Category Archives: Political Law

Political Law

Election Law Reviewer and Memory Aid

POLITICAL LAW REVIEWER

ELECTION LAWS

Election

  • Embodiment of the popular will, the expression of the sovereign power of the people.

Components

  • Choice or selection of candidates to public office by popular vote
  • Conduct of the polls
  • Listing of votes
  • Holding of Electoral campaign
  • Act of casting and receiving the ballots from the voters
  • Counting the ballots
  • Making the election returns
  • Proclaiming the winning candidates

Regular election – refers to an election participated in by those who possess the right of suffrage and not disqualified by law and who are registered voters.

Special election – is when there is failure of election on the scheduled date of regular election in a particular place or which is conducted to fill up certain vacancies, as provided by law.

Political Parties

Definition (Omnibus Election Code)

An organized group of persons pursuing the same ideology, political ideas or platforms of government including its branches and divisions.

Types of Political Parties

1) Registered Parties:

  1. Dominant Majority  Party – usually the administration party; entitled to a copy of election return
  2. Dominant Minority Party – entitled to a copy of election return
  3. Majority Political Party
  4. Top 3 Political Parties – entitled to appoint principal watcher and a copy of the certificate of canvass
  5. Bottom 3 political parties – entitled to appoint principal watcher

2) Non-registered parties

Criteria to Determine the Type of Political Party

  1. Established Record of the said parties, showing in past elections
  2. Number of Incumbent Elective Officials
  3. Identifiable political organizations and strengths
  4. Ability to fill a complete slate of candidates
  5. Other analogous circumstances

Grounds for Challenging the Voter

  1. Illegal voters ( Not Registered / Using the name of another / disqualified )
  2. Based on certain illegal acts (Vote buying)

Acquisition of Juridical Personality

It is acquired upon registration with the COMELEC.

Forfeiture of Status as a Registered Political Party

The status shall be deemed forfeited if the political party, singly or in coalition with others, fails to obtain at least 10% of the votes cast in the constituency in which it nominated and supported a candidate/s in the election next following its registration. There shall be notice and hearing.

Candidates

Rules on Filing of Certificates of Candidacy

  1. No person shall be elected into public office unless he files his certificate of candidacy within the prescribed period
  2. No person shall be eligible for more than one office. If he/she files for more than one position, he shall not be eligible for all unless he cancels all and retains one
  3. The certificate of candidacy shall be filed by the candidate personally or by his duly authorized representative.
  4. Upon filing, an individual becomes a candidate, he is already covered by rules, restrictions and processes involving candidates.

Grounds for Disqualification

  1. Election offenses under Sec 68 of the Omnibus Election Code (OEC)
  2. Not possessing qualifications and possessing disqualifications under the Local Government Code

2.1   Sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one year or more of imprisonment within two years after serving sentence

2.2   Removed from office as a result of an administrative case

2.3   Convicted by final judgment for violating the oath of allegiance to the Republic

2.4   Dual citizenship ( more specifically, dual allegiance)

2.5   Fugitives from justice in criminal or non-political cases here or abroad

2.6   Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right

2.7   Insane or feeble-minded

  1. Nuisance candidate
  2. Violation of sec 73 of OEC with regard to certificate of candidacy
  3. Violation of sec 78 which is material misrepresentation of reqts under sec. 74.

* Disqualifications (from continuing as a candidate or from holding the office if already elected):

Any candidate, who in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or is found by the Commission of having:

  1. Given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions.
  2. Committed acts of terrorism to enhance his  candidacy
  3. Spent in his election campaign an amount in excess of that allowed by the Omnibus Election Code )
  4. Solicited, received or made any contribution prohibited under this Code
  5. Violated any of the following sections: Section 80, 83, 85,86,261
  1. Permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office UNLESS he/she has waived his/her status as a permanent resident/immigrant of a foreign country in accordance with the residence requirement provided for under election laws.

Effect of a Disqualification case (under RA 6646)

  1. Any candidate who has been declared by final judgment to be disqualified shall NOT be voted for. The votes cast in his favor shall not be counted.
  2. If the candidate is not disqualified by final judgment before the election and receives the highest number of votes in the election, the court or COMELEC will continue with the trial and hearing of the action, inquiry or protest.  Upon motion of the complainant or intervenor, the court or COMELEC may order the suspension of the proclamation of the candidate whenever the evidence of his guilt is strong.

Nuisance Candidates

A.   The term refers to candidates who have no bona fide intention to run for the office for which the certificate of candidacy has been filed and would thus prevent a faithful determination of the true will of the people.

B. Power of COMELEC

  1. May refuse to give due course to or cancel a certificate of candidacy of a nuisance candidate.  This can be done motu proprio or upon verified petition of an interested party.

2.There should be a showing that:

  1. Certificate of candidacy has been filed to put the election process in mockery/disrepute or
  2. To cause confusion among the voters by the similarity of the names of the registered candidates
  3. Other circumstances which clearly demonstrate that the candidate has no bona fide intention to run for the office…

Petition to deny due course to or to cancel a Certificate of Candidacy

A. Exclusive ground:  A material representation in the certificate of candidacy is false.

B. The petition should be filed not later than 25 days from the filing of the certificate of candidacy.

C. It should be decided not later than 15 days before the election, after due notice and hearing.

Election Campaign/Partisan Political Activity
Ø  Definition

1) It refers to an act designed to promote the election or defeat of a particular candidate/s to a public office

2) It includes:

A. Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate.

B.  Holding political caucuses, conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate.

C. Making speeches, announcements or commentaries or holding interviews for or against the election of any candidate for public office.

D.  Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate.

E.  Directly or indirectly soliciting votes, pledges or support for or against a candidate.

3) When the acts enumerated above are NOT considered an election campaign/partisan political activity.

If the acts are performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties. 

RA 9006 – FAIR ELECTION ACT

Important Features:

1) Repeal of Sec. 67 of the OEC – Now, any ELECTIVE official, whether national or local, running for any office other than the one which he is holding in a permanent capacity shall not be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

2)  Lifting of the Political Ad Ban –   Written and Printed Materials (8.5” W x 14L”)

Letters

Posters (2’ x 3’) in common-private poster areas ( not  more than 10 public places per political party or independent candidate, 12’ 16’), private places and public places

Rally streamers (3’ x 8’) NOT MORE THAN 2

Paid Advertisements at Discounted Rates

Print : 1/4th page in broadsheet and ½ page in tabloid 3x a week

Television: 120 minutes for candidate for nationally elective office and 60 for local

Radio: 180 minutes for candidate for nationally elective office and 90 for local

COMELEC free space (3 national newspaper for nationally elective officials and 1 national newspaper for local) and airtime

(3 national television networks for nationally elective officials and 1 station for local ) : equal allocation for all candidates for 3 calendar days

Authorized Expenses ( multiplied with the total number of registered voters )

  • P 10 for president / vice president
  • P  3  for other candidates for every voter currently registered in the constituency
  • P  5  for independent candidates and political parties

Voters

Qualifications
  • Age: 18 years old and over.
  • Residence
  1. He /she should have resided in the Philippines for one year and
  2. Resided in the city/municipality wherein he proposes to vote for at least 6 months immediately preceding the election.
Residence Requirement

If the transfer of residence is due to any of the following reasons, the person concerned will be deemed NOT to have lost his original residence:

A.  Transfer solely because of occupation, profession, employment in private or public service

B.  Educational activities

C.  Work in military or naval reservations

D.  Service in the army, navy or air force, national police force

E.  Confinement/detention in government institutions in accordance with law.

*  RA 8189 – VOTER”S REGISTRATION ACT OF 1996

Q: Can there still be general registration of voters?

A: No more, because 8189 (7) provides for such only for the May ’98 elections

Q: What kind of registration system do we have?

A: Continuing, Computerized and Permanent

Disqualifications

A.  If sentenced by final judgment to suffer imprisonment for not less than 1 year and such disability was not removed by plenary pardon or has not been granted amnesty. However, any person disqualified to vote shall automatically reacquire the right to vote upon expiration of 5 years after service of sentence.

B.  Any person who has been adjudged by final judgment by competent court or tribunal of having committed any crime involving disloyalty to the duly constituted government such as rebellion or any crime against national security:

1. UNLESS restored to his full civil and political rights in accordance with law.

2. However, he shall regain his right to vote automatically upon expiration of 5  years after service of sentence.

C.  Insane or incompetent persons as declared by competent authority.

Jurisdiction in Inclusion/Exclusion cases

A. The municipal and metropolitan trial courts shall have original and exclusive jurisdiction over all matters of inclusion and exclusion of voters from the list in their respective municipalities or cities. Petition filed at any time except 105 days before regular election or 75 days before special election

B. Decisions may be appealed to the RTC within 5 days from receipt of notice of decision.

C.  RTC will decide the appeal within 10 days. Decision is final and executory.

D.  Note: Relate this to Article IX of the Constitution which provides that the COMELEC has no jurisdiction over questions involving the right to vote.

E. Exclusion is through sworn petition and not later than 100 days before regular election; 65 days before special election

Grounds when the List of Voters will be altered:

  • Deactivation/ Reactivation
  • Exclusion/ Inclusion
  • Cancellation of Registration in case of Death
  • New voters
  • Annulment of Book of Voters
  • Transfer of Residence

How is challenge to right to register effected?

Who – any voter, candidate, political party representative

How – in writing, stating grnds, under oath, proof of notice of hearing

Deactivation means removing the registration records of persons from the precinct book of voters and place the same, properly marked and dated in indelible ink, in the inactive file after entering the cause of deactivation.

How is reactivation of registration effected ?

Sworn application for reactivation

Affidavit

Not later than 120 days before regular election and 90 days before special election

Annulment of Book of Voters is through verified petition; notice and hearing; not prepared in accordance with law or prepared through fraud, bribery, forgery, impersonation, intimidation, force, any similar irregularity or which contains data that are statistically improbable

Cannot be done within 90 days before election

Postponement of Election

Causes
  • Violence
  • Terrorism
  • Loss or destruction of election paraphernalia/records
  • Force majeure
  • Other analogous causes
Effect

It is impossible to hold a free, orderly and honest election in any political subdivision

COMELEC can postpone the election (when decided by a majority vote of the COMELEC sitting en banc, RA 7166):

A. Motu proprio

B. Upon a verified petition by any interested party, after due notice and hearing

Date of new election

The date of the postponed election should be reasonably close to the date of the election not held, suspended, or which resulted in a failure to elect.  It should not be later than 30 days after the cessation of the cause for such postponement or suspension of the election or failure to elect.

Failure of Election

Causes
  • Force majeure
  • Violence
  • Terrorism
  • Fraud
  • Other analogous causes

Under RA 7166, the causes for the declaration of the failure of election may occur before or after the casting of votes or on the day of the election.

Effects of above causes

A. Election in any polling place was not held on the date fixed;

B. Election was suspended before the hour fixed by law for the closing of the voting

C. Elections results in a failure to elect (after the voting and during the preparation and          transmission of the election returns or in the custody or canvass thereof)

AND the failure or suspension of the election would affect the result of the election

Remedy

COMELEC can call for the holding or continuation of the election not held, suspended, or which resulted in a failure to elect.  The election should be held not later than 30 days after the cessation of the cause  of the postponement or suspension of the election or failure to elect. This is decided by the COMELEC, by a majority vote of its members, sitting en banc.

