POLlination

Question 1

What is a Constitution?

Answer 1

A Constitution is a body of rules and maxims in accordance with which powers of sovereignty are habitually exercised.

Question 2

What are the parts of the 1987 Philippine Constitution?

Answer 2

There are 18 Articles in the Philippine Constitution, namely:
I National Territory
II Declaration of Principles and State Policies Principles
III Bill of Rights
IV Citizenship
V Suffrage
VI Legislative Department
VII Executive Department
VIII Judicial Department
IX Constitutional Commissions
X Local Government
XI Accountability Of Public Officers
XII National Economy and Patrimony XIII Social Justice and Human Rights XIV Education, Science and Technology, Arts, Culture, and Sports
XV The Family
XVI General Provisions
XVII Amendments or, Revisions
XVIII Transitory Provisions

Question 3

What does a Self-Executing and a Non-Executing provision mean?

Answer 3

A Self-Executing provision, denotes a provision which is complete in itself and becomes operative without the aid of supplementary or enabling legislation. It is a provision that supplies a sufficient rule by means of which the right it grants may be enjoyed or protected. A Non-Executing provision, on the other hand, is that which lays down a general principle. (NACHURA, p. 4)

Question 4

What is the nature of the Philippine State?

Answer 4

The Philippines is a democratic and republican state. Sovereignty resides in the people and all government authority emanates from them (CONST. Art. II, Sec. 1)

Question 5

What are the elements of a State?

Answer 5

The elements of a State are: 1) People; 2) Territory; 3) Government; and 4) Sovereignty. (NACHURA, p. 39-46).

Question 6

What is a democratic state?

Answer 6

A democratic state is a state which has some aspects of direct democracy such as initiative and referendum (BERNAS, 1987 Philippine Constitution: A Comprehensive Reviewer (2011), p.56 [hereinafter BERNAS, Reviewer]).

Question 7

What is a republican state?

Answer 7

A republican state is a state wherein all government authority emanates from the people and is exercised by representatives chosen by the people (Id).

Question 8

What are the essential features of republicanism?

Answer 8

The following are the essential features of republicanism:
1. Representation - People are
represented since republicanism is a
representative government.
2. Renovation - Selection by the citizenry of a corps of public functionaries who derive their mandate from the people and act on their behalf, serving for a limited period only, after which they are replaced or retained at the option of their principal (NACHURA, p. 73).

Question 9

What are the manifestations of republicanism?

Answer 9

1. Ours is a government of laws and not of men
2. Rule of majority
3. Accountability of public officials
4. Bill of Rights
5. Legislature cannot pass irrepealable laws
6. Separation of powers
7. Non-delegation of powers
8. Blending of powers.
9. Checks and balances

Question 10

What is the Philippine policy with regard to war?

Answer 10

The Philippines renounces war as ap 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 (CONST. Art. II, Sec. 2). However, it is to be noted that this provision speaks of an offensive war, not of a defensive war, the existence of which may be declared by Congress (CONST. Art. VI, Sec. 23).

Question 11

State the doctrine of incorporation.

Answer 11

The Philippines 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 (CONST. Art. II, Sec. 2).

Question 12

How is Art. II, Sec. 2 different from Art. VII, Sec. 21 of the Constitution?

Answer 12

Article II, Section 2 of the Constitution deals with international obligations that are incorporated, i.e., generally accepted principles of international law. Article VII, Section 21, requiring the concurrence of the Senate, deals with international obligations that become binding through ratification (Air Canada v. CIR, G.R. No. 169507, January 11, 2016).

Question 13

What is the Doctrine of Incorporation?

Answer 13

The Doctrine of Incorporation is a method which applies, by mere constitutional declaration, international law is deemed to have the force of domestic law (Pharmaceutical and Health Care Association of the Philippines v. Duque, G.R. No. 173034, October 9, 2007).

Question 14

How should conflict be reconciled if there is conflict between an international law and a local law or the Constitution?

Answer 14

The doctrine of incorporation dictates that rules of international law are given equal standing with, and are not superior to, national legislative enactments. Accordingly, the principle of lex posterior derogat priori takes effect. In states where the constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated it they are in conflict with the constitution.

Question 15

What is civilian supremacy?

Answer 15

Civilian supremacy means that civilian authority is, at all times, supreme over the military (CONST. Art. II, sec. 3). The principle is based on the fact that “sovereignty resides in the people and all government authority emanates from them” (CONST. Art. II, Sec. 1).

Question 16

What is the role of the Armed Forces of the Philippines (AFP)?

Answer 16

The AFP 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 (CONST. Art. |1, Sec. 3).

Question 17

What is social justice?

Answer 17

Social justice is neither communism, nor despotism, nor atomism, nor anarchy, but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means promoting the welfare of all the people, the adoption by the government of all the component elements of society through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through its adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est supreme lex (Calalang v. Williams, G.R. No. 47800, December 2, 1940).

Question 18

Is social justice absolute?

Answer 18

No. Social justice cannot be invoked to trample the rights of property owners nor can it nullify a law on obligations and contracts. The social justice consecrated in our Constitution was not intended to take away rights from a person and give them to another who is not entitled thereto (Salonga v. Farrales, G.R. No. L-47088, July 10, 1981).

Question 19

What is the state policy on the family?

Answer 19

The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government (CONST, Art. II, Sec. 12).

Question 20

What is the doctrine of parens patriae?

Answer 20

When actions concerning the child have a relation to the public welfare or the wellbeing of the child, the State may act to promote these legitimate interests. As parens patriae, the State has the inherent right and duty to aid parents in the moral development of their children, and, thus, assumes a supporting role for parents to fulfil their parental obligations (Samahan Ng Mga Progresibong Kabataan v. Quezon City, G.R. No. 225442, August 8, 2017).

Question 21

What is the state policy on the youth?

Answer 21

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

Question 22

What are the distinctions between revision and amendment?

Answer 22

Revision broadly implies a change that alters a basic principle in the Constitution, like altering the principle of separation of powers or the system of checks and balances.
There is also revision if the change alters the substantial entirety of the Constitution. On the other hand, amendment broadly refers to a change that adds, reduces, deletes, without altering the basic principle involved. Revision generally affects several provisions of the Constitution; while amendment generally affects only the specific provision being amended (Lambino v. COMELEC, G.R. No. 174153, October 25, 2006).

Question 23

How do we determine whether a proposal is an amendment or revision?

Answer 23

In determining whether the Lambino proposal involves an amendment or a revision, the Court considered the two-part test. First, the quantitative test asks whether the proposed change is so extensive in its provisions as to change directly the “substance entirety” of the Constitution by the deletion or alteration of numerous provisions. The court examines only the number of provisions affected and does not consider the degree of the change. Second, the qualitative test, which inquires into the qualitative effects of the proposed change in the Constitution. The main inquiry is whether the change will “accomplish such far-reaching changes in the nature of our basic governmental plan as to amount to a revision.”

Question 24

What is the process of revising the Constitution?

Answer 24

According to Sec. 1, Art. XVII of the 1987 Constitution, any amendment or revision may be proposed by:
1. The Congress, upon a vote of three-fourths of all its Members; or
2. A constitutional convention.

Question 25

What is the process of amending the Constitution?

Answer 25

1. Proposal, which is the adoption of the suggested change in the Constitution. A proposal may come from:
   a. Congress, by a vote of ¾ of all its members
   b. Constitutional Convention, which may be called into existence either by a 2/3 vote of all the members of Congress, or by a majority vote of all the members of Congress whether or not to call a Convention to be resolved by the people in a plebiscite
   c. The people, through. the power of initiative. (NAGHURA, p. 14),
2. Ratification, the process wherein the proposed amendment shall become part of the Constitution when ratified by a majority of the votes cast in a plebiscite (NACHURA, p. 16).

Question 26

How many delegates does a Constitutional Convention have?

Answer 26

There is no fixed number in the number of delegates in a constitutional convention.
The number of delegates in the constitutional convention is to be determined by the Congress (Imbong v. COMELEC, G.R. No. L-32432, September 11, 1970).

Question 27

May a plebiscite be held on the same day as the regular election?

Answer 27

Yes. Plebiscite may be held on the same day as the regular election, provided that the people are sufficiently. informed of the amendments to be voted upon, to conscientiously deliberate thereon, to express their willin a genuine manner (Gonzales v. COMELEC, G.R. No. L-28196, November 9, 1967).

Question 28

What are the requisites for the exercise of people’s initiative?

Answer 28

1. There must be a petition;
2. Full text of the proposed changes must be in the petition itself and it may be either written on the face of the petition, or attached to it;
3. Petition must be signed by at least 12% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the voters registered therein;
4. There must be an enabling law;
5. People’s initiative may be exercised by the people once every 5 years;
6. Petition must be signed personally by the people; and
7. It shall cover only amendments and not revisions (NACHURA, p. 14-15).

Question 29

What are the classes of people’s initiative?

Answer 29

1. Initiative on the Constitution - petition proposing amendments to the Constitution;
2. Initiative on Statutes - petition proposing to enact a national legislation; and
3. Initiative on Local Legislation - petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or ordinance (R.A. No. 6735, Sec. 3(a)).

Question 30

What is indirect initiative?

Answer 30

Indirect initiative is the exercise of initiative by the people through a proposition sent to Congress or the local legislative body for action (R.A. 6735, Sec. 3(b)).

Question 31

What is referendum?

Answer 31

Referendum is the power of the electorate to approve or reject legislation through an election called for that purpose (R.A. No: 6735, Sec. 2 (c))

Question 32

What are the classes of referendum?

Answer 32

1. Referendum on Statutes - petition to approve or reject an act or law or part 2.
2. Referendum on Local Laws - legal process whereby the registered voters of thereof, passed by Congress (CONST. Art. Vil Sec: 32) and the local government units may approve, amend, or reject any ordinance enacted by the Sanggunian (LGC, Sec. 126).

Question 33

TERRITORIAL SEA

Answer 33

The territorial sea is a belt of sea outwards from the baseline and up to 12 nautical miles beyond. The width of this territorial belt of water has been the subject of much disagreement. The original rule was the “cannon shot” rule, that is, the width of water was measured in terms of the range of shore-based artillery. Later this became the three-mile rule. The three-mile rule has now been discarded in favor of the twelve-mile rule now found in Article 3 of the 1982 Law of the Sea.
(Art. 3, United Nations Convention on the Law of the Sea)

Question 34

OUTER LIMIT OF THE TERRITORIAL
SEA

Answer 34

The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea. (Art. 4, United Nations Convention on the Law of the Sea)

Question 35

INTERNAL WATERS

Answer 35

1. Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.
2. Where the establishment of a straight baseline in accordance with the method set forth in Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters. (Art. 8, United Nations Convention on the Law of the Sea)

Question 36

CONTIGUOUS ZONE

Answer 36

The contiguous zone is an area of water not exceeding 24 nautical miles from the baseline. It thus extends 12 nautical miles from the edge of the territorial sea. The coastal state exercises authority over that area to the extent necessary to prevent infringement of its customs, fiscal, immigration or sanitation authority over its territorial waters or territory and to punish such infringement. (Art. 33, United Nations Convention on the Law of the Sea)

Question 37

EXCLUSIVE ECONOMIC ZONE
(PATRIMONIAL SEA)

Answer 37

The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention. (Art. 55, United Nations Convention on the Law of the Sea)

Question 38

RIGHTS, JURISDICTION AND DUTIES OF THE COASTAL STATE IN THE EXCLUSIVE ECONOMIC ZONE

Answer 38

1. In the exclusive economic zone, the
   coastal State has:
   (a) sovereign rights for the purpose of
   exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;
   (b) jurisdiction with regard to:
   (i) the establishment and use of artificial islands, installations and structures;
   (ii) marine scientific research;
   (iii) the protection and preservation of the marine environment;
   (c) other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention. (Art. 56, United Nations Convention on the Law of the Sea)

Question 39

BREADTH OF THE EXCLUSIVE
ECONOMIC ZONE

Answer 39

The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. (Art. 57, United Nations
Convention on the Law of the Sea)

Question 40

RIGHTS AND DUTIES OF OTHER STATES IN THE EXCLUSIVE ECONOMIC ZONE

Answer 40

1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.
2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.
3. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part. (Art. 58, United Nations
   Convention on the Law of the Sea)

Question 41

CONTINENTAL (ARCHIPELAGIC) SHELF

Answer 41

The continental shelf, archipelagic or insular shelf for archipelagos, refers to:
(a) the seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea, to a depth of two hundred meters or, beyond that limit, to where the depth allows exploitation; and
(b) the seabed and subsoil of areas adjacent to islands. (Art. 76, United Nations Convention on the Law of the Sea)

Note: The coastal state has the right to explore and exploit its natural resources, to erect installations needed, and to erect a safety zone over its installations with a radius of 500 meters. The right does not affect the right of navigation of others. Moreover, the right does not extend to non-resource material in the shelf area such as wrecked ship and their cargoes. (Art. 77, United Nations Convention on the Law of the Sea)

Question 42

What is the Doctrine of Separation of Powers?

Answer 42

The Doctrine of Separation of Powers refers to the constitutional demarcation of the three fundamental powers of government. To the legislative branch of government, through Congress, belongs the power to make laws; to the executive branch of government, through the President, belongs the power to enforce laws; and to the judicial branch of government, through the Court, belongs the power to interpret laws. Because the three great powers have been, by constitutional design, ordained in this respect, “each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere” (Belgica v. Ochoa, G.R. No. 208566, November 19, 2013).

Question 43

What is the principle of blending of powers?

Answer 43

Blending of powers is necessary to properly address the complexities brought about by a rapidly developing society and which the traditional branches of government have difficulty coping with. Although the principle of separation of powers must be observed, it does not necessarily follow that an entire and complete separation is either desirable or was ever intended, for such a complete separation would be impracticable if not impossible; there may be-and frequently are-areas in which executive, legislative, and judicial powers blend or overlap; and many officers whose duties cannot be exclusively placed under any one of these heads (Ople v. Torres, et.al., G.R. No. 127685, July 23, 1998).What are the examples of the principle of blending of powers?

Question 44

What are the examples of the principle of blending of powers?

Answer 44

1. The President prepares a budget and the Congress enacts an appropriation bill pursuant to that budget (CONST. Art. VII, Sec. 22);

2. The President enters into and ratifies a treaty with other States and the Senate concurs with the same (CONST. Art. VII, Sec. 21); and

3. The grant of amnesty by the President is subject to the concurrence of a majority of all the members of the Congress (CONST. Art. VII, Sec. 19, par. (2)).

Question 45

What is the doctrine of checks and balances?

Answer 45

This is a mechanism by which one department is allowed to resist encroachments upon its prerogatives or to rectify mistakes or excesses committed by the other departments (NACHURA, p. 97). However, the Supreme Court is the final arbiter to determine whether there has been an encroachment between the branches (Angara v. The Electoral Commission G.R. No. L-45081, July 15, 1936).

Question 46

Why is the doctrine of state immunity also available to foreign states?

Answer 46

The doctrine of State immunity is also available to foreign States in so far as they are sought to be sued in the courts of the local State (Syquia v. Lopez, G.R. No. L-1648, August 17, 1949). Immunity is enjoyed by all States consonant with the public international law principle par in parem non habet imperium that all states are sovereign equals and cannot assert jurisdiction over one another (Minucher v. CA, G.R. No. 142396, February 11, 2013).

Question 47

When may there be a waiver of state immunity?

Answer 47

In order that a suit may lie against the State, it must give its consent, whether express or implied (DOTC v. Spouses Abecina, G.R. No. 206484, June 29, 2016).

Question 48

How may the State give its express consent to be sued?

Answer 48

Express consent may be made through a general law or a special law. In this jurisdiction, a general law waiving the immunity of the state from certain suits is found in Act No. 3083.

Question 49

How may the State give its implied consent to be sued?

Answer 49

(PBSI)

1.When the State enters into a Private contract, unless the contract is only incidental to the performance of a government function. This concept of restrictive theory holds that the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii, but not with regard to private acts or acts jure gestionis (Republic of indonesia.v. Vinzon, G.R. No. 154705, June 26, 2003);

2. When the State enters into an operation that is essentially a Business operation, unless the business operation is only incidental to the performance of a governmental function, as”for instance, arrastre service (Mobil Philippines v. Customs Arrastre Service, G.R. No. L-23139, December 17, 1966);

3.When the state Sues a private party, it becomes vulnerable to counterclaim, unless the suit is entered into only to resist a claim (Lim v. Brownell, G.R. No. L-8587, March 24, 1960); and

4. When the application of the doctrine of state immunity would serve as an instrument for perpetrating an Injustice to a citizen, as when the State enters and takes possession of a private property without just compensation and without first initiating regular expropriation proceedings (DOTC v. Spouses Abecina, G.R. No. 206484, June 29, 2016).

Question 50

What is the scope of the consent that may be given by the State?

Answer 50

Where the State gives its consent to be sued by private parties either by general or special law, it may limit the action only up to the completion of proceedings anterior to the stage of execution and that the power of courts ends when the judgment is rendered, since government funds and properties may not be seized under writs of execution or garnishment to satisfy such judgments. Disbursements of public funds must be covered by the corresponding appropriation as required by law (Republic v. Villasor, G.R. No. L30671, November 28, 1972).

Before levy on execution may proceed, a claim for payment of the judgment award must first be filed with the COA, which has the primary jurisdiction to examine, audit, and settle “all debts and claims of any sort” due from or owing the Government or any of its subdivisions, agencies, and instrumentalities, including Government-owned and/or controlled corporations (GOCCs) (Agra v. COA, G.R. No. 167807, December 6, 2011).

Question 51

What are the rules regarding garnishment or levy of government funds in government depository?

Answer 51

As a general rule, government funds deposited with PNB or authorized depositories cannot be subject to garnishment (PNB v. Pabalan, G.R. No. L-33112, June 15, 1978).

Exceptions:

1. Where law or ordinance has already been enacted appropriating a specific amount to pay a valid governmental obligation;
2. Funds belonging to government corporations which can sue and be sued that are deposited with a bank (Municipality of San Miguel, Bulacan v. Fernandez, G.R. No. L-61744, June 25, 1984); or
3. If the funds belong to a public corporation or a GOCC which is clothed with a personality of its own, separate and distinct from that of the government, then its funds are not exempt from garnishment (National Housing Authority v. Heirs of Isidro Guivelondo, G.R. No, 154411, June 19, 2003).

Question 52

What are the rules regarding payment of interests by Government in money judgments against it?

Answer 52

As a general rule, the government cannot be made to pay interests.

Exceptions:

1. Expressly stipulated (Sarasola v. trinidad, G.R. No. 14595, October 11, 1919);

2.Eminent domain

3.Erroneous collection of taxes (Sarasola v. Trinidad, supra); or

4.Where the government agrees to pay interest pursuant to law (Sarasola v. Trinidad, supra).

5. When the application of the doctrine of state immunity would serve as an instrument for perpetrating an Injustice to a citizen, as when the State enters and takes possession of a private property without just compensation and without first initiating regular expropriation proceedings (DOTC v. Spouses Abecina, G.R. No. 206484, June 29, 2016).

Question 53

What is the rule on the Delegation of Powers?

Answer 53

The rule is potestas delegate non delegari potest - what has been delegated cannot be delegated. It is based upon the ethical principle that such delegated power constitutes not only a right but a duty to be performed by the delegate through the instrumentality of his own judgment and not through the intervening mind of another (Abakada Guro Party List v. Ermita, G.R. No. 168056, September 1, 2005).

Question 54

When is delegation of powers permissible?

Answer 54

(PETAL)

1.Delegation to the People at large, such as:
a. System of initiative and referendum (CONST. Art. VI, Sec. 32 and The Initiative and Referendum Act (R.A. 6735)); and
b. Requirement of plebiscite in the creation, division, merger, and abolition of LGUs (CONST. Art. X, Sec. 10);

2.Emergency Powers of the President (CONST. Art, VI Sec. 23(2));

3.Tariff Powers of the President (CONST. Art. VI, Sec. 28(2));

4.Delegation to Administrative Bodies of the power of subordinate legislation (Gerochi v. DENR, G.R. No. 159796, July 17, 2007); and

5.Delegation to Local Government Units (People v. Vera, G.R. No. L-45685, November 16, 1937).

Question 55

What are the tests for a valid delegation?

Answer 55

1. Completeness test - the law is complete when ti sets forth therein the policy to be executed, carried out, or implemented by the delegate; and
2. Sufficient standard test - to be sufficient, the standard must specify the limits of the delegate’s authority and identify the conditions under which the legislative policy so announced is to be implemented (Abakada Guro Partylist v. Purisima, G.R. No. 166715, August 14, 2008).

Both tests are intended to prevent a total transference of legislative authority to the delegate, who is not allowed to step into the shoes of the legislature and exercise a power essentially legislative (Eastern Shipping Lines v. POEA, G.R. No 76633, October 18,1988)

Question 56

What are the inherent powers of the state?

Answer 56

1. Police Power;
2. Power of Eminent Domain; and
3. ThePower of Taxation.

They are considered inherent because they belong to the very essence of government and without them no government can exist. A constitution does not grant these powers (BERNAS, p.23). They are supposed ot co-exist with the State. The moment the State comes into being, ti si deemed invested with these three powers as its innate attributes (CRUZ, Law on Public Officers, supra at 80).

Question 57

What is Police Power?

Answer 57

Police Power pertains to the state’s authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare (Edu v. Ericta, G.R. No. L-32096 October 24, 1970). tI is the most pervasive, the least limitable, and the most demanding of the three fundamental powers of the State. The justification is found in the Latin maxims salus populi est suprema lex (the welfare of the people is the supreme law) and sic utere tuo ut alienum non laedas (so use your property as not to injure the property of others). As an inherent attribute of sovereignty, which virtually extends to all public needs, police power grants a wide panoply of instruments through which the State, as parens patriae, gives effect to a host of its regulatory powers (Gerochi, et al., v. DOE, G.R. No. 159796, July 17, 2007).

Question 58

What are the characteristics of Police Power?

Answer 58

Police Power has been properly characterized as the most essential, insistent, and the least limitable of al powers, extending as it does to al the great public needs (Ermita- Malate Hotel and Motel Operators Ass’n., Inc., v. City Mayor of Manila, G.R. No. L-24693, July 31, 1967).

Question 59

What are the basic limitations on the exercise of Police Power?

Answer 59

1.Due Process Clause; and

2.Equal Protection Clause (CONST. Art. Il, Sec. 1).

Question 60

What are the requisites for the valid exercise of Police Power?

Answer 60

1. Lawful subject - the power wil be exercised to promote the interests of the public in general, as distingüished from those of a particular class.
2. Lawful means - the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive on individuals (Planters Products, Inc., v. Fertiphil Corporation, G.R. No. 156278, March 29, 2004).

Question 61

What are the tests to determine the validity of an ordinance?

Answer 61

For an ordinance to be valid, it must not only be within the corporate powers of the local government unit ot enact and pass according to the procedure prescribed by law, it must also conform to the following substantive requirements:

(CUP2GU)

1. Must not Contravene the Constitution or any statute;
2. Must not be Unfair or oppressive;
3. Must not be Partial or discriminatory;
4. Must not Prohibit but may regulate trade;
5. Must be General and consistent with public policy; and
6. Must not be Unreasonable (White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009).

Question 62

What is the power of Eminent Domain?

Answer 62

The inherent power of the State to take or appropriate private property for public use. The Constitution requires that private property shal not be taken without due process of law and payment of just compensation (Manila Memorial Park v. Sec of DSWD, G.R. No. 175356, December 3, 2013).

Question 63

How is just compensation computed in cases of partial expropriation?

Answer 63

The formula for determination of just compensation is consequential damage to the property not taken minus consequential benefits to the property taken plus the fair market value (FMV) of the property i.e. [(Consequential Damage - Consequential Benefits) + FMV. However, in no case shall the owner be deprived of the fair market value of his property (RULES OF COURT, Rule 67, Sec. 6).

Note: The Local Government Code provides that the amount to be paid for the expropriated property shall be determined by the proper court based on the FMV at the time of taking of the property.

Question 64

Is the power to expropriate inherent in Local Government Units (LGUs)?

Answer 64

No. Before LGUs can exercise the right, some law must exist conferring the power upon it. The conditions before an LGU may exercise eminent domain are:

1.That a law or authority exist for the exercise of the right of eminent domain; and

2.That the right or authority is being exercised in accordance with the law (City of Manila v. Chinese Community of Manila, G.R. No. 14355, October 31, 1919).

Question 65

May the Power of Eminent Domain be used as an implement of Police Power?

Answer 65

Yes. There are traditional distinctions between the Police Power and the Power of Eminent Domain that logically preclude the application of both powers at the sametime on the same subject. Recent trends, however, would indicate not a polarization but a mingling of the police power and the power of eminent domain, with the latter being used as an implement of the former. (Association of Smal Landowners ni the Philippines, Inc., v. Secretary of Agrarian Reform, G.R. No. 78742, July 14, 1989).

Question 66

What are the qualifications of a Senator?

Answer 66

(N35-RAW-VR2)

1. Natural-born citizen of the Philippines;
2. At least 35 years of age on the day of the election;

3.Able to Read And Write;

4. Registered Voter; and
5. Resident of the Philippines for not less than 2 years immediately preceding the day of the election (CONST. Art. VI, Sec. 3).

Question 67

How long is a Senator’s term of office?

Answer 67

The term of office of the Senators shall be 6 years and shall commence, unless otherwise provided by law, at noon on the 30th day of June next following their election.

No Senator shall serve for more than 2 consecutive terms. Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of his service for the ful term for which he was elected (CONST. Art. VI, Sec. 4).

Question 68

What is the composition of the House of Representatives (HOR)?

Answer 68

The HOR shall be composed of not more than 250 members unless otherwise fixed by law, consisting of:

1. District Representatives - elected from legislative districts apportioned among the provinces, cities and the Metropolitan Manila area (CONST. Art. V,I Sec. 5, par. (1)); and
2. Party-list Representatives - shall constitute 20% of the total number of representatives, elected through a party-list system of registered national, regional, and sectoral parties of organizations. (CONST. Art. VI, Sec. 5 (1), (2); R.A. No. 7941, otherwise, known as “The Party-List System Act”).

Question 69

May Congress increase its membership by passing a law?

Answer 69

The Constitution clearly provides that Congress shall be composed of not more than 250 members, unless otherwise fixed by law. As thus worded, the Constitution did not preclude Congress from increasing its membership by passing a law, other than a general reapportionment of the law (Mariano v. COMELEC,G.R, No. 118577, March 7, 1995).

Question 70

What is the term of office of the members of the HOR?

Answer 70

The Members of the HOR shall be elected for a term of 3 years which shall begin, unless otherwise provided by law, at noon on the 30th day of June next folowing their election. No Member of the HOR shall serve for more than 3 consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption ni the continuity of his service for the ful term for which he was elected (CONST. Art. VI, Sec. 7).

Question 71

What are the qualifications of a District Representative?

Answer 71

(N25-RAW-VR1)

1. Natural-born citizen of the Philippines;
2. At least 25 years of age on the day of the election;
3. Able to Read And Write;
4. A registered Voter in the district in which he shall be elected; and
5. Resident of the district in which he seeks to be elected for a period of not less than 1 year immediately preceding the day of the election (CONST. Art. VI, Sec. 6).

Question 72

What is the difference between domicile and residence?

Answer 72

Residence is used to indicate a place of abode, whether permanent or temporary; domicile denotes a fixed permanent residence to which, when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. Aman can have but one domicile for the same purpose at any time, but he may have numerous places of residence. His place of residence is generally his place of domicile, but it is not by any means necessarily so since no length of residence without intention of remaining wil constitute domicile (Romualdez-Marcos .v COMELEC, G.R. No. 119976, September 18, 1995).

Question 73

What are the parameters in the election of party-lists?

Answer 73

1.The 20% allocation - 20% of the total membership of the House of Representatives is the maximum number of seats allocated for party-list representatives. In other words, there is one party-list seat for every four legislative districts seat.

2.The 2% threshold - A guaranteed seat for a party-list organization garnering 2% of the total votes cast. The guaranteed seats shall be distributed in a first round of seat allocation to parties that receive at least two percent of the total party-list votes.

3.Proportional representation - The additional seats, that is, the remaining seats after allocation of the guaranteed seats, shall be distributed to the party- list organizations including these that received less than 2% of the total votes.

4.The three-seat cap - Each qualified party, regardless of the number of votes ti actually obtained, is entitled only to a maximum of 3 seats (Banat v. COMELEC, G.R. No. 179295, April 21, 2009).

Question 74

What are the qualifications of a Party List Nominee?

Answer 74

(N25-RAW-VR1-M)

1. Natural born citizen;
2. At least 25 years of age on the day of the election, or in case of a nominee of the youth sector, he must at least be 25 but not more than 30 years old on the day of the election;
3. Able to Read And Write;
4. A registered voter,
5. A Resident of the Philippines for a period of not less than 1 year immediately preceding the day of the election, and
6. A bona fide Member of the party or organization which he seeks ot represent for at least 90 days preceding the day of the election (R.A. No. 7941, Sec. 9).

Question 75

What is the effect of a change in affiliation of any elected party-list representative?

Answer 75

Any elected party-list representative who changes his political party or sectoral affiliation during his term of office shal forfeit his seat: Provided, that fi he changes his political party or sectoral affiliation within 6 months before an election, he shall not be eligible for nomination as party-list representative under his new party or organization (R.A. No. 7941, Sec. 15).

Question 76

What is the rule on vacancies in the seats of party-list representatives?

Answer 76

In case of vacancy in the seats reserved for party-list representatives, the vacancy shal be automatically filed by the next representative from the list of nominees ni the order submitted ot the COMELEC by the same party, organization, or coalition, who shal serve for the unexpired term. fI the list si exhausted, the party, organization, or coalition concerned shall submit additional nominees (R.A. No. 7941, Sec. 16).

Question 77

What are the rules on compensation of Senators and Members of HOR?

Answer 77

The salaries of Senators and Members of the HOR shall be determined by law. No increase in said compensation shall take effect until after the expiration of the full term of al the Members of the Senate and the HOR approving such increase (CONST. Art. VI, Sec. 10).

Question 78

What are the legislative privileges granted to members of Congress?

Answer 78

1. Privilege from arrest - In all offenses punishable by not more than 6 years imprisonment, a Senator or a member of the House shall be privileged from arrest while the Congress is ni session (CONST. Art. V,I Sec. 11). “Session” - covers the entire period from its initial convening until its final adjournment (CRUZ, Philippine Political Law, supra at 228-229);
2. Parliamentary privilege of speech and debate - They shall not be questioned nor be held liable in any other place for any speech or debate made ni the Congress or in any committee thereof (CONST. Art. V,I Sec. 11). However, they can be subjected to disciplinary action by the Congress itself (Chavez v. JBC, G.R. No. 202242, April 16, 2013).

Question 79

What are the requisites to avail of the privilege of speech and debate?

Answer 79

1.The remarks must be made while the legislature or the legislative committee is in session; and

2. The remarks must be made in connection with the discharge of official duties (Trillanes VI v. Castillo-Marigomen, G.B. No. 223451, March 14,2018, citing Jimenez v. Cabangbang, G.R. No. L-15905, August 3, 1966).

Question 80

May Members of Congress practice their professions?

Answer 80

Yes. As to the members of Congress, there is no general prohibition as to the practice of their professions. However, members of Congress who are also members of the Bar may practice law subject to the constitutional limitation that they shall not personally appear as counsel before any court of justice, the Electoral Tribunals, or quasi-judicial and other administrative bodies (CONST. Art. VI, Sec. 14).

Question 81

What is the quorum prescribed for the Houses of Congress?

Answer 81

A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members ni such manner and under such penalties as such House may determine (CONST. Art. VI, Sec. 16, par. (2).

Question 82

What is the basis for determining the existence of a quorum?

Answer 82

The basis for determining the existence of aquorum ni the Senate shall be the total number of Senators who are in the country and withinthe coercive jurisdiction of the Senate (Avelino v. Cuenco, G.R. No. L-2821, March 4, 1949). The same principle maybe applied for the determination of quorum ni the HOR.

Question 83

How many votes constitute a “majority of ALL members”?

Answer 83

This refers to an “Absolute Majority” which requires the majority of al electors regardless of the number of members present or absent during the time a question is put to a vote, provided a quorum exists.

For example, even if only 23 Senators are present at the vote, an absolute majority would require the concurrence of at least 13 senators or (24/2) + 1. For the HOR, the number would be 126 which si (250/2) + 1

Question 84

How many votes constitute “a majority of the house?”

Answer 84

This refers to a type of “Simple Majority” which requires the concurrence of more than half the electors that are within the coercive jurisdiction of the House, provided there is a quorum.

For example, suppose 3 Senators are abroad, then, a simple majority is at least 1 which is more than half the Senators who are within the coercive jurisdiction of the Senate.

Question 85

How are laws enacted?

Answer 85

A bill is signed by its authors and filed with the Secretary of the House. It may originate from either the lower or upper House, except appropriation, revenue or tariff bills, bills authorizing increase of public debt, bills of local application, and private bills, which shall originate exclusively from the House of Representatives.

