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c. 5.
a. b. c. d. e. 6.
a. b. c. d.
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ARTICLE I – THE NATIONAL TERRITORY
a. b.
ONSTITUTIONAL
Archipelagic principle Two elements : 1. The definition of internal waters (as provided above);
The national territory of the Philippines comprises: 1. 2. 3. jurisdiction 4.
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2.
The straight baseline method of delineating the territo rial sea – consists of drawing straight lines connecting appropr iate points on the coast without departing to any appreciable extent from the general direction of the coast.
The Philippine archipelago With all the islands and waters embraced therein And all other territories ov er which the Philippines has sovereignty or
Important distances with respect to the waters around the Philippines
Consistingofits
1. Territorial sea 2. C ontiguous zone sea 3. Exclusive economic zone and (2)]
Terrestrial Fluvial; and CODE: TFA Aerial domains Includingits
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12 nautical miles (n.m.) 12 n.m. from the edge of the territorial
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200 n.m. from the baseline [includes (1)
ARTICLE II – DECLARATION OF PRINCIPLES AND STATE POLICIES
Territorial sea
Selected principles
The seabed SEC 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.
The subsoil CODE: TSSIO The insular shelves; and
Elements of a State (for municipal law purposes)
The other submarine areas Thewaters
1. 2. 3. 4.
Around Between and Connecting
1. 2. 3. 4.
An archipelago is a body of water studded with isla nds. The Philippine archipelago is that body of water studded with islands which is delineated in the Treaty of Paris (1898), as amended by the Treaty of Washington (1900) and the Treaty of Great Britain (1930). which
the
Independent of external control (SOVEREIGNTY)
Definition of “People”
Definition of Archipelago
over
Permanently occupying a definite portion of territory (TERRITORY)
Possessing an organized government to which the great body of inhabitants render habitual obedience (GOVERNMENT)
The islands of the archipelago CODE: ABCI Regardless of their breadth and dimensions Form part of the INTERNAL WATERS of the Philippines
Definitio n of “all oth er ter ritor ies sovereignty or jurisdiction”
CODE: PTSG
A community of persons, more or less numerous (PEOPLE)
Philippin es
It includes any territory that presently belongs or might in the future belong to the Philippines through any of the internat ionally accepted modes of acquiring territory.
has
Sufficient in Number; Capable of maintaining the continued existence of the community; and Held together by a common bond of law.
Definition of “Sovereignty” 1. LEGAL sovereignty a. The supreme power to make law. b. It is lodged in the people. 2. POLITICAL sovereignty a.
CODE: CNCH
A Community of persons;
The sum total of all the influences in a state,
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3.
According to the Principle of AUTO-LIMITATION : Sovereignty is the property of the state-force due to which it has the exclusive capacity of legal self-determination and self-restriction. Definition of “Government” 1. That institution or aggregat e of institutions 2. by which an independent society 3. makes and carries out those rules of action 4. which are necessary to enable men to live in a social state 5. or which are impos ed upon the peop le formi ng that society by those who possess the power or authority of prescribing them. Classification of governments
a. b. c. d.
2. a. b. c.
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SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. Kind of war renounced by the Philippines The Philippines only renounces AGGRESSIVE war as an instrument of national policy. It does not renounce defensive war. Some "generally accepted principles of international law" recognized by the Court:
1.
Right of an alien to be released on bail while awaiting deportation when his failure to leave the country is due to the fact that no country will accept him (Mejoff v. Director of Prisons , 90 Phil. 70)
2.
- one established by the authority of the legitimate sovereign - one established in defiance of the legitimate sovereign
The right of a country to establish military commissions to try war criminals
(Kuroda v. Jalondoni, 83 Phil. 171) 3. The Vienna Convention on Road Signs and Signals ( 195)
Classification ofde facto governments
1.
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Legal and non-legal, Which determine the course of law.
1. De jure 2. De facto
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Agustin v. Edu, 88 SCRA
Amity with all nations
De facto proper That government that gets possession and control of or usurps by force or by the voice of majority the rightful legalg overnment and maintains itself against the will of the latter.
This does not mean automatic diplomatic recognition of all nations. recognition remains a matter of executive discretion.
Diplomatic
SEC 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.
Government of paramount force That which is established and maintained by military forces who invade and occupy a territory of the enemy in thecourseofwar.
Civilian authority/supremacy clause st(1 sentence)
3. That established as an
independent government by the inhabitants of a country who rise in insurrection against the parent state.
1. Civilian authority simply means the suprem acy of the law because author ity, under our constitutional system, can only come from law. 2. Under this clause, the soldier renounces political ambition. nd Mark of sovereignty (2 and 3rd sentences)
Definition of “Republican State” It is one wherein all government authority emanates from the people and exercised by representatives chosen by the people.
is
Definition of Democratic State This merely emphasizes that the Philippines has some aspects of direct democracy such as initiative and referendum.
1. Positively, this clause singles out the military as the guardian of the people and of the integrity of the national territory and therefore ultimately of the majesty of the law. 2. Negatively, it is an expression of disapproval of military abuses. SEC 4. The prime dut y of the Governm ent is to serve and prote ct the people. The Government may call upon the people to defend the State and, in the fulfillment thereo f, all citizens may be required, under conditions provided by law, to render personal, military, or civil service.
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REVIEWER & MEMORY AID SEC. 5. The maintenance of peace and order, the protection of life, liberty and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. SEC. 6. The separation of Church and State shall be inviolable.
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REVIEWER & MEMORY AID 1. While the right to a balanced and healthful ecology is found under the declaration of Principle and State Policies and not under the Bill of Rights, it does not follo w that it is less important than any of the civi l and polit ical rights enumerated in the latter. (Oposa v. Factoran) 2. The ri ght to a ba lanced an d he althful ec ology ca rries wi th it t he correlative duty to refrain from impairing the environment. (Oposa v. Factoran) SEC. 26. The State shal l guaran tee equal acce ss to opportu nities for public service, and prohibit political dynasties as may be defined by law.
Selected state policies SEC. 7. The Sta te shall pursue an in dependent fo reign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to selfdetermination.
SEC. 27. The State shal l maintai n honesty and inte grity in the publ ic service and take positive and effec tive measure s against graft and corruption. SEC. 28. Subject to reasona ble condi tions prescrib ed by law, the State ado pts and imple ments a policy of full public disclosur e of all its transactions involving public interest.
SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.
Policy of freedom from nuclear weapons 1. The policy PROHIBITS: a. The possession, control and manufacture of nuclear weapons b. Nuclear armstests.
ARTICLE III – BILL OF RIGHTS Section 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws. BILL OF RIGHTS
2. The policy does NOT prohibit the peaceful uses of nuclear energy.
SEC. 12. The State recognizes the sanctity of family life and shall protect and streng then the family as a basic auton omous social institu tion. It shall equally protect the life of the mother and the life of the unborn from conception. etc.
Principle that the family is not a creature of the state. Protection for the unborn 1. It is not an assertion that the unborn is a legal person. 2. It is not an assertion that the life of the unborn is placed exactly on the level of the life of the mother. Hence, when it is necessary to save the life of the mother, the life of the unborn may be sacrificed.
The Bill of rights is a guarantee that there are certain areas of a person’s life, liberty and property which governmental power may not touch.
The Bill of rights is a declaratory of fundamental principles and of the basic rights of citizenship. It enumerates some of the private and inalienable rights of the people, and it has been said that the rights protected by the Bill of Rights are those that inhere in the “great and essential principles of liberty and free government.”
The rights in the Bill of Rights are sometimes referred to as natural laws and as being founded on natural right and justice.
3.
SEC. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.
Under this provision, the Roe v. Wade doctrine allowing abortion up to the 6th month of pregnancy cannot be adopted in the Philippines because the life of the unborn is protected from the time of conception.
Any governmental action in violation of the rights declared in the Bill of Rights is void, so that the provisions of a Bill of Rights are self – executing to this extent; however, the legislature may enact laws to protect and enforce the provisions of the Bill of Rights. To the law of force rather than the force of law, it is necessary to remind ourselves that certain basic rights and liberties are immutable (unchangeable) and cannot be sacrificed to the transien t needs or imperious demands of the ruling power. The rule of law must prevail or else liberty will perish.
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REVIEWER & MEMORY AID It is the most essential, insistent and the least limitable of powers, extending as it does to all the great public needs.
The provisions of the bill of rights are primarily limitations on government, declaring rights that exist without any governmental grant, that may not be taken away by government and that government has duty to protect.
Police power rests upon public necessity and upon the right of the state and of the public to self – protection.
The fundamental human rights conferred by the Constitution are
not absolute.
Negatively, police power is defined as that inherent and plenary (full) power in the State which enabl es it to prohibit all that is hurtful to the comfort, safety, and welfare of society. (Ermita V Mayor of Manila)
BALANCING THE RIGHTS OF PERSONS AND POLICE POWER
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The totality of governmental power is contained in the three (3) great powers: police power, power of eminent domain, and power of taxation. These are inherent powers of government. A constitution can only define and delimit them and allocate their exercise among various government agencies.
For the proper defense and protection of freedom, a political institution must possess power. Hence, government becomes the delicate art of balancing the power of government and the freedom of the governed.
public health public safety public morals general welfare
SCOPE OF POLICE POWER Police power rests upon public necessity and upon the right of the State and of the public to self – protection. For this reason, its scope expands and contracts with changing needs.
Definition of “Police Power”: POWER OF EXPROPRIATION OR POWER OF EMINENT DOMAIN 1) Power vested in the legislature 2) By the Constitution 3) To make, ordain, and establish 4) All manner of wholesome and reasonable laws, statutes, and ordinances 5) Either with penalties or without 6) Not repugnant to the c onstitution 7) As they shall judge to be for the good and welfare of the commonwealth and of the subjects of the same. POLICE POWER
Enables the state to forcibly acquire private propert y, upon payment of just compensation, for some intended public use.
Power of expropriation is the highest and most exact idea of property remaining in the government that may be acquired for some public purpose through a method in the nature of compulsory sale to the state.
The provision should be strictly interpreted expropriator and liberally in favor of the property owner.
The power of promoting the public welfare by restraining and regulating the use of liberty and property.
The power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinance, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same.
against
the
The exercise of this power is necessarily in derogation of private rights, and the rule in that case is that the authority must be strictly construed. Except for police power and power of taxation, only the power of expropriation may be exercised by public and private corporations. POWER OF TAXATION The state is able to demand from the members of society their proportionate share or contribution in the maintenance of the government.
The power of the state to regulate liberty and property for the promotion of the general welfare.
power.
The person’s acts and acquisitions are hemmed in the police
Importance of taxation derives from the unavoidable obligation of the government to protect the people and extend them benefits in the form of public projects and services.
Right to life
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REVIEWER & MEMORY AID The constitutional protection to life is not just a protection of the right to be alive or to the security of one’s limb against physical harm. The right to life is the right to a good life. Right to liberty Includes that right to exist and the right to be free from arbitrary restraint or servitude.
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REVIEWER & MEMORY AID Protection of property was a primary object of the social compact and that the absence of such protection could well lead to anarchy and tyranny.
Property is an important instrume nt for the preservation and enhancement of personal dignity.
Property is as important as life and liberty – and to protect their (poor) property is really to protect their life and their liberty.
Aspects of “Due Process”: The right to enjoy the faculties to which he has been endowed by his Creator, subje ct only to such restraints as are necessary for the common welfare.
The chief elements to the guarantee are the right to contract, the right to choose ones employment, the right to labor and the right to locomotion.
1.
Procedural due process – refers to the mode of procedure which government agencies must follow in the enforcement and application of laws.
2.
Substantive due process – prohibition against arbitrary laws.
Not only physical liberty but also intellectual liberty.
Right to property
Note: PROCEDURAL DUE PROCESS: 1. A law which hears before it condemns. 2. Due process of law contemplates notice and opportu nity to be heard before judgment is rendered affecting one’s person or property (Lopez v. Dir. of Lands) 3. Due process depends on circu mstances; it varie s with the subject matte r and the necessities of the situation.
Protected property include all kinds of property found in the Civil Code. It has been deemed to include vested rights.
Example: 1. The r ight t o l abor, s uch t hat a n e mployee m ay n ot b e removed without giving due process; and 2. Therighttopublicoffice. HEIRARCHY OF RIGHTS: PRIMACY OF HUMAN RIGHTS OVER PROPER TY RIGHTS The primacy of human rights over property rights are recognized. Because these freedoms are “delicate and vulnerable, as well as supremely precious in our society” and the “threat of sanctions may deter their exercise almost as potently as the actual application of sanctions,” they “need breathing space to survive,” permitting government regulation only “with narrow specificity.”
Property and property rights can be lost through prescription; but human rights are imprescriptible. If human rights are extinguished by the passage of time, then the Bill of Rights us a useless attempt to limit the power of government and ceases to be an efficacious shield against tyranny of officials, of majorities, of the influential and powerful, and of oligarchs.
life and liberty.
Property is not a basic right. Property has an intimate relation with
Requisites of PROCEDURAL due process: For JUDICIAL proceedings: CODE: C J N O H
1.
A court or tribunal clothed with judicial power to hear and determine the matter before it.
2.
Jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceedings.
3.
The defendant must be given notice and an opportunity to be
heard.
4.
Judgment must be rendered upon a lawful hearing.
For ADMINISTRATIVE proceedings: CODE: H E D S H I P
1.
The right to a hearing, which includes the right to present one’s case and submit evidence in support thereof.
2. 3. 4.
The tribunal must consider the evidence presented. The decision must have something to support itself. Evidence supporting the conclusion must be substantial.
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REVIEWER & MEMORY AID The decision must be based on the evidence presented at the hearing or at least contained in the record and disclosed to the parties affected.
6.
The tribunal or body or any of its judges must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision.
7.
The board or body should, in all controv ersial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved and the reasons for the decision rendered. Note: 1. What is required is not actual hearing, but a real opportunity to be heard. 2. The requirement of due process can be satisfied by subsequent due hearing. 3. Violation of due process: when same person reviews his own decision on appeal. 4. Notice and hearing are required in judicial and quasi-judicial proceedings, but not in the promulgation of general rule. For SCHOOL DISCIPLINARY proceedings: CODE: W A In A D P The student must be informed in cause of any accusation against them.
2.
writing of the nature and
The student shall have the right to against him, with the assistance of counsel if desired. The student has the right to be
answer the charges
informed of the evidence
against him. The student has the right to
adduce evidence in his own
behalf.
5.
The evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case.
6.
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Instances when hearings are NOT necessary:
1.
When administrative agencies are exercising their
quasi-
legislative functions.
2. 3. 4. 5. 6.
Abatement of nuisance per se . Granting by courts of provisional remedies . Cases of preventive suspension .
Removal of temporary employees in the government service. Issuance of warrants of distraint and/or levy by
the BIR
Commissioner.
7. 8.
Cancellation of the passport of a person charged with a crime. Issuance of sequestration orders (considered a provisional
remedy).
9.
Judicial order which prevents an accused from abroad in order to maintain the effectivity of the court’s jurisdiction.
travelling
10.
1.
4.
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3.
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The penalty imposed must be proportionate to the offense.
Note: 1. The school has a contractual obligation to afford its student s a fair opportunity to complete the course a student has enrolled for. 2. Exceptions: 3. Serious breach of discipline; or 4. Failure to maintain the required academic standard. 5. Proceedings in student disciplinary cases may be summary; cross-examination is not essential
Suspension of a bank’s operations by the Monetary Board upon a prima facie finding of liquidity problems in such bank. Note: 1. The right to counsel is a very basic requirement of substantive due process and has to be observed even in administrative and quasi-judicial bodies. 2. The right to appeal is a statutory privilegethat may be exercised only in the manner in accordance with law. Requisites of SUBSTANTIVE due process: CODE: I M
1.
The INTERESTS of the public generally, as distinguished from those of a particular class, requires the interference by the government and
2.
The MEANS employed are necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. Requirements of a valid ordinance: 1. 2. 3. 4. 5. 6.
Must not contravene the Constitution or any statute Must not be unfair or oppressive Must not be partial or discriminatory Must not prohibit, but may regulate trade Must be general and consistent with public policy Must not be unreasonable
When is a law VAGUE? 1. 2. meaning
When it lacks COMPREHENSIBLE STANDARDS That m en of o rdinary intelligence mu st n ecessarily GU ESS as t o it s
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And differ as to its application
Definition of “PROBABLE CAUSE”
For the issuance of a warrant of arrest:
Equal Protection of the law The equality that it guarantees is legal equality or the equality of all persons before the law. It does not demand absolute equality. It merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced.
Probable cause refers to such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested.
For the issuance of a search warrant: Requisites for valid classification for purposes of the equal protection clause The classification must:
CODE: SGEE
Probable cause would mean such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place to be searched.
1. 2. 3.
