insurgency - earlier stage/ less
developed stage
- there is not much international complication as it is purely
a matter of
municipal law.
2) Stage of Belligerency - higher stage of
rebellion, when rebellion develops and becomes
widespread
- already a matter of international law as there are now
international
implications.
- when the rebels attain the higher stage, in effect, you are
admitting that
within a single
state, there are now two competing governments
legitimate government and rebel government.
- conduct of hostilities should now be governed by the laws
and customs of war
- IHL will come into play
- captured rebels are considered combatants and must be
treated as
prisoners
of war (they have rights)
- third states are to observe strict neutrality in their dealings
either with the
rebel
government
or
legitimate government

- the states at war are referred to as belligerent states or


simply belligerents

Non-observance of IHL could lead to


sanctions.

- refers to international armed conflict (in this sense)

* Minimum Conditions Before Rebels may


Attain the Status of Belligerency-COWS

b) actual hostilities amounting to a civil war


within a state
- there is just one single state here
- refers to non-international armed conflict or simply
internal
armed conflict
In both instances, IHL applies.

Belligerency in the sense of actual


hostilities amounting to a civil war
within a state presupposes the existence of rebel
movement within a state.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

1) if the rebels were able to organize a civil


government that shall have control and direction over the
armed struggle they are wagering against the legitimate
government.
2) if the rebels were able to occupy a substantial
portion of the national territory.
- occupation must be more or less permanent,
such that to be able to dislodge the rebels, the legitimate
the government must use superior force
3) seriousness of the struggle, such that it must
be so widespread thereby leaving no doubt as to its
possible outcome

116

4) if the rebels were able to observe the laws and


customs of war

- it is an obligation of every state towards the international


community as a whole.

- willingness on their part to observe


* Two Functions of the Government:

All states have a legal interest for its compliance, and


thus all states are entitled to invoke responsibility for
breach of such an obligation.

1) Constituent constitute the very bends of society

* Examples of obligations erga omnes

Ex. Administration of justice

- outlawing acts of aggression

Maintenance of peace and order

- outlawing acts of genocide

Fixing the relations between husband and wife\


2) Ministrant
IHL will not apply to international conflict but also to
non-international conflict.
(5.) The Law on Treaties
Jus Cogens Norm
- a peremptory/mandatory norm of
general international law
- 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.
- recognized in the Vienna Convention
on the law of treaties as a ground for invalidity and
termination of treaties when they are in conflict with
such norms.

CUSTOM vs USAGE
Both involve habitual, repetitious performance of an act
over considerable period of time;
Custom can be a source of Internationally accepted
principle whereas a usage cannot.
Opinio Juris- the conviction that it is obligatory and right.
If an act that is habitual, repetitious and has conviction that
it is obligatory is a CUSTOM. Absent opinion juris, what is
involve is Usage.
General Principles of Law observed by civilized nations:
1.
2.
3.
4.

estoppel;
res alios acta
prescription;
stare decisis(de cheeses) a general
principle of law but is not recognized in
international law because decisions in
internatiol court are binding only between
parties.

peremptory means mandatory.


* Examples of norms considered as jus cogens in
character
a) the prohibition against the use of force under the UN
charter
b) the law on genocide
c) the principle of self determination
d) crimes against humanity
e) prohibition against slavery and slave trade
f) piracy
A treaty entered into by two states agreeing to invade
another state
would have to be invalidated as it runs
in conflict with a jus cogens norm
the prohibition
against the use of force under the UN charter.
Obligation Erga Omnes

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

* Treaty Making Process


1) Negotiation- undertaken directly by the heads of states
but he now usually assigns this task to his authorized
representatives.
2) Signature - when the negotiations finally decide on the
terms of the treaty, the same opened for signature
- this step is primarily intended as a means of
authenticating the instrument and for the purpose of
symbolizing the good faith of the parties but it does not
indicate the final consent of the state in cases where
ratification of the treaty is required.
3) Ratification - power to ratify is vested in the President,
subject to the concurrence of the state

117

- the role of the senate, however, is only limited to giving or


withholding its consent, or concurrence to the ratification.

Attentat Clause 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 a
political offense and therefore extraditable.