1. First reading - reading of the number and title of the bill, which is then referred to the appropriate Committee for study and recommendation, which may include the conduct of public hearings. The Committee will submit its report and recommendation for Calendar for second reading;
2. Second reading - reading of the bill in full with the amendments proposed by the Committee, fi any, unless copies thereof are distributed and such reading is dispensed with. The bill will be subject to debates, pertinent motions, and amendments. After the amendments shall have been acted upon, the bill will be voted on second reading (Id.);
3. Third reading - submission of the bill as approved on second reading for a final vote by yeas and nays;
4. Conference Committee reports - transmittal of the bill approved on third reading by one House to the other House for concurrence. The other House shall follow the same procedure. If the other House approves the bill without amendments, the bill is passed b y Congress and the same will be transmitted to the President. If the other House introduces amendments, with which the originating House does not agree, the differences will be settled by the Conference Committees of both Houses. The Conference Committee’s report will have to be approved by both Houses in order that it will be considered passed by Congress and thereafter sent to the President;
5. Authentication of bills - signing by the Speaker and the Senate President of the printed copy o f the approved bill, followed by t h e certification by the respective secretaries of the both Houses, before ti is sent to the President;
6. President’s approval or veto - transmittal of the authenticated bill to the President. If he approves the same, h e shall sign it; otherwise, he shall veto ti and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. The President shall communicate his veto of any bil to the House where ti originated within 03 days after the date of receipt thereof; otherwise, ti shall become a law as fi he had signed it (CONST. Art. V,I Sec. 27(1)); and
7. Reversal of veto - If, after such reconsideration, two-thirds of al the Members of such House shall agree to pass the bill, ti shall be sent, together with the objections, to the other House by which ti shall likewise be reconsidered, and fi approved by two-thirds of al the Members of that House, ti shall become a law (CONST. Art. VI, Sec. 27(1)).

Question 86

Overriding a Veto

Answer 86

Every bil passed by the Congress shall be presented to the President. If he approves, he shall sign it; otherwise, he shall veto it and return it to the House where it originated. If, after such reconsideration, two-thirds (2/3) of al the members of such House shall agree to pass the bil, ti shall be sent, together with the objections, to the other House by which ti shal likewise be reconsidered, and fi approved by, two-thirds (2/3) of al the members of that House, it shall become law. To override the veto, at least, two-thirds (2/3) of all the members of each House must agree to pass the bil. In such case, the veto is overridden and becomes a law without need of presidential approval. (CONST. Sec. 27 (1), Art VI).

Question 87

What is the Power of Appropriation?

Answer 87

The power of appropriation is the power ot specify how money shall be spent (Gonzales v. Macaraig, G.R. No. 87636, November 19, 1990). Also called the “power of the purse”, it belongs to Congress, subject only to the veto power of the President. It carries with it the power to specify the project or activity to be funded under the appropriation law (Philippine Constitution Association v. Enriquez, G.R. No. 113105, August 19, 1994).

Question 88

What are the classifications of appropriations laws?

Answer 88

1.General appropriation law - passed annually, intended for the financial operations of the entire government during one fiscal period; and

2. Special appropriation law - designed for a specific purpose (CRUZ, Political Law, supra at 306).

Question 89

What is Pork Barrel?

Answer 89

Pork barrel is “an appropriation of government/spending meant for localized projects and secured solely or primarily ot bring money to a representative’s district.”

Pork Barrel System is the collective body of rules and practices, in whatever name or form, that govern the manner by which lump-sum discretionary funds, primarily intended for local projects, are utilized through the respective participations of the Legislative and Executive branches of government, including its members (Belgica v. Ochoa, supra).

Question 90

Is Pork Barrel Unconstitutional?

Answer 90

Yes. The Supreme Court declared its latest iteration as the “Priority Development Assistance Fund (PDAF)” as unconstitutional with a vote of 14-0 (Belgica v. Ochoa, supra).

Question 91

What are the two kinds of lump-sum discretionary funds under the Pork Barrel System?

Answer 91

1. Congressional Pork Barrel - which is a kind of lump-sum, discretionary fund wherein legislators, either individually or collectively organized into committees, are able to effectively control certain aspects of the fund’s utilization through various post-enactment measures and/or practices; and

2.Presidential Pork Barrel - which is a kind of lump-sum, discretionary fund which allows the President to determine the manner of its utilization (Belgicav. Ochoa, supra).

Question 92

Why is the Congressional Pork Barrel Unconstitutional?

Answer 92

It violates:

1. Separation of powers - from the moment the law becomes effective, any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law violates the principle of separation of powers and is thus unconstitutional. Post-enactment measures which govern the areas of project identification, fund release and fund realignment are not related to functions of congressional oversight but allow legislators to intervene and/or assume duties that properly belong to the sphere of budget execution (Belgica v. Ochoa, supra);
2. Non-Delegability of Legislative Power - the 2013 PDAF Article, insofar as ti confers post-enactment identification authority to individual legislators, violates the principle of non-delegability since said legislators are allowed to individually exercise the power of appropriation, which is lodged in Congress. That the power to appropriate must be exercised only through legislation is clear from Sec. 29, par. (1), Art. VI of the 1987 Constitution which states that: No money shall be paid out of the Treasury except in pursuance of an appropriation made by law;
3. Checks and Balances - the lump-sum/post-enactment legislative identification budgeting system fosters the creation of a “budget within a budget” which subverts the prescribed procedure of presentment and consequently impairs the President’s power of item veto;
4. Accountability - the mechanism here is normally done through the power of congressional oversight. The fact that individual legislators are given post- enactment roles in the implementation of the budget makes it difficult for them to become disinterested observers when scrutinizing, investigating, or monitoring the implementation of the appropriation law; and
5. Local Autonomy - authorizing individual legislators to intervene in purely local matters through the use of their pork barrel funds for local government projects subverts genuine local autonomy (Belgica v. Ochoa, supra).

Question 93

What is the Disbursement Acceleration Program (DAP)?

Answer 93

Aprogram designed by the DBM to ramp up spending after sluggish disbursements had caused the growth of the Gross Domestic Product (GDP) to slow down. The funds under the DAP were taken from: (1) unreleased appropriations; (2) unprogrammed funds; (3) carry-over appropriations unreleased from the previous year; and (4) budgets for slow- moving items or projects that had been realigned to support faster-disbursing projects (Araullo v. Aquino, supra).

Question 94

Is the Disbursement Acceleration Program Unconstitutional?

Answer 94

In Araullo v. Aquino, the SC declared as unconstitutional the 4 acts and practices under the DAP, to wit:

1. The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Act (GAA);
2. The cross-border transfers of the savings of the executive to augment the appropriations of other offices outside the executive (prohibited cross-border augmentation);
3. The funding of Programs, Activities and Projects (PAPs) that are not covered by any appropriation in the GAA since augmentation can only be made from one existing item to another existing item in the budget; and
4. The use of unprogrammed funds in the absence of a legally required certification by the National Treasurer that the whole revenue collections exceeded the total revenue targets.

Question 95

What is unprogrammed fund?

Answer 95

Appropriations that provided standby authority to incur additional agency obligations for priority PAPs when revenue collections exceeded targets, and when additional foreign funds are generated (Araulo v. Aquino, supra).

In a resolution dated February 3, ‘2015, the SC partially granted the motion for reconsideration filed by the OSG and allowed the funding of PAPs not covered by any appropriation in the GAA. Thus, only acts (1), (2), and (4) are now deemed illegal. The SC also upheld the efficacy of DAP-funded projects by applying the operative fact doctrine.

Question 96

What is the automatic re-appropriation?

Answer 96

If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until the general appropriations bill’is passed by the Congress (CONST. Art. VI, Sec. 25, Par. 7)

Question 97

What are legislative or formal inquiries?

Answer 97

Legislative inquiries may refer to the implementation or re-examination of any law or appropriation, or in connection with any proposed legislation, or for the formulation of, or in connection with, future legislation, or wil aid in the review or formulation of a new legislative policy or enactment. They may also extend to any and all matters vested by the Constitution in Congress and/or in the Senate alone (Rules of Procedure Governing Inquiries in Aid of Legislation, Sec. 1). Legislative inquiry is inherent in Congress. The inquiry, to be within the jurisdiction of the legislative body to make, must be material or necessary to the exercise of a power in it vested by the Constitution, such as to legislate, or to expel a Member (Arnault v. Nazareno, G.R. No. L-3820, July 18, 1950).

Question 98

What is the scope of the power of legislative investigation by the Congress?

Answer 98

1. Power to conduct inquiry in aid of legislation in accordance with its duly published rules of procedure;
2. Power to issue summons and notices in connection with matters subject of its investigation or inquiry;
3. Power to punish or declare a person ni contempt during or ni the course of legislative investigation; and
4. Power to determine the rules of its proceedings (Arnault v. Nazareno, G.R. No. L-3820, July 18, 1950).

Question 99

How long may the Senate detain an individual declared in contempt during a legislative investigation?

Answer 99

The period of imprisonment under the inherent power of contempt by the Senate during inquiries in aid of legislation should only last until the termination of the legislative inquiry under which the said power si invoked (Balag v. Senate, GR. . No. 234608, July 3, 2018).

Question 100

When does the legislative inquiry of the Senate terminate?

Answer 100

The legislative inquiry of the Senate terminates on two instances: (a) upon the approval or disapproval of the Committee Report; or (b) upon the expiration of 1Congress so that all pending matters and proceedings, such as unpassed bills and even legislative investigations, of the Senate are considered terminated upon the expiration of that Congress and ti is merely optional on the Senate of the succeeding Congress to take up such unfinished matters, not ni the same status, but as fi presented for the first time (Balag v. Senate, G.R. No. 234608, July 3, 2018).

Question 101

What are the limitations on the power of legislative investigation of the Congress?

Answer 101

1. It must be in aid of legislation;
2. It must be in accordance with duly published rules of procedures; and
3. The rights of persons appearing in or affected by such inquiry shall be respected (CONST. Art. VI, Sec. 21).

Question 102

What are the rules on the conduct of question hour?

Answer 102

The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each house shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least 3 days before their scheduled appearance. Interpellations shal not be limited to the writen questions but may cover matters related thereto. When the security of the State or the public interest so requires, the appearance shal be conducted ni executive session (CONST, Ar.t V,I Sec. 22).

Question 103

Who may declare the existence of a state of war?

Answer 103

The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war (CONST. Art. VI, Sec. 23, Par. 1).

Question 104

Who exercises emergency powers in times of war or other national emergency?

Answer 104

In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject ot such restrictions as ti may prescribe, to exercise powers necessary and proper ot carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof (CONST. Art. VI, Sec. 23, Par. 2).

Question 105

Who may suspend the privilege of the writ of habeas corpus or declare martial law?

Answer 105

In case of invasion or rebellion, when the public safety requires it, the President may, for a period not exceeding 60 days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law (CONST. Art. VIl, Sec. 18, Par. 1).

Question 106

Is the President’s suspension of the privilege of the writ of habeas corpus or proclamation of martial law final?

Answer 106

No. Within 48 hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or ni writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of al its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President (CONST. Art. VI, Sec. 18, Par. 1)

Question 107

If the invasion or rebellion persists, may t h e suspension of the privilege of the writ of habeas corpus or proclamation of martial law be extended beyond 60 days?

Answer 107

Yes. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, fi the invasion or rebellion shall persist, and public safety requires it (CONST. Art. VI, Sec. 18, Par. 1).

Question 108

Which body exercises the power of impeachment?

Answer 108

The HOR shall have the exclusive power to initiate all cases of impeachment (CONST. Art. XI, Sec. 3, Par. 1). The Senate has the sole power to try and decide al cases of impeachment (CONST. Art. XI, Sec. 3, Par 6).

Question 109

SUMMARY OF VOTING REQUIREMENTS

Answer 109

1. Initiate impeachment proceedings: 1/3 of ALL members of the House
2. Convict an impeachable officer: 2/3 of ALL members of Senate
3. Proposal to amend or revise the Constitution: 3/4 of ALL members of Both Houses (Constituent Assembly)
4. Constitutional Convention: 3/4 of Both Houses
5. Concur in treaties or international agreements: 2/3 of ALL members of Senate
6. Override the veto of the President in the passage of a Bill: 2/3 of ALL members of Both Houses, voting separately
7. Declare the existence of war: 2/3 of Both Houses, voting separately in Joint session assembled
8. Concur in Executive’s power to grant amnesty, reprieves, commutations, and pardons: Majority of ALL members of Both Houses
9. Submit to the electorate the question of calling a Constitutional Convention: Majority of ALL members of Both Houses
10. Declare the President is unable to discharge the powers and duties of his office: 2/3 of Both Houses, voting separately
11. Revoke of extend the President’s suspension of the privilege of the Writ of Habeas Corpus or proclamation of Martial Law: Majority of ALL members of Both houses, voting separately
12. Call a Constitutional Convention: 2/3 of ALL members of both houses
13. To put the yeas and nays in the journal: 1/5 of each house
14. To elect a Senate President: 2/3 of ALL members of the Senate
15. To elect the Speaker of the HOR: 2/3 of ALL members of HOR
16. To determine the rules of its proceedings, suspend for at most 60 days or expel a member of such House, or discipline members for disorderly behavior: 2/3 of ALL members of Each house
17. In case of vacancy by the VP, confirmation of a new VP nominated by the President: Majority of ALL members of both houses, voting separately
18. Law granting tax exemption: majority of ALL members of Both houses
19. To constitute a quorum to do business: majority of each House

Question 110

SENATE: The basis in determining the existence of a quorum in the Senate shall be

Answer 110

SENATE: The basis in determining the
existence of a quorum in the Senate shall be the total number of Senators who are in the country and within the coercive jurisdiction of the Senate. (Avelino vs. Cuenco, G.R. No. L-
2821, March 4, 1949)

Question 111

The quorum required to conduct business is

Answer 111

a majority (1/2 + 1) of all the members.

Question 112

Enrolled Bill Theory

Answer 112

Once a Bill has been approved by both houses, the Bill is enrolled, and this Enrolled Copy of the Bill bears the certification of the Presiding Officer of the house (either Senate President or Speaker of the House) that this Bill as enrolled is the version passed by each house. The purpose of the certification is to prevent attempts at smuggling in “riders”. The enrolled copy is then sent to the President for his action. The Supreme Court, in upholding the enrolled bill, explained that its basis is the separation of powers, so that the remedy of an aggrieved party is not a judicial decree but a legislative amendment or curative legislation. (Morales vs. Subido, G.R. No. L-29658, November 29, 1968)

Note however the case of Astorga v Villegas (G.R. No. L23475, April 30, 1974), upon being informed that the enrolled bill did not contain the amendment proposed by Senator Tolentino (regarding the powers of the Vice-Mayor of Manila) when the house bill was raised to the Senate, the Senate President, withdrew his signature and notified the President of the mistake, who then likewise withdrew his signature. In short because of the withdrawal, there was no occasion, then, to apply the enrolled bill theory.

The enrolled bill will prevail if there is a discrepancy between the enrolled bill and any other copy of the bill. (Mabanag v Lopez Vito, G.R. No. L-1123, March 5, 1947)

Question 113

Journal Entry Rule vs. Enrolled Bill
Theory

Answer 113

In Astorga vs. Villegas, by way of obiter dictum, the Supreme Court indicated that the journal might really prevail over the enrolled bill, since a journal is required by the Constitution, while the enrollment of a bill is just a legislative practice that is not even mentioned in the Constitution.

Further, enrollment does not add to the validity of the bill, for what makes it valid are the votes of the members. This ruling however seems to contradict the ruling in Morales v. Subido that the enrolled copy prevails over the journal. Reconciling these two decisions, as to matters required by the Constitution to be placed in the journal, the journal is conclusive. But aside from these matters, any other matter does not enjoy such conclusiveness.

Question 114

Regular Sessions

Answer 114

Congress shall convene every fourth
(4th) Monday of July for its regular
session unless a different date is fixed by law, and shall continue to be in session for such number of days as it may determine until thirty (30) days before the opening of its next regular session, exclusive of Saturdays,
Sundays and legal holidays. The President may call a special session at any time. (Sec. 15, Art. VI, 1987 Constitution)

Neither House during the sessions of the Congress shall, without consent of the other, adjourn for more than three (3) days, nor to any other place than that in which the two Houses shall be sitting. (Sec. 16[5], Article VI, 1987 Constitution)

Question 115

Special Sessions Called by the
President

Answer 115

● May be called at any time by the
President, at his absolute discretion,
to consider such subjects as he may
determine.
● Congress, however, determines the
number of days it needs for such session. (Sec. 15, Art. VI, 1987 Constitution)

Question 116

Special Sessions Called by Congress
without Need of Call

Answer 116

● To pass a bill calling for the holding
of a special election when there is a
vacancy in the office of the President
and Vice President. (Sec. 10, Art. VII,
1987 Constitution)

● To determine by 2/3 vote whether
the President is unable to discharge
the powers and duties of his office.
(Sec. 11, Art. VII, 1987 Constitution)

● To canvass the Presidential elections (Sec. 4, Art. VII, 1987 Constitution)

● To exercise the power of
impeachment (Sec. 3, Art. XII, 1987 Constitution)

● To extend or revoke the proclamation of martial law or suspension of the Writ of Habeas Corpus. (Sec. 18[2], Art.VII, 1987 Constitution).

Question 117

Origin of Bills

Answer 117

All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments. (Sec. 24, Art. VI, 1987 Constitution)

Question 118

Three Methods by which a Bill may
become a Law:

Answer 118

1. When the President signs it;
2. When the President vetoes it but the veto is overridden by 2⁄3 vote of all the members of each House; and
3. When the President does not act
   upon the measure within 30 days
   after it shall have been presented to
   him. (Sec. 27, Art. VI, 1987 Constitution)

Question 119

IMPEACHABLE OFFICERS

Answer 119

1. The President;
2. The Vice President;
3. Members of the Supreme Court;
4. Members of the Constitutional
   Commissions; and
5. The Ombudsman. (Section 2, Article IX, 1987 Constitution)

NOTE: The enumeration in the Constitution of the impeachable officers is exclusive. The Ombudsman is only one man, not including his Deputies. (Office of the Ombudsman vs. Court of Appeals, G.R. No. 146486, March 4, 2005)

Question 120

FOR AN IMPEACHABLE OFFICER WHO IS A MEMBER OF THE BAR:

Answer 120

An impeachable officer who is a member of the Bar cannot be disbarred without first being impeached.

Complainant’s availment of Section 1 (1) of Article IX-C of the Constitution to skirt this rule is specious. It bears emphasis that the provision that majority of Comelec members should be lawyers pertains to the desired composition of the Comelec. While the appointing authority may follow such constitutional mandate, the appointment of a full complement of lawyers in the Comelec membership is not precluded. At the time the complaint was filed, respondents and three other commissioners were all lawyers. As an impeachable officer who is at the same time a member of the Bar, respondent Borra must first be removed from office via the constitutional route of impeachment before he may be held to answer administratively for his supposed errant resolutions and actions. (Marcoleta vs Borra, A.C. No. 7732, March 09, 2009)

Question 121

FOR A PUBLIC OFFICER TO BE
IMPEACHED:

Answer 121

A public officer who under the Constitution is required to be a Member of the Philippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarment during the incumbency of such public officer. Further, such public officer, during his incumbency, cannot be charged criminally before the Sandiganbayan or any other court with any offence which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office. It is important to make clear that the Court is not here saying that its Members or the other constitutional officers we referred to above are entitled to immunity from liability for possibly criminal acts or for alleged violation of the Canons of Judicial Ethics or other supposed misbehavior. What the Court is saying is that there are fundamental procedural requirements that must be observed before such liability may be determined and enforced. A Member of the Supreme Court must first be removed from office via the constitutional route of impeachment under Sections 2 and 3 of Article XI of the 1987 Constitution. Should the tenure of the Supreme Court Justice be thus terminated by impeachment, he may then be held to answer either criminally or administratively (by disbarment proceedings) for any wrong or misbehavior that may be proven against him in appropriate proceedings. (In Re: Gonzales, A.M. No. 8845433, April 15, 1998)

Question 122

GROUNDS FOR IMPEACHMENT:

Answer 122

1. Culpable violation of the Constitution - wrongful, intentional or willful disregard or flouting of the fundamental law. This act must be deliberate and motivated by bad faith to constitute as a ground for impeachment.
2. Treason - committed by any person who, owing allegiance to the government of the Republic of the Philippines, levies war against it or adheres to its enemies, giving them aid and comfort. (Art. 114, Revised Penal Code)
3. Bribery - committed by any public officer who shall agree to perform an act, whether or not constituting a crime, or refrain from doing an act which he is officially required to do in connection with the performance of his official duties, inconsideration of any offer, promise, gift or present received by him personally or through the mediation of another, or who shall accept gifts offered to him by reason of his office. (Arts. 210- 211, Revised Penal code)
4. Other high crimes - refers to those offenses which, like treason and bribery, are of so serious and enormous a nature as to strike at the very life or the orderly workings of the government. (Bernas, The 1987 Constitution of the Philippines, 2003 ed., p.1112; Record of the Constitutional Convention of 1934, pp. 854-855)
5. Graft and corruption - those prohibited acts under the Anti-Graft and Corrupt Practices Act. (Bernas, The 1987 Constitution of the Philippines, 2003 ed., p.1113)
6. Betrayal of Public Trust - a catch-all ground to cover all manner of offenses unbecoming a public functionary but not punishable by the criminal statutes, like inexcusable negligence of duty, tyrannical abuse of authority, breach of official duty by malfeasance or, misfeasance, cronyism, favoritism, obstruction of justice. (Record of the Constitutional Commission of 1986, p. 272)

Question 123

What is the function of electoral tribunals?

Answer 123

The Electoral Tribunal acts as the sole judge of all contests relating to the election, returns, and qualifications of the respective members of each House (CONST. Art. VI, Sec. 17).

Question 124

What is the composition of the Electoral Tribunals?

Answer 124

Each Electoral Tribunal shall be composed of 9 Members, 3 of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining 6 shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman (CONST. Art. VI, Sec. 17).

Question 125

What is the relationship of the Electoral Tribunals with the Houses of Congress?

Answer 125

The Electoral Tribunal is independent of the Houses of Congress (Angara v. Electoral Commission, G.R. No. 45081, July 15, 1936) and its decisions may only be reviewed by the Supreme Court upon showing of grave abuse of discretion in a special civil action for certiorari filed under Rule 65 of the 1997 Rules of Civil Procedure (Peña v. HRET, G.R. No. 123037, March 21, 1997).

Question 126

How can membership in the House of Representatives Electoral Tribunal (HRET) be terminated?

Answer 126

Membership in the House Electoral Tribunal may not be terminated except for a just cause, such as, the expiration of the member’s congressional term of office, his death, permanent disability, resignation from the political party he represents in the tribunal, formal affiliation with another political party, or removal for other valid cause. A member may not be expelled by the House of Representatives for “party disloyalty” short of proof that he has formally affiliated with another political group (Bondoc v. Pineda, G.R. No. 97710, September 26, 1991).

Question 127

What is the relationship of the Electoral Tribunals with the COMELEC?

Answer 127

It is independent of the COMELEC. Cases before the Electoral Tribunal are governed by the Tribunal’s own rules (Lazatin .v HRET, G.R. No. L-84297, December 8, 1988).

Question 128

When does the House of Representatives Electoral Tribunal (HRET) acquire jurisdiction over election cases?

Answer 128

Once a winning candidate has been duly proclaimed, taken his oath, and assumed ofice as a Member of the House of Representatives, the COMELECs’ jurisdiction over election contests relating to the candidate’s election, returns, and qualifications ends, and the HRET’s own jurisdiction begins (Limkaichong v. COMELEG, G.R. Nos. 178831-32, April 1, 2009).

Question 129

What are the powers of the Electoral Tribunals?

Answer 129

1. Sole judge of all contests relating to the election, returns and qualifications of their respective Members. (CONST. Art. VI, Sec. 17); and
2. Power ot promulgate rules and regulations relative to matters within its jurisdiction, including the period for filing election protests before ti (Lazatin v. HRET, G.R. No. L-84297, December 8, 1988)

Question 130

What is the function of the Commission on Appointments?

Answer 130

The Commission on Appointments acts as a legislative check on the appointing authority of the President. tI shall act on all appointments submitted to ti within 30 session days of the Congress from their submission (CONST. Art. V,l Sec. 18).

Question 131

What is the composition of the Commission on Appointments?

Answer 131

There shall be a Commission on Appointments consisting of the President of the Senate, as ex officio Chairman, 12 Senators, and 12 Members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented therein (CONST. Art. VI, Sec. 18). For the Senate, a political party must have at least 2 members to be entitled to one seat in Commission on Appointments. Rounding off is not allowed (Guingona v. Gonzales, G.R. No. 106971, October 20, 1992).

Question 132

What is the relationship of the Commission on Appointments and the two Houses of Congress?

Answer 132

The Commission on Appointments is independent of the two Houses; its employees are not technically employees of Congress. It has the power to promulgate its own rules of proceedings. It does not legislate when it confirms or refuses a Presidential appointment (Pimentel J.r v. Ermita, G.R. No 164978, October 13, 2005).

Question 133

Under the Constitution, which appointments need the concurrence of the Commission on Appointments? (HAAC)

Answer 133

The President shall nominate and, with the consent of the Commission on Appointments, appoint:
1. Heads of executive departments (CONST. Art. VI, Sec. 16);

2. Ambassadors and other public ministers and consuls (CONST. Art. VI, Sec. 16);
3. Officers of the AFP from the rank of colonel or naval captain;
4. Officers whose appointments are vested in him by the Constitution:
   a.Regular members of the Judicial and Bar Council (CONST. Art. VI, Sec. 8, par. (2));
   b.Chairman of the Commission on Human Rights (Bautista v. Salonga, G.R. No. 86439, April 13, 1989); and
   c. Sectoral representatives during the three-consecutive terms after the ratification of the Constitution (CONST. Art, VI, Sec. 5(2); CONST. Art. XVIII, Sec. 7; Quintos-Deles v. Commission on Appointments, G.R. No. 83216, September 4, 1989)

Question 134

What are the appointments that do not need confirmation from the Commission on Appointments?

Answer 134

1. Appointment of the Vice President to a Cabinet Position (CONST. Art VI, Sec.3):
2. Members of the Supreme Gourt and judges of lower courts (CONST. Art. VI, Sec. 9);
3. The Ombudsman and his deputies (CONST Art. X,I Sec.9);
4. All other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint, e.g.:
   a. Commissioner of Customs (Sarmiento v. Mison, G.R. No. 79974, December 17, 1987);
   b. Chairman of the Commission on Human Rights (Bautista v. Salonga, G.R. No. 86439, April 13, 1989); and
   c. Appointments and promotions in the Philippine Coast Guard (Soriano v. Lista, GR. No. 153881, March 24, 2003).

Question 135

What is the procedure for appointments that needs the confirmation of the Commission on Appointments?

Answer 135

1. Nomination by the President;
2. Confirmation by the Commission on Appointments;
3. Issuance of commission; and
4. Acceptance by the appointee (Lacson v. Romero, G.R. No. L-3081, October 14, 1949).

Question 136

What are the rules on voting for the confirmation of appointments in the Commission on Appointments?

Answer 136

The Commission on Appointments shall rule on all nominations or appointments brought before it by a majority vote of all its members. Only members present shall be entitled to vote. The ex officio Chairman shall not vote except to break a tie. All other matters shall be decided by a majority vote of the members present constituting a quorum (Rules of the Commission on Appointments, Ch. Il, Sec. 15). Voting by the Commission on any nomination or appointment submitted for confirmation shall be by viva voce; except, upon request of any members, the voting shall be nominal (Rules of the Commission on Appointments, Ch. IV, Sec. 23).

Question 137

What are rules on unacted nominations or appointments returned to the President?

Answer 137

Nominations or appointments submitted by the President of the Philippines which are not finaly acted upon at the close of the session of Congress shall be returned to the President and, unless new nominations or appointments are made, shall not again be considered by the Commission (Rules of the Commission on Appointments, Ch. IV, Sec. 17).

Question 138

When may the Commission on Appointments meet?

Answer 138

The Commission on Appointments shall meet only while Congress is in session, at the cal of its Chairman or a majority of all its members (CONST. Art. VI, Sec. 19).

Question 139

How is the veto power of a member of the Commission on Appointments exercised?

Answer 139

Any member may move for the suspension of action by the Commission on Appointments on any nomination or appointment favorably recommended by a standing committee, and the Chairman shall suspend the consideration, of said nomination or appointment: Provided, that, such suspension may b e taken up on the next succeeding session of the Commission; Provided, further, that this section shal not apply ot nominations or appointments taken up by t h e Commission during the last session prior to a sine die adjournment of Congress (Rules of the Commission on Appointments, Ch. N, Sec. 20)

Question 140

What is the faithful execution clause?

Answer 140

The second sentence of Section 17, Article VIl is referred to as the “take care power” of the President and also sometimes called the “faithful execution clause.” Under this provision, the President si bound ot ensure the faithful execution of laws regardless of his belief in the legality of said laws. Until and unless a law is declared unconstitutional, the President has aduty to execute it regardless of his doubts as to its validity (CONST. Art. VI, Secs. 1&17).

Question 141

What are the qualifications of a President and Vice-President?

Answer 141

(N40-RAW-VR10)
1. Natural-born citizen of the Philippines;

2. At least 40 years of age on the day of the election;
3. Able to Read And Write;
4. Registered Voter; and
5. A Resident of the Philippines for a period of at least 10 years immediately preceding the day of the election (CONST. Art. VI, Sec. 2).

Question 142

How are the President and the Vice-President elected?

Answer 142

The President and the Vice-President shall be elected by direct vote of the people (CONST. Art. VI, Sec. 4, Par. (1)).

The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of al the Members of both Houses of the Congress, voting separately (CONST. Art. VI, Sec. ,4 Par. (5).

Question 143

When can a special election for President and Vice-President be held?

Answer 143

The following requisites must concur before special election may be held:

1. Death, permanent disability, removal from office, or resignation of both the President and the Vice-President;
2. If the vacancies occur more than 18 months before the next regular presidential election; and
3. A law passed by Congress calling for a special election to elect a President and Vice-President to be held not earlier than 45 days nor later than 60 days from the time of such call (CONST. Art. VI, Sec. 10).

Question 144

How long is the term of office of the President?

Answer 144

The President shall serve for a term of 6 years which shall begin at noon on the 30th day of June next following the day of the election and shall end at noon of the same date 6 years thereafter (CONST. Art. VI, Sec 4, Par. (1).

Question 145

May the President be reelected?

Answer 145

No. The President shall not be eligible for any reelection (CONST. Art. VI, Sec. 4, Par. (1)).

Question 146

How long is the term of office of the Vice-President?

Answer 146

The Vice-President shall serve for a term of 6 years which shall begin at noon on the thirtieth (30th day of June next following the day of the election and shall end at noon of the same date 6 years thereafter (CONST. Art. VI, Sec. 4, Par. (1)).

Question 147

May the Vice-President be reelected as Vice-President?

Answer 147

Yes. However, the Vice-President shall not serve for more than 2 consecutive terms (CONST. Art. VI, Sec. 4, Par. (2).

Question 148

If the Vice-President succeeds as President, may he be reelected as President?

Answer 148

If he succeeded and served as President for 4 years or less, he may be reelected as President. fI he succeeded and served as President for more than 4 years, he shall not be qualified for election to the same office at any time (CONST. Art. VI, Sec. 4, Par. (1)).

Question 149

Who succeeds if a vacancy occurs before the beginning of the term of the President-elect?

Answer 149

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

1. In case of failure of President-elect to qualify, the Vice-President-elect shall act as President until the President-elect shall have qualified;
2. In case of death or permanent disability of the President-elect, the Vice- President-elect shal become President;
3. In case no President and Vice-President shall have been chosen and qualified, or where both shall have died or become permanently disabled, the Senate President , or in case of his inability, the Speaker of the HOR shall act as President until a President or a Vice President shall have ben chosen and qualified; or
4. In case of death, permanent disability, or inability of the President, Vice- President, Senate President and the Speaker of the HOR, the Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified (CONST. Art. VI, Sec. 7)

Question 150

Who succeeds if a vacancy occurs during the incumbency of the President?

Answer 150

1. In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become, President ot serve the unexpired term;
2. In case of death, permanent disability, removal from office, or resignation of both the President and the Vice-President, the Senate President, or in case of his inability, the Speaker of the HOR shall act as President until a President or a Vice-President shall have been elected and qualified (CONST. Art. VI, Sec. 8,
   Par. 1); or
3. In case of death, permanent disability, or resignation of the President and the Vice-President, the Senate President, and the Speaker of the HOR, the Congress shall, by law, provide who shall serve as President until the President or the Vice-President shall have been elected and qualified (CONST. Art. VIl, Sec. 8, Par. 2).

Question 151

What is the rule in case of vacancy in the Office of the Vice-President during the term for which he was elected?

Answer 151

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

Question 152

What is the extent of the President’s immunity from suit?

Answer 152

Presidential immunity in this jurisdiction attaches during the entire tenure of the President. The immunity makes no distinction with regard to the subject matter of the suit; it applies whether or not the acts subject matter of the suit are part of his duties and functions as President (De Lima v. Pres. Duterte, G.R. No. 227635, October 15, 2019). While the President is immune from suit, she may not be prevented from instituting suit (Soliven v. Makasiar, G.R. No. 82585, November 14, 1988).

The President, like the judges of the courts and the members of the Legislature, may not be personally charged in civil damages for the consequences of an act executed in the performance of his official duties. After his tenure, however, the President is liable when he acts in a case so plainly outside of his power and authority that he cannot be said to have exercised discretion in determining whether or not he had the right to act.

