Wednesday, September 3, 2008
PRIMUS 2008 ONE-LINERS: POLITICAL AND PUBLIC INTERNATIONAL LAW
POLITICAL AND PUBLIC INTERNATIONAL LAW
Prepared by the PRIMUS Board of Consultants
Prof. Abelardo T. Domondon
These Notes in the form of one or two sentences were specially prepared by a Board of Consultants specially commissioned by PRIMUS Information Center, Inc., for the use of candidates who are going to take the 2008 Bar Examination. They are not as comprehensive as the other PRIMUS publications such as the PRIMUS Bar Star Notes, or the PRIMUS Cut and Paste. They are intended to be read during the Pre-Week or before the start of the regular Bar review for any given Bar Examination year.
These Notes attempt to second guess the areas where questions may probably be sourced for the 2008 Bar Examination in Political and Public International Law. They include enumerations and distinctions, as well digests of some landmark cases, although they go beyond two sentences. They may also serve as “memory joggers” to help the candidate recall concepts. The reader is advised to concentrate on the “One-liners” that are in bold letters. Those that are not in bold are mere elucidations of concepts.
The “PRIMUS 2008 ONE-LINERS” shall be revised regularly to consider latest law and jurisprudence to meet the requirements of future Bar Reviews such that the title shall change from year to year. For the 2009 Bar examination the title shall be “PRIMUS 2009 ONE-LINERS” which shall be released sometime in September, 2009. The reader is however advised to acquire and read the latest versions of the other PRIMUS publications such as the PRIMUS Bar Star Notes, or the PRIMUS Cut and Paste which contain more detailed information leading to a more comprehensive Bar review. Of course those who intend to take the 2009 Bar examination are encouraged to attend the PRIMUS 2009 Wrap-up Reviews
Although primarily for the use of Bar candidates who have attended the PRIMUS 2008 Wrap-up Reviews, the “On-Liners” may be availed of by other students who are interested in the subject. While available for the free use of all the contents of the “PRIMUS 2008 ONE-LINERS” are covered by copyright protection and should never be published (whether through printed media or through the internet) without written permission in writing from PRIMUS Information Center, Inc. Downloading and printing into hard copies is allowed only for private use and should not be distributed on a commercial basis.
1. Republic of the Philippines refers to the corporate governmental entity through which the functions of government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government. [Introductory Provisions, Sec. 2 (1), Adm. Code of 1997]
2. “Government-owned or controlled corporation refers to any agency organized as a stock or non-stock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the Government directly or through its instrumentalities either wholly, or, where applicable as in the case of stock corporations, to the extent of at least fifty one (51) per cent of its capital stock.” [Introductory Provisions, Sec. 2 (13), Adm. Code of 1997]
3. Agency is defined as any government authority other than a court or legislative body which affects private rights, either through rule-making or adjudication.
4. Agency refers to any of the various units of the Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation or a local government or a distinct unit thereof. [Sec. 2 (4), Introductory Provisions, Administrative Code of 1987]
4. Examples of government agencies:
a. The Land Transportation Office is an agency of the government because it is an office under the Department of Transportation and Communication.
b. The Department of Public Works and Highways is an agency because it is a department.
7. Government-owned and controlled corporations may fall within the scope and meaning of the “Government of the Philippines” if they perform functions that are governmental in character acting as the entity through which the functions of government are exercised throughout the Philippines.
8. 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 government-owned or controlled corporations. [Sec. 2 (10), Introductory Provisions, Administrative Code of 1987]
9. Examples of government instrumentalities:
a. Bangko Sentral ng Pilipinas is an instrumentality because it is vested with the special functions of being the central monetary authority, and enjoys operational autonomy through its charter.
b. Philippine Ports Authority is an instrumentality because it is merely attached to the Department of Transportation and Communication. It is vested with the special function of regulating ports, and it is endowed with all corporate powers through its charter.
c. The Land Bank of the Philippines is a government instrumentality because it is vested with the special function of financing agrarian reform. It is endowed with all corporate powers, and it enjoys autonomy through a charter.
d. The Manila International Airport Authority (MIAA is not a government owned or controlled corporation but an instrumentality of the government that is exempt from taxation.
It is an instrumentality exercising not only governmental but also corporate powers. It exercises governmental powers of eminent domain, police power authority, and levying of fees and charges.
Finally, the airport lands and buildings are property owned by the government that are devoted to public use and are properties of the public domain. (Manila International Airport Authority v. Court of Appeals, et al., G. R. No. 155650, July 20, 2006)
10. A presidential government is one in which the state, the sovereign, makes the executive independent of the legislative, both in tenure and prerogative, and furnishes him with sufficient power to prevent the legislative from trenching upon the sphere marked out by the State as executive independence and prerogative. (Garner)
11. The principal identifying feature of a presidential form of government is embodied in the separation of powers doctrine. Each department of government exercises powers granted to it by the Constitution and may not control, interfere with or encroach upon the acts done within the constitutional competence of the others. However, the Constitution also gives each department certain powers by which it may definitely restrain the others from improvident action, thereby maintaining a system of checks and balances among them, thus, preserving the will of the sovereign expressed in the Constitution. (UP Law Center)
12. A parliamentary government is one in which the state confers upon the legislature the complete control of the administration of laws. Under this system, the Cabinet or Ministry is immediately and legally responsible to the legislature or one branch thereof, usually the more popular chamber, and mediately or politically responsible to the electorate, while the titular or nominal executive – the King or Chief of State –occupies a position of irresponsibility.” (Garner)
13. The essential characteristic of a parliamentary form of government is the fusion of the legislative and executive branches in parliament; the prime minister, who is the head of government, and the members of the cabinet, who are chosen from among the members of parliament and as such are accountable to the latter.
Another feature is that the prime minister may be removed from office by a vote of loss of confidence by the parliament. There may be a head of state who may or may not be elected (UP Law Center) and who usually merely exercises ceremonial functions.
14. Advantages of a unicameral form of legislature:
a. The Philippines is a simple and unitary state unlike the United States which is federal. There is no necessity for a bicameral system because there are no dual interests to be represented, i.e. the national or federal and local or state.
b. It is simple in organization and deals quickly with the problems of legislation.
c. It is more economical and would save a lot of because there is only one chamber.
d. It is free from deadlocks between the Senate and the House, as well as recriminations which usually plague a two-chambered body.
e. Responsibility is easily pinpointed there being only one deliberative body.
15. A unitary or centralized government is one in which the powers of government are vested in one supreme organ from which all local governing authorities derive their existence and powers.
The Philippine government is an example of a unitary form of government.
16. The essence of a unitary form of government is the fact that a single organization has been created by the sovereign people (the people) through their constitution, to which is left the task of providing for the territorial distribution of governmental powers with which it is invested. (Aruego and Laguio)
17. A federal form of government is one in which the governmental powers are, by the common sovereign, distributed between a central government and the local governments, each being supreme within its own sphere. (Aruego and Laguio)
DELEGATION OF POWERS
1. The two accepted tests to determine whether or not there is a valid delegation of legislative power are the Completion Test and the Sufficient Standard Test.
2. The Completeness Test which characterizes a valid delegation of legislative power means that the law being complete in itself must set forth the policy to be carried out by the delegate.
3. The Sufficient Standard Test which is a characteristic of a valid delegation of legislative power means that the limits to which the delegate must conform in the performance of his functions are determinate and determinable.
4. There is no undue delegation of legislative power when the VAT law provides that the President shall, effective January 1, 2006, raise to 12% the VAT rate. What was delegated was not the power to tax but only of the discretion as to the execution of the law. [Abakada Guro Party List (etc.) v. Ermita, etc., et al., G. R. No. 168056, September 1, 2005 and companion cases citing various cases]
5. Congress does not abdicate its functions or unduly delegate power when it describes what job must be done, who must do it, and what is the scope of his authority.
In the Abakada Guro case the President of the Philippines becomes merely the agent of the legislative department, to determine and declare the event upon which its expressed will takes place. The President cannot set aside the findings of the President, who is now under the conditions acting as the legislature’s alter ego or subordinate. [Abakada Guro Party List (etc.) v. Ermita, etc., et al., G. R. No. 168056, September 1, 2005 and companion cases citing various cases]
6. There is improper delegation of legislative authority if the law does not provide for the term of imprisonment leaving the same to the discretion of the court.
Declared invalid was the proviso in Sec. 32 of R. A. No. 4670 (The Magna Carta for Public School Teachers) to the effect that certain violations shall be penalized by a “fine of not less than one hundred pesos nor more than one thousand pesos or by imprisonment, in the discretion of the court.” (emphasis supplied)
Leaving to the court’s discretion the determination of the minimum and maximum term of imprisonment is granting a wide latitude to fix the imprisonment without any sufficient standard. This power is essentially legislative and may not be unduly delegated. (People v. Dacuycuy, 173 SCRA 90)
SEPARATION OF POWERS
1. The Ombudsman has disciplinary authority over all government employees, elective or appointive, except members of Congress and the Judiciary.
2. It is violative of separation of powers for Supreme Court to compel Congress to reinstate a member suspended for disorderly behavior. (Alejandrino v. Quezon, 46 Phil. 83; Osmena v. Pendatun, 109 Phil. 863)
3. A member of the judiciary may not be investigated by the Ombudsman because it would violate the separation of powers by encroaching upon the Supreme Court’s power of administrative supervision over all courts and their personnel. (Maceda v. Vasquez, 221 SCRA 454)
4. The doctrine of separation of powers is violated if the Ombudsman would investigate members of the Supreme Court for allegedly knowingly rendering an unjust decision. (In Re: Laureta, 148 SCRA 382)
5. A disadvantage of the separation of powers which is overcome by compromise between the contending parties. is that the Separation of Powers often impairs efficiency, in terms of dispatch and the immediate functioning of government.
It is the long-term staying power of government that is enhanced by the mutual accommodation required by the separation of powers. (Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008)
INHERENT POWERS OF GOVERNMENT
1. The three great inherent powers of government that may be exercised even without constitutional grant are police power, taxation and eminent domain.
Although inherent the exercise must not contravene the constitution and may be exercise only if there is a law which provides for the details of the exercise.
2. Police power is based on the twin concepts of salus populi est suprema lex and sic utere tuo ut alienum non laedas.
3. The two tests, requisites or limitations for valid exercise of police power are lawful subject and lawful means.
4. Lawful subject as a requisite for valid exercise of police power means that the interest of the public in general require an interference with private rights through the exercise of police power and not the interest of a particular subject.
5. Lawful means as a requisite for valid exercise of police power requires that the means adopted must be reasonably necessary for the accomplishment of the purpose.
A reasonable relation must exist between the purposes of the police measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded.
The means employed must not be unduly oppressive upon individuals. (City of Manila, et al., v. Laguio, etc., et al., G. R. No. 118127, April 12, 2005 citing various cases)
6. Other limitations if the exercise of police power is merely delegated to local government units:
a. The delegation is by express provision of law;
b. It must be exercised within the territorial limits of the delegate;
c. Exercise is not contrary to law.
7. Tests for the validity of an ordinance. It must not only be within the corporate powers of the local government unit to enact and must be passed according to the procedure prescribed by law, it must also conform to the following substantive requirements:
a. must not contravene the Constitution or any statute;
b. must not be unfair or oppressive;
c. must not be partial or discriminatory;
d. must not prohibit but may regulate trade;
e. must be general and consistent with public policy; and
f. must not be unreasonable. (City of Manila, et al., v. Laguio, etc., et al., G. R. No. 118127, April 12, 2005 citing Tatel v. Municipality of Virac, G. R. No. 40243, 11 March 1992, 207 SCRA 157, 161 and other cases)
8. Barangay Assembly or Liga ng mga Barangay both not being local government units cannot exercise legislative powers hence cannot exercise any policed power.
9. An ordinance prohibiting the establishment, within the Ermita-Malate Area of businesses such as sauna parlors, massage parlors, karaoke bars, beer houses, beer houses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels, inns. providing certain forms of amusement, entertainment, services and facilities where women are used as tools in entertainment and which tend to disturb the community, annoy the inhabitants, and adversely affect the social and moral welfare of the community and must therefore relocate outside of the Ermita-Malate area is not valid being an invalid exercise of police power because of the following reasons:
a. It violates the equal protection because it prohibits motels and inns but not pension houses, hotels, lodging houses or other similar establishments despite the fact that these establishments are all similarly situated.
b. it prohibits the business and operation of motels in the Ermita-Malate area but not outside of this area. There is no valid classification because a noxious establishment does not become any less noxious if located outside the area.
c. the standard “where women are used as tools for entertainment” is also discriminatory as prostitution – one of the ills the Ordinance aims to banish – not a profession exclusive to women. This discrimination based on gender violates equal protection as it is not substantially related to important government objectives. Thus, the discrimination is invalid.
d. The requisites for the valid exercise of police power are not met because there is no reasonable relation between the purposes of the ordinance and the means employed for its accomplishment. The purpose of the ordinance is the promotion and protection of the social and moral values of the community but the means used the closing down and transfer of business or their conversion into ‘allowed” business will not per se protect and promote the social and moral welfare of the community. It will not in itself eradicate the alluded social ills of prostitution, adultery, fornication nor will it arrest the spread of sexual disease in Manila. (En banc, Tinga, J. City of Manila, et al., v. Laguio, etc., et al., G. R. No. 118127, April 12, 2005)
10. There is no impairment of the obligations of contract where a zoning ordinance declared an area as commercial and a purchaser of a subdivision lot constructed a commercial building despite the restrictions in the deed of sale.
There was a valid exercise of police power because a zoning ordinance was enacted reclassifying certain areas to protect the health and safety of the residents as a result of the construction of the main highway that made residential living in the subdivision hazardous and dangerous to the health and safety of residents.
11. A law prohibiting certain types of advertisement (such for tobacco) is valid if it was adopted in the interest of the health, safety, and welfare of the people. (Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328)
12. The Laguna Lake Development Authority (LLDA) in the exercise of police powers granted under its enabling act may prohibit a municipality from operating a dump site. (Laguna Lake Development Authority v. Court of Appeals, et al., 231 SCRA 292)
13. The abatement of a nuisance is an exercise of police power, not of eminent domain, hence there is no need to pay just compensation.
14. Power of eminent domain is the “rightful authority, which exists in every sovereignty to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefit, as the public safety, necessity, convenience, or welfare may demand.” (Aruego and Laguio citing Cooley, Constitutional Limitations, Vol. II, p. 1110)
15. Power of eminent domain distinguished from police power.
a. In the exercise of the power of eminent domain the taking of property is for a public use WHILE in the exercise of police power, the taking is a mere incident to a valid regulation to promote public interest.
b. In the exercise of eminent domain, property or right of property is taken from the owner and transferred to a public agency to be enjoyed by it as its own WHILE in the exercise of the police power the taking of property or a right therein is accomplished not by transfer of ownership but by destroying the property or impairing its value. (Aruego and Laguio)
16. Constitutional limitations on the exercise of eminent domain.
a. Due process clause and equal protection clause;
b. Private property shall not be taken for public use without adequate compensation. (Lagcao v. Labra, G. R. No. 155746, October 13, 2004)
17. Local governments have no inherent power of eminent domain unless specifically granted. By virtue of Section 19 of the Local Government Code, Congress conferred upon LGU’s the power to expropriate. While housing is one of the most serious problems of the country, LGU do not possess unbridled authority to exercise their power of eminent domain in seeking solutions to this problem. Their power is limited by Rep. Act No. 7279, the law that governs expropriation of lands for purposes of urban land reform. Lagcao v. Labra, G. R. No. 155746, October 13, 2004)
18. Rep. Act No. 7279 is the law that governs the local expropriation of property for purposes of urban land reform. The following are its appropriate provisions:
“SEC. 9. Priorities in the Acquisition of Land. - Lands for socialized housing shall be acquired in the following order:
a) Those owned by the Government or any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries;
b) Alienable lands of the public domain;
c) Unregistered or abandoned and idle lands;
d) Those within the declared Areas or Priority Development, Zonal Improvement Program sites, and Slum Improvement and Resettlement Program sites, which have not yet been acquired;
e) Bagong Lipunan Improvement of Sites and Services or BLISS which have not yet been acquired; and
f) Privately-owned lands.
“Where on-site development is found more practicable and advantageous to the beneficiaries, the priorities mentioned in this section shall not apply. The local government units shall five budgetary priority to on-site development of government lands.
“SEC.10. Modes of Land Acquisition.- The modes of acquiring lands for purposes of this Act shall include, among others, community mortgage, land swapping, land assembly or consolidation, land banking, donation to the Government, joint venture agreement, negotiated purchase, and expropriation: Provided, however, That expropriation shall be resorted to only when other modes of acquisition have been exhausted: provided further, That where expropriation is resorted to, parcels of land owned by small property owners shall be exempted for purposes of this Act: x x x “
19. The acquisition of property for social housing is for public use which is not diminished by the fact that only a few and not everyone will benefit from the expropriation. (Philippine Columbian Association v. Panis, 228 SCRA 668)
20. Condemnation of small lots not intendment of power of eminent domain. Condemnation of private lands in an irrational or piecemeal fashion or the random expropriation of small lots to accommodate no more than a few tenants or squatters is certainly not the condemnation for public use contemplated by the Constitution. This is depriving a citizen of his property for the convenience of a few without perceptible benefit to the public. (Lagcao v. Labra, G. R. No. 155746, October 13, 2004 citing Urban Estates, Inc. v. Montesa, 88 Phil. 348 )
21. Reconciliation between holding in Philippine Columbian Association and Lagcao. Philippine Columbian benefits to few does not result to invalidity of expropriation WHILE Lagcao refers to expropriation of small parcels as invalidating expropriation.
22. Local governments do not have inherent power of eminent domain unless specifically granted. By virtue of the Local Government Code, Congress conferred upon LGU’s the power to expropriate.
While housing is one of the most serious problems of the country, LGU do not possess unbridled authority to exercise their power of eminent domain in seeking solutions to this problem. (Lagcao v. Labra, G. R. No. 155746, October 13, 2004)
23. A private commercial complex may not be expropriated so that the profits from its operation by the government would be used to finance housing projects for government employees. It is a taking for private purpose. (Manotok v. National Housing Authority, 150 SCRA 89)
24. A city ordinance which expropriates a parcel of land cannot fix the value of land, even if it is based on fair market value at the time of enactment ,because there may be supervening events which may change such value at the time of taking.
25. The legal rate of 6% should be used in computing interest on just compensation. CB Circular No. 416 which increased the legal interest to 12% is applicable only to loans and not to expropriation proceeds. (National Power Corporation v. Angas, 208 SCRA 542)
25. A judge cannot validly withhold the issuance of a writ of possession in expropriation while awaiting full payment. The government could immediately take possession of the property upon deposit of the provisional value with the National or Provincial Treasurer. (National Power Corporation v. Jocson, 206 SCRA 520)
26. The Department of Agrarian Reform cannot require a local government unit to secure an authority from it before converting an expropriated agricultural land to be converted into a housing project for the poor. To require such, would result to the DAR determining the public use to which the expropriated property shall be devoted which is the prerogative of the LGU. (Province of Camarines Sur v. Court of Appeals, 222 SCRA 173)
27. Power of taxation can also be used to implement power of eminent domain. Tax measures are but ”enforced contributions exacted on pain of penal sanctions” and “clearly imposed for public purpose.” In most recent years, the power to tax has indeed become a most effective tool to realize social justice, public welfare, and the equitable distribution of wealth. (Commissioner of Internal Revenue v. Central Luzon Drug Corporation, G.R. No. 159647, April 16, 2005)
28. Social justice cannot be invoked to trample on the rights of property owners. It is not intended to take away rights from a person and give them to another who is not entitled thereto. For this reason a just compensation for income that is take away from establishments becomes necessary.
It is in the tax credit (now tax deduction under current law) that our legislators find support to realize social justice, and no administrative body can alter that fact. (Commissioner of Internal Revenue v. Central Luzon Drug Corporation, G.R. No. 159647, April 16, 2005)
STATE IMMUNITY FROM SUIT
Refer to PUBLIC INTERNATIONAL LAW, infra for a discussion of the sovereign state immunity of foreign states.
1. State immunity from suit means that the state may not be sued without its consent. A corollary of such principle is that properties used by the State in the performance of its governmental functions cannot be subject to judicial execution.
2. The two kinds of sovereign immunity are absolute immunity and restrictive immunity.
3. Under absolute immunity all acts of state are protected by sovereign immunity.
4. Under restrictive immunity there is a distinction made between jure imperii the sovereign and government acts which is covered by the immunity compared with jure gestonis in which the State’s private, commercial and proprietary acts are not immune from suit. The Philippines adheres to restrictive sovereign immunity. (United States v. Ruiz, 136 SCRA 487, 490-491)
5. Consent of a state to be sued may be express or implied.
6. Consent is express when a law is passed providing conditions under which the state may be sued. (Com. Act No. 327 as amended by P.d. No. 1445)
7. Consent may also be implied from the following acts.
a. A government waives its immunity if it sues thus a counterclaim may be interposed against it. (Froilan v. Pan Oriental Shipping Co., 95 Pil.905)
b. A government agency created for irrigation may not invoke State immunity from suit because it has a personality separate from the National Government and has the capacity to sue and be sued. Furthermore, irrigation is a proprietary function. (Fontanilla v.Maliaman, 179 SCRA 685; 194SCRA 486)
There was an unconditional waiver when the enabling statute was passed creating the agency hence the waiver may include an action based on a quasi-delict. (Rayo v. CFI of Bulacan, 110 SCRA 456)
c. A landowner whose property was taken by the government without prior expropriation or negotiated sale may sue the government because it is deemed to have waived its immunity. Otherwise, the guaranty that private property shall not be taken without compensation would be inutile. (Ministerio v. CFI of Cebu, 40 SCRA 464)
8. Waiver of the State of its immunity does not mean that it is admitting liability. (Philippine Rock Industries, Inc. v. Board of Liquidators, 180 SCRA 171) It means that the State in allowing itself to be sued is merely giving the plaintiff an opportunity to prove its case but the State does not waive its lawful defenses.
Consent to suit does not include consent to attachment of property for foreign sovereign. (Dexter v. Carpenter v. Kunglig Jarnvagsstyrelsen, 43F2d 705)
1. The essential parts of a good written constitution.
a. Constitution of liberty
1) Fundamental civil and political rights
2) Limitation on governmental powers
b. Constitution of government
1) Organization of government
2) Enumeration of powers and rules relative to administration
c. Constitution of sovereignty
1) Procedure for amendment
Art. I. NATIONAL TERRITORY
1. The national territory comprises of the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction,
a. consisting of its terrestrial, fluvial and aerial domains.
b. Including its territorial sea, the seabed, the subsoil, the insular shelves and other submarine areas.
c. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (Art. I, 1987 Constitution, arrangement and numbering supplied)
2. Archipelagic doctrine emphasizes the unity of land and waters by defining an archipelago either as a group of islands surrounded by waters or a body of waters studded with islands.
For this purpose, the doctrine requires that baselines be drawn by connecting the appropriate points of the outermost islands to encircle the islands within the archipelago. The waters on the landward side of the baselines regardless of breadth or dimensions are merely internal waters.
3. Territorial sea is the adjacent belt of sea with a breadth of twelve (12) nautical miles measured from the baselines of a state and over which the state has sovereignty. (Articles 2 and 3, Convention on the Law of the Sea)
Ships of all states enjoy the right of innocent passage through the territorial sea. (Article 14,Convention on the Law of the Sea)
4. Internal waters are the waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (Article 1, 1987 Constitution)
There is no right of innocent passage for foreign vessels in the case of internal waters.
5. Contiguous zone is a zone contiguous to the territorial sea and extends up to twelve (12) nautical miles from the territorial sea and over which the coastal state may exercise control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea. (Article 33 of the Convention on the Law of the Sea)
6. Exclusive economic zone. A zone extending up to 200 nautical miles from the baselines of a state over which the coastal state has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and subsoil, and with regard to other activities for the economic exploitation and exploration of the zone. (Articles 56 and 57, Convention on the Law of the Sea)
7. Rights of the coastal state in the exclusive economic zone:
a. Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and subsoil,
b. Sovereign rights with regard to other activities for the economic exploitation and exploration of the zone or EEZ such as production of energy from water, currents and winds;
c. Jurisdictional right with respect to establishment and use of artificial islands;
d. Jurisdictional right as to protection and preservation of the marine environment;
e. Jurisdictional right over marine scientific research; and
f. Other rights and duties provided for in the Law of the Sea Convention. (Article 56, Convention on the Law of the Sea)
7. Flag state means that a ship has the nationality of the flag it flies, but there must be a genuine link between the state and the ship. (Article 91, Convention of the Law of the Sea)
8. Flag of convenience. The flag of a country in which a merchant ship is registered solely in order to save on taxes and avoid the more stringent regulations imposed by other countries regarding such matters as safety, wages, environmental controls and working conditions. (Webster Randon)
Art. II DECLARATION OF PRINCIPLES AND STATE POLICIES
1. The doctrine of incorporation means that generally accepted principles of international law are incorporated as part of the law of the land without need of legislative enactment.
2. “The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.” (Art. II, Sec. 3, 1987 Constitution)
3. Armed Forces of the Philippines distinguished from the Philippine National Police.
a. Functions. The function of the AFP is to protect the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory WHILE that of the PNP is to maintain peace and order, and to protect life and property.
b. Confirmation. Appointment of AFP officers from the rank of colonel or naval captain are subject to confirmation by the Commission on Appointments WHILE such confirmation is required for PNP officers of the same level.
c. The AFP is basically military in character and its personnel are not members of the civil service WHILE the PNP is civilian in character and its personnel are members of the civil service.
d. No member of the AFP in the active service shall at any time be appointed or designated to a civilian position in the Government including government-owned or controlled corporations or any of their subsidiaries WHILE such constitutional prohibition does not find application to PNP members.
4. Constitutional provisions that institutionalize the principle of civilian supremacy.
a. Civilian authority is, at all times, supreme over the military. (Art. II, Sec. 3, 1st sentence)
b. The President shall be the Commander-in-Chief of all armed forces of the Philippines. (Art. VII, Sec. 18, 1st sentence)
c. All members of the armed forces shall take an oath or affirmation to uphold and defend the Constitution. [Art. XVI, Sec. 5 (1)]
d. The State shall strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people’s rights in the performance of their duties. [Art. XVI, Sec. 5 (1)]
e. No member of the military shall engage directly or indirectly in any partisan political activity, except to vote. [Art. XVI, Sec. 5 (3), 2nd par.]