RA 7941 – Party-List System Act

  • Seeks to promote proportional representation
  • Any party already registered need not register anew. File manifestation not later than 90 days before election.
Grounds for refusing or canceling registration of Party-Lists groups
  1. Religious sect or denomination, organization
  2. Advocates violence
  3. Foreign party or organization
  4. Receives foreign support
  5. Violates election law
  6. Untruthful statements in its petition
  7. Ceased to exist for at least one year
  8. Failed to participate in the last two preceding elections or fails to obtain at least 2% of the votes cast under the party-list system in the 2 preceding elections for the constituency in which it has registered

Nomination of party-list reps should not include any candidate for any elective office or a person who has lost his bid for an elective office in the immediately preceding election

Incumbent sectoral representatives in the House of Representatives who are nominated in the party-list system shall not be considered resigned

Party List Reps constitute 20% of the total number of the members of the House of Reps including those under the party-list

How do we determine the number of party list seats in the House of Reps?

(# of District Reps / 0.80) x 0.20 = # of party list reps

  • There are presently 208 legislative districts, according to the Veterans Federation Case
  • The 5 major political parties are now entitled to participate in the party list system
  • Parties receiving at least 2% of the total votes cast for the party-list system shall be entitled to one seat each
  • No party shall be entitled to more than 3 seats
  • Currently, there are 260 seats. So 20 % of 260 is 52 seats. But this is only a ceiling.
  • A list with 5 names should be submitted to COMELEC as to who will represent the party in the Congress. Ranking in the list submitted determines who shall represent party or organization.
Rules for Appreciation of Ballots
  • Liberal Construction in favor of the validity of the ballot
  • Look at the ticket slate, consider locality or literacy rate
  • Rule 211 of the OEC
  • Incumbency / Surname
  • Cannot ascertain – STRAY VOTE

Pre-Proclamation Controversies

Definition
  1. A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the COMELEC.
  1. It would also refer to any matter raised under Sections 233, 234, 235, and 236 of the Omnibus Election Code in relation to the preparation, transmission, receipt, custody, and appreciation of the election returns.  (Board of canvassers have original jurisdiction while COMELEC have appellate jurisdiction)
    1. When election returns are delayed, lost or destroyed (Sec.233)
    2. Material defects in the election returns (Sec. 234)
    3. When election returns appear to be tampered with or falsified. (Sec. 235)
    4. Discrepancies in election returns  (Sec. 236)

C.  Those that can be filed with COMELEC directly are the ff:

  • Issue involves the illegal composition or proceedings of the board of canvassers, as when a majority or all of the members do not hold legal appointments or are in fact usurpers
  • Issue involves the correction of manifest errors in the tabulation or tallying

of the results during the canvassing

Recount

There can be a recount under the grounds of 234-236. The returns involved will affect the results and the integrity of the ballot box has been preserved

Issues that may be raised in a pre-proclamation controversy
  1. Illegal composition or proceedings of the board of canvassers
  2. The canvassed election returns are incomplete, contain material defects, appear to be       tampered with or falsified, or contain discrepancies in the same returns or in authentic           copies thereof.
  3. The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured, or not authentic.
  4. When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate/s.

Procedure

A.  Contested composition or proceedings of the board (under RA 7166)

It may be initiated in the board or directly with COMELEC.

B. Contested election returns (under RA 7166)

Matters relating to the preparation, transmission, receipt, custody and  appreciation of the election returns, and certificate of canvass, should be brought in the first instance before the board of canvassers only.

Summary nature of pre-proclamation controversy
  1. Pre-proclamation controversies shall be heard summarily by the COMELEC.
  2. Its decision shall be executory after the lapse of 5 days from receipt by the losing party of the decision, unless restrained by the SC.
Effect of filing petition to annul or suspend proclamation

It suspends the running of the period within which to file an election protest or quo warranto proceedings.

When not allowed

Pre-proclamation cases on matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns or the certificates of canvass NOT allowed in elections for: (under RA 7166)

  • President
  • Vice-President
  • Senator
  • Member of the House of Representatives

BUT:  The appropriate canvassing body motu propio or upon written complaint of an interested person can correct manifest errors in the certificate of canvass or election returns before it.

BUT:  Questions affecting the composition or proceedings of the board of canvassers may be initiated in the board or directly with COMELEC.

When pre-proclamation cases are deemed TERMINATED (RA 7166)

  1. All pre-proclamation cases pending before the COMELEC shall be deemed terminated at the beginning of the term of the office involved and the rulings of the boards of canvassers concerned deemed affirmed.

B.  This is without prejudice to the filing of a regular election protest by the aggrieved party.

C.  HOWEVER: Proceedings MAY CONTINUE if:

  1. The COMELEC determines that the petition is meritorious and issues an order for the proceedings to continue or
  2. The Supreme Court issues an order for the proceedings to continue in a petition for certiorari.

Election Contest

Original Jurisdiction

COMELEC has ORIGINAL jurisdiction over contests relating to the elections, returns, qualifications of all elective:

  • Regional
  • Provincial
  • City officials
Appellate Jurisdiction

COMELEC has APPELLATE jurisdiction over all contests involving:

A.  Elective MUNICIPAL officials decided by trial courts of GENERAL jurisdiction

B.  Elective BARANGAY officials decided by trial courts of LIMITED jurisdiction

Who can file a petition contesting the election

Any candidate who has duly filed a certificate of candidacy and has been voted for the same office

Purpose of an election contest

The defeated candidate seeks to outs the proclaimed winner and claims the seat.

Final COMELEC Decisions

Provision that decisions, final orders, rulings of the Commission on election contests involving municipal and barangay offices are final, executory and not appealable:

A. This only applies to questions of FACT. ( Flores v. COMELEC, 184 SCRA 484)

B. It does NOT preclude a special civil action of certiorari.  (Galido v. COMELEC, Jan. 18,1991)

Distinctions between Pre-Proclamation Controversy and Election Contest

1) Dividing line:  Proclamation of a candidate

2) Jurisdiction

A. Pre-proclamation controversy

1.The jurisdiction of COMELEC is administrative/quasi-judicial

2.It is governed by the requirements of administrative due process

B. Election contest

1.The jurisdiction of COMELEC is judicial

2.It is governed by the requirements of judicial process

3)      In some cases, even if the case (involving municipal officials) began with the COMELEC before proclamation but a proclamation is made before the controversy is resolved, it ceases to be a pre-proclamation controversy and becomes an election contest cognizable by the RTC.

4)       However, in some cases, the SC has recognized the jurisdiction of COMELEC over municipal cases even after proclamation.  Relate to the provision in RA 7166 allowing pre-proclamation controversy proceedings to continue even after a proclamation has been made.

Election Offenses  ( Selected Offenses)

Vote buying and vote-selling

A. Covered acts

1.Give, offer or promise money or anything of value

2. Making or offer to make any expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity or community

3.Soliciting or receiving, directly or indirectly, any expenditure or promise of any office or employment, public or private

B. Purpose of acts

1. To induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election or

2. To vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection

C.  Under RA 6646  (Prosecution of vote-buying/selling)

1. Presentation of a complaint supported by affidavits of complaining witnesses attesting to the offer or promise by or the voters acceptance of money or other consideration from the relatives, leaders or sympathizers of a candidate is sufficient basis for an investigation by the COMELEC,directly or through its duly authorized legal officers.

2. Disputable presumption of conspiracy:

Proof that at least one voter in different precincts representing at least 20% of the total precincts in any municipality, city or province has been offered, promised or given money, valuable consideration or other expenditure by a candidate relatives, leaders and/or sympathizsrs for the purpose of promoting the election of such candidate.

3. Disputable presumption of involvement

Proof affects at least 20% of the precincts of the municipality, city or province to which the public office aspired for by the favored candidate relates. This will constitute a disputable presumption of the involvement of such candidate and of his principal campaign managers in each of the municipalities concerned in the conspiracy

Coercion of a subordinate

A. Who can be held liable

1. public officer

2. officer of a public/private corporation/association

3. heads/superior/administrator of any religious org.

4. employer/landowner

B.  Prohibited acts

  1. Coercing, intimidating or compelling or influencing, in any manner, any subordinates, members, parishioners or employees or house helpers, tenants, overseers, farm helpers, tillers or lease holders to aid, campaign or vote for or against a candidate or aspirant for the nomination or selection of candidates.
  2. Dismissing or threatening to dismiss, punishing or threatening to punish by reducing salary, wage or compensation or by demotion, transfer, suspension etc.

Appointment of new employees, creation of new position, promotion or giving salary increases:

A. Who can be held liable: Any head/official/appointing officer of a government office, agency or instrumentality, whether national or local, including GOCCs.

B. Prohibited acts

1.Appointing or hiring a new employee (provisional, temporary or casual)

2.Creating or filling any new position

3.Promoting/giving an increase in salary, remuneration or  privilege to any government official or employee.

C. Period when acts are prohibited

1.  45 days before a regular election

2.  30 days before a special election

D. Exceptions

  1. Upon prior authority of COMELEC if it is satisfied that the position to be filled is essential to the proper functioning of the office/agency concerned AND that the position is not filled in a manner that may influence the election
  2. In case of urgent need, a new employee may be appointed. Notice of appointment should be given to COMELEC within 3 days from appointment.
Prohibition against release, disbursement or expenditure of public funds

A.  Who can be held liable: Any public official or employee including barangay officials and those of GOCCs/subsidiaries

B.  Prohibited acts:

The release, disbursement or expenditure of public funds for any and other kinds        of public works

C. Period when acts are prohibited:

1.  45 days before a regular election

2.  30 days before a special election

D. Exception

  1. maintenance of existing/completed public works project.
  2. work undertaken by contract through public bidding, or by negotiated contract awarded before the 45 day period before election
  3. payment for the usual cooperation for working drawings, specfications and other procedures preparatory to actual construction including the purchase of material and equipment and incidental expenses for wages.
  4. Emergency work necessitated by the occurrence of a public calamity but such work shall be limited to the restoration of the damaged facility.
  5. Ongoing public work projects commenced before the campaign period or similar projects under foreign agreements.
Suspension of elective, provincial, city, municipal or barangay officer

A.  General rule: public official CANNOT suspend any of the officers enumerated above during the election period.

B.  Exceptions

  1. With prior approval of COMELEC
  2. Suspension is for the purpose of applying the Anti-Graft and Corrupt Practices Act

In relation to registration of voters/voting

  • Unjustifiable refusal to register and vote
  • Voting more than once in the same election/voting when not a registered voter
  • Voting in substitution for another with or without the latters’ knowledge and/or consent etc.