The same is true where the cases filed against a non-sitting president are criminal in character. It will be anomalous to hold that immunity. is a n inoculation from liability for unlawful acts and omissions: The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser (Estrada v, Desierto, G.R. Nos. 146710-15 & 146738, March 2, 2001).

Question 153

May presidential immunity be waived?

Answer 153

There is nothing in our laws that would prevent the President from waiving the privilege (Soliven v. Makasiar, G.R. No. 82585, November 14, 1988).

Question 154

What is Executive Privilege?

Answer 154

Executive Privilege is the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public (Senate v. Ermita, G.R. No. 169777, April 20, 2006, citing Rozell, Executive Privilege and the Modern Presidents: In Nixon’s Shadow (83 Minn. L. Rev. 1069)).

Question 155

What are the matters covered by the executive privilege?

Answer 155

Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings, like the internal deliberations of the Supreme Court and other collegiate courts, or executive sessions of either House of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-equal branch of government (Senate v. Ermita, G.R. No. 169777, April 20, 2006).

Question 156

What is the limitation of executive privilege?

Answer 156

Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation to certain types of information of a sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Executive officials are not exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure (Senate v. Ermita, G.R. No. 169777, April 20, 2006).

Question 157

Who may invoke executive privilege?

Answer 157

The President may invoke executive privilege. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power (Senate v. Ermita, G.R. No. 1697775 Apfil 20, 2006).

Question 158

What is the difference between executive power and administrative power?

Answer 158

Executive power pertains to the power to enforce and administer the laws. tI shall be vested ni the President of the Philippines and exercised through the manifold offices of the executive department (CONST. Art. VI, Sec. 1). On the other hand, administrative power refers to the President’s control over all such executive departments, bureaus, and offices. He shall ensure that laws are faithfully executed (CONST. Art. VI, Sec. 17).

Question 159

Define appointment.

Answer 159

Appointment is the selection or designation of a person, by the person or persons having authority therefor, to fill an office or public function and discharge the duties of the same (Flores v. Drilon, G.R. No. 104732, June 22, 1993).

Question 160

Is appointment the same as designation?

Answer 160

No. Appointment differs from a designation in that the latter simply involves the imposition of additional and/or higher duties to be performed by a public official/employee which is temporary and can be terminated anytime at the pleasure of the appointing authority officer/authority. Designation may involve the performance of duties of another position on a concurrent capacity or on full-time basis (Section 13 (c), Rule IV, CSC Memorandum Circular No. 14, s. 2018).

Question 161

Distinguish between appointment and designation.

Answer 161

Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results insecurity of tenure for the person chosen unless he is replaceable at pleasure bécause of the nature of his office. Designation, on the other hand, connotes merely the imposition by law of additional duties on an incumbent official. xXx Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office.

That is the common understanding of the term. However where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and-may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named.

Question 162

What is the extent of the President’s appointing power?

Answer 162

1. The President has no constitutional or legal obligation to only make permanent appointments when Congress is in session.
2. The President can also make temporary appointments even when the CA isin session (Pimentel v. Ermita, G.R. No. 164978, October 13, 2005).
3. The President is constitutionally prohibited from making “midnight appointments” except under certain conditions (CONST. Art. VI, Sec. 15).

Question 163

What are the kinds of presidential appointments?

Answer 163

1. Regular presidential appointments, with or without confirmation by the Commission on Appointments, including “recess” or “ad interim” appointments (CONST. Art. VI, Sec. 16);
2. Appointments made by an Acting President (CONST. Art. VI, Sec. 14); and
3. Midnight appointments are appointments made by a President within 2 months before the next presidential elections and up to the end of his term (CONST. Art VI, Sec. 15, see General v. Uro, G.R. No. 191560, March 29, 2011; and Sana v. Career Executive Service Board, GR. . No. 192926, November 15, 2011).

Question 164

What are the appointments that can be made solely by the President?

Answer 164

(RALN)
1. Those other officers lower in Rank whose appointment is vested by law in the President alone;

2. Those vested by the Constitution on the President Alone;
3. Those whom he may be authorized by Law to appoint; and
4. Those whose appointments are Not otherwise provided for by law (CONST. Art. VI, Sec. 16).

Question 165

Which presidential appointments require confirmation by the Commission on Appointments under the Constitution? (HAAC)

Answer 165

1. Heads of executive departments (CONST. Art. VII, Sec. 16);
2. Ambassadors and other public ministers and consuls (CONST. Art. VI, Sec. 16);
3. Officers of the AFP from the rank of colonel or naval captain;
4. Officers whose appointments are vested ni him by the Constitution:
   a.Regular members of the Judicial and Bar Council (CQNST. Art. VI, Sec. 8, par. (2));
   b.Chairmen and members ofthe Constitutional Commissions (CONST. Art. IX-B, Sec. 1, par. (2)); and
   c. Sectoral representatives during the three-consecutive terms after the ratification of the Constitution (CONST. Art. VI, Sec. 5(2); CONST. Art. XVI, Sec, 7; Quintos-Deles v. Commission on Appointments, G.R. No. 83216, September 4, 1989).

Question 166

What is a by-passed appointment?

Answer 166

A by-passed appointment is one that has not been finally acted upon on the merits by the CA at the close of the session of Congress. There is no final decision by the CA ot give or withhold its consent to the appointment as required by the Constitution (Matibag v. Benipayo, G.R. No. 149036, April 2, 2002).

Question 167

What is the primary effect of a by-passed appointment?

Answer 167

Nominations or appointments submitted by the President of the Philippines which are not finally acted upon at the close of the session of Congress shall be returned to the President and, unless new nominations or appointments are made, shall not again be considered by the Commission on Appointments (The New Rules of the Commission on Appointments, March 7, 2017, Sec. 17)

Question 168

What is an ad interim appointment?

Answer 168

An ad interim appointment is one made by the President while Congress is not in session. This is intended to prevent interruptions ni vital government services that would otherwise result ni prolonged vacancies ni government offices (NACHURA, supra at 357).

Question 169

Is an ad interim appointment permanent or temporary?

Answer 169

An ad interim appointment is a permanent appointment, unless otherwise indicated (PLM v. IAC, G.R. No. L-65439, November 13, 1985). This is because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that ti is subject to confirmation by the CA does not alter its permanent character (Matibag v. Benipayo, G.R. No. 149036, April 2, 2002).

Question 170

How can an ad interim appointment be terminated?

Answer 170

An ad interim appointment ceases to be valid if a) disapproved by the Commission on Appointments; or b) upon the next adjournment of the Congress. nI hte latter case, the appointment si demed “by-passed” through inaction (NACHURA, supra at 357-358). When an ad interim appointment is terminated by disapproval by the CA, the appointee can no longer be extended a new appointment, inasmuch as the disapproval si final and binding on both the appointee and the appointing power. On the other hand, when the ad interim appointment si bypassed because of lack of time or failure of the CA to organize, there si no final decision by the Commission to give or withhold its consent to the appointment. Hence, the President si free ot renew the ad interim appointment (Matibag v. Benipayo, G.R. No. 449036, April 2, 2002).

Question 171

What are the appointments prohibited under Section 15, Article VI of the 1987 Constitution?

Answer 171

There are two prohibited appointments under Section 15, Article VIl: (1) those made for buying votes; and (2) those made for partisan considerations. The first refers to those appointments made within the two months preceding a Presidential election and are similar ot those which are declared election ofenses in the Omnibus Election Code. The second type of appointments consists of the so-called “midnight” appointments (De Castro v. JBC, G.R. No. 191002, March 17, 2010).

Question 172

How are appointments made by an Acting President made?

Answer 172

Appointments extended by an acting President shall remain effective unless revoked by the elected President within ninety days from his assumption of office (CONST, Sec. 14, Art. VI)

Question 173

What are midnight appointments?

Answer 173

Midnight appointments are appointments made by a President within 2 months before the next presidential elections and up to the end of his term. Such appointments are prohibited by the Constitution except temporary appointments to executive positions when continued vacancies therein wil prejudice public service or endanger public safety (CONST. Art. VI, Sec. 15). This is based on the principle that after the election of a new President, the outgoing president becomes no more than a “caretaker” administrator, whose duty is to “prepare for the orderly transfer of authority to the incoming President.”

Question 174

When may the President make such midnight appointments?

Answer 174

The President or Acting President may make temporary appointments to executive positions when continued vacancies therein will:

1. Prejudice public service; or
2. Endanger public safety (CONST. Art: VI, Sec. 15).

Question 175

Does the President have the power of removal?

Answer 175

Yes. The general rule is that the power of removal is an implied power derived from the express power of appointment (CRUZ, Political Law, supra at 407).

Question 176

What are the exceptions to the abovementioned rule?

Answer 176

1.Those appointed by him where the Constitution prescribes certain methods for separation from public service, e.g.impeachment (Id.);

2. Judges of lower courts, likewise appointed by the President, are subject to the disciplinary authority o f and may b e removed only by the Supreme Court (CONST. Art. VIII, Sec. 11);
3. Those elected local officials since the power is exclusively vested ni the proper courts (LGC, Sec 60); and
4. In all other cases where the power of removal may be exercised only for cause as may be provided by law and ni accordance with the prescribed administrative procedure (CONST. Art. IX-B, Sec. 2, par. (3)).

Question 177

Where the term of executive officials is determined at the pleasure of the President, how is their separation effected?

Answer 177

The separation from office of members of the Cabinet or other executive officials whose term of office is determined at the pleasure of the President is effected not by the process of removal, but by the expiration of their term (CRUZ, Political Law, supra at 408).

Question 178

What is the doctrine of qualified political agency or the alter ego principle?

Answer 178

Under the doctrine of qualified political agency or the alter ego principle, the acts of the Secretaries of Executive departments when performed and promulgated in the regular course of business are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive (Carpio v. Executive Secretary, G.R. No. 96409, February 24, 1992). Thus, the Executive Secretary, when acting by authority of the President, may reverse the decision of another department secretary (Lacson- Magallanes v. Pano, G.R. No. L-27811, November 17, 1967).

Question 179

What is the exception to the above doctrine?

Answer 179

Where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that h e acts personally (Carpio v. Executive Secretary, GR.. No. 96409, February 24, 1992)

Question 180

What kind of power does the President exercise over LGUs?

Answer 180

Power of general supervision. The President of the Philippines shall exercise general supervision over local governments (CONST Art. X, Sec, 4). The President may only interfere ni the affairs and activities of a local government unit if he or she findsthat the latter had acted contrary to law. Any directive therefore by the President or any of his or her alter egos seeking to alter the wisdom of a law-confirming judgment onlocal affairs of an LGU is a patent nullity because it violates the principle of local autonomy and separation of powers of the executive and legislative departments ni governing municipal corporations (Dadole v. COA, G.R. No: 125350, December 3, 2002).

Question 181

What are the military powers vested in the President?

Answer 181

1.Call out the armed forces;

2. Suspend the privilege of the writ of habeas corpus; and Declare a state of martial law (CONST. Art. VI, Sec. 18).

Question 182

When may the President exercise his calling-out power?

Answer 182

Whenever it becomes necessary, the President may call out the armed forces to prevent or suppress lawless violence, invasion or rebellion (CONST. Art. VI, Sec. 18, Par. (1)). tI is the most benign of the military powers of the president and is merely incidental to his authority to determine the disposition of the armed forces and what degree of force a particular crisis demands. It is limited however to ordinary police action necessary to maintain public order (IBP v. Zamora, G.R. No. 141284, August 15, 2000).

Question 183

When may the President suspend the privilege of the writ of habeas corpus or declare a state of martial law?

Answer 183

The extraordinary powers of suspending the privilege of the writ of habeascorpus and/or declaring martial law may be exercised only when the folowing concur:
1.Actual invasion or rebellion; and

2.Public safety requires the exercise of such power (CONST, Art. VI, Sec. 18, Par. (1)).

Question 184

What is the quantum of evidence required to ascertain the existence of rebellion or invasion as basis for suspending the privilege of habeas corpus or for declaring martial law?

Answer 184

In determining the existence of rebellion, the President only needs to convince himself that there is probable cause or evidence showing that more likely than not a rebellion was committed or is being committed. To require him to satisfy a higher standard of proof would restrict the exercise of his emergency powers (Lagman v. Medialdea, G.R. Nos. 231658, 231771 &231774, July 4, 2017).

Question 185

What are the limitations imposed by the Constitution on the power to declare a state of martial law or suspend the privilege of the writ of habeas corpus?

Answer 185

(60-Re NJuC)

1. It is only limited to an initial period of 60 days;
2. Within 48 hours from the proclamation or suspension, the President shall submit a Report in person or in writing to the Congress;
3. The Congress, voting jointly, by a vote of at least a majority of al its Members in regular or special session, may Revoke such proclamation or suspension, which revocation shall not be set aside by the President (CONST. Art. VI, Sec. 18, Par. 1);
4. The SC may Review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation or suspension (CONST. Art. VI, Sec. 18, Par. 3);
5. A state of martial law does Not suspend the operation of the Constitution, nor supplant the functioning of t h e civil courts or legislative assemblies, nor authorize the conferment of jurisdiction o n military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ (CONST. Art. VI, Sec. 18, Par. 4);
6. The suspension of the privilege of the writ shall apply only to persons Judicially charged for rebellion or offenses inherent in or directly connected with the invasion (CONST. Art. VI, Sec. 18, Par. 5); and
7. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially Charged within 3 days, otherwise he shall be released (CONST. Art. VIl, Sec. 18, Par. 6:)

Question 186

What is the extent of review by the Supreme Court as regards the President’s exercise of his military powers?

Answer 186

The Supreme Court’s power to review is limited to the determination of whether the President in declaring martial law and suspending the privilege of the writ of habeas corpus had sufficient factual basis (Lagman v. Pimentel III,G.R. No. 235935, February 6, 2018).

Question 187

What are the requisites for the grant of emergency power?

Answer 187

(EPReN)
1. There is war or other Emergency;

2. The delegation by Congress to the President of the authority to exercise emergency power must be for a limited Period only;
3. The delegation of power is subject to such Restrictions as the Congress may prescribe; and
4. Emergency powers must be exercised to carry out a National policy declared by Congress (David v. Arroyo, GR.. No. 171396, May 3, 2006).

Question 188

How is Art. XI, Sec. 17 related to Art. VI, Sec. 23 (2)?

Answer 188

Section 17, Article XI must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress.Thus, when Section 17 states that “the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest,” it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate ti to him pursuant to a law prescribing the reasonable terms thereof (David v. Arroyo, G.R. No. 171396, May 3, 2006).

Question 189

What is the nature of the pardoning power of the President?

Answer 189

The exercise of the pardoning power is discretionary in the President and may not be interfered with by Congressor the Court, except only when ti exceeds the limits provided for by the Constitution (Risos-Vidal v. COMELEC, G.R. No. 206666, January 21, 2015). In granting the power of executive clemency upon the President, the Constitution does not distinguish between criminal and administrative cases (Llamas .v Executive Secretary, G.R. No. 99031, October 15, 1991).

Question 190

What are the limitations to the pardoning power of the President?

Answer 190

1. It can be granted only after conviction by final judgment (except amnesty) (CONST. Art. VI, Sec. 19);
2. It cannot be granted in cases of impeachment (CONST. Art. VI, Sec. 19);
3. It cannot be granted in violations of election laws without the favorable recommendation of the COMELEC (CONST. Art. IX-C, Sec. 5);
4. It cannot be granted in cases of legislative contempt or civil contempt (CRUZ, Philippine Political Law, supra at 444-445);
5. It cannot absolve a convict from civil liability;
6. It cannot restore public offices forfeited (Monsanto v. Factoran, G.R. No. 78239 February 9, 1989).

Question 191

What are the forms of executive clemency that the President may grant?

Answer 191

1. Reprieves;
2. Commutations;
3. Pardons;
4. Remission of fines and forfeitures, after conviction by final judgment; and
5. Amnesty, with the concurrence of a majority of al the members of the Congress (CONST. Art. VI, Sec. 19).

Question 192

What is pardon?

Answer 192

Pardon is an act of grace that exempts a n individual on whom it is bestowed from punishment which the law inflicts for a crime he has committed. A pardon is a deed, for the validity of which delivery si essential, and delivery si not complete without acceptance. It can be rejected.

Question 193

What are the classifications of pardon?

Answer 193

1. Conditional pardon - in the nature of a contract between the Chief Executive and the convicted criminal; by the pardonee’s consent to the terms stipulated in the contract, the pardonee has placed himself under the supervision of the Chief Executive or his delegate who is duty bound to see ot it that the pardonee complies with the conditions of the pardon (Torres v. Gonzales, GR. . No. 76872, July 23, 7987);
2. Absolute pardon - pardon is absolute if it is not only unconditional, it is also unrestricted in scope, complete and plenary in character (Risos-Vidal v. COMELEC, GR., No. 206666, January21,2015).

Question 194

What is the effect of pardon?

Answer 194

Pardon relieves the party from al the punitive consequences of his criminal act, including the disqualifications or disabilities based on the finding of guilt. But it relieves him from nothing more. It does not blot out the guilt of an individual. Pardon granted after conviction frees the individual from al the penalties and legal disabilities and restores him to all his civil rights. But unless expressly grounded on the person’s innocence (which is rare), ti cannot bring back lost reputation for honesty, integrity and fair dealing. This must be constantly kept ni mind lest we lose track of the true character and purpose of the privilege (Monsanto v. Factoran, G.R. No. 78239, February 9, 1989).

Question 195

What is the nature and effect of amnesty?

Answer 195

Amnesty commonly denotes a general pardon to rebels for their treason or other high political offenses, or the forgiveness which one sovereign grants to the subjects of another, who have offended, by some breach, the law of nations. Amnesty looks backward, and abolishes and puts into oblivion, the offense itself; it so overlooks and obliterates the offense with which he is charged, that the person released by amnesty stands before the law precisely as though he had committed no offense (Magdalo v. COMELEC, G.R. No. 190793, June 19, 2012).

Question 196

What is the limitation on the President’s power to ratify treaties?

Answer 196

No treaty or international agreement shall be valid and effective unless concurred with at least 2/3 of al the Members of the Senate (CONST. Art. VI, Sec. 21).

Question 196

What are the effects of the other forms of executive clemency?

Answer 196

1. Commutation - remission of a part of the punishment; a substitution of a less penalty for the one originally imposed (People v. Vera, G.R. No. L-45685, November 16, 1937);
2. Reprieve - the temporary suspension of the execution of a sentence (Director of Prisons v. Judge of First Instance of Cavite, G.R. No. L-10543, January 23, 1915);
3. Parole - refers to the conditional release of an offender from a correctional institution after he serves the minimum term of his prison sentence (People v. Abesamis, G.R. No. 140985, August 28, 2007); and
4. Remission of fines and forfeiture - merely prevents the collection of fines or the confiscation of forfeited property; ti cannot have the effect of returning property which has been vested in third parties or money already in public treasury (BERNAS, Reviewer supra at 315).

Question 197

To whom is the power to ratify vested?

Answer 197

The power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify ti (Pimentel, Jr. v. Office of the Executive Secretary, G.R. No. 158088, July 6, 2005).

Question 198

What are the differences between a treaty and an executive agreement?

Answer 198

A treaty is “an international agreement concluded between states ni written form and governed by international law, whether embodied in a single instrument or in two or m o r e r e l a t e d instruments and whatever its particular designation” (The Vienna Convention on the Law of Treaties, Art. 2[hereinafter VCLT]). An executive agreement is similar to a treaty, except that the former does not require legislative concurrence, is usually less formal, and deals with a narrower range of subject matters (Bayan Muna .v Romulo, G.R. No. 159618, February 1, 2011).

International agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail carrying out wel- established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements (Commissioner of Customs v. Eastern Sea Trading, G.R. No. L-14279, October 31, 1961).

Question 199

Can the President enter into an executive agreement without the concurrence of the Senate?

Answer 199

Yes. The right of the Executive to enter into binding agreements without the necessity of subsequent Senate approval has been confirmed by long usage. From the earliest days of our history, we have entered into executive agreements covering such subjects as commercial and consular relations, most favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these have never been seriously questioned by our courts (Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011). However, the President may not, by executive agreement, enter into a transaction which is prohibited by statutes enacted prior thereto. Under the Constitution, the main function of the Executive is to enforce the laws enacted by Congress. He may not defeat legislative enactments that have acquired the status of law, by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws (Gonzales v. Hechanova G,R. No. L-21897, October 22, 1963)

Question 200

Power relative to Appropriation Measures

Answer 200

The President shall submit to the Congress within thirty days from the opening of every regular session, as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures. (Sec. 22, Art. VII, 1987 Constitution)

The President may propose the budget, but still the final say on the matter of appropriations is lodged in the Congress. (Philippine Constitution Association vs. Enriquez, G.R. No. 113105, August 19, 1994)

No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. (Sec. 25 [5], Art. VI, 1987 Constitution)

Question 201

Power of Augmentation

Answer 201

The President, President of the Senate, Speaker of the House, Chief Justice of the Supreme Court, heads of Constitutional Commissions may by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriation. (Art. VI, Sec. 25, par. (5), 1987 Constitution)

Under the doctrine of qualified political agencies, power of augmentation could be well extended to the Cabinet Secretaries as alter egos. (Nazareth vs. Villar, G.R. No. 188635, January 29, 2013)

Question 202

What are the rules of succession if the vacancy in the Office of the President and/or Office of the Vice President occurred at the beginning of the term?

Answer 202

1. If the President-elect dies or becomes permanently disabled, the Vice President-elect shall become President.
2. If the President-elect fails to qualify, the Vice-President-elect shall act as President until the President-elect shall have qualified.
3. If the President shall not have been chosen, the Vice President-elect shall act as President until a President shall have been chosen and qualified.
4. If no President and Vice President have been chosen nor shall have qualified or both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives shall act as President until a President or a Vice President shall have been chosen and qualified. In the event of inability of the officials mentioned, Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or a Vice President shall have qualified. (NACHURA, p. 286).

Question 203

What are the rules of succession if the vacancy in the Office of the President and/or Office of the Vice President occurred during the term?

Answer 203

1. If the President dies or becomes permanently disabled, the Vice President shall become President.
2. If the President resigns or is removed from office, the Vice President shall become President.
3. If both the President and Vice President died, became permanently disabled, have resigned or were removed from office, Senate President or, in case of his inability, the Speaker of the House of Representatives, shall act as President until a President or Vice President shall be elected and qualified. Congress, by law, shall provide for the manner in which one is to act as President in the event of inability of the officials mentioned above.

Question 204

What is judicial power?

Answer 204

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion on the part of any branch or instrumentality of the Government. tI is vested in one Supreme Court and ni such lower courts as may be established by law.

Question 205

What is the expanded judicial power/jurisdiction?

Answer 205

Article VI, Section 1, Par, 2 of the 1987 Constitution conferred upon the Supreme Court the authority ot determine whether any branch or instrumentality of the government has committed grave abuse of discretion amounting to lack or excess of jurisdiction (Mamba .v Lara, GR. . No. 165109, December 14,2009).

Question 206

What does grave abuse of discretion mean?

Answer 206

Grave abuse of discretion, under Rule 65, has a specific meaning. It is the arbitrary or despotic exercise of power due t o passion, prejudice or personal hostility; or the whimsical, arbitrary, or capricious exercise of power that amounts to an evasion or refusal to perform a positive duty enjoined by law or to act at al in contemplation of law. For an act to be struck down as having been done with grave abuse of discretion, the abuse of discretion must be patent and gross (Reyes V. COMELEC, G.R. No. 207264 (Resolution), June 25, 2013).

Question 207

Who exercises judicial power?

Answer 207

The Supreme Court, whether sitting en banc or in Division, acts as a collegial body as it exercises judicial power through the collective action of its individual members. While most of the Supreme Court’s work is performed by its three divisions, the Supreme Court remains one court - single, unitary, complete, and supreme. Flowing from this is the fact that, while individual justices may dissent or only partially concur, when the Supreme Court states what the law is, ti speaks with only one voice. Any doctrine or principle of law aid down by the court may be modified or reversed only by the Supreme Court en banc (Flight Attendants and Stewards Association of the Philippines v. PAL, G.R. No. 178083, March 13, 2018).

It also means that “although the Chief Justice is primus inter pares, he cannot legally decide a case on his own because of the Supreme Court’s nature as a collegial body. Neither can the Chief Justice, by himself, overturn the decision of the Court, whether of a division or the en banc” (Complaint of M.r Aurelio Indencia Arrienda against Justice Reynato S. Puno et. al., AM. . No. 03-11-30-SC, June 09, 2005).

Question 208

What is judicial review?

Answer 208

Judicial review is the power of the courts to test the validity of executive and legislative acts ni light of their conformity with the Constitution. This is not an assertion of superiority by the courts over the other departments, but merely an expression of the supremacy of the Constitution (Angara .v Electoral Commission, GR. . No. 45081, July 15, 1936).

Question 209

What are the requisites of judicial review?

Answer 209

(ASEL)
1. There must be an Actual case or controversy calling for the exercise of judicial power;

2. The person challenging the act must have the Standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement;
3. The question of constitutionality must be raised at the Earliest opportunity; and
4. The issue of constitutionality must be the very Lis mota of the case (Villafuerte v. Securities and Exchange Commission, G.R. No. 208379. March 29, 2022).

Question 210

Explain the concept of standing as a requisite for judicial review.

Answer 210

A person has standing to challenge the validity of governmental act only if he has a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. (People v. Vera, G.R. No. L-45685, November 16, 1937).

Question 211

Do legislators have standing to sue the executive branch?

Answer 211

Yes. The Court has ruled that a member of the Senate, and of the House of Representatives has the legal standing to question the validity of a presidential veto or a condition imposed on an item in an appropriation bill. Where the veto is claimed to have been made without or in excess of the authority vested on the President by the Constitution, the issue of an impermissible intrusion of the Executive into the domain of the Legislature arises (Philippine Constitution Association v. Enriquez, G.R. No. 113105, August 19, 1994).

Question 212

What is a political question?

Answer 212

The term “political question” connotes what ti means in ordinary parlance, namely, a question of policy. I refers to those questions which, under the constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislature or executive branch of the Government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.

Question 213

What is the limitation to the application of the political question doctrine?

Answer 213

The scope of the political question doctrine has been limited by Art. VI, Sec. 1, Par. 2 of the Constitution particularly the portion which vests in the judiciary the power “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”

Question 214

What is a moot question?

Answer 214

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on the ground of mootness (Deutsche Bank AG London v. Kormasing, Inc., G.R. No. 201700. April 18, 2022).

Question 215

When will courts decide moot and academic issues?

Answer 215

(GERRP)
1. There is Grave violation of the Constitution;

2. There is an Exceptional character of the situation and paramount public is involved;
3. The constitutional issues raised Require formulation of controlling principles to guide the bench, the bar and the public;
4. The case is capable of Repetition yet evasive review (David .v Macapagal- Arroyo, supra); and

Note: There are 2 factors to be considered before a case is deemed one capable of repetition yet evading review:

5. There is Paramount public interest (Land Bank of the Philippines v. Fastech Synergy Philippines, Inc., G.R. No. 206150, September 8, 2017).

Question 216

What is the procedure for appointments in the Judiciary?

Answer 216

1. The President appoints from among a list of at least 3 nominees prepared by the Judicial and Bar Council for every vacancy (CONST. Art. VIII, Sec. 9.).
2. For lower courts, President shall issue the appointment within 90 days from submission of the list (CONST. Art. VI, Sec. 9.).
3. Any vacancy in t h e Supreme Court shall b e filled within 90 days from the occurrence thereof (CONST, Art. VIl, Sec. 4(1)).

Question 217

What are the qualifications for Chief Justice and Associate Justices of the Supreme Court?

Answer 217

(N-40-15-CIPl)
1. Natural-born citizen;

2. At least 40 years old;
3. 15 years or more as a judge of a lower court or has been engaged in the practice of law in the Philippines for the same period; and
4. A person of proven Competence, Integrity, Probity, and Independence (CONST. Art. VIl, Sec. 7).

Question 218

What are the qualifications for the Presiding Justice and Associate Justices of the Court of Appeals?

Answer 218

The same qualifications as those provided for Justices of the Supreme Court must be satisfied for a person seeking to become Presiding Justice or Associate Justice of the Court of Appeals (CONST. Art. VI, Sec. 7.)

Question 219

What are the qualifications for Regional Trial Court Judges?

Answer 219

(C-35-10-CIPI)
1. Citizen of the Philippines

2. At least 35 years old; and
3. Has been engaged for at least 10 years in the practice of law in the Philippines or has held public office in the Philippines requiring admission to the practice of law as an indispensable requisite (B.P. Blg. 129, Sec. 15); and
4. A person of proven Competence, Integrity, Probity, and Independence (CONSTI, Art. VI, Sec. 7, par. (3)).

Question 220

What are the qualifications for Metropolitan, Municipal, and Municipal Circuit Trial Court Judges?

Answer 220

(C-30-5-CIPI)
1. Citizen of the Philippines;

2. At least 30 years old;
3. Has been engaged for at least 5 years in the practice of law in the Philippines or has held public office in the Philippines requiring admission to the practice of law as an indispensable requisite (B.P. Blg. 129, Sec. 26); and
4. A person of proven Competence, Integrity, Probity, and Independence (CONSTI, Art. VIII, Sec. 7, par.(3) .

Question 221

What is the composition of the Judicial and Bar Council (JBC)?

Answer 221

1. Chief Justice a s ex officio/Chairman;
2. Secretary of Justice a s ex officio member;
3. Representative of the Congress a s ex officio member;
4. Representative of the Integrated Bar;
5. Professor of law,
6. Retired Member of the Supreme Court; and
7. Representative of the private sector (CONST. Art VI, Sec. 8, par. (1)).

Question 222

What is the composition of the Supreme Court?

Answer 222

The Supreme Court si composed of a Chief Justice and 41 Associate Justices. It may sit en banc or ni its discretion, in divisions of three, five of seven members. Any vacancy shal be filed within 90 days from occurrence thereof (CONST. Art. VI, Sec. 4(1)).

Question 223

What are the powers granted to the Supreme Court?

Answer 223

1. Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus;
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:
   a. All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
   b. All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.
   c. All cases in which the jurisdiction of any lower court is in issue.
   d. All criminal cases in which the penalty imposed is reclusion perpetua or higher.
   e. All cases in which only an error or question of law is involved;
3. Assign temporarily judges of lower courts ot other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned;
4. Order a change of venue or place of trial to avoid a miscarriage of justice;
5. Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged.
   Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for al courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court;
6. Appoint all officials and employees of the Judiciary ni accordance with the Civil Service Law (CONST. Art. VI, Sec. 5); and
7. The Supreme Court shall have administrative supervision over al courts and the personnel thereof (CONST. Art. VI, Sec. 6).

Question 224

What cases are decided by the Supreme Court en banc?

Answer 224

1. Cases in which the constitutionality or validity of any treaty, international or executive agreement, law, executive order, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question;
2. Criminal cases in which the appealed decision imposes the death penalty or reclusion perpetua;
3. Cases raising novel questions of law;
4. Cases affecting ambassadors, other public ministers, and consuls;
5. cases involving decisions, resolutions, and orders of the Civil Service Commission, the Commission on Elections, and the Commission on Audit;
6. Cases where the penalty recommended or imposed is the dismissal of a judge, the disbarment of a lawyer, the suspension of any of them for a period of more than one year, or a fine exceeding forty thousand pesos;
7. Cases covered by the preceding paragraph and involving the reinstatement in the judiciary of a dismissed judge, the reinstatement of a lawyer in the roll of attorneys, or the filing of a judges’ suspension of a lawyers’ suspension from the practice of law;
8. Cases involving the discipline of a Member of the Court, or a Presiding Justice, or any Associate Justice of the collegial appellate court;
9. Cases where a doctrine or principle laid down by the Court en banc or by a Division my be modified or reversed;
10. Cases involving conflicting decisions of two or more divisions;
11. Cases where three votes in a Division cannot be obtained;
12. Division cases where the subject matter has a huge financial impact on businesses or affects the welfare of a community,
13. Subject to Section 1 (b) of this rule, other division cases that, in the opinion of at least three Members of the Division who are voting and present, are appropriate for transfer to the Court en banc;
14. Cases that the Court en banc deems of sufficient importance to merit its attention; and
15. all matters involving policy decisions in the administrative supervision of all courts and their personnel (Supreme Court Internal Rules, Rule 2, Sec. 3).

Question 225

What is the Supreme Court’s original jurisdiction?

Answer 225

Cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus (CONST. Art. VI, Sec. 5).

Question 226

What is the Supreme Court’s appellate jurisdiction?

Answer 226

Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:
1. All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

2. All cases involving the legality of any tax, impost, assessment, or tol, or any penalty imposed in relation thereto.
3. All cases in which the jurisdiction of any lower court is in issue.
4. All criminal cases in which the penalty imposed is reclusion perpetua or higher.
5. All cases in which only an error or question of law is involved (CONST. Art. VI, Sec. 6).

Question 227

How are constitutional commissions created?

Answer 227

The commissions are constitutionally created, and may not be abolished by law (CONST. Art. IX-A, Sec. 1).

Question 228

What are the independent constitutional commissions under the Constitution?

Answer 228

1. Civil Service Commission (CSC);
2. Commission on Elections (COMELEC); and
3. Commission on Audit (COA) (CONST. Art. IX-A, Sec. 1).