- this is the formal act by which a state confirms and


accepts the
provisions of a treaty concluded by its
representatives.
4) Exchange of the Instrument- signifies the effectivity of
the treaty unless a different date has been agreed upon by
the parties

3) a person extradited may only be charged and


prosecuted in the requesting state for an offense which was
the basis of the request for his extradition (Principle of
Specialty)

Where ratification is dispensed with, and no effectivity


clause is embodied in a treaty, the instrument is deemed
effective upon its signature.

4) unless otherwise stipulated in the treaty, the offense


must have been committed in the territory of the requesting
state.

Executive Agreements are equally binding obligations


upon nations

* Two Types of Extradition Treaty


1) Old type contains a list of extraditable

- in international law, there is no difference between treaties


and executive agreements in their binding effect upon
states concerned, as long as the functionaries have
remained within their powers.

offenses

(6.) Extradition- regarded as a form of jurisdictional


assistance in international law

- also called a no-list treaty

- resorted to by states nowadays to combat


transnational crimes (crimes which
defy
national
borders drug cases, plunder, etc)

- it is not even required that the designation of the offense


be the same in both jurisdictions.

Extradition may not be effected unilaterally.


- there are always two states involved in an extradition
a) requesting state the state where the offenses was
alleged to have been committed
b) surrendering state the state where the fugitive sought
refuge
One of the characteristics or our criminal law is
territoriality
- we can only enforce our criminal laws within our
jurisdiction.
* Fundamental Principles Governing Extradition
1) a state is under no legal obligation under international
law to surrender a fugitive from justice absent an
extradition treaty.
2) religious and political offenses are generally not
extraditable.

2) Modern type does not contain a list of


extraditable offenses

- it merely provides that the offense must be punishable in


both states

- follows the principle of double criminality


Wright vs. CA
- Mr. Wright is an Australian who had been
staying in the Philippines for a long
time already.
- when he first came over, there was no yet
extradition treaty between the Philippines and Australia
- it was only much later when the two states
entered into an extradition treaty
- when Australian government learned that Mr.
Wright was in the Philippines, it requested that Mr. Wright
be extradited to Australia to face trial for his alleged
criminal offense therein.
* under PD 1069 (Extradition Law),
jurisdiction over extradition cases is with the RTC.
- during the extradition proceeding in the Makati
RTC, Mr. Wright questioned the entire proceedings on the
ground that it violates his right against ex post facto laws.
SC:
The prohibition against ex post facto
laws under Section 22, Article III
(Bill of Rights)

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

118

applies only to criminal or penal laws. An extradition treaty


is
neither a criminal nor a penal law. It is a treaty. It
may be given retroactive effect.
Secretary of Justice vs. Hon. Ralph Lantion

- this we hold for the procedural due process


required by a given set of circumstances must begin with a
determination of the precise nature of the government
function involved as well as the private interest that has
been affected by governmental action.

- Govt. of US requested the extradition of Mark


Jimenez coursed through the
Department
of
Foreign Affairs.

- the concept of due process is flexible for not all


situations calling for procedural safeguards call for the
same kind of procedure.

- pursuant to PD 1069, the DFA transmitted the


request to the DOJ for initial evaluation

* Mark Jimenez is not entitled to the documents


he was requesting only at the early stage of the
proceeding.

- when Mark Jimenez learned of the request


made by the US govt for his extradition, he now requested
the DOJ to furnish him copies of the basic request
for his extradition and the supporting documents
and evidence so that allegedly he can prepare for his
defense.
-the DOJ refused
SC:
(decided January 18, 2000 by a 9-6
vote) Indeed there was denial of due process. How can you
expect him to prepare for his defense if he will not be
furnished copies of the documents he was requesting. An
extradition proceeding is similar to a criminal proceeding.
Likewise, the initial evaluation stage in an extradition
proceeding is also similar to a preliminary investigation in a
criminal proceeding.
* Strong dissenting opinion
- this is no longer a case of due process; it is now a case of
overdue process
- what happens now to our obligations under the US-RP
Extradition Treaty.
SC:
(decided October 17, 2000 by a 9-6 vote)
reconsidered; controlling doctrine!!!
- an extradition proceeding is sui generis
- it is not a criminal proceeding which will call into
operation all the rights of an accused as
guaranteed by the Bill of Rights.
- presumption of innocence does not apply
- as an extradition proceeding is not criminal in
character and the evaluation stage in an extradition
proceeding is not akin to a preliminary investigation, the
due process safeguards in the latter may not necessarily
apply during the initial evaluation stage in an extradition
proceeding.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