Other election offenses under RA 6646

  1. Causing the printing of official ballots and election returns by printing establishments not on contract with COMELEC and printing establishments which undertakes unauthorized printing
  2. Tampering, increasing or decreasing the votes received by a candidate or refusing after proper verification and hearing to credit the correct votes or deduct the tampered votes (committed by a member of the board of election inspectors)
  3. Refusing to issue the certificate of voters to the duly accredited watchers (committed by a member of the BEI)
  4. Person who violated provisions against prohibited forms of election propaganda
  5. Failure to give notice of meetings to other members of the board, candidate or political party (committed by the Chairman of the board of canvassers)
  6. A person who has been declared a nuisance candidate or is otherwise disqualified who continues to misrepresent himself as a candidate (Ex. by continuing to campaign) and any public officer or private individual who knowingly induces or abets such misrepresentation by commission or omission.
  7. If the chairman of the BEI fails to affix his signature at the back of the official ballot, in the presence of the voter, before delivering the ballot to the voter. (under RA 7166)
Prescription of Election Offenses
  1. Election offenses shall prescribe after 5 years from the date of their commission
  2. If the discovery of the offense is made in an election contest proceeding, the period of prescription shall commence on the date on which the judgment in such proceedings becomes final and executory
Jurisdiction of courts
  1. RTC has exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of the Code.
  2. MTC/MCTC have jurisdiction over offenses relating to failure to register or vote.

 

Reference:

Election Law Reviewer and Memory Aid

Ateneo

Political Law (Constitutional Law) – Article XVIII

ARTICLE XVIII – TRANSITORY PROVISIONS

 

Effectivity of the 1987 Constitution
  • The 1987 Constitution took effect immediately upon its ratification.
  • According to the SC, this took place on February 2, 1987, which was the day the people cast their votes ratifying the Constitution.
Military bases agreements

1)      Renewals of military bases agreements must be through a strict treaty.

2)      Ratification of the agreement in a plebiscite is necessary only when Congress so requires.

3)      Section 25 of Article XVIII allows possible local deployment of only AMERICAN forces.

 

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations 2001

Louie, Carrie, Evelyn, Thel, Gem, Ronald

Political Law (Constitutional Law) – Article XVII

ARTICLE XVII- AMENDMENTS OR REVISIONS

 

Definitions:

1) Amendment:  an alteration of one or a few specific provisions of the Constitution.  Its main purpose is to improve specific provisions of the Constitution.  The changes brought about by amendments will not affect the other provisions of the Constitution.

2) Revision:  An examination of the entire Constitution to determine how and to what extent it should be altered.  A revision implies substantive change, affecting the Constitution as a whole.

Constituent power v. Legislative power

1)      Constituent power is the power to formulate a Constitution or to propose amendments to or revisions of the Constitution and to ratify such proposal. Legislative power is the power to pass, repeal or amend or ordinary laws or statutes (as opposed to organic law).

2)      Constituent power is exercised by Congress (by special constitutional conferment), by a Constitutional Convention or Commission, by the people through initiative and referendum, and ultimately by sovereign electorate, whereas legislative power is an ordinary power of Congress and of the people, also through initiative and referendum.

3)      The exercise of constituent power does not need the approval of the Chief Executive, whereas the exercise of legislative power ordinarily needs the approval of the Chief Executive, except when done by people through initiative and referendum.

Three (3) steps necessary to give effect to amendments and revisions:

1) Proposal of amendments or revisions by the proper constituent assembly;

2) Submission of the proposed amendments or revisions; and

3) Ratification

Proposal of amendments:

Amendments may be proposed by:

A. Congress, acting as a constituent assembly, by a 3/4 vote of all its members.

  • The power of Congress to propose amendments is NOT part of its ordinary legislative power.
  • The only reason Congress can exercise such power is that the Constitution has granted it such power.

B. Constitutional Convention:

1) How a Constitutional Convention may be called

a). Congress may call a ConCon by a 2/3 vote of all its members; or

b). By a majority vote of all its members, Congress may submit to the electorate the question of whether to call a ConCon or not.

2) Choice of which constituent assembly (either Congress or ConCon) should initiate amendments and revisions is left to the discretion of Congress.  In other words, it is a political question.

3) BUT:  The manner of calling a ConCon is subject to judicial review, because the Constitution has provided for vote requirements.

4) If Congress, acting as a constituent assembly, calls for a ConCon but does not provide the details for the calling of such ConCon, Congress – exercising its ordinary legislative power – may supply such details.  But in so doing, Congress (as legislature) should not transgress the resolution of Congress acting as a constituent assemble.

5) Congress, as a constituent assembly and the ConCon have no power to appropriate money for their expenses.  Money may be spent from the treasury only to pursuant to an appropriation made by law.

C. People’s Initiative

1) Petition to propose such amendments must be signed be at least 12% of ALL registered voters.

2) Every legislative district represented by at least 3% of the registered voters therein.

3) Limitation:

It cannot be exercised oftener than once every 5 years.

Note:

1)      While the substance of the proposals made by each type of constituent assembly is not subject to judicial review, the manner the proposals are made is subject to judicial review.

2)      Since these constituent assemblies owe their existence to the Constitution, the courts may determine whether the assembly has acted in accordance with the Constitution.

3)      Examples of justiciable issues:

a)      Whether a proposal was approved by the required number of votes in Congress (acting as a constituent assembly).

b)      Whether the approved proposals were properly submitted to the people for ratification.

Proposal of Revisions

1)      By Congress, upon a vote of 3/4 of its members

2)      By a constitutional convention

Ratification

1)      Amendments and revisions proposed by Congress and/or by a ConCon:

a)      Valid when ratified by a MAJORITY of votes cast in a plebiscite.

b)      Plebiscite is held not earlier than 60 days nor later than 90 days from the approval of such amendments or revisions.

2)      Amendments proposed by the people via initiative:   

a)      Valid when ratified by a MAJORITY of votes cast in a plebiscite.

b)      Plebiscite is held not earlier than 60 days nor later than 90 days after the certification by COMELEC of the petition’s sufficiency

3)      Requisites of a valid ratification:

a)      Held in a plebiscite conducted under the election law;

b)      Supervised by the COMELEC; and

c)      Where only franchised voters (registered) voters take part.

4)      Issues regarding ratification:

a)      The Constitution does not require that amendments and revisions be submitted to the people in a special election. Thus, they may be submitted for ratification simultaneously with a general election.

b)      The determination of the conditions under which proposed amendments/revisions are submitted to the people falls within the legislative sphere. That Congress could have done better does not make the steps taken unconstitutional.

c)      All the proposed amendments/revisions made by the constituent assemblies must be submitted for ratification in one single plebiscite. There cannot be a piece-meal ratification of amendments/revisions.

d)      Presidential proclamation is NOT required for effectivity of amendments/revisions, UNLESS the proposed amendments/revisions so provide.

 

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations 2001

Louie, Carrie, Evelyn, Thel, Gem, Ronald

Political Law (Constitutional Law) – Article XVI

ARTICLE XVI – GENERAL PROVISIONS

 

Sections 1-2. Symbols of Nationality

1) Flag

  • Red, white, and blue.
  • With a sun and 3 stars
  • The design may be changed by constitutional amendment.

2) Congress may, by law, adopt a new:

(a) Name for the country,

(b) National anthem, or

(c) National seal.

Note: Law will take effect upon ratification by the people in a NATIONAL REFERENDUM.

Section 3.  State Immunity

Suability of State

1) The State cannot be sued without its consent.

2) When considered a suit against the State

a).  The Republic is sued by name;

b).  Suits against an un-incorporated government agency;

c).  Suit is against a government official, but is such that ultimate liability shall devolve on the government

i.  When a public officer acts in bad faith, or beyond the scope of his authority, he can be held personally liable for damages.

ii.  BUT:  If he acted pursuant to his official duties, without malice, negligence, or bad faith, they are not personally liable, and the suit is really one against the State.

3) This rule applies not only in favor of the Philippines but also in favor of foreign states.

4) The rule likewise prohibits a person from filing for interpleader, with the State as one of the defendants being compelled to interplead.

Consent to be sued

A. Express consent:

1). The law expressly grants the authority to sue the State or any of its agencies.

2). Examples:

a). A law creating a government body expressly providing that such body “may sue or be sued.”

b). Art. 2180 of the Civil Code, which creates liability against the State when it acts through a special agent.

B. Implied consent:

1). The State enters into a private contract.

a). The contract must be entered into by the proper officer and within the scope of his authority.

b). UNLESS:  The contract is merely incidental to the performance of a governmental function.

2). The State enters into an operation that is essentially a business operation.

a). UNLESS:  The operation is incidental to the performance of a governmental        function (e.g. arrastre services)

b). Thus, when the State conducts business operations through a GOCC, the latter can generally be sued, even if its charter contains no express “sue or be sued” clause.

3). Suit against an incorporated government agency.

a) This is because they generally conduct propriety business operations and have charters which grant them a separate juridical personality.

4). The State files suit against a private party.

UNLESS:  The suit is entered into only to resist a claim.

Garnishment of government funds:

1) GENERAL RULE:  NO.  Whether the money is deposited by way of general or special deposit, they remain government funds and are not subject to garnishment.

2) EXCEPTION:  A law or ordinance has been enacted appropriating a specific amount to pay a valid government obligation, then the money can be garnished.

Consent to be sued is not equivalent to consent to liability:

1) The Fact that the State consented to being sued does not mean that the State will ultimately be held liable.

2) Even if the case is decided against the State, an award cannot be satisfied by writs of execution or garnishment against public funds.  Reason:  No money shall be paid out of the public treasury unless pursuant to an appropriation made by law.

Section 4.  THE ARMED FORCES OF THE PHILIPPINES

Composition:

A citizen armed force

Prohibitions and disqualifications:

1) Military men cannot engage, directly or indirectly, in any partisan political activity, except to vote.

2) Members of the AFP in active service cannot be appointed to a civilian position in the government, including GOCCs or their subsidiaries.

The Chief of Staff:

1) Tour of duty: Not exceed to three years

2) EXCEPTION:  In times of war or other national emergency as declared by Congress, the President may extend such tour of duty.

 

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations 2001

Louie, Carrie, Evelyn, Thel, Gem, Ronald

 

Political Law (Constitutional Law) – Article XIV

ARTICLE XIV – EDUCATION, SCIENCE AND TECHNOLOGY,

ARTS, CULTURE, AND SPORTS

 

Education

Goals of the State:

The State shall promote and protect:

1) The right to quality education at all levels;

2) The right to affordable and accessible education; and

3) Education that is relevant to the needs of people and society.

Right to Education and Academic Freedom

The right to education must be read in conjunction with the academic freedom of schools to require “fair, reasonable, and equitable admission requirements.”

Power to Dismiss Students

1) Schools have the power to dismiss students, after due process, for disciplinary reasons.

2)  Acts committed outside the school may also be a ground for disciplinary action if:

a) It involves violations of school policies connected to school-sponsored activities; or

b) The misconduct affects the student’s status, or the good name or reputation of the school.

Regulation of Right to Education

The right to education in particular fields may be regulated by the State in the exercise of its police power, e.g. the State may limit the right to enter medical school by requiring the applicants to take the NMAT.

Free Education

1) The State shall maintain a system of free education in:

a) Elementary level, and

b) High school level.

2) Elementary education is compulsory for all children of school age. However, this is a moral rather than a legal compulsion.

Educational Institutions

I. Filipinization

A. Ownership:

1). Filipino citizens, or

2). Corporations incorporated in RP and 60% Filipino-owned.

EXCEPT: Schools established by religious groups and mission boards.

3). Congress may increase Filipino equity requirements in ALL educational institutions.

B. Control and Administration:

1). Must be vested in Filipino citizens

2). Refers to line positions, such as President, Dean, Principal, and Trustees

3). Faculty members may be foreigners.