Question 229

What is the jurisdiction of the COMELEC?

Answer 229

The COMELEC shall exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over al contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shal be final, executory, and not appealable (CONST Art. IX-C, Sec. 2, Par. 2).

Question 230

What is the extent of COA’s powers?

Answer 230

The COA, by mandate of the 1987 Constitution, is the guardian of public funds, vested of broad powers over all accounts pertaining to government revenue and expenditures and the uses of public funds and property, including the exclusive authority to define the scope of its audit and examination, to establish the techniques and methods for such review, and to promulgate accounting and auditing rules and regulations. COA si given a wide latitude of discretion “to determine, prevent, and disallow irregular, unnecessary, excessive, extravagant, or unconscionable expenditures of government funds” and has the power to ascertain whether public funds were utilized for the purpose for which they had been intended by law (Nayong Pilipino Foundation, Inc., v. Chairperson Pulido Tan et al., G.R. No. 213200, September 19, 2017).

Question 231

What is the determining factor of COA’s audit jurisdiction?

Answer 231

The determining factor of COA’s audit jurisdiction is government ownership or control of the corporation. It generally covers public entities. However, its authority to audit extends even to non-governmental entities insofar as the latter receives financial aid from the government. Thus, ti is clear that the determination of COA’s jurisdiction over a specific entity does not merely require an examination of the nature of the entity. Should the entity be found ot be non-governmental, further determination must be had as to the source of its funds or the nature of the account sought to be audited by the COA. (Commission On Audit v. Pampilo G.R. Nos. 188760, 189060 &189333; June 30, 2020).

Question 232

Does COA have jurisdiction over GOCCS?

Answer 232

Yes. The Constitution vests ni the COA audit jurisdiction over “government-owned and controlled corporations with-original charters.” a s well a s “government-owned or controlled corporations without original charters.” GOCCs with original charters are subject to COA pre-audit, while GOCCs without original charters are subject to COA post- audit. The determining factor of COA’s audit jurisdiction is government ownership or control of the corporation (Feliciano .v COA, G.R. No. 147402, January 14, 2004).

The COAs’ audit jurisdiction generally covers public entities. However, its authority to audit extends even to non-governmental entities insofar as the latter receives financial aid from the government. Thus, it is clear that the determination of COAs’ jurisdiction over a specific entity does not merely require an examination, of the nature of the entity. Should the entity be found to be non-governmental further determination must be had a s to the source of its funds or the nature of the account sought to be audited by the COA. In the analysis of an entity’s nature, the Court, ni prior cases, examined the statutory origin, the charter, purpose and the relations that a particular entity has with the State (COA v. Pampilo, G.R. Nos. 188760, 189060 &189333, June 30, 2020).

Question 233

Does COA have jurisdiction over LGUs?

Answer 233

Yes. LGUs, though granted local fiscal autonomy, are still within the audit jurisdiction of the COA (Veloso, et.al., v. COA, G.R. No. 193677, September 6, 2011).

Question 234

Does COA have jurisdiction over Coconut Levy Funds?

Answer 234

Yes. The coconut levy funds were collected for a public purpose which is to advance the government’s avowed policy of protecting the coconut industry. Courts take judicial notice of the fact that the coconut industry is one of the major industries supporting the national economy. Hence, coconut levy funds are special public funds of the government that is properly within the jurisdiction of COA (Philippine Coconut Producers Federation, Inc., (COCOFED), et al., v. Republic, G.R. Nos. 177857-58 &G.R. No. 178193, January 24, 2012).

Question 235

What is the manner of review of decisions of each Constitutional Commissions?

Answer 235

1. Civil Service Commission
   Who: By the aggrieved party
   Where: Court of Appeals under Rule 43
   When: Within 15 days from notice (Revised Rules on Administrative Cases ni the Civil Service (RRACCS), Rule 13, Sec. 70; RULES OF COURT, Rule 43)
2. Commission o n Audit
   Who: By the aggrieved party.
   Where: Supreme Court on certiorari under Rule 64, in relation to Rule 65 When: Within 30 days from notice (RULES OF COURT, Rule 64, Sec. 3).
3. Commission on Elections
   Who: By the aggrieved party
   Where: Supreme Court on certiorari under Rule 64, in relation to Rule 65 When: Within 03 days from notice (RULES FO COURT, Rule 64, Sec. 3.)
   Note: Only decisions of the COMELEC len banc may be brought to the Supreme Court by certiorari under Rule 65 (Reyes v. RTC, G.R. No 108886, May 5, 1995). The Supreme Court has no power to review on certiorari an interlocutory order or even a final resolution issued by a Division of the COMELEC. (Ambit Jr. v. COMELEC, G.R. No. 143398, October 25, 2000; Dumayas, Jr. .v COMELEC, G.R. Nos. 141952-53, April 20, 2001).

Question 236

What decisions of the Constitutional Commissions may be brought to the Supreme Court on certiorari?

Answer 236

The certiorari jurisdiction of the Supreme Court is limited to decisions rendered in actions or proceedings taken cognizance of by the Commissions in the exercise of their adjudicatory or quasi-judicial powers. It does not refer to purely executive powers such a s those which relate to the COMELEC’s appointing power (ABS-CBN Broadcasting Corporation v. COMELEC, G.R. No. 133486, January 28, 2000).

Question 237

May the Supreme Court take cognizance of a petition for certiorari under Rule 64 to review an interlocutory order issued by a Division of the COMELEC?

Answer 237

Yes. As an exception, the Supreme Court may take cognizance of a petition for certiorari under Rule 64 to review an interlocutory order issued by a Division of the COMELEC on the ground of the issuance being made without jurisdiction or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction when it does not appear to be specifically provided under the COMELEC Rules of Procedure that the matter is one that the COMELEC en banc may sit and consider, or a Division is not authorized to act, or the members of the Division unanimously vote to refer to the COMELEC en banc. Of necessity, the aggrieved party can directly resort to the Court because the COMELEC-en banc is not the proper forum ni which the matter concerning the assailed interlocutory order can be reviewed (Cagas v. COMELEC, GR. . No. 194139, January 24, 2012)

Question 238

What is the extent of protection under the Bill of Rights?

Answer 238

The Bill of Rights governs the relationship between the individual and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What the Bil of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder. (People v. Marti, G.R. No. 81561, January 18, 1991).

Question 239

What rights does the due process clause seek to protect?

Answer 239

The due process clause protects the right to life, liberty, and property (CONST. Art. I, Sec. 1).

Question 240

What does “life” under the due process clause mean?

Answer 240

The right to life guarantees essentially the right to be alive-upon which the enjoyment of all other rights si preconditioned (Mamba V. Bueno, G.R. No. 191416, February 7, 2017).

Question 241

What does “liberty” under the due process clause mean?

Answer 241

The right to exist and the right to be free from arbitrary restraint or servitude. It is not merely freedom from physical restraint but it is also the right of man to enjoy his
facilities, subject only to such restraint as arenecessaryfor the common welfare (City or Manila v. Laguio, G.R. No. 118127, April 12, 2005, citing Justice Malcolm).

Question 242

What does “property” under the due process clause mean?

Answer 242

Property is anything that can come under the right of ownership and be the subject of the contract, and includes al things - real, personal, tangible and intangible - that are within the commerce of man (CRUZ, Constitutional Law, supra at 211-212).

Question 243

What are the two aspects of due process?

Answer 243

The aspects of due process are substantive due process and procedural due process.

Substantive due process refers to the intrinsic validity of a law that interferes with a person’s life, liberty, or property rights. Procedural due process means compliance with the procedures or steps, even periods, prescribed by the statute, in conformity with the standard of fair play and without arbitrariness on the part of those who are called upon to administer it (Alliance for the Family Foundation Philippines, Inc., et al., v. Hon. Janette Garin, et al., G.R. Nos. 217872 and 221866, April 26, 2017).

Question 244

What are the requisites of substantive due process?

Answer 244

1.The interests of the public in general, as distinguished from those of a particular class, which require the intervention of the State (Lawful subject); and

2. The employment of means which are reasonably necessary for the accomplishment of the purpose and not unduly oppressive on individuals (Lawful means) (City of Manila v. Laguio, G.R. No. 118127, April 12, 2005).

Question 245

What are the twin requirements of procedural due process?

Answer 245

The twin requirements of notice and hearing constitute the essential elements of due process, and neither of these elements can be eliminated without running afoul of the constitutional guaranty (Vinta Maritime Co., Inc., v. NLRC, G.R. No. 113911 January 23, 1998).

Question 246

Is appeal part of due process?

Answer 246

No. The right ot appeal is not a natural right or part of due process. It si a mere statutory right, but one given, denial constitutes violation of due process (Boardwalk Business Ventures Inc., v. Vilareal, G.R. No. 181.182, April 10, 2013)

Question 247

What does equal protection of the law mean?

Answer 247

It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause si not infringed by legislation which applies only to those persons falling within a specified class, if ti applies alike to all persons within such class, and reasonable grounds, exists for making a distinction between those who fall within such class and those who do not (Ichong v. Hernandez, G.R. No: L-7995, May 31, 1957)

Question 248

What are the requisites for a valid classification?

Answer 248

(SAGE)
1. Such classification rests upon Substantial distinctions;

2. It Applies equally to all members of the same class;
3. It isGermane to the purposes of the law; and
4. It is not limited to Existing conditions only (Spouses Imbong v. Ochoa, Jr., G.R. No. 204819, April 8, 2014).

Note: It is not necessary that the classification be made with absolute symmetry, in the sense that the members of the class should possess the same characteristics ni equal degree. Substantial similarity will suffice; and as long as this is achieved, all those covered by the classification are to be treated equally.

Question 249

What are the standards of judicial review?

Answer 249

The standards of judicial review are:
1. Rational basis test - the guaranty of the equal protection of the laws is not violated by legislation based on reasonable classification. This standard of review is typically quite deferential; legislative classifications are presumed to be valid largely for the reason that “the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one” (British American Tobacco v. Camacho, G.R. No. 163583, August 20, 2008);

2. Intermediate scrutiny test - ti is used is a test evaluating classifications based on gender and legitimacy (White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009). The government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest (Biraogo v. Philippine Truth Commission); and
3. Strict scrutiny test (Samahan ng mga Progresibong Kabataan v. Quezon City, G.R. No. 225442, August 8, 2017).

Question 250

What are the requisites for the issuance of a valid search warrant and warrant of arrest?

Answer 250

1. A determination of Probable cause;
2. The determination of probable cause was made personally by a Judge;
3. The determination by the judge was based on an examination under Oath or affirmation of the complainant and the witnesses he may produce
4. The complainant and/or witnesses testified to facts within their personal
   Knowledge; and
5. The warrant issued must particularly Describe the place to be searched or the persons or things ot be seized (CONST. Art. Il, Sec. 2).

Question 251

What is the difference of probable cause for the issuance of a search warrant and a warrant of arrest?

Answer 251

Probable cause, as a condition for the issuance of a search warrant, exists when there are facts and circumstances that would lead a reasonably prudent man to believe that an offense has been committed and that the objects sought in connection with that offense are in the place ot be searched (Sy Tan v. Sy Tiong Gue, G.R. No. 174570, February 22, 2010).

Probable cause, as a condition for the issuance of a warrant of arrest, exists where there are 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 (Webb v. De Leon, G.R. No. 121234, August 23, 1995).

Question 252

What are the two kinds of determination of probable cause?

Answer 252

1. The executive determination of probable cause is one made during preliminary investigation. tI pertains to the public prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom he believes to have committed the crime as defined by law and thus should be held for trial; and
2. The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice. If the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant.

Question 253

What is a scatter-shot warrant?

Answer 253

A scatter-shot warrant is a warrant issued for more than one specific offense. It is void, because ti violates the constitutional requirement that there must be particularity of the things to be seized and persons and places to be searched (Leon Tambasen v. People, et al., G.R. No. 89103, July 14, 1995).

Question 254

What is a “general warrant”?

Answer 254

A general warrant is one that allows the seizure of one thing under a warrant describing another and gives the officer executing the warrant the discretion over which items to take. It is void because it is not particular as to the person to be arrested or the property ot be seized (Vallejo v. Court of Appeals, G.R. No. 156413, April 14, 2004).

Question 255

When is warrantless arrest valid?

Answer 255

(ICH-BED-DE)
1. When caught In flagrante delicto - When person to be arrested has committed, is actually committing, or is attempting to commit an offense (RULES OF COURT, Rule 113, Sec. 5 (a));

2. In cases of Continuing offense - membership in organizations like NPA is a continuing offense, thus, a person guilty thereof can be arrested anytime under the ni flagrante delicto principle (Umil v. Ramos, G.R. No. 79731, July 9, 1990);
3. Doctrine of Hot Pursuit - When an offense has just been committed and the arrestor has probable cause to believe, based on personal knowledge of facts or circumstances, that the person to be arrested has committed the crime offense (RULES OF COURT, Rule 113, Sec. 5 (b));
4. Bondsmen may arrest the accused, or upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion (RULES OF COURT, Rule 114, Sec. 23, par. (1)):
5. If a person lawfully arrested Escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the
6. When a person to be arrested has escaped detention facility
7. If the accused released on bail attempts to Depart from the Philippines without permission of the court where the case is pending RULES OF COURT, Rule 114, Sec. 23, par. (2)); and
8. Doctrine of Exigent Circumstances - under such urgency and exigency of the moment where a search.be lawfully dispensed with (People v. De Gracia, G.R. Nos. 102009-10, July 6, 1994).

Question 256

What items may be subject to lawful searches and seizures?

Answer 256

(SEMAM-CABS- САРЕ)
1. Property Subject of the offense;

2. Property stolen or Embezzled and other proceeds or fruits of the offense; and
3. Property used or intended to be used as the Means of committing an offense (RULES OF COURT, Rule 126, Sec. 2).
4. A person lawfully Arrested may be searched for dangerous weaponsor anything which may have been used or constitute proof in the commission of an offense without a search warrant (RULES OF COURT, Rule 126, Sec. 13).
5. Searches of Moving vehicles - searches of vehicles, vessels, or aircraft for violation of fishery, immigration, and customs laws (People v. Go, G.R. No. 1144639, September 12, 2003). Searches and seizures without warrant of vessels and aircraft for violation of customs laws have been a traditional exception to the constitutional requirement because the vessel can be quickly moved out of the locality or jurisdiction in which the search must be sought before the warrant could be secured (Hizon v. Court of Appeals, G.R. No. 119619, December 13, 1996);
6. Customs search - allowed when persons exercising police authority under the customs law effect search and seizure in the enforcement of customs law.

Note: Custom searches however are not available in dwelling places (Dela Cruz v. People, G.R. No. 209387 January 1, 2016);

7. Body checks in Airports - holders and his hand-carried luggage(s) are subject to search for, and seizure of, prohibited materials or substance. Holder refusing to be searched shall not be allowed to board the aircraft which shall constitute a part of the contract between the passenger and the air carrier (R.A. No. 6235, Sec. 9);
8. Inspection of Buildings and other premises for the enforcement of fire, sanitary, and building regulations (Valeroso v. CA, G.R. No. 164815, September ,3 2009);
9. When there is a genuine reason to “Stop-and-frisk” ni the light of the police officer’s experience and surrounding conditions to warrant a belief that the person stopped has concealed weapons (Malacat .v Court of Appeals, G.R. No. 123595, December 1, 1997);
10. Visual search at Checkpoints (Valmonte .v de Vila, G.R. No. 83988, September 29, 1989);
11. Conduct of “Aerial target zoning” and “saturation drive” ni the exercise of military powers of the President (Guazon v. de Villa, G.R. No. 80508, January 30, 1990);
12. Plain view doctrine - where prohibited articles are in Plain view (People v. Hua, G.R. No. 197788, February 29, 2012); and
13. Doctrine of Exigent Circumstances - enunciates the rule that under such urgency and exigency of the moment, search warrant should be lawfully dispensed with (People v. De Gracia, G.R. Nos. 102009-10, July 6, 1994).

Question 257

What are the elements of a valid warrantless search of articles in plain view? (JIA)

Answer 257

1. The executing law enforcement officer has a prior Justification for an initial intrusion or otherwise properly in a position from which he can view a particular order;
2. The officer must discover incriminating evidence Inadvertently without conducting a search, a n d
3. It must be immediately Apparent to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure (United Laboratories, Inc., .v Isip, G.R. No, 163858, June 28, 2005).

Question 258

What are the requisites of a valid regular checkpoint?

Answer 258

(PLV)
1. It must be warranted by the exigencies of Public order;

2. It must be conducted in a way Least intrusive to motorists; and
3. The inspection of the vehicle is limited ot a Visual search (Abenes v. CA, G.R. No. 156320, February 14, 2007).

Question 259

What is a Terry Search?

Answer 259

A Terry Search, or a stop and frisk search, is a warrantless search conducted to prevent the occurrence of a crime. The term was derived from the American case of Terry v. Ohio (392 U.S. 1(1968)). This case served as basis for allowing “stop and frisk” searches ni this jurisdiction (People .v Cogaed, G.R. No. 200334, July 30, 2014).

Question 260

What is the quantum of evidence required to conduct a Terry search or a stop and frisk search?

Answer 260

Genuine reason. While probable cause is not required to conduct a “stop and frisk,” mere suspicion or a hunch will NOT validate a “stop and frisk.” A genuine reason must exist, in light of the police officer’s experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him (People v. Cogaed, GR. . No. 200334, July 30, 2014, citing Tery v. Ohio, 392 U.S. 1, (1968)).

Question 261

What are the requisites for the validity of drug, alcohol and blood tests under R.A. No. 9165 otherwise known as the Comprehensive Dangerous Drugs Act of 2002?

Answer 261

1.It must be random; and
2. It must be suspicionless (Laserna v. DDB, G.R. No. 158633, November 3, 2008).

Note: The constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from their waiver of their right to privacy when they seek entry to the school, and from their voluntary submitting their persons to the parental authority of school authorities, (Laserna vi DB, GR., No. 15863, November 3, 2008).

However, there is no valid justification for mandatory drug testing for persons accused of crimes punishable with at least six years and one day imprisonment as they are singled out and impleaded against their will. The operative concepts in the mandatory drug testing are “randomness” and “suspicionless.” nI their case, a mandatory drug testing can never be random or suspicionless. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of R.A: No. 9165. Drug testing in this case would violate a person’s right to privacy guaranteed under Sec. 2, Art. IlI. Worse still, the accused persons are veritably forced to incriminate themselves (Laserna v. DDB, supra).

Question 262

What is the doctrine of the fruit of the poisonous tree?

Answer 262

According to this rule, once the primary source (the “tree”) is shown to have been unlawfully obtained, any secondary or derivative evidence (the “fruit”) derived from ti is also inadmissible. Stated otherwise, illegally seized evidence si obtained as a direct result of the illegal act, whereas the “fruit of the poisonous tree” is the indirect result of the same illegal act. The “fruit of the poisonous tree” si at least once removed from the illegally seized evidence, but it is equally inadmissible. The rule si based on the principle that evidence illegally obtained by the State should not be used t o gain other evidence because the originally illegally obtained evidence taints a l l evidence subsequently obtained (People v. Briones, G.R. No. 117487, December 12, 1995).

Question 263

Does marriage diminish right to privacy of communication?

Answer 263

A person, by contracting marriage, does not shed his/her integrity or his right to privacy as an individual and the constitutional protection is ever available to him or to her. The law only insures absolute freedom of communication between the spouses by making ti privileged. Neither husband nor wife may testify for or against the other without the consent of the affected spouse while the marriage subsists. Neither may be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage, save for specified exceptions (Zulueta v. CA, G.R. No. 107383, February 20, 1996).

Question 264

When can there be a valid intrusion into a person’s privacy of communication and correspondence?

Answer 264

A valid intrusion into a person’s communications and correspondence may be allowed under the following cases:

1. Upon lawful order of the court; or
2. When public safety or order requires such intrusion as prescribed by law (CONST. Art. Ill, Sec. 3 (1)).

Question 265

What is the effect if there is a violation of the Anti-Wire Tapping Act (R.A. No. 4200)?

Answer 265

It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept or record the same, or to
communicate the content thereof to any other person (R.A. 4200, Sec.1).

The communication shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation (R.A. No. 4200, Sec. 4).
Moreover, any person violating the provisions of R.A. No. 4200 shall be punished by imprisonment for not less than six months or more than six years and with the accessory penalty of perpetual absolute disqualification from public office fi the offender be a public official at the time of the commission of the offense, and, fi the offender is an alien he shall be subject to deportation proceedings (R.A. No. 4200, Sec. 2).

Question 266

What is the exception provided in the Anti-Wire Tapping Act (R.A. No. 4200)?

Answer 266

A police officer can secure a written order from the Court to commit any of the acts that would otherwise be considered wiretapping “in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act 616, punishing espionage and other offenses against national security” (R.A. No. 4200, Sec. 3).

Question 267

What are included in the right to freedom of expression?

Answer 267

(SAPRA)
1. Free Speech and free press;
2. Freedom of Assembly;
3. Freedom of Petition;
4. Freedom to Profess and Practice Religion; and
5. Right of Association or the right to form associations (Abrams .v U.S., 250 U.S. 616, November 10, 1919).

Note: Speech, expression, and press include every form of expression, whether oral, written, tape or disc recorded. It also includes movies a s well a s symbolic speech such as the wearing of a n arm band as a symbol of protest, as well as peaceful picketing (BERNAS, Reviewer, supra at 62-63).

Question 268

What are the kinds of speech that are not protected by the Constitution?

Answer 268

The Constitution does not cover unprotected speech or low-value expression, which refers to libelous statements, obscenity or pornography, false or misleading advertisement, insulting or “fighting words,” i.e., those which by their very utterance inflict injury or tend to incite an immediate breach of peace and expression endangering national security (Soriano v. Languardia, G.R. No. 164785, April 29, 2008).

Question 269

How do we determine which test to apply to determine the validity of regulation of speech?

Answer 269

In order to determine which kind of test ot apply, the nature of the restraint must be determined. The restraint may either be a (1) prior restraint or a (2) subsequent punishment (Chavez .v Gonzales, GR. No. 168338, February 15, 2008).

Question 270

What are examples of valid prior restraint?

Answer 270

(MPFADS)
1. Movies, television, and radio broadcast censorship in view of its access to numerous people, including the young who must be insulated from the prejudicial effects of unprotected speech

2. Pornography
3. False or misleading commercial
   statements
4. Advocacy of imminent lawless action
5. Danger to national security
6. Subjudice rule - restriction of comments and disclosures pertaining to judicial proceedings to avoid prejudging the issue, influencing the court, or obstructing the administration of justice

Question 271

What is Overbreadth Doctrine?

Answer 271

The overbreadth doctrine is a ground to declare a statute void when “it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms” (Estrada v. Sandiganbayan, G.R. Nos. 212140-41. January 21, 2015). Generally applied to statutes infringing on the freedom of speech, the Overbreadth Doctrine applies when a statute needlessly restrains even constitutionally guaranteed rights (White Light Corporation v. City of Manila, GR.. No. 122846, January 20, 2009). Decrees that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms (Estrada .v Sandiganbayan, G.R. No. 148560, November 19, 2001).

Question 272

What is the rule on the regulation of broadcast media?

Answer 272

Broadcast and radio media are subject to dual regulation. First, by procuring a legislative franchise and second, by registering and being subject to the regulations set by the National Telecommunications Commission (Divinagracia v. Consolidated Broadcasting System, Inc., G.R. No. 162272, April 7, 2009)

Question 273

What is the Doctrine of Fair Comment?

Answer 273

Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general, every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable; unless it be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on facts, then ti is immaterial that the opinion happens to be mistaken as long as it might reasonably be inferred from the facts (Id).

Question 274

What is the non-establishment clause?

Answer 274

No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof (CONST. Art. III, Sec. 5). The non-establishment clause means that the State cannot set up a church, nor pass laws which aid one religion, aid al religions or prefer one religion over another, nor force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion, etc. (Everson v. Board of Education, 330 U.S. 1 (1946)).

Question 275

What are the exceptions to the rights to liberty of abode and the right to travel?

Answer 275

The liberty of abode may be limited only upon lawful order of a court, whereas the right to travel may be impaired in the interest of national security, public safety, or public health, as may be provided by law (CONST. Art. Il, Sec. 6).

Note: While the liberty of travel may be impaired even without court order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of “national security, public safety or public health” and “as may be provided by law” (Silverio v. CA, G.R. No. 94284, April 8, 1991).

Question 276

What is precautionary hold departure order?

Answer 276

It is an order in writing issued by a court, commanding the Bureau of Immigration to prevent any attempt by a person suspected of a crime to depart from the Philippines which shall be issued ex-parte in cases involving crimes where the minimum of the penalty prescribed by law is at least sixyears and oneday or when the offender is a foreigner regardless of the imposable penalty (A.M. No. 18-07-05-SC, August 7, 2018).

Question 277

Can the DOJ issue a Watch-List Order or HDO?

Answer 277

No. The right to travel may only be impaired by a law that concerns national security, public safety or public health. There is no law particularly providing for the authority of the Secretary of Justice to curtail the exercise of the right to travel, in the interest of national security, public safety or public health. DOJ Circular No. 41 is not a law.

It is a compulsory requirement that there be an existing law, complete and sufficient in itself, conferring the expressed authority to the concerned agency ot promulgate rules. On its own, the DOJ cannot make rules, its authority being confined to execution of laws (Genuino v. De Lima, G.R. No. 197930, April 17, 2018).

Question 278

Why is the power to issue HDO inherent to the court?

Answer 278

The courts may issue an HDO against an accused in a criminal case so that he may be dealt with in accordance with law. tI does NOT require legislative conferment or constitutional recognition; it co-exists with the grant of judicial power (Genuino v. De Lima, G.R. No. 197930, April 17, 2018).

Question 279

What is the right to information-limited?

Answer 279

(EN-LPOPRO)
1. Information covered by Executive privilege;

2. Privileged information relating to National security, defense or international relations; and
3. protection of public and personal Information concerning Law enforcement
4. Information deemed confidential for the protection of the Privacy of persons and certain individuals such as minors, victims of crimes, or the accused;
5. Information, documents or records known by reason of Official capacity and are deemed as confidential, including those submitted, or disclosed by entities to government agencies, tribunals, board or officers;
6. Prejudicial premature disclosure;
7. Records of proceedings or information from proceedings which, pursuant to law or relevant rules and regulations, are treated as confidential or privileged; and
8. Other exceptions to the rights to information under laws, jurisprudence, rules and regulations (Inventory of Exceptions to Executive Order No. 2, s. 2016, Memorandum from the Executive Secretary, Nov. 24, 2016).

Question 280

What are the two notions comprehended under the right of association?

Answer 280

1. Liberty or freedom, i.e., the absence of legal restraint, whereby an employee may act for himself without being prevented by law; and
2. Power, whereby an employee may, as he pleases, join or refrain from joining an association (Victoriano v. Elizalde Rope Workers’ Union, G.R. No. -L 25246, September 12, 1974).
   Note: The right to associate also guarantees the right not to join an association (Sta. Clara Homeowners Association v. Gaston, G.R. No. 141961, January 23, 2002).

Question 281

Is the right to strike of government employees included in their right to organize?

Answer 281

No. The right to strike is not included in the guarantee of association to government employees. While there si no question that the Constitution recognizes the right of government employees to organize, it is silent as to whether such recognition also includes hte right ot strike (SSS Employees Association v. CA, G.R. No. 85279, July 28, 1989).

Question 282

What is the protection guaranteed by the non-impairment clause?

Answer 282

The non-impairment clause renders null and void a law which changes the terms of a legal contract between parties, either in the time or mode of performance, or imposes new conditions, or dispenses with those expressed, or authorizes for its satisfaction something different from that provided in its terms (Lepanto Consolidated Mining v. WMC Resources Int. Pty. Ltd., G.R. No. 162331, November 20, 2006).

Question 283

What are the exceptions to the non-impairment clause?

Answer 283

The exceptions to the non-impairment clause are the valid exercise of the inherent powers of the state - police power, eminent domain, and taxation. In every contract, there is an implied reservation that ti is subject to the police power of the State (Ortigas &Co. V. Feati Bank and Trust Co., G.R. No. L-24670, December 14, 1979).

Question 284

Does the non-impairment clause apply to franchises, privileges and licenses?

Answer 284

No. Franchises, privileges and licenses do not come within the context of the provision because police power cannot be bargained away through the medium of a contract (Stone v. Mississippi, 101 U.S. 814, May 10, 1880).

Question 285

Who is an indigent party?

Answer 285

An indigent party is one who is authorized by the court to prosecute his action or defense as an indigent upon an ex parte application. and hearing showing that he has no money or property sufficient and available for food, shelter and basic necessities for himself and his family (RULES OF COURT, RULE 3, Sec. 21)

Question 286

Who are covered by the Constitutional provision?

Answer 286

Only a natural party litigant may be regarded as an indigent litigant. Acorporation being a juridical person has the power to acquire and possess property of all kinds as well as incur obligations and bring civil and criminal actions, ni conformity with the laws and regulations of their organization. As ajuridical person, therefore, it cannot be accorded the exemption from legal and filing fees granted to indigent litigants (In Re: Query of M.r Roger Prioreschi, A.M. No. 09-6-9 SC, August 19, 2009).

Question 287

What are the requirements for availment under the Free Legal Assistance Act of 2010 (R.A. No. 9999)?

Answer 287

1. For purposes of availing of the benefits and services under the Act, a lawyer or professional partnership shall secure a certification from the PAO, the DOJ or accredited association of the Supreme Court indicating that the legal services
   to be provided are within the services defined by the Supreme Court, and that the agencies cannot provide the legal services to be provided by the private counsel
2. For purposes of determining the number of hours actually provided by the lawyer and/or professional firm in the provision of legal services, the association and/or organization duly accredited by the Supreme Court shall issue the necessary certification that the legal services were actually undertaken
3. The certification issued by the PAO, the DOJ and other accredited association by the Supreme Court shall be submitted to the BIR for purposes of availing tax deductions and to the DOJ for purposes of monitoring (R.A. No. 9999, Sec. 4).

Question 288

Do the actual free legal services include the 60-hour mandatory legal aid services rendered to indigents as required under the Rule of Mandatory Legal Aid Service for Practicing Lawyers, under BAR Matter No. 2012?

Answer 288

No. The actual free legal services shall be exclusive of the minimum 60-hour mandatory legal aid services rendered to indigent litigants as required under the Rule of Mandatory Legal Aid Service for Practicing Lawyers, under BAR Matter No. 2012 (ld).

Question 289

What is custodial investigation?

Answer 289

Custodial investigation is questioning initiated by a law enforcement officer after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way (Miranda v. Arizona, 384 U.S. 436, 1966). It shall include the practice of issuing an invitation to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the inviting officer for any violation of law (R.A. No. 7438, Sec 2, Par. (2)).

Question 290

When does an investigation begin?

Answer 290

Investigation begins when it is no longer a general inquiry into an unsolved crime but starts to focus on a particular person as a suspect, i.e., when the police investigator starts interrogating or exacting a confession from the suspect in connection with an alleged offense (People v. Macam, G.R. Nos. L-91011-12, November 24, 1994).

Question 291

What are the rights of a person under custodial investigation?

Answer 291

(ISC2-TDCR-EWV)
1. Right to be Informed of his right to remain silent and right to independent and competent counsel;

2. Right to be Informed that if he waives his right to remain silent, anything he says can and will be used against him;
3. Right to remain Silent;
4. Right to have competent and independent Counsel preferably of his own choice;
5. Right to be provided with Counsel, if he cannot afford the services of one;
6. No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him;
7. Secret Detention places, solitary, incommunicado, or other similar forms of detention are prohibited;
8. Confessions or admissions obtained in violation of these rights are inadmissible as evidence (CONST. Art. I, Sec. 12);
9. The custodial investigation Report shall be reduced to writing by the investigating officer and read and adequately explained to him by his counselor by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested to detained person, before such report is signed or thumb marked, otherwise such investigation report shall be null and void;
10. Any Extrajudicial confession made by a person arrested detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel, or in the latter’s absence, upon a valid waiver, and in the presence of any of the parents, elder brother and sisters, his spouse, the municipal mayor, municipal judge, district school supervisor, or priest or minister of the gospel chosen by him; otherwise such extrajudicial confession shall be inadmissible as evidence in any proceeding;
11. Any Waiver by a person arrested or detained under the provision of Article 125 of the Revised Penal Code, or under custodial investigation shall be in writing and signed by such person in the presence of his counsel, otherwise the waiver
    shall be null and void; and
12. Any person arrested or detained or under custodial investigation shall be allowed Visits by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or any member of his immediate family of by his counsel, or by any NGO duly accredited by the CHR or by any international non-governmental organization duly accredited by the Office of the President (R.A. No. 7438, Sec 2).

Question 292

What are the rights of a person suspected and subsequently charged?

Answer 292

1. Before the case is filed in court (or with the public prosecutor, for preliminary investigation), but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police: the continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the free will; and to have evidence obtained in violation of these rights rejected; and
2. After the case is filed in court:
   a. To refuse to be a witness;
   b. Not to have any prejudice whatsoever result to him by such refusal;
   c. To testify in his own behalf, subject to cross-examination by the prosecution; and
   d. While testifying, to refuse to answer a specific question which tends to incriminate him for some crime other than that for which he is then prosecuted (People v. Judge Ayson, G.R. No. 85215, July 7, 1989).

Question 293

What are the rights that can be waived?