Rest on SUBSTANTIAL DISTINCTIONS NOT LIMITED TOEXISTING CONDITIONS only
Note: Probable cause for the issuance of a search warrant does NOT require that the probable guilt of a specific offender be established, unlike in the case of a warrant of arrest.
4.
APPLY EQUALLY to all members of the SAME CLASS.
Existence of probable cause “DETERMINED PERSONALLY BY THE JUDGE”
Be GERMANE to the purposes of the law
The judge is NOT required to personally examine the complainant and his witnesses. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause ( Soliven v. Makasiar, 167 SCRA 394). Section 2. The right of the people to be secure in their persons, houses, papers, and effec ts against unreasonable searc hes and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examin ation under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the person or things to be seized. General Rule: Search and seizures are unreasonable UNLESS authorized by a validly issued search warrant or warrant of arrest Requisites for a valid warrant: CODE:
1. 2.
To be sure, the Judge must go beyond the prosecutor’s certification and investigation report whenever necessary (Lim v. Felix). Procedure: 1. The judge personally evaluates the report and supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest or 2. If on the basis thereof, the judge finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at the conclusion as to the existence of probable cause.
P J E D
It must be issued upon PROBABLE CAUSE. The existence of probable cause is determined personally by the
JUDGE.
3.
The judge must EXAMINE UNDER OATH the complainant and the witnesses he may produce.
4.
The warrant must PARTICULARLYDESCRIBE the place to be searched and person or things to be seized.
Examination “UNDER OATH OR AFFIRMATION OF THE COMPLAINANT AND WITNESSES”
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1. The oat h required must refe r to the truth of the fac ts withi n the per sonal knowledge of the complainant or his witnesses because the purpose is to convince the judge of the existence of probable cause (Alvarez v. CFI, 64 Phil. 33). 2. The true test of sufficie ncy of an affidavi t to warrant the issuan ce of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon and affiant be h eld liable for the damages caused (Alvarez v. CFI).
A. This exception is based on exigency. Thus, if there is time to obtain a warrant in order to search the vehicle, a warrant must first be obtained. B. The search of a moving vehicle must be based on probable cause.
PARTICULARITY OF DESCRIPTION (SEARCH WARRANT)
A. The Tariffs and Customs Code authorizes persons having police authority under the Code to effect search and seizures without a search warrant to enforce customs laws. B. Exception: A se arch wa rrant is r equired fo r th e se arch of a dw elling house. C. Searches under this exception include searches at borders and ports of entry. Searches in these areas do not require the existence of probable cause
1.
A search warrant may be said to particularly describe the things to be seized when the descrip tion therein is as specific as the circumstances will ordinarily allowor
2.
When the description expresses a conclusion of fact – not of law – by which the warrant officer may be guided in making the search and seizure or
3. When the things described are limited to those which bear a direct relation to the offense for which the warrant is being issued ( Bache and Co. v. Ruiz, 37 SCRA 823). JOHN DOE WARRANT A “John Doe” warrant can satisfy the requirement of particularity of description if it contains a descriptio personae such as will enable the officer to identify the accused (People v. Veloso, 48 Phil. 159) GENERAL WARRANT A general warrant is one that does not allege any specific acts or omissions constituting the offense charged in the application for the issuance of the warrant. It contravenes the explicit demand of the Bill of Rights that the things to be seized be particularly described. VALID WARRANTLESS SEARCH 1. Search made as an incident to lawful arrest A. An officer making an arrest may take from the person arrested: i. Any money or property found upon his person which was used in the commission of the offense or ii. Wasthefruitthereofor iii. Which m ight f urnish t he p risoner w ith t he m eans o f committing violence or escaping or iv. Which may be used in evidence in the trial of the case B. The search must be made simultaneously with the arrest and it may only be made in the area within the reach of the person arrested 2. Search of moving vehicles
3. Seizure of goods concealed to avoid customs duties/authorized under the Tariffs and Customs Code
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REVIEWER & MEMORY AID When a person who is detained applies for bail, he is deemed to have waived any irregularity which may have occurred in relation to his arrest.
To be a valid warrantless search, the articles must be open to the eye
5. Hot pursuit
The peace officer comes upon them inadvertently.
A. The pursuit of the offender by the arresting officer must be continuous from the time of the commission of the offense to the time of the arrest.
5. Waiver of right A.
Requisites of a valid waiver:
i. Therightexists. ii. The p erson h ad a ctual o r c onstructive k nowledge o f t he existence of such right. iii. There is an actual intention to r elinquish such right. B. The r ight ag ainst un reasonable s earches an d se izures is a pe rsonal right. Thus, only the person being searched can waive the same. C. Waiver re quires a positive ac t fr om th e pe rson. Me re ab sence of opposition is not a waiver. D. The search m ade pursuant to th e waiver m ust be made within t he scope of the waiver. Note: 1. Checkpoints: as long as the vehicle is neither searche d nor its occupants subjected to a body search and the inspection of the vehicle is limited to a visual search = valid search V ( almonte V. De Villa) 2. Carroll rule: warr antless search of a vehicle that can be quick ly moved out of the locality or jurisdiction 3. The 1987 Constitution has returne d to the 1935 rule that warrants may be issued only by judges, but the Commissioner of Immigration may order the arrest of an alien in order to carry out a FINAL deportation order. VALID WARRANTLESS ARRESTS 1. When the person to be arrested has committed, is actua lly committing, or is about to commit an offense in the presence of the arresting officer. 2. When an offen se has in fact just bee n committed and the arrestin g officer has personal knowledge of facts indicating that the person to be arrested has committed it. 3. When the per son to be arreste d is a prisoner who has esca ped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transfe rred from one confinement to another. 4. Waiver of an invalid arrest:
B. There must be no supervening event which breaks the continuity of the chase.
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REVIEWER & MEMORY AID Prohibitions under Section 4
6. Stop and frisk 1. Prohibition against PRI OR RESTRAINT When a policeman observes suspicious activity which leads him to believe that a crime is about to be committed, he can investigate the suspicious looking person and may frisk him for weapons as a measure of self-protection. Should he find, however, a weapon on the suspect which is unlicensed, he can arrest such person then and there for having committed an offense in the officer’s presence.
2. Prohibition against SUBSEQUENT PUNISHMENT Prohibition against prior restraint
R.A. 4200 (Anti-Wiretapping Act)
1. Prior restraint means offic ial governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. 2. Examples/forms of prior restraint a. movie censorship b. judicial prior restraint = injunction against publication c. license taxes based on gross receipts for the privilege of engaging in the business of advertising in any newspaper d. flat license fees for the privilege of selling religious books
1. The law does not distinguish between a party to the private communication or a third person. Hence, both a party and a third person could be held liable under
When prohibition does not apply
Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidenc e obtained in violation of this or the preceding sectio n shall be inadmissible for any purpose in any proceedings.
R.A. 4200 if they commit any of the prohibited acts under R.A. 4200 (Ramirez v. Ca) 2. The use of a telephone extension to overhear a privat e conversation is not a violation of R.A. 4200 because it is not similar to any of the prohibited devices under the law. Also, a telep hone extension is not purposel y installed for the purpose of secretly intercepting or recording private communication. (Gaanan v. IAC, 145 SCRA 112) Types of communication protected: Letters, messages, telephone calls, telegrams and the like. Exclusionary rule: Any evidence obtained shall be inadmissible for any purpose in any proceeding. However, in the absence of governmental interference, the protection against unreasonable search and seizure cannot be extended to acts committed by private individuals. ( People v. Martin) Section 4. No law shall be passed abri dging the free dom of speech , of expression, or of the press, or of the right of the people peaceably to assemble and petition the government for redress of grievances. What are considered protected speech: Protected speech includes every form of expression, whether oral, written, tape or disc recorded. It includes motion pictures as well as what is known as symbolic speech such as the wearing of an armband as a symbol of protest. Peaceful picketing has also been included within the meaning of speech.
a. During a war. Ex. Government can prevent publication about the number/locations of its troops (Near v. Minnesota, 238 US 697) b. Obscene publications. Standards for allowable subsequent punishment TEST CRITERION There should be a RATIONAL CONNECTION between the speech and the evil apprehended. There should be a clear and present danger that the words when used under such circumstances are of such a nature as to create a CLEAR AND PRESENT DANGER that they will bring about the substantive evils that the State has a right to prevent. The courts should BALANCE the PUBLIC INTEREST served by legislation on one hand and the FREEDOM OF SPEECH (or any other constitutional right) on the other. The courts will then decide where the greater weight should be placed. Freedom of Speech The doctrine on freedom of speech was formulated primarily for the protection of “core” speech, i.e. speech which communicates political, social or religious ideas. These enjoy the same degree of protection. Commercial speech, however, does not. Commercial Speech 1. A communication which no more than proposes a commercial transaction. 2. To enjoy protection:
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It must not be false or misleading; and It should not propose an illegal transaction.
3. Even truthful and lawful commercial speech may be regulated if: a. Government has a substantial interest to protect; b. The regulation directly advances that interest; and
c.
It is not more extensive than is necessary to protect that interest. (Central Hudson Gas and Electric Corp. v. Public Service Commission of NY, 447 US 557) Unprotected Speech 1. LIBEL
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REVIEWER & MEMORY AID Right of Assembly and Petition 1. The standards for allowa ble impairment of speech and press also apply to the right of assembly and petition. 2. Rules on assembly in public places: i. Applicant should i nform t he licensing a uthority o f t he d ate, t he public place where and the time when the assembly will take place. ii. The application should be filed ahead of time to enable the public official concerned to appraise whether there are valid objections to the grant of the permit or to its grant, but in another public place. The grant or refusal should be based on the application of the Clear and Present Danger Test.
FAIR COMMENT (U.S. Rule). These are statements of OPINION, not of fact, and are not considered actionable, even if the words used are neither mild nor temperate. What is important is that the opinion is the true and honest opinion of the person. The statements are not used to attack personalities but to give one’s
iii. If the public authority is of the view that there is an imminent and grave danger of a substantive evil, the applicants must be heard on the matter.
opinion on decisions and actions.
must be transmitted to the applicants at the earliest opportunity so that they may, if they so desire, have recourse to the proper judicial authority.
B.
OPINIONS. With respect to public personalities (politicians, actors, anyone with a connection to a newsworthy event), opinions can be aired regarding their public actuations. Comment on their private lives, if not germane to their public personae, are not protected.
2. OBSCENIT Y
A.
Test for obscenity (Miller v. California) i. Whether t he a verage p erson, a pplying c ontemporary community standards would find that the work, taken as a whole, appeals to the prurient interest. ii. Whether t he w ork d epicts o r d escribes, i n a patently offensive way, sexual conduct, specifically defined by law. iii. Whether t he w ork, t aken a s a w hole, l acks s erious literary, artistic, political or scientific value. B. Procedure for seizure of allegedly obscene publications i. Authorities must apply for issuance of search warrant. ii. Court must be convinced that the materials are obscene. Apply clear and present danger test. iii. Judge will determine whether they are in fact “obscene”. iv. Judgewillissueasearchwarrant. v. Proper action should be filed under Art. 201 of the RPC. vi. Convictionissubjecttoappeal.
iv.
The decision of the public authority, whether favorable or adverse,
3. Rules on assembly in private properties: Only the consent of the owner of the property or person entitled to possession thereof is required. Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall for ever be allow ed. No relig ious test shal l be require d for the exercise of civil or political rights. Clauses under Section 5 1. Non-establishment clause 2. Free exercise of Religion
Distinction between the clauses School ( District v. Schempp, 374 US 203)
1.
The non-establishment clause does not depend upon any showing of direct governmental compulsion. It is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce non-observing individuals or not. The test of compliance with the non-establishment clause can be stated as follows: What are the purposes and primary effect of the enactment? If either is the advancement or inhibition of religion, the law violates the nonestablishment claus e. Thus, in order for a law to compl y with the non-
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establishment clause, two requisites must be met. First, it has a secular legislative purpose. Second, its primary effect neither advances nor inhibits religion. Persons entitled to the above rights
2.
The free exercise of religion clause withdraws from legislative power the exertion of any restra int on the free exe rcise of religion. In order to show a violation of this clause, the person affected must show the coercive effect of the legislation as it operates against him in the practice of his religion. While the freedom to believe (non-establishment) is absolute, the moment such belief flows over into action, it becomes subject to government regulation. Requisites for government aid to be allowable:
Section 6. The liber ty of abode and of changin g the same within the limits prescribed by law shall not be impaired except upon lawful order of the cour t. Neither shall the rig ht to travel be impair ed except in the interest of national securi ty, public safety or public health, as may be provided by law. Rights guaranteed under Section 6:
Curtailment of rights: OF
May be curtailed even by administrative officers (ex. passport office rs) in the interest of national security, public safety, or public health, as may be provided by law. Note: The right to travel and the liberty of abode are distinc t from the right to return to one’s country, as shown by the fact that the Declaration of Human Rights and the Covenant on Human Rights have separate guarantees for these. Hence, the right to return to one’s country is not covered by the specific right to travel and liberty of abode. (Marcos v. Manglapus) Section 7. The righ t of the peopl e to information on matters of publi c concern shall be recognized.
1.
Right to information on matters of public concern
2.
Right of access to official records and documents
The government has discretion with respect to the authority to determine what matters are of public concern and the authority to determine the manner of access to them.
1. 2. 3. 4. 5.
National security matters Intelligence information Trade secrets Banking transactions Diplomatic correspondence
6. Executive sessions 7. Closed door cabinet meetings 8. Supreme Court deliberations Section 8. The right of the people, including those employed in the public and private sec tors, to form unions, ass ociations, or soc iet ies for purposes not contrary to law, shall not be abridged.
1. Freedom to choose and change one’s place of abode. 2. Freedom to travel within the country and outside.
Rights guaranteed under Section 7
Discretion of government
Recognized restrictions on the right of the people to information:
1. It must have a secular legislative purpose; 2. It must have a primary effect that neither advances nor inhibits religion; 3. It must not require excessive entanglement with recipient institutions.
RIGHT MANNER CURTAILMENT Lawful order of the court and within the limits prescribed by law.
Only Filipino citizens.
The right to form associations shall not be impaired without due process of law and is thus an aspec t of the right of liberty . It is also an aspect of the free dom of contract. In addition, insofar as the associati ons may have for their object the advancement of beliefs and ideas, the freedom of association is an aspect of the freedom of speech and expression, subject to the same limitation. The right also covers the right not to join an association. Government employees have the right to form unions. They also have the right to strike, unless there is a statutory ban on them. Section 9. Private property shall not be taken for public use without just compensation. Who can exercise the power of eminent domain: 1) The national government a. Congress b. Executive, pursuant to legislation enacted by Congress 2) Local government units, pursuant to an ordinance enacted by their respect ive legislative bodies (under LGC) 3) Public utilities, as may be delegated by law.
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REVIEWER & MEMORY AID When is the exercise of the power of eminent domain necessary? It is only necessary when the owner does not want or opposes the sale of his property. Thus, if a valid contract exists between the government and the owner, the government cannot exercise the power of eminent domain as a substitute to the enforcement of the contract. Elements of the power of eminent domain 1) There is a TAKING o f private property 2) Taking is for PUBLIC USE 3) Payment of JUST COM PENSATION
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REVIEWER & MEMORY AID 2. The point of reference use in determining fair value is the value at the time the pro perty was taken . Thus, futur e poten tial use of the lan d is not considered in computing just compensation. Judicial review of the exercise of the power of eminent domain 1. To determine the adequacy of the compensation 2. To determine the necessity of the taking 3. To determine the "public use" character of the taking. However, if the expropriation is pursuant to a specific law passed by Congress, the courts cannot question the public use character of the taking. When municipal property is taken by the State: Compensation is required if the property is a patrimonial property, that is, property acquired by the municipality with its private funds in its corporat e or private capacity. However, if it is any other prope rty such a public buildi ngs or legua comunal held by the municipality for the State in trust for the inhabitants, the State is free to dispose of it at will.
"TAKING" A. Elements: CODE: E P A P O
Point of reference for valuating a piece of property:
1. 2.
General rule: The value must be that as of the time of the filing of the complaint for expropriation.
The expropriator enters the property The entrance must not be for a momentary period, i.e., it must be
permanent
3. 4. 5.
Entry is made under warrant or color of legal authority Property is devoted to public use
Utilization of the property must be in such a way as to oust the owner and deprive him of the beneficial enjoyment of his property. B. Compensable taking does not need to involve all the property interests which form part of the right of owner ship. When one or more of the prope rty rights are appropriated and applied to a public purpose, there is already a compensable taking, even if bare title still remains with the owner. "PUBLIC USE" 1. Public use, for purposes of expropriation, is synonymous with public welfare as the latter term is used in the concept of police power. 2.
Examples of public use include land reform and socialized housing.
"JUST COMPENSATION" 1. Compensation i s ju st i f th e ow ner re ceives a su m eq uivalent t o th e market value of his property. Market value is generally defined as the fair value of the property as between one who desires to purchase and one who desires to sell.