C.  Student Population:

1). GENERAL RULE: Cannot establish school exclusively for aliens. Aliens can only comprise up to 1/3 of total enrollment.

2). EXCEPTIONS: Schools established for foreign diplomatic personnel and their dependents, and unless otherwise provided for by law for other foreign temporary residents.

II. Tax Exemptions

A. Non-stock, non-profit educational institutions:

1) All revenues and assets actually, directly and exclusively used for educational purposes are exempt from taxes and duties.

2) This is self-executory

    B. Proprietary educational institutions, including cooperatives:

1) Entitled to exemptions as may be provided by law, including restrictions on dividends and re-investment

2) Requires an enabling statute

3) Grants, endowments, donations and contributions actually, directly and exclusively used for educational purposes are exempt from taxes, subject to conditions prescribed by law.

III. Academic Freedom

A. Educational Institutions

Schools have the freedom to determine:

1) Who may teach,

2) What may be taught,

3) How it shall be taught, and

4) Who may be admitted to study.

      B. Faculty members

1) Full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties.

2) Freedom in the classroom in discussing their subjects, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subjects.

3) When faculty members speak or write in their capacity as citizens, then they are free from institutional censorship or discipline.

     C. Students

They have the right to enjoy in school the guarantees of the Bill of Rights.

    D. Limitations

1) Dominant police power of the State

2) Social interest of the community

    E. Budgetary Priority:

1). Education must be assigned the highest budgetary priority.

2). BUT: This command is not absolute.  Congress is free to determine what should be given budgetary priority in order to enable it to respond to the imperatives of national interest and for the attainment of other state policies or objectives.

Religious Education in Public Schools:

Religion may be taught in public schools subject to the following requisites:

1) Express written option by parents and guardians;

2) Taught within regular class hours;

3) Instructors are designated and approved by the proper religious authorities; and

4) WITHOUT ADDITIONAL COST TO THE GOVERNMENT.

Section 6. Language

1) National language: Filipino

2) Official Languages: Filipino, and unless otherwise provided by law, English.

3) Regional languages are auxiliary to the official languages.

4 (Spanish and Arabic are promoted only on an optional and voluntary basis.

 

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations 2001

Louie, Carrie, Evelyn, Thel, Gem, Ronald

 

Political Law (Constitutional Law) – Article XIII

ARTICLE XIII – SOCIAL JUSTICE AND HUMAN RIGHTS

Social Justice

1)   Social justice in the Constitution is principally the embodiment of the principle that those who have less in life should have more in law.

2)   The 1987 Constitution advances beyond what was in previous Constitutions in that it seeks not only economic social justice but also political social justice.

Principal activities in order to achieve social justice

1)   Creation of more economic opportunities and more wealth; and

2)   Closer regulation of the acquisition, ownership, use and disposition of property in order to achieve a more equitable distribution of wealth and political power.

Labor

  • Section 3 of Article XIII elaborates on the provision in Article II by specifying who are protected by the Constitution, what rights are guaranteed, and what positive measures the state should take in order to enhance the welfare of labor.

Right to organize and to hold peaceful concerted activities

  • Ø The right to organize is given to all kinds of workers BOTH in the PRIVATE and PUBLIC sectors.
  • Ø The workers have a right to hold peaceful concerted activities except the right to strike, which is subject to limitation by law.

Right to participate in the decision making process of employers

The workers have the right to participate on matters affecting their rights and benefits, “as may be provided by law”.  This participation can be through

1)               collective bargaining agreements,

2)               grievance machineries,

3)               voluntary modes of settling disputes, and

4)               conciliation proceedings mediated by government.

Agrarian Reform

Goals:

Agrarian reform must aim at

1)  efficient production,

2)  a more equitable distribution of land which recognizes the right of farmers and regular farmworkers who are landless to own the land they till, and

3)  a just share of other or seasonal farmworkers in the fruits of the land.

CARL as an exercise of police power and power of eminent domain
  • To the extent that the law prescribes retention limits for landowners, there is an exercise of police power. But where it becomes necessary to deprive owners of their land in excess of the maximum allowed there is compensable taking and therefore the exercise of eminent domain.
Reach of agrarian reform
  • It extends not only to private agricultural lands, but also to “other natural resources,” even including the use and enjoyment of “communal marine and fishing resources” and “offshore fishing grounds”.

The Commission on Human Rights

Composition:

1)   Chairman; and

2)   4 members

Qualifications:

1)   Natural-born citizens of the Philippines;

2)   Majority of the Commission must be members of the Philippine Bar;

3)  Term of office, other qualifications and disabilities shall be provided by law;

4)  The appointment of the CHR members is NOT subject to CA confirmation; and

5)  The CHR is not of the same level as the COMELEC, CSC, or COA.

Powers:

1)  Investigate all forms of human rights violations involving civil or political rights

A. Violations may be committed by public officers or by civilians or rebels.

B. CHR cannot investigate violations of social rights.

C. CHR has NO adjudicatory powers over cases involving human rights violations.

D. They cannot investigate cases where no rights are violated.

E. Example: There is no right to occupy government land, i.e. squat thereon. Therefore, eviction therefrom is NOT a human rights violation.

2)  Adopt operational guidelines and rules of procedure.

3)  Cite for contempt for violations of its rules, in accordance with the Rules of Court.

4) Provide appropriate legal measures for the protection of the human rights of all persons, within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection.

A. CHR can initiate court proceedings on behalf of victims of human rights violations.

B. They can recommend the prosecution of human rights violators, but it cannot itself prosecute these cases.

C. BUT: The CHR cannot issue restraining orders or injunctions against alleged human rights violators. These must be obtained from the regular courts.

5)  Exercise visitorial powers over jails, prisons and other detention facilities.

6) Establish continuing programs for research, education and information in order to enhance respect for the primacy of human rights.

7)  Recommend to Congress effective measures to promote human rights and to provide compensation to victims of human rights violations or their families.

8)  Monitor compliance by the government with international treaty obligations on human rights.

9) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any CHR investigation.

10) Request assistance from any department, bureau, office, or agency in the performance of its functions.

11)  Appoint its officers and employers in accordance with law.

12)  Perform such other functions and duties as may be provided for by law

 

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations 2001

Louie, Carrie, Evelyn, Thel, Gem, Ronald

Political Law (Constitutional Law) – Article XII

ARTICLE XII – NATIONAL ECONOMY AND PATRIMONY

 

Sec. 1.  GOALS OF THE NATIONAL ECONOMY

Three-fold goal:

1.  More equitable distribution of opportunities, income and wealth;

2.  Sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and

3.  Expanding productivity, as the key to raising the quality of life for all.

The State shall promote industrialization and full employment

1.  It should be based on sound agricultural development and agrarian reform

2.  It should be through industries that make full and efficient use of human and natural resources.  Industries should also be competitive in both domestic and foreign markets.

Protection of Filipino enterprises

The State shall protect Filipino enterprises against unfair foreign competition and trade practices.

Role of Private Enterprises

Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership

Section 2. REGALIAN DOCTRINE

Distinction between Imperium and Dominium.

1.  Imperium

Government authority possessed by the State which is appropriately embraced in sovereignty.

2.  Dominium

  1. The capacity of the State to own and acquire property.
  2. It refers to lands held by the government in a proprietary character: can provide for the exploitation and use of lands and other natural resources.

Scope:

The following are owned by the State:

1.  Lands of the public domain:

Waters

Minerals, coals, petroleum, and other mineral oils;

All sources of potential energy;

Fisheries;

Forests or timber;

Wildlife;

Flora and fauna; and

Other natural resources.

Alienation of Natural Resources

1.  General Rule:  All natural resources CANNOT be alienated

2.  Exception:  Agricultural lands

Exploration, Development and Utilization of Natural Resources

1.  Shall be under the full control and supervision of the State

2.  Means

A.  The state may DIRECTLY UNDERTAKE such activities

B. The state may enter into CO-PRODUCTION, JOINT VENTURE OR PRODUCTION-SHARING arrangements with

  1. Filipino citizen or
  2. Corporation or association at least 60% of whose capital is owned by such citizens

3.  Limitations:

A.  Period:  It should not exceed 25 years, renewable for not more than 25 years

B.  Under terms and conditions as may be provided by law.

4. In case of water rights/water supply/fisheries/industrial uses other than the development of water power

The beneficial use may be the measure and limit of the grant.

Small-scale Utilization of Natural Resources

1. Congress may, by law, authorize small-scale utilization of natural resources by Filipino citizens

2. Congress may also authorize cooperative fish farming with priority given to subsistence fishermen and fishworkers in the rivers, lakes, bays and lagoons.

Large-Scale Exploration, Development and Utilization of Minerals/Petroleum/Other Mineral Oils

1.  The President may enter into agreements with foreign owned corporations involving technical or financial assistance for large-scale exploration etc. of minerals, petroleum, and other mineral oils.  These agreements should be in accordance with the general terms and conditions provided by law.

2.  They should be based on the real contributions to economic growth and general welfare of the country.

3.  In the agreements, the State should promote the development and use of local scientific and technical resources.

4.  The President should notify Congress of every contract under this provision within 30 days from its execution.

5.  Management and service contracts are not allowed under this rule.

Protection of Marine Wealth

1.  The State shall protect its marine wealth in its

Archipelagic waters

Territorial sea &

EEZ

2.  The State shall reserve its use and enjoyment exclusively to Filipino citizens.

Section 3.  LANDS OF THE PUBLIC DOMAIN ARE CLASSIFIED INTO

1.  Agricultural

2.  Forest/timber

3.  Mineral lands &

4.  National Parks

Note:

1.  Classification of public lands is an exclusive prerogative of the Executive Department through the Office of the President, upon recommendation by the DENR.

2.  Classification is descriptive of the legal nature of the land and NOT what it looks like.  Thus, the fact that forest land is denuded does not mean it is no longer forest land.

Alienable lands of public domain

1.  Only agricultural lands are alienable.

2.  Agricultural lands may be further classified by law according to the uses to which they may be devoted.

Limitations regarding Alienable Lands of the Public Domain

1.  For private corporations or associations

A.  They can only hold alienable lands of the public domain BY LEASE

            B.  Period:  Cannot exceed 25 years, renewable for not more than 25 years

C.  Area:  Lease cannot exceed 1,000 hectares

Note:  A  corporation sole is treated like other private corporations for the purpose of acquiring public lands.

2.  For Filipino citizens

A.  Can lease up to 500 hectares

B.   Can ACQUIRE not more than 12 hectares by purchase, homestead or grant.

Taking into account the requirements of conservation, ecology and development, and subject to the requirements of agrarian reform, Congress shall determine by law the size of the lands of the public domain which may be acquired, developed, held or lease and the conditions therefore.

Means by Which Lands of the Public Domain Become Private Land

1.  Acquired from government by purchase or grant;

2.  Uninterrupted possession by the occupant and his predecessors-in-interest since time immemorial; and

3.  Open, exclusive, and undisputed possession of ALIENABLE (agricultural) public land for a period of 30 years.

A.  Upon completion of the requisite period, the land becomes private property ipso jure without need of any judicial or other sanction.