Answer 293

Like other constitutional rights, the right against self-incrimination, including the right of a person under investigation to remain silent and to counsel, and to be informed of such right, may be waived (People v. Nicandro, G.R. No. L-59378, February 11, 1986).

Question 294

What are the requisites of a valid waiver?

Answer 294

To be valid, a waiver of the right must not only be voluntary; it must be made knowingly and intelligently, which presupposes an awareness or understanding of what is being waived (People v. Nicandro, G.R. No. L-59378, February 11, 1986).

Note: The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel (People v. Galit, G.R. No. L-51770 March 20, 1985).

Question 295

What is the exclusionary doctrine in relation to the violation of the rights of a person under custodial investigation?

Answer 295

Any information or admission given by a person while in custody which may appear harmless or innocuous at the time without the competent assistance of an independent counsel should be struck down as inadmissible. It has been held, however, that an admission made to news reporters or to a confidant of the accused is not covered by the exclusionary rule (People v. Bravo, G.R. No: 135562, November 22, 1999).

Question 296

What are the rights of the accused in a criminal prosecution?

Answer 296

1. The right to due process;
2. The right to presumption of innocence;
3. The right to be heard;
4. The right to assistance of counsel;
5. The right to be informed of the cause and nature of accusation against him;
6. The right ot speedy, impartial, and public trial;
7. The right to confrontation;
8. The right to compulsory process;
9. The right against trial in absentia; and
10. The right to bail (CONST. Art. Il, Secs. 13-14).

Question 297

What is bail?

Answer 297

Bail is the security given for the release of a person ni custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified (RULES OF COURT, Rule 114, Sec. 1). Bail may either be a matter of right or a matter of discretion (RULES OF COURT, Rule 114, Secs. 4 and 5).

Question 298

When is bail a matter of right?

Answer 298

1. All criminal cases within the competence of the MeTC, MTC, or MCTC because these courts have no jurisdiction to try capital offenses, or offenses punishable with reclusion perpetua or life imprisonment;
2. Prior to conviction by the RTC for any offense not punishable by death, reclusion perpetua, or life imprisonment; and
3. Prior to conviction by the RTC for an offense punishable by death, reclusion perpetua, or life imprisonment when evidence of guilt is not strong (CONST. Art. Il, Sec. 13; Enrile v. Sandiganbayan, G.R. No. 213847, August 18, 2015).

Question 299

When is bail a matter of discretion?

Answer 299

1. Upon conviction by the RC of an offense not punishable by death, reclusion perpetua or life imprisonment; and
2. If the RTC has imposed a penalty of imprisonment exceeding six years, provided none of the circumstances enumerated under paragraph 3 of Section 5, Rule 14 is present, as follows:
   a. That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;
   b. That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification;
   c. That he committed the offense while under probation, parole, or conditional pardon;
   d. That the circumstances of his case indicate the probability of flight fi released on bail or
   e. That there is undue risk that he may commit another crime during the pendency of the appeal (Enrile v. Sandiganbayan, G.R. No. 213847, August 18, 2015).

Question 300

When shall bail be denied?

Answer 300

1. Prior to the conviction by the RTC of an offense punishable by death, reclusion perpetua, or life imprisonment and the evidence of guilt is strong;
2. After conviction by the RTC of an offense punishable by death, reclusion perpetua, or life imprisonment; and
3. After conviction by the RTC of an offense not punishable by death, reclusion perpetua, or life imprisonment and the presence of bail-denying circumstances (RULES OF COURT, Rule 114, Sec. 5).

Question 301

When is a hearing mandatory in granting of bail?

Answer 301

For purposes of admission to bail, the determination of whether or not evidence of guilt is strong in criminal cases involving capital offenses, or offenses punishable with reclusion perpetua or life imprisonment lies within the discretion of the trial court. But such discretion may be exercised only after the hearing called to ascertain the degree of guilt of the accused for the purpose of whether or not he should be granted provisional liberty. Therefore, that bail cannot be allowed when its grant is a matter of discretion on the part of the trial court unless there has been a hearing with notice to the Prosecution.

The hearing, which may be either summary or otherwise, in the discretion of the court, should primarily determine whether or not the evidence of guilt against the accused is strong (Enrile v. Sandiganbayan, G.R. No. 213847, August 18, 2015).

Question 302

What is the pro reo principle?

Answer 302

If inculpatory facts and circumstances are capable of two or more explanations, one consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and wil not justify a conviction (Amanquiton v. People, G.R. No. 186080, August 14, 2009).

Question 303

May the right to a speedy trial be waived?

Answer 303

Yes. The right to a speedy trial may be waived. But waiver is not to be inferred from mere failure of the accused to urge the trial of the case. Such waiver or abandonment may be presumed only when the postponement of the trial has been sought and obtained by the accused himself or by his attorney. The presumption is always against the waiver of constitutionally protected rights (Coscolluela v. Sandiganbayan, G.R. No. 191411, July 15, 2013).

The remedy in the event of a non-observance of this right is by habeas corpus if the accused were restrained of his liberty, or by certiorari, prohibition, or mandamus for the final dismissal of the case (Acebedo yDalman v. Sarmiento, G.R. No. L-28025, December 16, 1970).

Question 304

May the right to cross-examination be waived?

Answer 304

Yes. Right to cross-examination may be waived expressly or impliedly. Thus, where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness wil be received or allowed to remain ni the record.

Question 305

What is covered by the right to compulsory processes of an accused?

Answer 305

The right to compulsory process of an accused pertains to:
1. His right to secure the attendance of witnesses (subpoena ad testificandum); and

2. His right to the production of evidence in his behalf (subpoena duces tecum) (CONST. Art. III, Sec. 14 (2)).

Question 306

What is involuntary servitude?

Answer 306

Involuntary servitude is the condition where one is compelled by force, coercion, or imprisonment, and against his will, to labor for another, whether he is paid or not (Aclaracion v. Gatmaitan, G.R. No. L-39115, May 26, 1975).

Question 307

What are some of the exceptions to the prohibition against involuntary servitude?

Answer 307

(PAND-COW)
1. Posse comitatus - obligation of the individual to assist in the protection of the peace and good order of his community (United States v. Pompeya, G.R. No. 10255, August 6, 1915);

2. Appellate courts may compel a former court stenographer to transcribe stenographic notes. That prerogative is ancillary or incidental to its appellate jurisdiction and is part of its inherent powers which are necessary to the ordinary and efficient exercise of its jurisdiction and essential to the due administration of justice (In the Matter of the Petition For Habeas corpus of Segifredo Aclaracion, G.R. No. L-39115, May 26, 1975);
3. Naval enlistment (Robertson v. Baldwin, G.R. No. 334, January 25, 1897);
4. Service in Defense of the State (CONST. Art. I, Sec. 4);
5. As punishment for a Crime whereof one has been duly convicted (CONST. Art. I, Sec. 18, par. (2));
6. Obligation of children to Obey their parents as long as they are under their parental authority (FAMILY CODE, Art. 211, Par. (2)).
7. Return to Work order in industries affected with public interest (Kaisahan ng Manggagawa sa Kahoy v. Gotamco Sawmills, G.R. No. L-1573, March 29, 1948).

Question 308

When is a fine considered excessive?

Answer 308

For a penalty to be considered obnoxious to the Constitution, ti needs ot be more than merely being harsh, excessive, out of proportion, or severe. To come under the prohibition, the penalty must be flagrantly and plainly oppressive or so disproportionate to the offense committed as to shock the moral sense of all reasonable persons as to what is right and proper under the circumstances (Republic v. N. Dela Mercedes &Sons, Inc., G.R. No. 201501, January 22, 2018).

Question 309

What are invalid causes for imprisonment under the Constitution?

Answer 309

1.Debt - any civil obligation arising from a contract. tI includes even debts obtained through fraud since no distinction is made in the Constitution; and

2. Non-payment of Poll Tax - a specific sum levied upon any person belonging to a certain class without regard to property or occupation, e.g. Community Tax (CONST. Art. III, Sec. 20).

Question 310

Has B.P. 22, otherwise known as the Bouncing Checks Law, transgressed the constitutional inhibition against imprisonment for debt?

Answer 310

No. The gravamen of the offense punished by BP 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment. It is not the non-payment of an obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his debt. The thrust of the law is to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. Because of its deleterious effects on the public interest, the practice is proscribed by the law. The law punishes the act not as an offense against property, but an offense against public order. (Lozano v. Martinez, G.R. No. L-63419, December 18, 1986).

Question 311

Who are the citizens of the Philippines under the 1987 Constitution?

Answer 311

1. Those who are citizens of the Philippines at the time of the adoption of this Constitution;
2. Those whose fathers or mothers are citizens of the Philippines;
3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and
4. Those who are naturalized in accordance with law (CONST. Art. IV, Sec. 1).

Question 312

What is the prescriptive period within which the election of Philippine citizenship must be made?

Answer 312

The election should be made within a “reasonable time” after attaining the age of majority. The phrase “reasonable time” has been interpreted to mean that the election should be made within 3 years from reaching the age of majority. However, the three-year period is NOT an inflexible rule. Nevertheless, the extension of the option to elect Philippine citizenship is not indefinite (Re: Application for Admission to The Philippine Bar, B.M. No. 914, October 1, 1999).

Question 313

What is the Caram provision?

Answer 313

The Caram provision pertains to Article IV, Section 1(2) of the 1935 Constitution. The provision states that those born in the Philippine Islands of foreign parents who, before the adoption of the 1935 Constitution, had been elected to public office in the Philippine Islands, shall be citizens of the Philippines. The privilege of citizenship granted by the 1935 Constitution extends to the children of the grantee (Chiongbian v. De Leon, G.R. No. L-2007, January 31, 1949).

Question 314

Which principle is followed in the Philippines?

Answer 314

In our jurisdiction, the principle of jus sanguinis has become the primary basis of citizenship by birth (Tecson v. COMELEC, G.R. No. 161434. March 3, 2004). Aperson whose father or mother are citizens of the Philippines shall follow the citizenship of his or her parents (CONST. Art. IV, Sec. 1).

Question 315

What are the modes of acquiring citizenship by naturalization?

Answer 315

(JADeL)
1. Judicial naturalization (C.A. No. 473, otherwise known as “The Revised Naturalization Law”);

2. Administrative naturalization (R.A. No. 9139, otherwise known as “The Administrative Naturalization Law of 2000”);
3. Derivative naturalization (C.A. No. 473, Sec, 15 and 16); or
4. Legislative naturalization (So v. Republic, G.R. No. 170603, January 29, 2007).

Question 316

How is Philippine citizenship lost?

Answer 316

(NEOSCD)
1. By Naturalization in foreign countries

2. By Express renunciation of citizenship (expatriation);
3. By Subscribing to an Oath of allegiance to support the constitution or laws of a foreign country upon attaining 21 years of age except that a Filipino may not divest himself of Philippine citizenship ni any manner while the Republic of the Philippines is at war with any country;
4. By rendering Service to or accepting commission in the armed forces of a foreign country;
5. By Cancellation of the certificate of naturalization; or
6. By having been declared by competent authority a Deserter of the Philippine army, navy or air corps in time of war, unless subsequently a plenary pardon or amnesty has ben granted (CA. , No. 63, Sec. 4).

Question 317

How may the Philippine citizenship be reacquired?

Answer 317

1. By naturalization;
2. By repatriation;
3. By direct act of Congress (C.A. No. 63, Sec. 2); or
4. By the taking of oath of allegiance by natural-born citizens of the Philippines who had been naturalized in a foreign country prior to R.A. No. 9225 (R.A. No. 9225, Sec. 3).

Question 318

What is the difference between naturalization and repatriation?

Answer 318

Naturalization is a mode for both acquisition and reacquisition of Philippine citizenship. On the other hand, repatriation, may be had under various statutes by those who lost their citizenship due to:
1. Desertion of the armed forces;

2. Service in the armed forces of the allied forces in World War I;
3. Service in the Armed Forces of the United States at any other time;
4. Marriage of a Filipino woman to an alien; and
5. Political and economic necessity (Bengson I v. House of Representatives Electoral Tribunal, G.R. No. 142840, May 7, 2001).

A person who has undergone naturalization is a naturalized citizen. However, repatriation results in the recovery of the original nationality. This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, fi he was originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural-born Filipino (Bengson I v. House of Representatives Electoral Tribunal, G.R. No. 142840, May 7, 2001).

Question 319

What is the difference between dual citizenship and dual allegiance?

Answer 319

Dual citizenship arises when, as a result of concurrent application of thedifferent laws of two or more states, a person is simultaneously considered a national by the said states. On the other hand, dual allegiance refers to the situation ni which a person simultaneously owes, by some positive act, loyalty to two or more states (Mercado v. Manzano, G.R. No. 135083, May 26, 1999).

Note: What is not allowed is dual allegiance. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law (CONST., Art. (V, Sec. 5).

Question 320

Who are considered as dual citizens?

Answer 320

1. Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus solis:
2. Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers’ country such children a r e citizens of that country; and
3. Those who marry aliens if by the laws of the latter’s country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship (Mercado v. Manzano, G.R. No. 135083, May 26, 1999).

Question 321

How can dual citizens be eligible to run for elective office?

Answer 321

(QRO)
1. Meet the Qualifications for holding such public office as required by the Constitution and existing laws;

2. Make a personal and sworn Renunciation of any and all foreign citizenship before any public officer authorized to administer an oath at the time of filing the certificate of candidacy; and
3. Take the Oath of allegiance prescribed in Sec. 3 of RA. . No. 9225 (Cordora v. COMELEC, GR. . No. 176947, February 19, 2009).

Question 322

What are the modes of naturalization?

Answer 322

1. Direct - Citizenship is acquired by:
   a. Individual, through judicial or administrative proceedings;
   b. Special act of legislature;
   c. Collective change of nationality, as a result of cession or subjugation; or
   d. In some cases, by adoption of orphan minors as nationals of the State where they are born.
2. Derivative - Citizenship is conferred on:
   a. Wife of naturalized husband;
   b. Minor children of naturalized person; or
   c. Alien woman upon marriage to a national (NACHURA, p. 238).

Question 323

What are the qualifications for naturalization under C.A. No. 473?

Answer 323

1. Not less than 21 years of age on the date of the hearing of the petition;
2. Resided in the Philippines for a continuous period of not less than 10 years; may be reduced to 5 years if he honorably held office in Government, established a new industry or introduced a useful invention in the Philippines, married to a Filipino woman, been engaged as a teacher in the Philippines (in a public or private school not established for the exclusive instruction of persons of a
   particular nationality or race or in any of the branches of education or industry for a period of not less than two years, or born in the Philippines;
3. Good moral character; believes in the principles underlying the Philippine Constitution; must have conducted himself in a proper and irreproachable manner during the entire period of his residence in the Philippines in his relations with the constituted government as well as the community in which he is living;
4. Own real estate in the Philippines worth not less than P5,000.00, or must have some known lucrative trade, profession or lawful occupation;
5. Speak and write English or Spanish and any of the principal Philippine
   languages; and
6. Enrolled his minor children of school age in any of the public or private schools recognized by the Government where Philippine history, government and civics are taught as part of the school curriculum, during the entire period of residence in the Philippines required of him prior to the hearing of his petition for naturalization. (C.A. No. 473, Sec. 2):

Question 324

What are the disqualifications for naturalization under C.A. No. 473?

Answer 324

1. Opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing al organized governments;
2. Defending or teaching the necessity or propriety of violence, personal assault or assassination for the success or predominance of their ideas;
3. Polygamists or believers in polygamy;
4. Convicted of a crime involving moral turpitude;
5. Suffering from mental alienation or incurable contagious disease;
6. Who,during theperiod of their residence in the Philippines, have not mingled socially with the Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions and ideals of the Filipinos;
7. Citizens or subjects of nations with whom the Philippines is at war, during the period of such war; and
8. Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to become naturalized citizens or subjects thereof. (C.A. No. 473, Sec. 4).

Question 325

What is public office?

Answer 325

Public office is a right, authority, and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the state to be exercised by him for the benefit of the body politic (Fernandez v. Sto. Tomas, G.R. No. 116418, March 7, 1995).

Question 326

What are the characteristics of a public office?

Answer 326

(PPHOC)
1. It is a Public trust; ti is merely entrusted to the public officer (CONST. Art. XI, Sec. 1);

2. It is not a Property; it is not protected or guaranteed by the due process clause (CONST. Art. III, Sec. 1);
3. It is not a Heritable possession (CONST. Art. I, Sec. 26);
4. It is Outside the commerce of man; and
5. It cannot be the subject of a valid Contract otherwise, the contract is void (CIVIL CODE, Art. 1409).

Question 327

What are the requisites of a valid appointment?

Answer 327

(V-PACQuA)
1. The position is Vacant;

2. The appointing authority must be vested with the Power to Appoint at the time appointment is made;
3. The appointment has been approved by the CSC (or Confirmed by Commission on Appointments);
4. The appointee should possess al the Qualifications including appropriate civil service eligibility and none of the disqualifications;
5. The appointee Accepts the appointment by taking the oath and entering into discharge of duty (Garces v. Court of Appeals, G.R. No. 114795, July 17, 1996).

Question 328

When is the confirmation of the Commission on Appointments required?

Answer 328

(HAOZ)
1. Heads of Executive Department;

2. Ambassadors, or other Public Ministers and Consuls;
3. Officers of the Armed Forces from the rank of Colonel or Naval Captain; and
4. Other officers whose appointments are vested in the President in the Constitution (CONST. Art. VI, Sec. 16).

Question 329

What is the effect of the disapproval made by the Commission on Appointments?

Answer 329

The disapproval is a final decision of the Commission on Appointments ni the exercise of its checking power on the appointing authority of the President. Since the Constitution does not provide for any appeal from such decision, the disapproval is final and binding on the appointee as wel as on the appointing power (Matibag v. Benipayo, G.R. No. 149036, April 2, 2002).

Question 330

Who are disqualified from holding a public office?

Answer 330

1. A person convicted in an impeachment proceeding may be disqualified from holding any office under the Republic of the Philippines (CONS. Art. X,I Sec. 3, Par. (7));
2. One who suffers from perpetual special disqualification is ineligible to run for public office (Aratea v. COMELEC, G.R. No. 195229, October 9, 2012);
3. A defeated candidate may not be appointed or re-appointed to any office in the Government or any government-owned or controlled corporation or in any of its subsidiaries within one year from the date of the election
4. Dual citizens may not quality for election or appointment to public office without renouncing their foreign citizenships (R.A. 9225, Sec. 5);
5. Dual citizens are disqualified from running for any elective local position (Chua v. COMELEC,G.R. No. 216607, April 5, 2016);
6. No Senator or Member of the HOR may hold any other office in the government, or any subdivision, agency, or instrumentality thereof, including government- owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat(CONST.Art. VI,Sec. 13).
7. No Senator or Member of the HOR shall be appointed ot any office which may have been created or the emolument thereof increased during the term for which he was elected (Id).
8. The President, Vice-President, the Members of the Cabinet, and their deputies or assistant shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure (CONST. Art. VI, Sec. 13).
9. The President, Vice-President, the Members of the Cabinet, and their deputies or assistant shall not, during their tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries (ld).
10. Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative function (CONST. Art. VI, Sec. 12).
11. No candidate who has lost in any election, shall within 1year after such election, be appointed to any office in the Government or any Government-owned or controlled corporations or in any of their subsidiaries

Question 331

What is the effect of pardon on the disqualification?

Answer 331

General Rule: Pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or forfeited by reason of the conviction although such pardon undoubtedly restores the eligibility for appointment to that office. A pardon, albeit full and plenary, cannot preclude the appointing power from refusing appointment to anyone deemed to be of bad character, a poor moral risk, or who is unsuitable by reason of the pardoned conviction (Monsanto v. Factoran, Jr., G.R. No. 78239, February 9, 1989).

Exception: If the pardon is based on the innocence of the individual, it affirms this innocence and makes him a new man; as if he had not been found guilty of the offense charged. x The bestowal of executive clemency on petitioner in effect completely obliterated the adverse effects of the administrative decision which found him guilty of dishonesty and ordered his separation from the service. This can be inferred from the executive clemency itself exculpating petitioner from t h e administrative charge and thereby directing his reinstatement, which is rendered automatic by the grant of the pardon. This signifies that petitioner need no longer apply to be reinstated to his former employment; he is restored to his office ipso facto upon the issuance of the clemency (Garcia v. COA, GR. . No. 75025, September 14, 1993).

Question 332

What is the Arias Doctrine?

Answer 332

All heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who perform functions within their power of control or supervision, such as specific clerical or administrative tasks, or even limited exercises of discretion (Arias v. Sandiganbayan, G.R. No. 81563, December 19, 1989).

The mere fact that a public officer is the head of an agency does not necessarily mean that he is the party ultimately liable for administrative acts or omissions of their subordinates (Albert v. Gangan, G.R. No. 126557, March 6, 2001). When infraction consists in the reliance in good faith, albeit misplaced, by a head of office on a subordinate upon whom the primary responsibility rests, absent a clear case of conspiracy, the Arias doctrine must be held ot prevail (Magsuci v. Sandiganbayan, G.R. No. L-101545, January 3, 1995).

Question 332

Is salary of a public officer subject to garnishment?

Answer 332

NO. The salary of a public oficer cannot be seized by garnishment, atachment, or order of execution. Public policy also prohibits the assignment of unearned salaries or fees (Director of the Bureau of Printing v. Francisco, G.R. No. L-31337, December 20, 1973).

Question 333

What is the exception to the Arias Doctrine?

Answer 333

While there are cases where heads of offices, whose actions involved the very function he had to discharge, cannot be swept into a conspiracy conviction. It cannot be applied in cases where the public officers were knowing participants in the conspiracy considering that despite the patent irregularities in the documents presented to them, they still affixed their signatures thereto (Alvizo v. Sandiganbayan, G.R. No. 98494, July 17, 2003).

The application of the doctrine is subject to the qualification that the public official has no foreknowledge of any facts or circumstances that would prompt him or her to investigate or exercise a greater degree of care (Abubakar .v People, G.R. No. 202408, June 27, 2018).

Question 334

When may be subordinate officers be liable?

Answer 334

Subordinate officers are liable for willful or negligent acts even fi he acted under orders fi such acts are contrary to law, morals, public policy and good customs (REV. ADM. CODE, Book 1, Chapter 9, Sec. 39).

Question 335

When may be public officers be personally liable?

Answer 335

Public officers generally have in their favor the presumption of regularity in the performance of their official duties. But where the wrong is committed without authority, with malice, or bad faith, he may be held personally liable. nI this case, he is suable ni his individual capacity and cannot invoke his official status to insulate himself from liability (CRUZ, supra at 434).

Question 336

What is the rule on the immunity of public officers?

Answer 336

General Rule: The doctrine of state immunity from suit applies to complaints filed against public officials for acts done in the performance of theirduties.The suit must be regarded as one against the state where satisfaction of the judgment against the public official concerned will require the state itself to perform a positive act, such as appropriation of the amount necessary to pay the damages awarded to the plaintiff (Sanders v. Veridiano I, G.R. No. L-46930, June 10, 1988).

Exceptions:
1. Where the public official is charged in his official capacity for acts that are unlawful and injurious to the rights of others;
2. Where the public official is clearly being sued not in his official capacity, but in his personal capacity, although t h e a c t s complained of may have been committed while he occupied a public position: (Lansang .v CA, G.R. No. 102667, February 23, 2000); and

3. Suit to compel performance of official duty or restrain performance of an act (RULES OF COURT, Rule 65).

Question 337

What is the rule on the immunity of the President?

Answer 337

General Rule: The President shall be immune from suit during his tenure (Rubrico v. Macapagal-Arroyo, G.R. No. 183871, February 18, 2010). The presidential immunity from suit remains preserved under our system of government, albeit not expressly reserved ni the present Constitution (Rubrico v, Macapagal-Arroyo, G.R. No. 183871, February 18, 2010).

Exception: Impeachment complaint (CONST. Art. XI, Sec. 2).

Note: While the President is immune from suit, she may not be prevented from instituting a suit (Soliven .v Makasiar, G.R. No. 82585, November 14, 1988).

Question 338

Who is a de facto public officer?

Answer 338

An officer de facto is one who has the reputation or appearance of being the officer he assumed to be but who, in fact, under the law, has no right or title to the office he assumes to hold. He is distinguished from a mere usurper or intruder by the fact that the former holds by some color of right or title, while the latter intrudes upon the office and assumes to exercise its functions without either the legal title or color of right to such office (Codilla v. Martinez, G.R. No. L-14569, November 23, 1960).

Question 339

Who is a de jure public officer?

Answer 339

A de jure public oficer si one who si deemed, ni al respects, legaly appointed and qualified and whose term of office has not expired (Topacio v. Ong, G.R. No. 179895, December 28, 2008).

Question 340

Distinguish a de facto officer from a de jure officer.

Answer 340

A de jure officer has a title ot an office, although he may not yet be ni possession of the office. A de facto officer is one who has possession of the office under color of authority (CRUZ, Law on Public Officers, supra at 52). However, the de facto officer Is subject to the same liabilities imposed on the de jure officer in the discharge of official duties, in addition to whatever special damages that may be due from him because of his unlawful assumption of ofice (Codila V. Martinez, G.R. No. L-14569, November 23, 1960).

Question 341

What is the legal effect of the acts performed by a de facto officer?

Answer 341

The lawful acts of a de facto officer, so far as the rights of third person are concerned are, if done within the scope and by the apparent authority of the office, considered valid and binding as if he were the officer legally elected and qualified for the office and in full possession thereof (Laud v. People, G.R. No. 199032, November 19, 2014).

Question 342

What happens to the salary received by the de facto officer during the time of wrongful tenure?

Answer 342

The rightful incumbent may recover from a de facto officer the salary received by the latter during the time of wrongful tenure even though the latter is in good faith and under color of title (Monroy v. Court of Appeals, G.R. No. L-23258, July 1, 1967).

Question 343

When may a de facto officer be entitled to salary?

Answer 343

When there is no de jure officer, the de facto officer is entitled to salaries for the period when he actually discharged functions ni good faith (Civil Liberties Union v. Exec. Sec., G.R. No. 83896, February 22, 1991).

Question 344

Who are covered by the civil service rules?

Answer 344

The civil service rules embrace the personnel of all branches, subdivisions, instrumentalities and agencies of the government, including government-owned or controlled corporations (GOCC) with original charters (CONST. Art. IX-B, Sec. 2, par. (1)).

Question 345

What is the test to determine whether a GOCC is with or without an original charter?

Answer 345

If a GOCC was created by special law, it si with original charter (e.g. DBP, Land Bank, PCSO, PAGCOR, and GSIS). If a GOCC was incorporated pursuant ot the general corporation law, ti is without original charter (Trade Unions of the Philippines v. National Housing Authority, G.R. No. L-49677, May 4, 1989).

Question 346

What governs personnel matters of government-owned and controlled corporations without original charters?

Answer 346

Personnel of government owned or controlled corporations with an original charter are subject to the Civil Service rules, while t h e personnel of those incorporated under the general corporation law are covered by the Labor Code (National Service Corporation v. NRC, G.R. No. L-69870, November 29, 1988).

Question 347

What is the reason why dismissal of an administrative case will not bar a criminal prosecution or vice versa?

Answer 347

It is hornbook doctrine in administrative law that administrative cases are independent from criminal actions for the same acts or omissions. Thus, an absolution from a criminal charge is not abar to an administrative prosecution, or vice versa. Given the differences ni the quantum of, evidence required, the procedures actually observed, the sanctions imposed, as well as the objective of the two proceedings, the findings and conclusions in one should not necessarily be binding on the other, Hence, the exoneration in the administrative case is not a bar to a criminal prosecution for the same or similar acts which were the subject of the administrative complaint or vice versa (Flores v. People, G.R. No. 222861, April 23, 2018).

Question 348

Distinguish between the provisions of the Revised Administrative Code, the Ombudsman Act, the Anti-Graft a n d Corrupt Practices Act, and the Local Government Code regarding preventive suspension.

Answer 348

p. 144

Question 349

What is the Doctrine of Condonation?

Answer 349

The rule is that a public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor (Aguinaldo v. Santos, G.R. No. 94115, August 21, 1992).

Question 350

Why did the Supreme Court abandon the Doctrine of Condonation?

Answer 350

Election is not a mode of condoning an administrative offense, and there is simply no constitutional or statutory basis in our jurisdiction to support the notion that an official elected for a different term is fuly absolved of any administrative liability arising from an offense done during a prior term.

Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline enumerated therein cannot anymore be invoked against an elective local official to hold him administratively liable once he is re-elected to office. In fact, Section 40 (b) of the LGC precludes condonation since in the first place, an elective local official who is meted with the penalty of removal could not be re-elected to an elective local position due to a direct disqualification from running for such post (Carpio-Morales v. Court of Appeals, G.R. No. 217126-27, November 10, 2015).

Question 351

Does lack of judicial conviction following a judgment of impeachment constitute involuntary retirement?

Answer 351

Yes. An impeached public afficer whose civil, criminal, of administrative liability was not judicially established may be considered involuntarily retired from service. (Re: Leter Of Mrs. Ma. Cristina Roco Corona Requesting The Grant Of Retirement And Other Benefits To The Late Former Chief Justice Renato C. Corona And Her Claim For Survivorship Pension As Hsi Wfie Under Republic Act No. 946 AM. . No. 20-07-10-SC; January 12, 2021).

Question 352

Can impeachment proceedings against an impeachable officer be lodged at any time during said officer’s tenure?

Answer 352

No. The impeachment proceedings are subject ot the one-year limit rule. Under the Constitution, no impeachment proceedings shall be initiated against the same official more than once within a period of one year (CONST. Art. XI, Sec. 3, par, (5)).

Question 353

What are the qualifications of the Ombudsman and his Deputies?

Answer 353

(N40-RBC10)
1. Natural born citizens of the Philippines;

2. At least 40 years old;
3. Of Recognized probity and independence:
4. Members of the Philippine Bar,
5. Must not have been Candidates for any elective national or local office ni the immediately preceding election whether regular or special; and
6. The Ombudsman must have, for 10 years or more, been a judge or engaged in the practice of law in the Philippines (R.A. No. 6670, Sec. 5).

Question 354

May the Supreme Court review the decisions of the impeachment court?

Answer 354

Yes. Although the Senate has the sole power to try and decide al cases of impeachment, this does not bar judicial review. Under the expanded jurisdiction of the Supreme Court, the Supreme Court may determine if there was grave abuse of discretion amounting to lack or excess of jurisdiction (Francisco Jr. va House of Representatives, GR. No. 160261, November 10, 2003);

Question 355

Can the Ombudsman prosecute cases outside of the jurisdiction of the Sandiganbayan?

Answer 355

Yes. It can prosecute cases before the regular courts. The Ombudsman is so empowered under R.A. No. 6770 and is granted an active role in the enforcement of anti- graft and corruption laws (Uy v. Sandiganbayan, G.R. Nos. 105965-70, March 20, 2001).

Question 356

How are administrative cases initiated before the Ombudsman?

Answer 356

1. On the basis of a complaint originally filed as a criminal action or a grievance complaint or request for assistance;
2. An administrative proceeding may also be ordered by the Ombudsman or the respective Deputy Ombudsman on his initiative; or
3. By a written complaint under oath accompanied by affidavits of witnesses and other evidence in support of the charge. Such complaint shall be accompanied by a Certificate of Non-Forum Shopping duly subscribed and sworn to by the complainant or his counsel (RULES OF PROCEDURE OF THE OFFICE OF THE OMBUDSMAN, Rule Il, Sec. 3).

Note: The Office of the Ombudsman can act on anonymous complaint. It shall receive complaints from any source in whatever form concerning an official act or omission (R.A. No. 6770, Sec. 26, par. (2).

Question 357

To whom must the Ombudsman refer criminal complaints charged against judges for crimes arising from their administrative duties?

Answer 357

The Ombudsman must defer action on said complaint and refer the same to the Supreme Court for determination whether said Judge or court employee had acted within the scope of their administrative duties (Maceda .v Vaquez, GR. . No. 102781, April 2, 1993).

Question 358

Why may the Ombudsman compel a public officer to produce documents necessary for an investigation over protests that the same is confidential in nature?

Answer 358

A governmental privilege against disclosures involving state secrets is outweighed by the need of the Ombudsman. The documents are necessary ni order to carry out the duty of the Ombudsman as the “protector of the people” (Almônte v. Vasquez, G.R. No. 95637, May 23, 1995).

Question 359

What is the proper mode of reviewing decisions of the Ombudsman in administrative proceedings?

Answer 359

The proper mode is to file a petition for review under Rule 43 of the Rules of Court with the Court of Appeals within 15 days from notice of judgment (Enemecio v. Office of the Ombudsman, G.R. No. 146731, January 13, 2004).

Note: Any order, directive or decision imposing the penalty of public censure, reprimand or suspension of not more than one month’s salary shall be final and unappealable (R.A. No. 6770, Sec. 27, par. (3)).

Question 360

What is the remedy of an aggrieved party when the Ombudsman has found sufficient cause to indict him in a criminal case?

Answer 360

An aggrieved party’s remedy depends on whether or not there was grave abuse of discretion amounting to lack or excess of jurisdiction.