1. The State policy on ecology. “The State shall protect and advance the right of the people and their posterity to a balanced and healthful ecology in accord with the rhythm and harmony of nature.” (Sec. 16, Art. II, 1987 Constitution)
2. The State policy on cultural minorities. “The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.” (Sec.22, Art. II, 1987 Constitution)
Art. III BILL OF RIGHTS
1. Civil rights refers to the rights secured by the constitution of any state or country to all its inhabitants and not connected with the organization or administration of government. It defines the relations of individuals among themselves.
They are rights capable of being enforced or redressed in a civil action. (Republic v. Sandiganbayan, et al., G. R. No. 104768, July 21, 2003)
2. Examples of civil rights are the rights against involuntary servitude, religious freedom, guarantee against unreasonable searches and seizures, liberty of abode, etc.
3. A contract may not impair the basic civil rights of marriage and procreation. These are part of the liberty protected under the due process clause. Waiver of basic human rights is void. Contractual property rights could not prevail over basic human rights.
4. Human rights are the basic natural rights which inherent man because of his humanity. The right to life, dignity and existence may be considered as human rights.
5. Political rights consist in the power to participate directly or indirectly, in the management of the government. It defines the relations between the individuals and the state.
6. Examples of political rights are the right of suffrage, right of assembly, right to petition the government for redress of grievances.
7. Distinctions between civil rights and political rights:
a. Civil rights refers to all constitutionally guaranteed and protected not connected with the organization or administration of government WHILE political rights are those related to the establishment, management or support of the government;
b. Civil rights defines the relations between individuals WHILE political rights defines the relations between individuals and the State;
c. Civil rights extend protection to all inhabitants of a State WHILE political rights protect only citizens. (UP Law Center)
8. Distinctions between human rights on one hand, and civil and political rights on the other.
a. The scope of human rights is broader than civil and political rights. Human rights also include social, economic, and cultural rights.
b. Human rights are natural rights that are inherent in every person because they exist as humans. Every human being possess them everywhere, anywhere irrespective of national boundaries as a result of his being human WHILE some civil and political rights require that a statute should grant them. (UP Law Center)
1. “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.” (Sec. 1, Article III, 1987 Philippine Constitution)
2. Liberty as to come under constitutional protection is not mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the faculties with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare.” (City of Manila, et al., v. Laguio, etc., et al., G. R. No. 118127, April 12, 2005 citing Rubi v. Provincial Board, 39 Phil.660 (1919),as cited in Morfe v. Mutuc,130 Phil. 415,440; 22 SCRA 424, 440 (1968)]
3. There is no controlling and precise definition of due process.
It furnishes though a standard to which governmental action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid.
This standard is aptly described as a responsiveness to the supremacy of reason, obedience to the dictates of justice, [City of Manila, et al., v. Laguio, etc., et al., G. R. No. 118127, April 12, 2005 citing Ermita-Malate Hotel and Motel Operators Association, Inc .v. City Mayor of Manila, 20SCRA 849,860 (1967)] and as such it is a limitation upon the exercise of the police power. [City of Manila, et al., supra citing In re Lutker, Okl. Cr. 274P. 2d 786, 789,790)
Due process includes the right to decisional privacy, which refers to the ability to make one’s own decisions and act on those decisions free from governmental or other unwanted interference. ]Grisworld v. Connecticut, 381 U.S. 415 (1965)]
This clause has been interpreted as imposing two separate limits on government, usually called “procedural due process” and ”substantive due process.” . ( City of Manila, et al., supra)
4. Purpose of guaranty of due process.
a. To prevent governmental encroachment against the life, liberty and property of individuals;
b. to secure the individual from the arbitrary exercise of the powers of the government, unrestrained by the established principles of private rights and distributive justice;
c. to protect property from confiscation by legislative enactments, from seizure, forfeiture, and destruction without a trial and conviction by the ordinary mode of judicial procedure; and
d. to secure to all persons equal and impartial justice and the benefit of the general law. [City of Manila, et al., v. Laguio, etc., et al., G. R. No. 118127, April 12, 2005 citing 16 C.J.S.,pp.1150-1151,numbering supplied)
The guaranty serves as a protection against arbitrary regulation, and private corporations and partnerships are persons within the scope of the guaranty insofar as their property is concerned. [City of Manila, et al., supra, citing Smith, Bell & Co. v. Natividad, 40 Phil.136, 145 (1919)]
5. Procedural due process are the procedures that the government must follow before it deprives a person of life, liberty, or property.
Classic procedural due process issues are concerned with what kind of notice and what form of hearing the government must provide when it takes a particular action. [City of Manila, et al., v. Laguio, etc., et al., G. R. No. 118127, April 12, 2005 citing Cherimsky, Erwin, Constitutional Law Principles and Policies, 2nd Ed. 523(2002)]
6. Substantive due process asks whether the government has an adequate reason for taking away a person’s life, liberty, or property.
In other words, substantive due process looks to whether there is a sufficient justification for the government’s action. [City of Manila, et al., v. Laguio, etc., et al., G. R. No. 118127, April 12, 2005 citing Cherimsky, Erwin, Constitutional Law Principles and Policies, 2nd Ed.(2002), at pp. 523-524]
7. Rate increases which public utilities may charge shall be promulgated only by government regulatory bodies after proper notice and hearing. However, if the increase is merely provisional in character, it may be issued pending notice and hearing. (Philippine Communications Satellite Corporation v. Alcuaz, 180 SCRA 218) If the provisional rate increase is to be made permanent there is mandatory notice and hearing.
8. Administrative due process does not require the actual taking of testimony or the presentation of evidence before the same officer who will decide the case. (Adamson & Adamson v. Amores, 152 SCRA 237)
9. There is due process even if the complainant, the prosecutor and the hearing officers are all connected with one office and all subordinates of the deciding officer because the findings of the subordinates are not binding upon the head of office who is the deciding officer.
What is important is that the respondent was allowed to present his side and the proof he has adduced supports the decision. (Erlanger & Galinger, Inc. v. Court of Industrial Relations, 110 Phil. 470)
10. Through its October 22, 1991 Resolution, the Supreme Court prohibited live radio and TV coverage of court proceedings to protect the due process rights of the parties, prevent distraction of the participants, and to avoid a miscarriage of justice.
11. An Executive Order of a City Mayor may not prohibit artificial methods of birth control such as the use of condoms, pills, intrauterine devices, vasectomy and other methods of surgical sterilization, etc. in public hospitals but not in private clinics because it would violate due process and equal protection. The women’s freedom of choice shall be curtailed and would discriminate against poor women who cannot afford to pay the fees charged by private clinics.
1. The criteria of equal protection and uniformity, are used interchangeably and is met:
a. when the laws operate uniformly
1) on all persons
2) under similar circumstances
b. all persons are treated in the same manner
1) the conditions not being different
2) both in privileges conferred and liabilities imposed
3) favoritism and preference not allowed.
2. The commands of the equal protection clause are addressed only to the state or those acting under the color of its authority. (Duncan Association of Detailmen-PTGWO, et al., v. Glaxo Wellcome Philippines, Inc., G. R. No. 1629934, September 17, 2004)
3. Requisites of valid classification.
a. There must be substantial distinctions which must make for real differences.
b. The classification must be germane to the issue.
c. It must apply not only to existing conditions but future conditions as well.
d. It must be applicable to all members of the same class. (People v. Cayat, 68 Phil. 12; People v. Vera, 65 Phil. 56)
4. The equal protection clause does not take away from the State the power to classify in the adoption of police power laws, but admits of the exercise of the wide scope of discretion in that regard and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. [Re: (a) Request of Assistant Court Administrators, etc., A. M. No. 03-10-05-SC, October 1, 2004; Re: Request for the Grant of Special Distortion Allowance ,etc., A. M. No. 03-11-25-SC, October 1, 2004 citing Lao Ichong v. Hernandez, 101 Phil. 1155 (1957)]
5. The legislature is not required by the Constitution to adhere to a policy of “all or none.” [Re: (a) Request of Assistant Court Administrators, etc., A. M. No. 03-10-05-SC, October 1, 2004; Re: Request for the Grant of Special Distortion Allowance ,etc., A. M. No. 03-11-25-SC, October 1, 2004 citing De Guzman v. Commission on Elections, G.R. No. 129118, July 19, 2000, 336 SCRA 188]
If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied. (Ibid.) Nevertheless, equal protection should extend to every person under circumstances, which, if not identical, are analogous. (Ibid., citing Basco v. Phil. Amusements and Gaming Corp., G. R. No. 91649, May 14, 1991, 197 SCRA 52)
6. Law prohibiting Chinese citizens from engaging in retail trade violates the equal protection clause. The law discriminates only against Chinese citizens without any valid grounds shown for such classification. There must be a basis to discriminate other than on the basis of citizenship alone.
7. Tests used by the U.S. Supreme Court to determine the validity of a classification and compliance with the equal protection clause.
a. The traditional (or rational basis) test.
b. The strict scrutiny (or compelling interest) test.
c. The intermediate level of scrutiny (or quasi-suspect class) test.
8. The traditional (or rational basis) test. The classification is valid if it is rationally related to a constitutionally permissible state interest.
The complainant must prove that the classification is “invidious,” “wholly arbitrary,” or ”capricious,” otherwise the classification is presumed to be valid. (Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61; McGowan v. Maryland, 366 U.S. 420; United States Railroad Retirement Board v. Fritz, 449 U.S. 166)
9. The strict scrutiny (or compelling interest) test. Government regulation that intentionally discriminates against a “suspect class” such as racial or ethnic minorities, is subject to strict scrutiny and considered to violate the equal protection clause unless found necessary to promote a compelling state interest.
A classification is necessary when it is narrowly drawn so that no alternative, less burdensome means is available to accomplish the state interest.
Thus, it was held that denial of free public education to the children of illegal aliens imposes an enormous and lasting burden based on a status over which the children have no control is violative of equal protection because there is no showing that such denial furthers a “substantial” state goal. (Plyler v. Doe, 457 U.S. 202)
10. The intermediate level of scrutiny (or quasi-suspect class) test. Classification based on gender or legitimacy are not “suspect,” but neither are they judged by the traditional or rational basis test.
Intentional discriminations against members of a quasi-suspect class violate equal protection unless they are substantially related to important government objectives. (Craig v. Boren, 429 U.S. 190)
Thus, a state law granting a property tax exemption to widows, but not widowers, has been held valid for it furthers the state policy of cushioning the financial impact of spousal loss upon the sex for whom that loss usually imposes a heavier burden. (Kahn v. Shevin, 416 U.S. 351)
11. The standard used in the analysis of equal protection challenges in the Philippines in the main have followed the “rational basis” test coupled with a differential attitude to legislative classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution. (Central Bank etc., v. Bangko Sentral ng Pilipinas, etc., G. R. No. 148208, December 15, 2004)
12. Tests to determine whether there is justification in taking. Case law in the United States (U.S.) tells us that whether there is such a justification depends very much on the level of scrutiny used. [City of Manila, et al., v. Laguio, etc., et al., G. R. No. 118127, April 12, 2005 citing County of Sacramento v. Lewis,523 U.S. 833, 840(1998)]
For example, if a law is in an area where only rational basis review is applied, substantive due process is met so long as the law is rationally related to a legitimate government purpose. But if it is an area where strict scrutiny is used, such as for protecting fundamental rights, then the government will meet substantive due process only if it can prove that the law is necessary to achieve a compelling government purpose. . [City of Manila, et al., v. Laguio, etc., et al., supra 5 citing Cherimsky, Erwin, Constitutional Law Principles and Policies, 2nd Ed.(2002), at p. 524]
13. Two remedial alternatives courts face in sustaining the claim against a constitutionally underinclusive scheme”
a. It may declare the statute a nullity and order that its benefits not extend to the class that the legislature intended to benefit or
b. it may extend to the coverage of the statute to include those aggrieved by the exclusion. [Re: (a) Request of Assistant Court Administrators, etc., A. M. No. 03-10-05-SC, October 1, 2004; Re: Request for the Grant of Special Distortion Allowance ,etc., A. M. No. 03-11-25-SC, October 1, 2004 citing Heckler v. Matthews, 465 US 728, 79 L Ed. 2e 646, 104 S Ct. 1387 (1984)]
14. The VAT law does not violate the due process and equal protection clauses when it reduced the input credits to only 70% of output VAT because input VAT is not property or a property right within the constitutional purview of the due process clause being merely a statutory privilege. Persons have no vested rights in statutory privileges.
The state may change or take away rights, which were created by law of the state, although it may not take away property, which was vested by virtue of such rights. [Abakada Guro Party List (etc.) v. Ermita, etc., et al., G. R. No. 168056, September 1, 2005 and companion cases citing United Paracale Mining Co. V. Dela Rosa, G.R. No. 63786-87, April 7, 1993, 221 SCRA 108, 115)]
15. There is no such thing as “political libel” exempt from penalty. Unfounded and malicious statements made by one against another in the course of an election campaign, or by reason of differences in political views are not per se constitutionally protected. Although wider latitude is given to defamatory utterances against public officials in connection with or relevant to their performance of official duties (Brillante v. Court of Appeals, et al., G.R. Nos. 118757 & 121571, October 19, 2004 citing Orfanel v. People 141 Phil. 519; 30 SCRA 819 (1969); U.S. v. Bustos, 13 Phil. 690, 701), or against public figures in relation to matters of public interest involving them [Ibid., Ayer Productions v .Capulong, G.R. Nos. L-82830,L-82398, April 29, 1988, 160 SCRA 861; U.S. v. Canete, 38 Phil. 253 (1918)], such defamatory utterances do not automatically fall within the ambit of constitutionally protected speech.
16. The equal protection clause is not absolute; rather it permits of reasonable classification. If the classification is characterized by real and substantial differences, one class may be treated differently from another. It is sufficient that the law operates equally and uniformly on all persons under similar circumstances or that all persons are treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. (Brillante v. Court of Appeals, et al., G.R. Nos. 118757 & 121571, October 19, 2004 citing various cases)
17. Under the privilege of “neutral reportage” in libel cases involving matters of public interest in public figures a republisher who accurately and disinterestedly reports certain defamatory statements made against public figures is shielded from liability, regardless of the republisher’s subjective awareness of the truth or falsity of the accusation. (Filipinas Broadcasting Network Inc. v. Ago Medical and Educational Center Bicol Christian College of Medicine (AMEC-BCCM), et al., G.R. Mo. 141994, January 17, 2005 citing 50 Am.Jur. 2d Libel and Slander Sec.313)
18. The doctrine of “fair comment” states that fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander.
It means that while in general every discreditable imputations publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed to be malicious, nevertheless, when the discreditable imputation is made against a public person in his official capacity, it is not necessarily actionable.[Filipinas Broadcasting Network Inc. v. Ago Medical and Educational Center Bicol Christian College of Medicine (AMEC-BCCM), et al., G.R. Mo. 141994, January 17, 2005 citing Borjal v. Court ofAppeals,361 Phil. 1; 301 SCRA 1 (1999)]
19. For imputations against an official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition.
If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, so long as it might reasonably be inferred from the facts.” [Filipinas Broadcasting Network Inc. v. Ago Medical and Educational Center Bicol Christian College of Medicine (AMEC-BCCM), et al., G.R. Mo. 141994, January 17, 2005 citing Borjal v. Court ofAppeals,361 Phil. 1; 301 SCRA 1 (1999)]
20. Attacks against public figures not necessarily libellous unless there is actual malice which means that the statement was made with knowledge that it was false or with reckless regard of whether it was false or not. [Borjal v. Court ofAppeals,361 Phil. 1; 301 SCRA 1 (1999)]
21. The imposition of subsidiary imprisonment upon a convict who is too poor to pay a fine violates equal protection because economic status cannot serve as a valid basis for distinguishing the duration of the imprisonment between a convict who is able to pay the fine and one who is not able to pay it. (Tate v. Short, 401 U. S. 395)
CONTRARY STATEMENT: There is no violation of equal protection because punishment should not be tailored to fit the individual, and equal protection does not compel the eradication of every disadvantage caused by poverty. (U.S. ex rel. Previtera v. Kross,382 U.S. 911)
RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE
1. Constitutional protection. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of what ever nature whatever and for any purpose shall be inviolable and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized. (Art. III, Sec. 2, 1987 Constitution)
Search and seizure without a judicial warrant becomes “unreasonable” and any evidence obtained therefrom is inadmissible for any purpose in any proceeding. (People v. Nuevas, et al., G. R. No. 170233, February 22, 2007)
The constitutional prohibition against unreasonable searches and seizures is a restraint upon the government and not upon private parties. (Waterous Drug Corporation v. National Labor Relations Commission, 280 SCRA 735)
2. A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. (Sec. 4, Rule 126, ROC, arrangement and numbering supplied)
3. Authority to issue search warrant inherent in all courts. A search warrant is merely a process issued by the court in the exercise of its ancillary jurisdiction and not a criminal action which it may entertain pursuant to its original jurisdiction. The authority to issue search warrants is inherent in all courts and may be effected outside their territorial jurisdiction. (Savage, etc. v. Taypin, et al., G.R. No. 134217 May 11, 2000)
4. Application for search warrant does not require certification of no forum shopping. The Rules of Court as amended requires the certification of no forum shopping only for initiatory pleadings, omitting any mention of “applications.” The old Supreme Court Circular 04-94, the old rule on the matter, required such certification even from “applications.” The absence of such certification will not result in the dismissal of an application for search warrant. (Savage, etc. v. Taypin, et al., G.R. No. 134217 May 11, 2000)
5. Sufficiency of description of place to be searched. The rule is that a description of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended to be searched. (People v. Salanguit, G.R. Nos. 133254-55, April 19, 2001)
6. Lack of probable cause does not invalidate warrant if item was not seized. The fact that there was no probable cause to support the application for the seizure of the drug paraphernalia does not warrant the conclusion that the search warrant is void. This fact would be material only if drug paraphernalia was in fact seized. The warrant is valid for the other items where probable cause exist. (People v. Salanguit, G.R. Nos. 133254-55, April 19, 2001)
7. Police officers lawfully searching for firearms ‘inadvertently ” found cocaine in plain view” may lawfully seize the same. (Magoncia v. Palacio, 80 Phil. 770)
8. A lawful search with is not invalidated by the failure of the searching officers to inform the owner of her right to be silent and to counsel.
These rights may be invoked only if there is custodial investigation where a suspect has been identified and is under investigation. (People v. Dy, 158 SCRA 111)
9. Articles described in the warrant may be lawfully seized even if found in a neighboring place, which is other than that shown in the warrant, because their possession is illegal. (Magoncia v. Palacio, 80 Phil. 770)
10. Instances of valid warrantless searches and seizures. Alternatively, when there could be valid warrantless search and seizure.
a. Search incident to a lawful arrest.
b. When it involves prohibited articles in "plain view."
c. Search of a moving vehicle,
d. Consented warrantless search.
e. Customs searches. (People v. Escano, et al., G.R. Nos. 129756-58, January 28, 2000)
f. Searches without warrant of automobiles to prevent violations of smuggling or immigration laws. g. Terry search; and
h. Exigent and emergency circumstances. (People v. Nuevas, et al., G. R. No. 170233, February 22, 2007)
11. Search in incident to a lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. (Sec. 13, Rule 126, ROC)
12. Warrantless search as an incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense.
The lawful arrest being the sole justification for the validity of the warrantless search under the exception, the same must be limited to and circumscribed by the subject, time and place of the arrest.
13. As to subject, the warrantless search as an incident of a lawful arrest is sanctioned only with respect to the person of the suspect, and things that may be seized from him are limited to “dangerous weapons” or “anything which may be used as proof off the commission of the offense.”
14. With respect to time and place of the warrantless search incident to a lawful arrest, it must be contemporaneous with the lawful arrest.
Stated otherwise, to be valid the search must be conducted at about the time of the arrest or immediately thereafter and only at the place where the suspect was arrested, or the premises or surroundings under his immediate control. (People v. Ting, etc., G.R. Nos. 130568-69, March 21, 2000) The search may extend beyond the person of the one arrested to include the permissible area or surroundings within his immediate control.
15. Terry search. "Stop and frisk" is a "limited protective search of outer clothing for weapons."
While probable cause is not required to conduct a "stop and frisk," mere suspicion or a hunch will not invalidate it. (Malacat v. Court of Appeals, G.R. No. 123595, December 12, 1997; People v. Escano, et al., G.R. Nos. 129756-58, January 28, 2000)
16. There is a difference between the concepts of "stop and frisk" search and of search incidental to a lawful arrest where a precedent arrest determines the validity of the incidental search.
There could be no valid warrantless arrest in flagrante delicto nor a "hot pursuit" arrest preceding the search if there is a lack of personal knowledge on the part of the arresting office or an overt physical act on the part of the accused, indicating that a crime had just been committed, was being committed, or was going to be committed. (Malacat v. Court of Appeals, G.R. No. 123595, December 12, 1997)
17. The plain view doctrine. Objects falling within the 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.
18. The “plain view” doctrine applies when the following requisites concur:
a. the law enforcement officer in search of the evidence must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area.
b. The object must be open to eye and hand;
b. the discovery of the evidence in plain view is inadvertent;
c. it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. (People v. Doria, 301 SCRA `668, 710 - 711 cited in People v. Elamparo, G.R. No. 121572, March 31, 2000)
19. No need for further search. The “plain view” justifies the seizure of evidence without need of further search. (People v. Compacion, G.R. No. 1242, July 20, 2001; People v. Aspiras, G.R. No. 138382-84, February 12, 2002)
20. Where the object seized was inside a closed package, and the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized.
In other words, 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. (Caballes v. Court of Appeals, et al., G.R. No. 126292, January 15, 2002)
21. Warrantless search of vehicles. The rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality.
This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge – a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can properly transport contraband from one place to another with impunity.
A warrantless search of a moving vehicle is justified on the ground that it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. (Caballes v. Court of Appeals, et al., G.R. No. 136292, January 15, 2002)
22. Probable cause should exist for warrantless searches of vehicles. The mere mobility of vehicles does not give the police unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and in the absence of probable cause.
Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case. (Caballes v. Court of Appeals, et al., G.R. No. 136292, January 15, 2002)
23. The term probable cause for warrantless search of vehicles eludes exact definition but it
a. signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief that the person accused is guilty of the offense with which he is charged; or
b. the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched.
The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of each case. (Caballes v. Court of Appeals, et al., G.R. No. 136292, January 15, 2002)
24. One form of search on vehicles is the “stop-and-search” without warrant at military or police checkpoints which has been declared to be not illegal per se, for as long as it is warranted by the exigencies of public order and conducted in a way least intrusive to motorists. A checkpoint may either be a mere routine inspection or it may involve an intensive search. (Caballes v. Court of Appeals, et al., G.R. No. 136292, January 15, 2002)
25. Routine inspections are not regarded as violative of an individual’s right against unreasonable search. The search which is normally permissible is limited to the following instances:
a. where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds;
b. simply looks into a vehicle;
c. flashes a light therein without opening the car’s doors;
d. where the occupants are not subjected to a physical or body search;
e. where the inspection of the vehicles is limited to a visual search or visual inspection; and
f. where the routine check is conducted at a fixed area. (Caballes v. Court of Appeals, et al., G.R. No. 136292, January 15, 2002)
25. The physical intrusion of the body of the police officer into a vehicle would allow him to see and to smell things he could not see or smell from the outside violates the constitution.
26. Consented searches or waiver of the constitutional guarantee, against obtrusive searches requires that to constitute a valid waiver, it must first appear that:
a. The right exists;
b. The person involved had knowledge, either actual or constructive, of the existence of such right; and
c. The said person had an actual intention to relinquish the right. (People v. Figueroa, et al., G.R. No. 124056, July 6, 2000)
d. The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. (Caballes v. Court of Appeals, et al., G.R. No. 136292, January 15, 2002)
26. Characteristics of person giving consent to determine validity of consent. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given:
a. the age of the defendant;
b. whether he was in a public or secluded location;
c. whether he objected to the search or passively looked on;
d. the education and intelligence of the defendant;
e. the presence of coercive police procedures;
f. the defendant’s belief that no incriminating evidence will be found;
g. the nature of the police questioning;
h. the environment in which the questioning took place; and
i. the possibly vulnerable subjective state of the person consenting.
It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given. (Caballes v. Court of Appeals, et al., G.R. No. 136292, January 15, 2002)
27. There was valid consented search where the accused accompanied police officers to his house in order to surrender his share of the ransom money. He even brought them to his room upstairs. The consent of the owner of the house to the search effectively removed any badge of illegality, (People v. Deang, et al, G.R. No. 128045, August 24, 2000)
28. The act of the accused in allowing the members of the military to enter his premises and his consequent silence during the unreasonable search and seizure could not be construed as voluntary submission or an implied acquiescence to warrantless search and seizure, especially so when members of the raiding team were intimidating numerous and heavily armed. (People v. Compacion, G.R. No. 12442, July 20, 2001)
29. A peaceful submission to a search or seizure is not consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. (People v. Cubcubin, Jr., G.R. No. 136267, July 20, 2001)
30. Scope of search pursuant to airport security procedure is not confined to search for weapons under the “Terry search” doctrine. This is authorized under the Anti-Hijacking Law.
Thus, a strip search is conducted by airport security inside the ladies room is not a search after a lawful arrest but in pursuance of law is valid. (People v. Canton, G. R. No. 148825,December 27, 2002)
31. Warrantless customs search. REASONS why there is no necessity for the Bureau of Customs to secure a judicial search warrant where the place to be searched is not a dwelling place:
a. There should be no unnecessary hindrance on the government’s drive to prevent smuggling and other frauds upon the Customs;
b. To render effective and efficient the collection of import and export duties due the State, which enables the government to carry out the functions it has been instituted to perform (Jao, et al., v. Court of Appeals, et al., and companion case, 249 SCRA 35, 43); and
c. The doctrine of primary jurisdiction.
32. Searches without warrant of automobiles is also allowed for the purpose of preventing violations of smuggling or immigration laws, provided such searches are made at borders or ‘constructive borders’ like checkpoints near the boundary lines of the State. (Caballes v. Court of Appeals, et al., G.R. No. 136292, January 15, 2002)
33. A peace officer or a private person may, without warrant, arrest a person:
(a) When in his presence, the person to be arrested has committed, is actually committing or is attempting to commit an offense
(b) When an offense has in fact just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. (Sec. 5, Rule 113, ROC)
34. Kinds of warrantless arrest:
a. Arrest "in flagrante delito" under Sec. 5 (a), Rule 113, ROC;
b. Arrest in "hot pursuit" under Sec. 5 (b), and (c), Rule 113, ROC.