Exception: When the filing of the case comes later than the time of taking and meanwhile the value of the property has increased because of the use to which the expropriator has put it, the value is that of the time of the earlier taking. BUT if the value increased independently of what the expropriator did, then the value is that of the latter filing of the case.
Section 10. No law impairing the obligation of contracts shall be passed. When does a law impair the obligation of contracts: 1) If it changes the terms and conditions of a legal contract either as to the time or mode of performance 2) If it imposes new conditions or dispenses with those expressed 3) If it authorizes for its satisfac tion something differ ent from that provide d in its terms. A mere change in PROCEDURAL REMEDIES which does not change the substance of the contract, and which still leaves an efficacious remedy for enforcement does NOT impair the obligation of contracts.
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REVIEWER & MEMORY AID A valid exercise of police power is superior to obligation of contracts. Section 12. Rights of person under investigation for the commission of an offense. Rights of person under investigation for the Commission of an offense CODE: SCISI
1) Right to remain silent 2) Right to have competent and independent counsel, preferably of his own choice 3) Right to provided with the services of counsel if he cannot afford the services of one.
4) Right to be informed of these rights. When rights are available: 1) AFTER a person has been taken into custody or 2) When a person is otherwise deprived of his freedom of action in any significant way. 3) When the investigation is being conducted by the government (police, DOJ, NBI) with respect to a criminal offense. 4) Signing of arrest reports and booking sheets. When rights are not available: 1) During a poli ce line-up. Exception: Once there is a mov e among the investigators to elicit admissions or confessions from the suspect. 2) During administrative investigations. 3) Confessions made by an accused at the time he voluntarily surrendered to the police or outside the context of a formal investigation. 4) Statements made to a private per son.
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REVIEWER & MEMORY AID 1) All persons ACTUALLY DETAINED 2) shall, BEFORE CONVICTION 3) Be entitled to bail.
Who are not entitled to bail: 1) Persons charged with offenses PUNISHABLE by RECLUSION PERPETUA or DEATH, when evidence of guilt is strong 2) Persons CONVICTED by the trial cou rt. Bail is only discr etionary pend ing appeal. 3) Persons who are m embers of the AFP fa cing a court martial. Other rights in relation to bail. 1) The right to bail shall NOT be impai red even when the privil ege of the writ of habeas corpus is suspended. 2) Excessive bail shall not be req uired. Factors considered in setting the amount of bail: 1) Ability to post bail 2) Nature of the offense 3) Penalty imposed by law 4) Character and reputation of the accuse d 5) Health of the accused 6) Strength of the evidence 7) Probability of appearing at the trial 8) Forfeiture of previous bail bonds 9) Whether accused was a fugitive from justice when arrested 10)If accused is under bond in other cases Implicit limitations on the right to bail:
Exclusionary rule 1) Any conf ession or admission obtai ned in violation of this section shall be inadmissible in evidence against him (the accused). 2) Therefore, any evidence obtained by virtue of an illegally obtained confession is also inadmissible, being the fruit of a poisoned tree. Requisites of valid waiver: 1) Waiver should be made in WRI TING 2) Waiver should be made in the PRESENCE OF COUNSEL.
1. The person claiming the right must be in actual detention or custody of the law. 2. The cons titutional right is available only in criminal cases, not, e.g. in deportation proceedings. Note: 1. Right to bail is not available in the military. 2. Apart from bail, a person may attain provisional liberty through recognizance. Section 14. Rights of an accused Rights of a person charged with a criminal offense
Section 13. Right to bail Who are entitled to bail:
1. Right to due process of law 2. Right to be presumed innocent 3. Right to be heard by himself and counsel
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REVIEWER & MEMORY AID 4. Right to be informed of the nature and cause of the accusation against him 5. Right to have a speedy, impartial and public trial 6. Right to meet the witnesses face to face 7. Right to have compuls ory process to secure the attendan ce of witnesses and the production of evidence in his behalf “DUE PROCESS” This means that the accused can only be convicted by a tribunal which is required to comply with the stringent requirements of the rules of criminal procedure. “PRESUMPTION OF INNOCENCE” The Constitution does not prohibit the legislature from providing that proof of certain facts leads to a prima facie presumption of guilt, provided that the facts proved have a reasonable connection to the ultimate fact presumed. Presumption of guilt should not be conclusive.
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REVIEWER & MEMORY AID 2. Right to counsel (a) Right to counsel means the right to EFFECTIVE REPRESENTATION. (b) If the accused appears at arraignment without counsel, the judge must: (i) Inform t he a ccused t hat h e h as a ri ght t o a c ounsel b efore arraignment (ii) Ask the accused if he desires the aid of counsel (iii) If the accused desires counsel, but cannot afford one, a counsel de oficio must be appointed (iv) If the accused d esires to o btain his o wn counsel, the court must give him a reasonable time to get one. 3. Right to an impartial judge 4. Right of confrontation and cross-examination 5. Right to compulsory process to secure the attendance of witnesses
“RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION AGAINST HIM” Purposes of the right:
“RIGHT TO BE HEAR BY HIMSELF AND COUNSEL” The right to be heard includes the following rights:
1) To furnish the acc used with a descri ption of the charge agai nst him as will enable him to make his defenses 2) To avail himse lf of his conviction or acquittal against a further prosecution for the same cause 3) To inform the court of the facts al leged.
1. Right to be present at the trial A. The right to be pr esent co vers th e period fro m ARRAIGNMENT to PROMULGATION of sentence.
If the information fails to allege the material elements of the offense, the accused cannot be convicted thereof even if the prosecution is able to present evidence during the trial with respect to such elements.
B. After arraignment, trial may proceed notwithstanding absence of accused, provided 2 requisites are met. Note, that trial in absentia is allowed only if the accused has been validly arraigned.
The real nature of the crime charged is determined from the recital of facts in the information. It is not determined based on the caption or preamble thereof nor from the specification of the provision of law allegedly violated.
(i) (ii)
Accused has been duly notified; and His failure to appear is unjustifiable.
C.
The accused may waive the right to be present at the trial by not showing up. However, the court can still compel the attendance of the accused if necessary for identification purposes. EXCEPTIO N: If the accused, after arraignment, has stipulated that he is indeed the person charged with the offense and named in the information, and that any time a witness refers to a name by which he is known, the witness is to be understood as referring to him. D. While the acc used is ent itled to be pre sent du ring pro mulgation of judgement, the absence of his counsel during such promulgation does not affect its validity.
“RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL” Factors used in determining whether the right to a speedy trial has been violated 1) 2) 3) 4) 5)
Time expired from the filing of the information Length of delay involved Reasons for the delay Assertion or non-assertion of the right by the accused Prejudice caused to the def endant.
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Effect of dismissal based on the ground of violation of the accused’s right to speedy trial If the dismissal is valid, it amounts to an acquittal and can be used as basis to claim double jeopardy. This would be the effect even if the dismissal was made with the consent of the accused Remedy of the accused if his right to speedy trial has been violated He can move for the dismissal of the case. If he is detained, he can file a petition for the issuance of writ of habeas corpus.
Section 16. All perso ns shall have the right to a speedy dispos ition of their cases before all judicial, quasi-judicial, or administrative bodies. Distinction between Section 14 and Section 16 While the rights of an accused only apply to the trial phase of criminal cases, the right to a speedy disposition of cases covers ALL phases of JUDICIAL, QUASIJUDICIAL or ADMINISTRATIVE proceedings. Section 17. No person shall be compelled to be a witness against himself.
Definition of impartial trial When is a question incriminating: The accused is entitled to the “cold neutrality of an impartial judge”. It is an element of due process. Definition of public trial The attendance at the trial is open to all irrespective of their relationship to the accused. However, if the evidence to be adduced is “offensive to decency or public morals”, the public may be excluded.
A question tends to incriminate when the answer of the accused or the witness would establish a fact which would be a necessary link in a chain of evidence to prove the commission of a crime by the accused or the witness. Distinction between an accused and an ordinary witness
The right of the accu sed to a public tria l is not violated if the hear ings are conducted on Saturday s, either with the consent of the accused or if failed to object thereto.
1. An accused can refuse to take the wit ness stand by invo king the right agai nst self-incrimination. 2. An ordinary witness cannot refuse to take the stand. He can only refuse to answer specific questions which would incriminate him in the commission of an offense.
“RIGHT TO MEET WITNESS FACE TO FACE”
Scope of right
Purposes of the right:
1. What is PROHIBITED is the use of phys ical or moral com pulsion to extort communication from the witness or to otherwise elicit evidence which would not exist were it not for the actions compelled from the witness. 2. The right does NOT PROHIBIT the examination of the body of the accused or the use of findings with respe ct to his body as physical evidence. Hence, the fingerprinting of an accused would not violate the right against self-incrimination. However, obtaining a sample of the handwriting of the accused would violate this right if he is charged for falsification. 3. The acc used canno t be compelled to produce a private docum ent in his possession which might tend to incriminate him. However, a third person in custody of the document may be compelled to produce it.
1. To afford the accused an opportunity to cross-examine the witness 2. To allow the judge the opportunity to observe the deportment of the witness Failure of the accused to cross-examine a witness If the failure of the accused to cross-examine a witness is due to his own fault or was not due to the fault of the prosecution, the testimony of the witness should be excluded. When the right to cross-examine is demandable
When the right can be invoked: It is demandable only during trials. Thus, it cannot be availed of during preliminary investigations. Principal exceptions to the right of confrontation 1. The admissibility of “dying dec larations” 2. Trial in absentia under Section 14(2) 3. With respect to child testimony
1. In criminal cases 2. In administrative proceedings if the accused is liable to a penalty (Ex. Forfeiture of property) Who can invoke the right:
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REVIEWER & MEMORY AID Section 20. No person shall be imprisoned for debt or non-payment of a poll tax. Definition of debt under Section 20
Section 18. Right against involuntary servitude Definition of involuntary s ervitude It is every condition of enforced or compulsory service of one to another no matter under what form such servitude may be disguised. Exceptions: 1. Punishment for a crime for which the party has been duly convicted 2. Personal military or civil service in the interest of national defense 3. Return to work order issued by the DOLE Secretary or the President
1) Debt refers to a CONTRACTUAL obligation, whether express or implied, resulting in any liability to pay money. Thus, all other types of obligations are not within the scope of this prohibition. 2) Thus, if an accused fails to pay the fine imposed upon him, this may result in his subsidiary imprisonment because his liability is ex delicto and not ex contractu. 3) A FRAUDULENT debt may result in the imprisonment of the debtor if: A. B.
The fraudulent debt constitutes a crime such as estafa and The accused has been duly convicted.
Section 21. No person shall be twice put in jeopardy of punishment for the sam e offense. If an act pun ish ed by a law and an ord inance, Section 19. Prohibition against cruel, degrading and inhuman punishment
convictio n or acquittal under either shall prosecution for the same act.
constitute a bar to another
Requisites for a valid defense of double jeopardy: CODE: ATS When is a penalty “cruel, degrading and inhuman”? 1. A penalty is cruel and inhum an if it involves torture or linge ring suffering. Ex. Being drawn and quartered. 2. A penalty is degrading if it exposes a person to public humiliation. Ex. Being tarred and feathered, then paraded throughout town. Standards used: 1. The punishment must not be so sever e as to be degrading to the dign ity of human beings. 2. It must not be applied arbitrarily. 3. It must not be unacceptable to contemporary society 4. It must not be excessive, i.e. it must serve a penal purpose more effe ctively than a less severe punishment would.
1) First jeopardy must have attached prior to the second. 2) The first jeopardy must have terminated. 3) The second jeopardy must be for the same offense as that in the first. When does jeopardy ATTACH: st (1requisite) CODE: CICAV 1) A person is charged 2) Under a complaint or informat ion sufficient in form and substance to susta in a conviction 3) Before a court of compete nt jurisdiction 4) After the person is arraigned 5) Such person enters a valid plea.
Excessive fine A fine is excessive, when under any circumstance, it is disproportionate to the offense. Note: Fr. Bernas says that the accused cannot be convicted of the crime to which the punis hment is attached if the court finds that the punish ment is cruel, degrading or inhuman. Reason: Without a valid penalty, the law is not a penal law.
When does jeopardy NOT attach: 1) If information does not charge any offense 2) If, upon pleading guilty , the accused presents evidence of complete selfdefense, and the court thereafter acquits him without entering a new plea of not guilty for accused. 3) If the information for an offense cognizable by the RTC is filed with the MTC. 4) If a complaint filed for preliminary investigation is dismissed.
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When does first jeopardy TERMINATE: ND (2REQUISITE) 1) 2) 3) 4)
POLITICAL
Acquittal Conviction Dismissal W/O the EXPRESS consent of the accused Dismissal on the merits.
Examples of termination of jeopardy: 1) Dismissal based on violation of the rig ht to a speedy tr ial. This amounts to an acquittal. 2) Dismissal based on a demurrer to evidence. This is a dismissal on the merits. 3) Dismissal on motion of the prosecution, subsequent to a motion for reinvestigation filed by the accused. 4) Discharge of an accused to be a state witness. This amounts to an acquittal.
B. The fa cts constituting the gr aver offense be came kn own or we re discovered only after the filing of the former information. C. The plea of guilty to the lesser offense was made without the consent of the fiscal and the offended party.
2) Under (1)(b), if the facts could have bee n discovered by the prosecu tion but were not discovered because of the prosecution’s incompetence, it would not be considered a supervening event. Effect of appeal by the accused: If the accused appeals his conviction, he WAIVES his right to plead double jeopardy. The whole case will be open to review by the appellate court. Such court may even increase the penalties imposed on the accused by the trial court.
When can the PROSECUTION appeal from an order of dismissal: Section 22. No ex post facto law or bill of attainder shall be enacted. 1) If dismissal is on motion of the accused.
Exception:
If motion is based on
violation of the right to a speedy trial or on a demurrer to evidence. 2) If dismissal does NOT amount to an acquittal or dismissal on the merits 3) If the question to be passed upon is purely legal. 4) If the dismissal violates the right of due process of the prosecution. 5) If the dismissal was made with grave abuse of discretion. st What are considered to be the “SAME OFFENSE”: (under the sentence 1 of Section 21)
1) Exact identity between the offenses charged in the first and second cases. 2) One offense is an attempt to commit or a frustration of the other offense. 3) One offense is necessarily included or necessary includes the other.
Note: where a single act results in the violation of different laws or different provisions of the same law, the prosecution for one will not bar the other so long as none of the exceptions apply. Definition of double jeopardy nd (2sentence of Sec. 21) Double jeopardy will result if the act punishable under the law and the ordinance are the same. For there to be double jeopardy, it is not necessary that the offense be the same.
Definition of ex-post facto law. 1) One which makes an acti on done befor e the passing of the law, and which was innocent when done, criminal, and punishes such action. 2) One which aggr avates the crime or makes it greater than when it was committed. 3) One which changes the punishment and inflicts a greater punishment than that which the law annexed to the crime when it was committed. 4) One which alters the legal rules of evide nce and receives less testimony than the law required at the time of the commission of the offense in order to convict the accused. 5) One which assumes to regulat e civil rights and reme dies only BUT, in effec t, imposes a penalty or deprivation of a right, which, when done, was lawful. 6) One which deprives a person accus ed of a crime of some lawful prote ction to which he has become entitled such as the protection of a former conviction or acquittal, or a proclamation of amnesty.
Note: laws.
The prohibition on ex post facto laws only applies to retrospective PENAL
Definition of BILL OF ATTAINDER
SUPERVENING FACTS
1) A bill of attainder is a LEGISLATIVE act which inflicts punishment W/O JUDICIAL trial.
1) Under the Rules of Court, a conviction for an offense will not bar a prosecution for an offense which necessarily includes the offense charged in the former information where:
2) The bill of attainder doe s not nee d to be directed at a specifically name d person. It may also refer to easily ascertainable members of a group in such a way as to inflict punishment on them without judicial trial.
A. The graver offense developed due to a supervening fact arising from the same act or omission constituting the former charge.
3) Elements of the bill of attainder
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REVIEWER & MEMORY AID A. TheremustbeaLAW. B. The law imposes a P ENAL b urden on a N AMED INVIDIDUAL/EASILY ASCERTAINABLE MEMBERS of a GROUP. C. The penal burden is imposed DIRECTLY by the LAW W/O JUDICIAL trial. ARTICLE IV – CITIZENSHIP
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REVIEWER & MEMORY AID Natural-born citizens: 1) Citizens of the Phili ppines from birth who do not need to perf orm any act to acquire or perfect their Philippine citizenship. 2) Those who elec t Philippine citizenship under Art. IV, Sec. 1(3) of 1987 Constitution.
Who are citizens of the Philippines?
Marriage of Filipino with an alien:
1) Those who are citizens of the Philippines at the time of the adoption of the 1987 Constitution 2) Those whose fathers or mothers are citizens of the Philippines. 3) Those born before Janu ary 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority. 4) Those who are naturalized in accordance with law.