at the

- eventually he will be furnished those documents


time of filing of the case before the court

- the court must consider the more compelling


state interest
- the court applied the balancing of interest test in
resolving the issue
*
Distinctions
between
proceedings and criminal proceedings

extradition

1) the process of extradition does not involve the


determination of the guilt or innocence of an accused.
- his guilt or innocence will be adjudged
in the court of the state where he will be extradited
- hence, as a rule, constitutional rights
that are only relevant to determine the guilt or innocence of
an accused cannot be invoked by an extraditee especially
by one whose extradition papers are still undergoing
evaluation.
2) an extradition proceeding is summary in
nature while criminal proceedings involve a full blown trial
3) with respect to application of rules of evidence,
criminal proceedings requires
strict adherence to
the rules of evidence while extradition proceedings follow
the
liberal interpretation rule.
4) in terms of quantum of evidence to be
satisfied, criminal proceedings requires proof beyond
reasonable doubt for conviction while a fugitive may be
ordered extradited upon showing of the existence of a
prima facie case (which is even lower than substantial
evidence)
5) in a criminal proceeding, judgment becomes
executory after having attained
finality while in an
extrajudicial proceeding, our courts may adjudge an
individual to be extraditable but the President has the final
discretion to extradite him.

119

* Judicial Approaches to Resolve Questions


in Constitutional Law
1) Dangerous Tendency Rule
- for the state to justify the impairment or
suppression of individual freedoms, it is enough that the
state is able to point out a substantive evil
which the
state is duty bound to prevent or suppress.
- for as long as the speech or the expression has
that dangerous tendency of producing the substantive evil
which the state is duty bound to prevent or suppress,
impairment of fundamental freedoms will be justified.
- this rule leans heavily in favor of state power as
against fundamental freedoms.
- abandoned!!!

Ex.
A
group
of
demonstrators, unarmed, numbering 10,000
participated in by
students, urban poor dwellers and religious
members shouting ibagsak
ang gobyerno!

- dispersal of the rally and


arrest of the speakers will be unjustified

- the state may be able to


show the substantive evil which it is duty
bound to suppress or prevent but such
substantive evil is not of a
clear and present danger type.

Ex. Speech ibagsak ang bulok na gobyerno!


Magrebolusyon
tayo!
- the speech had a dangerous tendency of
producing the substantive evil which the state is duty
bound to prevent or suppress the resulting revolution,
death, injuries, chaos, were the substantive evils, even if it
did not take place.
- the arrest and dispersal of the rally will be justified under
this rule.

2) Clear and Present Danger Rule


- formulated by Justice Holmes (backed up by
Justice Brandeis)
- this is the more libertarian rule

- for the state to be justified in the


curtailment or suppression of
fundamental freedoms, it is not enough that the
state is able to point out
the
substantive evil which the state is duty bound to prevent or
suppress,
but the substantive
evil must be of a clear and present danger type.

- this rule leans heavily in favor of the


fundamental freedoms as against
state power.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

* BP 880 Public Assembly Act


- under which, the orientation/policy to
be observed by police officers in
dealing with rallies and even in the dispersal
thereof is maximum
tolerance (the highest degree of restraint)

- we therefore live in the era of clear


and present danger rule

Bayan vs. Ermita


- if the CPR (Calibrated Pre-Emptive Response)
policy adopted by the Arroyo administration in dealing with
rallies and mass actions means no more than maximum
tolerance as defined by BP 880, then it become a
superfluity (no need for that; the policy has already been
laid down by law).

- however, if the CPR policy means more than


maximum tolerance as defined by BP 880, then it becomes
unconstitutional.

classic example of Justice Holmes when he


formulated the clear and present
danger test

120

- when you are inside a movie house


and you shouted, fire, fire naturally
you will
get arrested.