35. Requisites for valid in flagrante warrantless arrest.
a. The person to be arrested must execute an overt act indicating that he
1) has just committed,
2) is actually committing, or
3) is attempting to commit a crime; and
b. Such overt act is done in the prescience or within the view of the arresting officer. (People v. Molina, G.R. No. 133917, February 19, 2001)
36. A buy-bust operation, normally preceded by surveillance, is an effective mode of apprehending drug pushers and, if carried out with due regard to constitutional and legal safeguards, deserves judicial sanction.
A warrant of arrest is not essential because the violator is caught in flagrante delicto. Searches made incidental thereto are valid. (People v. Gonzales, G.R. No. 113255-56, July 19, 2001)
37. Where the police saw the gun tucked in the accused’s waist when he stood up, the gun was plainly visible. No search was conducted as none was necessary. Since the accused could not show any license for the firearm, whether at the time of his arrest or thereafter, he was in effect committing a crime in the presence of the police officers. No warrant of arrest was necessary. (People v. Go, G.R. Nos. 116001 & 123943, March 14, 2001)
38. Personal knowledge of facts” in warrantless arrest must be based upon probable cause, which means an actual belief or reasonable ground of suspicion.
Thus, there is no “personal knowledge of facts” where the police officers merely relied on information given to them by others such as: a report of the killing, information from a witness who saw the killing, the physical description given of the last man who saw the victim fitting the person arrested and information where this man lived. (People v. Cubcubin, Jr. G.R. No. 136267, July 10, 2001)
The personal knowledge of facts or circumstances must convincingly be indicative or constitutive of probable cause. (People v. Chua Ho San, 308 SCRA 432 cited in People v. Molina, G.R. No. 133917, February 19, 2001)
39. Probable cause means an actual belief or reasonable grounds of suspicion.
The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officer, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e. supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. (People v. Doria 301 SCRA 668 cited in People v. Molina, G.R. No 133917, February 19, 2001)
40. As applied to in flagrante delicto arrests, it is settled that, “reliable information” alone, absent any overt act indicative of a felonious enterprise in the presence and within view of the arresting officers, are not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. (People v. Molina, G.R. No. 133917, February 19, 2001)
41. There was no valid in flagrante delito or hot pursuit arrest where there is lack of personal knowledge on the part of the arresting officer, or an overt physical act on the part of the accused, indicating that a crime had just been committed, was being committed or was going to be committed. (Malacat v. Court of Appeals, G.R. No. 123595, December 12, 1997)
42. For warrantless arrest to be valid there must be compliance with the element of immediacy between the time of the commission of the offense and the time of the arrest. Warrantless arrests made within shorter periods like ten (10) days from commission considered as illegal. (People v. Salavaria, G.R. No. 104663, July 24, 1997)
43. Remedy for unlawful arrest.
a. Motion for the quashal of the warrant;
b. Motion for reinvestigation.
44. Failure to challenge the validity of the arrest and search, as well as the admission of the evidence obtained thereby, is considered a waiver of the constitutional rights, particularly against unreasonable searches and seizures. (People v. Cuison, et al., G.R. No. 109287, April 18, 1996)
45. Any irregularity attendant to the arrest was cured by voluntary submission to the jurisdiction of the trial court upon entering a plea and participation during the trial. (People v. Tumaneng, G.R. No. 117624, December 4, 1997)
Failure to question the legality of the arrest before arraignment is deemed a waiver of such defense. (People v. Deang, et al., G.R. No. 128045, August 24, 2000
46. The filing of charges and the subsequent issuance of a warrant of arrest against a person invalidly detained will cure the defect of that detention or at least deny him the right to be released because of such defect. (The minor Larranaga, et al., v. Court of Appeals, et al., G.R. No. 130644, March 13, 1998)
47. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. (Sec. 26, Rule 114, ROC)
(1) PRIVACY OF COMMUNICATION
1. The inviolability of the right of privacy of communication and correspondence is applicable not only against the government but also acts of private individuals as well. (Zulueta v. Court of Appeals, 253 SCRA 699)
(2); (3) “FRUIT OF THE POISONED TREE” DOCTRINE
1. Any evidence in violation of the right against unreasonable searches and seizures under Section 2, Article III, shall be inadmissible for any purpose in any proceeding. (Sec. 3(2), Article III, 1987 Constitution)
2. Admission of evidence procured without counsel not violative of due process in customs search and seizure proceedings because the protection does not extend to administrative proceedings but only to criminal proceedings. (Feeder International Line, PTS, Ltd., 197 SCRA 842)
3. The prohibition against warrantless searches applies to unwarranted intrusion by the government and does not operate as a restraint upon private individuals. (People v. Marti, 193 SCRA 57)
(4) FREEDOM OF SPEECH, PRESS, RIGHT TO PEACEABLY ASSEMBLE
1. An association of mass media (print and ratio-TV broadcast) cannot be compelled by an advertiser to accept an advertisement which it believes to be offensive to women.
The guarantee of the freedom of the press and speech is a limitation on state action and not on the action of private parties. [Lloyd Corporation v. Tanner, 407 U.S. 551 (1972)]
The mass media are private enterprises, and their refusal to accept any advertisement does not violate the freedom of the press and speech. ]Times-Picayune Publishing Company v. United States, 345 U.S. 594 (1953); Columbia Broadcasting System, Inc. v. Democrat Control Committee, 412 U.S. 94 (1973)]
:2. Government nominees in a private corporation may not vote to block use of the corporate funds for advertising of a perceived offensive promotion because this is a threat to the freedom of speech of the advertiser which is constitutive of prior restraint.
The government nominees being part of the State are bound by the freedom of speech protection which extends to commercial advertisements. [Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981)] The mere fact that an advertisement is offensive cannot justify its suppression. (Carey v. Population Services International, 431 U.S. 678 (1977)]
3. People power may be defined as the power of the people to peaceably assemble in great numbers in order to effect a change in political leadership.
It is an extra-constitutional act of the people to directly exercise the sovereignty that resides in them.
4. Constitutional provisions considered by some authorities as implementing people power: a. No law shall be passed abridging the right of the people to peaceably assemble and petition the government for redress of grievances. (Art. III, Sec. 4, 1987 Constitution)
b. Congress shall provide for a system of initiative and referendum. (Article VI, Sec. 32, Ibid.)
c. The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms. (Art. XIII, Sec. 16, Ibid.)
5. B.P. Blg. 880 is valid but the use of calibrated preventive response (CPR) insofar as it would purport to differ from or be in lieu of maximum tolerance is null and void.
Maximum tolerance is for the protection and benefit of all rallyists and is independent of the conduct of the expression in the rally. The law neither recognizes nor allows the use of CPR. (BAYAN, et al., v. Ermita, etc., et al., G.R. No. 169838, April 25, 2006, and companion cases)
6. B.P.Blg.880, The Public Assembly Act, is not an absolute ban on public assemblies but a restriction that simply regulates the time, place and manner of assemblies. It refers to all kinds of public assemblies that would use public places and plazas.
The reference to “lawful cause” does not make it content-based because assemblies really have to be for “lawful causes” otherwise they would not be “peaceful” and entitled to protection. Neither are the words “opinion,” “protesting,” and “influencing” in the definition of public assembly content based since they can refer to any subject. The words ”petitioning the government for redress of grievances” came from the wording of the constitution, so its use cannot be avoided. (BAYAN, et al., v. Ermita, etc., et al., G.R. No. 169838, April 25, 2006, and companion cases)
7. Requirement to hold permit to hold rally not prior restraint on freedom of speech and assembly. What is regulated is the time, place, and manner of holding the public assembly. For prior restraint to apply what must be regulated should be the content of the speech itself. (BAYAN, et al., v. Ermita, etc., et al., G.R. No. 169838, April 25, 2006, and companion cases)
8. All public plazas are venues of rallies without need for permits if the local government unit does not declare, within thirty days from the decision, what public plazas may be used for rallies without need for permits. (BAYAN, et al., v. Ermita, etc., et al., G.R. No. 169838, April 25, 2006, and companion cases)
9. The application for a permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health.
This is a recognized exception to the exercise of the rights event under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. (BAYAN, et al., v. Ermita, etc., et al., G.R. No. 169838, April 25, 2006, and companion cases)
10. Remedy to contest denial of application for permit. The denial may be contested in an appropriate court of law. The court must decide within twenty-four (24) hours from the date of the filing. Said decision may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. In all cases, any decision may be appealed to the Supreme Court
11. Absence of a permit when required results to arrest of leader but not participants. The holding of any public assembly by any leader or organizer without having first secured a permit where a permit is required results to arrest. However, those who are not the leaders are not to be punished or held criminally liable for participating in or attending an otherwise peaceful assembly [B.P. Blg. 880, Sec. 13 (a) and 14 (a)].
12. Rallyists to be stopped only if there is clear and present danger to public safety. The policy of maximum tolerance requires that rallyists should first be requested to disperse if they do not have any permits and only upon refusal may they be dispersed.
5. RELIGIOUS FREEDOM
1. To expel the students who are children of a religious sect because they refuse to participate in the flag ceremony which includes saluting the flag, singing the national anthem and reciting the patriotic pledge, on account of their religious beliefs is tantamount to violation of their freedom of religion (Ebralinag v. The Division Superintendent, etc., 251 SCRA 569), and the duty of the state to protect and promote the right of all citizens to quality education and make such education accessible to all.
Freedom of religion cannot be impaired except upon clear showing of a clear and present danger of a substantive evil which the State has a right to prevent. The students’ refusal to participate in the flag ceremony does not pose a clear and present danger.
2. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.
The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.
No religious test shall be required for the exercise of civil or political rights. (Art. III, Sec. 5, 1987 Constitution, arrangement supplied).
3. State not to intrude in purely religious matters. The Office of Muslim Affairs (OMA) must not intrude in purely religious matters by exclusively arrogating to itself the right to classify a product as halal even on the premise that the government has the power to protect and promote the Muslim Filipinos’ right to health.
Classifying a food product as halal is a religious function because the standards used are drawn from the Qur’an and Islamic beliefs. By arrogating to itself the task of issuing halal certifications, the State in effect forced Muslims to accept the government’s interpretation of the Qur-an and Sunnah on halal food. (Islamic Da’Wah Council of the Philippines, Inc., et al., v. Office of the Executive Secretary, etc., et al., G. R. No. 153888, July 9, 2003)
4. The preferred status is designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good. (Islamic Da’Wah Council of the Philippines, Inc., et al., v. Office of the Executive Secretary, etc., et al., G. R. No. 153888, July 9, 2003)
5. MTRCB may review but not ban the tapes on the ground that they attack other religions ‘prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the reality already on the ground.” (Iglesia ni Cristo v. Court of Appeals, et al., 259 SCRA 529)
The exercise of religious freedom can be regulated by the State when it will bring about the clear and present danger of some substantive evil which the state is duty bound to prevent, i.e. serious detriment to the more overriding interest of public morals, or public welfare.
Clearly the use of offensive language may tend to influence the moral development of children who easily gain access to a medium such as television.
6. A fixed annual license fee on those engaged in the business of general enterprise including the sale of bibles by a religious sect is not valid and is violative of the constitutionally guaranteed freedom of religion.
As a license fee is fixed in amount and unrelated to the receipts of the taxpayer, such a license fee, when applied to a religious sect is actually imposed as a condition for the free exercise of religion.
A license fee “restrains in advance those constitutional liberties of press and religion and inevitably tends to suppress their exercise.”
6. LIBERTY OF ABODE
1. Residents in an area of imminent military operations may be forcibly evacuated without a necessity to secure a court order because the urgency of the need justifies a valid exercise of police power which takes precedence over the liberty of abode.
2. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. (Art. III, Sec. 6, 1st sentence, 1987 Constitution)
7. RIGHT TO INFORMATION
8. RIGHT TO FORM UNIONS
9. JUST COMPENSATION
10. IMPAIRMENT CLAUSE
1. Scope of the impairment clause. A law which changes the terms of a legal contract between parties, either in the time or mode of performance, or imposes new conditions, or dispenses with those expressed or authorizes for its satisfaction something different from that provided in its term, is law which impairs the obligation of a contract and is therefore null and void. (Clemons v. Nolting, 42 Phil. 702, 717),
Moreover, to constitute impairment, the law must affect a change in the rights of the parties with reference to each other and not with respect to non-parties. [Philippine Rural Electric Cooperatives Association, Inc. (PHILRECA) v. The Secretary, Department of Interior and Local Government, et al., G.R. No. 143076, June 10, 2003]
The non-impairment clause does not prohibit every change in existing laws. To fall within the prohibition on the impairment of obligations of contracts, the change must not only impair the obligation of the existing contract, but the impairment must be substantial.
2. Illustration of non-impairment. Withdrawal of all tax exemption privileges under the Local Government Code did not impair the obligations imposed under the loan agreements executed by the NEA and the USAID, because the loan agreements did not provide any tax exemption in their wordings that the borrower shall pay the lender the principal amount of the loan and interest thereon, “in full, without any deduction of the tax component thereof imposed under applicable Philippine law and any tax imposed shall be paid by the borrower with funds other than the loan proceeds.” [Philippine Rural Electric Cooperatives Association, Inc. (PHILRECA) v. The Secretary, Department of Interior and Local Government, et al., G.R. No. 143076, June 10, 2003]
3. The imposition of VAT on grantees of legislative franchises that are subject to a franchise tax which “shall be in lieu of all taxes” is not violative of the non-impairment clause because of the following reasons:
a. Article XII, Sec. 11 of the Constitution provides that the grant of a franchise for the operation of a public utility is subject to amendment. alteration or repeal by Congress when the common good requires;
b. Not only existing laws but also the reservation of essential attributes of sovereignty is read into contracts as a postulate of the legal order;
c. Contracts must be understood as having been made in reference to the possible exercise of the rightful authority of the government and no obligation of contract can extend to defeat that authority;
d. A lawful tax on a new subject, or an increased tax on an old one, does not interfere with a contract or impairs its obligation, within the meaning of the constitution. Even though such taxation may affect particular contracts, as it may increase the debt of one person and lessen the security of another, or may impose additional burdens upon one class and release the burdens of another, still the tax must be paid unless prohibited by the constitution, nor can it be said that it impairs the obligations of any existing contract in its true and legal sense. (Tolentino v. Secretary of Finance and its companion cases, 235 SCRA 630, 249 SCRA.628)
4. Constitutional tax exemptions, in the real sense of the term and where the non-impairment clause of the Constitution can rightly be invoked, are those agreed to by the taxing authority in contracts, such as those contained in government bonds or debentures, lawfully entered into by them under enabling laws in which the government, acting in its private capacity sheds its cloak of authority and waives its government immunity.
Truly, tax exemptions of this kind may not be revoked without impairing the obligations of contracts. A franchise partakes of the nature of a grant which is not beyond the purview of the non-impairment clause.
Indeed the 1987 Constitution like its precursors the 1935 and the 1973 Constitutions is explicit that no franchise for the operation of a public utility shall be granted except under the condition that such privilege shall be subject to amendment, alteration or repeal by Congress as and when the common good so requires. (Manila Electric Company v. Province of Laguna, et al., G.R. No. 131359, May 5, 1999)
11. FREE ACCESS TO COURTS
12 (1) RIGHT TO REMAIN SILENT AND TO COUNSEL
1. Custodial investigation is the stage of police investigation
a. when a person is taken into custody and
b. is singled out as a suspect in the commission of the crime under investigation and
c. the police officers begin to ask questions on
1) the suspect’s participation therein and
2) which tend to elicit an admission. (People v. Pavillare, et al., G.R. No. 129970, April 5, 2000)
2. When mere invitation not considered as part of custodial investigation. Inviting certain individuals without singling them out as the perpetrators of the crime is not considered custodial investigation. So also, asking a single question as to whereabouts is not custodial investigation as the query was merely part of the “general exploratory stage.” (People v. Legaspi, et al., G.R. No. 117802, April 27, 2000)
However, where the questioning is not a “general inquiry into an unsolved crime” but already focused on the individual as a “particular suspect,” there was already custodial investigation and he must be accorded his Miranda rights. (People v. Gamer, G.R. No. 115984, February 29, 2000)
3. Police line-up not custodial investigation. The stage of an investigation wherein a person is asked to stand in a police line-up has been held to be outside the mantle of protection of the right to counsel because it involves a general inquiry into an unsolved crime and is purely investigatory in nature. It has also been held than an uncounselled identification at the police line-up does not preclude the admissibility of an in-court identification. (People v. Pavillare, et al., G.R. No. 129970, April 5, 2000)
4. Taking of pictures of an accused even without the assistance of counsel is not a violation of the constitutional right against self-incrimination because it is purely a mechanical act.
The right proscribes the use of physical or moral compulsion to extort communications from the accused and not the inclusion of his body in evidence when it may be material. Purely mechanical acts are not included in the prohibition as the accused does not thereby speak his guilt, hence the assistance and guiding hand of counsel is not required. (People v. Gallarde, G.R. No. 133025, February 17, 2000)
5. The “Miranda” rights of a person under custodial investigation. Any person under investigation for the commission of an offense shall have the right
a. to be informed of his right to remain silent and
b. to have competent and independent counsel preferably of his own choice.
c. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (People v. Naag, et al., G.R. No. 123860, January 20, 2000)
6. Authoritative interpretations of the Miranda rule as embodied in the above Art. III, Sec. 12 (1) require, however, that the crucial question is whether the accused has effectively waived the effectuation of these rights. Accused should be asked whether he was willing to testify even without the assistance of counsel. If he was willing to testify only with the assistance of counsel, he should be asked if he has one. If he said he wanted to have counsel but could not afford one, he should be asked if he wanted one appointed for him. If these questions are not asked there is no effective waiver of the rights to remain silent and to counsel. (People v. Naag, et al., G.R. No. 123860, January 20, 2000)
7. Rationale behind Miranda warning. An uncounselled statement is presumed to be psychologically coerced. Swept into an unfamiliar environment and surrounded by intimidating figures typical of the atmosphere of police interrogation, the suspect really needs the guiding hand of counsel. (People v. Obrero, G.R. No. 122142, May 17, 2000)
8. Nature of Miranda warning. The warning contemplates “the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle.” It is not enough for the interrogator to merely enumerate to the person his rights as provided in Sec. 12, Art. III, of the Constitution, the interrogator must also explain the effect of such provision in practical terms, e.g. what the person under interrogation may or may not do, and in a language the subject fairly understands. (People v. Ordono, et al., G.R. No. 132154, June 29, 2000)
9. The failure to inform of right to counsel during custodial investigation attains significance only if the person under investigation makes a confession in writing without the aid of counsel which is then sought to be admitted against the accused during the trial. In such a case the tainted confession is inadmissible. (Eugenio v. People of the Philippines, G. R. No. 168163, March 26, 2008)
10. During custodial investigation the the primacy of the voluntariness of the choice of counsel by the person being investigated should be respected.
The officers could not replace the counsel of choice as the replacement, no matter how bright and competent, may not be considered as independent considering the relationship between them and the lawyer they have chosen. Statements thus, elicited with the assistance of the replacement lawyer is not admissible. (People v. Sahagun, 274 SCRA 208)
11. The purpose of right to counsel during custodial investigation is premised on the presumption that the defendant is thrust into an unfamiliar atmosphere running through menacing police interrogation procedures where the potentiality for compulsion, physical or psychological is forcefully apparent. (People v. Base, G.R. No. 109773, March 30, 2000)
12. Counsel during custodial investigation must be competent and independent. Ideally, a lawyer engaged for an individual facing custodial investigation (if the latter could not afford one) should be engaged by the accused (himself), or by the latter’s relatives or person authorized by him to engage an attorney or by the court, upon proper petition of the accused or person authorized by the accused to file such petition. (People v. Juanario, cited in People v. Obrero, G.R. No. 122142, May 17, 2000)
The independent counsel cannot be a special counsel, public or private prosecutor, municipal attorney or counsel of the police whose interest is admittedly adverse to the accused. To allow a Station Commander of the WPD, a part of the police force would render illusory the protection given to the suspect during custodial investigation. (People v. Bedula, 232 SCRA 566 cited in People v. Obrero, G.R. No. 122142, May 17, 2000)
13. Extent of assistance to be given by the competent and independent counsel. The desired role of counsel in the progress or custodial investigation is rendered meaningless if the lawyer merely gives perfunctory advice as opposed to a meaningful advocacy of the rights of the person undergoing questioning. If the advice given is so cursory as to be useless, voluntariness is impaired. (People v. Deniega cited in People v. Suela, et al., G.R. Nos. 133570-71, January 15, 2002)
The lawyer should ascertain that the confession is made voluntarily and that the person under investigation fully understands the nature and the consequence of his extrajudicial confession in relation to his constitutional rights
14. True, counsel does not necessarily have to dissuade the person under investigation from confessing. But his bounden duty is to properly and fully advise his client on the nature and consequences of an extrajudicial confession. (People v. Labtan cited in People v. Suela, et al., G.R. Nos. 133570-71, January 15, 2002)
15. The lawyer is required to be present and able to advise and assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession. (People v. Labtan cited in People v. Suela, et al., G.R. Nos. 133570-71, January 15, 2002)
16. Period when right to counsel arises. The protection covers the period from the time a person is taken into custody for the investigation of his possible participation in the commission of a crime or from the time he is singled out as a suspect in the commission of the offense although not yet in custody. (People v. Base, G.R. No. 109773, March 30, 2000)
17. While the initial choice of the lawyer in cases where a person under custodial investigation cannot afford the services of a lawyer is naturally lodged in the police investigators, the accused really has the final choice as he may reject the counsel chosen for him and ask for another one.
A lawyer provided by the investigators is deemed engaged by the accused where he never raised any objection against the former’s appointment during the course of the investigation and the accused thereafter subscribes to the veracity of his statement before the swearing officer. (People v. Gallardo, et al., G.R. No. 113684, January 25, 2000)
18. Waiver of right must be in writing. The right to counsel during custodial investigation is not waived by reason of failure to make a timely objection before plea. There can only be a valid waiver of the right if such waiver is in writing and in the presence of counsel as mandated by Article III, Section 12 of the 1987 Constitution and the pertinent provisions of Republic Act No. 7438. (People v. Buluran, et al., G.R. No. 113940, February 15, 2000)
19. Even if the confession of the accused is gospel truth, if it was made without the assistance of counsel, it is inadmissible in evidence regardless of the absence of coercion, or even it had been voluntarily given. (People v. Camat, et al,. G.R. No. 112262, April 2, 1996) This refers to custodial investigation only.
20. Accused who was a foreign national was effectively denied his right to counsel, as he was provided with one he could not understand and communicate with concerning his defense. He was likewise denied his right to compulsory process to guarantee the availability of witness and the production of evidence on his own behalf, including the services of a qualified and competent interpreter to enable him to present his testimony. (People v. Cuison, et al., G.R. No. 109287, April 18, 1996)
21. A confession to the mayor is not one made under custodial investigation but a spontaneous statement, not elicited through questioning by the authorities but given in an ordinary manner. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions.
The prohibition against self-incrimination are guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the truth. (People v. Andan, G.R. No. 116437, March 3, 1997)
22. The media confessions were given free from any undue influence from the police authorities. There was no coercive atmosphere in the interview made by the reporters, neither were they acting under the direction and control of the police.
Finally, the Bill of Rights does not concern itself with the relation between a private individual and another individual. It lays down limitations on governmental power to protect the individual against aggression and unwarranted interference by any department of the government and its agencies. (People v. Ordono, et al., G.R. No. 132154, June 29, 2000)
12 (2) NO TORTURE OR VIOLENCE
12 (4) COMPENSATION FOR VICTIMS OF TORTURE
13. RIGHT TO BAIL
1. Bail is
a. the security given
b. for the release of a person
c. in custody of the law,
d. furnished by him or a bondsman,
e. to guarantee his appearance before any court as required under the conditions hereinafter specified. (1st sentence, Sec. 1, Rule 114, ROC arrangement and numbering supplied)
2. Forms of bail:
a. Corporate surety;
b. Property bond;
c. Cash deposit; or
d. Recognizance. (2nd sentence, Sec. 1, Rule 114, ROC)
3. The amount of bail should be high enough to assure the presence of the accused when required but no higher that is reasonably calculated to fulfil this purpose. (SPO1 Caneda, et al., v. Hon. Allan, etc., A.M. No. MTJ-01-1376, January 23, 2002)
To fix an amount equivalent to the civil liability of which the accused is charged of should not be allowed because bail is not intended as a punishment, nor as a satisfaction of civil liability which should necessarily await the judgment of the appellate court. (Yap, Jr., v. Court of Appeals, et al., G.R. No. 141529, June 6, 2001)
4. The prohibition against requiring excessive bail is enshrined in the Constitution.
The obvious rationale is that imposing bail in an excessive amount could render meaningless the right to bail. There is grim irony in an accused being told that he has a right to bail but at the same time being required to post such an exorbitant amount.
As Justice Jackson once said, “a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper’s will.” (Yap, Jr. v. Court of Appeals, et al., G.R. No. 1411529, June 6, 2001 citing De Camara v. Enage, 41 SCRA 1)
5. Accused to be released only after the corresponding property or cash bond has been properly filed. (Sec. 3, Rule 114,ROC)
6. No right to bail in extradition as not criminal in character. (Government of the U.S.A. v. Purganan, G. R. No. 148571, September 24, 2002)
7. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bails shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. (1987 Constition, Art. III, Sec. 13)
8. All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or be released on recognizance as prescribed by law or this Rule 114 of the Rules of Court.
a. before conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and
b, before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. (Sec. 4, Rule 114, ROC words not in bold supplied)
9. There is discretionary bail granted on application upon conviction by the Regional Trial Court of an offense not punishable by reclusion perpetua or life imprisonment.
Should the court grant the application, the accused may be allowed provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. (1st two pars., Sec. 5, Rule 114, ROC paraphrasing supplied)
10. After conviction bail is discretionary because after a person has been tried and convicted the presumption of innocence which may be relied upon in prior applications is rebutted, and the burden is upon the accused to show error in conviction.