1) General Rule: The Filipino RETAINS Philippine citizenship 2) Exception: If, by their act or omission they are deemed, under the law, to have
Modes of acquiring citizenship:
1) Voluntarily obtaining fore ign passpor t 2) Pledging allegiance to another country (ex. by becoming a naturalized citizen of another country)
1) Jus Soli – acquisition of citizenship on the basis of place of birth 2) Jus Sanguinis – acquisition of citizenship on the basis of blood relationship 3) Naturalization – the legal act of adopting an alien and cloth ing him with the privilege of a native-born citizen.
renounced it. Examples of renunciation of Philippine citizenship:
Re-acquisition of citizenship
Note: The Philippines follows (2) and (3)
Natural-born Filipinos who are deemed to have lost their citizenship may re-acquire the same via repatriation proceedings. This involves taking an oath of allegiance and filing the same with the civil registry.
Election of citizenship under the 1987 Constitution:
How may one lose citizenship:
Prior to the 1973 Constitution, if a Filipina married an alien, she lost her Filipino citizenship. Hence, her child would have to elect Filipino citizenship upon reaching the age of majority. Under the 1973 Constitution, however, children born of Filipino mothers were already considered Filipinos. Therefore, the provision on election of citizenship under the 1987 Constitution only applies to those persons who were born under the 1935 Con stitution. In order for the children to elect Fili pino citizenship, the mothers must have been Filipinos at the time of their marriage. So, if your mother was a Filipina who married an alien under the 1935 constitution and you were born before January 17, 1973, you can elect Filipino citizenship upon reaching the age of majority.
1. 2. 3. 4. 5.
By naturalization in a fore ign country By express renunciation of citizenship By subscribing oath or allegiance to a foreign Constitution By serving in the armed forces of an enemy country By being a deserter of the armed forces of one’s country
How may one reacquire citizenship: 1. By direct act of Congress 2. By naturalization 3. By repatriation
When must the election be made: ARTICLE V – SUFFRAGE
The election must be made within a reasonable period after reaching the age of majority. Qualifications: Effects of naturalization : 1) The legitimate minor children of the naturalized father become Filipinos as well. 2) The wife also beco mes a Filipino citizen, provided that she does not have any disqualification which would bar her from being n aturalized.
1) Citizen of the Philippines 2) Not Disqualified by law 3) At least 18 years old
CODE: CD18RR
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REVIEWER & MEMORY AID 4) Resident of the Philippines for at least 1 year 5) Resident of the place wherein he/she proposes to vote for at least 6 months immediately preceding the election.
Note: NO literacy, property or other substantive requirement can be imposed on the exercise of suffrage. Residency requirement
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REVIEWER & MEMORY AID Note: The original legislative power of the people is exercised via initiative and referendum. In this manner, peop le can directl y propose and enact laws, or approve or reject any act or law passed by Congress or a local government unit. Limits on the legislative power of Congress: 1. Substantive – limitations on the conte nt of laws. E.g. no law sha ll be passed establishing a state religion.
Residency, under Article V has 2 senses: 1. DOMICILE – This is in reference to the 1 year residency requirement in the Philippines. 2. TEMPORARY RESIDENCE – This is in reference to the 6 month reside ncy requirement in the place where one wants to vote. In this case, residence can either mean domicile or temporary residence.
2. Procedural – limitations on the manner of passing laws . E.g. genera lly a bill must go through three readings on three separate days. Note: Provided that these two limitations are not exceeded, Congress’ legislative power is plenary.
Disqualifications: 1) Any person sentenced by final judgme nt to imprisonment of not less than 1 year, which disability has not been removed by plenary pardon. 2) Any person adjudged by final judgment of having violated his allegiance to the Republic of the Philippines. 3) Insane or feeble-minded persons.
Note Under the 2nd disqualification, the right to vote is automatically re-acquired upon the expiration of 5 years after the service of sentence. ARTICLE VI – THE LEGISLATIVE DEPARTMENT SEC. 1. The legi slative power shal l be vested in the Cong ress of the Ph ilippi nes, wh ic h sh all co ns is t of a Se nate an d a Ho use of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.
Corollaries of legislative power: 1. Congress cannot pas s irrepealable laws. Since Congress’ powers are ple nary, and limited only by the Constitution, any attempt to limit the powers of future Congresses via an irrepealable law is not allowed. 2. Congress, as a general rul e, cannot delegate its legislative power. Since the people have already delegated legislative power to Congress, the latter cannot delegate it any further. EXCEPTIONS: 1. Delegation of legislative power to local government units; 2. Instances when the Consti tution itself allows for such delegati on [see Art. VI Sec. 23(2)] What may Congress delegate:
Definition of Legislative Power: The authority to make laws and to alter or repeal them.
Congress can only delegate, usually to administrative agencies, RULE-MAK ING POWER or LAW EXECUTION. This involves either of two tasks for the administrative agencies:
Classification of legislative power: (O De CO)
1. 2.
Original – Possessed by the people in their sovereign capacity
3. 4.
Constituent – The power to amend or revise the Constitution
Delegated – Possessed by Congress and other legislative bodies by virtue of the Constitution Ordinary – The power to pass ordinary laws
1. “Filling up the details” on an otherwise complete statute; or 2. Ascertaining the facts necessary to br ing a “contingent” law or provision into actual operation. Sections 2-4. SENATE Composition
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REVIEWER & MEMORY AID 24 senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law. Qualifications 1. Natural-born citizen; 2. At least 35 years old on the day of election; 3. Able to read and write; 4. A registered voter; and 5. Philippine resident for at least 2 years immediately preceding the day of the election. Note: The qualifications of both Senators and Members of the House are limited to those provided by the Constitution. Congress cannot, by law, add or subtract from these qualifications. Term of Office: 6 years, commencing (unless otherwise provided by law) at noon, 30 June next following their election. Term Limitations: 1. No Senator shall serve for more than 2 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.
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Sections 5-7. HOUSE OF REPRESENTATIVES
No member of the House of Representatives shall serve for more than three (3) consecutive terms.
Composition:
Distinctions between Term and Tenure
1. Not more than 25 members, unless otherwise fixed by law; and 2. Party-list Representatives
1. Definition
Election of 250 members 1. They shall be elected from legislative districts apportioned among the provinces, cities and the Metropolitan Manila area. 2. Legislative districts are apport ioned in accordance with the number of inhabitants of each area and on the basis of a uniform and progressive ratio. a. Each district shall comprise, as f ar as pr acticable, contiguous, compact and adjacent territory; b. Each city with at least 250,000 inhabitants will be entitled to at least one representative.
a. Terms me ans th e pe riod d uring w hich th e elected of ficer is l egally authorized to assume his office and exercise the powers thereof. b. Tenure is the actual period during which such officer actually holds his position. 2. Limitation/Possible Reduction a. Term CANNOT be reduced. b. Tenure MAY, by law, be limited. Thus, a provision which considers an elective office automatically vacated when the holder thereof files a certificate of candidacy for another elective office (except President and Vice-President) is valid, as it only affects the officers tenure and NOT his constitutional term.
c. Each province will have at least one representative. d. Legislative districts sh all be r e-apportioned by C ongress within 3 y ears after the return of each census. According to Jack , however, whil e the apportionment of districts is NOT a political question, the judiciary CANNOT compel Congress to do this. e. The s tandards us ed to de termine th e ap portionment o f le gislative districts is meant to prevent ‘gerrymandering’, which is the formation of a legislative district out of separate territories so as to favor a particular candidate or party.
Party-List Representatives
Qualifications
3. Mechanics of the party-l ist system: a. Registered organizations submit a list of candidates in order of priority. b. During the elections, these organizations are voted for at large. c. The nu mber of s eats th at ea ch or ganization ge ts ou t of t he 2 0% allotted to the system depends on the number of votes they get.
1. Natural born citizen of the Phil ippines; 2. At least 25 years old on the day of the election; 3. Able to read and write; 4. Registered voter in the district he seeks to represent; and 5. A resident of such district for at least one year immediately preceding the day of the election.
1. Constitute 20% of the total number of representatives, including those unde r the party-list system (thus a maximum of 50 party-list members of the House) 2. However, for 3 consecutive terms from 2 February 1987 (i.e., the 1987-92, 9295 and 95-98 terms), 25 seats shall be allotted to sectoral representatives. Under Art. XVIII, Sec. 7, the sectoral representatives are to be appointed by the President until legislation otherwise provides.
4. Qualifications
Term of Office
a. b. c.
Natural born citizen of the Philippines At least 25 years of age on the day of the election Able to read and write
1. Each member of the House shall be elected for a term of three (3) years which shall commence (unless otherwise provided for by law) at noon on 30 June next following their election. 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. In ca se of vaca nc y in th e Se nate or in th e Ho use of Representatives, a SPECIAL ELECTION may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term. SEC. 10. Salaries of Senators and Members of the House
Term Limitations Determination of Salaries:
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REVIEWER & MEMORY AID Salaries of Senators and Members of the House of Representatives shall be determined by law. Rule on increase in s alaries: No increase in their salaries shall take effect until after the E XPIRATION OF THE FULL TERM (NOT TENURE) OF ALL THE MEMBERS OF THE SENATE AND THE HOUSE OF REPRESENTATIVES APPROVING SUCH INCREASE.
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REVIEWER & MEMORY AID SEC. 12. All Memb ers of the Senate and the House of Repr esentatives shall, upon assumption of office, make a full disclosure of their financial and busin ess inter ests. They shal l notify the Hou se concer ned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors. SEC. 13-14: CONGRESSIONAL DISQUALIFICATIONS: Disqualifications:
Note: Since the Constitution ‘provides for rules on “salaries” and not on ‘emoluments,’ our distinguished legislators can appropriate for themselves other sums of money such as travel allowances, as well as other side ‘benefits.’ SEC. 11: CONGRESSIONAL IMMUNITIES
D ISQU A L IF IC A T ION 1. Senator/Member of the House cannot hold any other office or employment in the Government or any subdivision, agency or Instrumentality thereof, including GOCCS or their subsidiaries.
W HENA P P LIC A BL E During his term. If he does so, he for
1.) Immunity from arrest: a. Legislators are privileged from arrest while Congress is “in session” with respect to offenses punishable by up to 6 years of imprisonment. Thus, whether Congress is in regular or special session, the immunity from arrest applies. b. If Congress is in recess, members thereof may be arrested. c. The immunity is only with respect to arrests and NOT to prosecution for criminal offenses.
2. Legislators cannot be appointed to any office.
IF the office was created or the thereof increased during the term for elected.
2.) Legislative privilege: a. No member shall be q uestioned or he ld liable in an y forum other than his/her respective Congressional body for any debate or speech in the Congress or in any Committee thereof.
b.
Limitation on the privilege:
(i) Protection is only against forum other than Congress itself. Thus for inflammat ory remarks which are otherwise privileged, a member may be sanctioned by either the Senate or the House as the case may be. (ii) The ‘speech o r d ebate’ m ust b e m ade in p erformance o f t heir duties as members of Congress. This includes speeches delivered, statements made, votes cast, as well as bills introduced, and other activities done in performance of their official duties. (iii) Congress need NOT b e in session when the utterance is made, as long as it forms part of ‘legislative action,’ i.e. part of the deliberative and communicative process used to participate in legislative proceedings in consideration of proposed legislation or with respec t to other matter s with Congress’ jurisdiction.
3. Legislators cannot personally appear as counsel before any court of justice, elector al tribunal, quasi-judicial and administrative bodies.
4. Legislators cannot be financially interested directly or indirectly in any contract with or in any franchise, or special privilege granted by the Government, or any subdivision, agency or instrumentality thereof, including any GOCC or its subsidiary.
5. Legislators cannot intervene in any matter before any office of the government.
SEC. 15: REGULAR AND SPECIAL SESSIONS Regular Sessions:
During his term of office.
During his term of office.
When it is for his pecuniary benefit may be called upon to act on account
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REVIEWER & MEMORY AID 1.) Congress convenes once every year on the 4 th Monday of July (unless otherwise provided for by law) 2.) Continues in session for as long as it sees fit, until 30 days before the opening of the next regular session, excluding Saturdays, Sundays, and legal holidays.
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REVIEWER & MEMORY AID 1.) The Journal is conclusive upon the courts. 2.) BUT an enrolled bill prevails over the contents of the Journal. 3.) An enrolled bill is the offic ial copy of approved legislation and bears the certifications of the presiding officers of each House. Thus where the certifications are valid and are not withdrawn, the contents of the enrolled bill are conclusive upon the courts as regards the provision of that particular bill. Adjournments:
Special Sessions: Called by the President at any time when Congress is not in session. SEC. 16. Officers: 1.) Senate President; 2.) Speaker of the House; and 3.) Each House may choose such other officers as it may deem necessary. Election of Officers By a majority vote of all respective members. Quorum to do business: 1. Majority of each House shall constitute a quorum. 2. A smaller number may adjourn from day to day and may compel the attendance of absent members. 3. In computing a quorum, members who are outside the country and thus outside of each House’s coercive jurisdiction are not included. Internal Rules: 1. Each House shall determine its own procedural rules. 2. Since this is a power vested in Congress as part of its inhere nt powers, under the principle of separation of powers, the courts cannot intervene in the implementation of these rules insofar as they affect the members of Congress. 3. Also, since Congress has the power to make these rules, it also has the power to ignore them when circumstances so require. Discipline: 1.) Suspension a. Concurrence of 2/3 of ALL its members and b. Shall not exceed 60 days. 2.) Expulsion a. Concurrence of 2/3 of ALL its members. Congressional Journals and Records:
1.) Neither House can adjourn for more than 3 days during the time Congress is in session without the consent of the other House. 2.) Neither can they adjourn to any other place than that where the two houses are sitting, without the consent of the other. Section 17: THE ELECTORAL TRIBUNAL The Senate and the House shall each have an Electoral Tribunal which shall be composed of: 1. 3 Supreme Court Justices to be designated by the Chief Justice; & 2. 6 Members of the Senate or House, as the case may be. The senior Justice in the Electoral Tribunal shall be its Chairman.
Note: The congressional members of the ET’s shall be chosen on the basis of proportional representation from the political parties and party-list organizations. Jurisdiction: 1.) Each ET shall be the sole judge of all CONTESTS relating to the election, returns, and qualific ations of their respect ive members. This includ es determining the validity or invalidity of a proclamation declaring a particular candidate as the winner. 2.) An ‘election contest’ is one where a defeated candidate challenges the qualification and claims for himself the seat of a proclaimed winner. 3.) In the absence of an election contest, the ET is without jurisdiction. However, the power of each House to expel its own members or even to defer their oathtaking until their qualifications are determined may still be exercised even without an election contest. Issues regarding the Electoral Tribunals: 1.) Since the ET’s are independent constitutional bodies, independent even of the House from which the members are respectively taken, neither Congress nor the Courts may interfere with procedural matters relating to the functions of the ET’s, such as the setting of deadlines or filing their election contests with the respective ETs.
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REVIEWER & MEMORY AID 2.) The ETs being independent bodies, its members may not be arbitrarily removed from their positions in the tribunal by the parties which they represent. Neither may they be removed for not voting according to party lines, since they are acting independently of Congress.
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REVIEWER & MEMORY AID 3.) Appointments extended by the President to the above-m entioned positions while Congress is not in session shall only be effective until disapproval by the CA or until the next adjournment of Congress.
3.) The mere fact that the members of either the Senate or the House sitting on the ET are those which are sought to be disqualified due to the filing of an election contest against them does not warrant all of them from being disqualif ied from sitting in the ET. The Constitution is quite clear that the ET must act wit h both members from the SC and from the Senate or the House. If all the legisla tormembers of the ET were to be disqualified, the ET would not be able to fulfill its constitutional functions.
Meetings of the CA
4.) Judicial review of decisions of the ETs may be had with the SC only insofar as the decision or resolution was rendered without or in excess of jurisdiction or with grave abuse of discretion constituting denial of due process.
Note: The ET and the CA shall be constituted within 30 days after the Senate and the House of Representative shall have been organized with the election of the President and the Speaker.
Section 18: THE COMMISSION ON APPOINTMENTS
Sections 21-22: LEGISLATIVE INQUIRIES
Composition:
Scope:
1.) Senate President as ex-officio chairman; 2.) 12 Senators; and 3.) 12 Members of the House.
1. Either Hous e or any of their committees may con duct inquires ‘in aid of legislation’. 2. “In aid of legislation” does not mean that there is pending legislation regarding the subject of the inquiry. In fact, investigation may be needed for purposes of proposing future legislation. 3. If the stated purpose of the invest igation is to determine the exist ence of violations of the law, the investigation is no longer ‘in aid of legislation’ but ‘in aid of prosecution’. This violates the principle of separation of powers and is beyond the scope of congressional powers.
Note: The 12 Senators and 12 Representatives are elected on the basis of proportional representation from the political parties and party-list organizations. Voting/Action 1.) The chairman shall only vote in case of a tie. 2.) The CA shall act on all appoi ntments within 30 session days from their submission to Congress. 3.) The Commission shall rule by a majority vote of all the Members.