- when you are in the middle of an


open field and you shouted fire, fire!,
you will
not be arrested.

* The presumption now is that any act of the


government alleged to have infringed upon or impaired
fundamental freedom, such an act or measure comes to
court with a heavy presumption of unconstitutionality.

presumption of unconstitutionality. So that the burden now


is on the part of the government to justify the act.

3) Balancing of Interest Approach


- two equally desirable interest of
society are colliding but these interests
are equally desirable to the society.

Sec. of Justice vs. Hon. Ralph Lantion


- there are two compelling state interests:

- so that the burden of justifying the act


lies on the part of the government.

a) the interest in the observance of due


process

* Two Requirements for the Government to


Justify the Act

b) the interest to comply with our treaty


obligation.

1) by some compelling interest


- the government must be able to show
a compelling interest that will
justify the
impairment.

2) the measure must be narrowly drawn to


preclude abuses
- it must not be overbroad, does not
suffer from vice of vagueness and it is
not
unreasonable (doctrine of overbreadth and void for
vagueness
doctrine).

SC:
The more compelling state interest
must be upheld to prevent the escape of
potential
extraditee which can be precipitated by premature
information of the basis for the request of his extradition.
- especially since,
extradition, an extraditee is always presumed
to be a flight risk

in

- under PD 1069, the


moment the extradition case is filed in court,
the judge will immediately
issue a warrant for his arrest.

JBL Reyes vs. Bagatsing


- Anti-Base Coalition applied for a permit to hold
a rally in front of the US embassy.

- Mayor Bagatsing denied on the ground that it


might be infiltrated which might cause violence.

- only when he is in custody


of law will he be entitled to a copy of
the documents.

- this is but a soft restraint on


his right to due process on that stage

SC:
Mayor Bagatsing is wrong. Any act of
the government alleged to have
infringed
upon
fundamental freedoms comes to court with a heavy

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

121

- there is no denial of due


process for as long as fundamental
fairness is observed.

Government of USA vs. Judge Purganan


1) before a judge issues a warrant of arrest against a
potential extraditee, prior notice and hearing is not required
on two basis:

a) first, statutory basis


- under section 6 of PD 1069, once a
petition for extradition is filed with
the RTC, the judge will immediately issue a
warrant of arrest.

- the word used was immediately

2) during the pendency of an extradition proceeding, a


potential extraditee is not entitled to post bail; no bail rule
applies.
- under section 13 of the Bill of Rights and Rule
114 of the Rules of Court on bail, the word used was
conviction

- hence, bail is only available to one who is


arrested and detained for violation of Philippine criminal
laws.

- it does not apply in extradition cases where the


innocence or the guilt of an accused is not in issue.

- moreover, the right to bail flows from the


presumption of innocence in favor of an accused in a
criminal case.

- this word would be rendered nugatory


if the issuance of warrant of arrest
is set for hearing.

- however, by way of an exception, bail may be


granted for as long as the following conditions concur:

- arrest subsequent to a hearing is no

b) that there exists a special


humanitarian and compelling circumstances that will justify
the grant of bail

longer immediate.

- the law could not have contemplated


the word immediately as a mere
superfluity but as a means of inferring a sense of
urgency.

b) second, constitutional basis


- under section 2 of the Bill of Rights,
prior notice and hearing was never a
requirement for the issuance of a warrant of
arrest

- on the contrary, the provision says


after examination under oath of the
complainant and the witnesses he may produce,
not of the extraditee.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

a) that once granted bail, the extraditee


will not be a flight risk or a danger to the community; and

- the burden of proving these two requirements


lies on the part of the applicant by
clear
and
convincing evidence.
Govt. of HK special administrative region (represented
by Phil. DOJ) vs. Judge Olalia (En Banc)
- the ruling in Purganan should be re-examined
- these remedies should include the right to bail
- in light of the various international treaties
giving recognition and protection to human rights
particularly the right to life and liberty, a re-examination of
the courts ruling in Purganan is in order
- especially the trend in international law where
an individual is not merely considered as an object but
rather a subject of international law and also in view of the
Universal Declaration of Human Rights and the Covenant
of Civil and Political Rights where the Philippines is a

122

signatory and because of our commitment to human rights


under the Constitution.
- yet, for an extraditee to be allowed to post bail,
he ought still the two requirements:
a) that once granted bail, he will not be
a flight risk or a danger to the community; and
b) that there exist a special
humanitarian and compelling circumstance that will justify
the grant of bail to him.
- the burden of proving these requirements still
lies on the part of the applicant by clear and convincing
evidence.
Clear and Convincing Evidence
- a new standard of evidence adopted by the
court lower than proof beyond reasonable doubt required in
a criminal case but higher than
preponderance
of
evidence required in civil case.