From another point of view, it may be properly argued that the probability of ultimate punishment is so enhanced by the conviction that the accused is more likely to escape if liberated on bail than before conviction …” (Francisco cited in Yap, Jr., v. Court of Appeals, et al., G.R. No. 141529, June 6, 2001)
11. Instances when the court shall deny bail or cancel if already posted. If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled, upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances:
a. That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;
b. That he has previously escaped from legal confinement, evaded sentence, or has violated the conditions of his bail without valid justification;
c. That he committed the offense while under probation, parole, or under conditional pardon;
d. That the circumstances of his case indicate the probability of flight if released on bail; or
e. That there is undue risk that he may commit another crime during the pendency of the appeal.
The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court, on motion notice to the adverse party. (3rd and 4th pars., Sec. 5, Rule 114, ROC)
12. A person who appealed his conviction of homicide on a murder charge to the Court of Appeals, may be denied bail by the Court of Appeals because he could be convicted of a capital offense. (Obosa v. Court of Appeals, 266 SCRA 281)
13. No bail shall be allowed after a judgment of conviction has become final. (1st sentence, Sec. 24, Rule 114, ROC)
14. If after such finality of judgment of conviction, the accused applies for probation, he may be allowed temporary liberty under his bail.
When no bail was filed or the accused is incapable of filing one, the court may allow his release on recognizance to the custody of a responsible member of the community. In no case shall bail be allowed after the accused has commenced to serve sentence. (Sec. 24, Rule 114, ROC)
15. Bail, as a matter of right, in the amount fixed may be filed with
a. the court where the case is pending, or in the absence of unavailability of the judge thereof, with
b. any regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city, or municipality.
c. If the accused is arrested in a province, city, or municipality, other than where the case is pending,
1) bail may be filed with any regional trial court of said place, or,
2) if no judge thereof is available, with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge thereto. (Sec. 17, Rule 114, ROC arrangement, numbering and underlining supplied)
15. Whenever the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application can only be filed in
a. the court where the case is pending, whether on preliminary investigation, trial, or appeal. (Sec. 17, Rule 114, ROC arrangement, numbering and underlining supplied)
16. Any person who is in custody who is not yet charged in court may apply for bail with
a. any court in the province, city or municipality where he is held. (Sec. 17, Rule 114, ROC arrangement, numbering and underlining supplied)
17. Duties of the trial judge where an application for bail is filed.
a. Give reasonable notice to the prosecutor or require him to submit his recommendation. (Sec. 18, Rule 114, ROC paraphrasing supplied)
b. Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion (Secs. 7 and 8, supra)
c. Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution.
d. If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. (Sec. 19, supra) (Basco v. Judge Rapatalo, etc., A.M. No. RTJ-96-1335, March 5, 1997)
18. Hearing is mandatory when accused is charged with an offense punishable by reclusion perpetua, or life imprisonment.
The judge shall conduct a hearing whether summary or otherwise , not only to take into account the guidelines set forth under the Rules for the grant of bail, but primarily to determine the existence of strong evidence of guilt or the lack of it, against the accused, only for purposes of bail.
If the evidence of guilt is not strong, bail becomes a matter of right. (People v. Hapa, G.R. No. 125698, July 19, 2001)
19. Due process to be given to prosecution in application for bail.
A bail application does not only involve the right of the accused to temporary liberty, but likewise the right of the State to protect the people and the peace of the community from dangerous elements.
“To appreciate the strength or weakness of the evidence of guilt, the prosecution must be consulted or heard. It is equally entitled as the accused to due process.” The prosecution must be given ample opportunity to show that the evidence of guilt is strong. (People v. Hon. Antona, etc., et al., G.R. No. 137681, January 31, 2002)
20. Rationale for giving due process to prosecution in bail applications. By the very nature of deciding applications for bail, it based on evidence presented by the prosecution that judicial discretion is exercised in determining whether the evidence of guilt of the accused is strong.
Any order issued in the absence thereof is not a product of sound judicial discretion but of whim and caprice and outright arbitrariness. (People v. Hon. Antona, etc., et al., G.R. No. 137681, January 31, 2002)
21. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial, but upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside of the Philippines or otherwise unable to testify. (2nd sentence, Sec. 8, Rule 114, ROC)
8. A witness may be required to post bail.
If the witness is a material witness and the court, upon motion of either party, is satisfied upon proof or oath that he will not testify when required.
14 (1) CRIMINAL DUE PROCESS
14 (2) PRESUMPTION OF INNOCENCE
1. It is incumbent upon the prosecution during the trial, to prove that prior to questioning, the confessant was warned of his constitutionally protected rights because the presumption of regularity of official acts does not apply during in-custody investigation. (People v. Camat, et al., G.R. No. 1122262, April 2, 1996)
2. The signatures of the accused on the boxes and on the plastic bags are tantamount to uncounselled extrajudicial confessions which is not sanctioned by the Bill of Rights and are, therefore inadmissible as evidence.
The fact that all of the accused are foreign nationals does not preclude application of the "exclusionary rule" because the constitutional guarantee embodied in the Bill of Rights are given and extends to all persons, both aliens and citizens. (People v. Wong Chuen Ming, et al., G.R. Nos. 112801-11, April 12, 1996)
14 (2) RIGHT TO COUNSEL DURING TRIAL
14 (2) RIGHT TO SPEEDY TRIAL
1. In all criminal prosecutions, the accused shall enjoy the right to have a speedy, impartial and public trial. [Art. III, Sec. 14 (2), 1987 Constitution]
2. Right to speedy trial guaranteed under the Speedy Trial Act of 1998. If the accused is not brought to trial within the time limit required by Section 1 (g), Rule 116 and Section 1, the information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial.
The accused shall have the burden of proving the motion but the prosecution shall have the burden of going forward with the evidence to establish the exclusion of time under section 3 of this rule. The dismissal shall be subject to the rules on double jeopardy.
Failure of the accused to move for dismissal prior to trial shall constitute a waiver of the right to dismiss under this section. (Sec. 9, Rule 119, ROC)
3. Period for arraignment under Sec. 1 (g), Rule 116, Rules of Court. Unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be held within thirty (30) days from the day the court acquires jurisdiction over the person of the accused. The time of the pendency of a motion to quash or for a bill of particulars or other causes justifying the suspension of the arraignment shall be excluded in computing the period.
4. Commencement of trial under Section 1, Rule 119. After a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial. The trial shall commence within thirty (30) days from receipt of the pre-trial order.
5. Time under Sec. 6, Rule 119. The time limit from arraignment to trial is starting September 16, 2000 = 80 days. (Sec. 6, Rule 119, ROC)
6. Time limit for trial: In criminal cases involving persons charged of a crime, except those subject to the Rules on Summary Procedure, or where the penalty prescribed by law does not exceed six (6) months imprisonment, or a fine of One thousand pesos (P1,000.00) or both, irrespective of other imposable penalties, the justice or judge shall, after consultation with the public prosecutor and the counsel for the accused, set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. (Sec. 6, R.A. No. 8493)
In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Supreme Court. (last sentence, 2nd par., Sec. 2, Rule 119, ROC)
7. Mere mathematical reckoning of time involved not sufficient in determining violation of right to speedy trial.
It is violated only when the proceedings is attended by vexatious, capricious, and oppressive delays or when unjustified postponements of the trial are asked and secured, or when without cause or unjustifiable motive, a long period of time is allowed to lapse without the party having his case tried (Ty-Dazo, et al., v. Sandiganbayan, G.R. No. 143885-86, January 21, 2002) such as political motivation playing a vital role in activating and propelling the prosecutorial process; that there was blatant departure from the established procedure prescribed by law for the conduct of the preliminary investigation; and that the long delay in resolving the preliminary investigation could not be justified on the basis of the facts on record. (Ibid, citing Tatad v. Sandiganbayan, 159 SCRA 70)
8. The right to speedy trial is a relative one, subject to reasonable delays and postponements arising from illness, medical attention, and body operations, as in the present case where it was duly proven that complainant had to undergo a carotid operation.
Accused persons sometimes forget that those who are aggrieved also have rights. What offends the right to speedy trial are unjustified postponements which prolong trial for an unreasonable length of time. (de Zuzuarregui, Jr. v. Judge Rosete, etc., A.M. No. MTJ-02-1426, May 9, 2002)
9. A previous decision or judgment, while admissible in evidence, may only prove that an accused was previously convicted of a crime. It may not be used to prove that the accused is guilty of a crime charged in a subsequent case, in lieu of the requisite evidence proving the commission of the crime, as said previous decision is hearsay.
Every conviction must be based on the findings of fact made by a trial court according to its appreciation of the evidence before it. A conviction may not be based merely on the findings of fact of another court, especially where what is presented is only its decision without the transcript of the testimony of the witnesses who testified therein and upon which the decision is based. (People v. Ortiz-Miyake, G.R. No. 115338-39, September 16, 1997)
10. In all criminal prosecutions, the accused shall enjoy the right to meet the witness face to face. [Art. III, Sec. 14 (2), 1987 Constitution]
11. Purpose of the right to confront witnesses:
a. To secure the opportunity of cross-examination; and
b. To allow the judge to observe the deportment and appearance of the witness while testifying. (People v. Ortiz-Miyake, G.R. No. 115338-39, September 16, 1997)
15. SUSPENSION OF THE WRIT OF HABEAS CORPUS
Refer to Article VII. EXECUTIVE DEPARTMENT, infra.
16. RIGHT TO SPEEDY DISPOSITION OF CASES
17.RIGHT AGAINST SELF-INCRIMINATION
1. The right against self-incrimination. No person shall be compelled to be a witness against himself. (Art. III, Sec. 17, 1987 Constitution)
This right is recognized under the Rules on Evidence, which provides that, it is the right of a witness not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law. [Sec. 3 (4), Rule 132, ROC]
2. The human body could be used as evidence without violating the right. Mechanical acts without the use of intelligence do not fall within the scope of the protection. Some of the acts which are not covered by the right of self-incrimination are the following:
a. Fingerprinting, photographing and paraffin testing, physical examination. (U.S. v. Tang, 23 Phil. 145)
b. Physical examination of a woman accused of adultery to determine if she is pregnant. (U.S. v. On Suy Hon, 36 Phil. 735; Villaflor v. Summers, 41 Phil. 62)
c. Undergoing ultra-violet rays examination to determine presence of fluorescent powder on the hands. (People v. Tranca, 35 SCRA 455)
c. Subpoena directing government officials to produce official documents or public records in their custody.
d. Fitting the accused foot over a foot print, putting on a pair of trousers, shoes, etc.
3. The right against self-incrimination include protection against being compelled to provide specimens of the accused’ handwriting.
Since the provision prohibits compulsory testimonial evidence, it does not matter whether the testimony is taken by oral or written means as either way it involves the use of intellectual faculties.
The purpose of the privilege is to avoid and prohibit thereby the repetition and recurrence of compelling a person, in a criminal or any other case, to furnish the missing evidence necessary for his conviction. (Bermudez v. Castillo, Per Rec. No. 714-A, July 26, 1937; Beltran v. Samson, G. R. No. 32025, September 23, 1929)
4. An accused is exempt from being compelled to be a witness against himself [Sec. 1 (e), Rule 115, ROC) hence he may refuse to take the witness stand.
5. Ordinary witness who is NOT the accused may be compelled to testify. However, he could claim the privilege against self-incrimination and refuse to answer only as each question requiring an incriminatory answer is propounded to him. (Badiong v. Gonzales, 94 SCRA 906)
18 (1) NO DETENTION FOR POLITICAL BELIEFS
18 (2) NO INVOLUNTARY SERVITUDE
19 (1) NO EXCESSIVE FINES AND CRUEL AND UNUSUAL PUNISHMENT
19 (2) NO DEGRADING PUNISHMENT
20. NO IMPRISONMENT FOR DEBT
21. NO DOUBLE JEOPARDY
1. The concept of double jeopardy. When an accused
a. has been convicted or acquitted, or
b. the case against him dismissed or otherwise terminated
1) without his consent
2) by a court of competent jurisdiction,
3) upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and
c. after the accused had pleaded guilty to the charge,
d. the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution
1) for the offense charged, or
2) for any attempt to commit the same or frustration thereof, or
3) for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. (1st par., Sec. 7, Rule 117, ROC numbering and arrangement supplied)
2. Related protection afforded by double jeopardy:
a. Against a second prosecution for the same offense after acquittal.
b. Against a second prosecution for the same offense after conviction.
c. Against multiple punishments for the same offense. (People v. dela Torre, G.R. Nos. 137953-58, April 11, 2002)
3. Purposes of protection against double jeopardy.
a. It prevents the State from using its criminal processes a an instrument of harassment to wear out the accused by a multitude of cases with accumulated cases.
b. It also serves the additional purpose of precluding the State, following an acquittal, from successively retrying the defendant in the hope of securing a conviction.
c. Finally, it prevents the State, following conviction, from retrying the defendant again in the hope of securing a greater penalty. (People v. dela Torre, G.R. Nos. 137953-58, April 11, 2002)
4. Requisites for double jeopardy.
a. The first jeopardy must have attached prior to the second.
b. The first jeopardy must have been validly terminated.
c. The second jeopardy must be
1) for the same offense, or
2) the second offense includes or is necessarily included in the offense charged in the first information, or is
3) an attempt to commit the same or is a frustration thereof. (Cudia v. Court of Appeals, et al., G.R. No. 110315, January 16, 1998)
5. Proof that first jeopardy has attached.
a. Court of competent jurisdiction;
b. Valid complaint or information;
d. Valid plea; and
e. The defendant was acquitted or convicted or the case was dismissed or otherwise terminated without the express consent of the accused. (Cudia v. Court of Appeals, et al., G.R. No. 110315, January 16, 1998)
6. The only instance when double jeopardy will not attach is when the trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction due to a violation of due process, i.e., that the prosecution was denied the opportunity to present its case, in which case certiorari may be resorted to cure an abusive denial.
In that extraordinary proceeding it must be clearly demonstrated that the trial court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice. (People v. Sandiganbayan, et al., G.R. No. 140633, February , 2002)
7. Inasmuch as the acquittal of the accused by the court a quo was done without regard to due process of law, the same is null and void. It is as if there is no acquittal at all, and the same cannot constitute a claim for double jeopardy.
In rendering the judgment of dismissal, the trial judge acted without or in excess of jurisdiction, for a judgment which is void for lack of due process is equivalent to excess or lack of jurisdiction. Indeed, “jurisdiction” is the right to hear and determine, not to determine without hearing. (Merciales v. Hon. Court of Appeals, et al., G.R. No. 124171, March 18, 2002)
8. Appeal by the State seeking increased penalty constitutes double jeopardy. (People v. dela Torre, G.R. Nos. 137953-58, April 11, 2002)
9. Instances where the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information:
a. the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge;
b. the facts constituting the graver charge became known or were discovered only after a plead was entered in the former complaint or information or
c. the plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party except when more than one offense is charged unless a single punishment for various offenses is prescribed by law, as provided in section 1 (f) of Rule 116. (last par., Sec. 7, Rule 117, words not in bold supplied)
21. NO EX POST FACTO LAW
1. Ex post facto law is a law which penalizes a person for having committed an act which was not punishable at the time of its commission. Such retroactive application violates a person’s right to due process.
2. An ex post facto law has been defined as one:
a. which makes criminal an act done before the passage of the law and which was innocent when done, and punishes such action; or
b. which aggravates a crime, or makes it greater than it was, when committed; or
c. which changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; or
d. which alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant; or
e. which assumes to regulate civil rights and remedies only, but in effect imposes penalty or deprivation of a right for something which when exercised was lawful; or
f. which deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. (Presidential Ad Hoc Fact-Finding Committee on Behest Loans, etc., v. Desierto, etc., et al., G.R. No. 145184, March 14, 2008 citing various cases)
3. The constitution proscription of ex post facto laws is aimed against the restrospectivity of penal laws. (Presidential Ad Hoc Fact-Finding Committee on Behest Loans, etc., v. Desierto, etc., et al., G.R. No. 145184, March 14, 2008)
4. Penal laws are acts of the legislature which prohibit certain acts and establish penalties for their violations; or those that define crimes, treat of their nature and provide for their punishment. (Presidential Ad Hoc Fact-Finding Committee on Behest Loans, etc., v. Desierto, etc., et al., G.R. No. 145184, March 14, 2008 citing Orlando L. Salvador v. Placido L. Mapa, et al., G. R. No. 135080, November 28, 2007, 539 SCRA 34)
A law is also penal if it prescribes a burden equivalent to a criminal penalty (e.g. disqualification from the practice of a profession) even if such burden is imposed in an administrative proceeding. (Pascual v. Board of Medical Examiners, 28 SCRA 344)
5. The prohibition against the enactment of an ex post facto law does not apply to
a. an extradition treaty because the same is not a penal law. (Wright v. Court of Appeals, 235 SCRA 341)
b. the Presidential Adm. Order No. 13 creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans because it merely provides for its composition and functions,
c. the Presidential Memorandum Order No, 61 which provides the frame of reference in determining the existence of behest loans because not being penal laws, they cannot be characterized as ex post facto laws. (Presidential Ad Hoc Fact-Finding Committee on Behest Loans, etc., v. Desierto, etc., et al., G.R. No. 145184, March 14, 2008)
6. A bill of attainder is a law that inflicts punishment without a trial, substituting the legislative act for a judicial determination of guilt. It violates the right s of the accused to be presumed innocent and to seek a proper remedy before a court of law.
Art. IV. CITIZENSHIP
1. “The following are citizens of the Philippines:
(1) Those who are citizens of the Philippines at the time of the adoption of the 1987 Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;
(3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and
(4) Those who are naturalized in accordance with law.” (Sec. 1, Art. IV, 1987 Philippine Constitution)
2. Marriage does not result to loss of citizenship. 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. (Sec.4, Art. IV, 1987 Philippine Constitution)
3. Loss of Filipino citizenship results from taking an oath of allegiance to follow the citizenship of an alien husband. (Sec. 1 , Commonwealth Act No. 63)
4. Only natural born citizens are qualified to retain or reacquire Philippine citizenship. Any provision of law to the contrary notwithstanding, natural born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking an oath of allegiance to the Republic of the Philippines. (Sec. 3, Rep. Act No. 9225, the Citizenship Retention and Re-Acquisition Act of 2003)
Natural born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country, shall retain their Philippine citizenship upon taking the aforesaid oath. (Ibid.)
5. Derivative Citizenship under Rep. Act No. 9225, the Citizenship Retention and Re-Acquisition Act of 2003.
The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship under this Act shall be deemed citizens of the Philippines. (Sec. 4, Rep. Act No. 9225)
6. Civil and political rights under Rep. Act No. 9225, the Citizenship Retention and Re-Acquisition Act of 2003. Those who retain or reacquire Philippine citizenship under this Act shall enjoy civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:
1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as ”The Overseas Absentee Voting Act of 2003” and other existing laws;
2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship. (Sec. 5, Rep. Act No. 9225)
7. Persons who despite having reacquired or retained their Filipino citizenship could cannot exercise their right to vote or be elected or appointed to any public office in the Philippines:
a. Candidates for or are occupying any public office in the country of which they are naturalized citizens;
b. Are in active service as commissioned or noncommissioned officers in the armed forces of the country which they are naturalized citizens. (Sec. 5, Rep. Act No. 9225)
Art. V. SUFFRAGE
Refer to discussion below.
Art. VI. LEGISLATIVE DEPARTMENT
1. No person shall be a Senator unless
a. he is a natural-born citizen of the Philippines, and,
b. on the day of his election, is at least thirty-five (35) years of age,
c. able to read and write,
d. a registered voter, and
e. a resident of the Philippines for not less than two years immediately preceding the day of the election. (Sec. 3,Art. VI, 1987 Philippine Constitution)
2. No person shall be a Member of the House of Representatives unless
a. he is a natural-born citizen of the Philippines, and,
b. on the day of his election, is at least twenty-five (25) years of age,
c. able to read and write,
d. except the party-list representative, a registered voter in the district in which he shall be elected, and
e. a resident thereof for a period not less than one year immediately preceding the day of the election. (Sec. 6, Art. VI, 1987 Philippine Constitution)
3. Natural-born Filipino who becomes a naturalized alien is restored to his original status of being a natural-born Filipino by virtue of his repatriation. (Bengson v. House of Representatives Electoral Tribunal, 357 SCRA 545)
4. Function of the Senate Electoral Tribunal and the House of Representatives Electoral Tribunal. 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. (Art. VI, Sec. 17, 1st sentence)
5. Composition of the Senate Electoral Tribunal and the House of Representatives Electoral Tribunal. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. (Art. VI, Sec. 17, 2nd and 3rd sentence)
6. Formulae for allocating seats for the party-list representatives:
a. The twenty percent allocation;
b. The two percent threshold; and
c. The three-seat limit.
7. Twenty percent allocation limit for distributing seats for party-list representatives. The total number of party-list representatives should not be more than twenty percent of the entire membership of the House of Representatives. [Art. VI, Sec. 5 (3); Veterans Foundation Party v. COMELEC, 342 SCRA 244 (2000)]
8. Two percent threshold limitation for allocating seats for party-list representatives. Only the party which received at least two per cent of the total votes cast for the party-list are entitled to have a seat in the House of Representatives. [Rep. Act No. 7941, Sec. 11 (b)]
To have a meaningful representation, the elected party-list representative must have the mandate of a sufficient number of people. (Veterans Foundation Part, supra)
9. Three-seat limit for party-list representatives. The qualified party-lists shall have a maximum of three (3) seats in the House of Representatives [Rep. Act No. 7941, Sec. 11 (b)] so that no single group will dominated the party-list seats. [Veterans Foundation Party v. COMELEC, 342 SCRA 244 (2000)]
Additional seats to which a qualified party list is entitled are determined by the proportion of the total number of votes it obtained in relation to the total number of votes obtained by the party with the highest number of votes to maintain proportional representation. While representation in the party-list system is proportional, a party is entitled to a maximum of three (3) seats regardless of the number of votes it actually obtained. (Veterans Foundation Part, supra)
10. Disqualifications attendant to being a Senator or a Member of the House of Representatives engaging in business, or engaging in the practice of a profession:
a. To notify the House or Senate in the filing of a proposed legislation of which they are the authors where there is a potential conflict of interest and upon assumption of office, to make a full disclosure of their financial and business interests. (Sec. 12, Art. VI, 1987 Philippine Constitution) It is therefore a given that they should not also propose bills where there would be a potential conflict of interest, neither should they participate in the deliberation of bills, even if they are not the authors thereof, where there is a potential conflict of interest.
b. Not to 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 is term without forfeiting his seat. (1st sentence, Sec. 13, Art. VI, Ibid.)
c. Not to be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected. (2nd sentence, Sec. 13, Art. VI, Ibid.)
d. Not to personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. (1st sentence, Sec. 14, Art. VI, Ibid.)
e. Not to be directly or indirectly, interested financially in any contract with, or in any franchise or special privilege granted by Congress, or ay subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary, during the term of his office. (2nd sentence, Sec. 14, Art. VI, Ibid.)
f. Not to intervene in any manner before any office of the Government for his pecuniary benefit or where he is called upon to act on account of his office. (last sentence, Sec. 14,Art.VI, Ibid.)
11. Scope of parliamentary immunity. “A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.” (Sec. 11, Art. VI, 1987 Philippine Constitution)
12. Two kinds of legislative or congressional inquiry when persons may be invited by Congress to appear before it:
a. Inquiry in aid of legislation; or
b. Inquiry in the exercise of oversight function of Congress. appearing in or affected by such inquiries are respected. (Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008)
13. Persons may be invited in aid of legislation. “The Senate or the House of Representatives or any of its 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.” (Sec. 21, Art. I, 1987 Philippine Constitution)
14. The exercise of the oversight function of Congress. The heads of the different departments (cabinet members) may be requested by either House, as the rules of such House shall provide, to appear and be heard on any matter pertaining to their departments. (Sec. 22, Art. VI, 1987 Philippine Constitution) Members of the cabinet may be invited under this authority.
The oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. (Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008)
15. Instances when Cabinet members appear before the Senate or the House of Representatives:
a. Upon their own initiative, with the consent of the President of the Philippines.
b. Upon the request of either House, as the rules of each House shall provide. (1st sentence, Sec. 22, Art. VI, 1987 Philippine Constitution)
16. Question hour. The practice of members of the Cabinet appearing before Congress is a feature of the parliamentary system of Government where the members of the Cabinet are responsible to the parliament and may be the subject of inquiry on any matter pertaining to their departments. Thus our system of government is strongly presidential but with certain features of the parliamentary system.
17. Limitations upon the exercise by Congress of the “question hour” privilege:
a. If the appearance by the Cabinet member is upon his own initiative, it must always be with the consent of the President.
b. If it is upon the request of either House, the invitation should be in accordance with the rules of the House making the request.
c. The subject matter shall be limited only to any matter pertaining to the department of the Cabinet member, and no other.
d. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance.
e. Interpellations shall not be limited to the written questions, but may cover matters related thereto.
f. When the security of the State so states in writing, the appearance shall be conducted in executive session. (Sec.22, Art. VI, 1987 Philippine Constitution)
18. The power of Congress to conduct inquiries in aid of legislation is broad. This is based on the proposition that a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change. [Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008 citing Arnault v. Nazareno, 87 Phil. 32 (1950)] Inevitably adjunct, thereto, is the compulsory process to enforce it. (Ibid.)
The power extends even to executive officials and the only way for them to be exempted is through a valid claim of executive privilege. (Ibid., citing Senate of the Philippines, etc., et al., v. Ermita, et al., G. R. No. 169777, April 20, 2006)
19. The Congressional power to conduct inquiries in aid of legislation has limitations. To be valid, it is imperative that it is done in accordance with the Senate or House duly published rules of procedure and that the rights of the persons appearing in or affected by such inquiries are respected. [Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008]
20. Exec. Order No. 464 is valid insofar as it requires Presidential consent for appearance during the “question hour” under Sec. 22, Article VI of the Constitution’ (Senate of the Philippines, etc., et al., v. Ermita, et al., G. R. No. 169777, April 20, 2006)
It is within the Presidential prerogative, explicitly provided for by the Constitution, that a department head who appears before Congress during the “question hour” at his own initiative must always secure the consent of the President. (Ibid.)
21. Exec. Order No. 464 is not valid insofar as it requires Presidential consent for appearance during inquiries in aid of legislation under Sec. 21 of Article VI of the Constitution,
The requirement for consent cannot be applied to appearances of department heads in inquiries in aid of legislation.