B.  Here, in possession since time immemorial, presumption is that the land was never part of public domain.

C.  In computing 30 years, start from when land was converted to alienable land, not when it was still forest land

D.  Presumption is that land belongs to the State.

Section 4.  Congress shall, as soon as possible, determine by law, the specific limits of forest lands and national parks, marking clearly their boundaries on the ground.  Thereafter, such forest lands and national parks shall be conserved and may not be increased or diminished, EXCEPT by law.  Congress shall provide measures to prohibit logging in

  1. a.      Endangered forest and
  2. b.      Watershed areas for such period as it may determine.

Section 5.  ANCESTRAL LANDS

Protection of Indigenous Cultural Communities

1.  The State protects the rights of indigenous cultural communities to their ancestral lands

A.  Subject to Constitutional provisions

B.  Subject to national development policies and programs

2.  In determining ownership and extent of ancestral domain, Congress may use customary laws on property rights and relations.

3.  “ANCESTRAL DOMAIN”

A.  It refers to lands which are considered as pertaining to a cultural region

B.  This includes lands not yet occupied, such as deep forests.

Section 7.  PRIVATE LANDS

General rule

1.  Private lands CAN only be transferred or conveyed to:

A.  Filipino citizens

B. Corporations or associations incorporated in the Philippines, at least 60% of whose capital is owned by Filipino citizens

2.  Exceptions

A.  In intestate succession, where an alien heir of a Filipino is the transferee of private land.

B.  A natural born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of PRIVATE ALND, subject to limitation provided by law.  Hence, land can be used only for residential purposes.  In this case, he only acquires derivative title.

C.  Foreign states may acquire land but only for embassy and staff residence purposes.

3.  Filipino citizenship is only required at the time the land is acquired.  Thus, loss of citizenship after acquiring the land does not deprive ownership.

4.  Restriction against aliens only applies to acquisition of ownership.  Therefore:

A.  Aliens may be lessees or usufructuaries of private lands

B.  Aliens may be mortgages of land, as long as they do not obtain possession thereof and do not bid in the foreclosure sale.

5.  Land tenure is not indispensable to the free exercise of religious profession and worship.  A religious corporation controlled by non-Filipinos cannot acquire and own land, even for religious purposes.

Remedies to recover private lands from disqualified aliens:

1.  Escheat proceedings

2.  Action for reversion under the Public Land Act

3.  An action by the former Filipino owner to recover the land

A.  The former pari delicto principle has been abandoned

B.  Alien still has the title (didn’t pass it on to one who is qualified)

Section 10.  NATIONAL ECONOMY AND PATRIMONY/INVESTMENTS

Power of Congress

1.  Congress, upon the recommendation of NEDA, can reserve to Filipino citizens or to corporations or associations at least 60% of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investment.  This may be done when the national interest dictates.

2.  Congress shall also enact measures to encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos.

National Economy and Patrimony

In the grant of rights, privileges and concessions covering the national economy and patrimony, the State shall give preference to QUALIFIED Filipinos.

Section 11.  FRANCHISES FOR PUBLIC UTILITIES

Power to grant:

1.  Congress may directly grant a legislative franchise; or

2. Power to grant franchises may be delegated to appropriate regulatory agencies and/or LGU’s

Public utility

1.  In order to be considered as a public utility, and thus subject to this provision, the undertaking must involve dealing directly with the public.

2.  Thus, a Build-Operate-Transfer grantee is NOT a public utility.  The BOT grantee merely constructs the utility, and it leases the same to the government.  It is the government which operates the public utility (operation separate from ownership).

To whom granted:

1.  Filipino citizens or

2.  Corporations or associations incorporated in the Philippines and at least 60% of the capital is owned by Filipino citizens.

Terms and conditions:

1.  Duration:  Not more than 50 years

2.  Franchise is NOT exclusive in character

3.  Franchise is granted under the condition that it is subject to amendment, alteration, or repeal by Congress when the common good so requires.

Participation of Foreign Investors

1. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital.

2.  Foreigners cannot be appointed as the executive and managing officers because these positions are reserved for Filipino citizens.

Section 16.  FORMATION/ORGANIZATION/REGULATION OF CORPORATIONS

1.  Private corporations

Congress can only provide for the formation, etc of private corporations through a general law.

2.  GOCC’s

They may be created by:

a. Special charters in the interest of the common good and subject to the test of  economic viability.

b. By incorporation under the general corporation law.

Sections 18-19.  SPECIAL ECONOMIC POWERS OF THE GOVERNMENT

1.  Temporary takeover or direction of operations:

A.  Conditions

i.  National emergency and

ii.  When the public interest requires

B.  May be used against privately owned public utilities or businesses affected with public interest.

C.  Duration of the takeover:  period of emergency

D.  Takeover is subject to reasonable terms and conditions

E.  No need for just compensation because it is only temporary.

2.  Nationalization of vital industries:

A.  Exercised in the interest of national welfare or defense

B.  Involves either:

i.  Establishment and operation of vital industries; or

ii. Transfer to public ownership, upon payment of just compensation, public utilities and other private enterprises to be operated by the government.

Section 19.  MONOPOLIES

1.  The Constitution does NOT prohibit the existence of monopolies.

2. The State may either regulate or prohibit monopolies, when public interest so requires.

3.  Combinations in restraint of trade or unfair competition are prohibited.

Filipino citizenship or equity requirements:

 

ACTIVITY REQUIREMENTS                                             CITIZENSHIP AND/OR EQUITY

Exploitation of natural resources                     1.  Filipino citizens; or

2. Corporations incorporated in RP, with 60% Filipino ownership

 

Operation of Public Utilities                              1.  Filipino citizens; or

2. Corporations incorporated in RP, with 60% Filipino ownership

 

Acquisition of alienable lands of the public domain

1.  Filipino citizens;

2. Corporations incorporated in RP, with 60% Filipino ownership;

3.  Former natural-born citizens of RP, as transferees, with certain legal restrictions; and

4.  Alien heirs as transferees in case of intestate succession.

 

Practice of ALL Professions                            Filipino citizens only (natural persons)

*Congress may, by law, otherwise prescribe

 

Mass Media                                                             1.  Filipino citizens; or

2. Corporations incorporated in RP, and 100% Filipino owned

 

Advertising                                                            1.  Filipino citizens; or

2. Corporations incorporated in RP, and 70% Filipino owned.

 

Educational institution                                     1.  Filipino citizens; or

2. Corporations incorporated in RP, with 60% Filipino ownership

EXCEPTSchools established by religious groups and mission boards.

*Congress may, by law, increase Filipino equity requirements for ALL educational institutions.

 

Other economic activities                                Congress may, by law, reserve to Filipino citizens or to corporations 60% Filipino owned (or even higher) certain investment areas.

 

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations 2001

Louie, Carrie, Evelyn, Thel, Gem, Ronald

Political Law (Constitutional Law) – Article XI

ARTICLE XI: ACCOUNTABILITY OF PUBLIC OFFICERS

 

Section 1: PUBLIC OFFICE AS A PUBLIC TRUST

Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice and lead modest lives.

 

Section 2: IMPEACHMENT/REMOVAL FROM OFFICE

Impeachment: (as means of removal from office)

1.  Who may be impeached:

- President

- VP

- SC Justices

- Constitutional Commission members

- Ombudsman

2.  Grounds

- Culpable violation of the Constitution

- treason

- bribery

- graft and corruption

- other high crimes or

- betrayal of public trust

Note: It is an exclusive list.  Congress cannot, by law, add to the list of impeachable offenses.

  1. These officers cannot be charged in court with offenses that have removal from office as penalty.
  2. The President cannot be charged with murder.
  3. A SC Justice cannot be disbarred because this would disqualify him from his position.
  4. BUT AFTER an official has been impeached, he can be charged with the appropriate offense.
  5. Resignation by an impeachable official does not place him beyond the reach of impeachment proceedings; he can still be impeached

All Other Public Officers and Employees

1.  They may be removed from office as provided by law

2.  BUT: NOT by impeachment

Section 3: PROCEDURE FOR IMPEACHMENT

Exclusive Power of House of Representatives

The House of Representatives has exclusive power to INITIATE all cases of impeachment.

Procedure:

1.  Filling of verified complaint

  1. Can be filed by:
  1. Any member of the House of Representatives or
  2. Any citizen upon a resolution of endorsement by any Member of the House or
  3. By at least 1/3 of all the Members of the House of Representatives

2.)  Inclusion of complaint in the order of business with 10 session days

3.)  Referral to proper Committee within 3 session days thereafter

4.)   Submission of Committee report to the House together with corresponding resolution

  1. There should be a hearing
  2. There should be a majority vote of the members
  3. The report should be submitted within 60 days from referral, after hearing, and by a majority vote of ALL its members.

5.)  Calendaring of resolution for consideration by the House

Should be done within 10 session days from receipt thereof

6.)   Vote of at least 1/3 of all Members of the House necessary to:

  1. Affirm a favorable resolution with the Articles of Impeachment of the Committee or
  2. To override its contrary resolution

Note: If the verified complaint or resolution of impeachment was filed by at least 1/3 of all the Members of the House, it shall constitute the Articles of Impeachment.  Trial in the Senate shall proceed.

7.)        Trial in the Senate

  1. Senate has the sole power to try and decide all cases of impeachment
  2. For this purpose, the Senators shall be under oath or affirmation
  3. When the President of the Philippines is on trial, the CJ of the Supreme Court presides.  However, he/she will not vote.

8.)          Judgment of Conviction

This requires the concurrence of 2/3 of all the Members of the Senate

9.)          Effect of the Impeachment

  1. Removal from office of the official concerned
  2. Disqualification to hold any office under the Republic of the Philippines
  3. Officer still liable to prosecution, trial, and punishment if the impeachable offense committed also constitutes a felony or crime.

Section 4: SANDIGANBAYAN

Sandiganbayan = the anti-graft court

Sections 5-6, 8-14:  OFFICE OF THE OMBUDSMAN

Composition:

1.)                Ombudsman/Tanodbayan

2.)                Overall deputy

3.)                At least one Deputy each for Luzon, Visayas and Mindanao

4.)                Deputy for military establishment may be appointed

Qualifications: (Ombudsman and his deputies)

1.)    Natural born citizen of the Philippines

2.)    At least 40 years old at time of appointment

3.)    Of recognized probity and independence

4.)    Member of the Philippine bar

5.)    Must not have been candidate for any elective office in the immediately preceding election

6.)    For Ombudsman: He must have been for ten years or more

  1. A judge or
  2. Engage in the practice of law in the Philippines

Disqualifications/Prohibitions (under Article IX, Section 2)

1.)    Cannot hold any other office or employment during his tenure

2.)    Cannot engage in the practice of any profession or in the active management or control of any business which may be affected by the functions of his office

3.)    Cannot be financially interested, directly or indirectly, in any contract with or in any franchise or privilege granted by the Government, any of its subdivisions, agencies or instrumentalities, including GOCCs or their subsidiaries.

Appointment

1.  Of Ombudsman and deputies

  1. By the president from a list of at least 6 nominees prepared by the Judicial and Bar Council. Vacancies will be filled from a list of 3 nominees
  2. Appointments do NOT require confirmation
  3. All vacancies shall be filled within 3 months after they occur.