* Examples of generally accepted principles of


international law
Pacta Sunt Servanda (treaties must be
observed in good faith)
- under the pacta sunt servanda rule, a state may
not advance the provisions of its own Constitution, as well
as that of its laws in order not to comply with its obligations
under a treaty.
- a state must make the necessary modifications
to its laws in order to comply with its obligations in a treaty.
Doctrine of State Immunity from Suit - a state
may not be sued without its consent
Doctrine of Sovereign Equality of all States
- par in parem non habet imperium

- this is applied only in application for bail in


extradition
proceeding

- all states are sovereign equals; an


equal may not assume jurisdiction over
another equal.

- in extradition proceedings, mere prima facie


evidence is required.

are)

Rebus Sic Stantibus (things remaining as they


- opposite of pacta sunt servanda

FUNDAMENTALS OF INTERNATIONAL LAW


Relations between International Law and Municipal
Law from the view of practice
* Two Doctrines
1) Doctrine of Incorporation
- the generally accepted principles of
international law automatically become part of their laws
and will no longer require an enabling act from the
legislative body.
- the Philippines subscribe to this
doctrine under section 2, article II of the Constitution, which
provides that, the Philippines adopts the generally
accepted principles of international law as part of
the law of the land.
2) Doctrine of Transformation
- the generally accepted principles of
international law does not automatically become part of
their laws and will still require an enabling act from the
legislative body.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Special Thanks To:


ATTY. JOAN LOU P. GAMBOA
For sharing her handwritten lecture notes
in Political Law Review
under Atty. Edwin Sandoval
and for her generous support
throughout the years
to UST Law Batch 2009!!!

TERRITORY
Terrestrial or Land Domain:
-Modes of acquiring land territory
1.

2.
3.
4.

Discovery
and
Occupation of territory
which is terra nullius;
*Doctrine of Effective
Occupation;
Cession;
Prescription;
Conquest
or

123

Subjugation; and
5. Accretion
Internal Waters form part of Terrestrial not
maritime. Here, right to innocent passage cannot
be invoked unless right of arrival under stress:
Rivers;
Lake;
Streams or brooks;
Canals;
Ports; and
harbors
Maritime Domain
1.

Regime of Territorial sea


-12 miles from the shore
beginning from low water
mark(watermark of the shore on
low tide) under UNCLOS of 1992.
Count 12 miles outward

2.

Contiguous Zone- 24 nautical


miles counted from low water
mark. So from 12nm add 24=
contiguous. It is here where
coastal state can enforce its
maritime, customs and sanitary
law.

3.

Exclusive
Economic
Zone200miles from low water mark.
The coastal state has exclusive
jurisdiction to exploit the sea,
seabed, subsoil and other marine
areas within 200 miles.
INTERNATIONAL WATERS OR
HIGH SEAS- beyond the 200 mile
exclusive economic zone. Takes
the legal status of res communes,
form part of common heritage of
mankind. Not susceptible of
appropriation.
The regime governing the use of
high seas is MARE LIBERUM the
freedom of the high seas.
Freedoms in high seas:
a. Navigation;
b. Fishing;
c. Mining;
d. Laying down
water cables;
and
e. Freedom to do
scientific