Congress is not bound in such instances to respect the refusal of the department heads to appear unless a valid claim of privilege is subsequently made, either by the President or the Executive Secretary. The limitation should be with respect to information and not persons. (Senate of the Philippines, etc., et al., v. Ermita, et al., G. R. No. 169777, April 20, 2006)
22. The revocation of E.O. 464 with regard to inquiries in aid of legislation does in any way limit the Philippine concept of executive privilege which has Constitutional underpinnings. This is unlike the United States where executive privilege is further accorded the concept with statutory status. (Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008 in relation to Senate of the Philippines, etc., et al., v. Ermita, et al., G. R. No. 169777, April 20, 2006)
23. Concept of the executive’s “presumptively privileged communications.” There is great public interest in preserving the confidentiality of conversation that takes place in the President’s performance of his official duties. [Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008 citing United States v. Nixon, 418 U.S. 683) Presidential communications are thus considered as “presumptively privileged.” The presumption is founded on the “President’s generalized interest in confidentiality.” (Ibid.)
24. Elements of the presidential communications privilege:
a, The protected communication must relate to a “quintessential and non-delegable presidential power.”
b. The communication must be authored or “solicited and received” by a close advisor of the President or the President himself. the judicial test is that an advisor must be in “operational proximity” with the President.
c. The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere by an appropriate investigating authority. (Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008 citing various cases)
25. Purpose of the executive’s “presumptively privileged communications.” The privilege is said to be necessary to guarantee the candor of presidential advisors and to provide “the President and those who assist him with freedom to explore the alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” [Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008 citing United States v. Nixon, 418 U.S. 683)
26. The two kinds of executive privilege are:
a. Presidential communications privilege; and
b. Deliberative process privilege. [Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008 citing U.S. Court of Appeals In Re: Sealed Case No. 96-3124, June 17, 1997)
27. Presidential communications privilege as a kind of executive privilege refers to communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential. [Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008 citing U.S. Court of Appeals In Re: Sealed Case No. 96-3124, June 17, 1997)]
28. Deliberative process privilege as a kind of executive privilege includes advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. [Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008 citing U.S. Court of Appeals In Re: Sealed Case No. 96-3124, June 17, 1997)]
29. Scope of the executive privilege. The claim of executive privilege is highly recognized in cases where the subject of the inquiry relates to a power textually committed by the Constitution to the President, such as the area of military and foreign relations.
Under our Constitution, the President is the repository of the commander-in-chief (Sec. 18, Art. VII); appointing (Sec. 16, Art. VII); pardoning (Sec. 19, Art. VII); and diplomatic (Secs. 20 and 21, Art. VII) powers. Consistent with the doctrine of separation of powers, the information relating to those powers may enjoy greater confidentiality than others. [Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008 citing U.S. Court of Appeals In Re: Sealed Case No. 96-3124, June 17, 1997)]
30. Operational proximity test to determine who could invoke the executive privilege. The privilege is confined only to those who have “operational proximity: to direct presidential decision-making. Thus, the privilege is meant to encompass only those functions that form the core of presidential authority, involving what the court characterized as “quintessential and non-delegable Presidential power,” such as the commander in chief power, appointment and removal power, the power to grant pardons and reprieves, the sole authority to receive ambassadors and other public officers, the power to negotiate treaties (Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008 citing CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments at pp. 18-19); the power to enter into executive agreements without the concurrence of the Legislature which has been traditionally recognized in Philippine jurisprudence (Neri, supra citing Bernas, S.J., The 1987 Constitution of the Republic of the Philippines, A Commentary, 2003 ed. p. 903)
31. Confidentiality in executive privilege, being subject to “balancing against other interest” is not absolute. There are exceptions where it may not be availed of:
a. Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute unqualified Presidential privilege of immunity from judicial process under all circumstances
b. Presidential communications are merely presumptively privileged and that the presumption can be overcome only by mere showing of public need by the branch seeking access to conversations.
c. Demonstrated, specific need for evidence in pending criminal trial outweighs the President’s “generalized interest in confidentiality.” (Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008 citing United States v. Nixon, 418 U.S. 683)
32. Congress may not avail of the people’s right to public information in order to obtain information in aid of because there are differences between the two. The demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress, not to an individual citizen. (Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008 citing Senate of the Philippines, etc., et al., v. Ermita, et al., G. R. No. 169777, April 20, 2006)
33. Exercise of congressional privilege to obtain information in aid of legislation is not obtaining information in matters of public concern. While Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information.
When the members of the Committees of Congress discharge their power, they do so as members of Congress and not exercising a right properly belonging to the people in general. (Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008)
34. Exec. Order No. 464 which requires among others certain officers of the Armed Forces of the Philippines (AFP) to secure Presidential consent prior to appearance before a Senate Committee. Is this valid is valid.
Tradition and jurisprudence hold that the commander-in-chief powers of the President are not encumbered to the same degree of restrictions as that which may attach to executive privilege or executive control. (Gudani, et al., v. Senga, etc., et al., G. R .No. 170165, August 15, 2006)
35. It appears that the Senate is not anymore considered as a continuing body. The legislative inquiry must be in accordance with “duly published rules of procedure” because every Senate is distinct from the one before it or after. Since Senatorial elections are held every three (3) years for one-half of the Senate’s membership, the composition of the Senate also changes by the end of each term. Each Senate may thus enact a different set of riles as it may deem fit. (Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008 citing Senate of the Philippines, etc., et al., v. Ermita, et al., G. R. No. 169777, April 20, 2006)
36. It is legal to setup duly authorized duty-free shops in the SSEZ to sell tax and duty-free consumer items in the Secured Area. This is in line with the policy enunciated in the law that “the Subic Special Economic Zone shall be developed into a self-sustaining, industrial, commercial, financial and investment center to generate employment opportunities in and around the zone and to attract and promote productive foreign investments.”
While it is true that Section 12 (b) of Rep. Act No. 7227 mentions only raw materials, capital and equipment, this does not necessarily mean that the tax and duty free buying privilege is limited to these types of articles to the exclusion of consumer goods.
It must be remembered that in construing statutes, the proper course is to start out and follow the true intent of the Legislature and to adopt that sense which harmonizes best with the context and promotes to the fullest manner the policy and objects of the Legislature.
The concept of inclusio unius est exclusio alterius does not find application because the phrase “tax and duty-free importations of raw materials, capital and equipment” was merely cited as an example of incentives that the SSEZ is authorized to grant, in line with its being a free port zone. Thus, the legislative intent is that consumer goods entering the SSEZ which satisfy the needs of the zone and are consumed there are not subject to duties and taxes in accordance with Philippine law. (Coconut Oil Refiners Association, Inc., etc., et al., v. Torres, etc., et al., G. R. No. 132527, July 29, 2005)
` 37. A Presidential Proclamation that allowed for the limited withdrawal from the Clark Special Economic Zone or the John Hay Economic Zone of consumer goods tax and duty-free is invalid as the statutory tax exempt privilege was granted only to the Subic Special Economic Zone and not to John Hay or Clark. This is so because the Constitution mandates that no law granting tax exemption shall be passed without the concurrence of a majority of all the members of Congress. (Coconut Oil Refiners Association, Inc., etc., et al., v. Torres, etc., et al., G. R. No. 132527, July 29, 2005 citing John Hay People’s Alternative Coalition, et al., v. Lim, etc., et al., G.R. No. 119775, October 24, 2003, 414 SCRA 356)
Furthermore, the law is very clear that the “exportation or removal of goods from the territory of the Subic Special Economic Zone to other parts of the Philippine territory shall be subject to customs duties and taxes under the Customs and Tariff Code and other relevant tax laws of the Philippines.” (Ibid.)
38. The constitutional mandate on initiative and referendum. The Congress shall, early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters thereof. (Sec. 32, Article VI, 1987 Constitution)
39. Initiative is the power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose [Sec. 3 (a), Rep. Act No. 6735]
40. Referendum is the power of the electorate to approve or reject a legislation through an election called for the purpose. [Sec. 3 (c), Rep. Act No. 6735]
41. Differences between the concepts and processes of initiative and referendum. Initiative is the power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose [Sec. 3 (a), Rep. Act No. 6735] WHILE referendum is the power of the electorate to approve or reject a legislation through an election called for the purpose. [Sec. 3 (c), Ibid.)
42. Restrictions on the Presidential power to authorize the President to fix tariff rates, import and export quotas, tonnage and wharfage dues. The Congress may, by law, authorize the President to fix within specified limits, subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the government. [1987 Constitution, Art. VI, Sec. 28 (2)]
Art. VII. EXECUTIVE DEPARTMENT
1. Revocation of E.O. 464 did not in any way diminish the concept of executive privilege. Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008 in relation to Senate of the Philippines, etc., et al., v. Ermita, et al., G. R. No. 169777, April 20, 2006)
2. Extent of and limitations upon the President’s power of appointment.
a. “Two months before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.” (Sec. 15, Art. VII, 1987 Philippine Constitution)
b. “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.” (1st sentence, 1st par., Sec. 16, Art. VII, 1987 Philippine Constitution)
c. “He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress, may by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.” (2nd and 3rd sentences, Ibid.) These appointments do not require the consent of the Commission on Appointments. “
d. “The President shall have the power to make appointments during the recess of Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.” (2nd par., Ibid.)
3. Category or categories of officials whose appointments need confirmation by the Commission on Appointments:
a. Heads of the executive departments,
b. ambassadors, other public ministers and consuls, or
c. officers of the armed forces from the rank of colonel or naval captain and
d. other officers whose appointments are vested in the President by the Constitution, such as:
1) The Chairmen and Commissioners of the Commission on Audit, Civil Service Commission, and Commission on Election;
2) The Ombudsman and his Deputies. (Sec. 16, Art. VII, in relation to Art. IX, 1987 Constitution)
The above enumeration may also be used to answer the question “What are the six categories of officials who are subject to the appointing power of the President ?”
4. An ad interim appointment is one that is made
a. when Congress is not in session, or is made
b. pending submission to the Commission on Appointments, or is made
c. when the appointee has been by-passed for approval by the Commission on Appointments, for an office that requires the consent of the Commission on Appointments.
It is not a temporary appointment but a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office.
5. Acting appointment is a temporary appointment (Sevilla v. Court of Appeals, 209 SCRA 637), that will not ripen into a permanent appointment unless a new appointment which is permanent is made. (Marohombsar v. Alonto, 194 SCRA 390)
6. The President may abolish offices because he has been delegated the continuing authority to reorganize including to abolish the administrative structure of the National Government, to achieve simplicity, economy and efficiency which must be done in good faith. (Administrative Code of 1987, Book III, Section 31)
7. Limitations on the pardoning power of the President.
a. The power can only be exercised after conviction by final judgment of the offender;
b. Such power does not extend to cases of impeachment;
c. Persons convicted for violation of the rules and regulations concerning elections cannot be pardoned or paroled or their sentence suspended without the favorable recommendation of the Commission on Elections;
d. Pardon cannot be exercised over civil contempts;
e. Pardon cannot be exercised over congressional contempt declared by resolution of either houses of Congress.
8. Pardon does not restore offices that have been forfeited. The pardoned convict must apply and requalify. (Monsanto v. Factoran, 170 SCRA 190) Neither does a pardon restore the right to hold public office unless such right be expressly restored by the pardon. (Revised Penal Code, Art. 36)
9. Distinctions between pardon and amnesty:
a. Amnesty is usually addressed to crimes against the sovereignty of the State, to political offenses, forgiveness being deemed more expedient for the public welfare than prosecution and punishment WHILE pardon condones infractions of the peace of the state.
b. Amnesty is usually general, address to classes or even communities of persons WHILE pardon is usually addressed to an individual.
c. In amnesty there may or may not be distinct acts of acceptance, so that if other rights are dependent upon it and are asserted, there is affirmative evidence of acceptance WHILE in pardon there must be distinct acts of acceptance. (Burdick v. U.S., 236 U.S. 79)
d. Amnesty requires the concurrence of Congress WHILE pardon does not.
e. Amnesty is a public act which the court takes judicial notice WHILE pardon is a private act of the President which must be pleaded and proved by the person pardoned because the courts do not take judicial notice of it. (Barrioquinto v. Fernandez, 82 Phil. 642)
f. Amnesty looks backward and abolishes and puts into oblivion the offense with which the offender is charged and the person released by amnesty stands before the law precisely as though he had committed no offense WHILE pardon looks forward and relieves the offender from the consequence of an offense of which he has been convicted.
10. The President is immune from suit during his tenure because:
a. To subject the President to a civil suit would be to create an intolerable condition resulting from a general civil responsibility. The natural tendency to protect himself from such responsibility will necessarily result in a delay or inaction on important matters of government; time and efforts of the President would be uselessly spent in wrangling litigations;
b. Dragging the President to courts for civil suits would certainly engender disrespect and disregard for the authority that he represents;
c. The President is regarded by the public generally as the official who most nearly represent the people, who most perfectly epitomizes the government and the State. To put him on trial as a wrongdoer would practically be putting on trial the government itself;
d. Public policy forbids the court from mulcting the President personally for damages which may result from the performance of his official duty. (Forbes v. Chioco Tiaco, 16 Phil. 534)
Impleading the President as respondent during her tenure and incumbency in office degrades the dignity of the office, harass her and detracts her from the performance of her functions. While this may be so, she is subject to impeachment. (David, et al., v. President Gloria Macapagal-Arroyo, etc., et al., G. R. No. 171396, May 3, 2006)
11. The “Calling-out Power” of the President under Section 18, Article VII of the Constitution provides that the President of the Philippines shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. (Art. VII, Sec. 18, 1st par., 1st sentence,)
12. The constitutional safeguards on the exercise by the President of his power to proclaim martial law.
a. There must actual invasion or rebellion.
b. The duration of the proclamation shall not exceed sixty (60) days.
c. Within 48 hours, the President shall report his action to Congress. If Congress is not in session, it must convene within 24 hours.
d. Congress by majority vote of all its members voting jointly revoke the proclamation, and the President cannot set aside the revocation.
e. By the same vote and in the same manner, upon initiative of the President, Congress may extend the proclamation, if the invasion or rebellion continues and public safety requires the extension.
f. The Supreme Court may review the factual sufficiency of the proclamation, and the Supreme Court must decide the case within thirty days from the time it was filed.
g. Martial law does not automatically suspend the privilege of the writ of habeas corpus or the operation of the Constitution. It does not supplant the functioning of the civil courts and of Congress. Military courts have no jurisdiction over civilians where civil courts are able to function. (see below for details)
13. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. (Art. VII, Sec. 18, 1st par., 2nd sentence)
14. Within forty-eight hours from the proclamation of martial law or the suspension of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. (Art. VII, Sec. 18, 1st par., 3rd sentence)
15. The Congress, voting jointly, by a vote of at least a majority of all the Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. (Art. VII, Sec. 18, 1st par., 4th sentence)
The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. (Ibid., 2nd par.)
16. 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. (Art. VII, Sec. 18, 1st par., last sentence)
17. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ (Art. VII, Sec. 18, 4th par.) of habeas corpus.
18. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent or directly connected with invasion. (Art. VII, Sec. 18, 5th par.)
During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. (Art. VII, Sec. 18, last par.)
19. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficient of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. (Art. VII, Sec. 18, 54h par.)
20. Pres. Proc. No. 1017 is constitutional insofar as it constitutes a call by the President for the Armed Forces of the Philippines to suppress lawless violence. This is sustained by Sec.18, Art. VII of the Constitution which provides that, “The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.” (David, et al., v. President Gloria Macapagal-Arroyo, etc., et al., G. R. No. 171396, May 3, 2006)
21. The following provisions of Pres. Proc. No. 1017 that give the President express or implied powers are invalid because of lack of authority under the constitution or existing law:
a. To issue decrees;
b. To direct the AFP to enforce obedience to all laws even those not related to lawless violence as well as decrees promulgated by the government.
c. To impose standards on media or any form of prior restraint on the press.
Under Sec. 17, Article XII the President, in the absence of legislation, cannot take over privately owned public utilities and private business affected with public interest. (David, et al., v. President Gloria Macapagal-Arroyo, etc., et al., G. R. No. 171396, May 3, 2006)
22. G.O. No. 5 is valid. It is an order issued by the President acting as Commander-in-Chief addressed to subalterns in the AFP to carry out the provisions of P.P. No. 1017.
It also provides a valid standard – that the military and the police should take only the “necessary and appropriate actions and measures to suppress and protect acts of lawless violence.” But the words, “acts of terrorism” found in G.O.No. 5 have not been legally defined and made punishable by Congress and should thus be deemed deleted from the said G. O. While terrorism has been described generally in media, no law has been enacted to guide the military and eventually the court, to determine the limits of the AFPs authority in carrying out the provisions of G. O. No. 5. (David, et al., v. President Gloria Macapagal-Arroyo, etc., et al., G. R. No. 171396, May 3, 2006)
23. Warrantless arrests are not authorized under P.P.1017 and G.O. No. 5. (David, et al., v. President Gloria Macapagal-Arroyo, etc., et al., G. R. No. 171396, May 3, 2006)
24. The effects of proclamation of a state of a calamity by the President in areas devastated by typhoons. would have the following effects:
a. The LGU’s in the places affected may enact a supplemental budget for the purchase of supplies and materials or the payment for services to prevent danger to or loss of life or property.
b. The five percent (5%) of the estimated revenue from the regular sources required to be appropriated in the budgets of the affected LGUs for unforeseen expenditures may be used by them.
c. Science and technological personnel of the LGU’s affected shall be paid hazard allowance.
d. Public health workers in the affected LGUs shall be entitled to hazard allowance.
e. The prices of basic commodities in the affected LGUs shall automatically be frozen at their prevailing levels or placed under automatic price controls.
f. A crime committed in the affected LGUs will be considered aggravated.
25. Exec. Order No. 420 which directs all government agencies and government-owned and controlled corporations to adopt a uniform data collection and format for their existing ID Systems is valid. There is no usurpation of legislative authority and violation of privacy. (Kilusan Mayo Uno, et al, v. Director-General, etc., et al., April 19, 2006 and companion cases)
26. There is no intrusion into legislative powers. EO 420 applies only to government entities that already maintain ID systems and issue ID cards pursuant to their regular functions under existing law. There is no grant to such government entities of powers they do not already possess under existing law.
EO 420 is a proper subject of executive issuance under the President’s constitutional power of control over government activities in the Executive Department as well as under the President’s constitutional duty to ensure that laws are faithfully executed.
27. There is no violation of the right to privacy regarding the 14 specific data required in EO 420 as these are routine data for ID systems unlike the sensitive and potentially embarrassing medical records of patients taking prescription drugs. EO 420 narrowly draws the data collection, recoding and exhibition while prescribing comprehensive safeguards. (Kilusan Mayo Uno, et al, v. Director-General, etc., et al., April 19, 2006 and companion cases)
28. The President may contract 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. (1987 Constitution, Article VII, Sec. 20, 1st sentence)
Art. VIII. JUDICIAL DEPARTMENT
1. Cases to be heard by the Supreme Court en banc:
a. Cases involving the constitutionality of a treaty, international or executive agreement, or law;
b. Cases which under the Rules of Court are required to be heard en banc;
c. Cases involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations;
d. Cases heard by a division when the required majority is not obtained;
e. Cases where a doctrine or principle of law previously laid down will be modified or reversed;
f. Administrative cases against judges when the penalty is dismissal;
g. Election contests for President or vice President.
2. Expanded jurisdiction of the Supreme Court. The Supreme Court may now properly “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, 2nd par., 1987 Constitution)
The “political question doctrine” which have been justified by the Supreme Court in some decided cases to maintain a hands-off policy in ruling upon the validity of acts of the executive or legislative department which should be properly submitted directly to the people for their decision has been diluted through the expanded jurisdiction of the Supreme Court granted under the 1987 Constitution.
3. The right of Congress to conduct inquiries in aid of legislation may be subject to review by the Supreme Court pursuant to its certiorari powers because it is, in theory, no less susceptible to abuse than executive or judicial power. [Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008 citing Senate v. Ermita, April 20, 2006 (488 SCRA 1)]
4. A constitutional issue may be passed upon only if essential to the decision of a case or controversy. (Heirs of Cesar Marasigan, etc., v. Marasigan, et al., G. R. No. 156078, March 14, 2008 citing Estrada v. Desierto, G. R. No. 156160, 9 December 2004, 445 SCRA 655, 666)
Even if all the requisites for judicial review are present, the Supreme Court will not entertain a constitutional issue unless it is the very lis mota (Heirs of Cesar Marasigan, supra citing Griffith v. Court of Appeals, 428 Phil. 878, 888; 379 SCRA 94, 103 (2002) in turn citing Hontiveros v. Regional Trial Court, Br. 25, Iloilo City, G. R. No. 125465, 29 June 1999, 309 SCRA 340, 354)
For the Supreme Court to take cognizance of a constitutional issue it
a. must be properly raised and presented in the case, and
b. its resolution is necessary to a determination of the case, i.e., the issue of constitutionality must be the very lis mota presented. (Planters Products, Inc. v. Fertiphil Corporation, G. R. No. 166006, March 14, 2008 citing Tropical Homes, Inc. v, National Housing Authority, G. r. No. L-48672, July 31, 1987, 152 SCRA 540)
5. Operative fact doctrine. An unconstitutional law has an effect before being declared unconstitutional.
The doctrine of operative fact as an exception to the general rule, only applies as a matter of equity and fair play. (Planters Products, Inc. v. Fertiphil Corporation, G. R. No. 166006, March 14, 2008 citing Republic v. Court of Appeals, G.R. No. 79732, November 8, 1993, 227 SCRA 509) It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration. (Planters Products, Inc, supra citing Peralta v. Civil Service Commission, G. R. No. 95832, August 10, 1992, 212 SCRA 425)
6. Supreme Court does not abandon its constitutional duty when it required the parties to consider a proposal that would lead to a possible compromise. It did so to test a tool that other jurisdictions find effective in settling similar cases, to avoid a piecemeal consideration of the questions for review and to avert a constitutional crisis between the executive and legislative branches of government. (Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008)
7. Rationale for referring resolution of constitutional issues for negotiations leading to a compromise.
a. In order to avoid a resolution that might disturb the balance of power between the two branches and inaccurately reflect their true needs. [Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al., G. R. No. 180643, March 25, 2008 citing United States v. American Tel. & Tel. Co., 179 U.S. App. Supp. D.C., 198, 551 F. 2d. 384 (1976)]
b. Much of the spirit of compromise is reflected in the generality of the language of the Constitution. The coordinate branches do not exist in an exclusive adversary relationship to one another when a conflict in authority exists. Rather each branch should take cognizance of an implicit constitutional mandate to seek optional accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation. (Neri, supra citing United States v. American Tel. & Tel. Co., 567 F 2d 121 (1977)]
8. Legal standing or locus standi is “personal and substantial interest in the case such that he party has sustained or will sustain direct injury as a result of the governmental act that is being challenged.” (Automotive Industry Workers Alliance (AIWA),etc., et al., v. Romulo, etc. ,et al., G. R. No. 157509, January 18,2005 citing Integrated Bar of the Philippines, G. R. No. 141284, 15 August 2000, 338 SCRA 81, 100)
9. Need for locus standi. Corollary to the judicial power is the principle of locus standi of a litigant. He who is directly affected and whose interest is immediate and substantial has the standing to sue. Thus, a party must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision in order to warrant an invocation of the court’s jurisdiction and justify the exercise of judicial power on his behalf. (Domingo, et al., v. Carague, etc., et al., G. R. No. 161065, April 15, 2005)
10. Requisites for citizen to have locus standi. He must establish that he has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; b. the injury is fairly traceable to he challenged action; and c. the injury is likely to be redressed by a favorable action. (Automotive Industry Workers Alliance (AIWA),etc., et al., v. Romulo, etc. ,et al., G. R. No. 157509, January 18, 2005 citing Gonzales v. Narvasa, G. R. No. 140835, 14 August 2000, 227 SCRA 733, 740 in turn citing Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on Elections, G. R. No. 132922, 21April 1998, 289 SCRA 337, 343)
11. Locus standi to impugn the alleged encroachment by the executive department into the legislative domain of Congress.
a. Only those who shall be directly affected by such executive encroachment, such as for example employees who would find themselves subject to disciplinary powers that may be imposed under the questioned Executive Order as they have a direct and specific interest in raising the substantive issue therein (Automotive Industry Workers Alliance (AIWA),etc., et al., v. Romulo, etc. ,et al., G. R. No. 157509, January 18, 2005) or employees who are going to be demoted, transferred or otherwise affected by any personnel action subject to the rule on exhaustion of administrative remedies.
b. Moreover, and if at all, only Congress, can claim any injury from the alleged executive encroachment o he legislative function to amend, modify and/or repeal laws. (Automotive Industry Workers Alliance (AIWA),etc., et al., v. Romulo, etc. ,et al., G. R. No. 157509, January 18, 2005 citing Gonzales v. Narvasa, G. R. No. 140835, August 14,2000, 337 SCRA 733, 741)
12. Requisites for a taxpayer’s suit. A taxpayer’s suit is properly brought only when there is an exercise of the spending or taxing power of Congress. (Automotive Industry Workers Alliance (AIWA),etc., et al., v. Romulo, etc. ,et al., G. R. No. 157509, January 18, 2005 citing Gonzales v. Narvasa, G. R. No. 140835, August 14,2000, 337 SCRA 733, 741)
There must be established that a disbursement of public funds is in contravention of law or the Constitution. (Ibid.)
13. Requirements that must be met before taxpayers, concerned citizens and legislators may be accorded standing to sue:
a. The case should involve constitutional issues;
b. For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional.
c. For voters, there must be a showing of obvious interest in the validity of the election law in question.
d. For concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early.
e. For legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators. (David, et al., v. President Gloria Macapagal-Arroyo, etc., et al., G. R. No. 171396, May 3, 2006)
14. Former COA Chairmen and Commis-sioners do not have legal standing to bring suit questioning validity of COA Organizational Restructuring Plan because they have not shown “a personal stake in the outcome of the case” or an actual or potential injury that can be redressed by the Court’s favorable decision. They themselves admitted that “they do not seek any affirmative relief nor impute any improper or improvident act against the said respondents” and ”are not motivated by any desire to seek affirmative relief from COA or from respondents that would redound to their personal benefit or gain.” They failed to show any “present substantial interest” in the outcome of the case.