2.  Of other officials and employees of the Office of the Ombudsman

  1. By the Ombudsman
  2. In accordance with Civil Service Law

Term: (Ombudsman and deputies)

1.  7 years with reappointment

2.  They are NOT qualified to run for any office in the election immediately succeeding their cessation from office

Rank/Salaries:

1.  The Ombudsman has the rank of Chairman of a Constitutional Commission

2.  The Members have the rank of members of a Constitutional Commission

3.  Their salaries cannot be decreased during their term of office.

Powers, Functions and Duties of the Office of the Ombudsman

1.  Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

  1. The SC held that the power to investigate and prosecute cases involving public officers and employees has been transferred to the Ombudsman.
  2. The Ombudsman may always delegate his power to investigate.
  3. The power to investigate includes the power to impose preventive suspension.
  4. This preventive suspension is not a penalty.
  5. “INVESTIGATE” does not mean preliminary investigation.
  6. The complaint need not be drawn up in the usual form.
  7. The “ILLEGAL” act or omission need not be in connection with the duties of the public officer or employee concerned.
  8. ANY illegal act may be investigated by the Ombudsman.  In this regard, the Ombudsman’s jurisdiction is CONCURRENT with that of the regular prosecutors.

2.  Direct, upon complaint or at its own instance, any public official or employee of the government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act of duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.

  1. The Ombudsman has PERSUASIVE POWER, and may require that proper legal steps are taken by the officers concerned.
  2. The public official or employee must be employed in:

(I).       The Government

(II).      Any subdivision, agency, or instrumentality thereof; or

(III).     GOCC’s with original charters

  1. The SC has held that the SP may prosecute before the Sandiganbayan judges accused of graft and corruption, even if they are under the Supreme Court.

3.)  Direct the officer concerned to take the appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.

  1. The Ombudsman does NOT himself prosecute cases against public officers or employees.
  2. Final say to prosecute still rests in the executive department.
  3. The Ombudsman or Tanodbayan may use mandamus to compel the fiscal to prosecute.

4.)  Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds of properties, and report any irregularity to COA for appropriate action.

5.) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents.

6.) Public matters covered by its investigation when circumstances so warrant and with due process.

7.) Determine the cause of inefficiency, red tape, mismanagement, fraud and corruption in the government and make recommendations for their elimination and the observance of high standards of ethics and efficiency

8.) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.

Note: The Office of the Ombudsman also has the duty to act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality including GOCCs and their subsidiaries.  In appropriate cases, it should notify the complainants of the action taken and the result thereof.

Fiscal Autonomy

The Office of the Ombudsman enjoys fiscal autonomy.  Its approved annual appropriations should be automatically and regularly released.

Section 7:  OFFICE OF THE SPECIAL PROCECUTOR

1. Under the 1987 Constitution, the existing Tanodbayan became the Office of the Special Prosecutor

2. Powers

  1. It will continue to function and exercise its powers as now or hereafter may be provided by law
  2. Exception: Powers conferred on the Office of the Ombudsman

3. The Office of the Special Prosecutor is subordinate to and acts under the orders of the Ombudsman

Note: According to Jack, the SC was wrong because the ConCom intended that the SP was to prosecute anti-graft cases.

 

Section 15: RECOVERY OF ILL-GOTTEN WEALTH

Prescription, Laches, Estoppel

1.)    The right of the State to recover properties unlawfully acquired by public officials and employees from them or from their nominees or transferees shall NOT be barred by prescription, laches or estoppel.

2.) Their right to prosecute criminally these officials and employees may prescribe.

Section 16: PROHIBITION ON CERTAIN FINANCIAL TRANSACTIONS

Coverage:

This prohibition applies to:

1.)    President

2.)    Vice-President

3.)    Members of the Cabinet

4.)    Members of Congress

5.)    Members of Supreme Court

6.)    Members of Constitutional Commissions

7.)    Ombudsman

8.)    Any firm or entity in which they have controlling interest

When prohibition applies:

Prohibition applies during their TENURE.

Scope of prohibition:

1.)    The above mentioned officials cannot obtain, directly or indirectly for BUSINESS PURPOSES:

  1. Loans
  2. Guarantees
  3. Other forms of financial accommodation

From:

  1. Government owned or controlled banks; or
  2. Government owned or controlled financial institutions.

2.)    If the loan, etc, is NOT for business purpose, e.g. a housing loan, the prohibition does not apply.

Section 17: Statements of assets, liabilities and net worth

When submitted:

Public officer and employee shall submit a declaration under oath of his assets, liabilities and net worth upon assumption of office and as often as required under the law.

When declaration shall be disclosed to the public:

These declarations shall be disclosed to the public in a manner provided by law in the case of:

1.)    President

2.)    Vice-President

3.)    Members of the Cabinet

4.)    Members of Congress

5.)    Justices of the Supreme Court

6.)    Members of Constitutional Commissions

7.)    Other constitutional offices

8.)    Officers of the armed forces with general or flag rank

Section 18: Allegiance of public officers and employees

Allegiance to the State and to the Constitution

Change in Citizenship/Immigrant Status

1.)    Incumbent public officers and employees who seek either:

  1. Change his citizenship; or
  2. Acquire immigrant status in another country

Shall be dealt with by law.

2.)    If Philippine citizenship is one of the qualifications to the office, the loss of such citizenship means the loss of the office by the incumbent.

3.)    The Election Code provides the rules with respect to non-incumbents, i.e. persons running for elective offices.

  1. The Code provides that permanent residents of or immigrant to a foreign country cannot file certificates of candidacy unless they expressly waive their status as such

This renunciation must be some other than, and prior to, the filling of the certificate of candidacy.

 

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations 2001

Louie, Carrie, Evelyn, Thel, Gem, Ronald

Political Law (Constitutional Law) – Article X

ARTICLE X: LOCAL GOVERNMENT

 

Section 1.  TERRITORIAL/POLITICAL SUBDIVISIONS OF THE REPUBLIC OF THE PHILIPPINES ARE THE:

Composition:

1)      Provinces

2)      Cities;

3)      Municipalities; and

4)      Barangays

There shall be Autonomous regions in:

1)      Muslim Mindanao, and

2)      Cordileras [At present, it is only the Cordilera ADMINISTRATIVE region]

Note:    1) A third autonomous regions would require a constiutional amendment.

2) These political subdivisions, created by the Constitution cannot be replaced by AMENDMENT, and not by law.

3) While Congress can abolish or eradicate individual units, it cannot abolish an entire class of LGU’s

Section 2.  Local Autonomy

1)      All political subdivisions shall enjoy local autonomy

2)      This does not mean that the LGU’s are completely free from the central government.

  1. Judiciary may still pass on LGU actions
  2. President may exercise disciplinary power over LGU officials.

Sec. 3. Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units.

 

Section 4.  PRESIDENTIAL SUPERVISION OF LGUS

Supervision of President

1)      The President exercises general supervision over all LGUs

2)      The President exercises DIRECT supervision over

  1. Provinces
  2. Autonomous regions and
  3. Independent cities.

3)      This power is limited to ensuring that lower officers exercise their functions in accordance with law.

4)      The president cannot substitute his judgment for that of an LGU official unless the latter is acting contrary to law.

5)      The President may, however, impose administrative sanctions against LGU officials, such as suspension for 120 days, and may even remove them from their posts, in accordance with law.

6)      Provinces exercise direct supervision over component cities and municipalities.

7)      Cities and municipalities exercise direct supervision over component barangays.

Section 5.  EACH LOCAL GOVERNMENT SHALL HAVE THE POWER TO CREATE OWN SOURCES OF REVENUE/LEVY TAXES, FEES AND CHARGES ETC.

Limitations on Power

1)      It is subject to such guidelines and limitations as Congress may provide.  See Local Government Code for examples.

2)      The guidelines set by Congress should be consistent with the basic policy of local autonomy.

Accrual of taxes, fees, charges

The taxes, fees and charges shall accrue exclusively to the local governments.

Section 6. LGUs SHALL HAVE A JUST SHARE IN NATIONAL TAXES, AS DETERMINED BY LAW, WHICH SHALL BE AUTOMATICALLY RELEASED TO THEM

Internal Revenue Allotment (IRA)

1)      Share of LGUs in national taxes is limited to the internal revenue taxes.

2)      The share of each LGU should be released, without need of any further action, directly to the provincial, city, municipal or barangay treasurer.  Release is made on a quarterly basis within 5 days after the end of each quarter.

3)      The share of each LGU should not be subject to any lien or holdback that may be imposed by the national government for whatever purpose.

4)      Each LGU should appropriate in its annual budget at least 20% of its annual IRA for development projects.

5)      Adjustments in IRA

  1. Ground:  Unmanageable public section deficit
  2. President can make the necessary adjustments in the IRA upon the recommendation of the following:
  1. Department of Finance Secretary
  2. DILG Secretary
  3. DBM Secretary

6)      IRA considered for purposes of conversion from one political subdivision to the next.  (Alvarez v. Guingona)

Section 7.  SHARE OF LGUS IN NATIONAL WEALTH

Share of LGUs in national wealth

1)      LGUs are entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas in the manner provided by law.

2)      This includes share the same with the inhabitants by way of direct benefits.

Under the LGC

1)      LGUs have a share of 40% of the gross collection derived by the national government from the preceding fiscal year from

  1. Mining taxes
  2. Royalties
  3. Forestry and fishery charges
  4. Other taxes, fees and charges
  5. Share in any co-production, joint venture or production sharing agreement in the utilization and development of the national wealth w/in their territorial jurisdiction

Sec. 8.  TERM OF OFFICE

Term of Office

Elective local officials, now including barangay officials have a term of 3 years.

Limitations:

1)      No elective official shall serve for more than 3 consecutive terms

2)      Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Sec. 9.  SECTORAL REPRESENTATION IN LGUS

Legislative bodies of the local governments shall have Sectoral Representation (under the LGC) as may be provided by law

There should be representatives from:

1)      The women’s sector

2)      The workers

3)      Third sector (can choose from any of the following)

A)    Urban poor

B)     Indigenous cultural communities

C)     Disabled persons

D)    Any other sector as may be determined by the sanggunian

Election of Sector Representatives

Sec. 10. Creation, abolition and division of LGU’s

1)      Requisites

  1. Compliance with the requirements of the Local Government Code; and
  2. Approved by a majority of the votes cast in a plebiscite held in the political units DIRECTLY affected.

2)      Thus, a province is supposed to be divided into 2 separate provinces, plebiscite will include voters of the ENTIRE province, and not just the area to comprise the new province.

3)      LGC requirements relate to matters such as population, revenue, and area requirements.

Sec. 11.  Metropolitan political subdivisions

Creation:

1)      Congress may create special metropolitan political subdivisions by law.

2)      It is subject to a plebiscite

Jurisdiction of Metropolitan authority

It is limited to basic services requiring coordination.

Basic Autonomy of Component Cities and Municipalities

1)      The component cities and municipalities retain their basic autonomy

2)      They shall be entitled to their own local executive and legislative assemblies.

Sec. 12.  CITIES

Classification of Cities:

1)      Highly urbanized (as determined by law)

2)      Component cities (cities still under provincial control); and

3)      Independent component cities (non-highly urbanized cities whose voters are prohibited by thecity charter from voting in provincial elections)

Independence from the Province

1)      Highly urbanized cities and independent component cities are independent of the province.

2)      Component cities whose charter contain no such prohibition are still under the control of the province and its voters may still vote for elective provincial officials.