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

research
Q: WHO has jurisdiction over a vessel sailing in the HIGH
SEAS?
A: GENERAL RULE : Flag State: the state whose
nationality the vessel carries which is determined by
registration of the vessel.
EXCEPTIONS:
a. Pirate vessels (enemy of all mankind)
b. If vessel isi engage in slave trade;
c. Vessel is sailing without flag or under false
or refused to show flag when required;
d. If vessel is engaged in unauthorized
broadcast directed against coastal state;
and
e. Under doctrine of hot pursuit: it presupposes
that there was a foreign vessel that entered
in the internal waters, territorial sea or
contiguous zone of another state and that
such state has reasonable grounds to
believe that foreign vessel has committed a
violation of its law in which case that other
state may pursue such vessel even if it
reaches in high seas. The pursuit once
commence must be uninterrupted until it
enters territorial waters of another state.
CONTINENTAL SHELF- comprises of the sea bed and
subsoil that extend beyond territorial sea throughout the
natural prolongation of territory to the outer age of
territorial margin.
Right of Innocent Passage- right of continuous and
expeditious navigation of a foreign vessel through the
territorial sea of the state for the purpose of traversing that
sea without entering the internal waters or calling at a road
stead or port facility outside internal waters.
*Foreign vessesls here include not only merchant but also
foreign naval vessels, in fact even submarines.
Q: what about passage through a strait?
A: strait is a narrow body of water separating 2 islands.
When a foreign vessel passes through a strait, it is invoking
its right to transit passage. From one part of the open sea
to another part of the open sea a foreign vessel passes
through a strait.
Right of Transit Passage is similar with a right of
innocent passage. The former only refers to strait passage
whereas the latter is passage thru territorial sea.

124

Aerial Domain- airspace over the subjacent


state. The state has complete and exclusive sovereignty
over the airspace above its territory. (Convention of Civil
Aviation)
-Here there is no right of innocent passage unlike
in territorial sea.

3.
4.

Bases of Jurisdiction in International Law


1.

ARCHIPELAGO PRINCIPLE
Emphasizes the unity of land and waters. It is a
body of water studded with islands or a group of islands
surrounded by water.
Identify archipelagic area:
1. Identify the outermost points
2. Draw imaginary baselines connecting the
points so that all the islands within those line
will be integrated as 1 whole.
Spratyls: part 22(49:00)
FUNDAMENTAL
RIGHTS
INTERNATIONAL LAW
(SPID)
1.
2.
3.
4.
5.

OF

STATES

IN

Sovereignty and Independence;


Right to Property and Jurisdiction;
Right of existence and self-defense;
Right of Equality; and
Right to Diplomatic Intercourse

Cf: Sec.2, Article II- Philippines renounces was as


instrument of national policy.
But when we are being attack we are not precluded from
engaging in defensive war.
Intervention vs Intercession: the former is the dictatorial
intervention of one state to another, is not allowed in
international law unlike the latter it is not prohibited.
Example of intercession: tender of advice; filinf of
diplomatic protest; demand for rectification of a wrong
committed.

Justified Interventions
1.
2.

As an act of individual or collective self-defense;


By treaty stipulation or by invitation provided
inviting state is not a mere puppet of the
intervening state;

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Territoriality- with respect to all persons, things,


transactions and happenings or events within its
territorial limits it exercises exclusive jurisdiction.
Exceptions:

HEAD OF STATE;
DIPLOMATS (ABSOLUTE immunity from criminal cases
even if not related to office; in civil and administrative
cases also EXCEPT:
(Art.32, Vienna Convention on Diplomatic Relation)A real
action involving private immovable property situated in
territory of receiving state Unless he holds it on behalf of
sending state for purposes of the mission;
action relating to succession in which the diplomatic agent
is involved as executor, administrator, heir or legatee as
private person and not on behalf of sending state;
action relating to any professional or commercial activity
exercised by DA outside of his official functions.
CONSULS and CONSULAR OFFICIALS- they are only
immune from local criminal jurisdiction if the offense was in
connection with the performance of their official functions.
As to arrest, they are immune for minor offenses.
EX-TERRITORIALITY- thing situated in one place and yet
withdrawn from jurisdiction of the state because it is the
extension of territories they belong under international
customs. e.g. embassy premises.
FOREIGN VESSELS : English and French Rule
FOREIGN ARMIES- depend on provision of treaty allowing
them to stay in foreign shores.
2.

Nationality- a state may punish its national


anywhere in the world. Article 15, NCCC: Laws
concerning family relations follow Filipinos
wherever they may be found.

3.