Nor may they claim that as taxpayers, they have legal standing since nowhere in their petition do they claim that public funds are being spent in violation of law or that there is a misapplication of taxpayers’ money. (Domingo, et al., v. Carague, etc., et al., G. R. No. 161065, April 15, 2005)
15. Locus standi may be waived. The rule on standing, however, is a matter of procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers and legislators when the public interest so requires, such as when the matter is of transcendental importance, of overarching significance to society, or of paramount public interest. (Automotive Industry Workers Alliance (AIWA),etc., et al., v. Romulo, etc. ,et al., G. R. No. 157509, January 18, 2005 citing Araneta v. Dinglasan, 84 Phil.368 ; Dumlao v. Commission on Elections, G. R. No. L-52245, 22 January 1980, 95 SCRA 392, 404 and other cases)
16. The CSC is a party adversely affected who may appeal a decision of the Court off Appeals that reversed an order of the CSC terminating a municipal employee because it has been mandated by the Constitution to preserve and safeguard the integrity of our civil service system. But a former mayor is not a party in interest. ( Dagadag v. Tongnawa,etal., G. R. Nos. 161166-67,February 3,2005 citing Civil Service Commission v. Dacoycoy, G. R. No. 135805, April 29, 1999, 306 SCRA 405; cited in Francisco Abella, Jr., v. Civil Service Commission, G.R. No. 1525754,November 17, 2004, 442 SCRA 507)
The incumbent mayor may interpose the appeal because of his power to appoint and remove municipal employees. Whenever his order imposing administrative sanctions upon erring municipal personnel is challenged, he should be allowed to defend his action considering that he is the appointing and removing authority. The second reason why he has legal personality is because the salaries of municipal officials are drawn from the municipal funds. (Dagadag, supra)
17. There was no executive interference in the judicial functions of the Supreme Court, when the Secretary of Finance forwarded to the Chief Justice a memorandum attaching a copy of the Foreign Chambers Report dated October 17,2001 because the memorandum was merely “noted” to acknowledge its filing. It had no further legal significance. (J. G. Summit Holdings, Inc. v. Court of Appeals, et al., G. R.No.124293, January 31,2005)
18. Some of the constitutional safeguards to maintain judicial independence are:
a. The Supreme Court is a constitutional body and cannot be abolished by mere legislation.
b. The Supreme Court Justices may be removed only through impeachment.
c. The constitutionally allocated jurisdiction of the Supreme Court cannot be diminished.
d. The appellate jurisdiction of the Supreme Court cannot be increased by law without its consent.
e. Appointees to the Judiciary are nominated by the Judicial and Bar Council and are not subject to confirmation by the Commission on Appointments
f. The Supreme Court has the exclusive power to discipline judges of lower court.
g. The Members of the Judiciary have security of tenure, which cannot be undermined by a law reorganizing the Judiciary.
h. Members of the Judiciary cannot be designated to any agency performing quasi-judicial or administrative functions.
i. The salaries of Members of the Judiciary cannot be decreased during their continuance in office.
j. The Judiciary has fiscal autonomy.
k. The Supreme Court has the exclusive power to promulgate rules of pleading, practice and procedure.
l. Only the Supreme Court can temporarily assign judges to other stations.
m. It is the Supreme Court who appoints all officials and employees of the Judiciary.
19. Article 96 of the Articles of War is service connected “for allegedly violating of their solemn oath to defend the constitution and duly constituted authority,” “disrespect to the military profession” which could result to discipline that is dismissal from the service. Since it is “service-connected” it is triable by court-martial.
The acts which are “service connected” are not absorbed by the criminal offenses for which they are being tried before the civil court, which is coup d’etat. The concept of absorption is peculiarly applicable in criminal proceedings only and applies only to crimes penalized by the same statute. The “service-connected” acts are penalized administratively while coup d’etat is a crime.
The declaration of absorption by the court is without legal basis as the law is clear that the Article 96, “conduct unbecoming” is service connected. (Gonzales, et al., v. Abaya, et al., G.R. No. 164007, August 10, 2006)
20. Rules for determining who has jurisdiction: civil courts or military courts under Rep. Act No. 7055:
General Rule: Members of the Armed Forces of the Philippines (AFP) and other persons subject to military law including members of the Civilian Armed Force Geographical Units (CAFGU) who commit crimes under the Revised Penal Code (like coup d’etat), other special penal laws or local ordinances shall be tried by the proper civil court.
Exception: Where the civil court, before arraignment, has determined the offense to be service connected, then the case is triable by court martial.
Exception to the exception: Where the President in the interest of justice, directs before arraignment, that any such crimes or offenses be tried by the proper civil courts. (R. A. No. 7055 cited in Gonzales, et al., v. Abaya, et al., G.R. No. 164007, August 10, 2006)
10. Composition of the Judicial and Bar Council. The Chief Justice as ex oficio Chairman, the Secretary of Justice, and a representative of the Congress as ex oficio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. [1987 Constitution, Article VIII, Sec. 8 (1)]
Art. IX. CONSTITUTIONAL COMMISSIONS
A. COMMON PROVISIONS
1. The effective operation of the so-called “Rotational Scheme” for the Constitutional Commissions requires that the first commissioners should start on a common date and any vacancy before the expiration of the term should be filled only for the unexpired balance of the term.
B. THE CIVIL SERVICE COMMISSION
1. The Civil Service Commission is the central personnel agency of the government charged with the duty of determining questions of qualifications of merit and fitness of those appointed to the civil service.”
C. THE COMMISSION ON ELECTIONS
D. THE COMMISSION ON AUDIT
Art. X. LOCAL GOVERNMENT
Refer to discussion below
Art. XI. ACCOUNTABILITY OF PUBLIC OFFICERS
1. COA has authority to investigate whether directors, officials or employees of government owned and controlled corporations, receiving additional allowances and bonuses are entitled to such benefits under special laws.
A local water district, being a government-owned and controlled corporation with special charter created pursuant to law, P. D. 198, is subject to COA examination. (de Jesus, et al., v. Commission on Audit, G. R. No. 149154, June 10, 2003)
2. Ombudsman has no jurisdiction to entertain questions on the constitutionality of a law. (Presidential Ad Hoc Fact-Finding Committee on Behest Loans, etc., v. Desierto, etc., et al., G.R. No. 145184, March 14, 2008 citing Estarija v. Ranada, G. R. No. 159314, June 26, 2006, 492 SCRA 652, 665)
3. Courts should not interfere with the Ombudsman’s investigatory power, exercised through the Ombudsman Prosecutors, and the authority to determine the presence or absence of probable cause, except when the finding is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction. (Presidential Ad Hoc Fact-Finding Committee on Behest Loans, etc., v. Desierto, etc., et al., G.R. No. 145184, March 14, 2008 citing Collantes v. Marcelo, G. R. Nos.167006-07, August `14, 2007, 530 SCRA 142, 150-151))
4. it is the duty of the Ombudsman to investigate “on complaint by any person, any act or omission of any public official, employee, office or agency when such act or omission appears to be illegal, unjust, improper, or inefficient.” [Article XI, Sec. 13 (1), 1987 Constitution)
5. Ombudsman has the power to suspend preventively for a period not exceeding six (6) months without any notice or hearing. It is merely a preliminary step in an administrative investigation and not a final determination of guilt. (Garcia v. Mojica, 314 SCRA 207 )
6. The Ombudsman has the power to impose administrative penalties upon erring public officers or employees which is not merely recommendatory.
The OMB has the power to directly impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of a public officer or employee, other than a member of Congress and the Judiciary, found to be at fault, within the exercise of its administrative disciplinary authority as provided in the Constitution, Republic Act No. 6770, as well as jurisprudence. (Office of the Ombudsman v. Lisondra, et al., G. R. No. 174045, March 7, 2008)
7. This power gives the said constitutional office teeth to render it not merely functional, but also effective. Section 21 of Republic Act No. 6770 provides:
“Sec. 21. Officials Subject To Disciplinary Authority; Exceptions. – The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.” (Office of the Ombudsman v. Lisondra, et al., G. R. No. 174045, March 7, 2008)
8. Constitutional officers who may be removed through impeachment:
a. the President;
b. the Vice-President,
c. the Members of the Supreme Court;
d. the Members of the Constitutional Commissions, and
e. the Ombudsman. (Art. XI, Sec.2, 1987 Constitution)
9. Grounds for impeachment of the various constitutional officers.
a. Culpable violation of the Constitution,
d. Graft and corruption,
e. Other high crimes, or
f. Betrayal of public trust. (Art. XI, Sec.2, 1987 Constitution)
10. Cronyism which involves unduly favoring a crony to the prejudice of public interest is a form of violation of the oath of office which constitute betrayal of the public trust, a ground for impeachment.
11. An administrative officer given by statute the rank of Justice is not a member of the Judiciary, but of the Executive Department. He may therefore be investigated by the Ombudsman. The Supreme Court does not have jurisdiction to investigate because it would be violative of the concept of separation of powers. (Noblejas v. Teehankee, 23 SCRA 405 )
Art. XII. NATIONAL PATRIMONY AND ECONOMY
1. National patrimony refers not only to our natural resources but also to our cultural heritage. (Manila Prince Hotel v. Government Service Insurance System, 267 SCRA 408)
2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forms of potential energy, fisheries, forests, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. (Art. XII, Sec. 2, 1st par., 1st sentence)
3. Under the Regalian doctrine, the State is the source of any asserted right to ownership of land premised on the basic doctrine that all lands not otherwise appearing to be clearly within private ownership are presumed to belong to the State. [Republic v. Manna Properties ,Inc., etc. citing Pagkatipunan v. Court of Appeals, 429 Phil. 149; 390 SCRA 343 (2002)]
4. With the exception of agricultural lands, all other natural resources shall not be alienated. (Art. XII, Sec. 2, 1st par., 2nd sentence)
5. Land areas reclaimed by a government corporation organized for the purpose of reclamation could not sell the reclaimed lands to private corporations. Alienable lands of the public domain shall be limited to agricultural lands.
Private corporations or associations may to hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years and not to exceed one thousand hectares in area. [1987 Constitution, Art. XII, Sec. 3, 1st par., 3rd and 4th sentences; Chavez v. Public Estates Authority, 384 SCRA 152 (2002)]
6. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. (Art. XII, Sec. 2, 1st par., 3rd sentence)
7. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements, with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. (Ibid., 4th sentence)
Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. (Ibid., 5th and 6th sentences)
8. The President may enter into agreements with foreign corporations involving either technical or financial assistance for large scale exploration, development and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution. (Art. XII, Sec. 2, 4th and 5th par.)
9. The 1987 Constitution specifically declares that all lands of the public domain, waters, fisheries and other natural resources belong to the State. Included are fishponds, which may not be alienated but merely leased. Possession thereof, no matter how long, cannot ripen into ownership. ( Menchavez, e al., v. Teves, Jr., G.R. No. 153201, January 26, 2005 citing Republic of the Philippines v. Court of Appeals, 374 Phil. 209, 219; 315 SCRA 600, September 30, 1999)
10. The agreement of co-shareholders to mutually grant the right of first refusal to each other, by itself, does not constitute a violation of the provisions of the Constitution limiting land ownership to Filipinos and Filipino corporations.
In fact, it can even be said that if the foreign shareholdings of a landholding corporation exceeds 40%,it is not the foreign stockholders’ ownership of the shares which is adversely affected but the capacity of the corporation to own land - that is, the corporation becomes disqualified to own land. (J.G. Summit Holdings, Inc. v. Court of Appeals, et al., G. R. No. 124293, January 31, 2005)
11. No law disqualifies a person from purchasing shares in a landholding corporation even if the latter will exceed the allowed foreign equity, what the law disqualifies is the corporation from owning land.
The constitutional prohibition applies only to ownership of land. It does not extend to immovable or real property as defined under Article 415 of the Civil Code. Otherwise, we would have a strange situation where the ownership of immovable property such as trees, plants and growing fruit attached to the land would be limited to Filipinos and Filipino corporations only. (J.G. Summit Holdings, Inc. v. Court of Appeals, et al., G. R. No. 124293, January 31, 2005)
12. The “Filipino First” or “preferential use” concept mandates that the State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive. (Sec. 12, Article XII, 1987 Constitution)
13. The statutory grant of tax and duty-free importation into the Subic Special Economic Zone does not violate the “preferential use” concept of the Constitution because it allows an exchange on the basis of equality and reciprocity, frowning only in foreign competition that is unfair. (Coconut Oil Refiners Association, Inc., etc., et al., v. Torres, etc., et al., G. R. No. 132527, July 29, 2005 citing Tanada v. Angara, G. R. No. 118295, May 2, 1997, 272 SCRA 18)
14. Granting proprietary protection for the active ingredient of a pesticide for seven years from the date of such registration does not constitute an unlawful restraint of trade which violates the concept of free enterprise enshrined in the Constitution because there is implied a reservation to the government of the power to intervene whenever necessary to promote the general welfare [First Management Association of the Philippines (PMAP) v .Fertilizer and Pesticide Authority (FPA), G. R. No. 156041, February 21, 2007 citing Association of Coconut Desicators v. Philippine Coconut Authority, 349 Phil. 782; 286 SCRA 109 (1998)] considering that the unregulated use and proliferation of pesticides would be hazardous to our environment.
15. The mere fact that incentives and privileges are granted to certain enterprises to the exclusion of others does not render the issuance unconstitutional for espousing unfair competition. [First Management Association of the Philippines (PMAP) v .Fertilizer and Pesticide Authority (FPA), G. R. No. 156041, February 21, 2007, citing Coconut Oil Refiners Association, Inc., v. Torres, G. R. No. 132527, July 29, 2005, 465 SCRA 47, 78]
16. A Japanese national may practice medicine in the Philippines on the basis of reciprocity.. (Board of Medicine, et al., v. Ota, G.R. No. 166097, July 14, 2008)
Art. XIII. SOCIAL JUSTICE AND HUMAN RIGHTS
AGRARIAN AND NATURAL RESOURCES REFORM
URBAN LAND REFORM AND HOUSING
ROLE AND RIGHTS OF PEOPLE’S ORGANIZATIONS
1. Human rights are the basic natural rights which inherent man because of his humanity. The right to life, dignity and existence may be considered as human rights.
2. Demolition of squatter shanties and other illegal structures do not involve human rights as they impede the flow of traffic, and pose a danger to life and limb. (Simon v., Commission on Human Rights, 299 SCRA 117)
3. The Commission on Human Rights does not have the power to issue injunctive writs. (Export Processing Zone Authority v. Commission on Human Rights, 208 SCRA 125) or cease and desist orders because it does not perform adjudicative powers. (Ibid.)
4. The Commission on Human Rights has limited power of contempt. It may cite for contempt only for violation of its operational guidelines and rules of procedure that are essential to carry out its investigatorial powers. (Simon v., Commission on Human Rights, 299 SCRA 117)
Art. XIV. EDUCATION, SCIENCE AND TECHNOLGY, ARTS, CULTURE AND SPORTS
1. Academic freedom has two aspects:
a. Academic freedom of institutions of higher learning; and
b. Academic freedom of teachers, students and researchers.
2. Scope of academic freedom of institutions of higher learning. Includes the freedom to determine who may teach, what may be taught, how it shall be taught and who may be admitted to study. (Garcia v. Faculty of Admissions, 68 SCRA 277)
Academic freedom grants institutions of higher learning the discretion to formulate rules for the granting of honors and to close a school.
3. Scope of academic freedom of teachers, students and researchers. The freedom of a faculty member to pursue his studies in his particular specialty and thereafter to make known or publish the result of his endeavours without fear that retribution would be visited on him in the event that his conclusions are found distasteful or objectionable by the powers that be, whether in the political, economic or academic establishments. (Reyes v. Court of Appeals, 194 SCRA 402)
4. The scope of academic freedom under the 1973 Constitution has been expanded by the 1987 Constitution.
Under the 1973 Constitution, “All institutions of higher learning shall enjoy academic freedom.” [Art. XV, Sec. 8(2)]
The above concept was expanded under the 1987 Constitution which states that, “Academic freedom shall be enjoyed in all institutions of higher learning.” [Art. XIV, Sec. 5 (2)]
The textual changes in the 1987 Constitution means that academic freedom will not only be enjoyed by the institutions of higher learning, but also by those who make them up such as teachers, students and researchers. (Record of the Constitutional Commission, Vol.1V, p. 439)
5. At the option express in writing by the parents or guardians religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong , without additional cost to the Government. [1987 Constitution, Art. XIV, Sec. 3 (3)]
6. Control and administration of educational institutions shall be vested in citizens of the Philippines. (1987 Constitution, Art. XIV, Sec. 4 (2), 2nd par.)
7. Limitation as to aliens. No educational institution shall be established exclusively for aliens and no group of aliens shall comprise more than one-third of the enrolment in any school. The provisions of this subsection shall not apply to schools established for foreign diplomatic personnel and their dependents and, unless otherwise provided by law, for other foreign temporary residents. (1987 Constitution, Art. XIV, Sec. 4 (2), 3rd par.)
1. For purposes of communication and instruction, the official languages of the Philippines are Filipino and, until otherwise provided by law, English. (Art. XIV, Sec. 7, 1st par.)
2. English may be changed but not Filipino. The Proviso of ”until otherwise provided by law” refers to English and not to Filipino.
3. Spanish and Arabic shall be promoted on a voluntary and optional basis. (Art. XIV, Sec. 7, 3rd par.)
SCIENCE AND TECHNOLOGY
ARTS AND CULTURE
Art. XV. THE FAMILY
Art. XVI. GENERAL PROVISIONS
1. The flag of the Philippines shall be red, white, and blue, with a sun and three stars, as consecrated and honoured by the people and recognized by law. (Art. XVI, Sec. 1) which may not be changed or removed by mere statute.
Art. XVII. AMENDMENTS OR REVISIONS
1. The various modes of revising or amending the Philippine Constitution are through
a. a constituent assembly,
b. constitutional convention or
c. people’s initiative. (1987 Constitution, Art. XVII, arrangement and numnbering supplied)
2. Congress as a constituent assembly may by three-fourths vote of all its Members propose any amendment to or revision of the Constitution. (1987 Constitution, Art. XVII, Sec. 1)
3. Congress may by a vote of two-thirds of all its Members may call a constitutional convention or by a majority vote of all its Members submit the question of calling such a convention to the electorate. (1987 Constitution, Art. XVII, Sec. 3)
4. The people may directly propose amendments to the Constitution through initiative upon a petition of at least twelve percent of the total number of registered voters, of which every legislative district must be represented by at least three per cent of the registered voters therein. (Art. XVII, Sec. 2, Ibid.)
5. The phrase “vote of all its Members” should be taken to mean the vote of the members of the Senate and the House of Representatives voting separately because it is inherent in a bicameral legislature for the two houses to vote separately. (III Record of the Constitutional Commission, p. 493)
Art. XVIII. TRANSITORY PROVISIONS
ADMINISTRATIVE LAW AND LAW ON PUBLIC OFFICERS EXCLUDE: IMPLEMENTING RULES AND REGULATIONS OF DIFFERENT AGENCIES
LAW ON PUBLIC OFFICERS
1. The career service is characterized by:
a. entrance based on merit and fitness to be determined as far as practicable by competitive examination or based on highly technical qualifications;
b. opportunity for advancement to higher career positions; and
c. security of tenure. (Book V, Title I, Chapter 2, Sec. 7, Administrative Code of 1997)
2. The career service includes:
a. Open career positions for appointment to which prior qualifications in an appropriate examination is required;
b. Closed career positions which are scientific or highly technical in nature;
c. Positions in the career executive service;
d. Career officers other than those in the career executive service, who are appointed by the President;
e. Commissioned officers and enlisted men of the Armed Forces;
f. Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who do not fall under the non-career service; and
g. Permanent laborers, whether skilled, semi-skilled, or unskilled.
3. Not covered by the civil service law are government and controlled corporations organized under the Corporation Code because they are covered under the Labor Code. Those with original charters (by direct legislative creation), are covered by the civil service laws. (Gamogamo v. PNOC Shipping and Transit Corporation, 381 SCRA 742)
4. Demotion is the movement from one position to another involving the issuance of an appointment with diminution in duties, responsibilities, status, or rank which may or may not involve reduction in salary. (Domingo, et al., v. Carague, et al., G. R. No. 161065, April 15, 2005 citing Fernando v. Sto. Tomas, G. R. No. 112309, July 29, 1994, 234 SCRA 546, 552)
A demotion by assigning an employee to a lower position in the same service which has a lower rate of compensation is tantamount to removal, if no cause is shown for it. (Ibid., citing Department of Transportation and Communications v. Civil Service Commission, G.R. Nos. 89325-26, 90033, October 3, 1991)
5. “All public officers and employees shall take an oath or affirmation to uphold and defend the Constitution.” (Art. IX-B, Sec. 4)
6. Security of tenure means that an officer or employee in the Civil Service shall not be suspended or dismissed except for cause as provided by law and after due process.
7. Re-election of a local official would render a pending administrative case moot and academic.
A municipal mayor cannot be removed from office for his misconduct committed during his prior term because each term is separate and the people by re-electing him are deemed to have forgiven his misconduct. (Aguinaldo v. Santos, 212 SCRA 768)
8. The appointment for a fixed period “unless sooner terminated” refers to a fixed term hence the appointee could not be terminated earlier than the fixed period except for just and authorized causes because this would violate security of tenure.
9. An elected local official must be a Filipino citizen at the time of his proclamation and at the start of his term. This is to ensure that no person owing allegiance to a foreign country shall govern our [people and a unit of the Philippine territory. (Frivaldo v. Commission on Elections, 257 SCRA 727)
10. Resignation implies an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce and relinquish the office and the acceptance by competent and lawful authority. [Republic, et al., v. Singun, G. R. No. 149356, March 14, 2008 citing Gamboa v. Court of Appeals, 194 Phil. 624; 108 SCRA 1 (1981)])
11. Elements of a complete and operative resignation from public office:
a. an intention to relinquish a part of the term;
b. an act of relinquishment; and
c. an acceptance by the proper authority. [Republic, et al., v. Singun, G. R. No. 149356, March 14, 2008 citing Gamboa v. Court of Appeals, 194 Phil. 624; 108 SCRA 1 (1981)])
12. Acceptance requires notification. The incumbent official would not be in a position to determine the acceptance of his resignation unless he had been duly notified. [Republic, et al., v. Singun, G. R. No. 149356, March 14, 2008 citing Gamboa v. Court of Appeals, 194 Phil. 624; 108 SCRA 1 (1981)])
13. Until the resignation is accepted, the tender or offer to resign is revocable. [Republic, et al., v. Singun, G. R. No. 149356, March 14, 2008 citing Joson III v. Nario, G. R. No. 91548, 13 July 1990, 187 SCRA 453)
1. Some of the grounds for proceeding against an employee in the civil service:
a. Grave or simple misconduct;
c. Wilful failure to pay just debts.
d. Habitual absenteeism;
e. Habitual tardiness;
2. To constitute an administrative offense, misconduct should relate to or be connected with the performance of the official functions and duties of a public officer. [Civil Service Commission v. Belagan, G.R. No. 132164, October 19, 2004 citing Lacson v. Roque, 92 Phil. 456 (1953)]
3. Simple misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior, or gross negligence by a public officer. [Sison v. Morales-Malaca, G.R. No. 169931, March 12, 2008 citing Civil Service Commission v. Ledesma, G.R. No. 154521, 30 September 2005, 471 SCRA 589, 603 in turn citing Civil Service Commission v. Lucas, 361 Phil. 486; 301 SCRA 560 (1999)]
Misconduct means intentional wrongdoing or deliberate violation of a rule of law or standard of behavior, especially by a government official (Civil Service Commission v. Belagan, G.R. No. 132164, October 19, 2004 citing Maguad v. de Guzman, A.M. No. P-94-1015,March 29, 1999, 305 SCRA 469)
4. Grave misconduct if the act violates the law or disregard of established rules, which must be proved by substantial evidence. (Valera, etc., v. Office of the Ombudsman, etc., et al., G.R. No. 167278, February 27, 2008)
In grave misconduct, the acts complained of are corrupt or inspired by an intention to violate the law, or constitute a flagrant disregard of well-known legal rules.
It is a transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character and implies wrongful intent and not a mere error in judgment. [Baquero v. Sanchez, etc., A.M.No.P-051974 April 6, 2005 (OCA-I.P.I. No. 03-1684-P citing various cases]
5. In grave misconduct as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law or flagrant disregard of established rule, must be manifest. [Civil Service Commission v. Belagan, G.R. No. 132164, October 19, 2004 citing Civil Service Commission v. Lucas, 361 Phil. 486; 301 SCRA 560 (1999)]
6. Corruption as an element of grave misconduct consists in the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another persons, contrary to duty and the rights of others. (Civil Service Commission v. Belagan, G.R. No. 132164, October 19, 2004 citing Black’s Law Dictionary, p. 345)
7. Grave misconduct is punishable by dismissal from the service with forfeiture of all benefits, excluding leave credits, if any and with prejudice to re-employment in any branch or agency of the government, including government-owned or controlled corporations. [Baquero v. Sanchez, etc., A.M.No.P-051974 April 6,2005 (OCA-I.P.I. No. 03-1684-P) citing Civil Service Law, Subtitle A, Title I, Book V of E.O. 292, otherwise known as the Administrative Code of 1991, amended by the Uniform Rules on Administrative Cases in the Civil Service dated 31August 1999]
8. Discourtesy on the part of a government employee is a ground for disciplinary action because a public officer is bound, in the performance of his official duties, to observe courtesy, civility, and self-restraint in his dealings with others. . Under Rule XIV, Section 23 of the Civil Service Law and Rules, a first offense of discourtesy, which is a light offense, in the course of one’s official duties shall be meted the penalty of reprimand. [Sison v. Morales-Malaca, G.R. No. 169931, March 12, 2008 citing Perez v. Cunting, 436 Phil. 618, 625; 388 SCRA 55, 60 (2002)]
9. An officer or employee in the civil service shall be considered habitually absent if “he incurs unauthorized absences exceeding the allowable 2.5 days monthly leave credits under the leave law for at least three (3) months in a semester or at least three (3) consecutive months during the year.” [Sec. 23 (q), Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292 cited in Escasinas, Jr., v. Lawas, etc., A. M. No. P-06-2284, December 19, 2006. (Formerly OCA I.P.I. No .05-2252-P)]
10. The imposable penalty for habitual absenteeism is suspension for six (6) months and one (1) day to one (1) year for the first offense, and by dismissal for the second offense. [Sec. 23 (q), Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292]
11. An employee shall be considered habitually tardy if “he incurs tardiness, regardless of the number of minutes, ten times a month for at least two (2) months in a semester or at least two (2) consecutive months during the year.” [Sec. 23 (a), Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292 cited in Escasinas, Jr., v. Lawas, etc., A. M. No. P-06-2284, December 19, 2006. (Formerly OCA I.P.I. No .05-2252-P)]
12. The penalty for habitual tardiness is reprimand for the first offense, suspension for one (1) day to thirty (30) days for the second offense, and dismissal for the third offense. [Sec. 23 (a), Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292]
13, Under Civil Service Rules, if the respondent is found guilty of two or more charges, the penalty to be imposed should be that corresponding to the most serious charge and the rest will be considered aggravating circumstances. (Badoles-Algodon v. Zaldivar, etc., A.M. No. P-04-1818, August 3, 2006 citing Revised Rules on Administrative Cases in the Civil Service, Sec. 55, Rule IV)
14. Administrative proceedings against public officials and employees relating or incidental to, or in connection with the performance of their duties are necessarily impressed with public interest. (Autencio v. City Administrator, etc., et al., G. R. No. 152752, January 19, 2005 citing Sy v. Academia, 198 SCRA 705,July 3, 1991)
15. Legal effects of administrative proceedings being impressed with public interest:
a. Withdrawal by the complainant of the administrative charge does not necessarily result in the dismissal of the complaint and will not free respondent from his administrative liability if warranted by the evidence. For administrative actions are not made to depend upon the will of the complainant who, for one reason or another, condones a detestable act. [Ito v. Vera, etc., et al., A.M. No. P-01-1478, December 13, 2006 (Formerly OCA I.P.I. No. 00-789-P)]
b. The technical rules that are applicable to ordinary civil and criminal cases do not find application. Thus, the technical rules of evidence are not followed and formal or trial-type proceedings need always be adhered to.