Jurisdiction 1.) CA shall confirm the appointments by the President with respect to the following positions: a. Heads of t he Executive Departments (except if it i s the Vice-President who is appointed to the post). b. Ambassadors, other public ministers or consuls. c. Officers of the AFP from the rank of Colonel or Naval Captain: and d. Other officers whose appointments are vested in him by the Constitution (e.g. COMELEC members). 2.) Congress CANNOT by law prescribe that the appointme nt of a person to an office created by such law shall be subject to confirmation by the CA.
1.) CA meets only while Congress is in session. 2.) Meetings are held eith er at the call of the Chairma n or a majority of all its members. 3.) Since the CA is also an independent constitutional body, its rules of procedure are also outside the scope of congressional powers as well as that of the judiciary.
Enforcement: 1. Since experience has shown that mere requests for information does not usually work, Congress has the inherent power to punish recalc itrant witnesses for contempt, and may have them incarcerated until such time that they agree to testify. 2. The continuance of such incarceration only subsists for the lifetime, or term, of such body. Once the body ceases to exist after its final adjournment, the power to incarcerate ceases to exist as well. Thus, each ‘Congress’ of the House lasts for only 3 years. But if one is incarcerated by the Senate, it is indefinite because the Senate, with its staggered terms, is a continuing body. 3. BUT, in order for a witness to be subject to this incar ceration, the prim ary requirement is that the inquiry is within the scope of Congress’ powers. i.e. it is in aid of legislation. 4. The materiality of a question is determined not by its connection to any actually pending legislation, but by its connection to the general scope of the inquiry.
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Limitations: 1. The inquiry must be conduct ed in accordan ce with the ‘duly publi shed rules of procedure’ of the House conducting the inquiry; and 2. The righ ts of persons appearing in or affec ted by such inqu iries shall be respected. Ex. The right against self-incrimination. Appearance by department heads before Congress: 1.
Since members of the executive department are co-equals with those of the
legislative department, under the principle of separations of powers, department heads cannot be compelled to appear befo re Congr ess. Neither may the department heads impose their appearance upon Congress. 2.
Department heads may app ear before Congress in the follow ing instances:
a. Upon their own initiative, with the consent of t he President (and that of the House concerned); or b. 3. a. b.
Upon the request of either House (which cannot compel them to attend) The appearance will be conducted in EXECUTIVE SESSION when: Required by the security of state or required by public interest; and When the President so states in writing
Sections 23-24. DECLARATION OF WAR/EMERGENCY POWERS Vote requirement: (to declare the existence of a state of war) 1. 2/3 of both Houses, in joint se ssion 2. Voting sep arately Emergency powers:
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5. The power to punish for contemp t is inherent in Congre ss and this power is sui generis. It cannot be exerc ised by local gove rnment units unless they are expressly authorized to do so.
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3. Expiration of emergency powers a. By resolution of Congress or b. Upon the next adjournment of Congress Sections 24-27, 30-31 LEGISLATION Bills that must srcinate from the House of Representatives (Section 24) CODE: A R T Pu Lo P
1. 2. 3. 4. 5. 6.
Appropriation bills Revenue bills Tariff bills Bills authorizing the increase of public debt Bills of local application Private bills
Note: The Senate may, however, propose or concur with amendments. Appropriation bills 1. The primary and specif ic aim of an appropriation bill is to appropriate a sum of money from the public treasury. 2. Thus, a bill enacting the budget is an appropriations bill. 3. BUT: A bill creating a new of fice, and appropr iating funds ther efor is NOT an appropriation bill. Revenue Bill 1. A revenue bill is one specif ically designed to raise money or rev enue through imposition or levy. 2. Thus, a bill introducing a new tax is a revenue bil l, but a provision in, for instance, the Videogram Regulatory Board law imposing a tax on video rentals does not make the law a revenue bill. Bills of local application
1. During times of war or other nationa l emergency, Congress may, BY LAW, authorize the President to exercise powers necessary and proper to carry out a declared national policy.
A bill of local application, such as one asking for the conversion of a municipality into a city, is deemed to have srcinated from the House provided that the bill of the House was filed prior to the filing of the bill in the Senate even if, in the end, the Senate approved its own version.
2. Limitations: a. Powers will be exercised for a limited period only; and
Limitations:
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REVIEWER & MEMORY AID 1. For appropriation bills: a. Congress cannot increase the appropriations recommended by the President for the operation of the Government as specified in the budget.
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REVIEWER & MEMORY AID a. Every bill sha ll em brace only one (1 ) sub ject, as exp ressed in th e tit le thereof i.
As a mandatory requirement
b. Each provision or enactment in the General Appropriations Bill must relate ii. specifically to some particular appropriation therein and any such provisio n or enactment must be limited in its operation to the appropriation to which it relates.
The title does not have to be a complete catalogue of everything stated in the bill. It is sufficient if the title expre sses the general subje ct of the bill and all the provisions of the statute are germane to that general subject.
c. The procedure in approving appropriations for Congress shall strictly follow iii. the procedure for approving appropriations for other departments and agencies.
A bill which repeals legislation regarding the subject matter need not state in the title that it is repealing the latter. Thus, a repealing clause in the bill is considered germane to the subject matter of the bill.
d. A special appropriations bil l must spe cify the pu rpose for which it is intended and must be supported by funds actually available as certified by the National Treasurer or to be raised by a corresponding revenue proposal therein. e. i.
Transfer of appropriations: Rule:
No law s hall b e p assed a uthorizing a ny t ransfer o f
appropriations ii. BUT the following m ay, BY LAW, be authorized to AUGMENT any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations President President of the Senate Speaker of the House of Representatives Chief of Justice of the Supreme Court Heads of the Constitutional Commissions f. i. ii. iii.
Discretionary funds appropriated for particular officials shall be: Disbursed only for public purposes; Should b e supported b y appropriate vouchers; and Subject to guidelines as may be prescribed by law.
b.
Readings
1. In o rder to b ecome a la w, each bill must p ass t hree (3) readings in both Houses. 2. General ru le: Ea ch re ading s hall be h eld o n se parate d ays & pr inted copies thereof in its final form shall be distributed to its Members three (3) days before its passage. 3. Exception: If a bill is certified as u rgent b y the President as to the necessity of its immediate enactment to meet a public calamity or emergency, the 3 readings can be held on the same day. 4. First r eading – o nly the t itle is r ead; the b ill is p assed to th e p roper committee Second reading – Entire text is read and debates are held, and amendments introduced. Third reading – only the title is read, no amendments are allowed. Vote shall be taken immediately thereafter and the yeas and nays entered in the journal. Veto power of President: 1. Every bill, in orde r to become a law, must be pre sented to and signed by the President.
g. If Congress fails to pass General Appropriations Bill (GAB) by the end of any fiscal year:
2. If the President does not approve of the bill, he shal l veto the same and ret urn it with his objections to the House from which it srcinated. The House shall enter the objections in the Journal and proceed to reconsider it.
i. The GAB for the previous year is deemed reenacted ii. It will rem ain in full forc e and effect until the GAB is pass ed by Congress.
3. The President must communicate his decision to veto withi n 30 days from the date of receipt thereof. If he fails to do so, the bill shall beco me a law as if he signed it.
2. For law granting tax exemption
4. This rule elim inates the ‘pocket veto’ whereby the Presi dent would simp ly refuse to act on the bill.
It should be passed with the concurrence of a MAJORITY of ALL the members of Congress. 3. For bills in gen eral
5. To OVERRIDE the veto, at least 2/3 of ALL the membe rs of each House must agree to pass the bill . In such case, the veto is overriden and becomes a law without need of presidential approval.
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REVIEWER & MEMORY AID 6. Item veto
b.
This veto will not affect items to which he does not object.
c.
Definition of item
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REVIEWER & MEMORY AID 2) The exercise of such power by the President shall be within the specified limits fixed by Congress and subject to such limitations and restrictions as it may impose.
a. The President ma y veto pa rticular it ems in an app ropriation, rev enue or tariff bill.
T YPO EBFIL L 1. R evenue/tax bill thereon 2. Appropriations bill
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Constitutional tax exemptions: 1) The following properties are exempt from REAL PROPERTY taxes (CODE: Cha Chu M- CA) a) Charitable institutions b) Churches, and parsonages or convents appurtenant thereto c) Mosques d) Non-profit cemeteries; and e) All lands, buildings and improvements actually, directly and exclusively used for religious, charitable, or educational purposes.
Veto of RIDER
1. A rider is a provision which does not relate to a particular appropriation stated in the bill. 2. Since it is an invalid provision under Section 25(2), the President may veto it as an item.
2) All revenues and assets of NON-STOCK NON-PROFIT EDUCATIONAL institutions are exempt from taxes and duties PROVIDED that such revenues and assets are actually, directly and exclusively used for educational purposes. (Art. XIV Sec 4 (3))
Specific limitations on legislation 1. No law shall be enacted increasing the Suprem e Court’s appella te jurisdiction without the SC’s advice and concurrence.
3) Grants, endowments, donation s or contribut ions used actually, directly and exclusively for educational purposes shall be exempt from tax. This is subject to conditions prescribed by law. (Art. XIV. Sec 4 (4))
2. No law shall be enacted granting titles of royalty or nobility.
Section 29. Power of the Purse
Section 28. POWER TO TAX
1) No money shall be paid out of the National Treasury EXCEPT in pursuance of an appropriation made by law.
Limitations: 1) The rule of tax ation should be UNIFORM 2) It should be EQUITABLE 3) Congress should evolve a PROGRESSIVE system of taxation. 4) The power to tax must be exerci sed for a public purpose beca use the power exists for the general welfare 5) The due proce ss and equal protect ion clauses of the Constitution should be observed. Delegation of power to fix rates 1) Congress may, BY LAW, authorize the President to fix the following: a) Tariff rates b) Import and Export Quotas c) Tonnage and wharfage dues d) Other duties and imposts Within the framework of the national development program of the Government
a) This places the control of public funds in the hands of Congress. b) BUT: This ru le do es no t pro hibit con tinuing app ropriations. e.g. fo r deb t servicing. This is because the rule does not require yearly, or annual appropriation. 2) Limitations. a) Appropriations must be for a PUBLIC PURPOSE b) Cannot appropriate public funds or pro perty, directly or indirectly, in favor of (i) Any sect, c hurch, d enomination, o r sectarian institution o r system of religion or (ii) Any pr iest, pr eacher, mi nister, or o ther re ligious te acher or dignitary as such. EXCEPT if the priest, etc is assigned to: the Armed Forces; or any penal institution; or government orphanage; or leprosarium
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c) BUT the government is not prohibited from appropriating money for a valid secular purpose, even if it incidentally benefits a religion, e.g. appropriations for a national police force is valid even if the polic e also protects the safet y of clergymen. d) ALSO, the temporary use of public property for religious purposes is valid, as long as the property is available for all religions 3) Special Funds a) Money collected on a ta x levied for a special purpose shall be treated as a special fund and paid out for such purpose only. b) Once th e spe cial pur pose is ful filled or aba ndoned, any ba lance sha ll be transferred to the general funds of the Government
1) 2) 3) 4) 5)
Natural-born citizen of the Philippin es Registered voter; Able to read and write; At least 40 years old on the day of election Philippine resident for at least 10 years immediately preceding such election.
Note: The Vice-President has the same qualifications & term of office as the President. He is elected with & in the same manner as the President. He may be removed from office in the same manner as the President. Section 4. MANNER OF ELECTION/ TERM OF OFFICE Manner of Election
Section 32. INITIATIVE AND REFERENDUM 1) The President and Vice-President shall be elected by direct vote of the people. 1) Through the syste m of initiative and referendum, the peopl e can direc tly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body.
2) Election returns for President and Vice-President, as duly certified by the proper Board of Canvassers shall be forwarded to Congress, directed to the Senate President.
2) Required Petition a) Should be signed by at least 10% of the total number of registered voters b) Every leg islative district sh ould be re presented by at lea st 3% of th e registered voters c) Petition should be registered
3) Not later than 30 days afte r the day of the election, the certificates shall be opened in the presence of both houses of Congress, assembled in joint public session. 4) The Congress, after determi ning the authenti city and due execution of the certificates, shall canvass the votes. 5) The person receiving the highest number of votes shall be proclaimed elected.
ARTICLE VII. THE EXECUTIVE DEPARTMENT Section 1. EXECUTIVE POWER Scope: 1) Executive power is vested in the President of the Philippines. 2) The scope of this power is set forth in Art. VII of the Constitution. But this power is not limited to those set forth therein. The SC, in Marcos v. Manglapus, referred to the RESIDUAL powers of the President as the Chief Executive of the country, which powers include others not set fort h in the Consti tution. EXAMPLE: The President is immune from suit and criminal prosecution while he is in office.
6) In case of a tie bet ween 2 or more can didates, one shall be chose n by a majority of ALL the members of both Houses, voting separately. In case this results in a deadlock, the Senate President shall be the acting President until the deadlock is broken. 7) The Supreme Court en banc shall act as the sole judge over all contests relating to the election, returns, and qualifications of the President or Vice-President and may promulgate its rules for the purpose.
Term of Office 1) President
3) Privilege of immunity from suit is personal to the President and may be invoked by him alone. It may also be waived by the President, as when he himself files suit.
a) 6 years beginning at noon on 30 June immediately following the election and ending at noon on the same day 6 years later.
4) BUT The President CANNOT dispose of state property unless authorized by law. b)
Term limitation: Single term only; not eligible for any reelection.
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c) Any person who has succeeded as President, and served as such for more than 4 years shall NOT be qualified for election to the same office at any time. 2) Vice-President: a)
6 years, starting and ending the same time as the President.
b)
Term limitation: 2 successive terms.
3) Vacancy in office of Vice-President during the term for which he was elected: a) President will no minate ne w VP fr om an y member of ei ther Ho use of Congress.
c) Voluntary ren unciation of th e off ice for any len gth of ti me is NO T an interruption in the continuity of service for the full term for which the VicePresident was elected.
b) Nominee sha ll as sume of fice up on co nfirmation by maj ority vot e of ALL members of both Houses, voting separately. (Nominee forfeits seat in Congress) 4) Election of President and Vice-President after vacancy during tem
Section 6. SALARIES AND EMOLUMENTS 1) Official salaries are determined by law. 2) Salaries cannot be decreased during the TENURE of the President and the VicePresident.
a) Congress shall convene 3 day s after the vacancy in the o ffice of bo th th e President and the VP, without need of a call. The convening of Congress cannot be suspended.
3) Increases take effect only afte r the expiration of the TERM of the incumbe nt during which the increase was approved. 4) Prohibited from receiving any other emol ument from the govern ment or any other source during their TENURE
b) Within 7 da ys after convening, Congress shall enact a la w calling for a special election to elect a President and a VP. The special election cannot be postponed.
Sections 7-12, PRESIDENTIAL SUCCESSION
c) The special election shall be held not earlier than 45 days not later than 60 days from the time of the enactment of the law.
1. Vacancies at the beginning of the te rm VACANCY President-elect fails to qualify or to be chosen President-elect dies or is permanently disabled. Both President and VP-elect are not chosen or do not qualify or both die, or both become permanently disabled.
VACANCY President dies, is permanently disabled, is impeached, or resigns. Both President and Vice-President die, become permanently disabled, are impeached, or resign.
d)
The 3 readings for the special law need not be held on separate days.