Protective Principle- states claim extraterritorial


criminal jurisdiction to punish crimes committed
abroad which are prejudicial to their national
security or vital interest even offenses were
perpetrated by non-nationals.e.g. Sec.2, RPC

DRAGO DOCTRINE
-intervention for the purpose of collecting contractual debt
is prohibited

Intervention by UN authorization(e.g. Korean war


in 1950;
On humanitarian grounds

125

4.

Universality- extra-territorial jurisdiction is also


claimed by states over all crimes regardless of
where they are committed whether of nationals or
non-nationals. this is generally forbidden by
International law, except as to crimes which
threaten the interest of international community
as a whole. and which are considered as criminal
offenses in all countries such as war crimes,
genocide, piracy, slavery, hijacking, terrorism and
the like.

LAW OF INTERNATIONAL OBLIGATIONS


1.

Law on Treaties

2.

Doctrine of State Responsibility to Aliens


referred to as international tort. As a rule,
the state has no legal obligation to admit an
alien in its territory. However, when it admits
one, it is incumbent upon the state to afford
protection to that alien. If that alien suffers
injury or he dies, that could lead to liability.
3 Requisites:
1.

There must be an act or


omission in violation of
international law;

2.

Imputable to the state;

3.

Causing damage to the


3rd state, directly or
indirectly to the national
of that state.

Liability attaches to the state when its treatment


to the alien falls under international standard of justice. Or
it is remiss in according him the protection or redress that
is warranted by the circumstance. Or even if its laws
conform to the international standard of justice, the state
may still be held liable if it didnt made efforts to prevent the
injury to alien.
If the offense is committed by inferior government
officials like policeman or a private individual, the state will
be held liable if by reason of its indifference in preventing or
punishing it in effect the state is deemed to have connive
with the perpetration of the offense.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

Conditions for enforcement of claims:


1.

Nationality of claim-is the claimant state really the


state of the injured alien?
What if alien has multiple nationality?
Apply Genuine link Doctrine or Doctrine of
Effective Nationality Article V, Hague Convention
of the Conflict of Nationality it states that within a
3rd state, a person having more than one
nationality shall be treated as if he had only one.
Without prejudice to the application of his law in
matters of personal status and of any convention
enforced, a 3rd state shall recognize the
nationality of the country with which he is
habitually and principally a resident or nationality
of the country with which under circumstances he
appears to be in fact mostly connected.
Nottebohn Case (Liechtenstein v. Guatemala)
Facts. Nottebohn (P), a German by birth, lived in
Guatemala (D) for 34 years, retaining his
German citizenship and family and business ties
with it. He however applied for Liechtenstein (P)
citizenship a month after the outbreak of World
War II. Nottebohm (P) had no ties with
Liechtenstein but intended to remain in
Guatemala. The naturalization application was
approved by Liechtenstein and impliedly waived
its three-year. After this approval, Nottebohm (P)
travelled to Liechtenstein and upon his return to
Guatemala (D), he was refused entry because he
was deemed to be a German citizen. His
Liechtenstein citizenship was not honored.
Liechtenstein (P) thereby filed a suit before the
International Court to compel Guatemala (D) to
recognize him as one of its national. Guatemala
(D) challenged the validity of Nottebohms (P)
citizenship, the right of Liechtenstein (P) to bring
the action and alleged its belief that Nottebohm
(P) remained a German national.
Issue. Must nationality be disregarded by other
states where it is clear that it was a mere device
since the nationality conferred on a party is
normally the concerns of that nation?
Held. NO. issues relating to citizenship are solely
the concern of the granting nation. This is the
general rule. But it does not mean that other
states will automatically accept the conferring
states designation unless it has acted in
conformity with the general aim of forging a
genuine bond between it and its national aim. In
this case, there was no relationship between

126

Liechtenstein (P) and Nottebohm (P). the change


of nationality was merely a subterfuge mandated
by the war. Under this circumstance, Guatemala
(D) was not forced to recognize it. Dismissed.

2.
3.

Exhaustion of local remedies;


No waiver
Calvo Clause
a body of international rules regulating the
jurisdiction of governments over aliens and the
scope of their protection by their home states, as
well as the use of force in collecting indemnities.

4.
5.