If the Ombudsman’s determination of probable cause was tainted with grave abuse of discretion, amounting to lack or excess of jurisdiction, the party may file a petition for certiorari. However, fi there was no grave abuse of discretion, then the aggrieved party has no remedy. R.A. No. 6770 is silent as to the remedy of an aggrieved party in case the Ombudsman found sufficient cause to indict him in criminal or non-administrative cases. The Supreme Court cannot supply such deficiency fi none has been provided in the law (Tirol v. Sandiganbayan, G.R. No. 135913, November 4, 1999).

Question 361

Define administrative law.

Answer 361

Administrative law is a branch of public law under which the executive department of the government, acting in quasi-legislative or quasi-judicial capacity, interferes with the conduct of the individual for the purpose of promoting the well-being of the community (NACHURA, supra at 493).

Question 362

Define administration.

Answer 362

1. As an institution - the aggregate of individuals in whose hands the reins of government are entrusted for the time being; and
2. As a function - the actual running of the government by the executive authorities through the enforcement of laws and implementation of policies (CRUZ, Philippine Administrative Law (2016), p . 7-8 [hereinafter CRUZ, Administrative Law]). It is the execution, in non-judicial matters, of the law or the will of the State as expressed by competent authority (US v. Dorr, G.R. No. 1051, May 19, 1903).

Question 363

What is the Government of the Republic of the Philippines?

Answer 363

It refers to the corporate governmental entity through which the functions of the government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective ni the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government (REV. ADM. CODE, INTRODUCTORY PROVISIONS, Sec. 2, par. (1))

Question 364

What is an administrative agency?

Answer 364

An administrative agency is an organ of government other than a court and other than a legislature, which affects the rights of private parties through either adjudication or rule-making (The Presidential Anti-Dollar Salting Task Force v. Court of Appeals, G.R. No. 83578, March 16, 1989).

Question 365

What is a government agency?

Answer 365

A government agency refers to any of the various units of the Government, including departments, bureaus, offices, instrumentalities, government-owned or controlled corporations, and local government units or a distinct unit therein (REV. ADM. CODE, INTRODUCTORY PROVISIONS, Sec, 2, par. (4).

Question 366

Enumerate the different national agencies and subdivisions of the National Government.

Answer 366

1. Departments: A department refers to an executive department created by law. This shall include any instrumentality having or assigned the rank of a department, regardless of its name or designation (REV. ADM. CODE, INTRODUCTORY PROVISIONS, Sec. 2, par. (7)).
2. Bureaus: A bureau is a principal subdivision or unit of any department. This shall also include any principal subdivision or unit of any instrumentality given or assigned the rank of a bureau, regardless of actual name or designation, as in the case of department-wide regional offices (REV. ADM. CODE, INTRODUCTORY PROVISIONS, Sec. 2, par. (8)).
3. Offices: An office refers, within the framework of government organization, to any major functional unit of a department or bureau, including regional offices. tI may also refer to any position held or occupied by individual persons, whose functions are defined by law or regulation (REV. ADM. CODE, INTRODUCTORY PROVISIONS, Sec. 2, par. 9)).
4. Instrumentalities: Instrumentalities are national agencies not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some fi not all corporate powers, administering special funds, and enjoying operational autonomy usually through a charter. The term includes regulatory agencies, chartered institutions, and government-owned or controlled corporations (REV. ADM. CODE, INTRODUCTORY PROVISIONS, Sec. 2, par. (10)).
   a. Regulatory agencies: A regulatory agency is an instrumentality expressly vested with jurisdiction to regulate, administer or adjudicate matters affecting substantial rights and interest of private persons, the principal powers of which are exercised by a collective body, such as a commission, board, or council (REV. ADM. CODE, INTRODUCTORY PROVISIONS, Sec. 2, par. (11)).
   b. Chartered institutions: A chartered institution is any agency organized or operating under a special charter, and vested by law with functions relating to specific constitutional policies or objectives. This term includes state universities and colleges and the monetary authority of the State (REV. ADM. CODE, INTRODUCTORY PROVISIONS, Sec. 2, par. (12)).
   C. Government owned and controlled corporations: A government-owned or controlled corporation is any agency organized as a stock or non-stock corporation vested with functions related t o public needs, whether governmental or proprietary in nature, and owned by the government directly or through its instrumentalities, either wholly or, where applicable as in the case of stock corporations, to the extent of at least 51% of its capital stock (REV. ADM. CODE, INTRODUCTORY PROVISIONS, Sec. 2, par. (13)).

Question 367

Why is the distinction between quasi-legislative and quasi-judicial powers important?

Answer 367

The distinction is important because the remedy that may be availed of by an aggrieved party is different ni each case. Acts of administrative agencies in the exercise of quasi judicial powers can be assailed by a petition for certiorari under Sec. 1, Rule 65 of the Rules of Court, or a petition for prohibition under Sec. 2, Rule 65 of the Rules of Court by a higher court. In such cases, the aggrieved party is expected to exhaust available administrative remedies as a general rule.

On the other hand, a petition for prohibition is not the proper remedy to assail an IRR issued in the exercise of a quasi-legislative function. The remedy is an ordinary action for nullification with the RTC. Also, in questioning the validity or constitutionality of a rule or regulation issued by an administrative agency, a party need not exhaust administrative remedies before going to court (Holy Spirit Home Owners Association v. Defensor, G.R. No. 163980, August 3, 2006).

Question 368

What is the Doctrine of Necessary Implication?

Answer 368

All powers necessary for the effective exercise of the express powers are deemed impliedly granted. A grant of express power to formulate implementing rules and regulations must necessarily include the power to amend, revise, alter, or repeal the same (Vazaki Torres Manufacturing v. CA, G.R. No. 130584, June 27, 2006).

Question 369

What are the exceptions to non-delegability?

Answer 369

1. Delegation to Local Governments- Local legislative power shall be exercised by the sangguniang panlalawigan for the province; the sangguniang panlungsod for the city; the sangguniang bayan for the municipality; and the sangguniang barangay for the barangay. (Sec. 48, RA. 7160).
2. Delegation of Emergency Powers to the President in Times of War and National Emergency - In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as ti may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof (CONST. Sec. 23(2), Art. VI).
3. Delegation of Tariff Powers to the President - The Congress may, by law, authorize t h e President to fix within specified limits, and subject ot such limitations and restrictions as ti may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. (CONST. Sec. 28(2), Art. VI).

Question 370

What are the exceptions to the application of res judicata in administrative proceedings?

Answer 370

1. The principle of res judicata may not be invoked in labor relations proceedings considering that Section 5, Rule XIII, Book V of the Rules and Regulations Implementing the Labor Code provides that such proceedings are “non- litigious and summary in nature without regard to legal technicalities obtaining in the courts of law” (Nasipit Lumber Company v. NLRC, G.R. No. 54424, August 31, 1989).
2. Another exception to this rule is in case of judgment rendered on a null contract. This is because there is no valid judgment which can be predicated on res judicata (B.F. Goodrich Philippines Inc., v. Workmen’s Compensation Commission, G.R. No. L-38569, March 28, 1988).

Question 371

What are the fact-finding and investigative powers of administrative agencies?

Answer 371

An administrative agency may be authorized to make investigations, not only in proceedings of a legislative or judicial nature, but also ni proceedings whose sole purpose is to obtain information upon which future action of a legislative or judicial nature may be taken and may require the attendance o f witnesses i n proceedings of a purely investigatory nature. It may conduct general inquiries into evils calling for correction, to report findings to appropriate bodies, and make recommendations for actions (Evangelista v. Jarencio, G.R. No. L-29274, November 27, 1975).

Question 372

When may an administrative body exercise the power of contempt?

Answer 372

The power ot punish contempt must be expressly granted to the administrative body. When it is so granted, it may be exercised only when the administrative body is actually performing quasi-judicial functions (Guevarra v. COMELEC, G.R. No. L-12596, July 31, 1958).

Question 373

Why are administrative agencies generally not allowed to issue warrants of arrest?

Answer 373

As a rule, administrative agencies may not issue warrants of arrest because under Article IlI, Section 2, of the 1987 Constitution, only judges may issue warrants of arrest and search (Salazar v. Achacoso, G.R. No. 81510, March 14, 1990).

Question 374

What is the exception to the rule that administrative agencies cannot issue warrants of arrest?

Answer 374

The exception is in cases of deportation of illegal and undesirable aliens, whom the President or the Commissioner of Immigration may order arrested, following a final order of deportation, for the purpose of deportation (Salazar v. Achacoso, G.R. No. 81510, March 14, 1990).

Question 375

What is the doctrine of primary administrative jurisdiction?

Answer 375

The doctrine of primary administrative jurisdiction refers ot the competence of a court to take cognizance of a case at first instance. Under this doctrine, fi an administrative tribunal has jurisdiction over a controversy, courts should not resolve the issue even if it may be within its proper jurisdiction. This is especially true when the question involves its sound discretion requiring special knowledge, experience, and services to determine technical and intricate matters of fact (Republic .v Galo, G.R. No. 207074, January 17, 2018)

Question 376

What is the effect of failure to exhaust administrative remedies on the jurisdiction of the court over the case?

Answer 376

Failure to observe the doctrine of exhaustion of administrative remedies does not affect the jurisdiction of the court. The only effect of non-compliance with the rule is that it will deprive the complainant of a cause of action, which is a ground for a motion to dismiss. If not invoked at the proper time, this ground is deemed waived and the court can take cognizance of the case and try it (Soto v. Jareno, G.R. No. L-38962, September 15, 1986).

Question 377

What are the qualifications of voters?

Answer 377

(CARD)
1. Citizenship - a Filipino citizen:
2. Age - at least 18 years of age;
3. Residence:
a. A resident of the Philippines for at least 1 year;
b. A resident of the place where he proposes to vote for at least 6 months; and
4. Not otherwise Disqualified by law (CONST. Art V, Sec. 1).

Question 378

When should a voter possess the age and residency requirements?

Answer 378

The age and residency requirements must be complied with on the day of election. Any person, who, on the day of registration may not have reached the required age or period of residence but, who, on the day of the election shall possess such qualifications, may register as a voter (R.A. No. 8189, otherwise known as the Voter’s Registration Act of 1996, Sec. 9).

Question 379

Who are those persons disqualified from registering as voters?

Answer 379

(IDNI)
1. Those convicted by final judgment to suffer Imprisonment for not less than 1 year, unless removed by plenary pardon or granted amnesty, but their rights are automatically reacquired upon expiration of 5 years after service of sentence;

2. Those adjudged by final judgment as having committed any crime involving Disloyalty to government or any crime against National security, but their rights are reacquired upon expiration of 5 years after service of sentence; and
3. Insane or incompetent persons as declared by competent authority (B.P. 881, otherwise known as the Omnibus Election Code of the Philippines, Sec. 118; RA. . No. 8189, Sec. 11).

Question 380

Whose registration may be deactivated?

Answer 380

(1-DIVE-CV)
1. Any person who has been sentenced by final judgment to suffer imprisonment for not less than 1 year, such disability not having been removed by plenary pardon or amnesty (R.A. No. 8189, Sec. 27, par. (a));

Note: The right to vote may be automatically reacquired upon expiration of 5 years after service of sentence as certified by the clerk of courts of the MTC / MCTC / MeTC, RTC and the Sandiganbayan.

2. Any person who has been adjudged by final judgment by a competent court or tribunal of having caused/committed any crime involving Disloyalty to the duly constituted government such as rebellion, sedition, violation of the anti-subversion and firearms laws, or any crime against national security, unless restored ot his ful civil and political rights ni accordance with law (RA. . No. 8189, Sec. 27, par. (b));

Note: The right to vote may be regained automatically upon expiration of 5 years after service of sentence.

3. Any person declared by competent authority to be Insane or incompetent unless such disqualification has been subsequently removed by a declaration of a proper authority that such person is no longer insane or incompetent (R.A. No. 8189, Sec. 27, par. (c));
4. Any person who did not Vote in the two successive preceding regular elections as shown by their voting records. For this purpose, regular elections do not include the Sangguniang Kabataan (SK) elections (R.A. No. 8189, Sec. 27, par. (d));
5. Any person whose registration has been ordered Excluded by the Court (R.A. No. 8189, Sec. 27, par. (e));
6. Any person who has lost his Filipino Citizenship (R.A. No. 8189, Sec. 27, par. f)); and
7. Voters who fail to submit for Validation on or before the last day of filing of application for registration for purposes of the May 2016 elections (R.A. No. 10367, Sec. 7).

Question 381

What is the Party-List System?

Answer 381

The party-list system is a mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions thereof registered with the Commission on Elections (R.A. No. 7941, Sec. 3(a)).

Question 382

What is the composition of party-list representatives in the House of Representatives?

Answer 382

Party-list representatives shall constitute 20% of the total number of representatives ni the House of Representatives (CONST. Art. VI, Sec. 5(2)).

Question 383

What is a political party?

Answer 383

A political party refers to an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates certain of its leaders and members as candidates for public office (R.A. No. 7941, Sec. 3(c).

Question 384

Does a political party automatically have juridical personality?

Answer 384

No. In order to acquire juridical personality as a political party, ot entitle ti ot the benefits and privileges granted under the Constitution and the laws, and in order to participate inthe party-lists system, the group must register with the Commission on Elections by filing with the Comelec not later than 90 days before the election a verified petition stating its desire to participate in the party list system as a national, regional, sectoral party or organization or a coalition of such parties or organizations (R.A. No. 7941, Sec. 5).

Question 385

Can any group register as a political party?

Answer 385

No. The folowing groups cannot be registered as political parties:
1. Religious denominations or sects:
2. Those who seek to achieve their goals through violence or unlawful means;
3. Those who refuse to uphold and adhere to the Constitution; and
4. Those supported by foreign governments. (CONST. Art. IX-C, Sec. 2(5)).

Question 386

What are the qualifications of a party-list nominee?

Answer 386

1. A natural-born citizen of the Philippines;
2. A registered voter;
3. A resident of the Philippines for a period of not less than 1 year immediately preceding the election day;
4. Able to read and write;
5. A bona fide member of the party he seeks to represent for at least 90 days preceding election day; and
6. At least 25 years of age on election day. (R.A. 7941, Sec. 9).
   Note: In case of the youth sector, he must be at least 25 but not more than 03 years of age on the day of the election. Any youth sectoral representative who reaches the age of 30 during his term shall be allowed to continue in office until the expiration of his term (ld).

Question 387

How does the party-list system enhance the chances of marginalized or underrepresented parties of winning seats in the House of Representatives?

Answer 387

In the party-list system, no single party may hold more than 3party-list seats. Bigger parties which traditionally will dominate elections cannot corner all the seats and crowd out the smaller parties because of this maximum ceiling. Thissystem shall pave the way for smaller parties to also win seats ni the House of Representatives (R.A. 7941, Sec. 11(b)).

Question 388

When should the citizenship qualification be possessed?

Answer 388

The citizenship qualification should be possessed when “the elective (or elected) official” begins to govern, le,, at the time he is proclaimed and at the start of his term (Frivaldo .v COMELEC, G,R. No. 120295, June 28, 1996).

Note: In the case of Maquiling v. COMELEC, then-Commissioner Rene Sarmiento opined in the subject COMELEC En Banc ruling thati fa candidate is not a citizen at the time he ran for office or if he lost his citizenship after his election ot office, he i s disqualified to serve as such” (Maquiling v. COMELEC, G.R. No. 195649, April 16, 2013).

Question 389

What are the disqualifications to be a candidate and to hold any office under Section 12 of the Omnibus Election Code?

Answer 389

(I-SIRO18-MT)
1. Those who are declared as Insane or incompetent by competent authority;

2. Those who are convicted by final judgment for Subversion, Insurrection, Rebellion, or any Offense for which he has been sentenced to a penalty of more than eighteen 18 months imprisonment; or
3. Those who are convicted by final judgment for a crime involving Moral Turpitude (B.P. 881, Sec. 12).

Note: These disqualifications shall be deemed removed: (1) upon the declaration by competent authority that said insanity or incompetence had been removed or (2) after the expiration of a period of 5 years from his service of sentence (B.P. 881, Sec. 12).

Note: The disqualifications under Sec. 12 are applicable to all candidates.

Question 390

Enumerate the additional disqualifications for local elective positions under the LGC.

Answer 390

(M-ROD-FPI)
1. Those sentenced by final judgment for an offense involving Moral turpitude or for an offense punishable by 1 year or more of imprisonment, within 2 years after serving sentence;

Note: The Omnibus Election Code prescribes a period of 5 years from service of sentence for the removal of such disqualification (B.P. 881, Sec. 12), while the LGC prescribes a period of only 2 years. This incompatibility was resolved by the SC in Magno v. COMELEC (G.R. No. 147904. October 4, 2002), where it ruled that the 2-year period applies to local positions, while the 5-year period applies to national positions.

2. Those Removed from office a s a result of an administrative case;
3. Those convicted by final judgment for violating the Oath of allegiance to the Republic;
4. Those with Dual citizenship;
5. Fugitives from justice in criminalor non-political cases here or abroad;
6. Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and
7. The Insane or feeble-minded (R.A. No. 7160, Sec. 40).

Question 391

Who shall be disqualified from continuing as candidate, or if eh has ben elected, from holding the office under the Omnibus Election Code?

Answer 391

(MTAC-VF)
1. One who has given Money or other material consideration ot influence, induce or corrupt the voters or public officials performing electoral functions;

2. One who committed acts of Terrorism to enhance his candidacy;
3. One who spent ni his election campaign an Amount in excess of that allowed by the Code;
4. One who has solicited, received or made Contributions prohibited under Sec. 89 (transportation, food and drinks), Section 95 (public or private financial institutions, public utilities or exploitation of natural resources, contractors of public works or other government contracts; franchise holders or concessionaires; educational institutions receiving grants from the government, officials of the Civil Service or the AFP, foreigners or foreign corporations), Section 96 (foreign-sourced contributions), Section 97 (raising of funds through lotteries, cockfights, boxing bouts, bingo, beauty contests, etc.), and Section 104 (prohibited contributions to churches, school buildings, roads, bridges, medical clinics, etc.);
5. One who has Violated the provisions of Section 80 (campaign period), Section 83 (removal, destruction of lawful election propaganda), Sec. 85 (prohibited forms of propaganda), Section 86 (regulation of propaganda through mass media) and Section 261 (election offenses); or
6. One who is a permanent resident of or Immigrant to a Foreign country, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws (B.P. 881, Sec. 68).

Question 392

When may a candidate be substituted?

Answer 392

(DWD)
If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party Dies, Withdraws or si Disqualified for any cause (B.P. 881, Sec. 77).

Question 393

Who may substitute a candidate?

Answer 393

Only a person belonging to, and certified by, the same political party may file a certificate of candidacy ot replace the candidate who died, withdrew or was disqualified (B.P. 881, Sec. 77).

Question 394

What are the requisites for a valid substitution?

Answer 394

(VOW-SMQ)
1. There is a Valid certificate of candidacy (Talaga v. COMELEC, G.R. No. 196804, October 9, 2012);

2. The Original candidate has died, withdrawn, or has been disqualified for any cause (B.P. 881, Sec. 77);
3. There is a valid Withdrawal of the COC after the last day for the filing of COCs;
4. The substitute belongs to and is certified by the Same political party;
5. The substitute filed his COC not later than Mid-day of election day (Cerafica v. COMELEC, G.R. No. 205136, December 2, 2014); and
6. The substitute himself Qualifies for the position.

Question 395

When is substitution not allowed?

Answer 395

Substitution is not allowed:
For independent candidates (Comelec Resolution No. 2977, Sec. 1 and Comelec Resolution No. 10430, Sec. 33); and

If the certificate of candidacy of the candidate to be replaced had been denied due course to and/or cancelled prior to the attempted substitution, substitution is not allowed because considering that Section 7 of OEC requires that there be a candidate in order for substitution to take place, as well as the precept that a person without a valid certificate of candidacy is not considered as a candidate at all, ti necessarily follows that if a person’s certificate of candidacy had been denied due course to and/or cancelled, he or she cannot be validly substituted in the electoral process. The existence of a valid certificate of candidacy is therefore a condition sine qua non for a disqualified candidate to be validly substituted (Tagolino v. HRET, G.R: No. 202202, March 19, 2013).

Note: A person who is disqualified under Section 68 is prohibited to continue as a candidate, but a person whose certificate of candidacy is cancelled or denied due course under Section 78 is not considered as a candidate at all because his status is that of a person who has not filed a certificate of candidacy (Talaga v. COMELEC, GR.. No. 196804, October 9, 2012).

Question 396

Until when can the substitute of a candidate who has withdrawn file his certificate of candidacy?

Answer 396

The substitute of a candidate who has withdrawn his certificate of candidacy can still file based on the following:

1. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected not later than mid-day of the day of the election; and
2. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he si a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission (OEC, Sec. 77).

Question 397

What is the same surname policy?

Answer 397

The substitute for a candidate who died or was disqualified by final judgment, may file a COC up to mid-day of Election Day; provided that, the substitute and the substituted have the same surnames.

If the death or disqualification should occur between the day before the election and mid- day of Election Day, the substitute candidate may file a COC with any Board of Election Inspectors, Election Officers, Provincial Election Supervisor or Regional Election Director, as the case may be, in the political subdivision where such person is a candidate, or in the case of a candidate for Senator, with the Law Department; Provided that, the substitute and the substituted candidate have the same surnames (COMELEC Resolution 10430, Sec. 33).

Question 398

Can the COMELEC deny or cancel a certificate of candidacy filed ni due form?

Answer 398

No. The COMELEC may not, by itself, without proper proceedings, deny due course ot or cancel a certificate of candidacy filed in due form. Sec. 78 of OEC, which treats of a petition to deny due course to or cancel a certificate of candidacy on the ground that any material representation therein is false, requires that the candidate must be notified of the petition against him and he should be given the opportunity to present evidence in his behalf (Cipriano v. COMELEC, G.R. No. 158830, August 10, 2004). Absent any due proceedings under Section 68, 69, or 78 of the Omnibus Election Code, the COMELEC must rely on the truth as declared “on the face” of the certificates of candidacy thus submitted to them.

Question 399

When can the COMELEC go beyond the face of the certificate of candidacy?

Answer 399

The instances where the COMELEC can go beyond the face of the certificate of candidacy are (NDDA):

1. In a proceeding to deny due course to or cancel the certificate of candidacy of a Nuisance candidate under Sec. 69 of OEC;
2. Power to Deny due course to or cancel a certificate of candidacy under Sec. 78 of OEC;
3. Filing of a Disqualification case on any of the grounds enumerated in Sec. 68 of OEC; or
4. In cases where the candidate is suffering from the Accessory penalty of disqualification to run for public office resulting from conviction for a crime (Jalosjos v. COMELEC, G.R. No. 191970, 24 April 2012).

Note: Even without a petition under either Section 78 of the OEC, or under Sec. 40 of the LGC, the COMELEC is under a legal duty to cancel the certificate of candidacy of anyone suffering from the accessory penalty of perpetual special disqualification to run for public office by virtue of a final judgment of conviction. The final judgment of conviction is notice to the COMELEC of the disqualification of the convict from running for public office and the COMELEC is duty bound to enforce al laws relative to the conduct of an election (Dimapilis v. COMELEC, G.R. No. 227158, April 18, 2017).

Question 400

Who are nuisance candidates?

Answer 400

(MCI) Nuisance candidates are those whose certificates of candidacy are filed to put the election process in Mockery or disrepute, or to cause Confusion among the voters by the similarity of the names of the registered candidates, or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide Intention to run for the office for which the COC has been filed and thus prevent a faithful determination of the true wil of the electorate (B.P. 881, Sec. 69).

Question 401

What is the period for filing a petition against a nuisance candidate?

Answer 401

A verified petition to declare a duly registered candidate as a nuisance candidate under Section 69 of B.P. 881 shall be filed personally or through duly authorized representative with the COMELEC by any registered candidate for the same office within 5 days from the last day for the filing of certificates of candidacy (R.A. No. 6646, Sec. 5 (a).

Question 402

What are the allowed modes for filing a verified petition to declare a candidate as a nuisance candidate?

Answer 402

(PR)
1.Personal filing; or
2.Through duly authorized Representative with the COMELEC.
Note: Filing by mail is NOT alowed (RA. No. 6646, Sec, 5(a)):

Question 403

Is a nuisance candidate declared as such considered “disqualified”?

Answer 403

No. A petition to cancel or deny due course to a COC on the ground that he is a nuisance candidate under Section 69 as i n Section 7 8 cannot be treated in the same manner as a petition to disqualify under Sec. 68. Hence, the legal effect of such cancellation on grounds provided in the Omnibus Election Code and LGC (Dela Cruz v. COMELEC, G.R. No. 192221, November 13, 2012).

Question 404

What is the effect of cancellation or denial of the COC on the ground that the candidate is a nuisance candidate?

Answer 404

The votes cast for a nuisance candidate declared as such ni afinal judgment, shall be considered stray votes (Dela Cruz v. COMELEC, G.R. No. 192221, November 13, 2012).
Note: However, where such nuisance candidate, so declared by final judgement as such, has the same surname as that of a legitimate candidate, votes cast for the nuisance candidate are not stray but must be counted ni favor of the latter (Dela Cruz v. COMELEC, G.R. No. 192221, November 13, 2012).

Question 405

When is the above exception not applicable?

Answer 405

The exception does not apply fi there are two or more bona fide candidates with the same name and/or surname as the nuisance candidate. Thus, the votes cast for the nuisance candidate shall also be considered as stray votes (COMELEC Resolution No. 9599).

Question 406

When does the campaign period start?

Answer 406

a. Presidential and Vice-Presidential Election: 90 days before election
b. Members of the Congress election: 45 days before election
c. Local election: 45 days before election
d. Barangay election: 15 days before election
e. Special election: 45 days before election

Question 407

What is the Penera Doctrine?

Answer 407

The law does not say that a candidate who commits premature campaigning can be disqualified or prosecuted only after the start of the campaign period. What the law says is “any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period.” The plain meaning of this provision is that the effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the start of the campaign period, the same partisan political acts are lawful (Penera v. Commission on Elections, G.R. No. 181613 (Resolution), November 25, 2009).

Question 408

Under what instances may the COMELEC deny due course or cancel a certificate of candidacy?

Answer 408

1. Where the candidate is a nuisance candidate (B.P. 881, Sec. 69); and
2. Where the certificate of candidacy contains false material representations (B.P. 881, Sec. 78).

Question 409

Who has jurisdiction over a petition to cancel a certificate of candidacy?

Answer 409

Jurisdiction over a petition to cancel a certificate of candidacy lies with the COMELEC sitting ni division, not with the COMELEC en banc (Garvida v. Sales, G.R. No. 124893, April 18, 1997).

Question 410

What is the “second placer” rule?

Answer 410

The wreath of victory cannot be transferred from na ineligible candidate to any other candidate when the sole question is, the eligibility of the one receiving a plurality of the legaly cast balots (Topacio v. Raredes, GR. . No, 8069, October 7, 1912).

Question 411

How is the “second placer” rule applied?

Answer 411

1. It does not apply when the effect of a decision is: that a candidate is not entitled to the office because of fraud or irregularities in the elections. We have a contest in the strict sense of the word, because of the opposing parties are striving for supremacy. If it be found that the successful candidate (according to the board of canvassers) obtained a plurality in an illegal manner, and that another candidate was the real victor, the former must retire in favor of the latter.
2. The rule applies in declaring a person ineligible to hold such an office. No question as to the correctness of the returns or the manner of casting and counting the ballots is before the deciding power, and generally the only result can be that the election fails entirely. There is not, strictly speaking, a contest, as the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots (Maquiling v. COMELEC, G.R. No. 195649, April 16, 2013).

Question 412

Does the second placer rule apply today?

Answer 412

In Maquiling v. Comelec, G.R. No 195649, April 16, 2013, the Supreme Court held that it does not even have a legal basis to stand on. It was a mere pronouncement of the Court comparing one process with another and explaining the effects thereof. As an independent statement, ti si even illogical. nI the same case, the Court ruled that the votes cast in favor of the ineligible candidate are not considered at all in determining the winner of an election. When there are participants who turn out ot be ineligible, their victory is voided and the laurel is awarded ot the next ni rank who does not possess any of the disqualifications nor lacks any of the qualifications set ni the rules ot be eligible as a candidate.

Question 413

In what instances may a postponement of election be declared?

Answer 413

Postponement of elections may be declared for any serious cause such as:

1. Violence;
2. Terrorism;
3. Loss or destruction of election paraphernalia or records;
4. Force majeure; or
5. Other analogous causes of such a nature that the holding of a free, orderly and honest election should become impossible in any political subdivision. (B.P. 881, Sec. 5).

Question 414

Who has the power to postpone elections?

Answer 414

The Commission, motu proprio or upon a verified petition by any interested party, and after due notice and hearing, whereby al interested parties are afforded equal opportunity to be heard, shall postpone the election (id)

Question 415

How long should the election be postponed?

Answer 415

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

Question 416

In what instances may a failure of election be declared?

Answer 416

(FAS)
1. The election in any polling place has not been held on the date fixed on account of Force majeure, violence, terrorism, fraud, or other analogous causes;

2. After the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof such election results in a failure to elect on account of force majeure, violence, terrorism, fraud, or other analogous causes; and
3. The election in any polling place had been Suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes (Mutilan v. COMELEC, G.R. No. 171248, April 2, 2007).

Question 417

Who has the power to declare a failure of election?

Answer 417

The COMELEC en banc has the original and exclusive jurisdiction to hear and decide petitions for declaration of failure of election or for annulment of election results (R.A. No. 7166, Sec. 4).

Question 418

When may the HRET annul elections results?

Answer 418

The HRET, as the sole judge of al contests relating to the election, returns, and qualifications of members of the House of Representatives, may annul election results if in its determination, fraud, terrorism, or other electoral irregularities existed to warrant the annulment. Because in doing so, it is merely exercising its constitutional duty to ascertain who among the candidates received the majority of the valid votes cast (Abayon v. HRET, G.R. No. 222236, May 3, 2016).

Question 419

Who shall decide on a petition to declare failure of elections?

Answer 419

The postponement, declaration of faiture of election and the calling of special elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the COMELEC sitting en banc by a majority vöte of its members. The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election (R,A/ 7166, Sec. 4).

Question 420

When is a Special Election called?

Answer 420

(1) In case a vacancy arises in the Batasang Pambansaeighteen months or more before a regular election, the Commission shall call a special election, to be held within sixty days after the vacancy occurs to elect the member to serve the unexpired term.

(2) In case of dissolution of the Batasang Pambansa, the President shall call an election which shall not be held earlier than forty-five (45) nor later than sixty (60) days from the date of such dissolution. The Commission shall send sufficient copies of its resolution for the holding of the election to its provincial election supervisors and election registrars for dissemination, who shall post copies thereof in atleast three conspicuous places preferably where public meetings are held in each city or municipality affected (B.P. 881, Section 7).

Question 421

In case of vacancy, when is a Special Election for President and Vice-President called?

Answer 421

In case a vacancy occurs for the Office of the President and Vice-President, the Batasang Pambansa shall, at ten o’clock in the morning of the third day after the vacancy occurs, convene in accordance with its rules without need of a call and within seven days enact a law calling for a special election to elect a President and a Vice-President to be held not earlier than forty-five (45) days nor later than sixty (60) days from the time of such call (B.P. 881, Sec. 14).

Question 422

When does the jurisdiction of Electoral Tribunals begin?

Answer 422

In the case of House of Representative Electoral Tribunal, once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the COMELEC’s jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET’s own jurisdiction begins. Stated in another manner, where the candidate has already been proclaimed winner in the congressional elections, the remedy of the petitioner is to file an electoral protest with the HRET (Vinzons-Chato v. COMELEC, G.R. No. 172131, April 2, 2007).

Question 423

What are election offenses?

Answer 423

Prohibited acts under Sec. 261, B.P. 881:

1. Vote buying and vote selling (People v. Ferrer, 54 O.G. 1348);
2. Wagering upon the result of the election;
3. Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion;
4. Appointment of new employee;
5. Carrying of deadly weapon within a radius of 100 meters from the precinct (Orceo v. COMELEC, G.R. No. 190779, March 26, 2010);
6. Transfer or detail of government official or employee with COMELEC approval (People v. Reyes, G.R. No. 115022 August 14, 1995).

Question 424

Who has jurisdiction over election offenses?

Answer 424

The COMELEC has exclusive jurisdiction to “investigateand where appropriate, prosecute violations of election laws and acts which constitute election fraud, offenses and malpractices. It may, however, validly delegate the power to the Provincial Prosecutor (Section 2(6), Art. IX-C, 1987 Constitution)

Question 425

Is there a prescriptive period for election offenses?

Answer 425

Yes. Cases must be filed five years from date of commission for the offenses enumerated in Sec. 261, B.P. 881.

Question 426

What is local autonomy?

Answer 426

The principle of local autonomy under the 1987 Constitution simply means “decentralization.” It does not make local governments sovereign within the state or an “imperium in imperio.”

Local Government has been described as a political subdivision of a nation or state which is constituted by law and has substantial control of local affairs. In a unitary system of government, such as the government under the Philippine Constitution, local governments can only be an intra sovereign subdivision of one sovereign nation, it cannot be an imperium in imperio. Local government in such a system can only mean a measure of decentralization of the function of government (Basco v. PAGCOR, G.R. No. 91649, May 14, 1991).

Question 427

What is an autonomous region?