16. Administrative proceedings are akin to criminal prosecutions in the sense that no compromise may be entered into between the parties as regards he penal sanction. Complainants are not vested with the power of removal or suspension. That prerogative belongs to the proper government officials. This is so because of the need to maintain the faith and confidence of the people in the government demands that the proceedings in administrative cases should not be made to depend on the whims and caprices of complainants. (Autencio v. City Administrator, etc., et al., G. R. No. 152752, January 19, 2005)
17. Role of complainant in administrative proceedings. They are just witnesses. (Autencio v. City Administrator, etc., et al., G. R. No. 152752, January 19, 2005 citing Estreller v. Manalad, Jr., 335 Phil. 1077; 268 SCRA 608, February 21, 1997)
18. The settled rule is that reliance is placed by courts on the factual findings of administrative agencies by reason of the special knowledge and expertise over matters falling within their jurisdiction, being in a better position to pass judgment thereon.
Such factual findings are generally accorded great respect, if not finality, by the courts, as long as they are supported by substantial evidence, even if such evidence might not be overwhelming or even preponderant. It is not the task of an appellate court to weigh once more the evidence submitted before the administrative body and to substitute its own judgment for that of the administrative agency in respect of sufficiency of evidence. (Heirs of Wenceslao Tabia v. Court of Appeals, et al., G. R. Nos. 129377 & 129399, February 22, 2007)
19. The Supreme Court yields to the precept of administrative law. There may be an instance when, pursuant to prudence and judicial restraint, a tribunal’s zeal in bestowing compassion must yield to the precept in administrative law that in [the] absence of grave abuse of discretion, courts are loathe to interfere with and should respect the findings of quasi-judicial agencies in fields where they are deemed and held to be experts due to their special technical knowledge and training. (Government Service Insurance System v. Fontanares, G. R. No. 149571, February 21, 2007)
20. Courts of justice should respect the findings of act of administrative agencies, unless there is absolutely no evidence in support thereto or such evidence is clearly, manifestly and patently insubstantial. (Diesel Construction Co., Inc. v. UPSI Property Holdings, Inc., G. R. No. 1544885, March 24, 2008 and companion case citing Blue Bar Coconut Philippines v. Tantuico, No. L-47051, July 13, 1988, 163 SCRA 716, 729, citations omitted)
21. Requirements of administrative complaint against civil servants. They must be written in a clear, simple and concise language and in a systematic manner, otherwise the same shall be dismissed. [Rivera v, Mendoza, etc., et al., A.M. No. RTJ- 06 – 2013, August 4, 2006 (OCA – I.P.I. No. 06-2509-RTJ) citing the Uniform Rules on Administrative Cases in the Civil Service, Rule II, Sec. 8]
22. Complaint in Administrative Cases in the Civil Service. Complaint. – A complaint against a civil service official or employee shall not be given due course unless it is in writing and subscribed and sworn to by the complainant., However, in cases initiated by the proper disciplining authority, the complaint need not be under oath.
No anonymous complaint shall be entertained unless there is obvious truth or merit in the allegations therein or supported by documentary or direct evidence, in which case the person complained of may be required to comment.
The complaint should be written in a clear, simple and concise language and in a systematic manner as to apprise the civil servant concerned of the nature and cause of the accusation against him and to enable him to intelligently prepare his defense or answer. (Uniform Rules on Administrative Cases in the Civil Service, Rule II, Sec. 8]
23. Procedure for conduct of administrative investigation of employees in the Civil Service and remedies of employees during such investigations. “After a finding of a prima facie case, the disciplining authority shall formally charge the person complained of. The formal charge shall contain a specification of charge(s), a brief statement of material and relevant facts , accompanied by certified true copies of he documentary evidence, if any, sworn statements covering the testimony of witnesses, a directive to answerthecharge9s) in writing under oath in not less than seventy-two (72) hours from receipt thereof, an advice for the respondent to indicate in his answer whether or not he elects a formal investigation of the charge(s) and a notice that he is entitled to be assisted by a counsel of his choice.
If the respondent has submitted his comment and counter affidavits during the preliminary investigation, he shall be given the opportunity to submit additional evidence.
The disciplining authority shall not entertain requests for clarification, bills of particulars or motions to dismiss which are obviously designed to delay the administrative proceedings. If any of these pleadings are introduced by the respondent, the same shall be considered as an answer and shall be evaluated as such.” (J. Callejo, Sr., Rubio, Jr. v. Paras, etc. G. R. No. 156047, April 12, 2005 citing Section 16 of the Uniform Rules on Administrative Cases in the Civil Service)
Sec. 21 of the same Uniform Rules also provides, Remedies from the Order of Preventive Suspension.- The respondent may file a motion for reconsideration with the disciplining authority or may elevate the same to the Civil Service Commission by way of an appeal within fifteen (15) days from the receipt thereof.” (J. Callejo, Sr., Rubio, Jr.,supra)
However, a motion for reconsideration may not be adequate and speedy; hence, may be dispensed with by the aggrieved party who may file the appropriate judicial recourse, (J. Callejo, Sr., Rubio, Jr., supra) usually through a petition for certiorari under Rule 65 of the Rules of Court.
24. The body or agency that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others. (Rubio, Jr., v. Paras, etc., G. R. No. 156047, April 12, 2005 citing Carlos v. Angeles, G.R. No. 142907, 29 November 2000, 346 SCRA 571)
25. Essence of due process in administrative proceedings. In administrative proceedings, the filing of charges and giving reasonable opportunity for the person so charged to answer the accusations against him constitute the minimum requirements of due process. As long as a party is given the opportunity to defend his interests in due course, he was denied due process. [Cayago, et al., v. Lina, etc., G. R. No. 149539, January 19, 2005 citing Rodriguez v. Court of Appeals, 386 SCRA 492 (2002)]]
26. Any seeming defect in the observance of due process is cured by the filing of a motion for reconsideration. A formal or trial-type hearing is not at all times and in all instances essential.
The requirements are satisfied where the parties are afforded reasonable opportunity to explain their side of the controversy at had. What is frowned upon is the absolute lack of notice and hearing. [Cayago, et al., v. Lina, etc., G. R. No. 149539, January 19, 2005 citing Zacarias v. National Police Commission, 414 SCRA 387 (2003)]
27. To raise laches or the first time before he Supreme Court would plainly violate the basic rule of fair play, justice and due process. [Department of Education, Culture and Sports, v. del Rosario, et al., G. R. No. 146586, January 26, 2005 citing Sanchez v. The Hon. Court of Appeals, 345 Phil. 155; 279 SCRA 647 (1997)]
28. Order suspending a government employee may be immediately brought to court without exhaustion of administrative remedies because it is immediately executory, would cause irreparable injury (University of the Philippines Board of Regents v. Rasul, 200 SCRA 685) , and the issue of whether suspension is proper is purely legal. (Azarcon v. Bunagan, 399 SCRA 365).
29. Payment of backwages to suspended employee is proper if found innocent from all the charges and the suspension is unjustified. (Civil Service Commission v. Rabang, G. R. No. 167763, March 14, 2008 citing Bruguda v. Secretary of Education, Culture and Sports, G.R. Nos. 142332-43, January 31, 2005, 450 SCRA 224, 231)
No backwages if charged with charged with gross neglect but found liable for simple neglect as not exonerated from liability. (Civil Service Commission, supra)
30. The Commission on Audit cannot disallow the payment of backwages to a government employee to an employee who has been found innocent from all charges for the following reasons:
a. The Commission on Audit cannot set aside the decision of the Civil Service Commission;
b. The payment of backwages to an illegally dismissed government employee is an irregular, unnecessary, excessive, extravagant (IUEE) or unconscionable expenditure that may be disallowed. [Uy v. Commission on Audit, 328 SCRA 607 (2000)]
31. Appeal shall not stop the decision from being executory, and in case the penalty is suspension or remval, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal. [Civil Service Commission v. Rabang, G. R. No. 167763, March 14, 2008 citing Sec. 47 (4), ,Chapter 6, Subtitle A, Title I, Book V of the Administrative Code of 19897]
32. Concept of exhausting administrative remedies. If a remedy within the administrative machinery is still available, with a procedure pursuant to law, for an administrative officer to decide the controversy, a party should first exhaust such remedy before going to court. A premature invocation of a court’s intervention renders the complaint without a cause of action and dismissable on such ground. (Estrada, et al., v. Court of Appeals, et al., G.R. No. 137862, November 11, 2004 citing Bangus Fry Fisherfolk v. Lanzanas, G.R. No. 131442, July 10, 2003, 405 SCRA 530)
33. Purpose of the doctrine. The tribunal, either judicial or quasi-judicial must be given a chance to correct the imputed errors on its act or order. (Rubio, Jr., v. Paras, etc., G. R. No. 156047, April 12, 2005 citing Pefianco v. Moral, G. R. No. 132248, January 2000, 322 SCRA 439)
Prior availment of administrative remedies entails lesser expenses and provides for a speedy disposition of controversies. Comity and convenience also impel courts of justice to shy away from a dispute until the system of administrative redress has been completed and complied with. (Estrada, et al., v. Court of Appeals, et al., G.R. No. 137862, November 11, 2004 citing Paat v. Court of Appeals, G.R. No. 111107,January 10, 1997, 266 SCRA 167, 175-176)
34. Exhaustion is to be invoked only where the exercise is that of quasi-judicial functions not in the exercise of quasi-legislative power.
In questioning the validity or constitutionality of a rule or regulation issued by an administrative agency, a party need not exhaust administrative remedies before going to court. This principle, however, applies only where the act of the administrative agency concerned was performed pursuant to its quasi-judicial function, and not when the assailed act pertained to its rule-making or quasi-legislative power. [Holy Spirit Homeowners Association, Inc., et al, v. Defensor, etc., et al., G. R. No. 163980, August 3, 2006 citing Smart Communications, Inc. v. National Telecommunications Commission, 456 Phil. 145, 155; 408 SCRA 678, 686 (2003)]
35. Exceptions to the doctrine of exhaustion of administrative remedies. The doctrine of exhaustion of administrative remedies is a relative one and its flexibility is conditioned on the peculiar circumstances of a case. There are a number of instances when the doctrine has been held to be inapplicable. Among the established exceptions are:
1) when there is a violation of due process;
2) when the issue involved is purely a legal question;;
3) when the administrative body is in estoppel;
4) when the act complained of is patently illegal and amounts to lack or excess of jurisdiction;
5) when the respondent is a department Secretary whose acts, as an alter ego of the President, bears the implied and assumed approval of the latter;
6) when to require exhaustion of administrative remedies would be unreasonable;
7) when it would amount to a nullification of a claim;
8) when there are circumstances indicating the urgency of judicial intervention and unreasonable delay would greatly prejudice the complainant;
9) when the subject matter is a private land in land case proceedings;
10) when no administrative review is provided by law;
11) when the claim involved is small;
12) when irreparable damage will be suffered;
13) when there is no other plain, speedy and adequate remedy;
14) when strong public interest is involved;
15) when the issue of non-exhaustion of administrative remedies has been rendered moot; and
16) in quo warranto proceedings. (Estrada, et al., v. Court of Appeals, et al., G.R. No. 137862, November 11, 2004 citing Social Security Commission v. Court of Appeals, G.R. 152058, September 27, 2004, 439 SCRA 239; Rubio, Jr., v. Paras, etc., G.R.No.156047, April 12,2005; Philippine Health Insurance Corporation v. Chinese General Hospital and Medical Center, G.R. No. 163123, April 15, 2005 citing Nachura and various cases)
LAWS ON SUFFRAGE
PARTY- LIST LAW (R.A. No. 7941
OMNIBUS ELECTION CODE OF THE PHILIPPINES (B.P. Blg. 881)
ELECTORAL REFORMS LAW OF 1987 (R. A. No. 6646)
R. A. No. 7166 – AN ACT PROVIDING FOR SYNCHONIZED NATIONAL AND LOCAL ELECTIONS AND FOR ELECTORAL REFORMS, as amended by R.A. No. 9369
1. Suffrage may be exercised by:
a. all Filipino citizens of the Philippines
1) not otherwise disqualified by law,
b. who are at least eighteen years of age, and
c. who shall have resided in the Philippines for at least one year and
1) in the place where they propose to vote for at least six months
2) immediately preceding the election.
d. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. (Sec. 1, Article V, 1987 Philippine Constitution, paraphrasing and numbering supplied)
2. Absentee voting refers to the process by which qualified citizens of the Philippines abroad exercise their right to vote. (Rep. Act 9189, the Overseas Absentee Voting Law)
3. Overseas Absentee Voter. A citizen of the Philippines who is qualified to register and vote under this Act, not otherwise disqualified by law, who is abroad on the day of elections. (Rep. Act 9189, the Overseas Absentee Voting Law)
4. Coverage, or who are allowed to vote under the Rep. Act No. 9189, the Overseas Absentee Voting Law. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators and party-list representatives.” (Sec. 4, Rep. Act No. 9189, the Overseas Absentee Voting Law)
5. The right to vote under Republic Act No. 9189 the Overseas Absentee Voting Act of 2003 of a former Filipino citizen, a permanent resident of the U.S., who has re-acquired Philippine citizenship under Rep. Act No. 9225, the Citizenship Retention and Re-Acquisition Act of 2003 may not be questioned on the ground that he is not a resident of Philippines as so required under Sec. 1, Article V, of the 1987 Constitution.
Reason: The whole point of Overseas Absentee Voting Act is precisely to enfranchise “dual citizens” with the right of suffrage thru the absentee voting scheme and as overseas absentee voters. (Nicolas-Lewis, et al., v. Commission on Elections, G. R. No. 1162759, August 4, 2006)
5. Derivative Citizenship under Rep. Act No. 9225, the Citizenship Retention and Re-Acquisition Act of 2003. The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship under this Act shall be deemed citizens of the Philippines. (Sec. 4, Rep. Act No. 9225, the Citizenship Retention and Re-Acquisition Act of 2003)
6. The next generation of “duals” may avail themselves of the right to enjoy full civil and political rights including the right to vote, including the right of suffrage as an overseas absentee. (Obiter in Nicolas-Lewis, et al., v. Commission on Elections, G. R. No. 1162759, August 4, 2006)
7. Disqualifications to vote under the Rep. Act No. 9189, the Overseas Absentee Voting Law. The following shall be disqualified from voting under this Act:
a. Those who have lost their Filipino citizenship in accordance with Philippine law unless they have re-acquired the same under Rep. Act No. 9225, the Citizenship Retention and Re-Acquisition Act of 2003;
b. Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country unless they have re-acquired the same under Rep. Act No. 9225, the Citizenship Retention and Re-Acquisition Act of 2003;
c. Those who have been convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than one(1) year, including those who have been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code;
d. An immigrant or permanent resident who is recognized as such in the host country, unless he/she executes upon registration, and affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3)years from approval of his/her registration under this Act. Such affidavit shall also state that he he/she has not applied for citizenship in another country. Failure to return shall be the cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Votes, and hi/her permanent disqualification to vote in absentia.
e. Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority. (Sec. 5, Rep. Act No. 9189, the Overseas Absentee Voting Law)
8. The Congress shall design a procedure for the disabled and the illiterates to vote without the assistance of other persons.
Until then, they shall be allowed to vote under existing laws and such rules as the Commission on Elections may promulgate to protect the secrecy of the ballot. (2nd par., Sec. 2, Article V, 1987 Philippines Constitution)
9. A pre-proclamation controversy refers to election question pertaining to or affecting the proceedings of the Board of Canvassers that may be raised by any candidate or by any registered political party or coalition of political parties before the Board of directly with the Comelec, or any matter raised in relation to the preparation, transmission, receipt, custody and appreciation of the election returns (B. P. Blg. 881, Sec. 241) and certificates of canvass. (as amended by R.A. No. 7166, 9369)
10. Procedure, in general, on how pre-proclamation controversies are initiated, heard, and finally resolved.
a. Questions affecting the composition or proceedings of the Board of Canvassers or directly with the Commission.
b. Questions involving the election returns and the certificates of canvass shall be brought in the first instance before the Board of Canvassers only. (R. A. No. 7166, Sec. 20)
c. Any party adversely affected may appeal to the Commission on Elections. (Ibid.)
All pre-proclamation controversies pending before the Commission on Elections shall be deemed terminated at the beginning of the term of office involved and the rulings of the Board of Canvassers shall be deemed affirmed, without prejudice to the filing of an election protest. However, the proceedings may continue when on the basis of the evidence presented so far, the Commission on Elections or the Supreme Court determines that the petition appears to be meritorious. (R. A. No. 7611,Sec.16)
d. The decision of the Commission on Elections may be brought to the Supreme Court on certiorari by the aggrieved party. (Art. IX-A, Sec. 7, 1987 Constitution)
11. In elections for President, Vice-President, Senators and Members of the House of Representatives, the general rule still is that pre-proclamation cases on matters relating to the preparation, transmission, receipt, custody and appreciation of election returns or certificates of canvass are still prohibited.
12. Exceptions: Instances where pre-proclamation cases are allowed for election of President, Vice-President, Senators and Members of the House of Representatives:
a. correction of manifest errors;
b. questions affecting the composition or proceedings of the board of canvassers; and
c. determination of the authenticity and due execution of certificates of canvass as provided in Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369
13. The amendments introduced by Republic Act No. 9369, are specifically summarized as:
a. the duty to determine the authenticity and due execution of certificates of canvass is now imposed, not only on Congress acting as the NBC for the election for President and Vice-President, but also on COMELEC en banc acting as the NBC for the election for Senators;
b. the third criterion for the determination of the authenticity and due execution of the certificates of canvass requires the absence of discrepancy in comparison not only with other authentic copies of the said certificates, but also with the supporting documents, such as the statements of votes;
c. a fourth criterion for the determination of the authenticity and due execution of the certificates of canvass was added, mandating the absence of discrepancy between the number of votes of a candidate in a certificate when compared with the aggregate number of votes appearing in the election returns of the precincts covered by the same certificate;
d. pursuant to the exception now provided in Section 15 of Republic Act No. 7166, as amended by Republic Act No. 9369, permissible pre-proclamation cases shall adopt and apply the procedure provided in Sections 17 to 20 of the same statute; and
e. the use of a simulated copy of an election return, certificate of canvass, or statement of vote, or a printed copy of said election documents bearing a simulated certification or image shall be penalized as an election offense. [Pimentel III, v. Commission on Elections, etc., et al., G.R. No. 178413, March 13, 2008]
14. The procedure to be followed for objecting to a certificate of canvass for Senatorial candidates.
Any objection or manifestation concerning a certificate of canvass before the National Board of Canvassers (NBC), as well as any contest involving the inclusion or exclusion of an election return or certificate of canvass before a local board of canvassers, must be orally submitted to the Chairperson of the NBC or the local board of canvassers, as the case may be.
Simultaneous with the oral submission, the party concerned must submit his written objection, manifestation, or contest in the form required.
The objection, manifestation, or contest shall also be recorded in the minutes of the canvass. In the event that the NBC or local board of canvassers shall determine that there is a proper case for the objection, manifestation, or contest submitted, it shall automatically defer the canvass of the assailed election return or certificate of canvass.
Within 24 hours from the submission of the objection, manifestation, or contest, the party concerned shall submit his evidence which shall be attached to his written objection, manifestation, or contest. Within the same 24-hour period, any party may file a written and verified opposition to the objection, manifestation, or contest.
Upon receipt of the evidence, the NBC or the local board of canvassers shall take up the assailed election return or certificate of canvass, and after considering the objection, manifestation or contest, together with the opposition thereto and the evidences submitted, shall summarily and immediately rule thereon. [Pimentel III, v. Commission on Elections, etc., et al., G.R. No. 178413, March 13, 2008]
15. Purpose of the above procedure. The afore-described procedure does not provide any party the opportunity to question and confront election officials and other witnesses. It may have been allowed on occasion by the boards of canvassers, but it does not necessarily ripen into a legally demandable right.
Canvass proceedings are administrative and summary in nature.
As for local boards of canvassers, in elections for Senators, they only need to determine the authenticity and due execution of the election returns or certificates of canvass on the face thereof.
As for the COMELEC en banc, acting as the NBC, the determination of the authenticity and due execution of the certificates of canvass shall be limited only to those submitted before it by the local boards of canvassers and in accordance with the criteria provided in Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369.
The limitations on the powers and duties of the boards of canvassers are meant to avoid any delay in the proclamation of the elected official. Issues whose resolution would require the presentation and examination of witnesses are more properly raised in a regular election protest. [Pimentel III, v. Commission on Elections, etc., et al., G.R. No. 178413, March 13, 2008]
16. Kinds of election contests are Election protests and Quo warranto.
17. Distinctions between an election protest from an action for quo warranto.
a. An election protest contests the results of the election on grounds of fraud, terrorism, irregularities or illegal acts committed before, during, or after the casting and counting of ballots WHILE quo warranto proceedings contests the ineligibility or disloyalty to the Republic of the Philippines;
b. An election protest may be filed by a losing candidate WHILE quo warranto proceedings may be brought by any person.
18. Grounds for election protest. Fraud, terrorism, irregularities or illegal acts committed before, during or after the casting and counting of votes.
19. An election protest is initiated by filing a protest containing the following allegations:
a. The protestant is a candidate who duly filed a certificate of candidacy and was voted for in an election.
b. The protestee has been proclaimed; and
c. The date of the proclamation. (Miro v. Commission on Elections, 121 SCRA 466)
20. The following have jurisdiction over election contests:
a. Barangay officials - Municipal Trial Court, Metropolitan Trial Court, Municipal Circuit Trial Court, Municipal Trial Court in Chartered Cities.
b. Municipal officials - Regional Trial Court
c. Regional, provincial and city officials – Commission on Elections. [Art. IX-C, Sec. 2 (2), 1987 Constitution]
d. Congressman - House of Representatives Electoral Tribunal
e. Senators - Senate Electoral Tribunal. (Art. VI, Sec. 17, 1987Constitution)
f. President and Vice President - The Supreme Court sitting as the Presidential Electoral Tribunal. (Art. VII, Sec.4, 1987 Constitution)
21. Appeals of election contests:
a. The decision of the inferior court in election contests involving the barangay officials and of the Regional Trial Court in election contests involving municipal officials are appealable to the Commission on Elections.[Art. IX-C,Sec.2(2), 1987 Constitution]
b. The decision of the Commission on Elections in election contests involving barangay and municipal officials may be brought to the Supreme Court on certiorari on pure questions of law. (Rivera v. Commission on Elections, 199 SCRA 178)
c. The decision of the Commission on Elections in election contests involving regional, provincial and city officials may be brought to the Supreme Court on certiorari. [Art. IX-A, Sec. 7 and Art. IX-C, Sec. 2(2), both of the 1987 Constitution]
d. The decisions of the Senate Electoral Tribunal and of the House Electoral Tribunal may be elevated to the Supreme Court on certiorari if there was grave abuse of discretion. (Lazatin v. Commission on Elections, 168 SCCRA 391)
22. Once a winning candidate has been proclaimed, taken his oath, and assumed as a Member of the House of Representatives, COMELEC’s jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET’s own jurisdiction begins. [Aggabao v. The Commission on Elections, et al., G.R. No. 163756, January 26, 2005 citing Guerrero v. Commission on Elections, 391 Phil. 344, 352; 336 SCRA 458 (2000)]
Where a Congressional candidate has already been proclaimed, took his oath and assumed office, the opponent’s only recourse would have been to file an election protest before the HRET, and not a petition for certiorari with the Supreme Court. The issues are best addressed to the sound judgment and discretion of the electoral tribunal. (Aggabao v. The Commission on Elections, et al., supra)
23. Allegation of nullity of proclamation does not divest the HRET of its jurisdiction. Reason: It avoids duplicity of proceedings and a clash of jurisdiction between constitutional bodies, with due regard to the people’s mandate. [Aggabao v. The Commission on Elections, et al., G.R. No. 163756, January 26, 2005 citing Guerrero v. Commission on Elections, 391 Phil. 344, 352; 336 SCRA 458 (2000)]
24. Despite alleged invalidity of proclamation of winning candidate, the COMELEC is deprived of its jurisdiction to hear the protest. It is a matter that is addressed to the sound judgment of the Electoral Tribunal. (Aggabao v. The Commission on Elections, et al., G.R. No. 163756, January 26, 2005 citing Lazatin v. Commission on Elections, G. R. No.80007, 25 January 1998, 391 Phil. 344, 352; 157 SCRA 337, 338)
25. The widow of a deceased presidential candidate is not a real party in interest to have capacity to substitute through intervention before the Presidential Electoral Tribunal.
A public office is personal to the public officer and not a property transmissible to the heirs upon death. (Poe, etc., v. Macapagal-Arroyo, P.E.T. Case No. 002, March 29, 2005 citing De Castro v. Commission on Elections, G. R. No. 125249, 7 February 1997, 267 SCRA 806, 809)
26. It is true that a contest before electoral tribunals has two aspects:
First, it is in pursuit of one’s right to a public office, and second, it is imbued with public interest which raises it to a plane over and above ordinary civil actions.