SUCCESSOR e) The law shall be deemed enacted upon its approval on third reading. VP-elect will be Ac ting President until someone is qualified/chosen as President. BUT: No special election shall be called if the vacancy occurs within 18 months VP becomes President. before the date of the next presidential election. 1. Senate President or 2. In cas e of his inability, the Speaker of the 5) Temporary disability of the President: House shall act as President until a President or a VP shall have been chosen and qualified. The temporary inability of the President to discharge his duties may be raised in In case of death or disab ility of (1) and (2), either of two ways: Congress shall determine, by law, who will be the acting President. a) By the President himself, when he sends a written declaration to the Senate President and the Speaker of the House. In this case, the Vice-President will be Acting President until the President transmits a written declaration to the contrary. SUCCESSOR Vice-President becomes President b) for the When a majority of th e Ca binet me mbers tr ansmit to th e Se nate unexpired term. President and the Speaker their written declaration. 1. Senate President or 2. In cas e of his inability, the Speaker (i) of the The VP will immediately be Acting President. House shall act as President until the President or VP shall have been elected and qualified. (ii) BUT: If the President transmits a written declaration that he is not disabled, he reassumes his position
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REVIEWER & MEMORY AID (iii) If w ithin 5 d ays a fter t he P resident r e-assumes h is p osition, the majority of the Cabinet retransmits their written declaration, Congress shall decide the issue. In this event, Congress shall reconvene within 48 hours if it is not in session, without need of a call. (iv) Within 1 0 days after C ongress is r equired to assemble, o r 12 days if Congress is not in session, a 2/3 majority of both Houses, voting separately, is needed to find the President temporarily disabled, in which case, the VP will be Acting President. 6) Presidential Illness: a)
If the President is seriously ill, the public must be informed thereof.
b) Even d uring such illness, the National S ecurity Adviser, the Secretary of Foreign Affai rs, and the Chief of Staff of the AFP are entitle d to access to the President
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REVIEWER & MEMORY AID 1) Since the power to appoin t is executive in nature, Congress cannot usurp this function. 2) While Congre ss (and the Const itution in certain cases) may prescribe the SOURCEOFDISQUALIFICATION qualifications for particular offices, the determination of who among those who are Prohibited from: qualified will be appointed is the President’s prerogative. 1. Holding any office or employment during their tenure, UNLESS: a. otherwise pr ovided in the Co nstitution (e.g . VP can be appointed a Cabinet Member, Sec. of Justice sits on Scope: Judicial and Bar Council); or The President shall appoint the following: b. the posi tions are ex-officio and they do not receive any salary or other emoluments therefor (e.g. Sec. of Finance is 1) Heads of executive departments (CA confirmation needed): head of Monetary Board). 2) Ambassadors, other public ministers, and consuls (CA confirmation needed). Officers of AFP from rank of colonel or naval captain (CA confirmation needed). 2. Practicing, directly or indirectly, any other 3)profession 4) Other officers whos e appointment is vested in him by the Constitution (CA during their tenure; confirmation needed), such as: a) Chairmen and members of the COMELEC, COA and CSC. 3. Participating in any business; b) Regular members of the Judicial and Bar Council. 4. Being fina ncially interested in any co ntract with, c) or in any The Ombudsman and his deputies; d) franchise, or special privilege granted by the government or anySectoral representatives in Congress. subdivision, agency or instrumentality thereof, including GOCC's N.B. President also appoints members of the Supreme Court and or their subsidiaries. judges of the lower courts, but these appointments do not need CA confirmation. N.B. The rule on disqual ifications for the President and his 5) All other Cabinet are stricter than the normal rules applicable to offic ers whose appoi ntments are not otherwise provided for by law; appointive and elective officers under Art. IX-B, Sec. and 7. those whom he may be authorized by law to appoint. Cannot be appointed during President’s tenure as: a) This in cludes th e Ch airman an d me mbers of t he Co mmission on 1. Members of the Constitutional Commissions; Human Rights, whose appointments are provi ded for by law NOT by the Constitution. 2. Office of the Ombudsman; 3. Department Secretaries; b) Congress may, by law, vest the appointment of other officers lower in 4. Department under-secretaries; in the President alone or in the courts, or in the heads of departments, 5. Chairman or heads of bu reaus or of ficesrank including agencies, boards or commissions. GOCC’s and their subsidiaries. •
Spouses and 4th degree relatives of the President (consanguinity or affinity)
N.B. c) BUT: Congress cannot, by law, require CA confirmation of the a. If the spouse, etc., was already in any of the above offices at of other officers for offices created subsequent to the 1987 appointment the time before his/her spouse became President, Constitution he/she may (e.g. NLRC Commissioners, Bangko Sentral Governor). continue in offic e. What is prohib ited is appoin tment and reappointment, NOT continuation in office. d) ALSO: Voluntary submission by the Presi dent to the CA for b. Spouses, etc., can be appointed to the judi ciary and as of an appointment which is not required to be confirmed does not vest confirmation ambassadors and consuls. the CA with jurisdiction. The President cannot extend the scope of the CA’s power as provided for in the Constitution. Sections 14-16. POWER TO APPOINT
Procedure:
Principles:
1) CA confirmation needed: a)
Nomination by President
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Confirmation b y CA Appointment by President; and Acceptance by appointee.
Note: At any time before all four steps have been complied with, the President can withdraw the nomination/appointment. 2) No CA confirmation: a) b)
Appointment; and Acceptance.
Note: Once appointee accepts, President can no longer withdraw the appointment.
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REVIEWER & MEMORY AID Ad-interim appointments: 1) When Congress is in recess, the President may still appoint officers to positions subject to CA confirmation. 2) These appointments are effective immediately, but are only effective until they are disapproved by the CA or until the next adjournment of Congress. 3) Appointments to fill an office in an ‘acting’ capacity are NOT ad-inte rim in nature and need no CA approval.
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REVIEWER & MEMORY AID 2) Thus, generally the acts of these department heads, etc, which are performed and promulgated in the regular course of business, are presumptively the acts of the President. 3) Exception: If the acts are disapproved or reprobated by the President. 4) Under Administrative Law, decisions of Department Secretaries need not be appealed to the President in order to comply with the requirement of exhaustion of administrative remedies.
Appointments by an Acting President:
5) Qualified political agency does NO T apply if the Preside nt is require d to act in person by law or by the Constitution. Example: The power to grant pardons must be exercised personally by the President.
These shall remain effective UNLESS revoked by the elected President within 90 days from his assumption or re-assumption of office.
Disciplinary Powers:
Limitation 1) 2 months immediately before the next Presidential elections, and up to the end of his term, the President or Acting President SHALL NOT make appointments. This is to prevent the practice of ‘midnight appointments.” 2) EXCEPTION:
1) The power of the President to discipline officers flows from the power to appoint the, and NOT from the power control. 2) BUT While the President may remove from office those who are not entitled to security of tenure, or those officers with no set terms, such as Department Heads, the officers, and employees entitled to security of tenure cannot be summarily removed from office.
a) Can make TEMPORARY APPOINTMENTS b) To fill EXECUTIVE POSITIONS; c) If con tinued vac ancies the rein wil l prejudice public ser vice or endanger public safety.
Power of Supervision:
Section 17. Power of Control and Supervision
2) The power of the presid ent over loca l government units is only of general supervision. Thus, he can only interfere with the actions of their executive heads if these are contrary to law.
Power of Control: The power of an officer to alter, modify, or set aside what a subordinate officer has done in the performance of his duties, and to substitute the judgment of the officer for that of his subordinate. Thus, the Pres ident exercises control ove r all the executive departments, bureaus, and offices.
1) This is the powe r of a superior officer to ensure that the law s are faithful ly executed by subordinates.
3) The execution of laws is an OBLIGA TION of the Pre sident. He cannot suspend the operation of laws. 4) The power of supervision does not include the pow er of control; but the power of control necessarily includes the power of supervision.
The President’s power over government-owned corporations comes not from the Constitution but from statute. Hence, it may be taken away by statute.
Section 18. COMMANDER-IN-CHIEF POWERS
Qualified Political Agency:
Scope:
1) Since all executive and administrative organizations are adjuncts of the Executive Department, the heads of such departme nts, etc. are assistants and agents of the President.
1) The President is the Commander-in-Chief of the Armed Forces. 2) Whenever necessary, the Pres ident may call out SUPPRESS: a)
Lawlessviolence;
the AFP to PREVENT or
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Invasion;or Rebellion.
3) The President may also: a) b)
Suspend the privilege of the writ of habeas corpus; and Proclaim a state of martial law.
Suspension of the privilege of the writ of habeas corpus and declaring martial law; 1. Grounds a. b. c.
Invasionor Rebellion;and Public safety requires it.
g.
Section 19: EXECUTIVE CLEMENCY Scope:
a. b. c. d.
c. Congress, by majority vote and voting jointly, may revoke the same, and the President cannot set aside the revocation. d. In the same manner, at the President’s initiative, Congress can extend the same for a period determined by Congress if: i. Invasion or rebellion persist and ii. Public safety requires it. NOTE: Congress CANNOT extend the period motu propio. e.
Supreme Court review:
i. The appropriate proceeding can be filed by any citizen. ii. The SC can review the FACTUAL BASIS of the proclamation or suspension. iii. Decision is promulgated within 30 days from filing.
f.
Martial Law does NOT:
i. Suspend the operation of the Constitution. ii. Supplant the functioning of the civil courts or legislative assemblies. iii. Authorize conferment of jurisdiction on military courts over civilians where civil courts are able to function and iv. Automatically suspend the privilege of the writ.
Suspension of privilege of the writ:
Note: While the suspension of the privilege of writ and the proclamation of martial law is subject to judicial review, the actual use by the President of the armed forces is not. Thus, troop deployments in times of war is subject to the Preside nt’s judgment and discretion.
1.)
b. Within 48 hours from the declaration or suspension, the President must submit a report to Congress.
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i. Applies ONLY to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. ii. Anyone arrested or detained during suspension must be charged within 3 days. Otherwise he should be released.
3. Limitations: Suspension or proclamation is effective for only 60 days.
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2. The invasion or rebellion must be ACTUAL and not merely imminent.
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The President may grant the following: [ Pa R C Re] Pardons (conditional or plenary) Reprieves Commutations Remittance of fines and forfeitures These may only be granted AFTER conviction by final judgment.
3.) ALSO: The power to grant clemency includes cases involving administrative penalties. 4.) Where a co nditional pardon is gra nted, the d etermination of whe ther it has been violated rests with the President.
Limitations: 1.)
As to scope:
Cannot be granted: a.) Beforeconviction b.) Incasesofimpeachment c.) For violations of election laws, rules, and regulation without the favorable recommendation of the COMELEC d.) In cases of civil or legislative contempt 2.) a.)
As to effect: Does not absolve civil liabilities for an offense.
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b.) Does not restore public offices already forfeited, although eligibility for the same may be restored.
(i) (ii) (iii) amendments.
Amnesty: 1.) An act of gra ce concurred in by Congress, usually extended to gr oups of persons who commit political offenses, which puts into oblivion the offense itself. 2.) President alone CANNOT grant amnesty. Amnesty needs concurrence by a majority of all the members of Congress. 3.) When a per son applies for amnesty, he must admit his guilt of th e offense which is subject to such amnesty. If his application is denied, he can be convicted based on this admission of guilt. 4.)
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Approvewith2/3majority; Disapproveoutright;or Approve c onditionally, w ith s uggested
(c) If treaty is not re-negotiated, no treaty (d) If treaty is re-negotiated and the Senate’s suggestions are incorporated, the treaty will go into effect without need of further Senate approval. Note: While our municipal law makes a distinction between internat ional agreements and executive agreements, with the former requiring Senate approval and the latter not needing the same, under international law, there is no such distinction.
Note: The President cannot, by executive agreement, undertake an obligation AM NES T Y P A RD O N which indirectly circumvents a legal prohibition. Addressed to POLITICAL offenses Addressed to ORDINARY offenses Granted to a CLASS of persons Granted to INDIVIDUALS (e) Conflict between treaty and municipal law. Neednotbeaccepted Mustbeaccepted Requires concurrence of majority of all No need for Congressional concurrence (i) Philippine court: members of Congress A public act. Subject to judicial notice Private act of President. It must be proved. The later enactment will prevail, be it treaty or law, as it is the latest expression of Extinguishes the offense itself Only penalties are extinguished. the State’s will. May or may not restore political rights. Absolute pardon restores. Conditional does not. Civil indemnity is not extinguished. (ii) International tribunal May be granted before or after conviction
Only granted after conviction by final judgement Treaty will alwa ys prevail. A State cannot ple ad its municip al law to justify noncompliance with an international obligation.
Section 20. Power to Contract or Guarantee Foreign Loans (2) Power to appoint ambassadors, other public ministers, and consuls. Limitations: (3) Power to receive ambassadors and other public ministers accredited to the (1) The President may contract or guarantee foreign loans on behalf of the Republic of Philippines. the Philippines with the prior concurrence of the Monetary Board; and (4) Power to contract and guarantee foreign loans on behalf of the Republic (2) Subject to such limitations as may be provided by law. (5) Power to deport aliens Section 21. Foreign Relations Powers include: (a) This power is vested in the President by virtue of his office, (1) Power to negotiate treaties and other international agreements subject only to restrictions as may be provided by legislation as regards the grounds for deportation. (a) BUT: Such treaty of international agreement must be concurred in by at least 2/3 of (b) In t he absence o f a ny legislative r estriction t o a uthority, the all Senators in order to be valid and effective in our country. President may still exercise this power. (c) The power to deport aliens is limited by the requirements of due process, which entitles the alien to a full and fair hearing. BUT: The alien is not entitled to bail as a matter of right. ARTICLE VIII. THE JUDICIAL DEPARTMENT (b) Options of Senate when a treaty is submitted for its approval:
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SEC. 1. JUDICIAL POWER Scope: 1. Judicial power is the authority to settle justiciable controversies or disputes involving rights that are enforceable and demandable before the courts of justice or the redress of wrongs for violations of such rights. 2. Vested in the Supreme Court and such lower courts as may be established by law. 3. Since the courts are given ‘judicial power’ and nothing more, courts may neither attempt to assume or be compelled to perform non-judicial functions. They may not be charged with administrative functions except when reasonably incidental to the fulfillment of their duties.
1. Defining enforceable and demandable rights and prescribing remedies for violations of such rights; and 2. Determining the court with jurisdiction to hear and decide controversies or disputes arising from legal rights. 3. Thus, Congress has the power to define, prescribe and apportion the jurisdiction of various courts. 4. BUT, Congress cannot deprive the Supre me Court of its jurisdiction over cases provided for in the Constitution. 5. Creation and abolition of courts: a. The power to create courts implies the power to abolish and even re-organize courts. b. BUT t his p ower c annot b e e xercised i n a m anner w hich w ould undermine the security of tenure of the judiciary. c. If t he a bolition/re-organization i s d one i n g ood f aith a nd n ot f or political or personal reasons, then it is VALID. (same rule applies for civil servants)
4. In order that courts may exercise this power, there must exist the following: SEC. 3. FISCAL AUTONOMY
c.
a.
An actual controversy with legally demandable and enforceable rights;
b.
Involving real parties in interest; The exercise of su ch power will bind the pa rties by v irtue of th e court’s application of existing laws.
1. The entire judiciary shall enjoy fiscal autonomy. 2. Annual appropriations for the judiciar y cannot be reduced below the amoun t appropriated for the previous year. 3. Once approved, appropriations shall be automatically and regularly released.
5. Judicial power cannot be exercised in vacuum. Without any laws from which rights arise and which are violated, there can be no recourse to the courts. SECS. 4-7; 12 JUDICIARY 6. The courts cannot be asked for advisory opinions. Composition of the Supreme Court: 7. Judicial power includes: a. The duty of the courts to settle actual controversies involving rights which are legally demandable and enforceable; and b. To de termine wh ether or no t th ere ha s be en a grave ab use of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.
1. 2.
Chief Justice and 14 Associate Justices
Note: Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. Qualifications of members of the SC:
Political Questions: 1.
A ‘political quest ion’ is one the res olution of which has been ves ted by the Constitution exclusively in either the people, in the exercise of their sovereign capacity, or in which full discretionary authority has been delegated to a co-equal branch of the Government.
2. Thus, while courts can determine questions of legality with respect to governmental action, they cannot review government policy and the wisdom thereof, for these questions have been vested by the Constitution in the Executive and Legislative Departments. SEC. 2. ROLES OF CONGRESS
1. Natural born citizen of the Philippines 2. At least 40 years old 3. At least 15 years of exper ience as a judge or in the prac tice of law in the Philippines 4. Person of proven competence, integrity, probity and independence. Qu al ific at io ns of Sandiganbayan)
member s
of
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co lleg iate
1. Natural born citizen of the Philippines 2. Member of the Philippine bar 3. Possesses other qualifications prescribed by Congress
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Citizen of the Philippines (may be a naturalized citizen) Member of the Philippine Bar Possesses other qualifications prescribed by Congress Person of proven competence, integrity, probity and independence.
Section 8. JUDICIAL AND BAR COUNCIL
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REVIEWER & MEMORY AID SEC. 11. TENURE/DISCIPLINARY POWERS OF SC 1. Members of the SC and judges of the lower courts hold office during good behavior until a. The age of 70 years old; or b. They become incapacitated to discharge their duties. 2. Disciplinary action against judges of lower courts: a. Only the SC en banc has jurisdiction to discipline or dismiss judges of lower courts. b. Disciplinary action/dismissal: Majority vote of SC Justic es who took part in the deliberations and voted therein.
1. The Judicial and Bar Council is under the supervision of the SC. 3. Removal of SC Justices: 1. 2. 3. 4. 5. 6. 7.
A. Is under the supervision of the Supreme Court and is composed of: Chief Justice, as ex-officio chairman Secretary of Justice, as an ex-officio member Representative of Congress, as an ex-officio member Representative of the Integrated Bar Aprofessoroflaw A retired member oftheSC;and Private sector representative
Note: The last four re the regular members of the JBC. Regular members are appointed by the President with CA approval. Regular members serve for 4 years, with staggered terms. B. Functions of JBC 1. 2.
Principal function: r ecommend appointees to the Judiciary Exercise such other functions as the SC may assign to it.