Section 13.  Coordination among LGUS

Consolidation and Coordination of Efforts, Services and Resources

1)      It is optional on the part of LGUs as shown by the use of the word “may”

2)      It can be done for purposes commonly beneficial to them in accordance with the law.

Under LGC (Section 33)

1)      Consolidation and coordination may be done through appropriate ordinances.

2)      A public hearing should be conducted and the approval of the sanggunian obtained.

3)      An LGU can:

  1. Contribute funds, real estate, equipment and other kinds of property
  2. Appoint/assign personnel under such terms and conditions as may be agreed upon by the participating LGUs through Memoranda of Agreement.

Section 14.  REGIONAL DEVELOPMENT COUNCILS

Who can provide for RDC

The President shall provide for RDC or other similar bodies composed of:

Composition

1)      Local government officials

2)      Regional heads of departments and other government offices

3)      Representatives of NGOS within the regions

For Purpose of

1)      Administrative decentralization

2)      To strengthen local autonomy

3)      To accelerate the economic and social growth and development of the units in the region

Section 15.  AUTONOMOUS REGIONS

Where:

1)      Muslim Mindanao

2)      Cordillera region

Factors:

1)      Historical heritage

2)      Cultural heritage

3)      Economic and social structures,

4)      Other relevant characteristics within:

  1. The framework of the consititution
  2. National sovereignty
  3. Territorial integrity.

Creation:

1)      Provided by law.

2)      EFFECTIVITY of such creation occurs only when it is approved by a majority of the votes cast in a plebiscite held among the constituent units.

3)      Only those Provinces, Cities, and Geographical Areas voting favorably in such plebiscite shall form part of the autonomous region.

4)      If only 1 province approved the law, NO AUTONOMOUS REGION created, since the constitution requires more than one province to constitute one (like what happened in the Cordillera plebiscite)

5)      The question of which LGU’s shall constitute an autonomous region is one which is exclusively for Congress to decide.

Section 16.  GENERAL SUPERVISION OVER AUTONOMOUS REGIONS

By Whom:

The President

Purpose:

To ensure that the laws are faithfully executed.

Sec. 17.  All powers, functions and responsibilities not granted by this Constitution or by law to the autonomous region shall be vested in the National Government.

Examples:        1) Foreign relations,

2) National defense and Security

3) Monetary Affairs

Section 20.  LEGISLATIVE POWERS

The Organic Act of Autonomous Region shall provide for legislative powers over:

1)      Administrative organization;

2)      Creation of sources of revenues;

3)      Ancestral domain and natural resources

4)      Personal, family and property relations

5)      Regional, urban, and rural planning development;

6)      Economic, social, and tourism development;

7)      Educational policies;

8)      Preservation and development of the cultural heritage; and

9)      Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.

Limitations:

1)      Subject to the provisions of the Constitution and national laws

2)      To be exercised within its territorial jurisdiction

Section 21.  PRESERVATION OF PEACE AND ORDER/DEFENSE AND SECURITY

Peace and Order

It shall be the responsibility of the local police agencies.

Defense and Security

It shall be the responsibility of the national government.

 

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations 2001

Louie, Carrie, Evelyn, Thel, Gem, Ronald

 

Political Law (Constitutional Law) – Article IX

ARTICLE IX – THE CONSTITUTIONAL COMMISSIONS

Section 1.   Constitutional Commissions

Independent Constitutional Commissions:

1) Civil Service Commission (CSC)

2) Commission on Elections (COMELEC)

3) Commission on Audit (COA)

Why Independent?

They perform vital functions of government.  Their integrity is protected by the fact that they:

1) Are constitutionally created (Sec. 1)

2) Have independent powers of appointment (Sec. 4)

3) Each Commission may promulgate its own procedural rules (Sec. 6)

4) Fiscal autonomy (Sec. 5)

5) Salaries may not be diminished during their office (Sec. 3)

6) Commissioners have a fixed term

7) Commissioners are removable by impeachment only.

Section 2.  DISQUALIFICATIONS

Disqualifications:

Members cannot, during their tenure:

1) Hold any other office or employment;

2) Engage in the practice of any profession;

3) Engage in the active management or control of any business, which, in any   way, may be affected by the functions of their office; and

4) Be financially interested, direct or indirect, in any contract, franchise, privilege granted by the government, any of its subdivisions, agencies, instrumentalities, including GOCC’s and their subsidiaries.

Note:  The Ombudsman and his deputies are subject to the same qualifications.

 Section 3.  SALARIES

Salaries

1) Salaries are fixed by law and shall not be decreased during their TENURE.

2) Decreases in salaries only affect those members appointed AFTER increase.

3) Incumbent members do not lose any salary.

4) Increases take effect IMMEDIATELY.

Section 6.  RULES OF PROCEDURE

Procedures:

1) Rules:  The Commissions may promulgate its own rules EN BANC.

2) Limitation:  It shall not:

a) Diminish,

b) Increase, or

c) Modify substantive rights.

3) Power of SC

a). The SC may not, under Art. VIII Sec. 5(5), exercise the power to disapprove rules of “special courts and quasi-judicial  bodies.”

b). In proceedings before the Commissions, the rules of the Commission prevail.

c). In proceedings before a court, the Rules of Court prevail.

d). The SC may, however, in appropriate cases, exercise JUDICIAL REVIEW

Section 7.  DECISION MAKING/APPEAL

Decision-Making:

1) Each commission shall decide matter or cases by a majority vote of all the members within 60 days from submission.

  • COMELEC may sit en banc or in 2 divisions.
  • Election cases, including pre-proclamation controversies are decided in division, with motions for reconsideration filed to the COMELEC en banc.
  • The SC has held that a majority decision decided by a division of the COMELEC is a valid decision.

2) As COLLEGIAL BODIES, each commission must act as one, and no one member can decide a case for the entire commission.  (i.e.  The Chairman cannot ratify a decision which would otherwise have been void).

Appeals:

1) Decisions, orders or rulings of the COMELEC/COA may be brought on certiorari to  the SC under Rule 65.

2) Decisions, orders or ruling of the CSC should be appealed to the CA under Rule 43.

Enforcement:

  • It has been held that the CSC can issue a writ of execution to enforce judgments which are final.
THE CIVIL SERVICE COMMISSION

Section 1.  COMPOSITION/QUALIFICATIONS/TERM

Composition:

1) Chairman

2) Commissioners – 2 commissioners

Qualifications:

1) Natural-born citizens of the Philippines;

2) At least 35 years old at the time of their appointments;

3) With proven capacity for public administration; and

4) NOT candidates for any elective position in the elections immediately preceding their appointment.

5) Appointees by the President to the CSC need Commission on Appointments (CA) confirmation

Term:

1) Chairman -7 years; Commissioner1 – 5 yrs; Commissioner2 – 3 yrs

2) Limitation:  single term only, no reappointment

3) Appointment to vacancy: only for unexpired term of predecessor

4) No temporary appointments, or appointments in acting capacity.

Section 2.   Scope:

The Civil Service embraces all:

A.  branches,

B.  subdivisions,

C.  instrumentalities,

D.  agencies of the government,

E.  including GOCCs with original charters.

1.”With Original Charter” means that the GOCC was created by special law/by Congress

2. If incorporated under the Corporation Code, it does not fall within the Civil Service, and is not subject to the CSC jurisdiction.

3. Even if once government-controlled, then becomes privatized, ceases to fall under CSC.

4. Jurisdiction is determined as of the time of filing the complaint.

Appointments to civil service shall be:

A. Competitive positions

  • According to merit and fitness to be determined by competitive examinations, as far as practicable except to positions which are policy-determining, primarily confidential, or highly technical.

B. Non-competitive positions

1). No need for competitive examinations.

2). 3 kinds

a) Policy-determining –           formulate a method of action for the gov’t

b) Primarily confidential –      more than ordinary confidence; close intimacy insures freedom of intercourse without betrayals of personal trust…

c) Highly technical     –           requires technical skill to a superior degree.

C. The TEST to determine whether non/competitive is the Nature of the responsibilities, NOT the administrative or legislative description given to it.

D. Both types of positions are entitled to security of tenure. They only differ in the MANNER in which they are filled.

E. Who may be appointed:

1). RULE:  Whoever fulfills all the qualifications prescribed by law for a particular position may be appointed therein.

2). The CSC cannot disapprove an appointment just because another person is better qualified, as long as the appointee is himself qualified.

3). The CSC CANNOT add qualifications other than those provided by law.

F. Next-In-Rank Rule

  • While a person next in rank is entitled to preferential consideration, it does not follow that only he, and no one else, can be appointed.  Such person has no vested right to the position and the appointing authority is not bound to appoint the person next in rank.

Tenure (Classification of Positions)

Career Service

Non-Career Service

1. Entrance based on merit and fitness to be determined as far as practicable by competitive examinations or based on highly technical qualifications. 1. Entrance on bases OTHER than usual tests of merit and fitness.
2. Entitled to security of tenure
  1. Tenure limited to:

a)      Period specified by law,

b)      Coterminous with the appointing authority or subject to his pleasure, or

c)      Limited to the duration of a particular project for which purpose the employment was made.

3. With opportunity for advancement to higher career positions.

Security of Tenure:

1) Officers or employees of the Civil Service cannot be removed or suspended EXCEPT for cause provided by law. It guarantees both procedural and substantive due process.

2) For “LEGAL CAUSE” – Cause is:

a). related to and affects the administration of office, and

b). must be substantial (directly affects the rights & interests of the public)

3) Security of tenure for Non-competitive positions

a). Primarily confidential officers and employees hold office only for so long as confidence in them remains.

b). If there is GENUINE loss of confidence, there is no removal, but the expiration of the term of office

c). Non-career service officers and employees do not enjoy security of tenure.

d). Political appointees in the foreign service possess tenure coterminous with  that of the appointing authority or subject to his pleasure.

4) One must be VALIDLY APPOINTED to enjoy security of tenure. Thus, one who is not  appointed by the proper appointing authority does not acquire security of tenure.

Abolition of Office

To be valid, abolition must be made:

(a) In good faith;  (good faith is presumed)

(b) Not for political or personal reasons; and

(c) Not in violation of law

Temporary employees are covered by the following rules:

1). Not protected by security of tenure – can be removed anytime even without cause

2). If they are separated, this is considered an expiration of his term.

3). BUT:  They can only be removed by the one who appointed them.

4). Entitled only to such protection as may be provided by law.

No officer or employee in the Civil Service shall engage in any electioneering or in partisan political activity

1) Cannot solicit votes in favor of a particular candidate.

2) Cannot give campaign contributions or distribute campaign materials.

3) BUT:  Allowed to express views on political issues, and to mention the names of the candidates whom he supports.

4) Prohibition does not apply to department secretaries

Right to organize

The right to organize does NOT include the right to strike

Sections 6-7.  DISQUALIFICATION

Disqualifications

1) Losing candidates in any election

a). Cannot be appointed to any office in the government or GOCC’s or their subsidiaries.

b). Period of disqualification: One (1) year after such election.

2) Elective officials

a). Not eligible for appointment or designation ANY CAPACITY to ANY PUBLIC OFFICE or position during their tenure.

b). EXCEPTION:  May hold ex officio positions.