However, if persons not real parties in an action could be allowed to intervene, proceedings will be unnecessarily complicated, expensive and interminable – and this is not the policy of the law. (Poe, etc., v. Macapagal-Arroyo, P.E.T. Case No. 002, March 29, 2005 citing Magsaysay-Labrador v. Court of Appeals, G. R. No. 58168, 19December 1989, 180 SCRA 266, 271)
27. Substitution of the protestant in election protests allowed only if substitute is a real party in interest. While the right to a public office is personal and exclusive to the public officer, an election protest is not purely personal and exclusive to the protestant or to the protestee such that the death of either would oust the court of all authority to continue with the proceedings. (Poe, etc., v. Macapagal-Arroyo, P.E.T. Case No. 002, March 29, 2005 citing De Castro v. Commission on Elections, G. R. No. 125249, 7 February 1997, 267 SCRA 806, 809) Hence, substitution and intervention was allowed but only by a real party in interest.
Substitution by a vice-mayor was permitted, since he is a real party in interest considering that if the protest succeeds and the protestee is unseated, the vice-mayor succeeds to the office of the mayor that becomes vacant if the one duly elected cannot assume office. (Poe, etc., v. Macapagal-Arroyo, P.E.T. Case No. 002, March 29, 2005 citing Vda. De Mesa v. Mencias, No. L-24583, 29 October 1966, 18 SCRA 545 and Lomugdang v.Javier, No. L-27535, 30 September 1967, 21SCRA 402, 407)
28. The constitutional function as well as the power and the duty to be the sole judge of all contests relating to the election, returns and qualifications of the President and Vice-President is expressly vested in the Presidential Electoral Tribunal (PET), in Section 4, Article VII of the Constitution.
Included therein is the duty to correct manifest errors in the Statement of Votes (SOVs) and the Certificates of Canvass (COCs). (Legarda v. De Castro, P.E.T. Case No. 003, March 31, 2005)
29. The candidate who obtained the second highest number of votes should not be proclaimed if the candidate with the highest number of votes was subsequently declared to be disqualified because he was not the choice of the people.
LOCAL GOVERNMENT CODE (R. A. No. 7160) [BASICS AND EXCLUDE PROVISIONS RELATING TO LOCAL TAXATION]
1. A local government is a “political subdivision of a nation or state which is constituted by law and has substantial control of local affairs.” (Metropolitan Manila Development Authority v. Garin, G.R. No. 130230, April 15, 2005 citing various sources)
2. The various local government units are the provinces, cities, municipalities and barangays. (Metropolitan Manila Development Authority v. Garin, G.R. No. 130230, April 15, 2005)
3. Metropolitan Manila Development Authority (MMDA) is not a local government unit or a public corporation endowed with legislative power, and unlike its predecessor, the Metro Manila Commission, it has no power to enact ordinances for the welfare of the community. MMDA can only enforce traffic laws and regulations validly enacted by the legislative bodies of the local government units comprising Metro Manila. (Metropolitan Manila Development Authority v. Garin, G.R. No. 130230, April 15, 2005 citing Metro Manila Development Authority v. Bel-Air Village Association, Inc., G. R. No. 135962, 27 March 2000, 328 SCRA 836)
4. The MMDA is a development authority created for the purpose of laying down policies and coordinating with the various national government agencies, people’s organizations, non-governmental organizations and the private sector, which may enforce but not enact, ordinances. (Metropolitan Manila Development Authority v. Garin, G.R. No. 130230, April 15, 2005 citing Metro Manila Development Authority v. Bel-Air Village Association, Inc., G. R. No. 135962, 27 March 2000, 328 SCRA 836)
5. Devolution is the act by which the National Government confers power and authority upon the various local government units to perform specific functions and responsibilities. [Local Government Code, Sec. 17 (e)]
6. Police power is lodged with National Legislature which in turn may delegate it to local government units. Once delegated, the agents can exercise only such legislative powers as are conferred on them by the national lawmaking body.
Our Congress has delegated police power to the LGUs in the Local Government Code of 1991. (Metropolitan Manila Development Authority v. Garin, G.R. No. 130230, April 15, 2005)
7. The MMDA does not have the power to confiscate, suspend or revoke drivers’ licenses without a traffic law or regulation validly enacted by the legislature or those local government units to whom legislative powers have been delegated.
Once there is such a law, MMDA is duty-bound to confiscate, suspend or revoke drivers’ licenses in the exercise of its mandate of transport and traffic management, as well as the administration and implementation of all traffic enforcement programs, traffic engineering services and traffic education programs. (Metropolitan Manila Development Authority v. Garin, G.R. No. 130230, April 15, 2005)
8. License to operate motor vehicle is not a property right, but a privilege granted by the state which may be suspended or revoked by the state in the exercise of its police power, in the interest of public safety and welfare, subject to the procedural due process requirements. (Metropolitan Manila Development Authority v. Garin, G.R. No. 130230, April 15, 2005 relying upon Pedro v. Provincial Board of Rizal, 56 Phil. 123 (1931) on the license to operate a cockpit; Tan v. Director of Forestry , G. R. No. L-24548, 27 October 1983, 125 SCRA 302 and Oposa v. Factoran, G. R. No. 101083, 30 July 1993, 224 SCRA 792 on timber licensing agreements, and Surigao Electric Co., Inc. v. Municipality of Surigao, G. R. No. L -22766, 30 August 1968, 24 SCRA 898)
It is the legislature in the exercise of police power, which has the power and responsibility to regulate how and by whom motor vehicles may be operated on the state highways. (Metropolitan Manila Development Authority v. Garin, G.R. No. 130230, April 15, 2005)
9. The newly delegated powers to the Local Government Units (LGUs) pertain to the franchising and regulatory power theretofore exercised by the LTFRB and not to the functions of the LTO relative to the registration of motor vehicles and issuances for licenses for the driving thereof.
10. A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power to 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. (Sec. 19, Local Government Code)
11. The local government’s choice on what specific lots to expropriate should not be arbitrary. If there are other lots that are better and more appropriate, it should choose the same and not others. (Municipality of Meycauayan v. Intermediate Appellate Court, 157 SCRA 640)
12. Before a local government unit may enter into the possession of the property sought to be expropriated, it must
a. file a complaint for expropriation sufficient in form and substance before the proper court and
b. deposit with the said court at least 15% of the property’s fair market value based on its current tax declaration.
The law does not make the determination of a public purpose a condition precedent to the issuance of a writ of possession. [Francia, Jr., et al., v. Municipality of Meycauayan, G. R. No. 170432, March 24, 2008 citing City of Iloilo v. Legaspi, G. R. No. 154614, 25 November 2004, 444 SCRA 269, 283 in turn citing City of Manila v. Serrano, 412 Phil. 754, 763; 359 SCRA 231, 240 (2001)]
13. For an ordinance to be valid, it must not only be within the corporate powers of the LGU to enact and be passed according to the procedure prescribed by law, it must also conform to the following substantive requirements:
a. must not contravene the Constitution or any statute;
b. must not be unfair or oppressive;
c. must not be partial or discriminatory;
d. must not prohibit but may regulate trade;
e. must be general and consistent with public policy and
f. must not be unreasonable. [Social Justice Society (SJS, et al., v. Atienza, Jr., etc., G.R. No. 156052, February 13, 2008)
14. A law passed fixing the term of elective officials of local government units, except barangay officials, to four years is unconstitutional.
The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. (Art. X, Sec. 8, 1st sentence)
15. Voluntary renunciation of the office for any length of time shall not be considered as an interruption on the continuity of his service for the full term for which he was elected. (Art. X, Sec. 8, 2nd sentence)
16. Persons who are disqualified, under the Local Government Code, 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 and abroad;
f. Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of the Local Government Code; and
g. The insane or feeble-minded. (Sec. 40, Local Government Code)
17. To qualify for an elective office, a person must be a resident of the locality for at least one year immediately before the election. [Sec. 39 (a), Local Government Code]
18. A consecutive three term mayor of a municipality cannot run as mayor for a consecutive fourth term if the municipality is converted into a city. Despite the change in corporate personality of the municipality, the framers of the Constitution intended to avoid the evil of a single person accunmulating excessive power over a particular territory as a result of a prolonged stay in the same office. (Latusa v. Commission on Elections, 417 SCRA 601)
19. A municipality may not be held liable for tort committed by a regular employee using a dump truck owned by it because the employee was discharging governmental (public works) functions. (Municipality of San Fernando v.Firme, 195 SCRA 692)
20. Sources of funds under the Constitution of local government units:
a. Taxes, fees and charges. (1987 Constitution, Art. X, Sec. 5)
b. Share in the national taxes. (Ibid., Sec. 6)
c. Share in the proceeds of the utilizations and development of the national wealth within their areas. (Ibid., Sec. 7)
21. Local government shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. (Art. X, Sec. 5)
22. A municipality may be created, divided, merged, abolished, or its boundary substantially altered only by an Act of Congress and subject to the approval by a majority of the votes cast in a plebiscite to be conduced by the Comelec in the local government unit or units directed affected.
Except as may otherwise be provided in the said Act, the plebiscite shall be held within one hundred twenty (120) days from the date of its effectivity. (Sec. 441, Local Government Code)
23. Jurisdictional responsibility for settlement of boundary disputes between local government units:
a. Sangguniang panlunsod or sangguniang bayan concerned – Boundary disputes involving two (2) or more barangays in the same city or municipality.
b. Sangguniang panlalawigan concerned – Boundary disputes involving two (2) or more municipalities within the same province.
c. Joint settlement by the sanggunians of the provinces concerned – Boundary disputes involving municipalities or component cities of different provinces,
d. Joint settlement by the respective sanggunians of the parties – Boundary disputes involving a component city or municipality on the one hand and a highly urbanized city on the other, or two (2) or more highly urbanized cities.
e. In the event the sangguniang fails to effect an amicable settlement within sixty (60) days from the date the dispute was referred thereto, it shall issue a certification to that effect. Thereafter, the dispute shall be formally tried by the sangguniang concerned which shall decide the issue within sixty (60) days from the date of the certification referred to above. (Sec. 118, Local Government Code)
It seems that a boundary dispute between an independent component city and a municipality is not covered by the above procedure, hence it should be referred to the proper Regional Trial Court. (Municipality of Kananga v. Madrona, 402 SCRA 330)
24. Appellate process for boundary disputes between local government units. Within the time and manner provided by the Rules of Court, any party may elevate the decision of the sangguniang concerned to the proper Regional Trial Court having jurisdiction over the area in dispute.
The Regional Trial Court shall decide the appeal within one (1) year from the filing thereof.
Pending final resolution of the disputed area prior to the dispute shall be maintained and continued for all legal purposes. (Sec. 119, Local Government Code)
25. Recognition of a municipality’s de facto existence by reason of its alleged continued existence despite its nullification would in effect be condoning defiance of valid order of the Supreme Court. Court decisions cannot obviously lose their efficacy due to the sheer defiance by the parties aggrieved. (Camid v. Office of the President, et al., G. R. No. 161414,January 17, 2005)
26. Municipal corporations may exist by prescription where it is shown that the community has claimed and exercised corporate functions, with the knowledge and acquiescence of the legislature, and without interruption or objection for period long enough to afford title by prescription. [Camid v. Office of the President, et al., G. R. No. 161414,January 17, 2005 citing R. Martin, Public Corporations (1983 ed.) at p.18 citing Cooley’s Mun. Corp. 52]
These municipal corporations have exercised their powers for a long period without objection on the part of the government that although no charter is in existence, it is presumed that they were duly incorporated in the first place and that their charters are lost. (Id., atp.18 citing AM JUR., pp. 629-630_
27. An inquiry into the existence of a municipality is reserved to the State in a proceeding for quo warranto but only if the municipal corporation is a de facto corporation. However, previous acts done in the exercise of its corporate powers were not necessarily a nullity. [Camid v. Office of the President, et al., G. R. No. 161414,January 17, 2005 citing Municipality of Malabang v. Benito, 137 Phil. 358; 27 SCRA 533 (1969)]
28. Pelaez v. Auditor General, 122 Phil. 965; 15 SCRA 569 (1965) and its offspring cases ruled that the President has no power to create municipalities but with the promulgation of he Local Government Code in 1991,the legal cloud was lifted over the municipalities similarly created under a defective executive order but not judicially nullified.
Section 442 (d) of the Local Government Code is to the effect that municipal districts “organized pursuant to presidential issuances or executive orders and which have their respective set of elective municipal officials holding office at the time of the effectivity of (the) Code shall henceforth be considered regular municipalities.”
The power to create political subdivisions is a function of legislature. Congress did just that when it has incorporated Section 442 (d) in the Code. (Camid v. Office of the President, et al., G. R. No. 161414,January 17, 2005 citing Municipality of San Narciso, G.R. No. 1033702, 6 December 1994, 239 SCRA 11)
29. Creation of local government units is only done through an act of Congress. (Sema v. Comission on Elections, et al., G. R. No. 177597, July 16, 2008)
30. Requirement for a plebiscite. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the creiteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. (1987 Constitution, Article X, Sec. 10)
31. Both the voters of the proposed new local government unit and the local government unit from whose territory the new shall be local government shall be taken shall both vote in the plebiscite because they are voters of the political units directly affected. [Tan v. Commission on Elections, 142 SCRA 727 (1986)]
32. The acts of public officers prior to voiding of a law creating a local government unit are valid under the operative facts doctrine. The existence of the local government unit prior to the declaration of nullity of the act which created the local government unit are facts that must be recognized as a matter of fairness and justice. [Municipality of Malabang v. Benito, 27 SCRA 533 (1969)]
33. The holdover Barangay Chairman cannot question the authority of Landbank to refuse to release to them the barangay IRA funds for lack of legal personality to do so.
The IRA funds for which the bank accounts were created belong to the barangays. Thus, any transaction or claim involving these funds can be made only through the proper authorization from the barangays as juridical entitles. (Lucman, etc., v. Malawi, et al., G. R. No. 159794, December 19, 2006)
34. Under the Government Accounting and Auditing Manual (GAAM), local treasurers shall the depositary accounts in the name of their respective local government units with banks.
Under the Local Government Code, the treasurer is given the power, among others, to (1) keep custody of barangay funds and properties, and (2) disburse funds in accordance with the financial procedures provided under said Code.
The same GAAM defines disbursements as constituting all cash paid out during a given period either in currency or check. (Lucman, etc., v. Malawi, et al., G. R. No. 159794, December 19, 2006)
PUBLIC INTERNATIONAL LAW
1. Primary or direct sources of international law, and illustrations:
a. International treaties and Conventions [Statute of the ICJ, Art. 38 (1)] e.g. Vienna Convention on the Law of Treaties.
b. International customs (Ibid.), e.g. cabotage, the prohibition against slavery, and the prohibition against torture.
Another example of custom is pacta sunt servanda, a customary or general norm which came about through extensive and consistent practice by a great number of states recognizing it as obligatory.
c. General principles of law (Ibid.) recognized by civilized nations, e.g. prescription, res judicata, and due process.
2. Subsidiary means for the determination of the rules of law, secondary or indirect sources of international law, and illustrations:
a. Decisions of international tribunals [Statute of the ICJ, Art. 38 (1)], subject to the provisions of Art. 59, e.g. the decision in the Anglo-Norwegian Fisheries Case and Nicaragua v. United States.
b. Writings of publicists (Ibid.,) of recognized reputation, e.g. McNair, Kelsen or Oppenheim-Lauterpacht
c. Abstract reasoning, and the natural moral law. (30 Am. Jur. 176)
3. The primary sources may be considered as formal sources because they are the methods by which norms of international law are created and recognized. A conventional or treaty norm comes into being by established treaty-making procedures.
3. When a foreign state wishes to invoke sovereign immunity, it secures an executive endorsement of its claim of sovereign immunity. It may also file a motion to dismiss on the ground of lack of jurisdiction over its person.
4. The basis of immunity from suits of a foreign state are the twin principles of independence and equality of States. [Republic of Indonesia v. Vinzon, 405 SCRA 126 (2003)]
5. Under the doctrine of sovereign immunity, a State, its agents and property are immune from the judicial process of another State, except with its consent.
6. Establishment and maintenance of a diplomatic mission is an act jure imperii.
Thus, the state of Indonesia may not be sued for acting in such sovereign activity when it entered into a contract for the upkeep or maintenance of air conditioning units, generator sets, electrical facilities, water heaters, and water pumps of the Indonesian Embassy and the official residence of the Indonesian ambassador. (The Republic of Indonesia, et al., v. Vinzon, etc. G. R. No. 154705, June 26, 2003)
7. The two kinds of sovereign immunity are absolute immunity and restrictive immunity.
8. Under absolute immunity all acts of state are protected by sovereign immunity.
9. Under restrictive immunity there is a distinction made between jure imperii the sovereign and government acts which is covered by the immunity compared with jure gestonis which the State’s private, commercial and proprietary acts which are not immune from suit. The Philippines adheres to restrictive sovereign immunity. (United States v. Ruiz, 136 SCRA 487, 490-491)
10. A foreign government waives its immunity if it sues in the Philippines, thus a counterclaim may be interposed against it. (Froilan v. Pan Oriental Shipping Co., 95 Pil.905)
11. War on Iraq violate international law for the following reasons:
a. The United Nations Charter in Article 2 (4) prohibits the use of force in the relations of states by providing that all members of the UN “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.”
b. The action of the allied forces was made in defiance or disregard of the Security Council Resolution No. 1441 which set up “an enhanced inspection regime with the aim of bringing to fill and verified completion the disarmament process”, giving Iraq “a final opportunity to comply with its disarmament obligations.” This process was in the process of implementation including Iraq’s compliance with such disarmament obligations. (UP Law Center)
12. Exceptions to the prohibition on the use of force. Alternatively, when force may be used without violating the UN Charter:
a. Right to individual or collective defense. (UN Charter, Art. 51)
b. Enforcement measure involving the use of armed forces by the Security Council. (Ibid., Art. 42)
c. Enforcement measure by regional arrangement as authorized by the Security Council. (Ibid.)
13. Forcible methods of settling international disputes without the use of arms:
a. Disruption or severance of diplomatic relations;
g. Pacific Blockade.
14. Under disruption or severance of diplomatic relations as a forcible method for settlement of international disputes without arms there is clearly shown a severe disapproval of another state’s unfriendly actuations. A warning is served that sterner measures are to follow. (Paras citing Fenwick, International Law, p. 440)
15. Retorsions are unfriendly but legal acts in retaliation for another’s unfriendly actuations. Examples are discriminatory tariffs. (Paras citing Fenwick, International Law, p. 433)
16. Reprisals are unfriendly and illegal acts of retaliation, and may be exemplified by confiscation of assets of the other country situated within the territory of the confiscating state. These are different from reprisals perpetrated by belligerents during wartime. [Paras citing Wilson, Handbook of International Law, (1939), p.288]
17. Embargo is the forcible detention of properties, usually vessels or aircraft, in one’s country with the end in view of preventing their going to another state.
It may be a general embargo in the sense that it consists in the sequestration of the public or private property of an offending state. [Paras citing Wilson, Handbook of International Law, (1939), p.229]
It may be a pacific embargo or a hostile embargo. (Paras citing Fenwick, International Law, p. 433)
18. Pacific or civil embargo is an instance where the properties, vessels or aircrafts belong to the state that is detaining. (Paras citing Fenwick, International Law, p. 435)
19. Hostile embargo is an instance where the properties, vessels and aircrafts are of the state with which the detaining state is in conflict. (Paras citing Fenwick, International Law, p. 435)
20. Non-intercourse as a method for forcible settlement of an international dispute without the use of arms takes place when there is a deliberate boycott of association (in all matters) with another state. (Paras citing Fenwick, International Law, p. 435)
21. Pacific Blockade as a method for forcible settlement of an international dispute without the use of arms is a naval operation the purpose of which is to prevent entrance to the ports of the offending State of properties destined therefor, particularly vessels. The ultimate objective is to force the offending State to amend its ways or to provide for redress of the grievance against it. (Paras citing Fenwick, International Law, p. 437)
22. Constitutive theory concerning recognition of states posits that recognition by other states is the last indispensable element that converts the state being recognized into an international person.
23. Declaratory theory concerning recognition of states maintains that recognition by other states is merely an acknowledgment of the pre-existing fact that the state being recognized is an international person.
24. The concept of state sovereignty under International Law. All states are sovereign equals and cannot assert jurisdiction over another. A contrary disposition would “unduly vex the peace of nations.” (Da Haber v. Queen of Portugal, 17 Q.B. 171)
2. State sovereignty is not absolute because of the following reasons:
a. A state may give its consent to be sued;
b. There may be limitations that exist by the very nature of membership in the family of nations;
c. There may be limitations voluntarily entered into when a state enters into treaty stipulations. For example, the Philippines has agreed that any of its laws inconsistent with the Agreement Establishing the WTO shall be amended to conform to such Agreement. (Tanada v. Angara, G. R. No. 118295, May 2, 1997)
25. The privileges and prerogatives of a diplomat include “diplomatic immunities” include some of the following:
a. Personal inviolability – exemption from arrest and molestation;
b. Inviolability of the diplomatic offices, residences, and archives;
c. Right of official communication;
d. Exemption from local jurisdiction;
e. Exemption from being subpoenaed as a witness;
f. Exemption from taxation;
g. Exemption from customs duties (this is referred to as granting the “courtesies of the port” to diplomats);
h. The right to grant asylum provided that the right is recognized by treaty or local usage or provided that it be granted for humanitarian reasons in favour of political offenders fleeing from mob violence. (Colombian-Peruvian Asylum Case, International Court of Justice Reports, 1950, p. 266)
i. The right to display the national flag, emblem, or insignias and coat of arms in the embassy and vehicles;
j. Freedom of movement;
k. The right of religion;
l. Right to exercise jurisdiction within his residence;
m. Right to precedence and certain ceremonial honors. (Paras citing I Oppenheim, International Law, pp. 627-631)
26. Consuls distinguished from diplomats.
a. Consuls are commercial representative of their country, they take care of commercial and routinary interests of their own country in another place WHILE diplomatic officers represent their country’s political, cultural, economic and social interests in another country.
b. Consuls generally possess no diplomatic immunity (save in minor offenses and in matters which may jeopardize their office or functions) WHILE diplomatic officers have diplomatic immunities. (Paras citing Fenwick, International Law, pp. 384-385)
27. An honorary consul who is not shown to possess an acknowledged diplomatic title, neither are his official duties considered as diplomatic in character is not entitled to diplomatic immunity.
A suit against a person performing official functions for a foreign government may be considered as a suit against the foreign government. [Minucher v. Court of Appeals, 397 SCRA 244 (1992)]
28. The principle of auto-limitation Any state may with its consent, express or implied, submit to a restriction of its sovereign rights. (Reagan v. Commissioner of Internal Revenue, G.R. No. L-26379, December 27, 1969)
29. Relationship between reciprocity and the principle of auto-limitation. When the Philippines enters into treaties that limits its sovereignty there is the implication that other contracting nations shall also observe the same principle. Thus, if it grants certain concessions in derogation of certain of its powers the other countries must also grant similar concessions in limitation of their sovereign powers.
This is premised upon the concept that the Philippines “adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of cooperation and amity with all nations.” (Tanada v. Angara, G. R. No. 118295, May 2, 1997)
30. In case of conflict between obligations of member-States any other international agreements the obligations of member-States shall prevail over any other international agreements. (United Nations Charter, Article 103)
31. The International Court of Justice is composed of fifteen members who must be of high moral character and possess the qualifications required in their respective countries for appointment ot the highest judicial office or are jurisconsults of recognized competence in international law. (I.C.J., Art. 2)
32. The members of the International Court of Justice are elected for a term of nine (9) years, staggered at three-year intervals by dividing the judges first elected into three equal groups and assigning them by lottery terms of three, six and nine years respectively. Immediate re-election is allowed. (I.C.J., Art. 13)
33. The seat of the International Court of Justice is at The Hague, Switzerland or elsewhere, as it may decide, except during the judicial vacations, the dates and duration of which it shall fix. (I.C.J., Art. 22)
34. Two limitations on the jurisdiction of the International Court of Justice:
a. Only states may be parties in cases before it. (Article 34)
b. The consent of the parties is needed for the court to acquire jurisdiction. (Article 36)
35. Some multilateral conventions on Human Rights adopted under the auspices of the United Nations:
a. International Covenant on Civil and Political Rights;
b. Convention on the Elimination of All Forms of Discrimination against Women;
c. Convention on the Rights of the Child;
d. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
e. International Convention on the Elimination of All Forms of Racial Discrimination
f. Convention on the Prevention and Punishment of the Crime of Genocide; and
g. International Convention on Economic, Social, and Cultural Rights.
36. Under the principle of double criminality, extradition is available only when the act is an offense in the two countries involved in extradition. (Cruz, International Law, 2003 ed., p. 205; Coquia and Santiago, International Law and World Organizations, 2005 ed., p. 342)
37. Purpose of the principle of double criminality is to ensure each state that it can rely on reciprocal treatment and that no state will use its processes to surrender a person for contract which it does not characterize as criminal. (Bassiouni, International Extradition, 4th ed., p. 467)
38. The principle of double criminality is satisfied even if the act was not punishable in the requested state at the time of its occurrence if it was criminal at the time the request was made. (Bassiouni, International Extradition, 4th ed., p. 469)
39. Provisions of international Conventions protecting women during wartime:
a. “Women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault.” (Geneva Convention IV, Article XXVII)
b. In general it is prohibited to commit outrages upon personal dignity, in particular humiliating and degrading treatment. (Ibid., Article III)
c. Respect for human rights. (San Francisco Charter of the United Nations)
d. The provisions of the Convention on the Elimination of All Forms of Discrimination against Women;
All of the above are applicable to the so-called Filipina “comfort women” ??? The above Conventions were all agreed upon after World War II.
Good luck. Advance congratulations and see you in court.
Shortcuts to Important Documents
2010 BAR REVIEW METHODS, INTENSIVE REVIEW AND WORKSHOP
Please bring sign pens, notebook for note taking, and a bag full of questions to ask Atty. Domondon.
BAR METHODS + WORKSHOP on MAY 9, 2010
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Primus 2010 Wrap-Up Review
Ethics: August 2 & 3
Remedial: August 5 & 6
Criminal: August 10 & 11
Mercantile: August 13 & 14
Tax: August 17 & 18
Civil: August 20 & 21
Labor: August 24 & 25
Political: August 27 & 28
RESERVATION AND INQUIRIES
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