C. Appointments to the Judiciary 1. President shall appoint f rom a list o f at least 3 nominees f or each vacancy, as prepared by the JBC. 2. No C A c onfirmation i s n eeded f or a ppointments t o t he Judiciary. 3. Vacancies i n S C s hould b e f illed w ithin 9 0 d ays f rom t he occurrence of the vacancy. 4. Vacancies in lower courts should be filled within 90 days from submission to the President of the JBC list.
a. Only by IMPEACHMENT. b. Cannot be disbarred while they hold office. SECS. 4-6, 13. THE SUPREME COURT Hearing of cases: En banc; or Divisions of 3, 5, or 7. Cases required to be heard en banc: 1. All cases involving constitutionality of a/an: a. Treaty b. International or executive agreement or c. Law. 2. All cases required to be heard en banc under the Rules of Court: a. Appeals from Sandiganbayan; and b. From the Constitutional Commissions 3. All cases involving the constitutionality, application or operation of a. Presidential decrees b. Proclamations c. Orders d. Instructions e. Ordinances; and f. Other regulations. 4. Cases heard by a division where required majority of 3 was not obtained.
SEC. 10. SALARIES 1. Salaries of SC Justices and judges of lower courts shall be fixed by law. 2. Cannot be decreased during their continuance in office, but can be increased. 3. Members of the Judiciary are NOT exempt from payment of income tax.
5. Cases where SC modifies or reverses a doctrine or principle of law laid down by the SC en banc or by a division. 6. Administrative cases to discipline or dismiss judges of lower courts; and
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7. Election contests for President and Vice-President.
Note: Temporary assignment shall not exceed 6 months without the consent of the judge concerned. 4. Order a change of venue or place of trial to avoid a miscarriage of justice. 5. a. b. c. d. e.
Cases heard by division 1. Must be decided with the concurrence of a majority of the members who took part in the deliberations and voted thereon. 2. Majority vote in a division should be at least 3 members.
Promulgate rules concerning: The protection and enforcement of constitutional rights; Pleading, practice and procedure in all courts; Admission to the practice of law; The Integrated Bar; and Legal assistance to the underprivileged.
Limitations on Rule Making Power a. It should provide a simplified and inexpensive procedure for the speedy disposition of cases. b. It should be uniform for all courts of the same grade. c. It should not diminish, increase, or modify substantive rights.
Powers of the SC 1. SC has ORIGINAL jurisdiction over a. Cases affecting ambassadors, other public ministers and consuls. Note: This refers to foreign ambassadors, etc., stationed in the Philippines. b. Petitions for certior ari, prohibiton, mandam us, quo warranto, and habeas corpus. 2. SC has APPELLATE jurisdiction over final judgments and orders in the following:
6. Appoint ALL officials and employees of the Judiciary, in accordance with Civil Service Law.
a. All cases involving the constitutionality or validity of any treaty international or executive agreement law presidential decree proclamation order instruction ordinance, or regulation; b. All cases involving the legality of any i. tax ii. impost iii. assessmentor iv. toll or v. anypenaltyimposedinrelationthereto;
7. Exercise administrative supervision over ALL courts and the personnel thereof. Decisions of the Supreme Court: 1. Reached in consultation before being assigned to a member for the writing of the opinion. 2. A certification to this effect must be signed by the Chief Justice and attached to the record of the case and served upon the parties. 3. Members of the SC who took no part, or who dissented or abstained must state the reasons therefore.
Note: This procedure shall also be observed by all lower collegiate courts (CA, CTA, and the Sandiganbayan). JUDICIAL REVIEW
c. All cases in which the jurisdiction of any lower court is in issue Definition d. Criminal cases where the penalty imposed is reclusion perpetua or higher; and 1. e. All cases where ONLY errors or questions of law are involved. 2. 3. Temporarily assign lower court judges to other stations in the public interest.
Judicial Review is the power of the SC to declare a law, treaty, ordi nance etc. unconstitutional. Lower courts may also exercise the power of judicial review, subject to the appellate jurisdiction of the SC. 3. Only SC decisions are precedent, and thus, only SC decisions are binding on all.
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1. An ACTUAL CASE calling for the exercise of judicial power 2. The question involved must be RIPE FOR ADJUDICATION, i.e. the government act must have had an adverse effect on the person challenging it. 3. The person challenging the governmental act must have ‘STANDING’, i.e. a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. 4. The question of Constitutionality must be raised in the first instance, or at the earliest opportunity. 5. Resolution of the issue of constitutionality is unavoidable or is the very lis mota. Effect of a declaration of unconstitutionality: 1. Prior to the declaration that a particular law is unconstitutional, it is considered as an ‘operative fact’ which at that time had to be complied with. 2. Thus, vested rights may have been acquired under such law before it was declared unconstitutional. 3. These rights are not prejudiced by the subsequent declar ation that the law is unconstitutional. SEC. 14. DECISIONS 1. Decisions MUST state clearly and distinctly the facts and the law on which it is based. 2. Refusal to give due course to petitions for review and motions for reconsideration must state the legal basis for such refusal. 3. Memorandum decisions, where the appellate court adopts the findings of fact and law of the lower court, are allowed as long as the decision adopted by reference is attached to the Memorandum for easy reference. 4. These rules only apply to cour ts. They do not appl y to quasi -judicial or administrative bodies nor to military tribunals.
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Section 1.
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ARTICLE IX – THE CONSTITUTIONAL COMMISSIONS
Section 6. RULES OF PROCEDURE
Constitutional Commissions
Procedures:
Independent Constitutional Commissions : 1) Civil Service Commission (CSC) 2) Commission on Elections (COMELEC) 3) Commission on Audit (COA)
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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.
Why Independent? 3) Power of SC 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.
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:
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, franchis e, 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.
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 ent ire 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.
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According to merit and fitness to be determined by competitive examinations, as far as practicable except to positions which are policydetermining, primarily confidential, or highly technical.
Section 1. COMPOSITION/QUALIFICATIONS/TERM Composition:
B. Non-competitive positions 1). No need for competitive examinations. 2). 3 kinds
1) Chairman 2) Commissioners – 2 commissioners
formulate a method of action for the gov't 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.
Qualifications:
Term:
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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
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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) 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.
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
Section 2.
Scope:
The Civil Service embraces all: A. branches, B. subdivisions, C. instrumentalities, D. agencies of the government, E. including GOCCs with srcinal 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
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) Ca r e e rS er v i c e 1. Entrance based on merit and fitness to be determined as far as practicable by competitive examinations or based on highly technical qualifications. 2.Entitled to security oftenure
No n -Ca r e e rSe r v ic e 1. Entrance on bases OTHER than usu merit and fitness.
2. Tenurelimited to: a) Period specified by law, b) Coterminous with the appoint or subject to his pleasure, or c) Limited to the duration of a p project for which purpose the employ made.
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3. With opportunity for advancement to higher career positions. 4) Prohibition does not apply to department secretaries Security of Tenure: Right to organize 1) Officers or employees of the Civil Service cannot be removed or suspended EXCEPT for cause provided by law. It guarantees both procedu ral and substantive due process. 2) For "LEGAL CAUSE" - Cause is:
The right to organize does NOT include the right to strike Sections 6-7. DISQUALIFICATIONS Disqualifications
a). related to and affects the administration of office, and b). must be substantial (directly affects the rights & interests of the public)
1) Losing candidates in any election 3) Security of tenure for Non-competitive positions 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.
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 officer s 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.
2) Elective officials
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.
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.
Abolition of Office To be valid, abolition must be made:
3). Appointive officials
(a) In good faith; (good faith is presumed) (b) Not for political or personal reasons; and (c) Not in violation of law.
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 gover ned by the stricter prohibitions contained therein.
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 offi cer or employee in th e Civil Se rvic e electioneering or in partisan political activity
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
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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.
Section 8. COMPENSATION 1) Prohibitions: applies to elected or appointed officers and employees an y
Cannot receive: A. Additional an extra reward given for the same office i.e. bonus when an officer is given 2 sets of compensation for 2 different offic es held concurrently by 1 officer C. Indirect Compensation
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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.
1) Enforce and administ er all laws and regulati ons 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. 3) Exercise: A. Exclusive srcinal 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.
D.
Contemptpowers
1. COMELEC can exercise this power only in relation to its adjudicatory or quasi-judicial functions. It CANNOT exercise this in connect ion with its purely executive or ministerial functions. 2. If it is a pre-proclamation controversy, the COMELEC exercises quasijudicial/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.
Section 2. POWERS AND FUNCTIONS Powers:
4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines,
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REVIEWER & MEMORY AID 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.
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REVIEWER & MEMORY AID 9) Submit to the Pre sident and the cong ress a comprehensive repo rt on the conduct of each election, plebiscite, initiative, referendum, or recall. Section 3. RULES OF PROCEDURE/DECISION-MAKING Rules of Procedure
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 contribu tions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections constitute interference in nationa l 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) COMELEC can sit en banc or in two divisions 2) It has the power to promulga te its own rules of procedu re in order to expedi te 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. 4) If a division dismisses a case for failure of counse l to appear, the Motion for Reconsideration here may be heard by the division. 5) 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
6) File, upon a verified complaint, or on its own initiat ive, petitions in court for inclusion of exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constitu ting elections frauds, offenses and malpractices. A. COMELEC has exclusive jurisdiction t o investigate and pr osecute cases for violations of election laws. B. COMELEC can deputize prosecutors for this purpose. The actions of the prosecutors are the actions of the COMELEC C. Preliminary investigation conducted by COMELEC is valid.
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, specia l privileges or concessions granted by the Governm ent 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.
7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpract ices, and nuisance candidacies. 8) Recommend to the President the remov al 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.
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.
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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 pardo n, amnesty , parole, or suspen sion of senten ce 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 id entifies th e par ty an d its off icers for pur poses of reg ulation by the COMELEC. Section 7. No votes cast in favor of a politi cal party , organiz ation, 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 partylist 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.
Section 10. Bona fide candidates for any public office shall be free from any form of harassment and discrimination.
facilities.
This section does not give candidates immunity from suit. Discrimination includes unequal treatment in the availment of media
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Section 11. FUNDING
TheGovernment; Any of its subdivisions, agencies or instrumentalities; Including GOCC’s with original charters.
How provided 2) Conduct post-audit with respect to the following: 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 certification by the Chairman of COMELEC.
be released
automatically
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A. Constitutional bodies, commissions, and offices granted fiscal autonomy; B. Autonomous state c olleges a nd u niversities; C. GOCC’s and their subsidiaries incorporated under the C orporation Code. D. None-governmental en tities r eceiving s ubsidies o r eq uity, di rectly o r indirectly, from or through the government, which are required by law of the granting of institution to submit to such audit.
THE COMMISSION ON AUDIT Section 1. COMPOSITION/QUALIFICATIONS 3) If COA finds internal contr ol system of audited agenc ies as inadequat e, COA Composition: 1) Chairman, and 2) Commissioners (2).
may adopt measures, including tempor ary or special pre-audit, as may be necessary. 4) Keep the general accounts of the government, preserving vouchers and other supporting papers pertaining thereto.
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 elec tions immediately preceding their appointment.
5) Exclusive authority to define the scope of COA’s audit and exami nation and to establish the techniques and methods required therefor. 6) Promulgate accounting and auditing rules and regulations. A. Including those for the prevention or disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures or uses of government funds and properties. B. Failure to c omply with th ese rules c an be a g round fo r disapproving the payment of a proposed expenditure.
Term:
Note:
1) Chairman -7 yrs; Commissioner1 -5yrs; Commissioner - 2 -3 yrs. 2) LIMITATION: - Single terms only; no re-appointment allowed 3) Appointments to any vaca ncy shal l only be for the unex pired porti on of predecessor’s term
1) The functions of COA ca n be classified as:
Section 2. POWERS 1) Examine, audit, and settle accounts pertaining to: A. Revenue and receipts of funds or property; or B. Expenditures and uses of funds or property Owned or held in trust by, or pertain to:
A. Examine and audit all forms of government revenues; B. Examine and audit all forms of gov’t expenditures C. Settle gov’t accounts D. Promulgate a ccounting an d au diting ru les (i ncluding th ose fo r th e prevention of irregular…expenditures. E. To decide administrative cases involving expenditures of public funds. 2) COA can settle only LIQ UIDATED ACCOUNTS or those account s which may be adjusted simply by arithmetic process.
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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.
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, create d 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
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: Section 2. Local Autonomy A. There is a law appropriating funds for a particular purpose; B. There is a co ntract, ma de b y th e pr oper of ficer, en tered in to in conformity with the above-mentioned law; C. 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 D. Payment has been authorized by officials of the corresponding department or bureau.
1) All political subdivisions shall enjoy local autonomy 2) This does not mean that the LGU’s are com pletely free from the cen tral government. A. B.
Judiciary may still pass on LGU actions President may exercise disciplinary power over LGU officials.
6) Prosecutors may still review accounts already settled and approved by COA for
SEC. 3. Congress shall enact a local government code which shall provide
the purpose of determi ning possible criminal liabi lity. interest in such accounts is merely administrative.
for a more responsi ve and accounta ble local government struc ture in st ituted th rough a sy stem of dece ntraliza tion with effect ive 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.
This is because COA’ s
7) COA has the powe r to determine the meaning of ‘publi c bidding’ and wha t constitutes failure when regulations require public bidding for the sale of government property. Sect io n 3. No law sh al l be pass ed exem ptin g an y en tity of the Government or its subsidiary in any guise whatever, or any investment of public funds, from the jurisdiction of the Commission on Audit.
Section 4. PRESIDENTIAL SUPERVISION OF LGUS Supervision of President
ARTICLE X: LOCAL GOVERNMENT Section 1. TERRITORIAL/POLITICAL SUBDIVISIONS OF THE REPUBLIC OF THE PHILIPPINES ARE THE: Composition: 1) 2) 3) 4)
Provinces Cities; Municipalities; and Barangays
1) The President exercises general supervision over all LGUs 2) The President exercises DIRECT supervision over A. Provinces B. Autonomous regions and C. 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.
There shall be Autonomous regions in:
6) Provinces exercise direct supervision over component cities and municipalities.
1) Muslim Mindanao, and
7) Cities and municipalities exercise direct supervision over component barangays.
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REVIEWER & MEMORY AID 2) This includes share the same with the inhabitants by way of direct benefits.
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
Under the LGC 1) LGUs have a share of 40% of the gros s collection derived by the nati onal government from the preceding fiscal year from A. Miningtaxes B. Royalties C. Forestry and fishery charges D. Other taxes, feesand charges E. Share in any co-production, joint venture or production sharing agreement in the utilizat ion and development of the national wealth w/in their territorial jurisdiction
The taxes, fees and charges shall accrue exclusively to the local governments. SEC. 8. TERM OF OFFICE 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)
Term of Office Elective local officials, now including barangay officials have a term of 3 years. Limitations:
1) Share of LGUs in national taxes is limited to the internal revenue taxes. 2) The share of each LGU shou ld be released, without need of any further act ion, 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 shoul d not be subject to any lie n 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 A. Ground: Unmanageable public section deficit B. President can make the necessary adjustments in the IRA upon the recommendation of the following:
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:
6) IRA considered for purposes of conversion from one political subdivision to the next. (Alvarez v. Guingona)
1) The women’s sector 2) The workers 3) Third sector (can choose from any of the following) A) Urbanpoor B) Indigenous cultural communities C) Disabled persons D) Any other sector as may be determined by the sanggunian
Section 7. SHARE OF LGUS IN NATIONAL WEALTH
Election of Sector Representatives
Share of LGUs in national wealth
SEC. 10. Creation, abolition and division of LGU’s
1) LGUs are entitled to an equitable share in the proce eds of the utilizat ion and development of the national wealth within their respective areas in the manner provided by law.
1) Requisites
1. 2. 3.
DepartmentofFinanceSecretary DILGSecretary DBMSecretary
A.
Compliance with the requirements of the Local Government Code; and
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REVIEWER & MEMORY AID B. 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.
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REVIEWER & MEMORY AID Under LGC (Section 33) 1) Consolidation and coordination may be done through appropriate ordinances. 2) A public heari ng should be conduct ed and the approval of the sangguni an obtained. 3) An LGU can:
Sec. 11. Metropolitan political subdivisions
A. Contribute funds, real estate, equipment and other kinds of property B. Appoint/assign personnel under such terms and conditions as may be agreed upon by the participating LGUs through Memoranda of Agreement.
Creation:
Section 14. REGIONAL DEVELOPMENT COUNCILS
1) Congress may create special metropolitan political subdivisions by law. 2) It is subject to a plebiscite
Who can provide for RDC The President shall provide for RDC or other similar bodies composed of:
Jurisdiction of Metropolitan authority It is limited to basic services requiring coordination.
Composition 1) Local government officials
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
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
Classification of Cities: Section 15. AUTONOMOUS REGIONS 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)
Where: 1) Muslim Mindanao 2) Cordillera region
Independence from the Province Factors: 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.