The right to diplomatic intervention is a right that


belongs to his own state or government so his
own state may only waive that right. You cannot
waive a right that does not belong to you. ;
No unreasonable delay in claiming; and
No improper behavior by injured alien.

Extradition- form of jurisdictional assistance.


Requesting stateSurrendering state- where the criminal sought
refuge
Principles of Extradition;
1.

State is not under legal obligation under


international law to surrender a fugitive from
justice of another state absent an extradition
treaty;

2.

Unless provided in the treaty, the offense


must have been committed in the territory of
the requesting state;
Religious and political offenses are
generally not extraditable.

3.

Attentat Clause: A provision in an extradition


treaty which says that the murder or
assassination of the head of a state or any
member of immediate family will not be
considered as political offense and therefore
extraditable.
4.
5.

requesting state and from which the fugitive


has fled.
Wright vs. CA
- Mr. Wright is an Australian who had
been staying in the Philippines for a long
time already.
- when he first came over, there was no
yet extradition treaty between the Philippines and
Australia
- it was only much later when the two
states entered into an extradition treaty
- when Australian government learned
that Mr. Wright was in the Philippines, it
requested that Mr. Wright be extradited to
Australia to face trial for his alleged criminal
offense therein.
* under PD 1069 (Extradition
Law), jurisdiction over extradition cases is with
the RTC.
- during the extradition proceeding in
the Makati RTC, Mr. Wright questioned the entire
proceedings on the ground that it violates his
right against ex post facto laws.
SC:
The prohibition against ex
post facto laws under Section 22, Article III
(Bill of Rights) applies only to criminal
or penal laws. An extradition treaty is neither a
criminal nor a penal law. It is a treaty. It may be
given retroactive effect.
6.

Reciprocity Doctrine if requesting state is


shown to be willing to surrender its own
national for trial by courts of another country,
the detaining state must also surrender its
own citizens for trial.

7.

UN GEN Ass Resolution: war criminals are


subject to extradition.

Principle of Specialty: the person may only


be prosecuted for an offense which is the
basis of his extradition.
Double Criminality: for a request to be
honored, the crime from which extradition
was requested must be a crime in both the

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

127

BILL OF RIGHTS
Valid Warrantless Search

I.

Search Incident to Lawful Arrest

II. Consented Search

II.

Stop and Frisk a.k.a Terry Search


Q: what justifies a Terry Search?
A: The interest of effective crime
prevention and detection
Here police has insufficient probable
cause to make an arrest. TS is limited
only to patting down clothing for search
of weapons

Plain View Doctrine

People vs Mengote

People vs Doria

McFadden Case

Plain view issue


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 in evidence.
Requisites
1.

IV: Search of Moving Vehicle


V. Pursuant to Tariff and Customs
Search
VI. Mandatory Drug Testing
Social Justice Society vs
Dangerous Drug Board

The law enforcement officer 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
The discovery of the evidence in
plain view is inadvertent
It is immediately apparent to the
officer that the item he observes
may be evidence of a crime,
contraband or otherwise subject to
seizure

Q: is the establishment of checkpoints


justified?
A: No as a rule because it is an
anathema to a Republican State.
Requisites:

An object is in plain view if the object


itself is plainly exposed to sight. The difficulty
arises when the object is inside a closed
container.

People vs Diongson; People vs Susan


Canton

2.
3.

Where the object seized was inside a


closed package, the object itself is not in plain
view and therefore cannot be seized without a
warrant. If the package is such that an
experienced observer could infer from its
appearance that it contains the prohibited article,
then the article is deemed in plain view. It must
be immediately apparent to the police that the
items that they observe may be evidence of a
crime, contraband or otherwise subject to
seizure.

Political Law Review Notes (Atty. Edwin Sandoval)


Prepared by: Atty Joan P. Gamboa

1.
2.
3.

Must be pre-announced;
Must be stationary not roving;
Must be limited to visual search
not intrusive;

VII. Warrantless Searches of Airports

-Persons may lose the


protection of searches clause upon
subjecting themselves in the airports
People v Marti
RIGHT
TO
PRIVACY
COMMUNICATION
CORRESPONDENCE

OF
and

RA 4200

128