  • Examples:
    • The Vice President may be appointed Cabinet member
    • Congressman may sit in the Judicial and Bar Council

c). To be eligible to hold any other office, the elected official must first resign his office

d). Even Congress cannot, by law, authorize the appointment of an elective official.

3). Appointive officials

a). Cannot hold any other office or employment in the government, any subdivision, agency, instrumentality, including GOCC’s and their subsidiaries.

b). EXCEPTION:  Unless otherwise allowed by law, or by the primary functions of his position.

c). This exception DOES NOT APPLY to Cabinet members, and those officers mentioned in Art. VII, Sec. 13.  They are governed by the stricter prohibitions contained therein.

Section 8. COMPENSATION

1) Prohibitions:  applies to elected or appointed officers and employees                     

Cannot receive:

A. Additional   -  an extra reward given for the same office i.e. bonus

B. Double  -  when an officer is given 2 sets of compensation for 2 different offices held concurrently by 1 officer

C. Indirect Compensation

2) EXCEPTION:  Unless specifically authorized by law

A. “SPECIFICALLY AUTHORIZED” means a specific authority particularly directed to the             officer or employee concerned.

B. BUT: per diems and allowances given as REIMBURSEMENT for expenses actually incurred are not prohibited

3) Cannot accept any present, emolument, office, title of any kind from foreign governments UNLESS with the consent of Congress.

4) Pensions and gratuities are NOT considered as additional, double, or indirect compensation.

THE COMMISSION ON ELECTIONS

Section 1.  COMPOSITION/QUALIFICATIONS/TERM

Composition: (7)

1) Chairman and

2) Commissioners (6)

Qualifications:

1) Natural-born citizens of the Philippines;

2) At least 35 years old at the time of appointment

3) Holders of college degrees; and

4) Not candidates for any elective position in the immediately preceding elections.

5) Majority of the Commission, including the Chairman must be:

a). Members of the Philippines Bar

b). Engaged in the practice of law for at least 10 years: “any activity in or out of court, which requires the application of law, legal procedure, knowledge, training and experience.”

6) Appointments subject to CA approval

Term:

1) Chairman -7 yrs; 3 Members – 7 yrs; 2 Members – 5 yrs; 1 Member – 3 yrs.

2) LIMITATION:  Single term only: no reappointment allowed

3) Appointment to a vacancy: only for unexpired portion of predecessor’s term

4) No temporary appointments, or appointments in acting capacity

a). Thus, the President cannot designate an incumbent commissioner as acting Chairman.

b). The choice of temporary chairman falls under the COMELEC’s discretion.

Section 2. POWERS AND FUNCTIONS

Powers:

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

(a)    Ex: COMELEC can enjoin construction of public works within 45 days of an election.

1)      Exercise:

A. Exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective

1. Regional,

2. Provincial, and

3. City officials

B. Appellate jurisdiction over all contests involving:

1. Elective municipal officials decided by trial courts of general jurisdiction

2. Elective barangay officials decided by trial courts of limited jurisdiction.

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

Exception: Appealable to the SC on questions of law.

  1. Contempt powers

1. COMELEC can exercise this power only in relation to its adjudicatory or quasi-judicial functions.  It CANNOT exercise this in connection with its purely executive or ministerial functions.

2. If it is a pre-proclamation controversy, the COMELEC exercises quasi-judicial/administrative powers.

3. Its jurisdiction over ‘contests’ (after proclamation), is in exercise of its judicial functions.

E. The COMELEC may issue writs of certiorari, prohibition and mandamus in exercise of its appellate jurisdiction.  This is not an inherent power.

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

Note: Questions involving the right to vote fall within the jurisdiction of the ordinary courts.

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

a). This power is NOT limited to the election period.

b). Applies to both criminal and administrative cases.

5) Registration of political parties, organizations, or coalitions/accreditation of citizens’ arms of the Commission on Elections.

a). The political parties etc. must present their platform or program of government.

b). There should be sufficient publication

c). Groups which cannot be registered:

i. Religious denominations/sects

ii. Groups which seek to achieve their goals through violence or unlawful means

iii. Groups which refuse to uphold and adhere to the Constitution

iv. Groups which are supported by any foreign government.

d). BUT:  Political parties with religious affiliation or which derive their principles from religious beliefs are registerable.

e). Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections constitute interference in national affairs.  If accepted, it is an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law.

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

  1. COMELEC has exclusive jurisdiction to investigate and prosecute cases for violations of election laws.
  2. COMELEC can deputize prosecutors for this purpose.  The actions of the prosecutors are the actions of the COMELEC
  3. Preliminary investigation conducted by COMELEC is valid.

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

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

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

Section 3.  RULES OF PROCEDURE/DECISION-MAKING

Rules of Procedure

1)    COMELEC can sit en banc or in two divisions

2)    It has the power to promulgate its own rules of procedure in order to expedite disposition of election cases, including pre-election controversies.

Decision-Making

1) Election cases should be heard and decided in division. Provided that,

2) Motions for reconsideration of decisions should be decided by COMELEC en banc.

3) ”Decisions” mean resolutions on substantive issues.

2)    If a division dismisses a case for failure of counsel to appear, the Motion for Reconsideration here may be heard by the division.

3)    EXCEPTION: COMELEC en banc may directly assume jurisdiction over a petition to correct manifest errors in the tallying of results by Board of Canvassers.

Section 4.  SUPERVISION/REGULATION OF FANCHISES / PERMITS / GRANTS / SPECIAL PRIVILEGES / CONCESSIONS

Regulation of franchises

A. What can COMELEC supervise or regulate

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

2). Grants, special privileges or concessions granted by the Government or any subdivision, agency or instrumentality thereof, including any GOCC or its subsidiary

B. When can COMELEC exercise this power

 1). During the election period

a). Under Article XI, Section 9, the election period commences 90 days before

the day of the election and ends 30 days thereafter.

b). In special cases, COMELEC can fix a period.

2). Applies not just to elections but also to plebiscites and referenda.

3). Plebiscite: Submission of constitutional amendments or important legislative measures to the people ratification

4). Referendum:  power of the electorate to approve or reject legislation through an election called for that purpose.

COMELEC and the MEDIA

1). COMELEC cannot compel print media to donate free space to the COMELEC.  It may, however, compel it to provide space after paying just compensation.

2). Power of COMELEC is over franchises and permits, NOT individuals. For example, COMELEC may not regulate media practitioners, for this would violate the freedom of expression.

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

Section 6

Definition of Political Party

  • organized group of persons pursuing the same political ideals in a government and includes its branches, and divisions

Importance of registration of a political party

1)    Registration confers juridical personality on the party.

2)    It informs the public of the party’s existence and ideals.

3)    It identifies the party and its officers for purposes of regulation by the COMELEC.

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

Prohibition on block-voting

1) General rule: Block voting NOT allowed

2) EXCEPTION: those registered under the party-list system

Section 8.  PARTY LIST SYSTEM

No Right to be Represented in Various Boards

  • Political parties, organizations, or coalitions registered under the party-list system shall NOT be represented in the following:

1). Voters’ registrations boards,

2). Boards of election inspectors,

3). Boards of canvassers, or

4). Other similar bodies.

Poll Watchers

  • Political parties, etc. are entitled to appoint poll watchers in accordance with law.

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

  • This section does not give candidates immunity from suit.
  • Discrimination includes unequal treatment in the availment of media facilities.

Section 11.  FUNDING

How provided

1)    Funds certified by the COMELEC as necessary to defray the expenses for holding regular and special elections, plebiscites, initiative, referenda and recalls, shall provided in the regular or special appropriations.

2)    Funds should be certified by the COMELEC as necessary.

Release of funds

  • Once approved, funds should be released automatically upon certification by the Chairman of COMELEC.

THE COMMISSION ON AUDIT

Section 1.  COMPOSITION/QUALIFICATIONS

Composition:

1)    Chairman, and

2)    Commissioners (2).

Qualifications:

1)    Natural-born citizens of the Philippines

2)    At least 36 years old at the time of their appointment;

3)    Either:

a). CPA’s with at least 10 years auditing experience; or

b). Members of Phil. Bar with 10 years of practice.

4)    Members cannot all belong to the same profession.

5)    Subject to confirmation of the CA.

6)    Must not have been candidates for any elective position in the elections immediately preceding their appointment.

Term:

1)    Chairman -7 yrs; Commissioner1 -5yrs; Commissioner – 2 -3 yrs.

2)    LIMITATION: – Single terms only; no re-appointment allowed

3)    Appointments to any vacancy shall only be for the unexpired portion of predecessor’s term.

Section 2.  POWERS

1)    Examine, audit, and settle accounts pertaining to:

  1. Revenue and receipts of funds or property; or
  2. Expenditures and uses of funds or property

Owned or held in trust by, or pertain to:

  1. The Government;
  2. Any of its subdivisions, agencies or instrumentalities;
  3. Including GOCC’s with original charters.

2)    Conduct post-audit with respect to the following:

  1. Constitutional bodies, commissions, and offices granted fiscal autonomy;
  2. Autonomous state colleges and universities;
  3. GOCC’s and their subsidiaries incorporated under the Corporation Code.
  4. None-governmental entities receiving subsidies or equity, directly or indirectly, from or through the government, which are required by law of the granting of institution to submit to such audit.

3)    If COA finds internal control system of audited agencies as inadequate, COA may adopt measures, including temporary or special pre-audit, as may be necessary.

4)    Keep the general accounts of the government, preserving vouchers and other supporting papers pertaining thereto.

5)    Exclusive authority to define the scope of COA’s audit and examination and to establish the techniques and methods required therefor.

6)    Promulgate accounting and auditing rules and regulations.

  1. Including those for the prevention or disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures or uses of government funds and properties.
  2. Failure to comply with these rules can be a ground for disapproving the payment of a proposed expenditure.

Note:

1)    The functions of COA can be classified as:

  1. Examine and audit all forms of government revenues;
  2. Examine and audit all forms of gov’t expenditures
  3. Settle gov’t accounts
  4. Promulgate accounting and auditing rules (including those for the prevention of irregular…expenditures.
  5. To decide administrative cases involving expenditures of public funds.

2)    COA can settle only LIQUIDATED ACCOUNTS or those accounts which may be adjusted simply by arithmetic process.

3)    COA has authority not just over accountable officers but also over other officers who perform functions related to accounting such as verification of evaluations and computation of fees collectible, and the adoption of internal rules of control.

4)    COA does not have the power to fix the amount of an unfixed or undetermined debt.

5)    Where the following requirements are complied with, it becomes the ministerial duty of the COA to approve and pass in audit vouchers for payment:

  1. There is a law appropriating funds for a particular purpose;
  2. There is a contract, made by the proper officer, entered into in conformity with the above-mentioned law;
  3. The goods or services covered by such contract have been delivered or rendered in pursuance to such contract, as attested by the proper officer; and
  4. Payment has been authorized by officials of the corresponding department or bureau. 

6)    Prosecutors may still review accounts already settled and approved by COA for the purpose of determining possible criminal liability.  This is because COA’s interest in such accounts is merely administrative.

7)      COA has the power to determine the meaning of ‘public bidding’ and what constitutes failure when regulations require public bidding for the sale of government property.

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

 


Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations 2001

Louie, Carrie, Evelyn, Thel, Gem, Ronald

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