Answer 427

The autonomous region is a corporate entity with jurisdiction over all matters devolved to it by the Constitution and the Organic Act (R.A. No. 9054, Sec. 2, Article IV). From the perspective of the Constitution, autonomous regions are considered one of the forms of local governments, as evident from Article X of the Constitution. Autonomous
regions are established and discussed under Sections 15 to 21 of the said Article—the article wholly devoted to Local Government (Datu Michael Abas Kida .v Senate of the Philippines, G.R. No. 196271, October 18, 2011).

Question 428

Can Sec. 40 of the Local Government Code apply retroactively?

Answer 428

No. An elective local official who was removed from office as a result of an administrative case prior to January 1, 192 (the date of effectivity of the Local Government Code) is not disqualified from running for elective local office (Grego v. COMELEC, G.R. No. 125955, June 19, 1997).

Question 429

Can a dual citizen hold office in the local government?

Answer 429

Yes. In recognizing situations in which a Filipino citizen may, without performing any act and as an involuntary consequence of the conflicting laws of different countries, be also a citizen of another State, the Court explained that “dual citizenship”, as a disqualification, must refer to citizens with “dual allegiance”. Consequently, persons with mere dual citizenship do not fall under the disqualification Mercado v. Manzano, G.R. No. 135083, May 26, 1999).

Question 430

Is the constitutional prohibition against midnight appointments applicable to the appointment of local appointive officials?

Answer 430

No. The constitutional prohibition on “midnight appointments”, specifically those made 2 months immediately prior to the next presidential elections, applies only to the President or to the Acting President. There is no law that prohibits local elective officials from making appointments during the last days of their tenure absent fraud on their part, when such appointments are not tainted by irregularities or anomalies which breach laws and regulations governing appointments (De Rama v. CA, G.R. No. 131136, February 28, 2001).

Question 431

Can the Provincial Governor appoint an Assistant Provincial Treasurer?

Answer 431

No. The Provincial Governor is without authority to designate the Assistant Provincial Treasurer for Administration, because under Sec. 471 of the Local Government Code, ti is the Secretary of Finance who has the power to appoint Assistant Provincial Treasurers from a list of recommendees of the Provincial Governor (Dimaandal v. COA, G.R. No. 122197, June 26, 1998).

Question 432

What are the rules of succession of local elective officials in case of permanent vacancy?

Answer 432

In case of permanent vacancy in the positions given below, the following shall succeed: (Vacancy: Successor)

1. Office of the Governor: Vice-governor;
2. Office of the Mayor: Vice-mayor;
3. Office of the Vice-governor or Vice-mayor: Highest ranking Sanggunian member or, in case of his permanent inability, the second highest ranking Sanggunian member;
4. Member or, in case of his permanent inability, the second highest ranking Sanggunian member;
5. Office of the Punong Barangay: Highest ranking Sangguniang Barangay member, member or, in case of his permanent inability, the second highest ranking Sanggunian member (LGC, Sec. 4).

Question 433

How is the ranking in the sanggunian determined?

Answer 433

A tie between and among the highest ranking Sanggunian members shall be resolved by the drawing of lots. For purposes of succession, ranking ni the Sanggunian shall be determined on the basis of the proportion of the votes obtained by each winning candidate to the total number of registered voters in each district ni the immediately preceding election (LGO, Sec, 44).

Question 434

What are the rules in case of permanent vacancies in the Sanggunian where automatic succession doesnotapply?

Answer 434

Permanent vacancies in the Sanggunian where automatic succession does not apply shall be filled by appointment by the following chief executives:

1. President, through the Executive Secretary, for vacancies ni the:
   a. Sangguniang Panlalawigan VIl
   b. Sangguniang Panlungsod of Highly Urbanized City (HUC) and Independent Component City (ICC)
2. Governor, for vacancies in the:
   a. Sangguniang Panlungsod of component cities
   b. Sangguniang Bayan
3. Municipal or City Mayor, upon recommendation of the Sangguniang Barangay concerned, for vacancies in the:
   a. Sangguniang Barangay (LGC, Sec. 45)

Question 435

To which party should the nominated appointee come from?

Answer 435

Except for the Sangguniang Barangay, the appointee must be nominated by the same political party as that of the Sanggunian member who caused the vacancy and shall serve the unexpired term of the vacant office. If the Sanggunian member does not belong to any political party, the local chief executive shall appoint a qualified person, upon recommendation of the Sanggunian concerned. In case of vacancy in the representation of the youth and the barangay in the Sanggunian, it shall be filled automatically by the official next ni rank of the organization concerned (LGC, Sec. 45).

Question 436

Who has jurisdiction to hear administrative complaints against an elective official?

Answer 436

1. A complaint against any elective official of a province, a highly urbanized city, an independent component city or component city shall be filed before the Office of the President;
2. A complaint against any elective official of a municipality shall be filed before the sangguniang panlalawigan whose decision may be appealed to the Office of the President; and
3. A complaint against any elective barangay official shall be filed before the sangguniang panlungsod or sangguniang bayan concerned whose decision shall be final and executory (LGC, Sec. 61)

Question 437

What is the term of office of local elective officials?

Answer 437

The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be 3 years and no such official shall serve for more than 3 consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered a s an interruption in the continuity of his service for the ful term for which he was elected (CONST. Art. X, Sec. 8). The term of office of Barangay and Sanggunian Kabataan elective officials shall be 3 years (R.A. No. 9164, Sec. 2, R.A. No. 10742, Sec. 11).

Question 438

What is the three-term limit rule?

Answer 438

After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers ot the next regular election for the same office folowing the end of the third consecutive term (Abundo, Sr. v. COMELEC, G.R. No. 201716, January 8, 2013).

Question 439

What is recall?

Answer 439

Recall is the termination of official relationship for loss of confidence prior to the expiration of his term through the wil of the people (NACHURA, supra at 626).

Question 440

What is the effect on officials sought to be recalled?

Answer 440

The officials sought to be recalled shall automatically be considered as duly registered candidate or candidates to the pertinent positions and, like other candidates, shall be entitled to be voted upon (LGC, Sec. 71).

Question 441

When shall a recall take effect?

Answer 441

Recall shall be effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall. Should the official sought to be recalled receive the highest number of votes, confidence in him is thereby affirmed and he shall continue ni office (LGC, Sec. 72).

Question 442

May a local elective official resign during the recall process?

Answer 442

No. An elective local official sought to be recalled shall not be allowed to resign while the recall process is in progress (LGC, Sec. 73).

Question 443

What is the Doctrine of Transformation?

Answer 443

The Doctrine of Transformation is a method which requires that an international law principle be transformed into domestic law through a constitutional mechanism, such as local legislation (Pharmaceutical and Health Care Association of the Philippines v. Duque, G.R. No. 173034, October 9, 2007).

Note: In this jurisdiction, the Doctrine of Transformation is embodied in Art. Vil, Sec. 21 of the 1987 Constitution, which provides that “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of al the Members of the Senate.”

Question 444

What is the Doctrine of Incorporation?

Answer 444

The Doctrine of Incorporation is a method which applies, by mere constitutional declaration, international law is deemed to have the force of domestic law (Id).

Note: In this jurisdiction, the Doctrine of Incorporation is embodied in the Incorporation Clause found in Art. Il, Sec. 2 of the 1987 Constitution, which provides that “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 al nations.”

Question 445

When is the Doctrine of Incorporation applied?

Answer 445

The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since ti is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the Incorporation Clause (Secretary of Justice v. Lantion, G.R. No. 139465, January 18, 2000).

Question 446

If there is irreconcilable conflict between the Constitution and international law, which prevails in the domestic setting?

Answer 446

The Constitution. The Supreme Court has the power to declare the constitutionality or validity of any treaty, international or executive agreement (CONST. Art. VI, Sec. 5 (2)(a)).

Question 447

If there is an irreconcilable conflict between a statute and international law, which prevails in the domestic setting?

Answer 447

It depends. If the conflict is between a law and an executive agreement, the law should prevail. The President cannot, by executive agreement, enter a transaction which is prohibited by laws enacted prior thereto. He may not defeat legislative enactments that have acquired the status of law, by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws (Gonzales v. Hechanova, G.R. No. L-21897, October 22, 1963).

If the conflict is between a law and a treaty, the one which is latest in point of time shall prevail (Gonzales .v Hechanova, G.R. No. L-21897, October 2, 1963).

Question 448

From the perspective of the international community, which should prevail?

Answer 448

International law is superior to municipal law because international law provides the standard by which to determine the legality of a State’s conduct (PARAS, International Law and World Politics, 1994, p. 23 (hereinafter PARAS,International Law]). Also, under Article 7 of the Vienna Convention on the Law of Treaties [hereinafter VCLT], “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”

Question 449

What is Monism theory?

Answer 449

International law and domestic law belong to only one system of law. However, there are two monist theories. One theoryholds that municipal law subsumes and is superior to international law, and a second theory holds that international law is superior to domestic law (BERNAS, Introduction to Public International Law p. 58).

Question 450

What is Dualism theory?

Answer 450

International law and municipal law are essentially different from each other, with each nation ascertaining for itself as to the extent that international law is incorporated into its domestic legal system. Dualists hold that the status of international law in the domestic system is determined by domestic law (Government of the U.S.A v. Purganan, G.R. No. 148571, December 17, 2002).

Question 451

Define State as a subject of international law.

Answer 451

In International Law, a State is defined as an entity that has a defined territory and permanent population, under the control of its own government, and that engages in, or has the capacity to engage ni, formal relations with other such entities (Montevideo Convention of 1933 on Rights and Duties of States, Art. 1)

Question 452

What are the elements of statehood?

Answer 452

1. Permanent Population:
2. Defined Territory,
3. Government; and
4. Capacity ot enter into relations with other states (Montevideo Convention, Art. 1).

Question 453

Is the Holy See a State?

Answer 453

Yes. The Holy See has al the constituent elements of statehood. tI has al the rights of a state, including diplomatic intercourse, immunity from foreign jurisdiction, and others (NACHURA, Outline Reviewer Political Law, p. 650). The Vatican City represents an entity organized not for political but for ecclesiastical purposes and international objects. Despite its size and object, the Vatican City has an independent government of its own, with the Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, ni conformity with its traditions, and the demands of its mission ni the world. Indeed, the world-wide interests and activities of the Vatican City are such as ot make it in a sense an “international state” (Holy See v. Rosario, G.R. No. 101949, December 1, 1994).

Question 454

What is the United Nations?

Answer 454

The United Nations is a universal organization charged with peacekeeping responsibilities, the development of friendly relations among nations, the achievement of international cooperation in solving international problems of an economic, social, cultural and humanitarian character, and the promotion of human rights and fundamental freedomsfor al human beings without discrimination (BERNAS, Public International Law, p. 93).

Question 455

What is persona non grata?

Answer 455

Persona non grata is a declaration that a diplomat specifically named is no longer welcome in the territory of the receiving State (International Law Reviewer, Saul Hofilena Jr., p. 34).

Question 456

What is the implication of a declaration of persona non grata?

Answer 456

Although diplomats may not be arrested or prosecuted by the courts of the host State because the Convention has placed them outside the jurisdiction of the civil,
administrative and criminal courts of the receiving State, if a diplomatic agent commits an offense of an odious character or in any way offends the receiving State, the latter may, without explaining its decision, declare that the head of the mission or any member of the mission, as persona non grata. The sending State shall then recall the person concerned or terminate his functions with the mission. Should the sending State refuse to recall the diplomatic agent who has been declared persona non grata, the receiving State “may refuse to recognize the person concerned as amember of the mission” (ld).

Question 457

When may a diplomat be declared persona non grata?

Answer 457

Diplomats may be declared persona non grata after they have been received and have entered upon their duties as diplomats in the receiving State or even before they have arrived in the territory of the receiving State (International Law Reviewer, Saul Hofilena Jr., p. 35).

Question 458

Does diplomatic immunity cover civil jurisdiction?

Answer 458

Yes, diplomatic agents enjoy immunity from civil and administrative jurisdiction, except:
1. A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

2. An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
3. An action relating to any professional or commercial activity exercised by the diplomatic agent ni the receiving State outside his official functions. (Article 31, Vienna Convention on Diplomatic Relations, 1961):

Question 459

Are diplomats immune from taxes?

Answer 459

Yes, a diplomatic agent is exempt from all dues and taxes, personal or real, national, regional or municipal except:
1. Inheritance taxes;
2. Dues and taxes on private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; and
3. Indirect taxes of a kind which are normally incorporated in the price of goods or services. (Article 34, Vienna Convention of Diplomatic Relations, 1961).

Question 460

Can Diplomatic Immunity be waived?

Answer 460

It can be waived by the sending State and such waiver must be expressly made. fI the diplomatic agent initiates a legal proceeding within the State where there is immunity, one cannot invoke immunity from jurisdiction with respect to any counterclaim directly connected with the principal claim. fI there is a waiver of immunity of the diplomat executed by the sending state with respect to a civil, criminal or administrative proceeding, such waiver shall not be held to imply waiver or immunity with respect to the execution of a judgment, which wil require a separate waiver of the sending State (Article 32, Vienna Convention on Diplomatic Relations, 1961).

Question 461

What are the steps in the treaty-making process?

Answer 461

(NeSiRa-ExReg)
1. Negotiation - Discussion of the provisions of the proposed treaty, undertaken by the representatives of the contracting parties who are provided with credentials known as full powers;

2. Signature - Primarily intended as means of authenticating the instrument and symbolizing the good faith of the contracting parties;
   Note: An alternate is an arrangement under which each negotiator is allowed to sign first on the copy of the treaty which he wil bring home to his own country, the purpose being to preserve the formal appearance of equality among the contracting states and to avoid delicate questions of precedence among the signatories (CRUZ, International Law Reviewer, supra at 214).
3. Ratification - Act by which the state formally accepts the provisions of a treaty concluded by its representative;
4. Exchange of instruments of ratification; and
5. Registration with the United Nations (Pimentel .v Executive Secretary, G.R. No. 158088, July 6, 2005).

Note: The treaty may be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties.

Question 462

What are the restrictions on the subject matter of treaties?

Answer 462

1. Jus Cogens restrictions - A treaty is void if, at the time of its conclusion, ti conflicts with a peremptory norm of general international law (VCLT, Art. 53).
2. Principle of Charter Supremacy I n the event of a conflict between the obligations of the Members of the UN under the UN charter and their obligations under any other international agreement, their obligations under the UN Charter shall prevail (UN Charter, Art. 103).

Question 463

Can the President be compelled by mandamus to transmit to the Senate the copy of the treaty for its concurrence?

Answer 463

No. It is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse ot ratify it. Although the refusal of a state to ratify a treaty which has been signed ni its behalf is a serious step that should not be taken lightly, such decision is within the competence of the President alone, which cannot be encroached by this Court via a writ of mandamus (Pimentel v. Executive Secretary, G.R. No. 158088, July 6, 2005).

Question 464

What is the effect when a treaty is ratified but not concurred by the Senate?

Answer 464

A treaty not concurred by the Senate will not be valid and effective (CONST, Art. VI, Sec. 21).

Question 465

When does a treaty enter into force?

Answer 465

A treaty enters into force ni such manner and upon such date as ti may provide or as the negotiating States may agree. In the absence of such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for al the negotiating States (VCLT, Art. 24).

Question 466

What is the principle of pacta sunt servanda?

Answer 466

Pacta sunt servanda (Latin for “pacts must be respected”) is a basic principle of international law that is now codified ni the VCLT, which states that “every treaty in force si binding upon the parties ot ti and must be performed by them ni good faith” (VCLT, Art. 26)

Question 467

What is the principle of pacta tertiis nec nocent nec prosunt?

Answer 467

Pacta tertiis nec nocent nec prosunt is a Roman law maxim which means that a treaty creates neither obligations nor rights for a third State. Athird State is one that is not a party to the treaty (International Law Reviewer, Saul Hofilena Jr., p. 52).

Question 468

What is Rebus Sic Stantibus?

Answer 468

It is the doctrine which constitutes an attempt to formulate a legal principle which would justify non-performance of a treaty obligation fi the conditions with relation to which the parties contracted have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be unreasonable.

This doctrine is subject ot the following limitations:
1. It applies only to treaties of indefinite duration

2. The vital change must have been unforeseen or unforeseeable and should not have been caused by the party invoking the doctrine
3. The doctrine must be invoked within a reasonable time
4. It cannot operate retroactively upon the provisions of the treaty already executed prior to the change of circumstances (CRUZ, International Law 2003 [hereinafter CRUZ, International Law]).

Question 469

Can the President unilaterally withdraw from a treaty?

Answer 469

Yes. The President can withdraw from a treaty as a matter of policy in keeping with our legal system, if a treaty is unconstitutional or contrary to provisions of an existing prior statute (Pangilinan v. Cayetano, G.R. No. 238875, March 16, 2021).

Question 470

What are the instances when the President may not unilaterally withdrawal from a treaty?

Answer 470

1. The Senate conditionally concurs, such that it requires concurrence also to withdraw; or
2. The withdrawal itself wil be contrary to a statute, or to a legislative authority to negotiate and enter into a treaty, or an existing law which implements a treaty (ld).

Question 471

Who is a stateless person?

Answer 471

A Stateless person is a person who is not considered as a national by any State under the operation of its law (1954 CONVENTION RELATING TO THE STATUS OF STATELESS PERSONS, Art. 1[hereinafter 1954 CONVENTION]).

Question 472

Distinguish between de jure and de facto statelessness.

Answer 472

Stateless persons are either de jure or de facto stateless. De Jure stateless persons are those who have lost their nationality, ti they had one, and have not acquired a new one. De Facto stateless persons are those who have a nationality but to whom protection is denied by their state when out of the state. This is the situation of many refugees (BERNAS, Public International Law, supra at 151).

Question 473

What are the rights of stateless persons?

Answer 473

A Stateless person shall be accorded the same treatment granted to a national of the country of his habitual residence with respect to the rights to artistic rights and industrial property, free access ot courts, rationing, elementary education, and public relief and assistance. He shall also be accorded the same treatment which shall be as favorable as possible and, ni any event, not less favorable than that accorded ot aliens (1954 CONVENTION, Arts. 14-24).

Question 474

What is the Principle of Non-Refoulement?

Answer 474

In addition to not returning the refugee to his own state, he must not be sent to a third state if his life or freedom would there be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion (1954 CONVENTION, Art. 33).

Question 475

What are the exceptions to the Principle of Non-Refoulement?

Answer 475

1. There are reasonable grounds for regarding the refugee as a danger to the security of the state; and
2. Having been convicted of a particularly serious crime, constitutes a danger to the community of the state Id).

Question 476

Define Territoriality Principle.

Answer 476

It postulates that a state exercises exclusive jurisdiction (executive, legislative, and judicial) with respect to all persons, things, transactions, or happenings within its territorial limits. The extent to which a State exercises jurisdiction over persons or acts done outside its territory is narrower and depends on the kind of jurisdiction it seeks to invoke (SUAREZ, Political Law, supra at 1229).

Question 477

What is the Effects Doctrine?

Answer 477

The effects doctrine provides that a state also has jurisdiction over acts occurring outside its territory but having effects within it. It may further be divided into the two principles:Subjective Territoriality and Objective Territoriality (BERNAS, Public International Law, supra at 133).

Question 478

Distinguish the English Rule from the French Rule.

Answer 478

Under the English Rule, the coastal State shall have jurisdiction over al offenses committed on board the vessel except those which do not compromise the peace of the port. On the other hand, the French Rule states that the flag State shall have jurisdiction over al offenses committed on board the vessel except those which compromise the peace of the port (NACHURA, Outline Reviewer Political Law, p. 671).

Question 479

What is the extent of jurisdiction over internal waters?

Answer 479

The State exercises jurisdiction over everything found in internal waters since internal waters are deemed assimilated ni the land mass (ld).

Question 480

What is the extent of jurisdiction over archipelagic waters?

Answer 480

The State exercises jurisdiction over everything found ni archipelagic waters, except for innocent passage of merchant vessels through archipelagic sea lanes (UNCLOS, Arts. 52-53).

Question 481

What is the extent of jurisdiction over the territorial sea?

Answer 481

Criminal jurisdiction over foreign merchant vessels shall be determined by the application of either the English Rule or the French Rule. Innocent passage and involuntary entrance are recognized exceptions, provided that ni case of involuntary entrance, the distress on the vessel must be real (NACHURA, Outline Reviewer Political Law, p. 672).

Question 482

What is the extent of jurisdiction over the contiguous zone?

Answer 482

The coastal State may exercise the control necessary to prevent infringement of its customs, fiscal, immigration and sanitary regulations, and punish the said infringement (UNCLOS, Art. 33).

Question 483

What is the extent of jurisdiction over the exclusive economic zone?

Answer 483

The coastal State has sovereign rights over the exclusive economic zone for purposes of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the sea-bed, the sub-soil and the superjacent waters, as wel as the production of energy from the water, currents and winds. Other States shall have the freedom of navigation and over-flight, to lay submarine cables and pipes, and other lawful uses (UNCLOS, Art. 56).

Question 484

What is the extent of jurisdiction over the continental shelf?

Answer 484

The coastal State enjoys the right of exploitation of oil deposits and other resources in the continental shelf. In case the continental shelf extends to the shores of another State, or is shared with another State, the boundary shall be determined ni accordance with equitable principles (UNCLOS, Art, 77),

Question 485

What is the extent of jurisdiction over the high seas?

Answer 485

Jurisdiction may be exercised by the State on the high seas over the following:
1. Its vessels
2. Pirates
3. Those engaged in illicit traffic in drugs and slave trade
4. In the exercise of the right to visit and search
5. In hot pursuit (UNCLOS, Part VI).

Question 486

What are the instances when foreign vessels are immune from local jurisdiction?

Answer 486

1. Foreign merchant vessels exercising the right of innocent passage or arival under stress
2. Foreign armies passing through or stationed ni the territory with the permission of the State
3. Warships and other public vessels of another State operated for non- commercial purposes (NACHURA, Outline Reviewer Political Law, p. 671).

Question 487

What is innocent passage?

Answer 487

Innocent passage is navigation through hte territorial sea of aState for hte purpose of traversing that sea without entering internal waters, or of proceeding ot internal waters, or making for the high seas from internal waters, as long as ti si not prejudicial ot the peace, good order or security of the coastal State (Id).

Question 488

What is arrival under stress?

Answer 488

Arrival under stress is an involuntary entrance which may be due ot lack of provisions, unseaworthiness of the vessel, inclement weather, or other case of force majeure, such as pursuit by pirates (ld).

Question 489

Why are warships and other public vessels of another State operated for non- commercial purposes immune from local jurisdiction?

Answer 489

They are generally immune from local jurisdiction under the fiction that they are “floating territory” of the Flag State (Schooner Exchange v. McFaddon, 1 U.S. 116, March 2, 1812).

Question 490

Is the exemption from jurisdiction absolute?

Answer 490

No. Their crew members are immune from local jurisdiction when on shore duty, but this immunity will not apply fi the crew members violate local laws while on furlough or off-duty (NACHURA, Outline Reviewer Political Law, p. 671).

Question 491

What is the Protective Principle?

Answer 491

Under the Protective Principle, a state may exercise jurisdiction over conduct outside its territorytory that threatens its security , as long as that conduct is generally recognized as criminal by statesin the international community (BERNAS, Public International Law, 2009, supra at 156, citing Restatement 402(3]).

Examples:
1.Treason
2. Forging a government’s currency
3. Plot to break a government’s immigration regulations

Question 492

What are the limitations to the Protective Principle?

Answer 492

Since this principle gives states wide latitude in defining the parameters of their jurisdiction, the international community has strictly construed the reach of this doctrine to those offenses posing adirect and specific threat ot national security (United States v. Yunis, 681 F. Supp. 896 (1988)).

Question 493

What is the Universality Principle?

Answer 493

Under the Universality Principle, the State has jurisdiction over offenses considered as universal crimes regardless of where these crimes were committed and who committed them. Universal crimes are those which threaten the international community as a whole and are considered criminal offenses in al countries (NACHURA, Outline Reviewer Political Law, p. 668).
Examples:
1.Piracy
2.Genocide
3. War crimes

Question 494

What is the principle of passive personality?

Answer 494

Under the Passive Personality Principle, States have, in limited cases, claimed jurisdiction ot try a foreign national for ofenses commited abroad that afect its own citizens. (S.S. Lotus Case [France V. Turkey]. (CJ Reports, 1927).
Examples:
1. Terrorism
2. Organized attacks on a State’s nationals by reason of their nationality
3. Assassination of a State’s diplomatic representatives or other officials

Question 495

What are the modes of resolving conflicts of jurisdiction?

Answer 495

1. Balancing Test
2. International Comity
3. Forum non conveniens (BERNAS, Public International Law, supra at 173).

Question 496

What is the Balancing Test?

Answer 496

The Balancing Test is a mode of resolving conflicts of jurisdiction where fi the answer to al the following questions is ni the affirmative, then the court wil assume jurisdiction:
1. Was there an actual or intended effect on a State’s foreign commerce?
2. Is the effect sufficiently large to present a cognizable injury ot the plaintiffs, and therefore, a violation of the anti-trust law?
3. Are the interests of the State sufficiently strong, vis-à-vis those of other nations, to justify an assertion of extraordinary authority? (Id).

Question 497

What is International Comity?

Answer 497

International Comity is a mode of resolving conflicts of jurisdiction where the State will refrain from exercising its jurisdiction fi ti is unreasonable (ld).

Question 498

What is Forum non conveniens?

Answer 498

If in the whole circumstances of the case ti be discovered that there is real unfairness to one of the suitors in permitting the choice of a forum which is not the natural or proper forum, either on the ground of convenience of trial or the residence or domicile of parties or of its being the locus contractus or locus solutionis, then the doctrine of forum non conveniens is properly applied (Id).

Question 499

Define extradition.

Answer 499

Extradition is the removal of an accused from the Philippines with the object of placing him at the disposal of the foreign authorities to enable the requesting State or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting State or government (P.D. 1069, otherwise known as the “Philippine Extradition law,” Art. 2(a)).

Question 500

What are the fundamental principles of extradition?

Answer 500

1. Based on the consent of the State expressed in a bilateral treaty;
2. Principle of Specialty - a fugitive who is extradited may be tried only for the crime specified in the request for extradition and included in the list of offenses in the extradition treaty,
3. Double Criminality - the act for which the extradition is sought must be punishable ni both States (SHAW, International Law),
4. Any person may be extradited, whether he be a national of the requesting State, of the State of refuge or of another State. He need not be a citizen of the requesting State;
5. The offense must have been committed within the territory of the requesting State or against its interest;
6. Political or religious offenders are generally not subject ot extradition, as wel as military offenses (BERNAS, Public Intemational Law, supra at 174);
7. Prohibition on Discrimination - extradition may not be granted fi it would subject the fugitive to prosecutions based on race, nationality, or political opinion;
8. Lack of probable cause clause the request for extradition must include sufficient prima facie evidence of guilt attributable to the person requested to be extradited

Question 501

What is an attentat clause?

Answer 501

A provision in an extradition treaty which states that the murder or assassination of the head of a state or any member of his family wil not be considered as a political offense and therefore extraditable (SARMIENTO, PIL Reviewer, supra at 142).

Question 502

Extradition vs. Deportation

Answer 502

(1) as to its nature
E: surrender by force of a wanted person by the requested state to the requesting state
D: expulsion of an unwanted or undesirable alien

(2) as to its exercise
E: may only be made pursuant to a treaty between the requesting state and the requested state
D: a pure unilateral act and an exercise of sovereignty

(3) as to its basis
E: based on offenses generally committed in the state of origin
D: based on causes arising in the local state

(4) as to place of transfer
E: it calls for the return of the fugitive to the state of origin
D: an undesirable alien may be deported to a state other than his or her own or the state of origin

(5) as to which state is benefitted
E: for the benefit of the requesting state
D: takes place in the interest of the country of residence

Question 503

What are the salient features of the UDHR?

Answer 503

1. That all human beings are born free and equal in dignity
2. Everyone has the right ot life, liberty and the security of person
3. No one shall be held in slavery
4. No one shall be subjected to cruel, inhuman or degrading treatment or punishment
5. All are equal before the law
6. Everyone is entitled ot equal protection of the law
7. No one shall be arbitrarily arrested, detained or exiled
8. Those charged with a penal offense have the right to the presumption of innocence
9. Everyone has the right to a nationality
10. No one shall be arbitrarily deprived of his property
11. Everyone has the right ot freedom of thought, conscience and religion
12. Everyone has the right to freedom of peaceful assembly
13. Everyone has the right to work
14. Everyone has the right to an education (Id).

Question 504

Are the rights covered by the UDHR subject to limitations?

Answer 504

Yes. In the exercise of these rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare ni a democratic society. Rights and freedoms may not be exercised contrary ot the purposes and principles of the United Nations (UDHR, Art. 29).

Question 505

What is armed conflict?

Answer 505

Armed conflict means any use of force or armed violence between States or a protracted armed violence between governmental authorities and organized armed groups or between such groups within that State: Provided, That such force or armed violence gives rise, or may give rise, to a situation to which the Geneva Conventions of 12 August 1949, including their common Article 3, apply (R.A. 9851, Sec. 3(c)).

Question 506

Distinguish the 2 kinds of armed conflict.

Answer 506

Armed conflict may be international, that is, between 2 or more States, including belligerent occupation; or non-international, that is, between governmental authorities and organized armed groups or between such groups within a state. It does not cover internal disturbances or tensions such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

Question 507

Define internal or non-international armed conflicts.

Answer 507

These are defined as conflicts restricted ot the ferritory of a single State, involving either regular armed forces fighting groups of armed dissidents, or armed groups fighting each other. They a r e governed by the common Article 3 to the four Geneva Conventions as well as by the Additional Protocol I| (SARMIENTO, PIL Reviewer, supra at 266).

Question 508

What is Genocide?

Answer 508

(KS-DITI)
Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial religious, social or any other similar stable and permanent group such as:
1. Killing members of the group;
2. Causing Serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction ni whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group;
6. Directly and publicly Inciting other to commit genocide (R.A. 9851, Sec. 5).

Question 509

What are Other Crimes against Humanity?

Answer 509

(WEED-ITS-PEAS)
Other crimes against humanity means any of the following acts when committed as part of a widespread or systemic attack directed against any civilian population, with knowledge of the attack:
1. Willful killing;
2. Extermination;
3. Enslavement;
4. Arbitrary Deportation or forcible transfer of population;
5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law:
6. Torture;
7. Rape, Sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
8. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, sexual orientation or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime defined in this
9. Enforced or involuntary disappearance of persons;
10. Apartheid; and
11. Other inhumane acts of a Similar character intentionally causing great suffering, or serious injury to body or to mental or physical health (R.A. 9851, Sec. 6).

Question 510

What happens if another court or international tribunal is already conducting the investigation or prosecuting the crime?

Answer 510

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, fi any, or to another State pursuant to the applicable extradition laws and treaties (ld).

Question 511

Are crimes under R.A. 9851 subject to prescription?

Answer 511

No. The crimes defined and penalized under this Act, their prosecution, and the execution of sentences imposed on their account, shall not be subject to any prescription (R.A. 9851, Sec. 11).

Question 512

Atty. Juana, who was then the Secretary of the House of Representatives Electoral Tribunal (HRET), was involved in an administrative case for an alleged tampering of a minutes of the meeting. The institution of the administrative case coincided with Atty. Juana’s application for special leave benefit under Republic Act (RA) No. 9710, otherwise known as the “Magna Carta of Women”. While the law provides a maximum period of two (2) months for the leave benefit, Atty. Juana only indicated in her
application the availment of fifteen (15) days of special leave benefit, to undergo hysterectomy. The
HRET approved Atty. Juana’s leave application for a period not exceeding two (2) months. After
completing the fifteen-day leave, Atty. Juana informed the HRET Chairperson that she was reassuming her duties and functions. However, the HRET directed Atty. Juana to consume her two-month special leave for her to rest following her hysterectomy, and in view of the pending investigation of the administrative case. As she believed that returning to work is her right, she sought reconsideration of the HRET directive. Yet, the HRET denied the same and reiterated its position. Aggrieved, Atty. Juana
immediately filed an appeal with the Civil Service Commission (CSC), which favored Atty. Juana.

Consequently, HRET filed a Petition for Review with the Court of Appeals and assailed the resolution
of the CSC. The Petition for Review was prepared, signed, and filed only by the Secretary and the Deputy Secretary of the HRET. Atty. Juana counters that the Secretary or the Deputy Secretary of the HRET was not authorized to file the instant petition. Rule on the contention of Atty. Juana.

Answer 512

The contention of Atty. Juana should be given merit, as the House of Representatives Electoral Tribunal’s Petition for Review should have been filed under the representation of the Office of the Solicitor General (OSG).

Under the law, the OSG was constituted as the law office of the Government and shall discharge duties requiring the services of a lawyer as such. The OSG, however, may be excused from representing the Government, its agencies, and instrumentalities when there is an express authorization by the OSG, naming therein the legal officers who are being deputized in cases involving their respective offices, subject to its supervision and control, or when the OSG takes a position different from that of the agency it is duty bound to represent.

Here, there was no express authorization by the OSG naming the Secretary and Deputy Secretary of the HRET as its deputized legal officers in filing this petition. There was also no proof, let alone an allegation, that the OSG took a position different from the HRET in this case. (See House of Representatives Electoral Tribunal v. Panga-Vega, G.R. No. 228236 (Resolution), [January 27, 2021])

Question 513

The Sangguniang Panlungsod (SP) of Butuan City enacted SP Ordinance No. 1 granting extraordinary and miscellaneous expenses (EME) to certain local government unit (LGU) officials. By virtue of the said ordinance, a series of EME disbursements were made.