1) 2) 3) 4) A. B. C.
Historical heritage Cultural heri tage Economic and social structures, Other relevant characteristics within: The framework of the consititution National sovereignty Territorial integrity.
Creation: 1) Provided by l aw.
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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.
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. ARTICLE XI: ACCOUNTABILITY OF PUBLIC OFFICERS Section 1: PUBLIC OFFICE AS A PUBLIC TRUST
Section 16. GENERAL SUPERVISION OVER AUTONOMOUS REGIONS Public officers and employee s must at all times be accountable to the people, serve them with utmost responsibility, integrit y, loyalty and efficiency, act with patriotism and justice and lead modest lives.
By Whom: The President Purpose: To ensure that the laws are faithfully executed.
Section 2: IMPEACHMENT/REMOVAL FROM OFFICE Impeachment: (as means of removal from office)
SEC. 17.
All power s, functio ns and responsi bilities not grante d by this
Constitution or by law to the autonomous region shall be vested in the National Government.
1. Who may be impeached:
Examples: 1) Foreign relations, 2) National defense and Security 3) Monetary Affairs
President VP SC Justices Constitutional Commission members Ombudsman
Section 20. LEGISLATIVE POWERS 2. Grounds The Organic Act of Autonomous Region shall provide for legislative powers over: 1) Administrative organization; 2) Creation of sour ces of revenues; 3) Ancestral domain and natural res ources 4) Personal, family and proper ty 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 Sec tio n 21. SECURITY
PRESERVATION
OF
PEACE AND
ORDER/DEFENSE AND
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. 3. These officers cannot be charged in court with offenses that have removal from office as penalty. 4. The President cannot be charged with murder. 5. A SC Justice cannot be disbarred because this woul d disqualify him from his position. 6. BUT AFT ER an official has been impe ached, he can be charg ed with the appropriate offense. 7. Resignation by an impeachable official does not place him beyond the reach of impeachment proceedings; he can still be impeached.
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REVIEWER & MEMORY AID All Other Public Officers and Employees 1. They may be removed from office as provided by law 2. BUT: NOT by impeachment
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REVIEWER & MEMORY AID B. For this purpose, the Senators shall be under oath or affirmation a. When the President o f the Philippines is o n trial, the CJ o f the Supreme Court presides. However, he/she will not vote. 8.)
Judgment of Conviction
Section 3: PROCEDURE FOR IMPEACHMENT This requires the concurrence of 2/3 of all the Members of the Senate Exclusive Power of House of Representatives 9.) The House of Representatives has exclusive power to INITIATE all cases of impeachment.
1. Filling of verified complaint a.
Section 4: SANDIGANBAYAN
Procedure:
Canbefiledby:
1.
Anymember oftheHouseofRepresentativesor
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 o f t he House of Representatives 2.) 3.) 4.)
Inclusion of complaint in the o rder of business with 10 session days 1.) Referral to pr oper Committee within 3 session days thereafter 2.) Submission of Committee report to the House together wit h corresponding 3.) resolution 4.) a. Thereshouldbeahearing b. There should be a majority vote of the members c. The report should be submitted within 60 days from referral, after hearing, and by a majority vote of ALL its members.
5.) 6.)
Effect of the Impeachment
a. Removal from office of the official concerned b. Disqualification to h old an y of fice u nder th e R epublic of t he Philippines c. Officer s till l iable t o p rosecution, t rial, a nd p unishment i f t he impeachable offense committed also constitutes a felony or crime.
Calendaring of resolution for consideration by the House Should be done within 10 session days from receipt thereof Vote of at least 1/3 of all Members of the House necessary to: a. Affirm a favorable resolution with the Articles of Impeachment of the Committee or b. 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
A. impeachment
Senate h as t he s ole p ower t o t ry a nd d ecide a ll c ases o f
Sandiganbayan = the anti-graft court Sections 5-6, 8-14: OFFICE OF THE OMBUDSMAN Composition: Ombudsman/Tanodbayan Overall deputy At least one Deputy each for Luzon, Visayas and Mindanao 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 ha ve been candidate for an y elective office in the immediately preceding election 6.) For Ombudsman: He must have been for ten years or more a. A judge or b. 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 Governm ent, any of its subdivisions, agencies or instrumentalities, including GOCCs or their subsidiaries
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REVIEWER & MEMORY AID Appointment 1. Of Ombudsman and deputies a. 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 b. Appointments do NOT require confirmation c. All vacancies shall be filled within 3 months after they occur. 2. Of other officials and employees of the Office of the Ombudsman d. e.
BytheOmbudsman In accordance with Civil Service Law
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REVIEWER & MEMORY AID 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 srcinal 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. a. The Ombudsman has PERSUASIVE POWER, and may require that proper legal steps are taken by the officers concerned. b. 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 c. The SC has held that the SP may prosecute befo re the Sandiganbayan judges accused of graft and corruption, even if they are under the Supreme Court.
Term: (Ombudsman and deputies) 1. 7 years with reappointment 2. They are NOT qualif ied to run for any office in the elect ion 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. a. The S C held that the power t o investigate and p rosecute cases involving public officers and employees has been transferred to the Ombudsman. b. The Ombudsman may always delegate his power to investigate. c. The power to investigate includes the power to impose preventive suspension. d. This preventive suspension is not a penalty. e. “INVESTIGATE” does not mean preliminary investigation. f. The complaint need not be drawn up in the usual form.
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. a. The Ombudsman does NOT himself prosecute cases against public officers or employees. b. Final say to prosecute still rests in the executive department. c. The Ombudsman o r T anodbayan m ay use m andamus t o c ompel the fiscal to prosecute. 4.) Direct the officer conce rned, in any appropri ate case, and subjec t 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
g. The “ILLEGAL” act or omission need not be in connection with the duties of the public officer or employee concerned. h. ANY illegal act may be investigated by the Ombudsman. In this regard, the Ombudsman’s jurisdiction is CONCURRENT with that of the regular prosecutors.
Note: The Offi ce of the Ombu dsman also has the duty to act prom ptly 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
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their subsidiaries. In appropriate cases, it should notify the complainants of the action taken and the result thereof.
Prohibition applies during their TENURE.
Fiscal Autonomy:
Scope of prohibition:
The Office of the Ombudsman enjoys fisca l autonomy. Its approved annual appropriations should be automatically and regularly released.
1.) The above mentioned officials cannot obta in, directly or indirectly for BUSINESS PURPOSES: a. Loans b. Guarantees c. Other forms of financial accommodation From: 1. Governmentownedorcontrolledbanks;or 2. Government owned or controlled financialinstitutions.
Section 7: OFFICE OF THE SPECIAL PROCECUTOR 1. Under the 1987 Constitution, the existing Tanodbayan became the Office of the Special Prosecutor 2. Powers a. It w ill c ontinue t o f unction a nd e xercise i ts p owers a s n ow o r hereafter may be provided by law b. Exception: Powers conferred on the Office of the Ombudsman
2.) If th e loa n, et c, is NO T for bus iness pur pose, e.g . a housing loa n, the prohibition does not apply.
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 p rosecute anti-graft cases. Section 17: Statements of assets, liabilities and net worth Section 15: RECOVERY OF ILL-GOTTEN WEALTH When submitted: Prescription, Laches, Estoppel 1.) The right of the S tate to rec over properties unlawfully acquired by pub lic 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
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:
Coverage: This prohibition applies to: 1.) 2.) 3.) 4.) 5.) 6.) 7.) 8.)
President Vice-President Members of the Cabinet Members of Congress Members of Supreme Court Members of Constitutional Commissions Ombudsman Any firm or entity in which they have controlling interest
When prohibition applies:
1.) 2.) 3.) 4.) 5.) 6.) 7.) 8.)
President Vice-President Members of the Cabinet Members of Congress Justices of the Supreme Court Members of Constitutional Commissions Other constitutional offices 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
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REVIEWER & MEMORY AID Section 2. REGALIAN DOCTRINE
1.)
Incumbent public officers and employees who seek either: Distinction between Imperium and Dominium
a. Changehiscitizenship;or b. Acquire immigrant status in another country Shall be dealt with by law. 2.) If Philippine citizenship is one of th e qualifications to the off ice, the l oss of such citizenship means the loss of the office by the incumbent. 3.) The Election Code p rovides the rul es with respect to non- incumbents, i.e. persons running for elective offices. a. 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.
1. Imperium Government authority possesse d by the State which is appropriately embraced in sovereignty. 2. Dominium a. The capacity of the State to own and acquire property. b. It r efers t o l ands he ld b y t he g overnment i n 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:
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.
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-PRO DUCTION, JOINT VENTURE OR PRODUCTIONSHARING arrangements with 1. Filipinocitizenor 2. Corporation o r a ssociation a t l east 6 0% o f w hose 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.
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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.
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.
Small-scale Utilization of Natural Resources Limitations regarding Alienable Lands of the Public Domain 1. Congress may, by law, authorize small-scale utiliza tion of natural resources by Filipino citizens 2. Congress may also authoriz e cooperative fish farming with priority given to subsistence fishermen and fishworkers in the rivers, lakes, bays and lagoons. La rge-Sc ale Ex ploratio n, Deve lopm en t Minerals/Petroleum/Other Mineral Oils
an d
Utiliz at io n
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
of
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 agreeme nts, the State should promo te the develo pment 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. 2. 3. 4.
Agricultural Forest/timber Mineral lands & 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.
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.
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REVIEWER & MEMORY AID Section 4. Congress shall , as soon as possib le, determ ine by law, the specific limits of forest lands and national parks, marking clearly their boundaries on the groun d. Thereafter , such forest lands and nationa l parks shall be conserved and may not be increased or diminished, EXCEPT by law. Congress shall provide measures to prohibit logging in a. En d a n g e r e d f o r e s t a n d b. W a t er s h e da r e a s 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 exte nt 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
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REVIEWER & MEMORY AID 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 acquire s 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.
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REVIEWER & MEMORY AID 1. Congress may directly grant a legislative franchise; or 2. Power to grant franchis es 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 NOTexclusive 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.
In the grant of rights, privileges and concessions covering the national economy and patrimony, the State shall give preference to QUALIFIED Filipinos.
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.
Section 11. FRANCHISES FOR PUBLIC UTILITIES
Sections 18-19. SPECIAL ECONOMIC POWERS OF THE GOVERNMENT
Power to grant:
1. Temporary takeover or direction of operations:
National Economy and Patrimony
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A. Conditions i. National emergency and ii. When the public interest requires 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.
Advertising 1.Filipinocitizens;or 2. Corporations incorporated in RP, and 70% Filipino owned. Educationalinstitution 1. Filipinocitizens;or 2. Corporations incorporated in RP, with 60% Filipino ownership EXCEPT: Schools established by religious groups and mission boards. *Congress may, by law, increase Filipino equity requirements for ALL educatio nal institutions. Congress may, by law, reserve to Filipino citizens or to corporations 60% Filipino owned (or even higher) certain investment areas. 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
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.
seeks not only economic social justice but also political social justice. Principal activities in order to achieve social justice Creation of more economic opportunities and more wealth; and Closer regulation of the acquisition, ownership, use and disposition of property in order to achieve a more equitable distribution of wealth and political power.
Filipino citizenship or equity requirements: ACTIVITYREQUIREMENTS
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Exploitation of natural resources 1. Filipino citizens; or 2. Corporations incorporated in RP, with 60% Filipino ownership
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.
Operation of Public Utilities 1. F ilipino citizens; or 2. Corporations incorporated in RP, with 60% Filipino ownership Acquisition of alienable lands of the public domain
Right to organize and to hold peaceful concerted activities
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 persons)
Filipino c itizens only ( natural *Congress
may,
otherwise prescribe MassMedia 1.Filipinocitizens;or 2. Corporations incorporated in RP, and 100% Filipino owned
by
law,
The right to organize is given to all kinds of workers BOTH in the PRIVATE and PUBLIC sectors. 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) 2) 3) 4)
collective bargaining agreements, grievance machineries, voluntary modes of settling disputes, and conciliation proceedings mediated by government.
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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, Agrarian Reform within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human Goals: rights have been violated or need protection. A. CHR can initiate court proceedings on behalf of victims of human rights violations. Agrarian reform must aim at B. They can recommend the prosecution of human rights violators, but it cannot 1) efficient production, itself prosecute these cases. 2) a more equitable distribution of land which recognizes the right of farmers and C. BUT: The CHR cannot issue restra ining orders or injunctio ns against alleged regular farmworkers who are landless to own the land they till, and human rights violators. These must be obtained from the regular courts. 3) a just share of other or seasonal farmworkers in the fruits of the land. 5) Exercise visitorial powers over jails, prisons and other detention facilities. 6) Establish continui ng programs for research, educat ion and informati on in order to CARL as an exercise of police power and power of eminent domain 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. 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 8) Monitor compliance by the government with international treaty obligations on human rights. their land in excess of the maximum allowed there is compensable taking and 9) Grant immunity from prosecution to any person whose testimony or whose possession of therefore the exercise of eminent domain. documents or other evidence is necessary or convenient to determine the truth in 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”.
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.
The Commission on Human Rights
ARTICLE XIV - EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS
Composition: 1) 2)
Chairman; and 4members 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.
EDUCAT ION 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.” 1) Investigate all forms of human rights violations involving civil or political rights Power to Dismiss Students A. Violations may be committed by public officers or by civilians or rebels. B. CHR cannot investigate violations of social rights. 1) Schools have the power to dismiss students, after due process, for disciplinary C. CHR has NO adjudicatory powers over cases involving human rights violations. reasons. D. They cannot investigate cases where no rights are violated. E. Example: There is no right to occupy governm ent land, i.e. squat thereon. 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; Therefore, eviction therefrom is NOT a human rights violation. or 2) Adopt operational guidelines and rules of procedure. Powers:
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REVIEWER & MEMORY AID b) The misconduct affects the student’s status, or the good name or reputation of the school.
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REVIEWER & MEMORY AID 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.
Regulation of Right to Education III. Academic Freedom 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 educatio nal 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.
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.
C. Student Population: 1). GENERAL RULE: Cannot establish school exclusively for aliens. Aliens can only comprise up to 1/3 of total enrollment. Religious Education in Public Schools: 2). EXCEPTIONS: Schools established for foreign diplomatic personnel and their dependents, and unless otherwise provided for by law for other foreign temporary Religion may be taught in public schools subject to the following requisites: residents. 1) Express written option by parents and guardians; 2) Taught within regular class hours; II. Tax Exemptions 3) Instructors are designated and approved by the proper religious authorities; and A. Non-stock, non-profit educational institutions: 4) WITHOUT ADDITIONAL COST TO THE GOVERNMENT. 1) All revenues and assets actually, directly and exclusively used for educational purposes are exempt from taxes and duties. Section 6. Language 2) This is self-executory. 1) National language: Filipino B. Proprietary educational institutions, including cooperatives: 2) Official Languages: Filipino, and unless otherwise provided by law, English. 1) Entitled to exemptions as may be provided by law, including restrictions on 3) Regional languages are auxiliary to the official languages. dividends and re-investment 4 (Spanish and Arabic are promoted only on an optional and voluntary basis.
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REVIEWER & MEMORY AID B. Implied consent:
ARTICLE XVI - GENERAL PROVISIONS 1). The State enters into a private contract. 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.
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 incident al 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.
Section 3. State Immunity Suability of State
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) The State cannot be sued without its consent. 2) When considered a suit against the State 1) GENERAL RULE: NO. Whether the money is deposited by way of general or special a). The Republic is sued by name; deposit, they remain government funds and are not subject to garnishment. b). Suits against an un-incorporated government agency; 2) EXCEPTION: A law or ordinance has been enacted appropriating a specific amount c). Suit is against a governme nt official, but is such that ultim ate liability shall to pay a valid government obligation, then the money can be garnished. 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 Consent to be sued is not equivalent to consent to liability: bad faith, they are not personally liable, and the suit is really one against the State. 1) The Fact that the State consented to being sued does not mean that the State will 3) This rule applies not only in favor of the Philippines but also in favor of foreign states. ultimately be held liable. 4) The rule likewise prohibits a person from filing for interpleader, with the State as 2) Even if the case is decided against the State, an award cannot be satisfied by writs one of the defendants being compelled to interplead. 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. 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.
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.
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REVIEWER & MEMORY AID 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. 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 Constitu tion and to ratify such proposal. Legislative power is the power to pass, repeal or amend or ordinar y 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.
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REVIEWER & MEMORY AID 3) Examples of justiciable issues:
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 judici al 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 deta ils. But in so doing, Congres s (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 amendme nts 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 subst ance of the propo sals 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.
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) b) c)
Held in a p lebiscite conducted under the election law; Supervised by the COMELEC; and 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 t he p roposed am endments/revisions ma de b y th e co nstituent 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. ARTICLE XVIII - TRANSITORY PROVISIONS
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REVIEWER & MEMORY AID 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 XVI II allows possibl e local deploym ent of only AMERICAN forces.
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