However, the Commission on Audit (COA) Regional Office (RO) No. XIII issued Notice of Disallowance (ND) No. 1 disallowing the EMEs paid in 2014, for lack of legal basis. No appeal was taken within the reglementary period, rendering the ND final. Accordingly, a Notice of Finality of Decision and Final Order of Adjudication was issued. Meanwhile, the City Government of Butuan continued to appropriate and grant EME to its officials until 2020. Relatively, eight (8) more NDs (collectively as “2018 NDs”) were issued, disallowing EMEs paid in 2018. Then, another eighty-seven (87) NDs were issued that disallowed EMEs paid from 2014 to 2019 (collectively as “2014-2019 NDs”). Appeals were lodged before the COA RO No. XIII, which nevertheless denied the same. On further appeal, the COA Proper affirmed the COA RO No. XIII decisions. Thus, the LGU officials filed a Petition for Certiorari under Rule 64, in relation to Rule 65, of the Revised Rules of Court assailing the COA Proper decisions. In the Petition for Certiorari, the LGU officials invoked, for the first time, the right to speedy disposition of cases, since the proceedings before the COA Regional Office XIII took more than one (1) year and four (4) months from the issuance of the NDs, up to the time the decisions were rendered. Thereafter, it took another three (3) years and seven (7) months for the COA Proper to resolve the appeal. For its part, the COA Proper maintains that the period dedicated to the resolution of the case did not exceed the reasonable limits for the work involved.

It contends that there is no showing that the apparent delay is vexatious, capricious, and oppressive, as to violate petitioners’ right to speedy disposition of a case. Was there a violation of the right to speedy disposition of cases?

Answer 513

There was no violation of the right to speedy disposition of cases, as sheer length of time, without allegation and proof of prejudice to the party invoking the right, does not equate to an inordinate delay to justify the nullification of the Commission on Audit (COA) Proper issuances.

The constitutional guarantee of speedy disposition of cases is a basic tenet of procedural due process which articulates that any party to a case may demand expeditious action from all officials who are tasked with the administration of justice.

Jurisprudence, however, teaches us that not every delay in the disposition of matters before any justice administering body is arbitrary and constitutive of a violation of the constitutional guarantee of speedy disposition of cases. Certain factors must be taken into account, depending on the circumstances obtaining in every case.

Here, the length of time alone, however, is not proof of delay that violates the right to speedy disposition of cases. The consolidated appeals cover numerous disallowances, which means that the COA sifted through and reviewed numerous sets of records. Moreover, petitioners failed to seasonably question the violation of their right to speedy disposition, as it was only in the Petition for Certiorari that they invoked – for the first time – the right to speedy disposition of cases. (See Abella v. Commission on Audit Proper, G.R. No. 238940, [April 19, 2022])

Question 514

During the period of the most recent national elections, the Malay Police Station received a text message from an anonymous informant saying that a passenger, wearing camouflage shorts, was carrying a firearm on board a provincial bus coming from Buruanga and bound for Caticlan. As such, the Malay Police Station, in coordination with the municipal election officer, conducted a checkpoint in front of the municipal plaza to verify the tip. Accordingly, the police officers flagged down a provincial bus and asked the driver for permission to embark. On board, Police Senior Inspector (PSI) Ricardo
Dalisay saw the man described in the tip. PSI Dalisay approached the man and saw the handle of a pistol protruding from his half-open belt bag. PSI Dalisay then asked the man to alight from the bus to avoid commotion from the other passengers. After inquiry, the police team identified the man as Tanggol Quiapo, a security officer of the Municipality of Buruanga. Tanggol, however, failed to show his authority to possess the firearm.

Consequently, a search on the person of Tanggol was conducted,
which yielded a loaded caliber .45 pistol, and two magazines with live ammunition. Tanggol was informed of his constitutional rights, arrested, and was brought to the police station. There, Tanggol, and the seized items were turned over for investigation to the authorities, who dutifully made an inventory of the items. Tanggol was charged with a violation of the gun ban, pursuant to Batas Pambansa Bilang No. 881, in relation to Commission on Elections (COMELEC) Resolution No. 8714.
Is the plain view doctrine applicable in the case?

Answer 514

The plain view doctrine is applicable in the case. During the conduct of the checkpoint, PSI Dalisay saw in plain view a firearm protruding from Quiapo’s belt bag.

Under the plain view doctrine, objects falling in the plain view of an officer who has the right to be in the position to have the view are subject to seizure and may be presented in evidence.

The doctrine requires that: (a) the law enforcement officer in search of the evidence has prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; and (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure.

These requisites are present in this case. The police officers of the Malay Police Station, after receiving a report that a person was in possession of a gun, conducted a checkpoint in coordination with the municipal election officer. On board the bus, PSI Dalisay saw in plain view the firearm which was protruding from Arturo’s half open belt bag. Thus, the police officers had the duty to arrest him and confiscate the contraband in his possession.

(See Sullano y Santia v. People, G.R. No. 232147, [June 8, 2020])

Question 515

On April 20, 2023, at about 8:00 p.m., Sheena Cagandhan (Sheena) was inside her well-lighted house with her boyfriend Charles Villegas (Charles) and neighbor Maloi Artista (Maloi). At that time, Sheena and Charles were having dinner, while Maloi was about to use the telephone, when an armed man suddenly barged into the house and took Sheena’s cellphone on top of the center table in the living room. Sheena shouted to stop the man while Charles and Maloi froze upon seeing the incident.

Thereafter, the man pointed a gun to Sheena and shot her on the chest causing her death. The man quickly fled the scene. Immediately, Charles and Maloi reported the matter to the police station and described the suspect as “[m]edyo malaki katawan.” The police officers then received an information that the suspect was seen at Mangahan St., Pasig City. The authorities went to the target area and saw a man who matched the description. The police officers approached the man who tried to run. The authorities arrested the man and recovered from him a .38 caliber firearm. The man was identified as Robin Ramirez (Robin). At around 3:00 a.m. the following day, Charles and Maloi confirmed in a police lineup that Robin was the one who robbed and killed Sheena. Accordingly, Robin was charged with the complex crime of Robbery with Homicide before the Regional Trial Court. During trial, Robin questioned
the out-of-court identification that led to his being identified as the primary suspect. Should the out-ofcourt identification by Charles and Maloi be discredited?

Answer 515

No, the out-of-court identification by Charles and Maloi are to be afforded credibility.

It is a jurisprudential pronouncement that one mode of out-of-court identification is the police lineup where the witness selects a suspect from a group of persons. In determining the admissibility and reliability of their out-of-court identification, the Court must look at the totality of the circumstances and consider the following factors, namely: (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the length of time between the crime and the identification; (5) the level of certainty demonstrated by the witness at the identification; and (6) the suggestiveness of the identification procedure.

Here, the out-of-court identification of Robin by Charles and Maloi, satisfied the totality of the circumstances test. The rules assure fairness as well as compliance with the constitutional requirements of due process in regard to out-of-court identification, and prevent the
contamination of the integrity of in-court identification.

(See People v. Campos, G.R. No. 252212, [July 14, 2021])

Question 516

The Municipality of XYZ was distressed with arrearages on unremitted Government Service
Insurance System (GSIS) premiums. This prompted Vice Mayor Angelo Vitangcol, along with other municipality officials and employees, to lodge a complaint for malversation of public funds against
Municipal Mayor Jenny Rivera (Jenny) and Municipal Treasurer Leslie Briones (Leslie) before the Ombudsman. The Ombudsman, however, charged Jenny and Leslie before the Sandiganbayan with
violation of Section 3 (e) of RA No. 3019 and violations of Sections 3.3.1 and 3.4, Rule III of the IRR of
RA No. 8291 for non-remittance of contributions to the GSIS. Jenny and Leslie attack the validity of the
Informations as they alleged conspiracy, but failed to implead the municipal accountant and budget
officer, who are indispensable in consummating the offenses charged. Jenny and Leslie submit that they cannot be expected to discharge their respective duties in the remittance of the GSIS contributions without the issuance of the certificate of availability of funds and remittance vouchers by the municipal accountant and budget officer. Hence, for Jenny and Leslie, such incomplete allegation in the Informations violated their constitutional right to be informed of the nature and cause of the accusations against them. Is the contention of Jenny and Leslie correct?

Answer 516

The contention of Jenny and Leslie is incorrect. The, non-inclusion of the municipal accountant and budget officer in the indictment is not violative of the right to be informed of the nature and cause of accusation against them. The right to be informed of the nature and cause of the accusation is not violated if the complaint or information sufficiently alleges the facts and circumstances constituting the offense. Further,
in one case, it was held that an information alleging conspiracy can stand even if only one person
is charged except that the court cannot pass verdict on the co-conspirators who were not
charged in the information.

Here, the Informations against Jenny and Leslie clearly and sufficiently stated that they were being charged for their failure to perform their duties as mayor and treasurer to ensure full and timely remittance of the municipality’s GSIS contributions. The indictment of the purported
conspirators, as well as a statement of their part in the alleged conspiracy, is not necessary to sustain the sufficiency of the Informations.
(See Ismael v. People, G.R. Nos. 234435-36, [February 6, 2023])

Question 517

On October 2, 2018, the COMELEC issued Resolution No. 1234, prescribing the guidelines for the
submission of the SOCEs (Statement of Contributions and Expenditures) for the May 9, 2022 national
and local elections not later than June 8, 2022. Subsequently, the COMELEC En Banc, through
Resolution No. 4321, extended the filing of SOCEs until June 30, 2022. The majority of the commissioners explained that the law, in providing that “[n]o person elected to any public office shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required”, implies that the SOCEs may be submitted beyond the 30-day period. Moreover, the COMELEC previously allowed extension of time in filing the SOCEs in 2010, 2013, and 2016 due to legal necessity and to prevent vacuum in the public service. Later, the Supreme Court declared Resolution No. 4321 to be invalid. Candidates and political parties who submitted their SOCEs after June 8, 2022 now invoke the operative fact doctrine to be exempt from administrative liability. Is the
operative fact doctrine applicable? Discuss.

Answer 517

Yes, the operative fact doctrine is applicable.

It is well-settled that the operative fact doctrine recognizes the effects of the law or executive issuance prior to its invalidation when relied upon by the public in good faith. The actual existence of a statute, prior to such a determination of unconstitutionality, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.

Here, the candidates and political parties that submitted their Statement of Contributions and Expenditures (SOCEs) following the extended deadline acted in good faith. They honestly believed in the resolution that was issued pursuant to the COMELEC’s rule-making authority as the COMELEC even previously extended the deadlines for the filing of SOCEs in the 2010, 2013, and 2016 national and local elections. Accordingly, the effects of accomplished acts prior to the invalidation of COMELEC Resolution No. 4321 should stand. (See PDB-Laban v. COMELEC, G.R. No. 225152, October 5, 2021, J. Lopez)

Question 518

The Board of Directors of ABC, a government owned and controlled corporation (GOCC), confirmed
and ratified a board resolution that granted Calendar Year (CY) 2023 Performance Incentive Benefits
(PIB), equivalent to 1-year basic salary to its employees. To implement this grant, ABC President and CEO, Mr. ABC, approved ABC Circular No. 2023-01 dated December 21, 2023. The Audit Team issued a Notice of Suspension, requiring Mr. ABC to explain why the PIB should not be disallowed in audit, because it lacked prior approval of the President of the Philippines. Mr. ABC argues that the grant of the PIB through Board Resolution No. 2023-01 was deemed authorized by the President consideringthat the Board of Directors of ABC is comprised of cabinet secretaries, who are alter egos of the President of the Philippines. Is the argument tenable? Explain.

Answer 518

No, the argument is not tenable.
In one case, the Supreme Court distinguished the department secretaries’ functions as cabinet
members and those performed in ex officio capacity, in relation to the doctrine of qualified political agency. According to the Supreme Court, the doctrine of qualified political agency could not be extended to the acts of the Board of Directors performing in ex officio capacity despite some of its members being themselves the appointees of the President to the Cabinet.

In this case, when the cabinet secretaries approved Board Resolution No. 2023-01, they did not
act as alter egos of the President, but as members of the Board of Directors of ABC in their ex officio capacity under the law. Hence, the assent to the grant of the Performance Incentive Benefits by the cabinet secretaries cannot be deemed as the required approval of the President
of the Philippines.

(See National Power Corporation Board of Directors v. Commission on Audit, G.R. No. 218052,
January 26, 2021, J. Lopez)

Question 519

On September 1, 2022, Mr. VV died allegedly due to hazing. On September 3, 2022, Senate
Resolution (SR) No. 123, was filed by Senator NP condemning the death of Mr. VV and directing the
appropriate Committee to conduct an investigation, in aid of legislation, to hold those responsible
accountable. Mr. AV attended the Senate hearing. During the proceedings, Senator NP asked Mr. AV about his affiliation with a fraternity and the details of the hazing incident, to which Mr. AV repeatedly invoked his right against self-incrimination. For testifying evasively, the Committee cited Mr. AV in contempt and ordered him arrested and detained until such time that he gives his testimony. Later, Mr. AV was criminally charged before the court using the transcript of the Senate hearing. Mr. AV then filed a petition in court questioning his detention. Mr. AV argues that the legislative inquiry conducted was not in aid of legislation; rather, it was in aid of prosecution as the purpose of SR No. 123 was to hold accountable those responsible for killing Mr. VV. When the petition was still pending, the Committee released Mr. AV after the Senate approved the Committee Report. Rule on the case.

Answer 519

The petition is moot and academic.

Jurisprudence instructs that the existence of an actual case or controversy is a necessary condition precedent to the court’s exercise of its power of adjudication. The issue ceases to be justiciable when a controversy becomes moot and academic; otherwise, the court would engage in rendering an advisory opinion on what the law would be upon a hypothetical state of facts.

In this case, Mr. AV alleged that the Senate Committee unlawfully exercised its power of contempt and that his detention was invalid. Subsequently, however, the Committee terminated its legislative inquiry upon the approval of the Committee Report by the Senate. As the legislative inquiry ends, the basis for the detention of Mr. AV also ends, which led to his release. There is no more justiciable controversy regarding the Committee’s exercise of its constitutional power to conduct an inquiry in aid of legislation, its power of contempt, and the validity of the detention.

(See Balag v. Senate of the Philippines, G.R. No. 234608, July 3, 2018)

Question 520

If an unforeseen disaster were to occur during a State of the Nation Address (SONA), incapacitating
both the President and Vice President present in the event, who would assume the Presidency and the Vice-Presidency, and what are the constitutional provisions governing this succession? Discuss.

Answer 520

The following are the rules on succession if the President and Vice-President are both
incapacitated to assume office:
1) Where both President and Vice-President shall have been incapacitated, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall act as President until a President or a Vice President shall have been chosen and qualified. (Section 7, Article VII, Constitution)

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

3) The Congress shall, at 10 o’clock in the morning of the 3rd day after the vacancy in the offices of the President and Vice-President occurs, convene in accordance with its rules without need of a call and within 7 days, enact a law calling for a special election to elect a President and a Vice-President to be held not earlier than 45 days nor later than 60 days from the time of such call. No special election shall be called if a vacancy occurs within 18 months before the date of the next presidential election. (Section 10, Article VII, Constitution)

Question 520

On September 1, 2023, President Marcos Jr. certified as urgent the enactment of House Bill (HB) No. 1234, or the Fiscal Year 2024 General Appropriations Bill, to address the need to maintain continuous government operations following the end of the Fiscal Year 2023, to expedite the funding of various program, projects, and activities for Fiscal Year 2024, and to ensure budgetary preparedness that will enable the government to effectively perform its constitutional mandate. The Senate and the House of Representatives rushed the passage of the bill, and the President signed it as Republic Act (RA) No. 4321.

Senator LG filed a petition questioning the President’s exercise of the power to certify as urgent HB No. 1234 as tainted with grave abuse of discretion as there existed no public calamity or emergency to certify a bill as urgent as required under Section 26(2), Article VI of the Constitution. Is HB No. 1234 void? Explain.

Answer 520

No, HB No. 1234 is not void.

Jurisprudence provides that the President’s determination of the existence of an “emergency” or “public calamity” is fundamentally dependent on the exigencies of each circumstance. As such, the Court must refrain from intruding into such matter through the exercise of its judicial power in the absence of grave abuse of discretion, considering that the passage of laws is essentially an affair that falls within the purview of the political branches of government. In this case, the House of Representatives and the Senate gave full recognition to the President’s certification and promptly enacted RA No. 4321. There is no fact or circumstance which would impugn the judgment of the President, concurred in by no less than a co equal and coordinate branch of government, that there was an emergency that required the immediate enactment of HB No. 1234. Consequently, the certification justified the immediate enactment of HB No. 1234.

(See Calleja v. Executive Secretary, G.R. No. 252578, December 7, 2021)

Question 521

Kamran F. Karbasi is an Iranian national, who was admitted to the Philippines under a Pakistani passport. The United Nations High Commissioner on Refugees certified that Karbasi is a refugee. The Philippines is a signatory to the 1951 Refugee Convention. Karbasi resettled in Dipolog City, where he met his Filipino wife, Cliji G. Lim. To provide for his family, Karbasi served as a computer repair technician in a small shop that he established. After eleven (11) years of residency in the Philippines, he filed a petition for naturalization. The trial court granted the petition, and the Court of Appeals affirmed it. The Office of the Solicitor General (OSG) now appeals the grant of Philippine citizenship to Karbasi. Specifically, the OSG points out that Karbasi failed to establish that Iran grants reciprocal rights of naturalization to Filipino citizens. On the other hand, Karbasi interposes that he has established his status as a refugee, and reciprocity is no longer required. Should the Supreme Court revoke the grant of Philippine citizenship to Karbasi? Explain your answer.

Answer 521

No, the Supreme Court should not revoke the grant of Philippine citizenship in favor of Karbasi.

Under the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, to which the Philippines was a signatory, the country is bound to safeguard the rights and well-being of the refugees and to ensure the facility of their local integration including naturalization. Further, Article 7 of the said Convention expressly provides exemptions from reciprocity.

As applied to this case, Karbasi’s status as a refugee has to end with the attainment of Filipino citizenship, in consonance with Philippine statutory requirements and international obligations under the 1951 Convention Relating to the Status of Refugees.

Question 522

A bill was introduced in the House of Representatives to implement faithfully the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) to which the Philippines is a signatory. Representative Harry questioned the constitutionality of the bill on the ground that the provisions of UNCLOS are violative of the provisions of the 1987 Constitution defining the Philippine internal waters and territorial sea. Do you agree or not with the said objection? Explain briefly.

Answer 522

I do not agree with Representative Harry’s objection.

As ruled in the case of Magallona v. Ermita (G.R No. 187167, August 16, 2011), there is no reduction or divestment of territory, or Philippine waters, or internal seas under the proposed Baselines Law. It is merely enacted to comply with conventional requirements under the United Nations Convention on the Law of the Sea (UNCLOS), pursuant to the principle of pacta sunt servanda or that treaties must be complied with in good faith as the country is a signatory.

These baseline requirements merely ensure that the country is observing the guidelines laid out by the UNCLOS much like all its other signatories. Thus, the objections are unfounded.

Question 523

Records show that Marliz was a dual citizen at the time she filed her Certificate of Candidacy in the recent national and local election, being both a US citizen and a natural-born Filipino. Two petitions were filed to disqualify her. One of the petitions alleged that she committed material misrepresentation, because she declared she was a natural-born Filipino citizen in her Certificate of Candidacy. The COMELEC En Banc gave due course to the petition challenging her qualifications. It held that the failure of Marliz to comply with R.A. 9225 manifested that she did not re-aquire Philippine citizenship. Marliz appealed the cancellation of her Certificate of Candidacy asserting that R.A. 9225 applies only to natural-born Filipinos, who renounced their Philippine citizenship through naturalization. She argued that she became a naturalized citizen of the United States of America, through the acts of her father to comply with the U.S. Immigration and Naturalization Act. She was a natural-born Filipino at birth,
because her father was Filipino at the time of her birth. She said that since her father applied for
naturalization under the U.S. Immigration and Naturalization Act, she became an American without
personally renouncing her Philippine citizenship. She was still in her tender years at that time and she
did not actually take any steps to renounce her status as a natural-born Filipino. Is the argument of
Marliz tenable? Explain your answer

Answer 523

The argument of Marliz is tenable.

As held in the case of Carait v. COMELEC (G.R. No. 257453, August 09, 2022), R.A. No. 9225 only applies to natural-born Filipinos who become naturalized foreign citizens personally and voluntarily. It does not cover dual citizenships that arise out of one’s birth, or the circumstances
surrounding one’s birth.

Here, Marliz was a natural-born Filipino who acquired dual citizenship due to her father’s act of applying for naturalization under the U.S. Immigration and Naturalization Act, thus, it cannot be said that she personally or voluntarily renounced her Philippine citizenship.

Consequently, Marliz is not required to comply with the requirements under R.A. No. 9225.

Question 524

Mamerto was a school teacher, who was acquitted by the trial court of five counts of acts of lasciviousness filed against him by two 11-year-old female students. With the consent of the public prosecutor, the private complainants filed a special civil action for certiorari alleging that the trial court committed grave abuse of discretion given that the joint orders issued by the new judge merely recited the contents of Mamerto’s motion for reconsideration, without stating any factual and legal basis.

They argued that the new judge failed to cite the relevant evidence and applicable law to sustain Mamerto’s acquittal. Mamerto opposed the petition arguing that a review of his acquittal would place him in double jeopardy. Is the argument of Mamerto tenable? Justify your answer.

Answer 524

Mamerto’s argument is not tenable.

In the case of Austria v. People (G.R. No. 205275. June 28, 2022), it was held that double jeopardy does not arise when there is a void judgment of acquittal since the case is technically not terminated.

Here, the trial court committed grave abuse of discretion given that the decision issued by the new judge merely recited the contents of Mamerto’s motion for reconsideration without stating any factual and legal basis. This violates Section 14 of Article VIII of the Constitution which prohibits the courts from rendering decisions without expressing therein clearly the factual and legal basis. Such a decision acquitting Mamerto is therefore void, and the case is not terminated, thus not giving rise to double jeopardy. In sum, a void decision cannot give rise to any legal right.

Question 525

Jessica Lucila “Gigi” Reyes, former Chief of Staff of the Senate President, was arrested in 2014 for
plunder. The Sandiganbayan committed her to the detention facility in Camp Bagong Diwa, Taguig
City. In 2021, while her case was still pending in Sandiganbayan, Reyes filed a Petition for Habeas
Corpus with the Supreme Court. Reyes argued, among others, that her case dragged on for years due
to the errors attributable to the Prosecution; that the prosecution wrongfully marked certain pieces of
evidence which resulted in postponements; that as a further result, the Sandiganbayan issued two pretrial orders which are vague, and that trial has been suspended. She also alleged that given the
prolonged deprivation of her liberty, she was denied the right to speedy disposition of cases. The
warden filed a return where it was argued that under prevailing rule and jurisprudence, Reyes was not
entitled to habeas corpus, because her detention was upon a valid court order. The Office of the
Solicitor General also argued that several of the postponements are attributable to the various filings
of Reyes herself which even reached, and are pending in the Supreme Court. Is Reyes entitled to the
writ of habeas corpus?

Answer 525

Yes, Reyes is entitled to the writ of habeas corpus, because her right to speedy trial has been
violated.
As can be gleaned from the case of Reyes v. Director of Camp of Bagong Diwa (G.R. 243411,
August 19, 2022), the writ of habeas corpus extends to all cases of arbitrary confinement and
illegal detention, and is anchored on the right to a speedy trial. Moreover, even if the writ of
habeas corpus, as a general rule, is unavailable to individuals who are under the custody of an
officer under a legal process that was issued by a court or judge, the writ may be availed of
provisionally if it is shown that the detention has become oppressive to the detainee, thus
amounting to a violation of the right to a speedy trial.

Here, the reason for prolonged detention is rooted in the errors of the prosecution. Even though
there are matters filed by Reyes, herself, which remains pending before the Supreme Court, this
does not discount the postponements caused by the prosecution.

Question 531

Atty. XA, a bar lecturer, law professor, and book author, filed his Certificate of Candidacy for senator
in the May 12, 2025 elections as an independent candidate. The Comelec Law Department motu
proprio filed a petition to declare Atty. XA a nuisance candidate alleging that he has no bona fide intent
to run for public office. Moreover, Atty. XA will not be able to sustain the financial rigors of waging a
nationwide campaign without clear proof of financial capacity. The COMELEC First Division declared
Atty. XA a nuisance candidate, stating that Atty. XA failed to establish the financial capacity to wage a
nationwide campaign especially, since he is running as an independent candidate. Atty. XA moved for
a reconsideration and argued that financial capacity is not among the qualifications to run for senator
and that he can wage his campaign using social media platforms. The COMELEC En Banc denied Atty.
XA’s motion and explained that an election campaign for a national position involves huge expenditures;
however, Atty. XA has no strong and consolidated political machinery. Is the COMELEC correct?
Discuss.

Answer 531

No, the COMELEC is not correct.
In one case, the Supreme Court ruled that the candidate’s bona fide intention to run for public
office is neither subject to any property qualifications nor dependent upon membership in a
political party, popularity, or degree of success in the elections. Also, the COMELEC’s motu
proprio authority under Section 69 of the Omnibus Election Code must not result in the denial of
opportunity to be heard.
Here, it is incumbent upon the COMELEC to identify the circumstances that would clearly show
Atty. XA’s lack of bona fide intention to run for senator, as the financial capacity and membership
in a political party cannot be equated to the absence of the bona fide intention to run. However,
the COMELEC did not adduce supporting substantial evidence and instead shifted the burden
of evidence to Atty. XA to convince why his Certificate of Candidacy should be given due course.
Thus, the COMELEC is not correct in declaring Atty. XA a nuisance candidate.

Question 532

Teacher A and Teacher B are both public school teachers. Teacher A authorized Teacher B to
process Teacher A’s salary loan application with the Teacher’s Mutual Aid System. Teacher B
processed the loan, but did not deliver the check to Teacher A. Instead, she deposited it to her own
account, and afterwards appropriated the amount without Teacher A’s consent. Teacher A filed a
complaint against Teacher B before the Civil Service Commission Regional Office (CSCRO). Later,
CSCRO charged Teacher B of dishonesty. CSCRO found Teacher B guilty of dishonesty and imposed
the penalty of dismissal. Teacher B’s motion for reconsideration was denied, prompting her to file an
appeal with the Civil Service Commission (CSC). Meanwhile, the CSCRO’s decision was implemented
thereby dismissing Teacher B from service effective December 1, 2013. On June 1, 2017, CSC
modified the CSCRO’s decision by finding Teacher B liable for the lower offense of Simple Dishonesty
and imposing the penalty of three (3) months suspension. Teacher B claims that she is entitled to receive back salaries from December 1, 2013 until June 1, 2017. Is Teacher B’s contention meritorious?
Explain.

Answer 532

Yes, Teacher B’s contention is meritorious.
The rule on payment of back salaries during the period of suspension of a member of civil service
who is subsequently ordered reinstated is settled in our jurisdiction. Such payment of salaries
corresponding to the period when an employee is not allowed to work may be decreed not only
if he is found innocent of the charges which caused his suspension but also when the suspension
is unjustified.
Here, despite the pendency of Teacher B’s appeal with the Civil Service Commission (CSC), the
decision of the CSC Regional Office dismissing her from the service was still implemented.
Evidently, the execution of the decision was premature and thus unjustified since the same had
not yet attained finality as it was still subject to review by the CSC. Thus, Teacher B is entitled
to receive back salaries.
(See Republic v. Maneja, G.R. No. 209052, June 23, 2021, J. Lopez)

Question 532

AAA filed a petition that seeks the nullification of an Ordinance of the City of Mandaluyong which
implements the No Contract Apprehension Program (NCAP). In implementing the NCAP, the assailed
ordinance adopted the following principles and procedure: a) Once the vehicle is recorded, e.g.,
apprehended, to have violated a traffic regulation, a notice of violation is sent out addressed to the
registered owner of the vehicle; and b) the registered owner is deemed to be primarily liable for the
commission of the traffic violation; c) the registered owner is given the opportunity to contest the notice
of violation within a reasonable period; d) the registered owner may also have the opportunity to
nominate the actual driver that committed the said traffic violation; and e) the driver or registered owner
may prove that the said traffic violation was committed due to an emergency. AAA submits that the said
Ordinance is illegal and unconstitutional for violating the basic tenets of due process enshrined under
Article III of the 1987 Constitution. The City of Mandaluyong argues that the implementation of the
NCAP through the issuance of an ordinance is a valid exercise of police power. Rule on the merits of
the case.

Answer 532

The City of Mandaluyong is correct. The ordinance is neither illegal nor unconstitutional.
Jurisprudence provides that local governments possess delegated legislative power to regulate
traffic under Section 458 of the Local Government Code, which anchors itself on the delegated
police power provided in the general welfare clause embodied in Section 16. It is settled that
restrictions brought about by regulations of local governments addressing traffic congestion are
valid exercises of police power, unless exercised whimsically, arbitrarily, or despotically.
Here, considering that traffic congestion was already retarding the growth and progress in the
economic centers of the city, the plain objective of the ordinance is to serve the public interest
and advance the general welfare in the City of Mandaluyong. Its adoption aims to fulfill the compelling government purpose of immediately addressing the burgeoning traffic congestion,
and, therefore, the exercise of police power was not done whimsically, arbitrarily, or despotically.
(See Bagong Repormang Samahan ng mga Tsuper at Operator sa Rotang Pasig Quiapo v. City
of Mandaluyong, G.R. No. 218593, June 15, 2020, citing Legaspi v. City of Cebu, G.R. No.
159110, December 10, 2013)

Question 533

In November 2021, RG filed his certificate of candidacy (CoC) with the COMELEC, seeking
congressional office in Leyte. In December 2021, JB filed a verified petition, alleging that RG
misrepresented in his CoC that he resided in Leyte. The COMELEC First Division disqualified RG for
lack of residency requirement. While pending resolution of the COMELEC En Banc, LG filed her CoC
as the party’s official substitute candidate vice her husband, RG, for the same congressional post,
which the COMELEC En Banc granted. During the elections, RG, whose name remained on the ballots,
won and his votes were credited in favor of LG. JB questioned LG’s proclamation as she did not validly
substitute RG, given that his CoC was void ab initio. LG claims that RG was merely disqualified by the
COMELEC; thus, RG can be the proper subject of substitution. Is LG’s argument tenable? Decide.

Answer 533

No, LG’s argument is untenable.
Jurisprudence instructs that a candidate who is disqualified under Section 68 of the Omnibus
Election Code (OEC) can be validly substituted pursuant to Section 77 of the OEC because he
remains a candidate until disqualified. However, a person whose CoC has been denied due
course to and/or cancelled under Section 78 of the OEC cannot be substituted because he is
not considered a candidate.
Here, RG was disqualified for lack of residency requirement. The confusion stemmed from the
use of the word “disqualified” by the COMELEC First Division, which was adopted by the
COMELEC En Banc in granting LG’s substitution. Yet the fact that the COMELEC First Division
did not decree the denial of due course to and/or cancellation of RG’s CoC should not have
obviated the COMELEC En Banc from declaring the invalidity of LG’s substitution since lack of
residency requirement is a ground for the denial of due course to and/or cancellation of CoC.
(See Tagolino v. HRET, G.R. No. 202202, March 19, 2013)

Question 534

QRS hired A, B, C, and D as construction workers in Malaysia for its principal, XYZ. Upon their
arrival in Malaysia, they were made to live in a place with unsafe living conditions causing them to easily
get sick and spread communicable diseases. They worked beyond regular hours without pay. Later,
they discovered that they only had tourist visas, and that XYZ was hiding them from the authorities,
because they did not have work permits. A, B, C, and D filed a case before the Labor Arbiter (LA),
which ruled that A, B, C, and D were constructively dismissed due to the unbearable and unfavorable
working conditions set by XYZ. This ruling was affirmed by the NLRC. XYZ filed a petition before the
Court of Appeals arguing that the LA and NLRC committed grave abuse of discretion for violating the
doctrine of primary administrative jurisdiction. According to XYZ, it should be the Philippine Overseas
Employment Administration (POEA), which can take cognizance of the case due to its special competence on the issues and concerns of overseas workers. In fact, A, B, C, and D already filed a
complaint before the POEA, which alleged the same set of facts and affidavits in the case before the
LA. If you were a Justice of the Court of Appeals, how would you decide the case?

Answer 534

As a Justice of the Court of Appeals, I would dismiss the petition.
The Supreme Court has held in one case that primary administrative jurisdiction does not
necessarily denote exclusive jurisdiction. It applies where a claim is originally cognizable in the
courts and comes into play whenever enforcement of the claim requires the resolution of issues
which, under a regulatory scheme, has been placed within the special competence of an
administrative body.
In this case, while A, B, C, and D alleged the same set of facts and the same affidavits were
submitted before the LA and the POEA, the complaints raised different causes of action. The
Labor Arbiter complaint involved the issue of illegal dismissal and various money claims, while
the POEA complaint involved administrative disciplinary liability for violation of the POEA Rules
on Recruitment and Employment of Land-Based Overseas Workers. Hence, the doctrine of
primary administrative jurisdiction does not apply.
(See U R Employed International Corporation v. Pinmiliw, G.R. No. 225263, March 16, 2022, J.
Lopez)